(CLERK'S NOTE: SEE PRINTED JOURNAL FOR OFFICIAL VERSION)
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SEVENTH LEGISLATURE
REGULAR SESSION, 2005
FIFTY-NINTH DAY
____________
Charleston, W. Va., Friday, April 8, 2005
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend John Ziolkowski, St.
Francis deSales Catholic Church, Beckley, West Virginia.
Pending the reading of the Journal of Thursday, April 7, 2005,
On motion of Senator White, 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.
Senator Tomblin (Mr. President) presented a communication from
the Department of Health and Human Resources, submitting its annual
Youth Services report, in accordance with chapter forty-nine,
article five-b, section seven of the code of West Virginia.
Which communication and report were received and filed with
the Clerk.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 19, Eliminating Advisory
Board to Secretary of Department of Health and Human Resources and
adding Office of Inspector General.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 107, Relating to hunting
with dogs on land of another without permission.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 2. WILDLIFE RESOURCES.
§20-2-7. Hunting, trapping or fishing on lands of another; damages
and compensation.
(a) It shall be is unlawful for any person to shoot, hunt,
fish or trap upon the fenced, enclosed or posted grounds or lands
of another person; or to peel trees or timber, build fires or do
any other act or thing thereon in connection with or auxiliary to
shooting, hunting, fishing or trapping on such lands without
written permission in writing in his or her possession from the
owner, tenant or agent of such the owner. and every person hunting,
fishing, shooting or fowling upon such lands shall have in his possession such written permission when so doing.
(b) Any person who hunts, traps or fishes on land for the
purpose of, or while hunting, trapping or fishing, shall, without
the permission of the owner, tenant or agent of the owner is guilty
of a misdemeanor and liable to the owner or person suffering damage
for all costs and damages for: enter upon the land of another and
while thereon shall kill (1) killing or injuring injure any
domestic animal or fowl, or shall cut, destroy fowl; (2) cutting,
destroying or damage damaging any bars, gates or fence or any part
thereof, or shall of the property; or leave (3) leaving open any
bars or gates thereon resulting in damage to the owner or occupant
thereof, shall be guilty of a misdemeanor, and in addition shall be
liable to the owner or person suffering such damage for all costs
and damages resulting therefrom property.
It shall be lawful for the (c) The owner, lessee or the person
entitled to the possession of such lands, or the agent thereof, to
tenant or agent of the owner may arrest any such a person found
violating this section and immediately take him or her before a
justice of the peace for trial, and such magistrate. The owner,
lessee, person or agent tenant or agent of the owner is hereby
vested with all the powers and rights of a game protector
conservation officer for such these purposes. The officers charged
with the enforcement of the provisions of this chapter shall have
the duty to enforce the provisions of this section if requested to
do so by such the owner, lessee, person or agent tenant or agent of
the owner, but not otherwise.
(d) The provisions of subsections (b) and (c) of this section
related to criminal penalties and being subject to arrest are
inapplicable to a person whose dog, without the person's direction
or encouragement, travels onto the fenced, enclosed or posted land
of another in pursuit of an animal or wild bird: Provided, That the
pursuit does not result in the taking of game from the fenced,
enclosed or posted land, and does not result in the killing of
domestic animals or fowl or other damage to or on the fenced,
enclosed or posted land.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 107--A Bill to amend and
reenact §20-2-7 of the code of West Virginia, 1931, as amended,
relating to hunting with dogs; providing that persons may not be
guilty of hunting without permission, under certain circumstances,
when the person's dog pursues an animal or wild bird onto another
person's land without the person's direction or encouragement.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 107, 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. 107) 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 concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 154, Relating to beneficial
use of water treatment plant sludge.
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. 213, Continuing Oral Health Program.
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, by striking out everything after
the section caption and inserting in lieu thereof the following:
Pursuant to the provisions of article ten, chapter four of this code, the Oral Health Program shall continue to exist until
the first day of July, two thousand seven, unless sooner
terminated, continued or reestablished.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 213, 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. 213) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 213) 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, 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. 214, Continuing Acupuncture Board.
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 twenty, by striking out everything after
the section caption and inserting in lieu thereof the following:
Pursuant to the provisions of article ten, chapter four of
this code, the West Virginia Acupuncture Board shall continue to
exist until the first day of July, two thousand eight, unless
sooner terminated, continued or reestablished.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 214, 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. 214) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 214) 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, 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. 215, Continuing Board of Accountancy.
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 thirty-two, by striking out everything
after the section caption and inserting in lieu thereof the
following:
Pursuant to the provisions of article ten, chapter four of
this code, the West Virginia Board of Accountancy shall continue to
exist until the first day of July, two thousand seven, unless
sooner terminated, continued or reestablished.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 215, 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. 215) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 215) 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. 235, Relating to National Animal
Identification System.
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. 235--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §19-9-7a, relating to National Animal Identification
System; requiring state participation in the program; providing
rule-making authority; and exempting premises and animal
identification data from disclosure pursuant to the freedom of
information act.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 235, 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. 235) 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 concurrence by that body in the passage, to take effect July 1,
2005, of
Eng. Senate Bill No. 240, Granting state employees paid leave
for organ donation.
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. 281, Continuing Emergency Medical
Services Advisory Council.
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, section five-a, by striking out everything after
the section caption and inserting in lieu thereof the following:
Pursuant to the provisions of article ten, chapter four of
this code, the Emergency Medical Services Advisory Council shall
continue to exist until the first day of July, two thousand eight,
unless sooner terminated, continued or reestablished.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 281, 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. 281) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 281) 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 concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 347, Authorizing rules of Higher
Education Policy Commission and Council for Community and Technical
College Education.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 414, Relating to child
passenger safety and booster seats.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 424, Relating to
conservation and preservation easements.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-29. Authority of personal representative concerning
conservation and preservation easements.
(a) A personal representative, trustee, administrator or
executor of a decedent or a decedent's estate is hereby granted the authority to:
(1) Sell a conservation or preservation easement created prior
to the decedent's death under article twelve, chapter eight-a of
this code or article twelve, chapter twenty of this code;
(2) Donate a conservation or preservation easement created
prior to the decedent's death under article twelve, chapter eight-a
of this code or article twelve, chapter twenty of this code;
(3) Amend a conservation or preservation easement created
prior to the decedent's death under article twelve, chapter eight-a
of this code or article twelve, chapter twenty of this code and
recorded on the decedent's real property, in order to obtain the
benefit of the estate tax exclusion allowed under §2031(c)of the
United States Internal Revenue Code of 1986, as amended;
(4) Execute a deed of conservation or preservation easement
and related documents when decedent's application to establish and
convey an easement was approved by a holder during the nine month
period preceding the date of decedent's death, but the deed of
conservation or preservation easement and related documents were
not signed by the decedent before his or her death: Provided, That
before executing these documents the personal representative,
trustee or executor complies with the provisions of subsection (b)
of this section; or,
(5) Execute a deed of conservation or preservation easement
and related documents when decedent's application to establish and
convey an easement was submitted to a holder before decedent's
death but is approved by a holder after the decedent's death: Provided, That before executing these documents the personal
representative, trustee, administrator or executor complies with
the provisions of subsection (b) of this section.
(b) The personal representative, trustee, administrator or
executor shall ensure that the sale, donation, amendment or
transfer of a conservation or preservation easement complies with
the following:
(1) The proposed sale, donation, transfer or amendment
satisfies the requirements set forth in the provisions of article
twelve, chapter eight-a, or article twelve, chapter twenty of this
code, as applicable to the particular easement;
(2) The proposed sale, donation, transfer or amendment is to
a qualified conservation organization or holder, and the
organization or holder agrees to accept the conservation or
preservation easement; and,
(3) The sale, donation, transfer or amendment meets one of the
following conditions:
(A) All heirs, beneficiaries and devisees with interests in
the real estate affected provide written consent; or
(B) The will or other testamentary instrument directs the
personal representative, trustee, or executor to sell or donate the
conservation or preservation easement; or
(C) At the time of the decedent's death, the decedent had a
pending application for a sale or donation of a conservation or
preservation easement, and such conservation or preservation
easement was in process of settlement.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 424--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §44-1-29, relating to the authority of personal
representatives with regard to conservation or preservation
easements; and providing that a personal representative, trustee,
administrator or executor may sell, donate or amend conservation or
preservation easements under certain conditions.
Senator Chafin moved that the Senate concur in the House of
Delegates amendments to the bill.
Following discussion,
At the request of Senator Chafin, unanimous consent being
granted, further consideration of Senator Chafin's pending motion
was deferred until the conclusion of House messages now lodged with
the Clerk.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 531, Relating to Hospice Licensure Act.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 550, Designating certain rural hospitals
for Medicare Critical Access Hospital Program.
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 one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 5B. HOSPITALS AND SIMILAR INSTITUTIONS.
§16-5B-14. The Critical Access Hospital Designation Act.
A hospital located in an urban area (Metropolitan Statistical
Areas (MSA) County), can be considered rural for the purposes of a
designation as a critical access hospital pursuant to 42 U. S. C.
§ 1395i-4(c)(2), if it meets the following criteria:
(1) Is enrolled as both a Medicaid and Medicare provider and
accepts assignment for all Medicaid and Medicare patients;
(2) Provides emergency health care services to indigent
patients;
(3) Maintains 24-hour emergency services; and
(4) Is located in a county that has a rural population of
fifty percent or greater as determined by the most recent United
States decennial census.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 550, 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. 550) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 550) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the two houses, as to
Eng. Senate Bill No. 604, Establishing method for projecting
increase in net enrollment for each school district.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Campbell, Williams and Duke.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 616, Relating to priority of legislative
business for members and certain employees of Legislature.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §4-1-17 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said Code be further amended, by
adding thereto a new article, designated §4-1A-1, §4-1A-2, §4-1A-3,
§4-1A-4, §4-1A-5, §4-1A-6, §4-1A-7, §4-1A-8, §4-1A-9, §4-1A-10, §4-
1A-11, §4-1A-12, §4-1A-13, §4-1A-14, §4-1A-15, and §4-1A-16, all to
read as follows:
ARTICLE 1. OFFICERS, MEMBERS AND EMPLOYEES; APPROPRIATIONS; INVESTIGATIONS; DISPLAY OF FLAGS; RECORDS; USE OF CAPITOL
BUILDING; PREFILING OF BILLS AND RESOLUTIONS; STANDING
COMMITTEES; INTERIM MEETINGS; NEXT MEETING OF THE SENATE.
§4-1-17. Priority of legislative business for members and
designated employees.
(a) In accordance with the constitutional separation of powers
and principles of comity, it is the purpose of this section to
provide that members of the Legislature and certain designated
legislative employees are not required to attend to matters pending
before tribunals of the executive and judicial branches of
government when the timing of those matters may present conflicts
with the discharge of the public duties and responsibilities that
are incumbent upon members or employees of the Legislature. During
legislative sessions or meetings and for reasonable time periods
before and after, the judicial and executive branches should
refrain from requiring the personal presence and attention of a
legislator or designated employee who is engaged in conducting the
business of the Legislature.
(b) For the purposes of this section, the words or terms
defined in this subsection have the meanings ascribed to them.
These definitions are applicable unless a different meaning clearly
appears from the context.
(1) "Applicable time period" means and includes the following:
(A) The ten-day time period immediately before any regular or
extraordinary session of the Legislature;
(B) The time period during any regular or extraordinary session of the Legislature;
(C) The thirty-day time period immediately following the
adjournment sine die of any regular or extraordinary session of the
Legislature;
(D) The four-day time period before any interim meetings of
any committee of the Legislature or before any party caucus;
(E) The time period during any interim meetings of the
Legislature or any party caucus; or
(F) The four-day time period following the conclusion of any
interim meetings of any committee of the Legislature or party
caucus.
(2) "Designated employee" means any legislative employee
designated in writing by the Speaker of the West Virginia House of
Delegates to the Clerk of the House of Delegates or by the
President of the West Virginia Senate to the Clerk of the West
Virginia Senate to be necessary to the operation of the
Legislature, such that the legislative employee will be afforded
the protections of this section.
(3) "Member" means a member of the West Virginia House of
Delegates or the West Virginia Senate.
(4) "Tribunal" means a judicial or quasi-judicial entity of
the judicial or executive branch of government, or any legislative,
judicial or quasi-judicial entity of a political subdivision,
created or authorized under the Constitution or laws of this state.
(c) A notice filed with a tribunal pursuant to subsection (e)
of this section operates as an automatic stay of a judicial or administrative action or proceeding commenced before or after the
notice was filed. The automatic stay is in force for the
applicable time period or periods described in the notice unless it
is otherwise waived in accordance with the provisions of subsection
(f) of this section. In the event a session or meeting of the
Legislature is extended, the notice may be amended to reflect a
longer applicable time period. The filing of the notice and the
automatic stay do not prohibit the commencement of an action or
proceeding, the issuance or employment of process, or other
preliminary procedures that do not require the presence or personal
attention of the member or designated employee.
(d) During any applicable time period, a member or designated
employee who does not otherwise consent to a waiver of the stay is
not required to do any of the following:
(1) Appear in any tribunal, whether as an attorney, party,
witness or juror;
(2) Respond in any tribunal to any complaint, petition,
pleading, notice or motion that would require a personal appearance
or the filing of a responsive pleading;
(3) File in any tribunal any brief, memorandum or motion;
(4) Respond to any motion for depositions upon oral
examination or written questions;
(5) Respond to any written interrogatories, request for
production of documents or things, request for admissions or any
other discovery procedure, whether or not denominated as such; or
(6) Appear or respond to any other act or thing in the nature of those described in subdivision (1), (2), (3), (4) or (5) of this
subsection; or
(7) Make any other appearance before a tribunal or attend to
any other matter pending in a tribunal that in the discretion of
the member or designated employee would inhibit the member or
designated employee in the exercise of the legislative duties and
responsibilities owed to the public.
(e) A member or designated employee who desires to exercise
the protections afforded by this section shall not be required to
appear in any tribunal to assert the protections. In all cases, it
shall be sufficient if the member or designated employee notifies
the tribunal in question orally or in writing, stating that he or
she is invoking the protections of this section, describing the
action, proceeding or act to be stayed, and further identifying the
applicable period or periods for which the notice will operate as
a stay. An oral communication with the tribunal shall be followed
by a written notice or facsimile transmission to the tribunal
mailed or transmitted no later than two business days after the
oral communication. From the time of the oral communication or the
mailing or transmission of the written notice, whichever is
earlier, the notice operates as a stay of all proceedings in the
pending matter until the applicable time periods have passed and
expired.
(f) Notwithstanding the filing of a notice that operates as a
stay, a member or designated employee may later consent to waive
the stay and make an appearance or attend to a matter that would otherwise be stayed. However, a waiver as to a particular
appearance or act does not terminate, annul, modify or condition
the stay for any other purpose.
(g) The deference afforded by this section to members and
designated employees who are serving a client in a representative
capacity is also fully and completely extended to their clients, so
that no person whose representative before a tribunal is a member
or designated employee may be required, during any applicable time
period, to do anything that his or her representative is not
required to do under subsection (d) of this section.
(h) Unless the member or designated employee consents thereto,
no cocounsel, partner, associate, spouse or employee of the member
or designated employee may be required to make any appearance or do
any act during any applicable time period in the place and stead of
the member or designated employee.
(i) Any sentence, judgment, order, decree, finding, decision,
recommendation or award made contrary to the provisions of this
section in any action or proceeding in any tribunal, without the
consent of the member or designated employee, is void.
(j) Tribunals of the federal government and those of other
states are requested to honor the spirit and purpose of this
section pursuant to the doctrines of comity and federalism.
Further, it is the policy of this state that tribunals of this
state shall afford to legislators and staff personnel of the
federal government and other states the protections afforded by the
provisions of this section if the tribunals of the federal government and the other jurisdictions afford members or designated
employees of the West Virginia Legislature the same protections in
their tribunals.
ARTICLE 1A. LEGISLATIVE IMMUNITY.
§4-1A-1. Purpose; legislative findings and declarations.
(a) The purpose of this article is to describe the scope and
limitations of legislative immunity provided by:
(1) English common law;
(2) The Speech or Debate Clause of the United States
Constitution, Article I, Section 6;
(3) Decisions regarding Legislative immunity as developed in
Federal Common law by the federal judiciary in interpreting the
Speech or Debate Clause of the United States Constitution, Article
I, Section 6;
(5) The Speech or Debate Clause of the West Virginia
Constitution, Article VI, Section 17;
(6) The Separation of Powers Doctrine and the system of checks
and balances embodied in the United States Constitution; and
(7) The Division of Powers set forth in the West Virginia
Constitution, Article V, Section 1.
(b) The Legislature finds and declares as follows:
(1) That the privilege of Speech or Debate has been recognized
as an important protection of the independence and integrity of the
Legislature.
(2) That the ancestry of this privilege traces back to a
clause in the English Bill of Rights of 1689, and the history traces even further back, almost to the beginning of the
development of the English Parliament as an independent force.
(3) That in the American governmental structure, privileges
arising under the Speech or Debate Clause reinforce the Separation
of Powers Doctrine and the system of checks and balances that was
so deliberately established by the founding fathers and was carried
over into the West Virginia Constitution.
(4) That the protections provided by the Speech or Debate
Clause and the Separation of Powers Doctrine were not written into
the national and state Constitutions simply for the personal or
private benefit of members of Congress, the state Legislatures and
local governing bodies, but were intended to protect the integrity
of the legislative process by insuring the independence of
individual legislators.
§4-1A-2. Applicability of definitions.
For the purposes of this article, the words or terms defined
in this article have the meanings ascribed to them. These
definitions are applicable unless a different meaning clearly
appears from the context.
§4-1A-3. Legislative act defined.
"Legislative act" means an act that is generally to be
performed by the Legislature in relation to the investigative,
deliberative and decision-making business before it. A
"legislative act":
(1) Is an integral part of the processes by which members
participate in proceedings that come before the Senate or House of Delegates or a committee thereof, and
(2) Relates to the consideration and passage or rejection of
proposed legislation, or
(3) Relates to other matters that constitutional law places
within the jurisdiction of either the Senate, the House of
Delegates or the legislative branch of state government as a whole.
§4-1A-4. Legislative sphere defined.
The "legislative sphere" includes all activities that are an
integral part of the deliberative and communicative processes by
which members of the legislature participate in committee and house
proceedings with respect to the consideration and passage or
rejection of proposed legislation or with respect to other matters
which the Constitution places within the jurisdiction of either
house.
§4-1A-5. Political act defined.
"Political act" means an act, nonetheless legitimate, that is
political in nature rather than being a legislative act as defined
in section three of this article.
§4-1A-6. Scope of legislative immunity generally.
(a) Legislative immunity, affording protection under the
Separation of Powers Doctrine and the Speech or Debate privilege,
extends to all of a legislator's legislative acts, as defined in
section three of this article.
(b) The Speech or Debate privilege, when it applies, is
absolute and has two aspects:
(1) A member of the Legislature has immunity extending both to civil suits and criminal prosecutions for all actions within the
legislative sphere, even though the conduct, if performed in other
than a legislative context, would in itself be unconstitutional or
otherwise contrary to criminal or civil statutes; and
(2) A member of the Legislature is provided a testimonial
privilege that operates to protect those to whom it applies from
being compelled to give testimony as to privileged matters and from
being compelled to produce privileged documents.
§4-1A-7. Legislative immunity in specific instances.
The scope of legislative immunity includes, but is not limited
to, the following legislative acts:
(1) Introducing and voting for legislation;
(2) Failing or refusing to vote or enact legislation;
(3) Voting to seat or unseat a member;
(4) Voting on the confirmation of an executive appointment;
(5) Making speeches;
(6) Enforcing the rules of the Senate or House of Delegates or
the joint rules of the Legislature;
(7) Serving as a member of a committee or subcommittee;
(8) Conducting hearings and developing legislation;
(9) Investigating the conduct of executive agencies;
(10) Publishing and distributing reports;
(11) Composing and sending letters;
(12) Drafting memoranda and documents;
(13) Lobbying other legislators to support or oppose
legislation;
(14) Abolishing personnel positions; and
(15) Hiring and firing employees.
§4-1A-8. Actions taken without lawful authority are not immune.
Legislative immunity does not extend to activities by
legislators that are without lawful authority under constitutional
law, statutory law, or rules of the legislature, including, but not
limited to, the following:
(1) Using an unconstitutional procedure to enact legislation;
(2) Conducting an illegal investigation or an unlawful search
or seizure;
(3) Performing another otherwise valid legislative act without
proper legislative authority;
(4) Filing a false or incomplete report, disclosure or claim
regarding an otherwise valid legislative act; or
(5) Using legislative office for private gain in violation of
the provisions of chapter six-b of this code that define and
enforce governmental ethics.
§4-1A-9. Political acts are not privileged.
Legislative immunity does not extend to political acts,
including, but not limited to, the following:
(1) Communications to the press through letters, electronic
mail, newsletters or news releases: Provided, That the release of
pending legislation, committee reports, journals, acts and other
official legislative reports and documents is a legitimate
legislative activity;
(2) Privately releasing a republication of a speech made within the legislative sphere;
(3) Holding a press conference;
(4) Making speeches or giving interviews outside of the
legislative sphere; or
(5) Assisting a constituent or supporter through constituent
services, including, but not limited to, making appointments with
government agencies, attempting to influence discretionary acts of
a government officer, or providing assistance in securing
government contracts.
§4-1A-10. Administrative acts are not immune.
(a) Legislative immunity does not extend to activities by
legislators that are administrative in nature rather than
legislative. If the underlying facts on which a decision is based
are legislative facts involving establishment of a general policy
or state of affairs, then the decision is legislative. If the
facts used in the decisionmaking are more specific, such as those
that relate to particular individuals or situations, then the
decision is administrative.
(b) With regard to legislative personnel matters, whether a
personnel decision regarding a legislative employee is shielded by
legislative immunity depends upon the nature of the duties of the
employee about whom the personnel decision is made. Personnel
decisions regarding a legislative employee are afforded immunity if
the employee's duties are directly related to the functioning of
the legislative process, and the duties:
(1) Involve work that significantly informs or influences the shaping of laws, such as when the employee has an opportunity for
meaningful input into the legislative process; or
(2) Are peculiar to a legislator's work as a legislator or
intimately cognate to the legislative process.
§4-1A-11. Certain offers of proof about legislative activities not
prohibited.
(a) Proof of a person's status as a member of the Legislature
is not prohibited.
(b) A member of the Legislature who chooses to offer evidence
of legislative acts as a defense to a criminal prosecution has not
been "questioned," even though the member thereby subjects himself
or herself to cross-examination.
§4-1A-12. Legislative acts of legislative staff, aides or
assistants.
Legislative immunity extends to legislative staff, aides or
assistants working on behalf of a legislator. Inquiry is
prohibited into things done as a legislator's staff member, aide or
assistant which would have been legislative acts if performed by
the legislator personally.
§4-1A-13. Legislative immunity from ultimate relief.
Legislative immunity may be invoked to shield a legislator
from judicially ordered relief, including, but not limited to the
following:
(1) Criminal prosecution for his or her legislative acts;
(2) Liability for damages for his or her legislative acts;
(3) Declaratory judgments;
(4) Injunctive relief; and
(5) Extraordinary writs.
§4-1A-14. Testimonial immunity.
(a) Testimonial immunity is an aspect of legislative immunity
that protects a legislator from questioning elsewhere than in the
legislative forum.
(b) When a legislator has been improperly questioned before a
grand jury concerning legislative acts, the counts in a criminal
indictment that are based on the testimony must be dismissed.
(c) When a legislator is found to be immune from a civil
complaint, the relief to be granted is to have the complaint
dismissed or to have a writ of prohibition issued to stop further
proceedings.
(d) In the case of a subpoena that seeks to improperly
question a legislator's conduct as to legislative acts, to depose
a legislator or to seek disclosure as to any matters pertaining to
the memoranda, documents or actions by a legislator which are or
were in connection with the legislative process, the subpoenas may
be quashed or the court may grant a motion for a protective order.
§4-1A-15. Right to interlocutory appeal.
Denial of a claim of legislative immunity is immediately
appealable under the collateral order doctrine because the Speech
or Debate Clause is designed to protect legislators not only from
the consequences of litigation's results but also from the burden
of defending themselves.
§4-1A-16. Common law regarding legislative immunity not affected by the enactment of this article.
The Legislature of the state of West Virginia, in codifying
certain elements and doctrines of the common law regarding
legislative immunity through the enactment of this article, does
not intend to narrow the common law definition of legislative
immunity that is afforded the Legislature under the speech or
debate privilege and the separation or division of powers, and does
not, with the enactment of this article, otherwise revoke or
abrogate any portion of the common law. This article shall not be
construed so as to narrow, restrict, revoke or abrogate the common
law.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 616--A Bill to amend §4-1-17 of the code
of West Virginia, 1931, as amended; and to further amend said code
by adding thereto a new article, designated §4-1A-1, §4-1A-2,
§4-1A-3, §4-1A-4, §4-1A-5, §4-1A-6, §4-1A-7, §4-1A-8, §4-1A-9,
§4-1A-10, §4-1A-11, §4-1A-12, §4-1A-13, §4-1A-14, §4-1A-15, and
§4-1A-16, all relating to legislative priorities and immunities
under statute, common law and constitutional law.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 616, 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. 616) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 616) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House
of Delegates amendments, as to
Eng. Senate Bill No. 639, Defining "electronic postmark".
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, section one, line twenty-seven, after the word
"proof" by inserting the words "that an electronic document existed
in a certain form at a certain time and".;
And,
On page seven, section three, after line thirty-nine, by
inserting a new subsection, designated subsection (d), to read as
follows:
(d) Nothing contained in this article may be construed to
authorize the use of electronic signatures, electronic postmarks,
or both, to effect service of a summons and complaint.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 639, 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. 639) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 639) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 650, Relating to small claims hearings by
Office of Tax Appeals.
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. 667, Relating to motor fuel excise tax.
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 eight, section nine, line one hundred thirty-three
through one hundred forty, by striking out the proviso and
inserting in lieu thereof a new proviso, to read as follows:
Provided, That if the United States government, or any agency or
instrumentality thereof, does not pay the seller the tax imposed by
section five of this article on any purchase of motor fuel, the
person selling tax previously paid motor fuel to the United States
government, or its agencies or instrumentalities, may then claim a
refund of the variable rate of tax imposed by said section on those
sales.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 667, 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. 667) 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 recede from its amendments to, 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 Senate Bill No. 717, Permitting Wetzel
County Hospital provide alternate retirement plan for new
employees.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Stalnaker, Browning and Duke.
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 Edgell, 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 the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 731, Making supplementary appropriation
of federal funds to Department of Transportation, Division of
Public Transit.
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. 732, Making supplementary appropriation
from state fund to Department of Transportation, Aeronautics
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. 733, Making supplementary appropriation
of federal funds to Department of Transportation, Aeronautics
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. 734, Making supplementary appropriation
of federal funds to Miscellaneous Boards and Commissions, State
Mapping and Addressing Board.
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. 739, Making supplementary appropriation
to Department of Health and Human Resources, Division of Health,
Hepatitis B Vaccine.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect July 1,
2005, of
Eng. Senate Bill No. 744, Clarifying criteria for employee to
sustain lawsuit for intentional injury.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 17, Requesting Division of
Highways name Fort Hill Bridge in Charleston "Eugene A. Carter
Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 2078, Requiring the spaying or neutering
of certain dogs and cats.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect July 1, 2005, of
Eng. House Bill No. 2449, Continuation of the West Virginia
Board of Manufactured Housing Construction and Safety.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2466, Eliminate provisions
which created unlawful classifications based on race and to update
obsolete provisions.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect July 1, 2005, of
Eng. House Bill No. 2534, Continuation of the Tourism
Commission.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2570, Requiring banking
institutions to post bond or other security for the deposit of
county, municipal or county board of education funds.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment, as amended by
the House of Delegates, passage as amended, to take effect July 1,
2005, and requested the concurrence of the Senate in the House of
Delegates amendment to the Senate amendment, as to
Eng. House Bill No. 2623, Continuation of the Public Land
Corporation.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendment to the bill was reported by the Clerk:
On page one, section nine, by striking out the word "six" and inserting in lieu thereof the word "nine".
Senator Chafin moved that the Senate refuse to concur in the
foregoing House amendment to the Senate amendment to the bill.
Thereafter, at the request of Senator Chafin, and by unanimous
consent, his aforestated motion was withdrawn.
On motion of Senator Chafin, further consideration of the
message was placed under unfinished business for tomorrow,
Saturday, April 9, 2005.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect July 1, 2005, of
Eng. House Bill No. 2650, Relating to beef industry
self-improvement assessment program.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 2789, Relating to the assessment date for
bank holding companies.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 2837, Prescribing personal finance
instruction in secondary schools by the State Board of Education.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments to
the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 2950, Relating to requiring
a paper copy of a voter's votes when using an electronic system to
vote if an election is contested or for a random count of
precincts.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
On page two, section nine-b, subsection (d), subdivision (2),
after the word "issue;" by inserting the word "and";
On page two, section nine-b, subsection (d), by striking out
all of subdivisions (3), (4) and (5) and inserting in lieu thereof
a new subdivision, designated subdivision (3), to read as follows:
(3) Allow voters an opportunity to change ballot selections,
or correct errors, including the opportunity to correct the error
through the issuance of a replacement ballot if the voter was
otherwise unable to change the ballot or correct the error.;
And,
On page two, section nine-b, after subsection (e), by adding
thereto a new subsection, designated subsection (f), to read as
follows:
(f) The Secretary of State is hereby directed to propose rules
and emergency rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code in accordance with the provisions of this section.
Senator Chafin moved that the Senate concur in the House of
Delegates amendments to the Senate amendments to the bill.
Following discussion,
At the request of Senator Chafin, and by unanimous consent,
his aforestated motion was withdrawn.
Thereafter, at the request of Senator Chafin, unanimous
consent being granted, further consideration of the message on the
bill was deferred until the conclusion of House messages now lodged
with the Clerk, following consideration of Engrossed Committee
Substitute for Senate Bill No. 424, already placed in that
position.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect July 1, 2005, of
Eng. House Bill No. 2958, Continuing the Public Employees
Insurance Agency Finance Board.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect July 1, 2005, of
Eng. House Bill No. 3046, Continuation of the Board of
Veterinary Medicine.
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. 39--Requesting the West Virginia Division of Highways to name the bridge located at U. S.
Route 2 and Nine Mile Road in Cabell County, West Virginia, the
"David Rickey Carson Memorial Bridge".
Whereas, David Rickey Carson, the son of Mr. and Mrs. Raymond
Carson, was born on September 8, 1947, at Lesage, Cabell County,
West Virginia; and
Whereas, Specialist/4 David Rickey Carson was killed in action
on January 31, 1968, at Gia Dinh, Vietnam, while serving in the
U.S. Army, 1st Log Command; and
Whereas, Specialist/4 David Rickey Carson was awarded the
Purple Heart, posthumously; and
Whereas, David Rickey Carson gave his young life in the
service of his country on a battlefield in a country far away, the
supreme sacrifice for the cause of freedom; and
Whereas, The life of David Rickey Carson should not go
unnoticed; therefore, be it
Resolved by the Legislature of West Virginia:
That the members of the Legislature request the West Virginia
Division of Highways to name the bridge located at U. S. Route 2
and Nine Mile Road in Cabell County, West Virginia, the "David
Rickey Carson Memorial Bridge"; and, be it
Further Resolved, That the West Virginia Division of Highways
provide and erect a sign at either end of the bridge displaying the
name of the bridge; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the Commissioner of the Division of Highways, and to the surviving family of David Rickey Carson.
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. 71--Amending Joint Rules of
the Senate and the House of Delegates.
Resolved by the Legislature of West Virginia:
That the Joint Rules of the Senate and House of Delegates be
amended by adding thereto a new rule, designated Rule 30, to read
as follows:
Joint Committee on Technology
30. (a) A joint standing committee of the Senate and House,
named the Joint Committee on Technology, shall continually study
and investigate means and methods to develop and maintain an
overall technology policy for the State of West Virginia with
respect to: (1) Application of technology to free State employees
from repetitive tasks so the employees may focus on more important
tasks; (2) application of technology to speed information flow and
information management to achieve a faster response time to users
of government services, including businesses, individuals and
intergovernmental users; (3) minimize transaction costs; and (4)
meet the demands of constituents for use of technology. All
computer- and technology-related legislation introduced in the
Legislature shall be referred to the committee in addition to any other reference the presiding officer may designate.
(b) The committee shall consist of seven members of the Senate
to be appointed by the President of the Senate and seven members of
the House of Delegates to be appointed by the Speaker of the House
of Delegates. If possible, no more than five of the seven members
appointed by the President of the Senate and the Speaker of the
House of Delegates, respectively, may be members of the same
political party.
(c) The committee shall make a continuing study and
investigation of all aspects of technology and endeavor to
stimulate, encourage, promote and assist in the development of
technology in the state and related public policies. The powers
and duties of the committee include, but are not limited to, the
following:
(1) Review the annual reports and work plans submitted by the
governor's office of technology and the West Virginia science and
technology advisory council concerning the development of access to
a statewide public telecommunications network for distance
learning, telemedicine, and universal access for governmental
entities, e-government, e-commerce and other issues relating to
technology, either initiated by those agencies or the committee, or
referred to it by either house of the Legislature for study or
review;
(2) Exercise leadership to coordinate for the various
committees of the Legislature the various activities, studies, and
planning activities of the Legislature which relate to any aspect of technological development;
(3) Evaluate the impact of existing statutes and proposed
legislation related to technology in the state;
(4) Utilize the governor's office of technology and other
resources to investigate, research and consider issues related to
technology as may be requested by the Legislature and make
recommendations to the Legislature;
(6) Encourage research and development in technology;
(7) Inventory and consult with existing technology businesses
and enterprises as to ways to foster increased business activity
and employment opportunities; and
(8) Working in cooperation with the governor's office of
technology and the department of administration, the committee
shall recommend guidelines to be used by the Legislature, state
government and state political subdivisions for technology-related
purchasing.
(d) The committee shall hold meetings at such times and places
as it may designate. The President of the Senate shall appoint a
cochair of the committee from the Senate members and the Speaker of
the House of Delegates shall appoint a cochair of the committee
from the House of Delegates members. When the Legislature is not
in session, the committee shall meet and conduct its business as a
joint committee.
When the Legislature is in session, in addition to joint
meetings, the members of either house may meet separately from
members of the other house to conduct committee business concerning technology-related legislation introduced or originated in that
house. When the members meet separately, they may function as
other committees of that house. As far as practicable, relevant
information, including actuarial letters or notes, gathered by
members meeting separately from the other house shall be sent to
the cochair of the other house if it is considering the same or
similar legislation.
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. 74--Requesting that the Joint
Committee on Government and Finance conduct a study to determine
the need for a Colon Cancer Detection and Prevention Board within
the Bureau for Public Health and the need for a colon cancer public
awareness campaign to encourage increased participation in colon
cancer screening programs in West Virginia.
Whereas, Colorectal cancers are the largest cause of cancer
deaths in the United States; and
Whereas, Early detection by appropriate screening can detect
and remove early cancers; and
Whereas, The survival rate for persons with colorectal cancers
found early is more than ninety percent; and
Whereas, March is National Colorectal Cancer Awareness Month;
and
Whereas, Colorectal cancer is the third most diagnosed cancer in the United States, with one out of eighteen persons in this
country developing colorectal cancer in his or her lifetime; and
Whereas, Nine in ten new cases of colorectal cancer are people
50 or older. However, colorectal cancer does not discriminate and
can happen to men and women at any age; and
Whereas, A person in the United States is diagnosed with
colorectal cancer every four minutes; and
Whereas, Colorectal cancer is the second leading cause of
cancer death among men and women in the United States and Canada
(after lung cancer); and
Whereas, The American Cancer Society estimated that 56,730
people will die from colorectal cancer in 2004 which means one
person in the United States dies of colorectal cancer every 9.3
minutes; and
Whereas, A colon cancer detection and awareness program should
be established and administered by the Commissioner of the Bureau
for Public Health; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to conduct an interim study to determine the need for a
Colon Cancer Detection and Prevention Board within the Bureau for
Public Health and the need for a colon cancer public awareness
campaign to encourage increased participation in colon cancer
screening programs in West Virginia; and, be it
Further Resolved, That this study include the feasibility of
establishing a colon cancer awareness program and diagnostic and treatment fund and the efficacy of utilizing a voluntary income tax
checkoff program to provide moneys for this fund; 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. 85--Requesting
the Joint Committee on Government and Finance to make a study on
the costs and benefits of full-time in-school alternative education
programs and a study into choosing one school from each RESA to set
up model programs for the 2005-2006 school year to be used as a
pilot program.
Whereas, The goal of the educational system is to further the
learning possibilities of West Virginia's children; and
Whereas, Thousands of exclusions from elementary school
environments took place during FY 2003-2004, including numerous
exclusions for disrespectful or inappropriate conduct, aggressive conduct, failure to obey rules or authority, gang activity, legal
concerns, failure to work to full potential, illegal drugs, tobacco
or alcohol, tardiness and truancy, violation of detention, weapons
and other violations; and
Whereas, Thousands of exclusions from middle school
environments took place during FY 2003-2004, including numerous
exclusions for disrespectful or inappropriate conduct, aggressive
conduct, failure to obey rules or authority, gang activity, legal
concerns, failure to work to full potential, illegal drugs, tobacco
or alcohol, tardiness and truancy, violation of detention, weapons,
some exclusions would constitute as a felony if charged, and other
violations; and
Whereas, Thousands of exclusions from high school environments
took place during FY 2003-2004, including numerous exclusions for
disrespectful or inappropriate conduct, aggressive conduct, failure
to obey rules or authority, gang activity, legal concerns, failure
to work to full potential, illegal drugs, tobacco or alcohol,
tardiness and truancy, violation of detention or suspension, some
exclusion would constitute as a felony if charged, weapons, other
violations; and
Whereas, An exclusion constitutes removal from the classroom
setting for any specified length of time for disciplinary reasons;
and
Whereas, An exclusion can be removal from the classroom, in-
school suspension, out-of-school suspension or an interim
alternative setting by school personnel; and
Whereas, Exclusions can be the result of major or minor
offenses; and
Whereas, Some of the students have challenged home lives,
others live in a challenged environment that encourages
participation in illegal activities and others do not have an
avenue to focus their talents and abilities; and
Whereas, Excluding a child increases their risk of failure
especially for high-risk students; and
Whereas, When a student is excluded from school for safety
concerns, it increases those safety concerns for the community; and
Whereas, The average cost of keeping a child in school is
approximately $10,000 per year; and
Whereas, The average cost per year for a child in a
correctional facility is $92,000 per year; and
Whereas, The current makeup of alternative education does not
afford the student an efficient transfer back into the regular
learning environment; and
Whereas, Research continually reveals that alternative
education students can succeed and perform well academically when
placed in a effective program; therefore, be it,
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to make a study on the costs and benefits of full-time
in-school alternative education programs and a study into choosing
one school from each RESA to set up model programs for the 2005-
2006 school year to be used as a pilot program; and, be it
Further Resolved, That the Joint Committee on Government and
Finance is requested to prepare a report that will be received by
the interim Committee on Education by July 31, 2005.
Referred to the Committee on Rules.
Consideration of House messages having been concluded, the
Senate returned to the consideration of
Eng. Com. Sub. for Senate Bill No. 424, Relating to
conservation and preservation easements.
Having been received as a House message in earlier proceedings
today, and now coming up in deferred order, with Senator Chafin's
pending motion that the Senate concur in the House of Delegates
amendments to the bill (shown in the Senate Journal of today, pages
\ through \, inclusive).
The question being on the adoption of Senator Chafin's
aforestated motion, the same was put and prevailed.
Engrossed Committee Substitute for Senate Bill No. 424, 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. 424) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Action as to Engrossed Committee Substitute for Senate Bill
No. 424 having been concluded, the Senate returned to the
consideration of
Eng. Com. Sub. for House Bill No. 2950, Relating to requiring
a paper copy of a voter's votes when using an electronic system to
vote if an election is contested or for a random count of
precincts.
Having been received as a House message in earlier proceedings
today, and the House of Delegates amendments to the Senate
amendments reported at that time (shown in the Senate Journal of
today, pages \ through \, inclusive), and now coming up in deferred
order, was again reported by the Clerk.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the Senate amendments to the bill.
Engrossed Committee Substitute for House Bill No. 2950, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins,
Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2950) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Chafin, unanimous consent being
granted, the Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 65, Designating month of
December, 2005, Legislators Back to School Month.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 81, Requesting Joint
Committee on Government and Finance study Massage Therapy Licensure
Board.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 86, Requesting Division of
Highways name bridge on Route 16 at Corrine, Wyoming County, "Paul
and Roger Harsanyi Memorial Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 87, Requesting Joint
Committee on Government and Finance study cost of operating
regional jails.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Bowman, and by unanimous
consent, the remarks by Senator Fanning regarding the adoption of
Senate Concurrent Resolution No. 88 were ordered printed in the
Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and
resumed business under the seventh order.
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.
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. 46, Recognizing and
acknowledging Vietnam Veterans Recognition Week.
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. 59, Requesting the Joint
Committee on Government and Finance direct the Legislature to study
the concept of including clinic-based healthcare as a prepaid
limited health service.
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. 69, Recognizing the importance
of the Health Sciences and Technology Academy and its significant
contribution to African American and under represented high school
students.
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.
Without objection, the Senate 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,
consisting of executive nominations for appointees:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
April 8, 2005
Senate Executive Message No. 5
TO:The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I respectfully submit the following nominations for your
advice and consent:
1.For Member, Natural Resources Commission, Jeffrey S.
Bowers, Sugar Grove, Pendleton County, for the term ending June 30,
2005.
2.For Member, Natural Resources Commission, Jan E. Riffe,
Alderson, Greenbrier County, for the term ending June 30, 2008.
Notice of these appointments was previously provided to the
appropriate legislative staff at the time the appointments were
made.
Sincerely,
Joe Manchin III,
Governor.
Which communication was referred to the Committee on
Confirmations and incorporated with Senate Executive Message No. 3-
W and the executive nominations received earlier this session; all
to be considered as a special order of business for Saturday, April
9, 2005, at 11 a.m.
At the request of Senator Hunter, and by unanimous consent,
the Senate returned to the second order of business and the
introduction of guests.
The Senate proceeded to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2780, Relating to increasing the
allocation of racetrack video lottery net terminal income to be
used for payment into the pension plan for employees of the
Licensed Racing Association.
And has amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 5, 2005;
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 2780) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration and read a second time.
Senator Helmick requested unanimous consent that the bill be
advanced to third reading with the unreported Finance amendment
pending and the right for further amendments to be considered on
that reading.
Which consent was not granted, Senator Harrison objecting.
On motion of Senator Helmick, the bill (Eng. H. B. No. 2780)
was advanced to third reading with the unreported Finance amendment pending and the right for further amendments to be considered on
that 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. 2852, Implementing the
recommendations of the West Virginia Pharmaceutical Cost Council.
With amendments from the Committee on Health and Human
Resources pending;
And has also 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 last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2852) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page five, by striking out everything after the enacting
section and inserting in lieu thereof the following:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3C. WEST VIRGINIA PHARMACEUTICAL AVAILABILITY AND
AFFORDABILITY ACT.
§5A-3C-1. Title.
The provisions of this article shall be known as and referred
to as the "West Virginia Pharmaceutical Availability and
Affordability Act".
§5A-3C-2. Legislative findings and intent.
(a) The Legislature finds:
(1) That the rising cost of prescription drugs is one of the
most critical issues facing the current health care system in the
State of West Virginia;
(2) This crisis has imposed a significant hardship on
individuals who have limited budgets, are uninsured or who have
prescription coverage that is unable to control costs successfully
due to cost shifting and disparate pricing policies;
(3) That the average cost per prescription for seniors rose
significantly between one thousand nine hundred ninety-two and two
thousand, and is expected to continue increasing significantly
through two thousand ten;
(4) State government agencies could achieve significant
savings through the coordinated purchase of prescription drugs;
(5) That there is an increasing need for citizens of West
Virginia to have affordable access to prescription drugs; and
(6) That the Legislature does not intend the imposition of the
programs under this article to penalize or otherwise jeopardize the
benefits of veterans and other recipients of federal supply schedule drug prices.
(b) In an effort to promote healthy communities and to protect
the public health and welfare of West Virginia residents, the
Legislature finds that it is its responsibility to make every
effort to provide affordable prescription drugs for all residents
of West Virginia.
(c) That in chapter one hundred ninety three, Acts of the
Legislature, regular session, two thousand four, the Legislature
established a Pharmaceutical Cost Management Council and directed
said council to recommend measures to decrease the cost of
prescription drugs and, in particular, the establishment of a
benchmark using or referencing the Federal Supply Schedule ("FSS")
prices or using or referencing to the price, as adjusted for
currency valuations, set by Canada Patented Medicine Prices Review
Board (PMPRB) or any other appropriate reference price that would
maximize savings to the broadest percentage of the population of
this state. Further, the Legislature determined that prior to
implementation of a reference pricing schedule and the strategic
plan for implementation, a concurrent resolution approving the
benchmark and the strategic plan must be passed.
(d) That in the third extraordinary session of two thousand
four, a concurrent resolution was adopted on the sixteenth day of
November, two thousand four, referred to as Senate Concurrent
Resolution 301, which concurrent resolution established the FSS as
the benchmark for the purchase of brand name pharmaceutical drugs
and the strategic plan for the implementation of such program.
(e) That the Legislature intends to transfer the powers
established in West Virginia Code §5A-3C to the Office of the
Pharmaceutical Advocate.
§5A-3C-3. Definitions.
In this article:
(1) "Advertising or marketing" means any manner of
communication of information, either directly or indirectly, that
is paid for and usually persuasive in nature about products,
services or ideas related to pharmaceuticals by identified sponsors
through various media, persons or other forms as further defined by
legislative rule.
(2) "Audit" means a systematic examination and collection of
sufficient, competent evidential matter needed for an auditor to
attest to the fairness of management's assertions in the financial
statements and to evaluate whether management has sufficiently and
effectively carried out its responsibilities and complied with
applicable laws and regulations, conducted by an independent
certified public accountant in accordance with the applicable
statement on standards.
(3) "Average wholesale price" means the amount determined from
the latest publication of the Blue Book, a universally subscribed
pharmacist reference guide annually published by the Hearst
Corporation. "Average wholesale prices" may also be derived
electronically from the drug pricing database synonymous with the
latest publication of the Blue Book and furnished in the National
Drug Data File by First Data Bank, a service of the Hearst Corporation.
(4) "Benchmark" means a point of reference which serves as the
basis for beginning negotiations by the Pharmaceutical Advocate for
pricing of brand name pharmaceuticals.
(5) "Brand name drug" means an innovator drug as defined in
this section.
(6) "Dispensing fee" means the fee charged by a pharmacy to
dispense pharmaceuticals.
(7) "Drug manufacturer" or "pharmaceutical manufacturer" means
any entity which is engaged in:
(A) The production, preparation, propagation, compounding,
conversion or processing of prescription drug products, either
directly or indirectly by extraction from substances of natural
origin, or independently by means of chemical synthesis or by a
combination of extraction and chemical synthesis; or
(B) In the packaging, repackaging, labeling, relabeling or
distribution of prescription drug products. "Drug manufacturer" or
"pharmaceutical manufacturer" does not include a wholesale
distributor of drugs or a retail pharmacy licensed under state law.
(8) "Federal supply schedule" means the price available to all
federal agencies for the purchase of pharmaceuticals authorized in
the Veterans Health Care Act of 1992, PL 102-585. Federal supply
schedule prices are intended to equal or better the prices
manufacturers charge their "most-favored" nonfederal customers
under comparable terms and conditions.
(9) "Labeler" means an entity or person that receives prescription drugs from a manufacturer or wholesaler and repackages
those drugs for later retail sale and that has a labeler code from
the Food and Drug Administration pursuant to 21 C. F. R. §207.20
(1999).
(10) "Multiple-source drug", "innovator drug" and
"noninnovator drug" mean the following:
(A) The term "multiple-source drug" means, when two or more
drug products are: Rated as therapeutically equivalent (under the
Food and Drug Administration's most recent publication of "Approved
Drug Products with Therapeutic Equivalence Evaluations"), except as
provided in paragraph (B) of this subdivision, are pharmaceutically
equivalent and bioequivalent, as determined by the Food and Drug
Administration, and the term "innovator drug" is referred to in
this article as "brand". The term "innovator drug" means a drug
which is produced or distributed under an original new drug
application approved by the Food and Drug Administration, including
a drug product marketed by any cross-licensed producers or
distributors operating under the new drug application and any
multiple-source drug that was originally marketed under an original
new drug application approved by the Food and Drug Administration.
The term "noninnovator drug" is referred to in this article as
"generic." The term "noninnovator drug" means a multiple-source
drug that is not an "innovator drug."
(B) Paragraph (A) of this subdivision does not apply if the
Food and Drug Administration changes by regulation the requirement
that, for purposes of the publication described in paragraph (A) of this subdivision, in order for drug products to be rated as
therapeutically equivalent, they must be pharmaceutically
equivalent and bioequivalent.
(11) "Office of the Pharmaceutical Advocate" or "Office" means
the Office created pursuant to section four of this article.
(12) "Person" means any natural person or persons or any
corporation, partnership, company, trust or association of persons.
(13) "Pharmaceutical Advocate" or "Advocate" means the
position created pursuant to section five of this article.
(14) "Pharmacy benefit manager" means an entity that procures
prescription drugs at a negotiated rate under a contract and which
may serve as a third party prescription drug benefit administrator.
(15) "Pharmaceutical drug detailing" or "detailing" means the
function performed by a sales representative who is employed by a
pharmaceutical manufacturer for the purpose of; promotion of
pharmaceutical drugs or related products; education about
pharmaceutical drugs or related products; or to provide samples of
pharmaceutical drugs, related products or related materials, gifts,
food or meals.
(16) "Prescription drug purchasing agreement" means a written
agreement to pool all parties' prescription drug buying power in
order to negotiate the best possible prices and which delegates
authority to negotiate on behalf of the parties to the Advocate.
(17) "Prescription drugs" mean substances recognized as drugs
in the official "United States Pharmacopoeia, official Homeopathic
Pharmacopoeia of the United States or National Formulary," or any supplement thereto, dispensed pursuant to a prescription issued by
an authorized health care practitioner, for use in the diagnosis,
cure, mitigation, treatment or prevention of disease in a human, as
well as prescription drug delivery systems, testing kits and
related supplies.
(18) "Savings" means the difference between the previous price
of a prescription drug including any discounts, rebates or price
containments and the current price after the effective date of this
article for the Public Employees Insurance Agency, the Children's
Health Insurance Program, the Division of Corrections, the Division
of Juvenile Services, the Regional Jail and Correctional Facility
Authority, the Workers' Compensation Fund, state colleges and
universities, public hospitals, state or local institutions such as
nursing homes, veterans' homes, the Division of Rehabilitation,
public health departments and the Bureau of Medical Services or
other programs which are payors for prescription drugs.
(19) "Sole source" means a pharmaceutical that provides a
unique and powerful advantage available in the market to a broad
group of patients established under federal law.
(20) "West Virginia Pharmaceutical Advocate Advisory Council"
or "Council" means the Council created pursuant to section eleven
of this article.
§5A-3C-4. Creation of Office of Pharmaceutical Advocate;
cooperation among state agencies; Medicaid and CHIP
program.
(a) There is hereby created the Office of Pharmaceutical Advocate to continue the work of the West Virginia Pharmaceutical
Cost Management Council. The purpose of this Office is to obtain
favorable pharmaceutical prices for state agencies and other
qualified entities pursuant to this article. The Office is under
the direct supervision of the Pharmaceutical Advocate, who is
responsible for the exercise of the duties and powers assigned to
the Office under the provisions of this article.
(b) The Public Employees Insurance Agency, the Children's
Health Insurance Program, the Division of Corrections, the Division
of Juvenile Services, the Regional Jail and Correctional Facility
Authority, the Workers' Compensation Fund, state colleges and
universities, public hospitals, state or local institutions such as
nursing homes, veterans' homes, the Division of Rehabilitation,
public health departments and the Bureau of Medical Services or
other programs which are payors for prescription drugs shall
cooperate with the Office of the Pharmaceutical Advocate to meet
the requirements of this article. Intergovernmental agreements
shall be developed to establish the responsibilities of each entity
in dealing with the provision of pharmaceuticals.
(c) The Medicaid program and the West Virginia Children's
Health Insurance program may be exempt from participation in this
program until approval by the Center for Medicare and Medicaid
Services has been granted if it is determined to be required by the
Pharmaceutical Advocate created under section five of this article.
§5A-3C-5. West Virginia Pharmaceutical Advocate; appointment;
qualifications; oath; salary.
(a) The Office of the Pharmaceutical Advocate is under the
supervision of the Pharmaceutical Advocate. The Advocate is the
executive and administrative head of the office and shall be
appointed by the Governor with advice and consent of the Senate.
The Advocate shall be qualified by training and experience to
direct the operations of the Office of the Pharmaceutical Advocate,
and serves at the will and pleasure of the Governor. The duties of
the Advocate include, but are not limited to, the management and
administration of the Office of the Pharmaceutical Advocate.
(b) Notwithstanding any provision of this code to the
contrary, the Advocate is the sole source for management and
negotiation and purchase of all pharmaceuticals for all state
agencies and other qualified entities including, but not limited
to, the Public Employees Insurance Agency, the Children's Health
Insurance Program, the Division of Corrections, the Division of
Juvenile Services, the Regional Jail and Correctional Facility
Authority, the Workers' Compensation Fund, state colleges and
universities, public hospitals, state or local institutions such as
nursing homes, veterans' homes, the Division of Rehabilitation,
public health departments and the Bureau of Medical Services or
other programs which are payors for prescription drugs.
(c) The Advocate:
(1) Serves on a full-time basis and may not be engaged in any
other profession or occupation;
(2) May not hold political office in the government of the
state either by election or appointment while serving as the Advocate;
(3) Shall be a citizen of the United States and become a
resident of the state within ninety days of appointment;
(4) Is entitled to receive an annual salary as provided by the
Governor; and
(5) Is ineligible for civil service coverage as provided in
section four, article six, chapter twenty-nine of this code. Any
other employee hired by the Advocate is ineligible for civil
service coverage.
(d) Before entering upon the discharge of the duties as
Advocate, the Advocate shall take and subscribe to the oath of
office prescribed in section five, article IV of the Constitution
of West Virginia. The executed oath shall be filed in the office
of the Secretary of State.
(e) The Advocate shall report directly to the Governor or the
Governor's designee.
§5A-3C-6. West Virginia Pharmaceutical Advocate; powers and
duties, hiring of staff.
(a) The Advocate serves as the Chairman of the Pharmaceutical
Advocate Advisory Council established pursuant to section twelve of
this article.
(b) The Advocate has the power and authority to:
(1) Purchase or enter into contracts or agreements as
necessary to achieve the purposes of this article and pursuant to
the provisions of section seven of this article;
(2) File suit;
(3) Evaluate and renegotiate existing contracts for state
purchase of prescription drugs for cost savings;
(4) Negotiate and execute pharmacy benefit management
contracts using the federal supply schedule as a benchmark for the
purpose of managing rising costs for this state and all parties
which have executed prescription drug purchasing agreements;
(5) Provide discount prices or rebate programs as prudent for
persons without adequate prescription drug insurance;
(6) Work to achieve disclosure of the amount spent by
prescription drug manufacturers with regard to expenditures for
advertising, marketing, and promotion, as well as for provider
incentives and research and development efforts;
(7) Facilitate programs aimed at educating health care
practitioners authorized to prescribe prescription drugs about the
relative costs and benefits of various prescription drugs, with an
emphasis on generic or therapeutic substitution for brand name
drugs when available and appropriate; prescribing established,
less-costly drugs instead of newer and more expensive drugs, when
appropriate; and prescribing lower dosages of prescription drugs
when appropriate and implement when the pharmaceutical advocate
determines that it will have value to the citizens of the state;
(8) Facilitate the development of disease management programs
in collaboration with physicians, mid-level practitioners,
pharmacists and other health care providers aimed at enhancing the
effectiveness of treating certain diseases identified as prevalent
among this state's population with prescription drugs;
(9) Facilitate the establishment of voluntary private buying
clubs, cooperatives or purchasing alliances comprised of small
businesses or individuals for the purpose of purchasing
prescription drugs at optimal prices;
(10) Develop and implement a program to maximize savings to
the state and its citizens from Section 340B of the Federal Public
Health Service Act, 42 U. S. C. §256b, as applicable;
(11) Develop, if it is determined to be necessary, and
implement a program under which the State may become a licensed
pharmaceutical wholesaler for the purposes of making
pharmaceuticals obtained by a buying consortium available to local
pharmacies;
(12) Investigate the feasibility of purchasing prescription
drugs from sources in Canada, which may include the feasibility of
the state or an instrumentality thereof serving as a wholesale
distributor of prescription drugs in the state. Upon a
determination by the Advocate that the same is feasible and in the
best interests of the citizens of the State, the Advocate is
authorized to pursue waivers from the federal government,
including, but not limited to, from the United States Food and Drug
Administration, as necessary for the State to accomplish
prescription drug purchasing from sources in Canada;
(13) Develop and implement other programs, projects and
initiatives to achieve the purposes of this article, including
initiating, evaluating, and promoting other strategies that result
in reduced costs of prescription drugs for the citizens of West Virginia, including, but not limited to:
(A) A common preferred drug list for the Public Employees
Insurance Agency, the Children's Health Insurance Program, the
Division of Corrections, the Division of Juvenile Services, the
Regional Jail and Correctional Facility Authority, the Workers'
Compensation Fund, state colleges and universities, public
hospitals, state or local institutions such as nursing homes,
veterans' homes, the Division of Rehabilitation, public health
departments and the Bureau of Medical Services or other programs
which are payors for prescription drugs: Provided, That persons who
are presently prescribed and are using specific anti-psychotic
drugs used in the treatment of nervous or mental disorders shall
not be required to change or modify their prescription as a result
of the adoption of a common preferred drug list: Provided, however,
That prior to the Advocate adopting a preferred drug list involving
the Public Employees Insurance Agency, the Advocate shall obtain
from the West Virginia University School of Pharmacy, or other
appropriate entity or agency a confirmation that the efficacy and
clinical appropriateness of each prescription drug contained on the
preferred drug list is satisfactory to meet the prescription drug
therapy needs of the members of the Public Employees Insurance
Agency.
(B) A streamlined prior authorization process for state
insurers; and
(C) Patient assistance programs in their current forms, as
well as new programs, such as central fill pharmacy/bulk replenishment models.
(14) Undertake upon the effective date of this article and
every two years thereafter a survey of West Virginia based
pharmacies to determine their cost of dispensing a prescription.
Surveys shall be conducted with the advice and participation of the
West Virginia University School of Pharmacy and the University of
Charleston School of Pharmacy. The Advocate may request
cooperation of the West Virginia Pharmacists Association and the
West Virginia Community Pharmacy Council in carrying out the
requirements of this subsection. The Advocate shall utilize data
from the surveys in negotiating and executing those provisions of
pharmacy benefit management contracts and discount prescription
drug programs that set dispensing fees to be paid pharmacies.
(c) The Advocate shall consult with the Council and employ
such professional, clerical, technical and administrative personnel
as may be necessary to carry out the provisions of this article.
(d) The Advocate, with input and advice from the Council,
shall prepare and submit annual proposed appropriations for the
Office of the Pharmaceutical Advocate and the Council to the
Governor.
(e) Submit an annual report to the Governor and the
Legislature on the condition, operation and functioning of the
Office of the Pharmaceutical Advocate.
(f) Supervise the fiscal management and responsibilities of
the Office of the Pharmaceutical Advocate.
(g) Keep an accurate and complete record of all Office of the Pharmaceutical Advocate proceedings, record and file all bonds and
contracts and assume responsibility for the custody and
preservation of all papers and records of the Office;
(h) Present to the Legislative Oversight Commission on Health
and Human Resource Accountability, the impact of the Medicare
Modernization Act on the State and its citizens;
(i) Explore the value of implementing a discount card program
for the citizens of the State and implement, at the discretion of
the Pharmaceutical Advocate with the advise of the Council;
(j) Present twice annually, in July and December of each year,
to the Joint Committee on Government and Finance the work of the
Advocate and the benefit to the State beginning in July of 2005.
§5A-3C-7. Authorization to execute prescription drug purchasing
agreements.
(a) The Advocate may execute, subject to the provisions of
subsection (b) of this section and as permitted by applicable
federal law, prescription drug purchasing agreements with:
(1) All departments, agencies, authorities, institutions,
programs, quasi-public corporations and political subdivisions of
this state, including, but not limited to, the Public Employee's
Insurance Agency, the Children's Health Insurance Program, the
Division of Corrections, the Division of Juvenile Services, the
Regional Jail and Correctional Facility Authority, the Workers'
Compensation Fund, state colleges and universities, public
hospitals, state or local institutions such as nursing homes,
veterans' homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services: Provided, That any
contract or agreement executed with or on behalf of the Bureau of
Medical Services shall contain all necessary provisions to comply
with the provisions of Title XIX of the Social Security Act, 42 U.
S. C. §1396 et seq., dealing with pharmacy services offered to
recipients under the medical assistance plan of West Virginia;
(2) Governments of other states and jurisdictions and their
individual departments, agencies, authorities, institutions,
programs, quasi-public corporations and political subdivisions;
(3) Regional or multistate purchasing alliances or consortia,
formed for the purpose of pooling the combined purchasing power of
the individual members in order to increase bargaining power; and
(4) Arrangements with entities in the private sector,
including, commercial insurance carriers, self-funded benefit plans
and private and not-for-profit health care organizations toward
combined purchasing of health care services, health care management
services, pharmacy benefits management services or pharmaceutical
products: Provided, That no private entity may be compelled to
participate in the prescription drug purchasing pool.
(b) The Council created pursuant to section twelve of this
article is responsible for reviewing any proposed contract
authorized by this article before it is executed by the Advocate.
If the Council determines that the proposed contract meets the
requirements of this article and would assist in effectively
managing the costs for the programs involved and would not result
in jeopardizing state funds or funds due the state, it shall recommend to the Advocate to execute the contract.
(c) The Council may not recommend and the Advocate may not
execute any agreement that does not effectively and efficiently
manage rising drug costs on behalf of the parties to the agreement.
(d) The Council may not recommend and the Advocate may not
execute any agreement that grants the state's credit for the
purchase of prescription drugs by any entity other than this state.
§5A-3C-8. Audit required; reports.
(a) The Advocate shall cause to be conducted an audit of any
funds expended pursuant to any prescription drug purchasing
agreement or pharmacy benefit management contract executed under
the provisions of this article for each fiscal year that the
prescription drug purchasing agreement or pharmacy benefit
management contract is in effect. The Advocate shall submit the
audit to the Joint Committee on Government and Finance upon
completion, but in no event later than the thirty-first day of
December after the end of the fiscal year subject to the audit.
(b) The Advocate shall provide written notice to the Joint
Committee on Government and Finance before executing a prescription
drug purchasing agreement or a pharmacy benefit management contract
or amending an existing prescription drug contract.
§5A-3C-9. Authorization to execute pharmacy benefit management
contract.
The Advocate may negotiate and execute pharmacy benefit
management contracts pursuant to review by the advisory council for
the purpose of managing rising drug costs for this state and all parties which have executed prescription drug purchasing agreements
with the state or any state agency, including, but not limited to,
the Public Employees Insurance Agency, the Children's Health
Insurance Program, the Division of Corrections, the Division of
Juvenile Services, the Regional Jail and Correctional Facility
Authority, the Workers' Compensation Fund, state colleges and
universities, public hospitals, state or local institutions such as
nursing homes, veterans' homes, the Division of Rehabilitation,
public health departments and the Bureau of Medical Services or
other programs which are payors for prescription drugs.
§5A-3C-10. Authorization to amend existing contracts.
The Advocate may renegotiate and amend existing prescription
drug contracts to which the state or any state agency, including,
but not limited to, the Public Employees Insurance Agency, the
Children's Health Insurance Program, the Division of Corrections,
the Division of Juvenile Services, the Regional Jail and
Correctional Facility Authority, the Workers' Compensation Fund,
state colleges and universities, public hospitals, state or local
institutions such as nursing homes, veterans' homes, the Division
of Rehabilitation, public health departments and the Bureau of
Medical Services, or other programs which are payors for
prescription drugs is a party for the purpose of managing rising
drug costs.
§5A-3C-11. Exemption from Purchasing Division requirements.
The provisions of article three, chapter five-a of this code
do not apply to the agreements and contracts executed under the provisions of this article, except that the contracts and
agreements shall be approved as to form and conformity with
applicable law by the Attorney General.
§5A-3C-12. Creation of the West Virginia Pharmaceutical Advocate
Advisory Council.
(a) The West Virginia Pharmaceutical Advocate Advisory Council
is hereby created. The Council is an independent, self-sustaining
council that has the powers and duties specified in this article.
(b) The Council is a part-time council whose members perform
such duties as specified in this article. The ministerial duties
of the Council shall be administered and carried out by the Office
of the Pharmaceutical Advocate.
(c) Each member of the Council shall devote the time necessary
to carry out the duties and obligations of the office. Those
members appointed by the Governor may pursue and engage in another
business or occupation or gainful employment that is not in
conflict with the duties of the Council.
(d) The Council is self-sustaining and independent, however,
it, its members, the Advocate and employees of the Office of the
Pharmaceutical Council are subject to article nine-a of chapter
six, chapter six-b, chapter twenty-nine-a and chapter twenty-nine-b
of this code.
§5A-3C-13. Appointment of members of the West Virginia
Pharmaceutical Advocate Advisory Council; chairman;
qualifications and eligibility; reimbursement for
expenses.
(a) The Council is comprised of the Pharmaceutical Advocate,
the Secretary of the Department of Administration or his or her
designee, the Director of the Public Employees Insurance Agency or
his or her designee, the Commissioner of the Bureau of Medical
Services of the Department of Health and Human Resources or his or
her designee, the Secretary of the Department of Health and Human
Resources or his or her designee, the Commissioner of the Bureau of
Senior Services or his or her designee, the Secretary of the
Department of Military Affairs and Public Safety or his or her
designee, the Secretary of the Department of Education and the Arts
or his or her designee, and five members from the public who shall
be appointed by the Governor with the advice and consent of the
Senate. One public member shall be a licensed pharmacist employed
by a community retail pharmacy, one public member shall be a
representative of a pharmaceutical manufacturer with substantial
operations located in West Virginia that has at least seven hundred
fifty employees, one public member shall be a primary care
physician, one public member shall represent those who will receive
benefit from the establishment of the Office of the Pharmaceutical
Advocate and one public member shall have experience in the
financing, development or management of a health insurance company
which provides pharmaceutical coverage. Each public member shall
serve for a term of four years. Of the public members of the
Council first appointed, one shall be appointed for a term ending
the thirtieth day of June, two thousand six, and two each for terms
of three and four years. Each public member serves until his or her successor is appointed and has qualified. A member of the
Council may be removed by the Governor for cause.
(b) The Pharmaceutical Advocate serves as Chairperson of the
Council.
(c) Council members may not be compensated in their capacity
as members but shall be reimbursed for reasonable expenses incurred
in the performance of their duties.
§5A-3C-14. Meeting requirements.
(a) The Council shall meet within the state at least once per
calendar quarter or at such times as the Chairman may decide. The
Council shall also meet upon a call of five or more members upon
seventy-two hours written notice to each member.
(b) Seven members of the Council are a quorum for the
transaction of any business and for the performance of any duty.
(c) A majority vote of the members present is required for any
final determination by the Council. Voting by proxy is not
allowed.
(d) The Council shall keep a complete and accurate record of
all its meetings according to section five, article nine-a, chapter
six of this code.
§5A-3C-15. Removal of Council members.
Notwithstanding the provisions of section four, article six,
chapter six of this code, the Governor may remove any Council
member for incompetence, misconduct, gross immorality, misfeasance,
malfeasance or nonfeasance in office.
§5A-3C-16. General duties of the West Virginia Pharmaceutical Advocate Advisory Council.
The Council has general responsibility to review and provide
advice and comment to the Office of the Pharmaceutical Advocate on
its policies and procedures relating to the purchase of
prescription drugs. The Council shall offer advice to the Office
of the Pharmaceutical Advocate on matters over which the office has
authority and oversight. This includes, but is not limited to:
(1) Hiring of professional, clerical, technical and
administrative personnel as may be necessary to carry out the
provisions of this article;
(2) Promulgation of rules, including emergency rules, that are
necessary to carry out the provisions of this article;
(3) Contracts or agreements; and
(4) Development of policy necessary to meet the duties and
responsibilities of the Office or the Advocate pursuant to the
provisions of this article.
§5A-3C-17. Multistate discussion group; agreements.
The Advocate, for the purposes of administering, reviewing or
amending the duties and responsibilities granted him or her by this
article, shall continue to investigate the feasibility of
mulitstate discussions and may enter into multistate discussions
and agreements when to do so would enure to the financial benefit
of all West Virginians who are consumers of pharmaceuticals.
§5A-3C-18. Authorization to take advantage of Acts of Congress,
accept gifts, grants and matching funds.
The Office of the Pharmaceutical Advocate is authorized to take full advantage of the benefits and provisions of any Acts of
Congress and to accept any and all gifts, grants and matching funds
whether in the form of money or services.
§5A-3C-19. Agency's management ability continued.
Nothing contained in this article limits the ability of the
various state agencies to enter into contracts or arrangements or
to otherwise manage their pharmacy programs until such time as the
programs created or authorized pursuant to this article are
implemented.
§5A-3C-20. Restraint of trade; civil and criminal violations
defined.
(a) The following are considered to restrain trade or commerce
unreasonably and are unlawful:
(1) A contract, combination or conspiracy between two or more
persons:
(A) For the purpose or with the intent to fix, control or
maintain the market price, rate or fee of pharmaceuticals; or
(B) Allocate or divide customers or markets, functional or
geographic, for any pharmaceutical; or
(2) The establishment, maintenance or use of a monopoly or an
attempt to establish a monopoly of trade or commerce, any part of
which is within this state, by any person for the purpose of or
with the intent to exclude competition or control, fix or maintain
pharmaceutical prices.
(b) Any person violating the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not less than one nor more
than ten years, or fined in an amount consistent with the Clayton
Act 15 U. S. C. §15 et seq., which may include treble damages, or
both fined and confined.
(c) Any person violating the provisions of this section is
liable for a civil penalty and fine in an amount consistent with
the Clayton Act 15 U. S. C. §15 et seq., which may include treble
damages, for each violation.
(d) The county prosecuting attorney shall investigate
suspected violations of, and institute criminal proceedings
pursuant to, the provisions of this section.
(e) The Attorney General or special counsel appointed by the
Governor, in his or her discretion, shall represent the state in
all civil proceedings brought on behalf of the state to enforce the
provisions of this section. After payment of all attorney fees and
costs, no less than fifty percent of all judgments or settlements
shall be placed in the General Revenue Fund of the state.
§5A-3C-21. Advertising costs; reporting of same.
(a) Advertising costs for prescription drugs, based on
aggregate national data, shall be reported to the Pharmaceutical
Advocate by all manufacturers and labelers of prescription drugs
dispensed in this state that employ, direct or utilize marketing
representatives. The reporting shall assist this state in its role
as a purchaser of prescription drugs and an administrator of
prescription drug programs, enabling this state to determine the
scope of prescription drug advertising costs and their effect on the cost of prescription drugs, utilization and delivery of health
care services and furthering the role of this state as guardian of
the public interest.
(b) The Advocate shall establish, by legislative rule pursuant
to the provisions of article three, chapter twenty-nine-a of this
code, the reporting requirements of information by labelers and
manufacturers which shall include all national aggregate expenses
associated with advertising and direct promotion of prescription
drugs through radio, television, magazines, newspapers, direct mail
and telephone communications as they pertain to residents of this
state.
(c) The following are exempt from disclosure requirements:
(1) All free samples of prescription drugs intended to be
distributed to patients;
(2) All payments of reasonable compensation and reimbursement
of expenses in connection with a bona fide clinical trial. As used
in this subdivision, "clinical trial" means an approved clinical
trial conducted in connection with a research study designed to
answer specific questions about vaccines, new therapies or new ways
of using known treatments; and
(3) All scholarship or other support for medical students,
residents and fellows to attend significant educational, scientific
or policy-making conferences of national, regional or specialty
medical or other professional associations if the recipient of the
scholarship or other support is selected by the association.
(d) The Advocate is authorized to establish time lines, the documentation, form and manner of reporting required as he or she
determines necessary to effectuate the purposes of this article.
The Advocate shall include in the annual report required pursuant
to subsection (e), section six of this article, in an aggregate
form, the information provided in the required reporting.
(e) Notwithstanding any provision of law to the contrary,
information submitted to the Advocate pursuant to this section is
confidential and is not a public record and is not available for
release pursuant to the West Virginia Freedom of Information Act.
Data compiled in aggregate form by the Advocate for the purposes of
reporting required by this section is a public record as defined in
the West Virginia Freedom of Information Act, as long as it does
not reveal trade information that is protected by state or federal
law.
§5A-3C-22. State role; authority for participation by all state
agencies.
(a) For purpose of implementing this article, the state is
represented by the Pharmaceutical Advocate and he or she has
authority to negotiate pharmaceutical prices to be paid by program
participants. These negotiated prices shall be available to all
programs.
(b) The Public Employees Insurance Agency, the Children's
Health Insurance Program, the Division of Corrections, the Division
of Juvenile Services, the Regional Jail and Correctional Facility
Authority, the Workers' Compensation Fund, state colleges and
universities, public hospitals, state or local institutions such as nursing homes, veterans' homes, the Division of Rehabilitation,
public health departments and the Bureau of Medical Services or
other programs which are payors for prescription drugs shall have
the authority to participate in any program developed by the Office
of the Pharmaceutical Advocate, including but not limited to, a
uniform preferred drug list.
§5A-3C-23. Participation by private individuals, commercial
insurance carriers, self-insured companies and
others in negotiated drug pricing program.
(a) The Advocate, for the purposes of administering, reviewing
or amending the duties and responsibilities granted him or her by
this article, shall investigate the feasibility of including
private individuals, commercial insurance carriers, self-insured
companies and private and not-for-profit hospitals in a negotiated
drug pricing program.
(b) The Advocate has the power to establish programs and
procedure necessary to allow private individuals, commercial
insurance carriers, self-insured companies and private and
not-for-profit health care providers to participate in the
negotiated drug pricing program. This power includes, but is not
limited to, the power to:
(1) Negotiate and execute contracts or cooperative agreements
necessary to permit private individuals, commercial insurance
carriers, self-insured companies and private and not-for-profit
health care providers to participate in the negotiated drug pricing
program; and
(2) Promulgate legislative rules, pursuant to the provisions
of article three, chapter twenty-nine-a of this code, necessary to
facilitate the participation of private individuals, commercial
insurance carriers, self-insured companies and private and
not-for-profit health care providers in the negotiated drug pricing
program.
§5A-3C-24. Rulemaking.
To implement any section of this article the Office of the
Pharmaceutical Advocate, in consultation with the Council, shall
propose rules for legislative approval in accordance with article
three, chapter twenty-nine-a of this code. This authority shall
include emergency rule-making authority pursuant to the provisions
of section fifteen, article three, chapter twenty-nine-a of this
code. These rules may include, but are not limited to:
(1) Development of criteria to establish a purchasing
consortium, including, but not limited to, membership eligibility,
which shall include state entities that are payors for prescription
drugs and may include private individuals and commercial insurance
carriers; self-funded benefit plans and private and not-for-profit
health care providers; consortium operation and functionality and
the manner and procedure for the consortium to either bid or
negotiate pricing with pharmaceutical manufacturers using the
federal supply schedule as a benchmark for obtaining lower priced
pharmaceuticals;
(2) Development of a uniform preferred drug list for use by
state entities who are payors for prescription drugs. These entities include, but are not limited to, the Public Employees
Insurance Agency, the Children's Health Insurance Program, the
Division of Corrections, the Division of Juvenile Services, the
Regional Jail and Correctional Facility Authority, the Workers'
Compensation Fund, state colleges and universities, public
hospitals, state or local institutions such as nursing homes,
veterans' homes, the Division of Rehabilitation, public health
departments and the Bureau of Medical Services, or other programs
which are payors for prescription drugs;
(3) The reporting requirements of information by labelers and
manufacturers required pursuant to section twenty-one of this
article which shall include all national aggregate expenses
associated with advertising and direct promotion of prescription
drugs through radio, television, magazines, newspapers, direct mail
and telephone communications as they pertain to residents of this
state;
(4) Development of a virtual wholesale program to allow the
state to act as a pharmaceutical drug wholesaler and ensure that
prices obtained by a buying consortium operated by the
Pharmaceutical Advocate would be made available for purchase by
local pharmacies if the Pharmaceutical Advocate finds it necessary;
(5) Procedural requirements of execution of pharmacy benefit
management contracts pursuant to section nine of this article and
prescription drug purchasing agreements pursuant to section seven
of this article; and
(6) Other legislative and procedural rules considered necessary by the Pharmaceutical Advocate to carry out the duties
and responsibilities prescribed to the Advocate or the Office of
the Pharmaceutical Advocate in this article.
§5A-3C-25. Potential use of savings.
Savings identified by all program participants shall be
quantified and certified to the Pharmaceutical Advocate and
included in the annual report of the Pharmaceutical Advocate to the
Governor and the Legislature provided in subsection (e) of section
six of this article. Savings, or any part of the savings, created
by the implementation of this program may, in the sole discretion
of the Legislature, be directed towards the maintenance of existing
state health programs and the expansion of insurance programs for
the uninsured and underinsured.
§5A-3C-26. Sunset provision.
The Office of the Pharmaceutical Advocate, the Pharmaceutical
Advocate and the Pharmaceutical Advocate Advisory Council shall
continue to exist, pursuant to the provisions of article ten,
chapter four of this code, until the first day of July, two
thousand eight, unless sooner terminated, continued or
reestablished pursuant to the provisions of that article.
§5A-3C-27. Severability.
If any provision of this article is held to be
unconstitutional or void, the remaining provisions of this article
remain valid, unless the court finds the valid provisions are so
essentially and inseparable connected with, and so dependent upon,
the unconstitutional or void provisions that the court cannot presume the Legislature would have enacted the remaining valid
provisions without the unconstitutional or void provision, or
unless the court finds the remaining valid provisions, standing
alone, are incomplete and are incapable of being executed in
accordance with the Legislative intent.
CHAPTER 5F. ORGANIZATION OF THE EXECUTIVE BRANCH OF STATE
GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the
contrary, the secretary of each department shall have plenary power
and authority within and for the department to:
(1) Employ and discharge within the office of the secretary
employees as necessary to carry out the functions of the secretary,
which employees shall serve at the will and pleasure of the
secretary;
(2) Cause the various agencies and boards to be operated
effectively, efficiently and economically, and develop goals,
objectives, policies and plans that are necessary or desirable for
the effective, efficient and economical operation of the
department;
(3) Eliminate or consolidate positions, other than positions
of administrators or positions of board members, and name a person
to fill more than one position;
(4) Delegate, assign, transfer or combine responsibilities or
duties to or among employees, other than administrators or board members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the
Governor, and transfer within the department funds appropriated to
the various agencies of the department which are not expended due
to cost savings resulting from the implementation of the provisions
of this chapter: Provided, That no more than twenty-five percent
of the funds appropriated to any one agency or board may be
transferred to other agencies or boards within the department:
Provided, however, That no funds may be transferred from a special
revenue account, dedicated account, capital expenditure account or
any other account or fund specifically exempted by the Legislature
from transfer, except that the use of appropriations from the State
Road Fund transferred to the Office of the Secretary of the
Department of Transportation is not a use other than the purpose
for which such funds were dedicated and is permitted: Provided
further, That if the Legislature by subsequent enactment
consolidates agencies, boards or functions, the secretary may
transfer the funds formerly appropriated to that agency, board or
function in order to implement consolidation. The authority to
transfer funds under this section shall expire on the thirtieth day
of June, two thousand five;
(7) Enter into contracts or agreements requiring the
expenditure of public funds, and authorize the expenditure or
obligating of public funds as authorized by law: Provided, That
the powers granted to the secretary to enter into contracts or agreements and to make expenditures or obligations of public funds
under this provision shall not exceed or be interpreted as
authority to exceed the powers heretofore granted by the
Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department
under this chapter;
(8) Acquire by lease or purchase property of whatever kind or
character and convey or dispose of any property of whatever kind or
character as authorized by law: Provided, That the powers granted
to the secretary to lease, purchase, convey or dispose of such
property shall not exceed or be interpreted as authority to exceed
the powers heretofore granted by the Legislature to the various
commissioners, directors or board members of the various
departments, agencies or boards that comprise and are incorporated
into each secretary's department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one,
chapter twenty-nine-a of this code, to implement and make effective
the powers, authority and duties granted and imposed by the
provisions of this chapter, promulgation to be in accordance with
the provisions of chapter twenty-nine-a of this code;
(12) Grant or withhold written consent to the proposal of any
rule, as defined in section two, article one, chapter twenty-nine-a
of this code, by any administrator, agency or board within the department, without which written consent no proposal of a rule
shall have any force or effect;
(13) Delegate to administrators duties of the secretary as he
or she considers appropriate from time to time to facilitate
execution of the powers, authority and duties delegated to the
secretary; and
(14) Take any other action involving or relating to internal
management not otherwise prohibited by law.
(b) The secretaries of the departments created in this chapter
shall engage in a comprehensive review of the practices, policies
and operations of the agencies and boards within their departments
to determine the feasibility of cost reductions and increased
efficiency which may be achieved therein, including, but not
limited to, the following:
(1) The elimination, reduction and restrictions in the use of
the state's vehicles or other transportation fleet;
(2) The elimination, reduction and restrictions in the
preparation of state government publications, including annual
reports, informational materials and promotional materials;
(3) The termination or rectification of terms contained in
lease agreements between the state and private sector for offices,
equipment and services;
(4) The adoption of appropriate systems for accounting,
including consideration of an accrual basis financial accounting
and reporting system;
(5) The adoption of revised procurement practices to facilitate cost-effective purchasing procedures, including
consideration of means by which domestic businesses may be assisted
to compete for state government purchases; and
(6) The computerization of the functions of the state agencies
and boards.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, none of the powers granted to the secretaries in
this section shall be exercised by the secretary if to do so would
violate or be inconsistent with the provisions of any federal law
or regulation, any federal-state program or federally delegated
program or jeopardize the approval, existence or funding of any
such program and the powers granted to the secretary shall be so
construed.
(d) The layoff and recall rights of employees within the
classified service of the state as provided in subsections five and
six, section ten, article six, chapter twenty-nine of this code
shall be limited to the organizational unit within the agency or
board and within the occupational group established by the
classification and compensation plan for the classified service of
the agency or board in which the employee was employed prior to the
agency or board's transfer or incorporation into the department:
Provided, That the employee shall possess the qualifications
established for the job class. The duration of recall rights
provided in this subsection shall be limited to two years or the
length of tenure, whichever is less. Except as provided in this
subsection, nothing contained in this section shall be construed to abridge the rights of employees within the classified service of
the state as provided in sections ten and ten-a, article six,
chapter twenty-nine of this code, or the right of classified
employees of the Board of Regents to the procedures and protections
set forth in article twenty-six-b, chapter eighteen of this code.
(e) Notwithstanding any provision of this code to the contrary
the secretary of each department with authority over programs which
are payors for prescription drugs, including but not limited to,
the Public Employees Insurance Agency, the Children's Health
Insurance Program, the Division of Corrections, the Division of
Juvenile Services, the Regional Jail and Correctional Facility
Authority, the Workers' Compensation Fund, state colleges and
universities, public hospitals, state or local institutions such as
nursing homes, veteran's homes, the Division of Rehabilitation,
public health departments and the Bureau of Medical Services or
other programs which are payors for prescription drugs, shall
cooperate with the Office of the Pharmaceutical Advocate
established pursuant to section four, article three-c, chapter
five-a of this code for the purpose of purchasing prescription
drugs for any program over which they have authority.
CHAPTER 29. MISCELLANEOUS BOARDS AND COMMISSIONS.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-18a. State Excess Lottery Revenue Fund.
(a) There is continued a special revenue fund within the State
Lottery Fund in the State Treasury which is designated and known as
the "State Excess Lottery Revenue Fund". The Fund consists of all appropriations to the Fund and all interest earned from investment
of the Fund and any gifts, grants or contributions received by the
Fund. All revenues received under the provisions of sections ten-b
and ten-c, article twenty-two-a of this chapter and under article
twenty-two-b of this chapter, except the amounts due the Commission
under section 29-22B-1408(a)(1) of this chapter, shall be deposited
in the State Treasury and placed into the "State Excess Lottery
Revenue Fund". The revenue shall be disbursed in the manner
provided in this section for the purposes stated in this section
and shall not be treated by the Auditor and the State Treasurer as
part of the general revenue of the state.
(b) For the fiscal year beginning the first day of July, two
thousand two, the Commission shall deposit: (1) Sixty-five million
dollars into the subaccount of the State Excess Lottery Revenue
Fund hereby created in the State Treasury to be known as the
"General Purpose Account" to be expended pursuant to appropriation
of the Legislature; (2) ten million dollars into the Education
Improvement Fund for appropriation by the Legislature to the
"Promise Scholarship Fund" created in section seven, article seven,
chapter eighteen-c of this code; (3) nineteen million dollars into
the Economic Development Project Fund created in subsection (d) of
this section for the issuance of revenue bonds and to be spent in
accordance with the provisions of said subsection; (4) twenty
million dollars into the School Building Debt Service Fund created
in section six, article nine-d, chapter eighteen of this code for
the issuance of revenue bonds; (5) forty million dollars into the West Virginia Infrastructure Fund created in section nine, article
fifteen-a, chapter thirty-one of this code, to be spent in
accordance with the provisions of said article; (6) ten million
dollars into the Higher Education Improvement Fund for higher
education; and (7) five million dollars into the State Park
Improvement Fund for park improvements. For the fiscal year
beginning the first day of July, two thousand three, the Commission
shall deposit: (1) Sixty-five million dollars into the General
Purpose Account to be expended pursuant to appropriation of the
Legislature; (2) seventeen million dollars into the Education
Improvement Fund for appropriation by the Legislature to the
"Promise Scholarship Fund" created in section seven, article seven,
chapter eighteen-c of this code; (3) nineteen million dollars into
the Economic Development Project Fund created in subsection (d) of
this section for the issuance of revenue bonds and to be spent in
accordance with the provisions of said subsection; (4) twenty
million dollars into the School Building Debt Service Fund created
in section six, article nine-d, chapter eighteen of this code for
the issuance of revenue bonds; (5) forty million dollars into the
West Virginia Infrastructure Fund created in section nine, article
fifteen-a, chapter thirty-one of this code, to be spent in
accordance with the provisions of said article; (6) ten million
dollars into the Higher Education Improvement Fund for higher
education; and (7) five million dollars into the State Park
Improvement Fund for park improvements.
(c) For the fiscal year beginning the first day of July, two thousand four, and subsequent fiscal years, the Commission shall
deposit: (1) Sixty-five million dollars into the General Purpose
Account to be expended pursuant to appropriation of the
Legislature; (2) twenty-seven million dollars into the Education
Improvement Fund for appropriation by the Legislature to the
"Promise Scholarship Fund" created in section seven, article seven,
chapter eighteen-c of this code; (3) nineteen million dollars into
the Economic Development Project Fund created in subsection (d) of
this section for the issuance of revenue bonds and to be spent in
accordance with the provisions of said subsection; (4) nineteen
million dollars into the School Building Debt Service Fund created
in section six, article nine-d, chapter eighteen of this code for
the issuance of revenue bonds; (5) forty million dollars into the
West Virginia Infrastructure Fund created in section nine, article
fifteen-a, chapter thirty-one of this code to be spent in
accordance with the provisions of said article; (6) ten million
dollars into the Higher Education Improvement Fund for higher
education; and (7) five million dollars into the State Park
Improvement Fund for park improvements. No portion of the
distributions made as provided in this subsection and subsection
(b) of this section, except distributions made in connection with
bonds issued under subsection (d) of this section, may be used to
pay debt service on bonded indebtedness until after the Legislature
expressly authorizes issuance of the bonds and payment of debt
service on the bonds through statutory enactment or the adoption of
a concurrent resolution by both houses of the Legislature. Until subsequent legislative enactment or adoption of a resolution that
expressly authorizes issuance of the bonds and payment of debt
service on the bonds with funds distributed under this subsection
and subsection (b) of this section, except distributions made in
connection with bonds issued under subsection (d) of this section,
the distributions may be used only to fund capital improvements
that are not financed by bonds and only pursuant to appropriation
of the Legislature.
(d) The Legislature finds and declares that in order to
attract new business, commerce and industry to this state, to
retain existing business and industry providing the citizens of
this state with economic security and to advance the business
prosperity of this state and the economic welfare of the citizens
of this state, it is necessary to provide public financial support
for constructing, equipping, improving and maintaining economic
development projects, capital improvement projects and
infrastructure which promote economic development in this state.
(1) The West Virginia Economic Development Authority created
and provided for in article fifteen, chapter thirty-one of this
code shall, by resolution, in accordance with the provisions of
this article and article fifteen, chapter thirty-one of this code,
and upon direction of the Governor, issue revenue bonds of the
Economic Development Authority in no more than two series to pay
for all or a portion of the cost of constructing, equipping,
improving or maintaining projects under this section or to refund
the bonds at the discretion of the Authority. Any revenue bonds issued on or after the first day of July, two thousand two, which
are secured by state excess lottery revenue proceeds shall mature
at a time or times not exceeding thirty years from their respective
dates. The principal of, and the interest and redemption premium,
if any, on the bonds shall be payable solely from the special fund
provided in this section for the payment.
(2) There is continued in the State Treasury a special revenue
fund named the "Economic Development Project Fund" into which shall
be deposited on and after the first day of July, two thousand two,
the amounts to be deposited in said Fund as specified in
subsections (b) and (c) of this section. The Economic Development
Project Fund shall consist of all such moneys, all appropriations
to the Fund, all interest earned from investment of the Fund and
any gifts, grants or contributions received by the Fund. All
amounts deposited in the Fund shall be pledged to the repayment of
the principal, interest and redemption premium, if any, on any
revenue bonds or refunding revenue bonds authorized by this
section, including any and all commercially customary and
reasonable costs and expenses which may be incurred in connection
with the issuance, refunding, redemption or defeasance thereof. The
West Virginia Economic Development Authority may further provide in
the resolution and in the trust agreement for priorities on the
revenues paid into the Economic Development Project Fund as may be
necessary for the protection of the prior rights of the holders of
bonds issued at different times under the provisions of this
section. The bonds issued pursuant to this subsection shall be separate from all other bonds which may be or have been issued from
time to time under the provisions of this article.
(3) After the West Virginia Economic Development Authority has
issued bonds authorized by this section and after the requirements
of all funds have been satisfied, including any coverage and
reserve funds established in connection with the bonds issued
pursuant to this subsection, any balance remaining in the Economic
Development Project Fund may be used for the redemption of any of
the outstanding bonds issued under this subsection which, by their
terms, are then redeemable or for the purchase of the outstanding
bonds at the market price, but not to exceed the price, if any, at
which redeemable, and all bonds redeemed or purchased shall be
immediately canceled and shall not again be issued.
(4) Bonds issued under this subsection shall state on their
face that the bonds do not constitute a debt of the State of West
Virginia; that payment of the bonds, interest and charges thereon
cannot become an obligation of the State of West Virginia; and that
the bondholders' remedies are limited in all respects to the
"special revenue fund" established in this subsection for the
liquidation of the bonds.
(5) The West Virginia Economic Development Authority shall
expend the bond proceeds from the revenue bond issues authorized
and directed by this section for such projects as may be certified
under the provision of this subsection: Provided, That the bond
proceeds shall be expended in accordance with the requirements and
provisions of article five-a, chapter twenty-one of this code and either article twenty-two or twenty-two-a, chapter five of this
code, as the case may be: Provided, however, That if such bond
proceeds are expended pursuant to article twenty-two-a, chapter
five of this code and if the design-build board created under said
article determines that the execution of a design-build contract in
connection with a project is appropriate pursuant to the criteria
set forth in said article and that a competitive bidding process
was used in selecting the design builder and awarding such
contract, such determination shall be conclusive for all purposes
and shall be deemed to satisfy all the requirements of said
article.
(6) For the purpose of certifying the projects that will
receive funds from the bond proceeds, a committee is hereby
established and comprised of the Governor, or his or her designee,
the Secretary of the Department of tax and Revenue, the Executive
Director of the West Virginia Development Office and six persons
appointed by the Governor: Provided, That at least one citizen
member must be from each of the state's three congressional
districts. The committee shall meet as often as necessary and make
certifications from bond proceeds in accordance with this
subsection. The committee shall meet within thirty days of the
effective date of this section.
(7) Applications for grants submitted on or before the first
day of July, two thousand two, shall be considered refiled with the
committee. Within ten days from the effective date of this section
as amended in the year two thousand three, the lead applicant shall file with the committee any amendments to the original application
that may be necessary to properly reflect changes in facts and
circumstances since the application was originally filed with the
committee.
(8) When determining whether or not to certify a project, the
committee shall take into consideration the following:
(A) The ability of the project to leverage other sources of
funding;
(B) Whether funding for the amount requested in the grant
application is or reasonably should be available from commercial
sources;
(C) The ability of the project to create or retain jobs,
considering the number of jobs, the type of jobs, whether benefits
are or will be paid, the type of benefits involved and the
compensation reasonably anticipated to be paid persons filling new
jobs or the compensation currently paid to persons whose jobs would
be retained;
(D) Whether the project will promote economic development in
the region and the type of economic development that will be
promoted;
(E) The type of capital investments to be made with bond
proceeds and the useful life of the capital investments; and
(F) Whether the project is in the best interest of the public.
(9) No grant may be awarded to an individual or other private
person or entity. Grants may be awarded only to an agency,
instrumentality or political subdivision of this state or to an agency or instrumentality of a political subdivision of this state.
The project of an individual or private person or entity may be
certified to receive a low-interest loan paid from bond proceeds.
The terms and conditions of the loan, including, but not limited
to, the rate of interest to be paid and the period of the
repayment, shall be determined by the Economic Development
Authority after considering all applicable facts and circumstances.
(10) Prior to making each certification, the committee shall
conduct at least one public hearing, which may be held outside of
Kanawha County. Notice of the time, place, date and purpose of the
hearing shall be published in at least one newspaper in each of the
three congressional districts at least fourteen days prior to the
date of the public hearing.
(11) The committee may not certify a project unless the
committee finds that the project is in the public interest and the
grant will be used for a public purpose. For purposes of this
subsection, projects in the public interest and for a public
purpose include, but are not limited to:
(A) Sports arenas, fields parks, stadiums and other sports and
sports-related facilities;
(B) Health clinics and other health facilities;
(C) Traditional infrastructure, such as water and wastewater
treatment facilities, pumping facilities and transmission lines;
(D) State-of-the-art telecommunications infrastructure;
(E) Biotechnical incubators, development centers and
facilities;
(F) Industrial parks, including construction of roads, sewer,
water, lighting and other facilities;
(G) Improvements at state parks, such as construction,
expansion or extensive renovation of lodges, cabins, conference
facilities and restaurants;
(H) Railroad bridges, switches and track extension or spurs on
public or private land necessary to retain existing businesses or
attract new businesses;
(I) Recreational facilities, such as amphitheaters, walking
and hiking trails, bike trails, picnic facilities, restrooms, boat
docking and fishing piers, basketball and tennis courts, and
baseball, football and soccer fields;
(J) State-owned buildings that are registered on the national
register of historic places;
(K) Retail facilities, including related service, parking and
transportation facilities, appropriate lighting, landscaping and
security systems to revitalize decaying downtown areas; and
(L) Other facilities that promote or enhance economic
development, educational opportunities or tourism opportunities
thereby promoting the general welfare of this state and its
residents.
(12) Prior to the issuance of bonds under this subsection, the
committee shall certify to the Economic Development Authority a
list of those certified projects that will receive funds from the
proceeds of the bonds. Once certified, the list may not thereafter
be altered or amended other than by legislative enactment.
(13) If any proceeds from sale of bonds remain after paying
costs and making grants and loans as provided in this subsection,
the surplus may be deposited in an account created in the State
Treasury to be known as the "Economic Development Project Bridge
Loan Fund" to be administered by the Economic Development Authority
created in article fifteen, chapter thirty-one of this code.
Expenditures from the Fund are not authorized from collections but
are to be made only in accordance with appropriation by the
Legislature and in accordance with the provisions of article three,
chapter twelve of this code and upon fulfillment of the provisions
of article two, chapter five-a of this code. Loan repayment
amounts, including the portion attributable to interest shall be
paid into the Fund created in this subdivision.
(e) If the Commission receives revenues in an amount that is
not sufficient to fully comply with the requirements of subsections
(b), (c) and (h) of this section, the Commission shall first make
the distribution to the Economic Development Project Fund; second,
make the distribution or distributions to the other funds from
which debt service is to be paid; third, make the distribution to
the Education Improvement Fund for appropriation by the Legislature
to the Promise Scholarship Fund; and fourth, make the distribution
to the General Purpose Account: Provided, That, subject to the
provisions of this subsection, to the extent such revenues are not
pledged in support of revenue bonds which are or may be issued from
time to time under this section, the revenues shall be distributed
on a pro rata basis.
(f) For the fiscal year beginning on the first day of July,
two thousand two, and each fiscal year thereafter, the Commission
shall, after meeting the requirements of subsections (b), (c) and
(h) of this section and after transferring to the State Lottery
Fund created under section eighteen of this article an amount equal
to any transfer from the State Lottery Fund to the Excess Lottery
Fund pursuant to subsection (f), section eighteen of this article,
deposit fifty percent of the amount by which annual gross revenue
deposited in the State Excess Lottery Revenue Fund exceeds two
hundred twenty-five million dollars in a fiscal year in a separate
account in the State Lottery Fund to be available for appropriation
by the Legislature.
(g) When bonds are issued for projects under subsection (d) of
this section or for the School Building Authority, infrastructure,
higher education or park improvement purposes described in this
section that are secured by profits from lotteries deposited in the
State Excess Lottery Revenue Fund, the Lottery Director shall
allocate first to the Economic Development Project Fund an amount
equal to one tenth of the projected annual principal, interest and
coverage requirements on any and all revenue bonds issued, or to be
issued, on or after the first day of July, two thousand two, as
certified to the Lottery Director; and second, to the fund or funds
from which debt service is paid on bonds issued under this section
for the School Building Authority, infrastructure, higher education
and park improvements an amount equal to one tenth of the projected
annual principal, interest and coverage requirements on any and all revenue bonds issued, or to be issued, on or after the first day of
April, two thousand two, as certified to the Lottery Director. In
the event there are insufficient funds available in any month to
transfer the amounts required pursuant to this subsection, the
deficiency shall be added to the amount transferred in the next
succeeding month in which revenues are available to transfer the
deficiency.
(h) In fiscal year two thousand four and thereafter, prior to
the distributions provided in subsection (c) of this section, the
Lottery Commission shall deposit into the General Revenue Fund
amounts necessary to provide reimbursement for the refundable
credit allowable under section twenty-one, article twenty-one,
chapter eleven of this code.
(i) (1) The Legislature considers the following as priorities
in the expenditure of any surplus revenue funds:
(A) Providing salary and/or increment increases for
professional educators and public employees;
(B) Providing adequate funding for the Public Employees
Insurance Agency; and
(C) Providing funding to help address the shortage of
qualified teachers and substitutes in areas of need, both in number
of teachers and in subject matter areas.
(2) The provisions of this subsection may not be construed by
any court to require any appropriation or any specific
appropriation or level of funding for the purposes set forth in
this subsection.
(j) The Legislature further directs the governor to focus
resources on the creation of a prescription drug program for senior
citizens by pursuing a medicaid waiver to offer prescription drug
services to senior citizens; by investigating the establishment of
purchasing agreements with other entities to reduce costs; by
providing discount prices or rebate programs for seniors; by
coordinating programs offered by pharmaceutical manufacturers that
provide reduced cost or free drugs; by coordinating a collaborative
effort among all state agencies to ensure the most efficient and
cost effective program possible for the senior citizens of this
state; and by working closely with the state's congressional
delegation to ensure that a national program is implemented. The
Legislature further directs that the governor report his progress
back to the joint committee on government and finance on an annual
basis beginning in November of the year two thousand one until a
comprehensive program has been fully implemented.
The bill (Eng. Com. Sub. for H. B. No. 2852), as amended, was
then ordered to third 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. 2911, Removing limitations
upon the acreage of lands that may be held by the trustee or
trustees of any church, parish or branch of religious sect, society
or denomination within this state.
And has amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 1, 2005;
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2911) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page two by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1. RELIGIOUS ORGANIZATIONS.
§35-1-1. Validation of transfers for use or benefit of religious
organizations.
Every conveyance, devise or dedication of land which has
heretofore been made and has not been declared void in any suit,
action or proceeding, or has not been treated and acted upon as
void under the law heretofore existing, and every conveyance,
devise or dedication of land hereafter made, if it does not
conflict with the limitations of section eight of this article, for
the use or benefit of any church, religious sect, society or
denomination as a place for public worship, or as a burial place, or a residence for a minister, or for the use or benefit of any
church, religious sect, society or denomination as a residence for
a bishop or other clergyman or minister who, though not in special
charge of a congregation is yet an officer of such any church,
religious sect, society or denomination, and employed under its
authority and about its business; or as a location for a parish
house or house for the meeting of societies or committees of the
church, religious sect, society or denomination, or of others for
the transaction of business connected therewith; or as a place of
residence of a sexton or caretaker if the same is adjacent to or
nearby the land used for public worship or the other purposes
aforesaid, shall be valid, and shall be construed to give the local
parish, congregation or branch of such any church, religious sect,
society or denomination, to which any such land or property has
been or shall be so conveyed, devised or dedicated, the control
thereof, unless from the intent expressed in the conveyance, grant,
will, gift or dedication, some other or larger body be given such
control. Any land so conveyed, devised or dedicated shall be held
and used for the purposes aforesaid and no other.
§35-1-4. Insufficient designations of beneficiaries or objects not
to cause failure of trust; acquisition, conveyance, etc., of
property.
No conveyance, devise, dedication, gift or bequest if the same
does not conflict with the limitations of section eight of this
article, and no gift or bequest hereafter made to any church,
religious sect, society, denomination, or to any individual church, congregation, parish or branch within this state, or to the trustee
or trustees for either, shall fail or be declared void for
insufficient designation of the beneficiaries in, or the objects
of, any trust annexed to such the conveyance, devise, dedication,
gift or bequest in any case where a lawful trustee or trustees of
such any church, religious sect, society, denomination, or of any
individual church, parish, congregation or branch, are in existence
or where such the church, religious sect, society, denomination, or
any individual church, parish, congregation or branch, is capable
of appointing such a trustee or trustees as provided in this
article; but such the conveyance, devise, dedication, gift or
bequest shall be valid; and whenever the object of such the trust
shall be undefined, or so uncertain as not to admit of enforcement
by a court of chancery, then such the conveyance, devise,
dedication, gift or bequest shall inure and pass to the trustee or
trustees of the beneficiary church, religious sect, society,
denomination, individual church, parish, congregation or branch, to
be held, managed, and the principal or income appropriated for the
religious and benevolent uses of such the church, religious sect,
society, denomination, or individual church, parish, congregation,
or branch, as such the trustee or trustees may determine, by and
with the approval of the bishop, vestry, Board of Deacons, Board of
Stewards, Official Board, Board of Elders, Board of Consultors, or
other Authorities which, under the rules or usages of such church,
religious sect, society, denomination, or individual church,
parish, congregation or branch, have charge of the Administration of the temporalities thereof.
Whenever the laws, rules or ecclesiastic polity of any church
or religious sect, society or denomination commits to its duly
elected or appointed bishop, minister or other ecclesiastical
officer, authority to administer its affairs, such the duly elected
or appointed bishop, minister or other ecclesiastical officer shall
have power to acquire by deed, devise, gift, purchase or otherwise,
any real or personal property, for any purpose authorized and
permitted by its laws, rules or ecclesiastic polity, and not
prohibited by the laws of West Virginia, and the power to hold,
improve, mortgage, sell and convey the same in accordance with such
the laws, rules and ecclesiastic polity, and in accordance with the
laws of West Virginia. In the event of the transfer, removal,
resignation or death of any such bishop, minister or other
ecclesiastical officer, the title and all rights with respect to
any such property shall pass to and become vested in his or her
duly elected or appointed successor immediately upon election or
appointment, and pending election or appointment of such a
successor, such the title and rights shall be vested in such any
person or persons as shall be designated by the laws, rules or
ecclesiastic polity of such the church or religious sect, society
or denomination.
All deeds, deeds of trust, mortgages, wills or other
instruments heretofore made to or by a duly elected or appointed
bishop, minister or other ecclesiastical officer, who, at the time
of the making of any such deed, deed of trust, mortgage, will or other instrument, or thereafter, had authority to administer the
affairs of any church or religious sect, society or denomination
under its laws, rules or ecclesiastic polity, transferring
property, real or personal, of any such church, or religious sect,
society or denomination, are hereby ratified and declared valid.
All transfers of title and rights with respect to property, prior
to the effective date of the ratification of this section, from a
predecessor bishop, minister or other ecclesiastical officer who
had resigned or died, or has been transferred or removed, to his or
her duly elected or appointed successor, by the laws, rules or
ecclesiastic polity of any such church or religious sect, society
or denomination, either by written instruments or solely by virtue
of the election or appointment of such a successor, are also hereby
ratified and declared valid.
No gift, grant, bequest or devise hereafter made to any such
church or religious sect, society or denomination, or the duly
elected or appointed bishop, minister or other ecclesiastical
officer authorized to administer its affairs, shall fail or be
declared void for insufficient designation of the beneficiaries in,
or the objects of, any trust annexed to such any gift, grant,
bequest or devise; but such the gift, grant, bequest or devise
shall be valid, provided that whenever the objects of any such
trust shall be undefined, or so uncertain as not to admit of
specific enforcement by the chancery courts of the state, such the
gift, grant, bequest or devise shall be held, managed, and the
principal or income appropriated, for the religious and benevolent uses of such church or religious sect, society or denomination by
its duly elected or appointed bishop, minister or other
ecclesiastical officer authorized to administer its affairs.
This section shall not affect rights or litigation vested or
pending on or before the day upon which this section becomes
effective, nor shall it be so construed as to effect an implied
repeal of any other provisions of this chapter.
The rights created and remedies provided herein in this
section shall be construed as cumulative and not exclusive.
§35-1-7. Same -- May receive and hold property.
The trustee or trustees of any church, religious sect, society
or denomination, or of any individual church, parish, congregation
or branch, within this state, shall have power to receive
donations, gifts and bequests of personal property, and, subject to
the limitations of section eight of this article, to take receive
by devise, conveyance or dedication or to purchase and to hold,
real property, in trust for such the church, religious sect,
society or denomination, or for any individual church, parish,
congregation or branch; and in their its own name or names to sue
or be sued in all proper actions and suits, for or on account of
the real or personal property so held or claimed, and for and on
account of any matters relating thereto: Provided, That, in the
absence of gross negligence, no trustee shall be personally liable
for any tort arising from or growing out of the ownership of
property as a trustee and no such action or suit shall abate
because of the death, removal or resignation of any trustee, or the appointment of another trustee, but may be proceeded with in the
name of the trustee or trustees by or against whom it was
instituted, or in the name of the succeeding trustee or trustees.
The trustee or trustees shall be accountable to that church,
religious sect, society, or denomination, or to that individual
church, parish, congregation or branch, for which he, she or they
hold in trust, for the use and management of such the property, and
shall surrender it to any person or persons authorized to demand
it.
§35-1-8. Quantity of real estate trustee may hold.
The trustee or trustees of any individual church, parish,
congregation or branch of any religious sect, society or
denomination within this state may take and hold at any one time
for each church, parish, or congregation not to exceed ten acres of
land in any incorporated city, town or village, and not to exceed
sixty acres out of such any city, town or village. Provided, That
for the taxable year beginning the first day of July, two thousand
five and ending the first day of July, two thousand six, the
trustee or trustees of any individual church, parish, congregation
or branch of any religious sect, society or denomination within any
county whose population exceeded two hundred thousand people in the
year two thousand may hold real estate not to exceed one hundred
acres for the use or benefit of the church, parish, congregation or
branch of the religious sect, society or denomination.
The bill (Eng. Com. Sub. for H. B. No. 2911), as amended, was
then ordered to third 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. 2966, Creating a statewide
thoroughbred breeders program.
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.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2966) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration, read a second time and ordered to third
reading.
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. 3021, Relating to amending licensure
procedures for massage therapists.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. H. B. No. 3021) 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 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. 3048, Relating to
restructuring of the hunting and fishing license system.
With amendments from the Committee on Natural Resources
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 Natural Resources 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. 3048) contained in
the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
The following amendments to the bill, from the Committee on
Natural Resources, were reported by the Clerk, considered
simultaneously, and adopted:
On page eight, section thirty-three, lines thirty-seven
through forty-one, by striking out the words "the electronic
issuance fee is to be at least five dollars with one dollar of the
fee to go to the administration of the electronic issuance and four
dollars of the fee to go to law-enforcement section of the division
of natural resources" and inserting in lieu thereof the words "an
electronic issuance fee of at least two dollars shall be assessed
on each Go Wild transaction. The electronic issuance fee shall be
dedicated to the administration and maintenance of Go Wild";
On page thirty-four, section nine, lines twenty-nine through
forty-five, after the word "licenses" by changing the colon to a
period and striking out the following: Provided further, That
notwithstanding any other provisions of this section to the
contrary, two dollars of the funds collected from the sale of this
stamp shall be deposited in a special revenue account designated as
the "Integrated Predation Management Fund". Expenditures from the
fund shall be used exclusively to enter into a cooperative
agreement with the United States Department of Agriculture, Animal
Plant Health Inspection Service, Wildlife Service, to expand the
coyote control program statewide. Expenditures are not authorized
from collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon
fulfillment of the provisions of article two, chapter eleven-b of
this code: Provided, That for the fiscal year ending the thirtieth
day of June, two thousand five, expenditures are authorized from
collections rather than pursuant to appropriation by the
Legislature.;
On page nine, after section thirty-three, by inserting a new
section, designated section thirty-three-b, to read as follows:
§20-2-33b. Electronic application donation to fund the Coyote
Management Program.
(a) (1) Effective the first day of January, two thousand six,
every application for a hunting or fishing electronic license shall
include a solicitation for a voluntary donation to the division's
established Coyote Management Program.
(2) The license applicant will be offered an opportunity to
designate a donation in the amount of two dollars for the Coyote
Management Program.
(b) There is hereby created a special revenue account,
designated the "Coyote Management Fund" into which all donations
derived under this section shall be deposited. Moneys in this
account shall be expended solely for the purposes set forth in
subsection (c) of this section. Funds paid into this account may
also be derived from the following sources: (1) All interest or
return on investment accruing to this account; (2) Any gifts,
grants, bequests, transfers, appropriations or other donations
which may be received from any governmental entity or unit or any person, firm, foundation, or corporation; and (3) any
appropriations by the Legislature which may be made for the
purposes of this section. Any balance including accrued interest
and other earnings at the end of any fiscal year shall not revert
to the general fund but shall remain in the fund for the purposes
set forth in this section.
(c) The moneys in the fund shall be paid out, at the sole
discretion and direction of the director, to address coyote
management issues.;
And,
On pages two and three, by striking out the enacting section
and inserting in lieu thereof a new enacting section, to read as
follows:
That §20-2-39, §20-2-40, §20-2-40b, §20-2-41, §20-2-43,
§20-2-44a, §20-2-45, §20-2-46b, §20-2-46c, §20-2-46d, §20-2-46f,
§20-2-46g, §20-2-46i, §20-2-46j, §20-2-46k, §20-2-46l, §20-2-46m
and §20-2-63 of the Code of West Virginia, 1931, as amended, be
repealed; that §20-2-30a, §20-2-33, §20-2-44 and §20-2-44b of said
code be amended and reenacted; that said code be amended by adding
thereto twenty-four new sections, designated §20-2-33b, §20-2-42,
§20-2-42a, §20-2-42b, §20-2-42c, §20-2-42d, §20-2-42e, §20-2-42f,
§20-2-42g, §20-2-42h, §20-2-42i, §20-2-42j, §20-2-42k, §20-2-42l,
§20-2-42m, §20-2-42n, §20-2-42o, §20-2-42p, §20-2-42q, §20-2-42r,
§20-2-42s, §20-2-42t, §20-2-42u and §20-2-42v; and that §20-2B-6,
§20-2B-7, §20-2B-8, §20-2B-9 and §20-2B-10 of said code be amended
and reenacted, all to read as follows:.
The bill (Eng. Com. Sub. for H. B. No. 3048), as amended, was
then ordered to third 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. Com. Sub. for House Bill No. 3167, Creating the
Beckley-Raleigh county building code authority to establish and
enforce a building code for the city of Beckley and Raleigh County.
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. Com. Sub. for H. B. No. 3167) 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. 3354, Secretary's authority to assess a
permit fee for well work permit, deep wells, coalbed methane wells
and reclamation fund fees.
With amendments from the Committee on Energy, Industry and
Mining 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 Energy, Industry and Mining 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. H. B. No. 3354) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendments to the bill, from the Committee on
Energy, Industry and Mining, were reported by the Clerk, considered
simultaneously, and adopted:
On page four, section two, line fifty-one, by striking out the
word "and";
On page nineteen, section three, line six, by striking out the
word "article" and inserting in lieu thereof the word "articles";
On page twenty, section three, line eighteen and nineteen, by
striking out the words "of this code";
On page twenty-six, section six, line fifty-five, after the
word "depth;" by inserting the word "and";
On page twenty-six, section six, line sixty-two, by striking
out the word "six" and inserting in lieu thereof the word "two";
On page twenty-eight, section six, line ninety-seven, after
the word "well;" by inserting the word "and";
On page twenty-eight, section six, line one hundred thirteen,
by striking out "[33 U. S. C. 1288]";
And,
On page thirty-two, section seven, line thirty-four, after the
word "provided;" by inserting the word "and".
The bill (Eng. H. B. No. 3354), as amended, was then ordered
to third reading.
The Senate proceeded to the sixth order of business.
Senators Yoder, Love, Chafin, McKenzie, Kessler, Sharpe,
McCabe, Unger, Weeks and Jenkins offered the following resolution:
Senate Concurrent Resolution No. 94--Requesting the Joint
Committee on Government and Finance study providing safe and
affordable housing for State Police officers and their families.
Whereas, State Police officers are often required to transfer
as job assignments, promotions and the public safety needs of this
state require; and
Whereas, State Police officers and their families deserve to
live in safe and affordable housing in the communities in which
they serve; and
Whereas, The compensation of State Police officers does not account for the differential in housing costs throughout the state
nor the ability of State Police officers to find safe and
affordable housing for their families in high-cost housing areas of
the state; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study providing safe and affordable housing for State
Police officers and their families; 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.
Which, under the rules, lies over one day.
Senators Helmick and Facemyer offered the following
resolution:
Senate Concurrent Resolution No. 95--Requesting the Joint
Committee on Government and Finance study state agencies' use of
state-owned meeting facilities.
Whereas, Almost every agency of state government conducts
training, seminars and meetings for its employees throughout the
year; and
Whereas, Many of these meetings are held throughout the state
at privately operated venues in close proximity of state-owned
meeting facilities; and
Whereas, There are potential savings to state agencies through
the use of state-owned facilities and those facilities may benefit
by having lower vacancy rates and full-year activities; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study state agencies' use of state-owned meeting
facilities; 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.
Which, under the rules, lies over one day.
Senators Helmick, Unger and Jenkins offered the following
resolution:
Senate Concurrent Resolution No. 96--Requesting the Joint
Committee on Government and Finance study the state and local tax
structure of West Virginia.
Whereas, The state and local tax structure should provide
fairness among taxpayers while avoiding an undue burden on
government in regard to tax administration and enforcement; and
Whereas, The state and local tax structure should operate
efficiently in order to provide adequate revenues necessary to
conduct the operations of state and local government; and
Whereas, Reviewing the current tax structure is necessary to
ensure that it provides a fair, stable and accountable tax system
which stimulates a growing and broad tax base and reflects the
changing economy of the state; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the state and local tax structure; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study should incorporate the 1999 report of the
Governor's Commission on Fair Taxation; 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.
Which, under the rules, lies over one day.
Senator Chafin offered the following resolution:
Senate Concurrent Resolution No. 97--Requesting the Joint
Committee on Government and Finance study the possibility of
eliminating incarceration for certain misdemeanor convictions.
Whereas, The cost of operating regional jails continues to
escalate due, for the most part, to the increasing number of
inmates these jails must accommodate; and
Whereas, A contributing cause to this increasing burden to the
taxpayers of this state is the propensity of the Legislature to
provide for stiffer jail penalties while creating new misdemeanor
crimes; and
Whereas, Many nonviolent, harmless offenders are required to
serve jail time at taxpayers' expense when other alternatives, such
as community service, home confinement, criminal fines and
probation, would be more cost-effective; and
Whereas, Factors involved in the ever-increasing cost to the
taxpayers for regional jails include: (1) The cost of
transportation; (2) the provision of medications and medical
treatment to inmates; (3) delays in providing appointed lawyers
access to their incarcerated clients which, incidentally, drive up
the cost to the state in fulfilling its nondiscretionary obligation
of providing competent legal assistance to indigent individuals;
(4) the length of time, on average, inmates are held awaiting trial
or other resolution on the merits to their cases; (5) the average
length of sentences inmates convicted of misdemeanors are required
to serve; and (6) the uniquely burdensome costs of housing and monitoring inmates with mental disabilities, such as mental illness
or mental retardation; and
Whereas, The Legislature should focus on methods and
procedures that best protect public safety without imposing jail
time; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the possibility of eliminating incarceration for
certain misdemeanor convictions; 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.
Which, under the rules, lies over one day.
Senators Chafin, Yoder and Jenkins offered the following
resolution:
Senate Concurrent Resolution No. 98--Requesting the Joint
Committee on Government and Finance study the feasibility and
attendant legal ramifications, part and parcel, of any proposed
legislation designed to stringently restrict and suppress the
current perimeters within which lawyers advertise.
Whereas, Since the opening of a proverbial Pandora's Box,
which gave license to lawyers for seemingly unrelenting and
increasingly bawdy, misleading and objectionable advertisements,
the legal profession's public image, once perceived as honorable
and noble, has eroded into a carnival-like thing, akin to a blue-
light special, touted on a used car lot; and
Whereas, The general public's current perception of the legal
profession, quite contrary to the once held view of a noble
endeavor, has over the decades, sunk into a doleful chasm, wherein
lawyers are equated with used car salesmen, moneygrubbers and
shysters. This unfortunate state of affairs has regrettably
occurred due to the sheer and continual increase in the number of
lawyers per capita, and the resulting massive aggregation of
tasteless, unprofessional and gaudy advertisements that lawyers
apparently are compelled to publish in an effort to compete with
one another while clinging to the ultimate dream of hitting the
grand prize of the injury lottery; and
Whereas, Since this once indomitably noble profession has been
allowed to descend into the ooze of its increasingly unprofessional
and ignoble state of affairs (antithetic to its original and
honorable callings), a state of affairs that beckons the public
with the ever-so-familiar banner query of "injured?", while
promising monetary jackpot recoveries that appeal to the basest of
human instincts, a cancerous growth has materialized which begs for
substantial containment, if not outright excision; and
Whereas, In the eyes of the public, the legal profession's intended virtues of promoting public justice, upholding the rights
of citizens, and resolving conflicts without resort to violence
have been relegated to the annals of history, while being replaced
by catchy limericks, jingles and punch-lines, endemic in the
massive advertising budgets (once the exception - now the rule)
extolling the self-appointed "heavy hitter",
"won't-take-no-for-an-answer" "lawyer-who-will-fight-for-you"
wannabes; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the feasibility and attendant legal
ramifications, part and parcel of any proposed legislation designed
to stringently restrict and suppress the current perimeters within
which lawyers advertise; 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.
Which, under the rules, lies over one day.
Senators Unger, McCabe and Jenkins offered the following
resolution:
Senate Concurrent Resolution No. 99--Requesting the Joint
Committee on Government and Finance study issues involving
compulsive gambling in West Virginia.
Whereas, West Virginia depends upon the revenue generated from
gambling for budgetary and other financial considerations; and
Whereas, The economic impact of gambling in West Virginia has
not been the subject of a comprehensive review, including its
benefits versus its detriment; and
Whereas, The American Psychiatric Association clinically
defines compulsive gambling as a pathological disorder that
requires treatment; and
Whereas, The social impact of compulsive gambling has not been
reviewed with regard to gaming in the state; and
Whereas, The federally funded National Gambling Impact Study
of 1999 concluded that problem gambling then cost society at least
$5 billion annually in health care and social services, creditor
losses and decreased productivity; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study issues involving compulsive gambling in West
Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include a descriptive and economic analysis of the
current status of compulsive gambling in the state and data
gathered from agencies, groups, organizations and persons providing
education, assistance and counseling to persons and families experiencing difficulty as a result of compulsive gambling; and, be
it
Further Resolved, That the Joint Committee on Government and
Finance's study include an economic analysis of geographic regions
where gambling facilities are located and a review of the impact of
video lottery machines on communities in the state; 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.
Which, under the rules, lies over one day.
Senators Unger and Yoder offered the following resolution:
Senate Resolution No. 42--Recognizing the efforts of the
Falling Waters Battlefield Association in promoting the historical
significance of the Battle of Falling Waters in Civil War history.
Whereas, The Falling Waters Battlefield Association endeavors
to highlight the Battle of Falling Waters which occurred during the
Civil War in Berkeley County; and
Whereas, The Battle of Falling Waters was fought on July 2,
1861, and is believed to be the first Civil War battle in the
Shenandoah Valley; and
Whereas, The Union and Confederate armies met north of
Martinsburg on the William Porterfield farm. Union troops brought
four cannons and tried to surround the Confederate troops with
infantry soldiers. Outnumbered and outgunned, the Confederate
troops slowly retreated south and broke off fighting. During the
battle, there were only a few casualties on either side; and
Whereas, Although the Battle of Falling Waters was tactically
a Union victory, it allowed the Confederate troops to move on and
reenforce additional troops who later contributed to a large
Confederate victory at the Battle of Manassas, Virginia, also known
as the Battle of Bull Run. Although a small battle in comparison
to others of the Civil War, the Battle of Falling Waters was
nevertheless historic; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the efforts of the Falling
Waters Battlefield Association in promoting the historical
significance of the Battle of Falling Waters in Civil War history;
and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the appropriate representatives of the
Falling Waters Battlefield Association.
At the request of Senator Unger, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
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. 100 (originating in the
Committee on
Transportation and Infrastructure)--
Requesting the
Joint Committee on Government and Finance study transportation
safety issues
to promote safe driving practices in the State of
West Virginia
.
Whereas, The use of cellular phones has increased, therefore
the number of individuals concurrently driving and talking on cell
phones has increased;
Whereas, The precise effects associated with the use of cell
phones while driving are unknown; and
Whereas,
Automobile accidents involving teenage drivers, with
resulting in fatalities and serious injuries, are of serious
concern; and
Whereas
, There is a graduated driver's license program in the
state of West Virginia for teenage drivers; and
Whereas
, The Legislature desires to promote safe driving in
the State of West of Virginia, including safe operating practices
by users of cellular devices and by teenage drivers in the most
efficient manner
; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study transportation safety issues to promote safe driving practices in the State of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include whether the manual manipulation of
equipment has a negative impact on driving and the effects of
hand-held and hands-free cell phone usage; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include an examination of the number of teen
passengers accompanying a teen driver, adjusting the current 11
p.m. curfew for teen drivers and raising the minimum age to obtain
a driver's license from 15 years to 16 years; 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.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
John R. Unger II,
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. 101 (originating in the
Committee on
Transportation and Infrastructure
)--Requesting the
Joint Committee on Government and Finance study the proliferation
of special license plates in and for the State of West Virginia.
Whereas, There are over 97 different types of license plates
for passenger vehicles in West Virginia; and
Whereas, Many of these plates are necessary to express the
state's appreciation and recognition for military or other types of
special service to the citizens of our state and nation; and
Whereas, The primary purpose of a license plate is to identify
the ownership of a vehicle for law-enforcement and tax-generating
purposes; and
Whereas, There are many bills introduced each year to
authorize additional special license plates; and
Whereas, A few of these special license plate programs combine
to generate in excess of $1 million in additional revenue each
year; and
Whereas, Many of these license plates currently have fewer
than fifty active registrants; and
Whereas, In the last two years, only two of the ten
organizations authorized by this Legislature to have a special
license plate have generated sufficient interest among their own
members to obtain at least 100 interested applicants; and
Whereas, Some law-enforcement agencies have expressed concern about the difficulties in identifying and differentiating between
the special license plates; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the proliferation of special license plates in
and for the State of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include issuing special plates to members of Lions
International; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include issuing plates to municipal law-enforcement
departments; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include issuing a plate recognizing, supporting and
honoring organ and tissue donors; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include issuing a plate honoring coal miners; and,
be it
Further Resolved, That the Joint Committee on Government and
Finance's study include issuing a plate for present and former Boy
Scouts who achieved Eagle Scout; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include issuing plates for a sporting team or
franchise bearing the sporting team or franchise's design; and, be
it
Further Resolved, That the Joint Committee on Government and Finance's study include issuing plates for registered nurses and
licensed practical nurses; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include issuing plates for next of kin of those
individuals in the armed forces killed in combat and for armed
services retirees; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include issuing plates for other charitable
organizations, sports teams, civic organizations, university and
educational institutions and trade associations; 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.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
John R. Unger II,
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. 102 (originating in the
Committee on
Transportation and Infrastructure)--
Requesting the
Joint Committee on Government and Finance study regulations related
to motor carriers, including providing exemptions for wrecker
services from Public Service Commission rules in the transportation
of overweight wrecked or disabled motor vehicles or motor carriers
in the State of West Virginia.
Whereas, The increasing volume of traffic has contributed to
the frequent occurrence of wrecked or disabled motor vehicles and
motor carriers requiring the services of a wrecker; and
Whereas, Safety issues resulting from the wrecked or disabled
motor vehicle or motor carrier impeding the flow of traffic are of
serious concern; and
Whereas, Wrecker services are presently equipped to respond in
a timely and efficient manner to situations involving the towing of
a wrecked or disabled motor vehicle or motor carrier; and
Whereas, The Legislature should promote safe driving
conditions in the State of West Virginia, including the safe and
timely operation practices by wrecker services while towing a
wrecked or disabled motor vehicle or motor carrier in the most
efficient manner; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to
study regulations related to motor carriers, including providing exemptions for wrecker services from Public Service
Commission rules in the transportation of overweight wrecked or
disabled motor vehicles or motor carriers
in the State of West
Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include an examination of the Public Service
Commission rules regarding weight, height, length and width of
motor vehicles upon the current operation practices of wrecker
services responding to an overweight wrecked or disabled motor
vehicle or motor carrier; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include an examination of the safety and efficiency
of wrecker services that hire independent contractors for emergency
clean up from spillage accidents and other accidents requiring
immediate clean up in comparison to wrecker services that directly
employ persons for clean-up operations of the same type of
accidents; 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.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
John R. Unger II,
Chair.
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. 103 (originating in the
Committee on Education)--Requesting the Joint Committee on
Government and Finance study the school aid formula.
Whereas, The state is experiencing loss of enrollment in some
counties and enrollment growth in other counties over the past
several years; and
Whereas, The demographics of the state have changed and the
basic school aid formula has not been reexamined to meet these
changes; and
Whereas, The decision of Tomblin v. Gainer to endorse a
performance approach to equity and adequacy provides an important
opportunity for the Legislature to comprehensively review the state
school aid formula; and
Whereas, Several important questions regarding adequacy,
stability, elasticity and equity of the state school aid formula
remain unknown; and
Whereas, Long-term forecasts of revenues, changes in costs and
other issues remain important topics in determining the appropriateness of the current funding formula; and
Whereas, Comparison of West Virginia's current system with
other state school funding formulas, as well as recommendations and
simulations of possible changes to the current formula, is needed
to preserve an adequate and equitable school funding program
through the 21st century; be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Joint Committee on
Government and Finance study the school aid formula; 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.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Robert H. Plymale,
Chair.
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. 2176; and from the Senate second reading calendar,
Engrossed House Bill No. 3212.
Senator Chafin also announced that in the same meeting, the
Committee on Rules had returned to the Senate Calendar, on third
reading, Engrossed Committee Substitute for House Bill No. 2296,
Engrossed House Bill No.
2368 and Engrossed House Bill No. 2990;
and on second reading, Engrossed Committee Substitute for House
Bill No. 2471, Engrossed House Bill No. 2482, Engrossed Committee
Substitute for House Bill No. 2619, Engrossed Committee Substitute
for House Bill No. 2929, 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 Committee Substitute for House Bill No. 3174 and
Engrossed House Bill No. 3211, under rule number seventeen of the
Rules of the Senate.
The Senate proceeded to the eighth 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.
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. 2296, Increasing service of
process fees and providing that the fees collected be deposited in
the West Virginia deputy sheriff retirement fund.
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. 2296) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, 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. 2296) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2368, Increasing the veterinary fee for
each cat and dog vaccinated for rabies.
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,
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)--32.
The nays were: Boley and Harrison--2.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2368) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2476, Relating generally to
parole and parole proceedings.
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. 2476) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill 2476--A Bill to amend and
reenact §62-12-19 of the Code of West Virginia, 1931, as amended,
relating generally to parole and parole proceedings; and
authorizing the Commissioner of the Division of Corrections to
issue subpoenas for persons and records necessary to prove a
violation of the terms and conditions of a parolee's parole.
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. 2523, Making it a crime for
released inmates to contact correctional employees and requiring
that inmates be advised of such prohibition upon release.
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. 2523) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2523--A Bill
to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §61-10-32,
relating to making it a crime for
released inmates to contact correctional employees or members of
the parol board in certain circumstances.
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. 2663, Relating to digging,
growing, collecting, gathering, possessing and selling ginseng.
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. 2663) 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. 2718, Authorizing the
Department of Commerce 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. 2718) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2718) 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. 2723, Authorizing the
Department of Environmental Protection 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, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, Yoder and Tomblin (Mr.
President)--32.
The nays were: Hunter and White--2.
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. 2723) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Jenkins, Kessler, Lanham, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Sharpe, Sprouse, Unger, Weeks, Yoder and Tomblin (Mr.
President)--32.
The nays were: Hunter and White--2.
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. 2723) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
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 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. 2812) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2812--A Bill
to extend the
time for the Board of Education of Preston County to meet as a
levying body for the purpose of presenting to the voters of Preston
County an election on the question of enacting a special levy for
school funding 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
.
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. 2812) 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. 2816, Creating the West
Virginia Healthy Act of 2005.
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. 2816) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2816--A Bill to amend the
Code of West Virginia, 1931, as 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 to amend and reenact §18-2-6a, §18-2-7a and §18-2-9 of said
code, all relating to promoting healthy lifestyles; creating a
Healthy Lifestyles Office in the Department of Health and Human
Resources; establishing the functions of the Office; creating a
special revenue account; establishing a voluntary private sector
partnership program to encourage healthy lifestyles; establishing
physical activity requirements in the schools; using body mass
index as an indicator of progress; encouraging the use of healthy
beverages in schools; and adding requirements for health education.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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 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. H.
B. No. 2866) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2866) 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. 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.
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. H.
B. No. 2990) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3018, Relating to designation of
Mountaineer Challenge Academy as a special alternative education
program.
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. H. B. No. 3018) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 3018--A Bill to amend and reenact §15-1B-
24 of the Code of West Virginia, 1931, as amended; and to amend and
reenact §18-2-6 of said code, all relating to cooperation of the
State Board of Education with the Mountaineer Challenge Academy;
mandating a rule for the approval of alternative education
programs; diplomas and certificates of proficiency; designation of
Academy as special alternative education program; calculation of
graduation rate for student attending an approved alternative
education program or the Academy; requiring State Board rule to
support the operation of the Academy; providing minimum provisions
to be included in the rule; application limited to Academy consent;
requiring report to Legislative Oversight Commission on Education
Accountability; and technical amendments.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3031, Prohibiting unlicensed practice of
landscape architecture.
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,
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, Unger, Weeks, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Boley and Sprouse--2.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3031) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 3031--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §30-22-5a, relating to the West Virginia State Board of
Landscape Architects; authorizing an increase of fees for one year;
and limiting the increase.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, 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, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Boley and Sprouse--2.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3031) 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. 3051, Relating to defining
certain terms relative to hunting.
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, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Unger, Weeks, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Facemyer and Sprouse--2.
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. 3051) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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 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. H.
B. No. 3203) passed.
The following amendment to the title of the bill, from the
Committee on Pensions, was reported by the Clerk and adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 3203--A Bill to amend and reenact §8-13C-1
and §8-13C-9 of the Code of West Virginia, 1931, as amended; and to
amend said code by adding thereto a new section, designated §8-13C-
14, all relating to the use of proceeds from a pension relief
municipal occupational tax, a pension relief municipal sales and
service tax and a pension relief municipal use tax; loss of
authority to impose those taxes; authorizing a qualifying
municipality, subject to meeting certain requirements, to close
their existing pension and relief fund plan for policemen and firemen to those hired after a future date; authorizing a
qualifying municipality, subject to meeting certain requirements,
to establish a defined contribution plan for policemen and firemen
hired on and after the future date; authorizing policy; and
authorizing a qualifying municipality, subject to meeting certain
requirements, 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 that purpose.
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. 3208, Adjusting the formula
by which the Public Service Commission distributes wireless
enhanced 911 fee revenues to the counties.
On third reading, coming up in regular order, with an
unreported Finance committee amendment pending, and with the right
having been granted on yesterday, Thursday, April 7, 2005, for
further amendments to be received on third reading, was reported by
the Clerk.
At the request of Senator Chafin, unanimous consent being
granted, further consideration of the bill and the pending
unreported Finance committee amendment was deferred until the
conclusion of bills on today's second reading calendar.
Eng. House Bill No. 3281, Relating to making it a crime to
alter, destroy, or tamper with computer equipment containing voter registration information.
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. H.
B. No. 3281) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 3281--A Bill to amend and reenact §3-9-1
of the Code of West Virginia, 1931, as amended, relating to the
crime of altering, destroying or tampering with computer equipment
containing voter registration information; accessing or attempting
to access confidential voter registration information; and
penalties.
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. 3328, Changing the name of
the office of emergency services and specifying additional
responsibilities.
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. 3328) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3328) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3356, Powers and duties of solid waste
management board.
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. H.
B. No. 3356) 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 and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 3356--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §22C-3-26; and to amend said code by adding thereto a new section, designated §22C-4-9a, all relating generally to the
powers and duties of the Solid Waste Management Board; providing
for performance reviews of authorities and performance measures;
requiring proposal of legislative rules for implementation of
review process and system; authorizing Solid Waste Management Board
to intervene under certain circumstances; providing intervention
process; requiring State Auditor to establish certain accounting
procedures to be adopted by all county and regional solid waste
authorities; and requiring audits of authorities.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3361, Relating to the West Virginia Sunset
Law.
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. H.
B. No. 3361) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3361) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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.
On motion of Senator Chafin, the recessed for five minutes to
permit Nathan Campbell to address the Senate on behalf of the
Walter Rollins Scholars, Betty Harrah on behalf of the Judith A.
Herndon Fellowship Program and Justin Weaver on behalf of the
Legislative Information Journalism Internship Program.
Upon expiration of the recess, the Senate reconvened.
Thereafter, at the request of Senator Prezioso, and by unanimous consent, the remarks by Nathan Campbell, Betty Harrah and
Justin Weaver were ordered printed in the Appendix to the Journal.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 145, Budget bill.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Eng. Com. Sub. for House Bill No. 2111, Authorizing paramedics
to practice in hospital emergency rooms.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2163, Eliminating the
set-off against unemployment compensation benefits for persons
receiving social security benefits.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2229, Providing for the
temporary detention of juvenile perpetrators of domestic violence.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
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.
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 four, section three, lines forty-three and forty-four,
by striking out all of subdivision (8) and inserting a new
subdivision (8), to read as follows:
(8) No fee shall be charged for a special one-day license
under subsection (o) of this section or for a heritage fair and
festival license under subsection (p) of this section.;
On page eleven, section three, line one hundred ninety-one,
after the word "educational" by striking out the comma and the word
"political";
And,
On page twelve, section three, after line one hundred ninety-
nine, by adding a new subsection, designated subsection (p), to
read as follows:
(p) The Commissioner may issue special licenses to heritage
fairs and festivals allowing the sale, serving and sampling of wine
from a West Virginia farm winery. The license application shall
contain information required by the Commissioner and shall be
submitted to the Commissioner at least thirty days prior to the
event. Wines used during these events may be donated by or
purchased from a West Virginia farm winery. Under no circumstances
may the provision of subsection (c), section twenty of this article
be waived nor may any exception be granted with respect thereto.
The Commissioner shall propose rules for legislative approval in
accordance with article three, chapter twenty-nine-a of this code
to implement the provisions of this subsection.
The bill (Eng. Com. Sub. for H. B. No. 2266), as amended, was
then ordered to third reading.
Eng. House Bill No. 2271, Relating to the payment of expert
fees in child abuse and neglect cases.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2334, Relating to limiting
child out-of-state placements.
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 two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 7. GENERAL PROVISIONS.
§49-7-34. Commission to study residential placement of children.
(a)
The Legislature finds that the state's current system of
serving children and families in need of or at risk of needing
social, emotional and behavioral health services is fragmented.
The existing categorical structure of government programs and their
funding streams discourages collaboration, resulting in duplication
of efforts and a waste of limited resources. Children are usually
involved in multiple child-serving systems, including child
welfare, juvenile justice and special education. More than ten
percent of children presently in care are presently in out-of-state
placements. Earlier efforts at reform have focused on quick fixes for individual components of the system at the expense of the
whole. It is the purpose of this section therefore to establish a
mechanism to achieve systemic reform by which all of the state's
child-serving agencies involved in the residential placement of at-
risk youth jointly and continually study and improve upon this
system and make recommendations to their respective agencies and to
the Legislature regarding funding and statutory, regulatory and
policy changes. It is further the Legislature's intent to build
upon these recommendations to establish an integrated system of
care for at-risk youth and families that makes prudent and cost-
effective use of limited state resources by drawing upon the
experience of successful models and best practices in this and
other jurisdictions, which focuses on delivering services in the
least restrictive setting appropriate to the needs of the child,
and which produces better outcomes for children, families and the
state.
(b) There is hereby created within the Department of Health
and Human Resources a Commission to Study the Residential Placement
of Children. The Commission shall consist of the Secretary of the
Department of Heath and Human Resources, the Commissioner of the
Bureau for Children and Families, the Commissioner for the Bureau
for Behavioral Health and Health Facilities, the Commissioner for
the Bureau for Medical Services, the State Superintendent of
Schools, a representative of local educational agencies, the
Director of the Office of Institutional Educational Programs, the
Director of the Office of Special Education Programs and Assurance, the Director of the Division of Juvenile Services and the Executive
Director of the Prosecuting Attorney's Institute. At the
discretion of the West Virginia Supreme Court of Appeals, circuit
and family court judges and other court personnel, including the
administrator of the Supreme Court of Appeals and the director of
the Juvenile Probation Services Division, may serve on the
Commission. These statutory members may further designate
additional persons in their respective offices who may attend the
meetings of the Commission if they are the administrative head of
the office or division whose functions necessitate their inclusion
in this process. In its deliberations, the Commission shall also
consult and solicit input from families and service providers.
(c) The Secretary of the Department of Health and Human
Resources shall serve as chair of the Commission, which shall meet
on a monthly basis at the call of the chairman.
(d) At a minimum, the Commission shall study:
(1) The current practices of placing children out-of-home and
into in residential placements, with special emphasis on out-of-
state placements;
(2) The adequacy, capacity, availability and utilization of
existing in-state facilities to serve the needs of children
requiring residential placements;
(3) Strategies and methods to reduce the number of children
who must be placed in out-of-state facilities and to return
children from existing out-of-state placements, initially targeting
older youth who have been adjudicated delinquent;
(4) Staffing, facilitation and oversight of multidisciplinary
treatment planning teams;
(5) The availability of and investment in community-based,
less restrictive and less costly alternatives to residential
placements;
(6) Ways in which up-to-date information about in-state
placement availability may be made readily accessible to state
agency and court personnel, including an interactive secure web
site;
(7) Strategies and methods to promote and sustain cooperation
and collaboration between the courts, state and local agencies,
families and service providers, including the use of inter-agency
memoranda of understanding, pooled funding arrangements and sharing
of information and staff resources;
(8) The advisability of including "no-refusal" clauses in
contracts with in-state providers for placement of children whose
treatment needs match the level of licensure held by the provider;
(9) Identification of in-state service gaps and the
feasibility of developing services to fill those gaps, including
funding;
(10) Identification of fiscal, statutory and regulatory
barriers to developing needed services in-state in a timely and
responsive way;
(11) Ways to promote and protect the rights and participation
of parents, foster parents and children involved in out-of-home
care; and
(12) Ways to certify out-of-state providers to ensure that
children who must be placed out-of-state receive high quality
services consistent with this state's standards of licensure and
rules of operation.
(e) Beginning July 1, 2005, the Chair, or his or her designee,
shall report on the work of the Commission to the legislative
Juvenile Task Force during the Legislature's monthly interim
meetings.
(f) On or before December 1, 2005, the Commission shall report
to the Joint Committee on Government and Finance its conclusions
and recommendations, including an implementation plan whereby:
(1) Out-of-state placements shall be reduced by at least ten
per cent per year and by at least fifty percent within three years;
(2) Child-serving agencies shall develop joint operating and
funding proposals to serve the needs of children and families that
cross their jurisdictional boundaries in a more seamless way;
(3) Steps shall be taken to obtain all necessary federal plan
waivers or amendments in order for agencies to work collaboratively
while maximizing the availability of federal funds;
(4) Agencies shall enter into memoranda of understanding to
assume joint responsibilities;
(5) System of care components and cooperative relationships
shall be incrementally established at the local, state and regional
levels, with links to existing resources, such as family resource
networks and regional summits, wherever possible; and
(6) Recommendations for changes in fiscal, statutory and regulatory provisions are included for legislative action.
The bill (Eng. Com. Sub. for H. B. No. 2334), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2371, Authorizing
collaborative pharmacy practice agreements between pharmacists and
physicians and specify requirements for the agreements.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2444, Mandatory
participation in the motor vehicle alcohol test and lock program
for repeat offenders.
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 section §17C-5-2 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that §17C-5A-3a of said code
be amended and reenacted, all to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the
safety of others, and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to the
death, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than one
nor more than ten years and shall be fined not less than one
thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the
county or regional jail for not less than ninety days nor more than
one year and shall be fined not less than five hundred dollars nor
more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes bodily injury to any person
other than himself or herself, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in the county or regional
jail for not less than one day nor more than one year, which jail
term is to include actual confinement of not less than twenty-four
hours, and shall be fined not less than two hundred dollars nor
more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for not less than
one day nor more than six months, which jail term is to include
actual confinement of not less than twenty-four hours, and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(e) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, drives a vehicle in this
state, is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for not less than
one day nor more than six months, which jail term is to include
actual confinement of not less than twenty-four hours, and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(f) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this
state by any other person who:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for not more than
six months and shall be fined not less than one hundred dollars nor
more than five hundred dollars.
(g) Any person who knowingly permits his or her vehicle to be
driven in this state by any other person who is an habitual user of
narcotic drugs or amphetamine or any derivative thereof, is guilty
of a misdemeanor and, upon conviction thereof, shall be confined in
the county or regional jail for not more than six months and shall
be fined not less than one hundred dollars nor more than five
hundred dollars.
(h) Any person under the age of twenty-one years who drives a
vehicle in this state while he or she has an alcohol concentration
in his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight,
for a first offense under this subsection, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than twenty-five dollars nor more than one hundred dollars. For a
second or subsequent offense under this subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional jail for twenty-four hours, and
shall be fined not less than one hundred dollars nor more than five
hundred dollars. A person who is charged with a first offense
under the provisions of this subsection may move for a continuance
of the proceedings, from time to time, to allow the person to
participate in the vehicle alcohol test and lock program as
provided for in section three-a, article five-a of this chapter.
Upon successful completion of the program, the court shall dismiss
the charge against the person and expunge the person's record as it
relates to the alleged offense. In the event the person fails to
successfully complete the program, the court shall proceed to an
adjudication of the alleged offense. A motion for a continuance
under this subsection may not be construed as an admission or be
used as evidence.
A person arrested and charged with an offense under the
provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (i)
of this section may not also be charged with an offense under this
subsection arising out of the same transaction or occurrence.
(i) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) The person when so driving has on or within the motor
vehicle one or more other persons who are unemancipated minors who
have not reached their sixteenth birthday, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the
county or regional jail for not less than two days nor more than
twelve months, which jail term is to include actual confinement of
not less than forty-eight hours, and shall be fined not less than
two hundred dollars nor more than one thousand dollars.
(j) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the second offense
under this section, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in the county or regional jail for not
less than six months nor more than one year, and the court may, in
its discretion, impose a fine of not less than one thousand dollars
nor more than three thousand dollars.
(k) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the third or any
subsequent offense under this section, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one nor more than three
years, and the court may, in its discretion, impose a fine of not
less than three thousand dollars nor more than five thousand
dollars.
(l) For purposes of subsections (j) and (k) of this section relating to second, third and subsequent offenses, the following
types of convictions are to be regarded as convictions under this
section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e) or (f) of this section or under a prior
enactment of this section for an offense which occurred within the
ten-year period immediately preceding the date of arrest in the
current proceeding;
(2) Any conviction under a municipal ordinance of this state
or any other state or a statute of the United States or of any
other state of an offense which has the same elements as an offense
described in subsection (a), (b), (c), (d), (e), (f) or (g) of this
section, which offense occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(m) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this section
if the person has been previously arrested for or charged with a
violation of this section which is alleged to have occurred within
the applicable time period for prior offenses, notwithstanding the
fact that there has not been a final adjudication of the charges
for the alleged previous offense. In that case, the warrant or
indictment or information must set forth the date, location and
particulars of the previous offense or offenses. No person may be
convicted of a second or subsequent offense under this section
unless the conviction for the previous offense has become final.
(n) The fact that any person charged with a violation of subsection (a), (b), (c), (d) or (e) of this section, or any person
permitted to drive as described under subsection (f) or (g) of this
section, is or has been legally entitled to use alcohol, a
controlled substance or a drug does not constitute a defense
against any charge of violating subsection (a), (b), (c), (d), (e),
(f) or (g) of this section.
(o) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(p) The sentences provided herein upon conviction for a
violation of this article are mandatory and may not be subject to
suspension or probation: Provided, That the court may apply the
provisions of article eleven-a, chapter sixty-two of this code to
a person sentenced or committed to a term of one year or less for
a first offense under this section. An order for home detention by
the court pursuant to the provisions of article eleven-b of said
chapter may be used as an alternative sentence to any period of
incarceration required by this section for a first or subsequent
offense. An order for supervision or participation in a community
corrections program created pursuant to article eleven-c, chapter
sixty-two of this code may be used as an alternative sentence to
any period of incarceration required by this section. Provided,
however, That where home incarceration is ordered for a second
offense under this section, electronic monitoring shall be required
for no fewer than five days and the offender may not leave home for
those five days notwithstanding the provisions of section five, article eleven-b, chapter sixty-two of this code, or as an
alternative to any sentence authorized by this section, the
offender may be required to perform thirty days of supervised
community service in lieu of any other sentence authorized by the
provisions of this section: Provided further, That where home
incarceration is ordered for a third or subsequent violation of
this section, electronic monitoring shall be included for no fewer
than ten days and the offender may not leave home for those ten
days notwithstanding section five, article eleven-b, chapter sixty-
two of this code.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF
ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-3a. Establishment of and participation in the motor
vehicle alcohol test and lock program.
(a) The division of motor vehicles shall control and regulate
a motor vehicle alcohol test and lock program for persons whose
licenses have been revoked pursuant to this article or the
provisions of article five of this chapter, or have been convicted
under section two, article five of this chapter. Such The program
shall include the establishment of a users fee for persons
participating in the program which shall be paid in advance and
deposited into the driver's rehabilitation fund. Except where
specified otherwise, the use of the term "program" in this section
refers to the motor vehicle alcohol test and lock program. The
commissioner of the division of motor vehicles shall propose legislative rules for promulgation in accordance with the
provisions of chapter twenty-nine-a of this code for the purpose of
implementing the provisions of this section. Such The rules shall
also prescribe those requirements which, in addition to the
requirements specified by this section for eligibility to
participate in the program, the commissioner determines must be met
to obtain the commissioner's approval to operate a motor vehicle
equipped with a motor vehicle alcohol test and lock system. For
purposes of this section, a "motor vehicle alcohol test and lock
system" means a mechanical or computerized system which, in the
opinion of the commissioner, prevents the operation of a motor
vehicle when, through the system's assessment of the blood alcohol
content of the person operating or attempting to operate the
vehicle, such the person is determined to be under the influence of
alcohol.
(b) (1) Any person whose license has been is revoked for the
first time pursuant to this article or the provisions of article
five of this chapter is eligible to participate in the program when
such the person's minimum revocation period as specified by
subsection (c) of this section has expired and such the person is
enrolled in or has successfully completed the safety and treatment
program or presents proof to the commissioner within sixty days of
receiving approval to participate by the commissioner that he or
she is enrolled in a safety and treatment program. Provided, That
no person whose license has been revoked pursuant to the provisions
of section one-a of this article for conviction of an offense defined in subsections a) or (b), section two, article five of this
chapter, or pursuant to the provisions of subsections (f) or (g),
section two of this article, shall be eligible for participation in
the program: Provided, however, That any person whose license is
revoked pursuant to this article or pursuant to article five of
this chapter for an act which occurred either while participating
in or after successfully completing the program shall not again be
eligible to participate in such program
(2) Any person whose license has been suspended pursuant to
the provisions of subsection (l), section two of this article for
driving a motor vehicle while under the age of twenty-one years
with an alcohol concentration in his or her blood of two hundredths
of one percent or more, by weight, but less than ten eight
hundredths of one percent, by weight, is eligible to participate in
the program after thirty days have elapsed from the date of the
initial suspension, during which time the suspension was actually
in effect: Provided, That in the case of a person under the age of
eighteen, the person shall be is eligible to participate in the
program after thirty days have elapsed from the date of the initial
suspension, during which time the suspension was actually in effect
or after the person's eighteenth birthday, whichever is later.
Before the commissioner approves a person to operate a motor
vehicle equipped with a motor vehicle alcohol test and lock system,
the person must agree to thereafter comply with the following
conditions:
(A) If not already enrolled, the person will enroll in and complete the educational program provided for in subsection (c),
section three of this article at the earliest time that placement
in the educational program is available, unless good cause is
demonstrated to the commissioner as to why placement should be
postponed;
(B) The person will pay all costs of the educational program,
any administrative costs and all costs assessed for any suspension
hearing.
(3) Notwithstanding the provisions of this section to the
contrary, no person eligible to participate in the program under
this subsection shall may operate a motor vehicle unless approved
to do so by the commissioner.
(c) For purposes of this section, "minimum revocation period"
means the portion which has actually expired of the period of
revocation imposed by the commissioner pursuant to this article or
the provisions of article five of this chapter upon a person
eligible for participation in the program A person who participates
in the program under subdivision (1), subsection (b) of this
section is subject to a minimum revocation period and minimum
period for the use of the ignition interlock device as follows:
(1) For a person whose license has been revoked for a first
offense for six months pursuant to the provisions of section one-a
of this article for conviction of an offense defined in subsection
(d) or (f), section two, article five of this chapter or pursuant
to subsection (i), section two of this article, the minimum period
of revocation before such person is eligible for participation in the test and lock program is thirty days and the minimum period for
the use of the ignition interlock device is five months; or that
the period described in subdivision (1), subsection (e) of this
section, whichever period is greater
(2) For a person whose license has been revoked for a first
offense pursuant to section seven, article five of this chapter,
refusal to submit to a designated secondary chemical test, the
minimum period of revocation before such person is eligible for
participation in the test and lock program is thirty days and the
minimum period for the use of the ignition interlock device is nine
months; or the period set forth in subdivision (1), subsection (e)
of this section, whichever period is greater
(3) For a person whose license has been revoked for a second
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (a),
section two, article five of this chapter or pursuant to subsection
(f), section two of this article, the minimum period of revocation
before such the person is eligible for participation in the test
and lock program is nine twelve months and the minimum period for
the use of the ignition interlock device is eighteen months two
years; or that period set forth in subdivision (2), subsection (e)
of this section, whichever period is greater
(4) For a person whose license has been revoked for any other
period of time a first offense pursuant to the provisions of
section one-a of this article for conviction of an offense defined
in subsection (b), section two, article five of this chapter or pursuant to subsection (g), section two of this article, or
pursuant to section seven, article five of this chapter the minimum
period of revocation is eighteen six months and the minimum period
for the use of the ignition interlock device is two years; or that
period set forth in subdivision (3), subsection (e) of this
section, whichever period is greater
(5) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (c), section
two, article five of this chapter or pursuant to subsection (h),
section two of this article, the minimum period of revocation for
participation in the program is two months and the minimum period
for the use of the ignition interlock device is one year;
(6) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (i), section
two, article five of this chapter or pursuant to subsection (m),
section two of this article, the minimum period of revocation for
participation in the program is two months and the minimum period
for the use of the ignition interlock device is ten months;
(d) Notwithstanding any provision of the code to the contrary,
a person shall participate in the program if the person is
convicted under section two, article five of this chapter or the
person's license is revoked under section two of this article or
section seven, article five of this chapter and the person was
previously either convicted or license was revoked under any provision cited in this subsection within the past ten years. The
minimum revocation period for a person required to participate in
the program under this subsection is one year and the minimum
period for the use of the ignition interlock device is two years,
except that the minimum revocation period for a person required to
participate because of a violation of subsection (l), section two
of this article or subsection (h), section two, article five of
this chapter is two months and the minimum period of participation
is one year. The division will add one year to the minimum period
for the use of the ignition interlock device for each additional
previous conviction or revocation within the past ten years. Any
person required to participate under this subsection must have an
ignition interlock device installed on every vehicle he or she owns
or operates.
(5) (e) An applicant for the test and lock program must may
not have been convicted of any violation of section three, article
four, chapter seventeen-b of this code for driving while the
applicant's driver's license was suspended or revoked within the
two-year six-month period preceding the date of application for
admission to the test and lock program;
(6) The commissioner is hereby authorized to allow individuals
in the test and lock program an additional device or devices if
such is necessary for employment purposes.
(d) (f) Upon permitting an eligible person to participate in
the program, the commissioner shall issue to such the person, and
such the person shall be is required to exhibit on demand, a driver's license which shall reflect that such the person is
restricted to the operation of a motor vehicle which is equipped
with an approved motor vehicle alcohol test and lock system.
(g) The commissioner may extend the minimum period of
revocation and the minimum period of participation in the program
for a person who violates the terms and conditions of participation
in the program as found in this section, or legislative rule, or
any agreement or contract between the participant and the division
or program service provider.
(e) Any person who has completed the safety and treatment
program and who has not violated the terms required by the
commissioner of such person's participation in the motor vehicle
alcohol test and lock program shall be entitled to the restoration
of such person's driver's license upon the expiration of:
(1) One hundred eighty days of the full revocation period
imposed by the commissioner for a person described in subdivision
(1) or (2), subsection (c) of this section;
(2) The full revocation period imposed by the commissioner for
a person described in subdivision (3), subsection (c) of this
section;
(3) One year from the date a person described in subdivision
(4), subsection (c) of this section is permitted to operate a motor
vehicle by the commissioner.
(f) (h) A person whose license has been suspended pursuant to
the provisions of subsection (l), section two of this article who
has completed the educational program, and who has not violated the terms required by the commissioner of such the person's
participation in the motor vehicle alcohol test and lock program,
shall be is entitled to the reinstatement of his or her driver's
license six months from the date the person is permitted to operate
a motor vehicle by the commissioner. When a license has been
reinstated pursuant to this subsection, the records ordering the
suspension, records of any administrative hearing, records of any
blood alcohol test results and all other records pertaining to the
suspension shall be expunged by operation of law: Provided, That
a person shall be is entitled to expungement under the provisions
of this subsection only once. The expungement shall be
accomplished by physically marking the records to show that such
the records have been expunged and by securely sealing and filing
the records. Expungement shall have has the legal effect as if the
suspension never occurred. The records shall may not be disclosed
or made available for inspection and in response to a request for
record information, the commissioner shall reply that no
information is available. Information from the file may be used by
the commissioner for research and statistical purposes so long as
the use of such the information does not divulge the identity of
the person.
(g) (i) In addition to any other penalty imposed by this code,
any person who operates a motor vehicle not equipped with an
approved motor vehicle alcohol test and lock system during such
person's participation in the motor vehicle alcohol test and lock
program is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period not
less than one month nor more than six months and fined not less
than one hundred dollars nor more than five hundred dollars. Any
person who assists another person required by the terms of such
other person's participation in the motor vehicle alcohol test and
lock program to use a motor vehicle alcohol test and lock system in
any effort attempts to bypass the alcohol test and lock system is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional jail not more than six months
and fined not less than one hundred dollars nor more than one
thousand dollars. Provided, That notwithstanding any provision of
this code to the contrary, a person enrolled and participating in
the test and lock program may operate a motor vehicle solely at his
or her job site, if such is a condition of his or her employment.
For the purpose of this section, job site does not include any
street or highway open to the use of the public for purposes of
vehicular traffic.
The bill (Eng. Com. Sub. for H. B. No. 2444), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2471, Establishing a
financial responsibility program for inmates.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2482, Relating to including jails within
the context of certain criminal acts by incarcerated persons.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2578, Increasing the ratios
of professional and service personnel to students in net
enrollment.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Education, were reported by the Clerk, considered simultaneously,
and adopted:
On page two, section five-a, line five, after the word
"counties" by changing the comma to a period, striking out the word
"such" and inserting in lieu thereof the word "These";
On page two, section five-a, line sixteen, by striking out the
word "such" and inserting in lieu thereof the word "these";
On page four, section five-a, line forty-three, by striking
out the word "utilize" and inserting in lieu thereof the word
"use";
On page four, section five-b, line four, after the word "the"
by inserting the words "ratios of";
On page four, section five-b, line four, after the word "per"
by inserting the words "one thousand";
On page four, section five-b, lines five through seven, by
striking out the words "of the counties who are paid from state
funds through the state basic foundation program";
On page four, section five-b, line eleven, by striking out the
words "was initially" and inserting in lieu thereof the words "initially was";
On page five, section five-b, line twenty-one, by striking out
the words "have also" and inserting in lieu thereof the words "also
have";
On page five, section five-b, line thirty-two, by striking out
the words "further examine" and inserting in lieu thereof the words
"examine further";
And,
On page two, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That §18-2E-3e of the code of West Virginia, 1931, as amended,
be repealed; and that §18-9A-5a and §18-9A-5b of said code be
amended and reenacted, all to read as follows:.
The bill (Eng. Com. Sub. for H. B. No. 2578), 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.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
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.
On second reading, coming up in regular order, was read a second time.
On motion of Senator Bailey, the following amendments to the
bill were reported by the Clerk and adopted:
On page four, after section three, by adding a new section,
designated section seven, to read as follows:
§8-21-7. Office; powers.
The governing body shall furnish said board an office in the
city building where it may hold its meetings and keep its records.
Provided, That English shall be the official language of the State
of West Virginia and that the governing body, as defined in §8-1-2,
may use the English language in the preparation of all public
documents and records. Any board operating under the provisions of
this article shall have complete and exclusive control and
management of all of the properties which shall be operated in
connection with the public park and recreation system for the city,
and shall have power to employ such persons as, in its opinion, may
be necessary for the establishment, construction, improvement,
extension, development, maintenance or operation of the property
under its control, at such wages or salaries as it shall deem
proper, and shall have full control of all employees.;
And,
On page two, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That §8-21-3 and §8-21-7 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:.
The bill (Eng. H. B. No. 2782), as amended, was then ordered
to third reading.
Eng. House Bill No. 2802, Updating provisions pertaining to
commercial driver's licenses to conform with federal law.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendments
to the bill were withdrawn.
The bill (Eng. H. B. No. 2802) was then ordered to third
reading.
Eng. Com. Sub. for House Bill No. 2878, Relating to allowing
the fraud unit to investigate the forgery of insurance documents.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Banking and Insurance, were reported by the Clerk, considered
simultaneously, and adopted:
On page nineteen, section one-b, line three hundred thirty-
seven, by striking out the words "to be";
On page twenty-three, section one-b, line four hundred twenty,
after the word "unit" by striking out the comma;
On page twenty-six, section one-b, line four hundred seventy-
six, after the word "department" by inserting the word "of";
On page thirty, section eight, line twenty, by striking out the words "thirty-three; chapter";
On page thirty, section eight, line twenty, after the words
"twenty-three;" by inserting the words "chapter thirty-three;";
And,
On page thirty-two, section eight, line sixty, after the word
"The" by inserting the word "insurance".
The bill (Eng. Com. Sub. for H. B. No. 2878), as amended, was
then ordered to third reading.
Eng. House Bill No. 2885, Relating to tuberculosis testing,
control, treatment and commitment.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2891, Relating to the reorganization of
the executive branch of state government.
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:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6, §5-
1B-7 and §5-1B-8 of the Code of West Virginia, 1931, as amended, be
repealed; that said code be amended by adding thereto a new
article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4, §5A-6-5,
§5A-6-6, §5A-6-7 and §5A-6-8; that §5A-7-4 of said code be amended
and reenacted; that §5A-8-15 of said code be amended and reenacted; that §5B-1-2 of said code be amended and reenacted;
that §5B-3-4
and §5B-3-5 of said code be amended and reenacted; that §5F-2-1 and
§5F-2-2
of said code be amended and reenacted;
that §10-5-2 of said
code be amended and reenacted; that said code be amended by adding
thereto a new section, designated §10-5-5a;
that §11-10A-6 and §11-
10A-7 of said code be amended and reenacted;
that §17-16A-3 and
§17-16A-10 of said code be amended and reenacted; that §21A-1-4 of
said code be amended and reenacted;
and that §49-9-15 of said code
be amended and reenacted, all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 6. OFFICE OF TECHNOLOGY
§5A-6-1. Findings and purposes.
The Legislature finds and declares that information technology
is essential to finding practical solutions to the everyday
problems of government, and that the management goals and purposes
of government are furthered by the development of compatible,
linked information systems across government. Therefore, it is the
purpose of this article to create, as an integral part of the
Department of Administration, the Office of Technology with the
authority to advise and make recommendations to all state spending
units on their information systems.
§5A-6-2. Definitions.
As used in this article:
(a) "Information systems" means computer-based information
equipment and related services designed for the automated
transmission, storage, manipulation and retrieval of data by electronic or mechanical means;
(b) "Information technology" means data processing and
telecommunications hardware, software, services, supplies,
personnel, maintenance and training, and includes the programs and
routines used to employ and control the capabilities of data
processing hardware;
(c) "Information equipment" includes central processing units,
front-end processing units, miniprocessors, microprocessors and
related peripheral equipment, including data storage devices,
networking equipment, services, routers, document scanners, data
entry equipment, terminal controllers, data terminal equipment,
computer-based word processing systems other than memory
typewriters;
(d) "Related services" include feasibility studies, systems
design, software development and time-sharing services whether
provided by state employees or others;
(e) "Telecommunications" means any transmission, emission or
reception of signs, signals, writings, images or sounds of
intelligence of any nature by wire, radio or other electromagnetic
or optical systems. The term includes all facilities and equipment
performing those functions that are owned, leased or used by the
executive agencies of state government;
(f) "Chief Technology Officer" means the person holding the
position created in section three of this article and vested with
authority to assist state spending units in planning and
coordinating information systems that serve the effectiveness and efficiency of the individual state spending units, and further the
overall management goals and purposes of government; and
(g) "Experimental program to stimulate competitive research"
(EPSCoR) means the West Virginia component of the national EPSCoR
program which is designed to improve the competitive research and
development position of selected states through investments in
academic research laboratories and laboratory equipment. The
recognized West Virginia EPSCoR, which is part of the Office of
Technology, is the responsible organization for the coordination
and submission of proposals to all federal agencies participating
in the EPSCoR program.
§5A-6-3. Office of Technology; Chief Technology Officer;
appointment and qualifications.
The Office of Technology is created within the Department of
Administration. A Chief Technology Officer shall be appointed by
and shall serve at the will and pleasure of the Governor. The
Chief Technology Officer shall have knowledge in the field of
information technology, experience in the design and management of
information systems and an understanding of the special demands
upon government with respect to budgetary constraints, the
protection of privacy interests and federal and state standards of
accountability.
§5A-6-4. Powers and duties; professional staff.
(a) With respect to all state spending units the Chief
Technology Officer may:
(1) Develop an organized approach to information resource management for this state;
(2) Provide, with the assistance of the Information Services
and Communications Division of the Department of Administration,
technical assistance to the administrators of the various state
spending units in the design and management of information systems;
(3) Evaluate, in conjunction with the information services and
communications division, the economic justification, system design
and suitability of information equipment and related services, and
review and make recommendations on the purchase, lease or
acquisition of information equipment and contracts for related
services by the state spending units;
(4) Develop a mechanism for identifying those instances where
systems of paper forms should be replaced by direct use of
information equipment and those instances where applicable state or
federal standards of accountability demand retention of some paper
processes;
(5) Develop a mechanism for identifying those instances where
information systems should be linked and information shared, while
providing for appropriate limitations on access and the security of
information;
(6) Create new technologies to be used in government, convene
conferences and develop incentive packages to encourage the
utilization of technology;
(7) Engage in any other activities as directed by the
Governor; and
(8) Charge a fee to the state spending units for evaluations performed and technical assistance provided under the provisions of
this section. All fees collected by the Chief Technology Officer
shall be deposited in a special account in the state treasury to be
known as the "Chief Technology Officer Administration Fund".
Expenditures from the fund shall be made by the Chief Technology
Officer for the purposes set forth in this article and are not
authorized from collections but are to be made only in accordance
with appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
eleven-b of this code. Amounts collected which are found to exceed
the funds needed for purposes set forth in this article may be
transferred to other accounts or funds and redesignated for other
purposes by appropriation of the Legislature.
(b) With respect to executive agencies, the Chief Technology
Officer may:
(1) Develop a unified and integrated structure for information
systems for all executive agencies;
(2) Establish, based on need and opportunity, priorities and
time lines for addressing the information technology requirements
of the various executive agencies of state government;
(3) Exercise the authority inherent to the chief executive of
the state as the Governor may, by executive order, delegate, to
overrule and supersede decisions made by the administrators of the
various executive agencies of government with respect to the design
and management of information systems and the purchase, lease or acquisition of information equipment and contracts for related
services;
(4) Draw upon staff of other executive agencies for advice and
assistance in the formulation and implementation of administrative
and operational plans and policies; and
(5) Recommend to the Governor transfers of equipment and human
resources from any executive agency and the most effective and
efficient uses of the fiscal resources of executive agencies, to
consolidate or centralize information-processing operations.
(c) The Chief Technology Officer may employ the personnel
necessary to carry out the work of the Office of Technology and may
approve reimbursement of costs incurred by employees to obtain
education and training.
§5A-6-5. Notice of request for proposals by state spending units
required to make purchases through the State Purchasing
Division.
Any state spending unit that is required to submit a request
for proposal to the State Purchasing Division prior to purchasing
goods or services shall notify the Chief Technology Officer, in
writing, of any proposed purchase of goods or services related to
its information and telecommunication systems. The notice shall
contain a brief description of the goods and services to be
purchased. The state spending unit shall provide the notice to the
Chief Technology Officer at the same time it submits its request
for proposal to the State Purchasing Division.
§5A-6-6. Notice of request for proposals by state spending units exempted from submitting purchases to the State
Purchasing Division.
(a) Any state spending unit that is not required to submit a
request for proposal to the State Purchasing Division prior to
purchasing goods or services shall notify the Chief Technology
Officer, in writing, of any proposed purchase of goods or services
related to its information or telecommunication systems. The notice
shall contain a detailed description of the goods and services to
be purchased. The state spending unit shall provide the notice to
the Chief Technology Officer a minimum of ten days prior to the
time it requests bids on the provision of the goods or services.
(b) If the Chief Technology Officer evaluates the suitability
of the information and telecommunication equipment and related
services under the provisions of subdivision (3), subsection (a),
section four of this article and determines that the goods or
services to be purchased are not suitable, he or she shall, within
ten days of receiving the notice from the state spending unit,
notify the state spending unit, in writing, of any recommendations
he or she has regarding the proposed purchase of the goods or
services. If the state spending unit receives a written notice from
the Chief Technology Officer within the time period required by
this section, the state spending unit shall not put the goods or
services out for bid less than fifteen days following receipt of
the notice from the Chief Technology Officer.
§5A-6-7. Biannual report.
The Chief Technology Officer shall report biannually to the Legislative Joint Committee on Government and Finance on the
activities of his or her office.
§5A-6-8. Exemptions.
The provisions of this article do not apply to the Legislature
or the Judiciary.
ARTICLE 7. INFORMATION SERVICES AND COMMUNICATIONS DIVISION.
§5A-7-4. Powers and duties of division generally; professional
staff; telephone service.
(a) The Division is responsible for providing technical
services and assistance to the various state spending units with
respect to developing and improving data processing and
telecommunications functions. The Division may provide training
and direct data processing services to the various state agencies.
The Division shall, upon request of the Chief Technology Officer,
within the office of the governor provide technical assistance in
evaluating the economic justification, system design and
suitability of equipment and systems used in state government. The
Director shall report to the Chief Technology Officer secretary.
(b) The Director is responsible for the development of
personnel to carry out the technical work of the Division and may
approve reimbursement of costs incurred by employees to obtain
education and training.
(c) The Director may assess each state spending unit for the
cost of any evaluation of the economic justification, system design
and suitability of equipment and systems used by the state spending
unit or any other technical assistance that is provided or performed by the Chief Technology Officer and the Division under
the provisions of section four, article one-b six of this chapter.
(d) The Director shall transfer any moneys received as a
result of the assessments that he or she makes under subsection(c)
of this section to the Office of chief Technology officer. The
Director shall report quarterly to the Joint Committee on
Government and Finance on all assessments made pursuant to
subsection (c) of this section.
(e) The Director shall maintain an accounting system for all
telephone service to the state.
(f) The provisions of this article do not apply to the
Legislature or the Judiciary.
ARTICLE 8. PUBLIC RECORDS MANAGEMENT AND PRESERVATION ACT.
§5A-8-15. Records management and preservation of county records;
alternate storage of county records; Records Management and
Preservation Board; qualifications and appointment of members;
reimbursement of expenses; staffing; rule-making authority;
study of records management needs of state agencies; grants to
counties.
The Legislature finds that the use of electronic technology
and other procedures to manage and preserve public records by
counties should be uniform throughout the state where possible.
(a) The governing body and the chief elected official of any
unit of each a county, hereinafter referred to as a county
government entity, whether organized and existing under a charter
or under general law, shall promote the principles of efficient records management and preservation of local records. Such A county
governing entity may, as far as practical, follow the program
established for the uniform management and preservation of county
records as set out in a rule or rules proposed for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code as proposed by the Records
Management and Preservation Board established herein.
(b) In the event any such governing body or the chief elected
official of a unit of a county government entity decides to destroy
or otherwise dispose of a county record, the governing body or such
chief elected official county government entity may, prior to
destruction or disposal thereof, offer the record to the Director
of the Section of Archives and History of the Division of Culture
and History for preservation of the record as a document of
historical value. Unless authorized by the Supreme Court of
Appeals, the records of courts of record and magistrate courts are
not affected by the provisions of this section.
(c)(1) A preservation duplicate of a county government entity
record may be stored in any format, approved by the Board as
hereinafter established, where in which the image of the original
record is preserved in a form, including CD-ROM and optical image
storage media, in which the image thereof is incapable of erasure
or alteration and from which a reproduction of the stored record
may be retrieved which that truly and accurately depicts the image
of the original county government record.
(2) Except for those formats, processes and systems used for the storage of records on the effective date of this section, no
alternate format for the storage of county government entity
records described in this section is authorized for the storage of
county government entity records unless the particular format has
been approved pursuant to a legislative rule promulgated by the
Board as herein created in accordance with the provisions of
chapter twenty-nine-a of this code. The Board as herein established
may prohibit the use of any format, process or system used for the
storage of records upon its determination that the same is not
reasonably adequate to preserve the records from destruction,
alteration or decay.
(3) Upon creation of a preservation duplicate which that
stores an original county government entity record in an approved
format in which the image thereof that is incapable of erasure or
alteration and from which a reproduction of the stored record that
may be retrieved which in a format that truly and accurately
depicts the image of the original record, the county government
entity may destroy or otherwise dispose of the original in
accordance with the provisions of section seven-c, article one,
chapter fifty-seven of this code.
(d) There is hereby created A Records Management and
Preservation Board for county government entities, is continued to
be composed of nine members.
(1) Three members shall serve ex officio. One member shall be
the Commissioner of the Division of Culture and History or designee
who shall be the chairman chair of the Board. One member shall be the Administrator of the Supreme Court of Appeals or designee. One
member shall be the administrator of the governor's office of Chief
Technology Officer or his or her designee.
(2) The Governor shall appoint six eight members of the Board
with the advice and consent of the Senate. Not more than five
appointments to the Board may be from the same political party and
not more than three members may be appointed from the same
congressional district. Of the six eight members appointed by the
Governor:
(i) Three Five appointments shall be county elected officials,
one of whom shall be a clerk of the a county commission, one of
whom shall be a circuit court clerk and, one of whom shall be a
county commissioner, one of whom shall be a county sheriff, and one
of whom shall be a county assessor, to be selected from a list of
nine fifteen names., including the names of three The names of
three clerks of county commissions and three circuit court clerks
shall be submitted to the Governor by the West Virginia Association
of Counties. and the The names of three county commissioners shall
be submitted to the Governor jointly by the West Virginia
Association of Counties and the West Virginia County Commissioners
Association. The names of three county sheriffs shall be submitted
to the Governor by the West Virginia Sheriff's Association. And
the names of three county assessors shall be submitted to the
Governor by the Association of West Virginia Assessors;
(ii) One appointment shall be a county prosecuting attorney to
be selected from a list of three names submitted by the West Virginia Prosecuting Attorneys Institute;
(iii) One appointment shall be an attorney licensed in West
Virginia and in good standing as a member of the West Virginia
State Bar with experience in real estate and mineral title
examination, to be selected from a list of three names submitted by
the State Bar; and
(iv) One appointment shall be a representative of a local
historical or genealogical society.
(e) The members of the Board shall serve without compensation
but shall be reimbursed for all reasonable and necessary expenses
actually incurred in the performance of their duties as members of
the Board
in a manner consistent with the guidelines of the Travel
Management Office of the Department of Administration
. In the event
the expenses are paid, or are to be paid, by a third party, the
member shall not be reimbursed by the state.
(f) The staff of the Board shall consist of the Director of
the Archives and History Section of the Division of Culture and
History and such any additional staff as he or she may designate to
assist him or her as needed.
(g) On or before the first day of July, two thousand one, the
The Board shall propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code, to establish a system of records management
and preservation for county governments: Provided, That, for the
retention and disposition of records of courts of record and
magistrate courts, the implementation of the rule is subject to action of by the West Virginia Supreme Court of Appeals of West
Virginia. The proposed rule or rules shall include provisions for
establishing a program of grants to county governments for making
records management and preservation uniform throughout the state.
The Board is not authorized to propose or promulgate emergency
rules under the provisions of this section.
(h) On or before the first day of April, two thousand two, the
Board, in cooperation with the administrator and state executive
agencies under the general authority of the Governor, shall conduct
a study of the records management and preservation needs of state
executive agencies. Should the Board determine a need for a uniform
records management and preservation system for such agencies, it
shall recommend that the administrator propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code to provide for the
implementation of a uniform records management and preservation
system for state executive agencies.
(i) In addition to the fees charged by the clerk of the county
commission under the provisions of section ten, article one,
chapter fifty-nine of this code, the clerk shall charge and collect
an additional one-dollar fee for every document containing less
than ten pages filed for recording and an additional one-dollar fee
for each additional ten pages of such document filed for recording.
At the end of each month, the clerk of the county commission shall
deposit into the special Public Records and Preservation Account as
herein established in the State Treasury all fees collected: Provided, That the clerk may retain not more than ten percent of
such the fees for costs associated with the collection of the fees.
Clerks shall be responsible for accounting for the collection and
deposit in the State Treasury of all fees collected by such the
clerk under the provisions of this section.
(i) There is hereby created in the State Treasury a special
account entitled the "Public Records and Preservation Revenue
Account". The account shall consist of all fees collected under the
provisions of this section, legislative appropriations, interest
earned from fees, investments, gifts, grants or contributions
received by the Board. Expenditures from the account shall be for
the purposes set forth in this article and are not authorized from
collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
five-a eleven-b of this code: Provided, That for the fiscal year
ending the thirtieth day of June, two thousand one, expenditures
are authorized from collections rather than pursuant to an
appropriation by the Legislature.
(j) Subject to the above provision, the Board may expend the
funds in the account to implement the provisions of this article.
In expending funds from the account, the Board shall allocate not
more than fifty percent of such the funds for grants to counties
for records management, access and preservation purposes. The Board
shall provide for applications, set guidelines and establish procedures for distributing grants to counties including a process
for appealing an adverse decision on a grant application.
Expenditures from the account shall be for the purposes set forth
in this section, including the cost of additional staff of the
Division of Archives and History.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 1. DEPARTMENT OF COMMERCE.
§5B-1-2. Agencies, boards, commissions, divisions and offices
comprising the Department of Commerce.
The Department of Commerce consists of the following agencies,
boards, commissions, divisions and offices, including all of the
allied, advisory, affiliated or related entities, which are
incorporated in and shall be administered as part of the Department
of Commerce:
(1) Division of Labor provided in article one, chapter twenty-
one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided
in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety
provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in
article one, chapter twenty-two-a of this code. The following
boards are transferred to the Office of Miners' Health, Safety and
Training for purposes of administrative support and liaison with
the Office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety and Technical Review Committee provided in article six, chapter
twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification
provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine,
chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the
Division of Tourism and the Tourism Commission, provided in article
two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources
Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter
nineteen of this code; and
(6) Geological and Economic Survey provided in article two,
chapter twenty-nine of this code; and
(7) The Bureau of Employment Programs provided in chapter
twenty-one-a of this code.
ARTICLE 3. WEST VIRGINIA ECONOMIC DEVELOPMENT STRATEGY: A VISION
SHARED.
§5B-3-4. Commission review of procedural rules, interpretive rules
and existing legislative rules.
(a) The Joint Commission on Economic Development may review
any procedural rule, interpretive rule or existing legislative rule
and make recommendations concerning the rules to the Legislature.
(b) The Development Office and the Tourism Commission
established pursuant to article two of this chapter, the Economic Development Authority established pursuant to article fifteen,
chapter thirty-one of this code, the Bureau of Employment Programs
established pursuant to article four, chapter twenty-one-a of this
code, the Workers' Compensation Commission established pursuant to
article one, chapter twenty-three of this code, the Workforce
Investment Commission established pursuant to article two-c of this
chapter, West Virginia Jobs Investment Trust, regional planning and
development councils, West Virginia Rural Development Council,
governor's Office of Technology and West Virginia Clearinghouse for
Workforce Education shall each file a copy of its legislative rules
with the commission as provided for in this section. Each agency
that proposes legislative rules in accordance to the provisions of
article three, three-a or three-b, chapter twenty-nine-a of this
code relating to economic development or workforce development
shall file the rules with the Joint Commission at the time the
rules are filed with the Secretary of State prior to the public
comment period or public hearing required in said chapter.
§5B-3-5. Joint Commission on Economic Development Studies.
(a) The Joint Commission on Economic Development shall study
the following:
(1) The feasibility of establishing common regional
configurations for such purposes as local workforce investment
areas, regional educational service agencies and for all other
purposes the commission considers feasible. The study should
review the existing levels of cooperation between state and local
economic developers, complete an analysis of possible regional configurations and outline examples of other successful regional
systems or networks found throughout the world. If the study
determines that the common regional configurations are feasible,
the Commission shall recommend legislation establishing common
regional designations for all feasible purposes the commission
considers feasible. In making the designation of regional areas,
the study shall take into consideration, but not be limited to, the
following:
(A) Geographic areas served by local educational agencies and
intermediate educational agencies;
(B) Geographic areas served by post-secondary educational
institutions and area vocational education schools;
(C) The extent to which the local areas are consistent with
labor market areas;
(D) The distance that individuals will need to travel to
receive services provided in the local areas; and
(E) The resources of the local areas that are available to
effectively administer the activities or programs;
(2) The effectiveness and fiscal impact of incentives for
attracting and growing businesses, especially technology-intensive
companies; and
(3) A comprehensive review of West Virginia's existing
economic and community development resources and the recommendation
of an organizational structure, including, but not limited to, the
reorganization of the Bureau Department of Commerce and the
Development Office that would allow the state to successfully compete in the new global economy.
(b) In order to effectuate in the most cost-effective and
efficient manner the studies required in this article, it is
necessary for the Joint Commission to assemble and compile a
tremendous amount of information. The Development Office will
assist the Joint Commission in the collection and analysis of this
information. The Tourism Commission established pursuant to article
two of this chapter, the Economic Development Authority established
pursuant to article fifteen, chapter thirty-one of this code, the
Bureau of Employment Programs established pursuant to article four,
chapter twenty-one-a of this code, the Workers' Compensation
Commission established pursuant to article one, chapter twenty-
three of this code, the Workforce Investment Commission established
pursuant to article two-c of this chapter, West Virginia Jobs
Investment Trust, regional planning and development councils, West
Virginia Rural Development Council, governor's Office of Technology
and West Virginia Clearinghouse for Workforce Education all shall
provide a copy of the agency's their annual report reports as
submitted to the Governor in accordance with the requirements set
forth in section twenty, article one, chapter five of this code to
the West Virginia Development Office. The Development Office shall
review, analyze and summarize the data contained in the reports,
including its own annual report, and annually submit its findings
to the Joint Commission on or before the thirty-first day of
December.
(c) The Legislative Auditor shall provide to the Joint Commission a copy of any and all reports on agencies listed in
subsection (b) of this section, which are required under article
ten, chapter four of this code.
(d) The Joint Commission shall complete the studies set forth
in this section and any other studies the Joint Commission
determines to undertake prior to the first day of December of each
year and may make recommendations, including recommended
legislation for introduction during the regular session of the
Legislature.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the Department of
Administration:
(1) Building Commission provided in article six, chapter five
of this code;
(2) Public Employees Insurance Agency and Public Employees
Insurance Agency Advisory Board provided in article sixteen,
chapter five of this code;
(3) Governor's Mansion Advisory Committee provided for in
article five, chapter five-a of this code;
(4) Commission on Uniform State Laws provided in article one-a, chapter twenty-nine of this code;
(5) Education and State Employees Grievance Board provided for
in article twenty-nine, chapter eighteen of this code and article
six-a, chapter twenty-nine of this code;
(6) Board of Risk and Insurance Management provided for in
article twelve, chapter twenty-nine of this code;
(7) Boundary Commission provided in article twenty-three,
chapter twenty-nine of this code;
(8) Public Defender Services provided in article twenty-one,
chapter twenty-nine of this code;
(9) Division of Personnel provided in article six, chapter
twenty-nine of this code;
(10) The West Virginia Ethics Commission provided in article
two, chapter six-b of this code; and
(11) Consolidated Public Retirement Board provided in article
ten-d, chapter five of this code.
(b) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the Department of
Commerce:
(1)Division of Labor provided in article one, chapter twenty-
one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided
in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in
article one, chapter twenty-two-a of this code. The following
boards are transferred to the Office of Miners' Health, Safety and
Training for purposes of administrative support and liaison with
the Office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety
and Technical Review Committee provided in article six, chapter
twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification
provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine,
chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the
Division of Tourism and the Tourism Commission provided in article
two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources
Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter
nineteen of this code; and
(6) Geological and Economic Survey provided in article two,
chapter twenty-nine of this code; and
(7) The Bureau of Employment Programs provided in chapter
twenty-one-a of this code.
(c) The Economic Development Authority provided for in article
fifteen, chapter thirty-one of this code is continued as an independent agency within the executive branch.
(d) The Water Development Authority and Board provided in
article one, chapter twenty-two-c of this code is continued as an
independent agency within the executive branch.
(e) Bureau of employment programs provided in article one,
chapter twenty-one-a of this code is continued as an independent
agency within the executive branch.
(f)
(g)
Bureau of Environment is abolished and the The
following agencies and boards, including all of the allied,
advisory, and affiliated or related entities and funds associated
with any agency or board, are transferred to incorporated in and
administered as part of the Department of Environmental Protection
for purposes of administrative support and liaison with the Office
of the Governor:
(1) Air Quality Board provided in article two, chapter twenty-
two-b of this code;
(2) Solid Waste Management Board provided in article three,
chapter twenty-two-c of this code;
(3) Environmental Quality Board, or its successor board,
provided in article three, chapter twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter
twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in article seven, chapter twenty-two-c of this code;
(6) Shallow Gas Well Review Board provided in article eight,
chapter twenty-two-c of this code; and
(7) Oil and Gas Conservation Commission provided in article
nine, chapter twenty-two-c of this code.
(h)
transferred to and
incorporated in and administered as a part of the Department of
Education and the Arts:
(1) Library Commission provided in article one, chapter ten of
this code;
(2) Educational Broadcasting Authority provided in article
five, chapter ten of this code;
(3) Division of Culture and History provided in article one,
chapter twenty-nine of this code;
(4) Division of Rehabilitation Services provided in section
two, article ten-a, chapter eighteen of this code.
(i)
transferred to and
incorporated in and administered as a part of the Department of
Health and Human Resources:
(1) Human Rights Commission provided for in article eleven,
chapter five of this code;
(2) Division of Human Services provided for in article two, chapter nine of this code;
(3) Bureau for Public Health provided for in article one,
chapter sixteen of this code;
(4) Office of Emergency Medical Services and Advisory Council
thereto provided for in article four-c, chapter sixteen of this
code;
(5) Health Care Authority provided for in article twenty-nine-
b, chapter sixteen of this code;
(6) Commission on Mental Retardation provided for in article
fifteen, chapter twenty-nine of this code;
(7) Women's Commission provided for in article twenty, chapter
twenty-nine of this code; and
(8) The Child Support Enforcement Division provided for in
chapter forty-eight of this code.
(j)
transferred to and
incorporated in and administered as a part of the Department of
Military Affairs and Public Safety:
(1) Adjutant General's Department provided for in article one-
a, chapter fifteen of this code;
(2) Armory Board provided for in article six, chapter fifteen
of this code;
(3) Military Awards Board provided for in article one-g,
chapter fifteen of this code;
(4) West Virginia State Police provided for in article two, chapter fifteen of this code;
(5) Office of Emergency Services Division of Homeland Security
and Emergency Management and Disaster Recovery Board provided for
in article five, chapter fifteen of this code and Emergency
Response Commission provided for in article five-a of said chapter;
(6) Sheriffs' Bureau provided for in article eight, chapter
fifteen of this code;
(7) Division of Corrections provided for in chapter twenty-
five of this code;
(8) Fire Commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional Jail and Correctional Facility Authority provided
for in article twenty, chapter thirty-one of this code;
(10) Board of Probation and Parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of Veterans' Affairs and Veterans' Council
provided for in article one, chapter nine-a of this code.
(k)
transferred to and
incorporated in and administered as a part of the Department of
Revenue:
(1) Tax Division provided for in article one, chapter eleven
of this code;
(2) Racing Commission provided for in article twenty-three,
chapter nineteen of this code;
(3) Lottery Commission and position of Lottery Director
provided for in article twenty-two, chapter twenty-nine of this
code;
(4) Agency of Insurance Commissioner provided for in article
two, chapter thirty-three of this code;
(5) Office of Alcohol Beverage Control Commissioner provided
for in article sixteen, chapter eleven of this code and article
two, chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided for
in article three, chapter thirty-one-a of this code;
(7) Lending and Credit Rate Board provided for in chapter
forty-seven-a of this code;
(8) Division of Banking provided for in article two, chapter
thirty-one-a of this code;
(9) The State Budget Office, formerly known as the Budget
Section of the Finance Division, Department of Administration,
previously provided for in article two, chapter five-a of this code
and now provided for in article two of this chapter;
(10) The Municipal Bond Commission provided for in article
three, chapter thirteen of this code;
(11) The Office of Tax Appeals provided for in article ten-a,
chapter eleven of this code; and
(12) The State Athletic Commission provided for in article
five-a, chapter twenty-nine of this code.
(l)
transferred to and
incorporated in and administered as a part of the Department of
Transportation:
(1) Division of Highways provided for in article two-a,
chapter seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority
provided for in article sixteen-a, chapter seventeen of this code;
(3) Division of Motor Vehicles provided for in article two,
chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided for in article
two, chapter seventeen-b of this code;
(5) Aeronautics Commission provided for in article two-a,
chapter twenty-nine of this code;
(6) State Rail Authority provided for in article eighteen,
chapter twenty-nine of this code; and
(7) Port Authority provided for in article sixteen-b, chapter
seventeen of this code.
(
m)
existence of the position of
administrator and of the agency and the powers, authority and
duties of each administrator and agency are not affected by the
enactment of this chapter.
(n)
and All boards which that are appellate bodies or were
otherwise established to be are independent decision makers will
shall not have their appellate or independent decision-making
status affected by the enactment of this chapter.
(o)
created in section two, article one of
this chapter by prior enactment of this section in chapter three,
acts of the Legislature, first extraordinary session, one thousand
nine hundred eighty-nine, and subsequent amendments means a
division of the appropriate department. Wherever reference is made
to any department transferred to and incorporated in a department
created in section two, article one of this chapter, the reference
means a division of the appropriate department and any reference to
a division of a department so transferred and incorporated means a
section of the appropriate division of the department.
(p)
§5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the
contrary, the secretary of each department shall have plenary power
and authority within and for the department to:
(1) Employ and discharge within the office of the secretary
such employees as may be necessary to carry out the functions of
the secretary, which employees shall serve at the will and pleasure
of the secretary;
(2) Cause the various agencies and boards to be operated
effectively, efficiently and economically, and develop goals,
objectives, policies and plans that are necessary or desirable for
the effective, efficient and economical operation of the
department;
(3) Eliminate or consolidate positions, other than positions
of administrators or positions of board members, and name a person
to fill more than one position;
(4) Delegate, assign, transfer or combine responsibilities or
duties to or among employees, other than administrators or board
members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the
Governor, and transfer within the department funds appropriated to
the various agencies of the department which are not expended due
to cost savings resulting from the implementation of the provisions
of this chapter: Provided, That no more than twenty-five percent
of the funds appropriated to any one agency or board may be transferred to other agencies or boards within the department:
Provided, however, That no funds may be transferred from a special
revenue account, dedicated account, capital expenditure account or
any other account or funds specifically exempted by the Legislature
from transfer, except that the use of appropriations from the State
Road Fund transferred to the Office of the Secretary of the
Department of Transportation is not a use other than the purpose
for which such the funds were dedicated and is permitted: Provided
further, That if the Legislature by subsequent enactment
consolidates agencies, boards or functions, the secretary may
transfer the funds formerly appropriated to such the agency, board
or function in order to implement such consolidation. The
authority to transfer funds under this section shall expire on the
thirtieth day of June, two thousand six five;
(7) Enter into contracts or agreements requiring the
expenditure of public funds, and authorize the expenditure or
obligating obligation of public funds as authorized by law:
Provided, That the powers granted to the secretary to enter into
contracts or agreements and to make expenditures or obligations of
public funds under this provision shall not exceed or be
interpreted as authority to exceed the powers heretofore granted by
the Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department
under this chapter;
(8) Acquire by lease or purchase property of whatever kind or character and convey or dispose of any property of whatever kind or
character as authorized by law: Provided, That the powers granted
to the secretary to lease, purchase, convey or dispose of such
property shall not exceed or be interpreted as authority to exceed
the powers heretofore granted by the Legislature to the various
commissioners, directors or board members of the various
departments, agencies or boards that comprise and are incorporated
into each secretary's department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one,
chapter twenty-nine-a of this code, to implement and make effective
the powers, authority and duties granted and imposed by the
provisions of this chapter, such promulgation to be in accordance
with the provisions of chapter twenty-nine-a of this code;
(12) Grant or withhold written consent to the proposal of any
rule, as defined in section two, article one, chapter twenty-nine-a
of this code, by any administrator, agency or board within the
department,. Without which written consent, no proposal of for a
rule shall have any force or effect;
(13) Delegate to administrators such the duties of the
secretary as the secretary may deem appropriate from time to time
to facilitate execution of the powers, authority and duties
delegated to the secretary; and
(14) Take any other action involving or relating to internal
management not otherwise prohibited by law.
(b) The secretaries of the departments hereby created shall
engage in a comprehensive review of the practices, policies and
operations of the agencies and boards within their departments to
determine the feasibility of cost reductions and increased
efficiency which may be achieved therein, including, but not
limited to, the following:
(1) The elimination, reduction and restrictions in the use
restriction of the state's vehicle or other transportation fleet;
(2) The elimination, reduction and restrictions in the
preparation restriction of state government publications, including
annual reports, informational materials and promotional materials;
(3) The termination or rectification of terms contained in
lease agreements between the state and private sector for offices,
equipment and services;
(4) The adoption of appropriate systems for accounting,
including consideration of an accrual basis financial accounting
and reporting system;
(5) The adoption of revised procurement practices to
facilitate cost-effective purchasing procedures, including
consideration of means by which domestic businesses may be assisted
to compete for state government purchases; and
(6) The computerization of the functions of the state agencies
and boards.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, none of the powers granted to the secretaries
herein shall be exercised by the secretary if to do so would violate or be inconsistent with the provisions of any federal law
or regulation, any federal-state program or federally delegated
program or jeopardize the approval, existence or funding of any
such program and the powers granted to the secretary shall be so
construed.
(d) The layoff and recall rights of employees within the
classified service of the state as provided in subsections five and
six, section ten, article six, chapter twenty-nine of this code
shall be limited to the organizational unit within the agency or
board and within the occupational group established by the
classification and compensation plan for the classified service of
the agency or board in which the employee was employed prior to the
agency or board's transfer or incorporation into the department:
Provided, That the employee shall possess the qualifications
established for the job class. The duration of recall rights
provided in this subsection shall be limited to two years or the
length of tenure, whichever is less. Except as provided in this
subsection, nothing contained in this section shall be construed to
abridge the rights of employees within the classified service of
the state as provided in sections ten and ten-a, article six,
chapter twenty-nine of this code, or the right of classified
employees of the Board of Regents to the procedures and protections
set forth in article twenty-six-b, chapter eighteen of this code.
(e) Notwithstanding any other provision of this code to the
contrary, the secretary of each department with authority over
programs which are payors for prescription drugs, including but not limited to, the Public Employees Insurance Agency, the Children's
Health Insurance Program, the Division of Corrections, the Division
of Juvenile Services, the Regional Jail and Correctional Facility
Authority, the Workers' Compensation Fund, state colleges and
universities, public hospitals, state or local institutions
including nursing homes and veteran's homes, the Division of
Rehabilitation, public health departments, the Bureau of Medical
Services and other programs that are payors for prescription drugs,
shall cooperate with the Office of the Pharmaceutical Advocate
established pursuant to section four, article sixteen-d, chapter
five of this code for the purpose of purchasing prescription drugs
for any program over which they have authority.
CHAPTER 10. PUBLIC LIBRARIES; PUBLIC RECREATION; ATHLETIC
ESTABLISHMENTS; MONUMENTS AND MEMORIALS; ROSTER OF
SERVICEMEN; EDUCATIONAL BROADCASTING AUTHORITY.
ARTICLE 5. EDUCATIONAL BROADCASTING AUTHORITY.
§10-5-2. West Virginia Educational Broadcasting Authority;
members; organization; officers; employees;
meetings; expenses.
(a) The West Virginia Educational Broadcasting Authority,
heretofore created, is hereby continued as a public benefit
corporation. It The Authority shall consist of eleven voting
members, who shall be residents of the state, of whom one shall be
including the Governor or designee, the State Superintendent of
Schools, one shall be a member of the West Virginia Board of
Education to be selected by it annually, and one shall be a member of the university of West Virginia board of trustees West Virginia
Higher Education Policy Commission to be selected by it annually.
and one shall be a member of the board of directors of the state
college system to be selected by it annually The other seven
members shall be appointed by the Governor by and with the advice
and consent of the Senate for overlapping terms of seven years, one
term expiring each year. except that the appointment to fill the
membership position for the term expiring in the year one thousand
nine hundred eighty-three, shall be for a term of six years Not
less than one appointive member shall come from each congressional
district. Employees of noncommercial broadcasting stations in West
Virginia are not eligible for appointment to the Authority. The
present members of the authority shall continue to serve out the
terms to which they were appointed. Any vacancy among the
appointive members shall be filled by the Governor by appointment
for the unexpired term.
The chairperson and vice chairperson of the authority as of
the effective date of this section shall continue in their
respective offices until their successors are elected. Thereafter,
at its annual meeting in each year the authority shall elect one of
its members as chairperson and one as vice chairperson. The
authority is authorized to select an executive director and such
other personnel as may be necessary to perform its duties and to
fix the compensation of such personnel to be paid out of moneys
appropriated for this purpose. The executive director shall keep
a record of the proceedings of the authority and shall perform such other duties as it may prescribe.
(b) The Governor or designee serves as chair. The Authority
shall annually select one of its public members as vice chair and
shall appoint a secretary who need not be a member of the Authority
and who shall keep records of its proceedings.
(c) The Governor appoints an Executive Director of the
Authority with the advice and consent of the Senate. The Executive
Director serves at the Governor's will and pleasure. The Executive
Director is responsible for managing and administering the daily
functions of the Authority and for performing all other functions
necessary to the effective operation of the Authority. The
compensation of the Executive Director is annually fixed by the
Governor. The Authority is authorized to establish such office or
offices as may be necessary for the proper performance of its
duties.
(d) The Authority shall hold an at least one annual meeting.
and may meet at such other times and places as may be necessary,
such meetings to be held The time and place of the meetings shall
be established upon its own resolution or at the call of the
chairperson of the Authority. The members shall serve without
compensation but may be reimbursed for actual expenses incident to
the performance of their duties upon presentation to the
chairperson of an itemized sworn statement thereof
all reasonable
and necessary expenses actually incurred in the performance of
their duties in a manner consistent with the guidelines of the
Travel Management Office of the Department of Administration.
§10-5-5a. Advisory Committee on Journalistic and Editorial
Integrity.
(a) The Authority shall appoint an Advisory Committee on
Journalistic and Editorial Integrity, which shall consist of five
qualified members to serve staggered terms of three years. The
Advisory Committee shall annually elect a chair, vice chair and
secretary.
(b) The Advisory Committee shall advise the Authority on
issues related to the journalistic independence and editorial
integrity of public education and public broadcasting stations,
which have the same constitutional protections as other
journalistic enterprises in West Virginia.
CHAPTER 11. TAXATION.
ARTICLE 10A. WEST VIRGINIA OFFICE OF TAX APPEALS.
§11-10A-6. Chief Administrative Law Judge; appointment, term and
vacancy; qualifications; compensation; conflicts of
interest prohibited; removal.
(a) The Governor, with the advice and consent of the Senate,
shall appoint the Chief Administrative Law Judge from a list of
three qualified nominees submitted to the Governor by the Board of
Governors of the West Virginia State Bar for a six four-year term.
An appointment to fill a vacancy in the position shall be for the
unexpired term.
(b) Prior to appointment, the Chief Administrative Law Judge
shall be a citizen of the United States and a resident of this
state who is admitted to the practice of law in this state and who has five years of full-time or equivalent part-time experience as
an attorney with federal or state tax law expertise or as a judge
of a court of record.
(c) The salary of the Chief Administrative Law Judge shall be
set by the Secretary of the Department of Tax and Revenue created
in section two, article one, chapter five-f of this code. The
salary shall be within the salary range for comparable chief
administrative law judges as determined by the State Personnel
Board created by section six, article six, chapter twenty-nine of
this code.
(d) The Chief Administrative Law Judge, during his or her term
shall:
(1) Devote his or her full time to the duties of the position;
(2) Not otherwise engage in the active practice of law or be
associated with any group or entity which is itself engaged in the
active practice of law: Provided, That nothing in this paragraph
may be construed to prohibit the Chief Administrative Law Judge
from being a member of a national, state or local bar association
or committee, or of any other similar type group or organization,
or to prohibit the Chief Administrative Law Judge from engaging in
the practice of law by representing himself, herself or his or her
immediate family in their personal affairs in matters not subject
to this article.
(3) Not engage directly or indirectly in any activity,
occupation or business interfering or inconsistent with his or her
duties as Chief Administrative Law Judge;
(4) Not hold any other appointed public office or any elected
public office or any other position of public trust; and
(5) Not be a candidate for any elected public office, or serve
on or under any committee of any political party.
(e) The Governor may remove the Chief Administrative Law Judge
only for incompetence, neglect of duty, official misconduct or
violation of subsection (d) of this section, and removal shall be
in the same manner as that specified for removal of elected state
officials in section six, article six, chapter six of this code.
§11-10A-7. Powers and duties of Chief Administrative Law Judge; all
employees, except Chief Administrative Law Judge,
members of classified service; qualifications of
administrative law judges.
(a) The Chief Administrative Law Judge is the chief executive
officer of the Office of Tax Appeals and he or she may employ up to
two administrative law judges, no more than one person to serve as
executive director, no more than one staff attorney and other
clerical personnel as necessary for the proper administration of
this article. The Chief Administrative Law Judge may delegate
administrative duties to other employees, but the Chief
Administrative Law Judge shall be responsible for all official
delegated acts.
(1) Upon the request of the Chief Administrative Law Judge,
the Governor may appoint up to two administrative law judges as
necessary for the proper administration of this article.
(1)(2) All employees of the Office of Tax Appeals, except the Chief Administrative Law Judge, shall be in the classified service
and shall be governed by the provisions of the statutes, rules and
policies of the classified service in accordance with the
provisions of article six, chapter twenty-nine of this code.
(2)(3) Prior to employment by the Office of Tax Appeals, all
administrative law judges shall be admitted to the practice of law
in this state and have at least two years of full-time or
equivalent part-time experience as an attorney with federal or
state tax law expertise.
(3)(4) The Chief Administrative Law Judge and all
administrative law judges shall be members of the public employees
retirement system and do not qualify as participants in the
judicial retirement system during their tenure with the Office of
Tax Appeals.
(4) Notwithstanding any provisions of this code to the
contrary, the Chief Administrative Law Judge shall employ any
person not a temporary or probationary employee employed full-time
and in good standing by the Tax Division in its hearings office
applying for a position with the Office of Tax Appeals. A former
Tax Division employee employed by the Office of Tax Appeals under
the provisions of this subdivision shall retain his or her
classified service classification, salary and benefits: Provided,
That if an employee is currently classified as a chief
administrative law judge, he or she may not retain that
classification and must be reclassified as determined by the
Secretary of the Department of tax and Revenue.
(b) The Chief Administrative Law Judge shall:
(1) Direct and supervise the work of the legal staff;
(2) Make hearing assignments;
(3) Maintain the records of the Office of Tax Appeals;
(4) Review and approve decisions of administrative law judges
as to legal accuracy, clarity and other requirements;
(5) Publish decisions in accordance with the provisions of
section sixteen of this article;
(6) Submit to the Legislature, on or before the fifteenth day
of February, an annual report summarizing the Office of Tax
Appeals' activities since the end of the last report period,
including a statement of the number and type of matters handled by
the Office of Tax Appeals during the preceding fiscal year and the
number of matters pending at the end of the year; and
(7) Perform the other duties necessary and proper to carry out
the purposes of this article.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 16A. WEST VIRGINIA PARKWAYS, ECONOMIC DEVELOPMENT AND
TOURISM AUTHORITY.
§17-16A-3. West Virginia Parkways, Economic Development and
Tourism Authority generally.
On and after the first day of June, one thousand nine hundred
eighty-nine, the West Virginia turnpike commission is hereby
abolished in all respects, and there is hereby created the "West
Virginia Parkways, Economic Development and Tourism Authority", and
by that name the parkways authority may sue and be sued and plead and be impleaded. The parkways authority is hereby constituted
(a) The West Virginia Parkways, Economic Development and
Tourism Authority is continued as an agency of the state, and the
exercise by the Parkways Authority of the powers conferred by this
article in the construction, reconstruction, improvement, operation
and maintenance of parkway, economic development and tourism
projects shall be deemed and held to be an essential governmental
function of the state.
(b) The West Virginia Parkways, Economic Development and
Tourism Authority shall consist of seven members, including the
Governor or designee, the Transportation Secretary, who shall serve
as chairman of the parkways authority, and six and five public
members, including no less than one from each of the counties which
have land bordering parkway projects, appointed by the Governor, by
and with the advice and consent of the Senate. The appointed
members shall be residents of the state and shall have been
qualified electors therein for a period of at least one year next
preceding their appointment. Upon the effective date of this
legislation, the governor shall forthwith appoint six members of
the parkways authority for staggered terms. The terms of the
parkways authority members first taking office on or after the
effective date of this legislation shall expire as designated by
the governor at the time of the nomination, one at the end of the
first year, one at the end of the second year, one at the end of
the third year, one at the end of the fifth year, one at the end of
the sixth year and one at the end of the seventh year, after the first day of June, one thousand nine hundred eighty-nine. As these
original appointments expire, each subsequent appointment shall be
for a full eight-year term. Public members are appointed for eight-
year terms, which are staggered in accordance with the initial
appointments under prior enactment of this section. Any member
whose term has expired shall serve until his or her successor has
been duly appointed and qualified. Any person appointed to fill a
vacancy shall serve only for the unexpired term. Any member shall
be eligible for reappointment. The term of any person serving as a
member of the West Virginia turnpike commission immediately
preceding the effective date of this legislation shall cease and
otherwise expire upon such effective date: Provided, That any such
member shall be eligible for reappointment. Each appointed member
of the Parkways Authority before entering upon his or her duties
shall take an oath as provided by section five, article IV of the
constitution of the state of West Virginia.
(b) The parkways The Governor or designee shall serve as chair
and the Authority shall annually elect one of the appointed members
as vice chairman chair, and shall also elect a secretary and
treasurer who need not be members of the Parkways Authority.
(c) The Governor appoints an Executive Director of the
Authority with the advice and consent of the Senate. The Executive
Director serves at the Governor's will and pleasure. The Executive
Director is responsible for managing and administering the daily
functions of the Authority and for performing all other functions
necessary to the effective operation of the Authority. The compensation of the Executive Director is annually fixed by the
Governor.
(d) Four members of the Parkways Authority shall constitute a
quorum and the vote of a majority of members present shall be
necessary for any action taken by the Parkways Authority. No
vacancy in the membership of the Parkways Authority shall impair
the right of a quorum to exercise all the rights and perform all
the duties of the Parkways Authority. The Parkways Authority shall
meet at least monthly and either the chairman chair or any four
members shall be empowered to call special meetings for any purpose
or purposes: Provided, That notice of any such meeting shall be
given to all members of the Parkways Authority not less than ten
days prior to said special meetings.
(e) Before the issuance of any parkway revenue bonds or
revenue refunding bonds under the provisions of this article, each
appointed member of the Parkways Authority shall execute a surety
bond in the penal sum of twenty-five thousand dollars and the
secretary and treasurer shall execute a surety bond in the penal
sum of fifty thousand dollars, each such surety bond to be
conditioned upon the faithful performance of the duties of his or
her office, to be executed by a surety company authorized to
transact business in the state of West Virginia as surety and to be
approved by the Governor and filed in the Office of the Secretary
of State.
(f) The members of the Parkways Authority shall not be
entitled to compensation for their services, but each member shall be reimbursed for his or her actual expenses necessarily incurred
in the performance of his or her duties shall be reimbursed for all
reasonable and necessary expenses actually incurred in the
performance of their duties in a manner consistent with guidelines
of the Travel Management Office of the Department of
Administration.
(g) All expenses incurred in carrying out the provisions of
this article shall be payable solely from funds provided under the
authority of this article and no liability or obligation shall be
incurred by the Parkways Authority hereunder beyond the extent to
which moneys shall have been provided under the authority of this
article.
(h) Pursuant to the provisions of article ten, chapter four of
this code, the West Virginia Parkways, Economic Development and
Tourism Authority shall continue to exist until the first day of
July, two thousand five seven.
§17-16A-10. Parkway revenue bonds generally.
(a) The Parkways Authority is hereby authorized to provide by
resolution, at one time or from time to time, for the issuance of
parkway revenue bonds of the state for the purpose of paying all or
any part of the cost of one or more projects: Provided, That this
section shall not be construed as authorizing the issuance of
parkway revenue bonds for the purpose of paying the cost of the
West Virginia Turnpike, which parkway revenue bonds may be issued
only as authorized under section eleven of this article. The
principal of and the interest on such bonds shall be payable solely from the funds herein provided for such payment.
(b) The bonds of each issue shall be dated, shall bear
interest at such a rate or rates as may be determined by the
Parkways Authority in its sole discretion, shall mature at such a
time or times not exceeding forty years from their date or dates,
of issue as may be determined by the Parkways Authority, and may be
made redeemable before maturity, at the option of the Parkways
Authority, at such a price or prices and under such the terms and
conditions as may be fixed by the Parkways Authority prior to the
issuance of the bonds.
(c) The Parkways Authority shall determine the form of the
bonds, including any interest coupons to be attached thereto, and
shall fix the denomination or denominations of the bonds and the
place or places of payment of principal and interest, which may be
at any bank or trust company within or without the state.
(d) The bonds shall be executed by manual or facsimile
signature by the governor and by the chairman chair of the Parkways
Authority, and the official seal of the Parkways Authority shall be
affixed to or printed on each bond, and attested, manually or by
facsimile signature, by the secretary and treasurer of the Parkways
Authority, and any . Any coupons attached to any bond shall bear
the manual or facsimile signature of the chairman chair of the
Parkways Authority.
(e) In case any officer whose signature or a facsimile of
whose signature appears on any bonds or coupons shall cease to be
such an officer before the delivery of such the bonds, such the signature or facsimile shall nevertheless be valid and sufficient
for all purposes the same as if he had remained in office until
such delivery; and, in . In case the seal of the Parkways Authority
has been changed after a facsimile has been imprinted on such the
bonds, such then the facsimile seal will continue to be sufficient
for all purposes.
(f) All bonds issued under the provisions of this article
shall have and are hereby declared to have all the qualities and
incidents of negotiable instruments under the negotiable
instruments law of the state. The bonds may be issued in coupon or
in registered form, or both, as the Parkways Authority may
determine, and provision may be made for the registration of any
coupon bonds as to principal alone and also as to both principal
and interest, and for the recorders into coupon bonds of any bonds
registered as to both principal and interest.
(g) The Parkways Authority may sell such the bonds in such
manner, either at a public or at private sale, and for such at a
price, as it may determine determines to be in the best interests
of the state.
(h) The proceeds of the bonds of each issue shall be used
solely for the payment of the cost of the parkway project or
projects for which such the bonds shall have been were issued, and
shall be disbursed in such a manner and under such restrictions, if
any, as the Parkways Authority may provide in consistent with the
resolution authorizing the issuance of such the bonds or in the
trust agreement hereinafter mentioned securing the same bonds.
(i) If the proceeds of the bonds of any issue, by error of
estimates or otherwise, shall be less than such the cost, then
additional bonds may in like manner be issued to provide the amount
of such the deficit., and, unless Unless otherwise provided in the
resolution authorizing the issuance of such the bonds or in the
trust agreement securing the same bonds, the additional bonds shall
be deemed to be of the same issue and shall be entitled to payment
from the same fund without preference or priority of the bonds
first issued.
(j) If the proceeds of the bonds of any issue shall exceed the
cost of the project or projects for which the same shall have been
bonds were issued, then the surplus shall be deposited to the
credit of the sinking fund for such the bonds.
(k) Prior to the preparation of definitive bonds, the Parkways
Authority may, under like restrictions, issue interim receipts or
temporary bonds, with or without coupons, exchangeable for
definitive bonds when such the bonds shall have been executed and
are available for delivery. The Parkways Authority may also provide
for the replacement of any bonds which shall that become mutilated
or shall be are destroyed or lost.
(l) Bonds may be issued under the provisions of this article
without obtaining the consent of any department, division,
commission, board, bureau or agency of the state, and without any
other proceedings or the happening of any other conditions or
things than those proceedings, conditions or things which are
specifically required by in accordance with this article.
CHAPTER 49. CHILD WELFARE.
ARTICLE 9. MISSING CHILDREN INFORMATION ACT.
§49-9-15. Clearinghouse Advisory Council; members, appointments
and expenses; appointment, duties and compensation of
director.
(a) There is hereby created a The Clearinghouse Advisory
Council, which is continued as a body corporate and politic,
constituting a public corporation and government instrumentality.
The Council shall consist of eleven members, who are knowledgeable
about and interested in issues relating to missing or exploited
children, as follows:
(1) Four Six members to be appointed by the Governor, with the
advice and consent of the Senate, with not more than two four
belonging to the same political party, three being from different
congressional districts of the state and, as nearly as possible,
providing broad state geographical distribution of members of the
Council, and at least one representing a nonprofit organization
involved with preventing the abduction, runaway or exploitation of
children or locating missing children;
(2) One person to be appointed by the governor, with the
advice and consent of the Senate, from a list of two persons
recommended by the speaker of the House of Delegates;
(3) One member to be appointed by the governor, with the
advice and consent of the Senate, from a list of two persons
recommended by the president of the Senate;
(4) (2) The Secretary of the Department of Health and Human Resources or his or her designee;
(5) (3)
The Superintendent of the West Virginia State Police
or his or her designee;
(6) (4)
The State Superintendent of Schools or his or her
designee;
(7) (5)
The Director of the Criminal Justice and Highway
Safety Division or his or her designee; and
(8) (6)
The Executive Director of the Governor's Cabinet on
Children and Families.
(b) Not later than the first day of June, one thousand nine
hundred ninety-seven, the The Governor shall appoint the six
appointed Council members for staggered terms. The terms of the
board members first taking office on or after the effective date of
this legislation shall expire as designated by the Governor. at the
time of their appointment, one at the end of the year, two at the
end of the second year, and two at the end of the third year. As
the original appointments expire, each Each subsequent appointment
shall be for a full three-year term. Any appointed member whose
term is expired shall serve until a successor has been duly
appointed and qualified. Any person appointed to fill a vacancy
shall serve only for the unexpired term. A member is eligible for
only one successive reappointment. In cases of any vacancy in the
office of a member, such A vacancy shall be filled by the Governor
in the same manner as the original appointment was made.
(c) Members of the Council are not entitled to compensation
for services performed as members but are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the
performance of their duties
in a manner consistent with the
guidelines of the Travel Management Office of the Department of
Administration.
(d) A majority of serving members constitutes a quorum for the
purpose of conducting business. The chair of the Council shall be
designated by the Governor from among the appointed Council members
who represent nonprofit organizations involved with preventing the
abduction, runaway or exploitation of children or locating missing
children. The term of the chairman chair shall run concurrently
with his or her term of office as a member of the Council. The
Council shall conduct all meetings in accordance with the open
governmental meetings law pursuant to article nine-a, chapter six
of this code.
(d) (e)
The employee of the West Virginia State Police who is
primarily responsible for the clearinghouse established by section
three of this article shall serve as the Executive Director of the
Council. He or she shall receive no additional compensation for
service as the Executive Director of the Council but shall be
reimbursed for any reasonable and necessary expenses actually
incurred in the performance of his or her duties as Executive
Director
in a manner consistent with the guidelines of the Travel
Management Office of the Department of Administration
.
(e) (f)
The expenses of the Council members and the Executive
Director shall be reimbursed from funds provided by foundation
grants, in-kind contributions or funds obtained pursuant to subsection (b), section seventeen of this article.
(f) (g)
The Executive Director shall provide or obtain
information necessary to support the administrative work of the
Council and, to that end, may contract with one or more nonprofit
organizations or state agencies for research and administrative
support.
(h) The Executive Director of the Council shall be available
to the Governor and to the Speaker of the House of Delegates and
the President of the Senate to analyze and comment upon proposed
legislation and rules which relate to or materially affect missing
or exploited children.
(g) (i)
The Council shall prepare and publish an annual report
of its activities and accomplishments and submit it to the Governor
and to the Legislature's Joint Committee on Government and Finance
on or before the fifteenth day of December of each year.
On motion of Senator Bowman, the following amendment to the
Government Organization committee amendment to the bill (Eng. H. B.
No. 2891) was reported by the Clerk and adopted:
On page nine, section four, after subsection (f), by inserting
a new subsection, designated subsection (g), to read as follows:
(g) In consultation with the Adjutant General, Chairman of the
Public Service Commission, the Superintendent of the State Police
and the Director of the Division of Homeland Security and Emergency
Management, the Director is responsible for the development and
maintenance of an information systems disaster recovery system for
the State of West Virginia with sites in one or more locations isolated from reasonably perceived threats to the primary operation
of state government. The Director shall develop specifications,
funding mechanisms and participation requirements for all executive
branch agencies to protect the State's essential data, information
systems and critical government services in times of emergency,
inoperativeness, or disaster. Each executive branch agency shall
assist the Director in planning for its specific needs and provide
to the Director any information or access to information systems or
equipment that may be required in carrying out this purpose. No
state-wide or executive branch agency procurement of disaster
recovery services may be initiated, let or extended without the
expressed consent of the Director.
The question now being on the adoption of the Government
Organization committee amendment to the bill (Eng. H. B. No. 2891),
as amended, the same was put and prevailed.
The bill, as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter,
Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear,
Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White,
Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2891) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins,
Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Sharpe, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: Sprouse--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2891) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 2891--A Bill
to repeal §5-1B-1, §5-1B-2,
§5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6, §5-1B-7 and §5-1B-8 of the Code
of West Virginia, 1931, as amended; to amend said code by adding
thereto a new article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-
4, §5A-6-5, §5A-6-6, §5A-6-7 and §5A-6-8; to amend and reenact §5A-
7-4 of said code; to amend and reenact
§5A-8-15 of said code; to
amend and reenact
§5B-1-2 of said code;
to amend and reenact
§5B-3-4 and §5B-3-5 of said code; to amend and reenact
§5F-2-1 and §5F-2-
2
of said code;
to amend and reenact
§10-5-2 of said code; to amend
said code by adding thereto a new section, designated §10-5-5a;
to
amend and reenact
§11-10A-6 and §11-10A-7 of said code;
to amend
and reenact
§17-16A-3 and §17-16A-10 of said code; to amend and
reenact
§21A-1-4 of said code;
and to amend and reenact
§49-9-15 of
said code, all relating to the reorganization of the executive
branch of state government;
transferring the Office of Technology
from the Office of the Governor to the Department of
Administration; providing that the Director of Information Services
and Communications Division shall report to the Chief Technology
Officer; providing that the Director of Information Services and
Communications Division shall develop and maintain an information
systems disaster recovery system; modifying membership of the
Records Management and Preservation Board to include a county
sheriff and a county assessor; limiting the time period for
department secretaries to transfer funds within their respective
departments; requiring secretaries of departments to cooperate with
the Office of the Pharmaceutical Advocate in purchasing
prescription drugs; transferring the Bureau of Employment Programs
to the Department of Commerce;
modifying membership of the
Educational Broadcasting Authority;
providing for Governor to chair
the
Educational Broadcasting Authority
; authorizing the Governor to
appoint an Executive Director of the
Educational Broadcasting
Authority
and set salary annually
; creating an Advisory Committee
on Journalistic and Editorial Integrity for the
Educational Broadcasting Authority;
modifying the term of the chief
administrative law judge of the Office of Tax Appeals; providing
that the Governor has the authority to appoint two administrative
law judges to the Office of Tax Appeals;
providing for Governor to
chair the
West Virginia Parkways, Economic Development and Tourism
Authority
; authorizing the Governor to appoint an Executive
Director of the
Virginia Parkways, Economic Development and Tourism
Authority
and set salary annually
;
modifying membership of the
Missing Children Information Clearinghouse;
and making technical
corrections
.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Unger, Weeks, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: Sprouse--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2891) 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. 2929, Relating to the
administration of anesthesia by dentists.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2937, Relating to the replacement of
individual life insurance policies and annuity contracts.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Banking and Insurance, 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 §33-11-5a 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 §33-13-48, all to read as
follows:
ARTICLE 11. UNFAIR TRADE PRACTICES.
§33-11-5a. Replacement of life insurance.
(a) As used in this section:
(1) "Replacement" means any transaction in which new life
insurance is to be purchased and by reason of such transaction
existing life insurance has been or is to be:
(A) Lapsed, forfeited, surrendered or otherwise terminated;
(B) Converted to reduced paid-up insurance, continued as
extended term insurance or otherwise reduced in value by the use of
nonforfeiture benefits or other policy values;
(C) Amended so as to effect either a reduction in benefits or
in the term for which coverage would otherwise remain in force or for which benefits would be paid;
(D) Reissued with any reduction in cash value; or
(E) Pledged as collateral or subjected to borrowing, whether
in a single loan or under a schedule of borrowing over a period of
time for amounts in the aggregate exceeding twenty-five percent
(25%) of the loan value set forth in the policy;
(2) "Existing insurer" means the insurance company whose
existing life insurance policy is or will be terminated or
otherwise affected in a replacement transaction;
(3) "Replacing insurer" means the insurance company, including
the same insurer or an insurer in the same group of affiliated
insurers, that issues new life insurance in a replacement
transaction; and
(4) "Existing life insurance" means any life insurance in
force including life insurance under a binding or conditional
receipt or a life insurance policy that is within an unconditional
refund period, but excluding life insurance obtained through the
exercise of a dividend option.
(b) No replacing insurer shall issue any life insurance in a
replacement transaction to replace existing life insurance unless
the replacing insurer shall agree in writing with the insured that:
(1) The new life insurance issued by the replacing insurer
will not be contestable by it in the event of such insured's death
to any greater extent than the existing life insurance would have
been contestable by the existing insurer had such replacement not
taken place provided, however, that this paragraph shall not apply to that amount of insurance written and issued which exceeds the
amount of the existing life insurance; and
(2) The new life insurance issued by the replacing insurer may
be voluntarily surrendered by the insured at any time within thirty
(30) days after its delivery to the insured in exchange for a full
refund of premiums paid by the replacing insurer to the insured.
(c) Unless otherwise specifically included, subsection (b) of
this section shall not apply to:
(1) Annuities;
(2) Individual credit life insurance;
(3) Group life insurance, group credit life insurance and life
insurance policies issued in connection with a pension, profit-
sharing or other benefit plan qualifying for tax deductibility of
premiums, provided, however, that as to any plan described in this
subsection, full and complete disclosure of all material facts
shall be given to the administrator of any plan to be replaced;
(4) Variable life insurance under which the death benefits and
cash values vary in accordance with unit values of investments held
in a separate account;
(5) An application to the existing insurer that issued the
existing life insurance and a contractual policy change or
conversion privilege or a privilege of policy change granted by the
insurer is being exercised;
(6) Existing life insurance that is a nonconvertible term life
insurance policy which will expire in five (5) years or less and
cannot be renewed; or
(7) Proposed life insurance that is to replace life insurance
under a binding or conditional receipt issued by the same company.
(d) For purposes of inducing or attempting to induce a
policyholder to lapse, forfeit, borrow against, surrender, retain,
exchange, modify, convert, or otherwise alter or dispose of any
insurance policy or coverage, no person shall:
(1) Prepare, make or issue, or cause to be prepared, made or
issued, any written or oral misrepresentation of a material fact
regarding the terms, conditions or benefits of either existing
insurance coverage or proposed replacement insurance coverage; or
(2) Omit information concerning a material fact regarding the
terms, conditions or benefits of either existing insurance coverage
or proposed replacement insurance coverage.
(e) The provisions of this section shall have no further force
and effect as of the effective date of the emergency rule
authorized by the provisions of section forty-eight, article
thirteen of this chapter.
ARTICLE 13B. REPLACEMENT OF LIFE INSURANCE AND ANNUITIES.
§33-13-48. Replacement of existing rule with model rule.
The Commissioner shall propose and file with the Secretary of
State an emergency rule pursuant to the provisions of section
fifteen, article three, chapter twenty-nine-a of this code that is
based on the model regulation regarding the replacement of life
insurance and annuities approved by the National Association of
Insurance Commissioners in nineteen ninety-eight and amended in two
thousand. This emergency rule will be effective upon approval by the Secretary of State and will replace the legislative rule
previously filed by the Commissioner on the sixteenth day of May,
nineteen ninety-seven as Title 114, Series 8 of the Code of State
Rules: Provided, That the rule filed as an emergency rule pursuant
to this section shall be refiled at the earliest opportunity as a
legislative rule for review and promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
The bill (Eng. H. B. No. 2937), as amended, was then ordered
to third reading.
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.
On second reading, coming up in regular order, was read a
second time.
At the request Senator Plymale, and by unanimous consent, the
bill was advanced to third reading with the unreported Education
amendment pending and the right for further amendments to be
considered on that reading.
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.
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 two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-8. Aiding escape and other offenses relating to adults and
juveniles in custody or confinement; penalties.
(a) Where any adult or juvenile is lawfully detained in
custody or confinement in any county or regional jail, state
correctional facility, juvenile facility or juvenile detention
center, if any other person shall deliver delivers anything into
the place of custody or confinement of the adult or juvenile with
the intent to aid or facilitate the adult's or juvenile's escape or
attempted escape therefrom, or if the other person shall forcibly
rescue or attempt forcibly rescues or attempts to rescue an adult
or a juvenile therefrom, the other person is guilty of a felony
and, upon conviction thereof, shall be confined in a state
correctional facility not less than one nor more than ten years.
(b) Where any adult or juvenile is lawfully detained in
custody or confinement in any county or regional jail, a state
correctional facility or a juvenile facility or juvenile detention
center, if any other person shall deliver delivers any money or
other thing of value, any written or printed matter, any article of
merchandise, food or clothing, any medicine, telecommunication
device, utensil or instrument of any kind to such the adult or
juvenile without the express authority and permission of the
supervising officer and with knowledge that such the adult or
juvenile is lawfully detained, such the other person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less
than fifty dollars nor more than five hundred dollars and confined
in the county or regional jail not less than three nor more than
twelve months: Provided, That the provisions of this section do
not prohibit an attorney or his or her employees from supplying any
written or printed material to an adult or juvenile which pertains
to that attorney's representation of the adult or juvenile.
(c) If any person transports any alcoholic liquor,
nonintoxicating beer, poison, explosive, firearm or other implement
of escape, dangerous material, or deadly weapon or any controlled
substance as defined by chapter sixty-a of this code onto the
grounds of any county or regional jail, state correctional
facility, juvenile facility or juvenile detention center within
this state and is unauthorized by law to do so, or is unauthorized
by the persons supervising the facility, such the person is guilty
of a felony and, upon conviction thereof, shall be fined not less
than one thousand nor more than five thousand dollars or confined
in a state correctional facility not less than two years nor more
than ten years, or both, or, in the discretion of the court, be
confined in the county or regional jail not more than one year and
fined not more than five hundred dollars.
(d) If any person delivers any alcoholic liquor,
nonintoxicating beer, poison, explosive, firearm or other implement
of escape, dangerous material, or deadly weapon or any controlled
substance as defined by chapter sixty-a of this code to an adult or
juvenile in custody or confinement in any county or regional jail, state correctional facility, juvenile facility or juvenile
detention center within this state and is unauthorized by law to do
so, or is unauthorized by the persons supervising the facility,
such the person is guilty of a felony and, upon conviction thereof,
shall be fined not less than one thousand nor more than five
thousand dollars or confined in a state correctional facility not
less than one year nor more than five years, or both.
(e) Whoever purchases, accepts as a gift, or secures by
barter, trade or in any other manner, any article or articles
manufactured at or belonging to any county or regional jail, state
correctional facility, juvenile facility or juvenile detention
center from any adult or juvenile detained therein is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than fifty dollars nor more than five hundred dollars and confined
in the county or regional jail not less than three nor more than
twelve months: Provided, That the provisions of this subsection do
not apply to articles specially manufactured in any facility under
the authorization of the persons supervising the facility and which
are offered for sale within or outside of the facility.
(f) Whoever persuades, induces or entices or attempts to
persuade, induce or entice any person who is in custody or confined
in any county or regional jail, state correctional facility,
juvenile facility or juvenile detention center to escape therefrom
or to engage or aid in any insubordination to the persons
supervising the facility is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than fifty dollars nor more than five hundred dollars and confined in the county or
regional jail not less than three nor more than twelve months.
(g) (1) An inmate of a jail, state correctional facility,
juvenile facility or juvenile detention center having in his or her
possession any poison, implement of escape, dangerous material,
weapon or any controlled substance as defined by chapter sixty-a of
this code is guilty of a felony and, upon conviction thereof, shall
be fined not less than one thousand nor more than five thousand
dollars or confined in a state correctional facility not less than
one year nor more than five years, or both, or, in the discretion
of the court, be confined in jail not more than one year and fined
not more than five hundred dollars.
(2) An inmate of a jail, state correctional facility, juvenile
facility or juvenile detention center having in his or her
possession any alcoholic liquor, nonintoxicating beer, money or
other thing of value, any written or printed matter, any article of
merchandise, food or clothing, any medicine, telecommunication
device, utensil or instrument of any kind without the express
authority and permission of the supervising officer is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than fifty dollars nor more than five hundred dollars and confined
in jail not more than twelve months.
(h) As used in this section:
(1) "Dangerous material" means any incendiary material or
device, highly flammable or caustic liquid, explosive, bullet or
other material readily capable of causing death or serious bodily injury.
(2) "Delivers" means to transfer an item to an adult or
juvenile who is detained in custody or confinement in any jail,
correctional facility, juvenile facility or juvenile detention
center, or a building appurtenant to those places. The term
includes bringing the item into a jail, correctional facility,
juvenile facility or juvenile detention center or a building
appurtenant to those places. The term includes putting an item in
a place where it may be obtained by an inmate.
(3) "Inmate" means an adult or juvenile who is detained in
custody or confinement in any jail, correctional facility, juvenile
facility or juvenile detention center, regardless of whether the
individual is temporarily absent due to medical treatment,
transportation, court appearance or other reason for a temporary
absence.
(4) "Implement of escape" means a tool, implement, device,
equipment or other item which an inmate is not authorized to
possess, capable of facilitating, aiding or concealing an escape or
attempted escape by an inmate.
(5) "Telecommunication device" means any type of instrument,
device, machine or equipment which is capable of transmitting
telephonic, electronic, digital, cellular or radio communications
or any part of an instrument, device, machine or equipment which is
capable of facilitating the transmission of telephonic, electronic,
digital, cellular or radio communications. The term includes, but
is not limited to, cellular phones, digital phones and modem equipment devices.
(6) "Weapon" means an implement readily capable of lethal use
and includes any firearm, knife, dagger, razor, other cutting or
stabbing implement or club. The term includes any item which has
been modified or adapted so that it can be used as a firearm,
knife, dagger, razor, other cutting or stabbing implement or club.
For purposes of this definition, the term "firearm" includes an
unloaded firearm or the unassembled components of a firearm.
The bill (Eng. Com. Sub. for H. B. No. 2991), as amended, was
then ordered to third reading.
Eng. House Bill No. 3002, Removing the thirty day deadline for
submitting party designations to be eligible to vote in the primary
election.
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 §3-2-6 and §3-2-31 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 2. REGISTRATION OF VOTERS.
§3-2-6. Time of registration application before an election.
(a) Voter registration before an election shall close on the
twentieth twenty first day before the election, or on the first day
thereafter which is not a Saturday, Sunday or legal holiday.
(b) An application for voter registration, transfer of
registration, change of name or change of political party
affiliation submitted by an eligible voter by the close of voter
registration shall be effective for any subsequent primary, general
or special election if the following conditions are met:
(1) The application contains the required information as set
forth in subsection (c), section five of this article: Provided,
That incomplete applications for registration containing
information which are submitted within the required time may be
corrected within four days after the close of registration if the
applicant provides the required information; and
(2) The application is received by the appropriate clerk of
the county commission no later than the hour of the close of
registration or is otherwise submitted by the following deadlines:
(A) If mailed, the application shall be addressed to the
appropriate clerk of the county commission and postmarked by the
postal service no later than the date of the close of registration:
Provided, That if the postmark is missing or illegible, the
application shall be presumed to have been mailed no later than the
close of registration if it is received by the appropriate clerk of
the county commission no later than the third day following the
close of registration;
(B) If accepted by a designated agency or motor vehicle
licensing office, the application shall be received by that agency
or office no later than the close of registration;
(C) If accepted through a registration outreach program, the application shall be received by the clerk, deputy clerk or
registrar no later than the close of registration; and
(3) The verification notice required by the provisions of
section sixteen of this article mailed to the voter at the
residence indicated on the application is not returned as
undeliverable.
§3-2-31. Rules pertaining to voting after registration or change
of address within the county.
(a) A voter who designates a political affiliation with a
major party on a registration application filed at least thirty
days no later than the close of voter registration before the
primary may vote the ballot of that political party in the primary
election. Political parties, through the official action of their
state executive committees, shall be permitted to determine whether
unaffiliated voters or voters of other parties shall be allowed to
vote that party's primary election ballot upon request.
(b) A voter whose registration record lists one residence
address but the voter has since moved to another residence address
within the precinct shall be permitted to update the registration
at the polling place and vote without challenge for that reason.
(c) A voter whose registration record lists one residence
address but the voter has since moved to another residence address
in a different precinct in the same county shall be permitted to
update the registration at the polling place serving the new
precinct and shall be permitted to vote a challenged or provisional
ballot at the new polling place. If the voter's registration is found on the registration records within the county during the
canvass and no other challenge of eligibility was entered on
election day, the challenge shall be removed and the ballot shall
be counted.
(d) A voter whose registration record has been placed on an
inactive status or transferred to an inactive file and who has not
responded to a confirmation notice sent pursuant to the provisions
of section twenty-four, twenty-five or twenty-six of this article
and who offers to vote at the polling place where he or she is
registered to vote shall be required to affirm his or her present
residence address under penalty of perjury, as provided in section
thirty-six of this article.
The bill (Eng. H. B. No. 3002), as amended, was then ordered
to third reading.
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.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
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.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Banking and Insurance, was reported by the Clerk and adopted:
On page five, section one-b, line nineteen, after the word
"two-f" by striking out the words "of this article" and inserting
in lieu thereof a comma and the words "article fifteen of this
chapter".
The bill (Eng. H. B. No. 3014), as amended, was then ordered
to third reading.
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.
On second reading, coming up in regular order, was read a
second time and 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.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3045, Relating to the
creation and modification of public service districts.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
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.
On second reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Kessler, unanimous consent being
granted, further consideration of the bill and the unreported
Judiciary committee amendment was deferred until the conclusion of
bills on today's second reading calendar, following consideration
of Engrossed Committee Substitute for House Bill No. 3208, already
placed in that position.
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.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Labor, were reported by the Clerk, considered simultaneously, and
adopted:
On page two, section five, line eleven, by striking out the
word "ascertaining" and inserting in lieu thereof the words
"monitoring whether private inspectors are in";
And,
On page three, section eleven, lines seven through twelve, by
striking out the words "That in no event may the fees established
for inspection exceed one hundred dollars for any one inspection:
Provided, however, That in buildings with more than one elevator,
the fee shall not exceed one hundred dollars for the first elevator
inspected and twenty-five dollars for each additional elevator:
Provided further,".
The bill (Eng. Com. Sub. for H. B. No. 3068), as amended, was
then ordered to third reading.
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.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Transportation and Infrastructure, was reported by the Clerk:
On page eleven, section twelve, line forty-nine, by striking
out the word "approve" and inserting in lieu thereof the word
"recommend".
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
Transportation and Infrastructure committee amendment to the bill
was withdrawn.
The following amendment to the bill, from the Committee on
Transportation and Infrastructure, was next reported by the Clerk
and adopted:
On page eleven, section twelve, line fifty-one, after the word
"section" by changing the period to a colon and inserting the
following proviso: Provided, That the committee may only consider
those applications for designation of roads, highways and bridges
not located within those whole counties identified in section three
of this article.
The following amendment to the bill, from the Committee on
Transportation and Infrastructure, was next reported by the Clerk
and adopted:
On page twelve, section twelve, line seventy-seven, after the
word "designation" by inserting the words "or decertification".
The following amendment to the bill, from the Committee on
Transportation and Infrastructure, was next reported by the Clerk:
On page thirteen, section twelve, line eighty-three, by
striking out the word "designation" and inserting in lieu thereof
the word "recommendation".
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
Transportation and Infrastructure committee amendment to the bill
was withdrawn.
The following amendment to the bill, from the Committee on
Transportation and Infrastructure, was next reported by the Clerk:
On pages thirteen and fourteen, section twelve, by striking
out all of subsection (j) and inserting in lieu thereof a new
subsection (j), to read as follows:
(j) The committee shall report its findings and
recommendations relating to each application for designation or
decertification of a coal resource transportation road to the Joint
Committee on Government and Finance on a quarterly basis.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
Transportation and Infrastructure committee amendment to the bill was withdrawn.
The following amendments to the bill, from the Committee on
Transportation and Infrastructure, were next reported by the Clerk,
considered simultaneously, and adopted:
On page fourteen, section two, line three, by striking out the
words "and oversee";
And,
On page fourteen, section two, lines three and four, by
striking out the words "and administration".
On motion of Senator Unger, the following amendment to the
bill was next reported by the Clerk and adopted:
On pages thirteen and fourteen, section twelve, by striking
out all of subsection (j) and inserting in lieu thereof three new
subsections, designated subsections (j), (k) and (l), to read as
follows:
(j) Once an application has been approved by the committee and
the public road, highway or bridge has become part of the coal
resource transportation road system, such route must be used for
coal haulage pursuant to the provisions of this article within one
year of its designation. In the event any public road, highway or
bridge that is part of the coal resource transportation road system
ceases to be used for coal haulage for a period of time exceeding
one year, then such route may be decertified by the committee upon
application by any person: Provided, That prior to any
decertification the committee shall first have held a public
hearing in the county wherein the public road, highway, or bridge is located: Provided, however, That where a public road, highway or
bridge is located in more than one county, the hearing shall be
conducted in the county containing the longest mileage under
decertification: Provided further, That prior to any public hearing
the applicant shall cause notice of such public hearing or hearings
by Class I legal advertisement.
(k) Prior to rendering a final decision on any application for
designation or decertification of a coal resource transportation
road, the committee shall first report its findings and
recommendations on each pending application to the Joint Committee
on Government and Finance. The Joint Committee on Government and
Finance may comment on the application which comments shall be
considered by the committee. The committee may not make final any
designation or decertification before thirty days after reporting
its findings and recommendations on an application to the Joint
Committee on Government and Finance.
(l) The coal resource transportation designation committee
created in this section shall report its activities to the
Secretary of Transportation who will provide the necessary staff to
assist the committee in the discharge of its functions pursuant to
this section.
The bill (Eng. Com. Sub. for H. B. No. 3089), as amended, was
then ordered to third reading.
Eng. House Bill No. 3094, Relating to child support and
enforcement.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Kessler, and by unanimous consent,
Senator Kessler offered the following amendment to the bill prior
to the consideration of the Judiciary committee amendment lodged
with the Clerk.
On motion of Senator Kessler, the following amendment to the
bill was reported by the Clerk and adopted:
O
n page three, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 17. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION.
§48-17-101. Creation of Support Enforcement Commission; number of
members.
The West Virginia Support Enforcement Commission, consisting
of eight members, is hereby created in the Department of Health and
Human Resources and may use the administrative support and services
of that department. The Commission is not subject to control,
supervision or direction by the Department of Health and Human
Resources, but is an independent, self-sustaining commission that
shall have the powers and duties specified in this chapter.
The Commission is a part-time commission whose members perform
such duties as specified in this chapter. The ministerial duties of
the Commission shall be administered and carried out by the
Commissioner of the Bureau for Child Support Enforcement, with the
assistance of such staff of the Department of Health and Human
Resources as the Secretary may assign.
Each member of the Commission shall devote the time necessary to carry out the duties and obligations of the office and the six
seven members appointed by the Governor may pursue and engage in
another business, occupation or gainful employment that is not in
conflict with the duties of the Commission.
While the Commission is self-sustaining and independent, it,
its members, its employees and the Commissioner are subject to
article nine-a of chapter six, chapter six-b, chapter twenty-nine-a
and chapter twenty-nine-b of this code.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-103. Organization and employees.
(a) The Commissioner shall organize the work of the Bureau in
such offices or other organizational units as he or she may
determine to be necessary for effective and efficient operation.
(b) The Commissioner shall employ a sufficient number of
employees in the position of Bureau for Child Support Enforcement
attorney so as to provide for the effective and efficient operation
of the Bureau for Child Support Enforcement. The Bureau for Child
Support Enforcement attorneys shall be distributed geographically
as determined by the Commissioner.
(b) (c) The Secretary may transfer employees and resources of
the Department to the Bureau for Child Support Enforcement as may
be necessary to fulfill the duties and responsibilities of the
Bureau under this chapter: Provided, That the Secretary may not
transfer employees of other divisions and agencies within the
Department to the Bureau for Child Support Enforcement without a
prior finding that the office or position held by the employee may be eliminated and until the office or position is, in fact,
eliminated.
(c) (d) The Commissioner, if he or she deems such action
necessary, may hire legal counsel for the Division, notwithstanding
the provisions of section two, article three, chapter five of this
code or any other code provision to the contrary, or may request
the Attorney General to appoint assistant attorneys general counsel
who shall perform such duties as may be required by the Bureau. The
Attorney General, in pursuance of such request, may select and
appoint assistant attorneys general counsel to serve during the
will and pleasure of the Attorney General, and such assistants
shall be paid out of any funds allocated and appropriated to the
Child Support Enforcement Fund.
(d) (e) The Commissioner may employ such staff or employees as
may be necessary to administer and enforce this chapter.
§48-18-108. Fees.
(a) When the Bureau for Child Support Enforcement provides
child support collection services either to a public assistance
recipient or to a party who does not receive public assistance, the
Bureau for Child Support Enforcement shall, upon written notice to
the obligor, charge a monthly collection fee equivalent to the full
monthly cost of the services, in addition to the amount of child
support which was ordered by the court. The fee shall be deposited
in the Child Support Enforcement Fund. The service fee assessed may
not exceed ten percent of the monthly court-ordered child support
and may not be assessed against any obligor who is current in payment of the monthly court-ordered child support payments:
Provided, That this fee may not be assessed when the obligor is
also a recipient of public assistance.
(b) Except for those persons applying for services provided by
the Bureau for Child Support Enforcement who are applying for or
receiving public assistance from the Division of Human Services or
persons for whom fees are waived pursuant to a legislative rule
promulgated pursuant to this section, all applicants shall pay an
application fee of twenty-five dollars.
(c) Fees imposed by state and federal tax agencies for
collection of overdue support shall be imposed on the person for
whom these services are provided. Upon written notice to the
obligee, the Bureau for Child Support Enforcement shall assess a
fee of twenty-five dollars to any person not receiving public
assistance for each successful federal tax interception. The fee
shall be withheld prior to the assistance for each successful
federal tax interception. The fee shall be withheld prior to the
release of the funds received from each interception and deposited
in the Child Support Enforcement Fund established pursuant to
section 18-107.
(d) In any action brought by the Bureau for Child Support
Enforcement, the court shall order that the obligor shall pay
attorney fees for the services of the attorney representing the
Bureau for Child Support Enforcement in an amount calculated at a
rate similar to the rate paid to court-appointed attorneys paid
pursuant to section thirteen-a, article twenty-one, chapter twenty-nine of this code and all court costs associated with the action:
Provided, That no such award shall be made when the court finds
that the award of attorney's fees would create a substantial
financial hardship on the obligor or when the obligor is a
recipient of public assistance. Further, the Bureau for Child
Support Enforcement may not collect such fees until the obligor is
current in the payment of child support. No court may order the
Bureau for Child Support Enforcement to pay attorney's fees to any
party in any action brought pursuant to this chapter.
(e) This section shall not apply to the extent it is
inconsistent with the requirements of federal law for receiving
funds for the program under Title IV-A and Title IV-D of the Social
Security Act, United States Code, article three, Title 42, Sections
601 to 613 and United States Code, Title 42, Sections 651 to 662.
(f) The commission shall, by legislative rule promulgated
pursuant to chapter twenty-nine-a of this code, describe the
circumstances under which fees charged by the Bureau for Child
Support Enforcement may be modified or waived and such rule shall
provide for the waiver of any fee, in whole or in part, when such
fee would otherwise be required to be paid under the provisions of
this chapter. Further, such rule shall initially be promulgated as
an emergency rule pursuant to section fifteen, article three,
chapter twenty-nine-a of this code.
§48-18-112. Cooperation with other states in the enforcement of
child support.
(a) The Bureau for Child Support Enforcement shall cooperate with any other state in the following:
(1) In establishing paternity;
(2) In locating an obligor residing temporarily or permanently
in this state, against whom any action is being taken for the
establishment of paternity or the enforcement of child and spousal
support;
(3) In securing compliance by an obligor residing temporarily
or permanently in this state, with an order issued by a court of
competent jurisdiction against such obligor for the support and
maintenance of a child or children or the parent of such child or
children; and
(4) In carrying out other functions necessary to a program of
child and spousal support enforcement.
(b) The Commission Commissioner shall, by legislative rule,
establish procedures necessary to extend the Bureau for Child
Support Enforcements' system of withholding under part 14-401, et
seq. article fourteen of this chapter, so that such system may
include withholding from income derived within this state in cases
where the applicable support orders were issued in other states, in
order to assure that child support owed by obligors in this state
or any other state will be collected without regard to the
residence of the child for whom the support is payable or the
residence of such child's custodial parent.
§48-18-113. Disbursements of amounts collected as support.
(a) Amounts collected as child or spousal support by the
Bureau for Child Support Enforcement shall be distributed within two business days after receipt from the employer or other source
of periodic income. The amounts collected as child support shall be
distributed by the Bureau for Child Support Enforcement in
accordance with the provisions for distribution set forth in 42
U.S.C. §657. The Commission Commissioner shall promulgate a
legislative rule to establish the appropriate distribution as may
be required by the federal law.
(b) Any payment required to be made under the provisions of
this section to a family shall be made to the resident parent,
legal guardian or caretaker relative having custody of or
responsibility for the child or children.
(c) The commission shall establish bonding requirements for
employees of the Bureau for Child Support Enforcement who receive,
disburse, handle or have access to cash.
(d) (c) The Commissioner shall maintain methods of
administration which are designed to assure that employees of the
Bureau for Child Support Enforcement or any persons employed
pursuant to a contract who are responsible for handling cash
receipts do not participate in accounting or operating functions
which would permit them to conceal in the accounting records the
misuse of cash receipts: Provided
, That the Commissioner may
provide for exceptions to this requirement in the case of sparsely
populated areas in this state where the hiring of unreasonable
additional staff in the local office would otherwise be necessary.
(e) (d) No penalty or fee may be collected by or distributed
to a recipient of Bureau for Child Support Enforcement services from the State Treasury or from the Child Support Enforcement Fund
when child support is not distributed to the recipient in
accordance with the time frames established herein.
(f) (e) For purposes of this section, "business day" means a
day on which state offices are open for regular business.
§48-18-117. Obtaining support from federal tax refunds.
The Commission Commissioner
shall, by legislative rule
promulgated pursuant to chapter twenty-nine-a of this code, place
in effect procedures necessary for the Bureau for Child Support
Enforcement to obtain payment of past due support from federal tax
refunds from overpayments made to the Secretary of the Treasury of
the United States. The Bureau for Child Support Enforcement shall
take all steps necessary to implement and utilize such procedures.
§48-18-118. Obtaining support from state income tax refunds.
(a) The Tax Commissioner shall establish procedures necessary
for the Bureau for Child Support Enforcement to obtain payment of
past due support from state income tax refunds from overpayment
made to the Tax Commissioner pursuant to the provisions of article
twenty-one, chapter eleven of this code.
(b) The Commission Commissioner
shall, by legislative rule
promulgated pursuant to chapter twenty-nine-a of this code,
establish procedures necessary for the Bureau for Child Support
Enforcement to enforce a support order through a notice to the Tax
Commissioner which will cause any refund of state income tax which
would otherwise be payable to an obligor to be reduced by the
amount of overdue support owed by such obligor.
(1) Such legislative rule shall, at a minimum, prescribe:
(A) The time or times at which the Bureau for Child Support
Enforcement shall serve on the obligor or submit to the Tax
Commissioner notices of past due support;
(B) The manner in which such notices shall be served on the
obligor or submitted to the Tax Commissioner;
(C) The necessary information which shall be contained in or
accompany the notices;
(D) The amount of the fee to be paid to the Tax Commissioner
for the full cost of applying the procedure whereby past due
support is obtained from state income tax refunds; and
(E) Circumstances when the Bureau for Child Support
Enforcement may deduct a twenty-five dollar fee from the obligor's
state income tax refund. Such rule This procedure may not require
a deduction from the state income tax refund of an applicant who is
a recipient of assistance from the Bureau for Children and Families
in the form of temporary assistance for needy families.
(2) Withholding from state income tax refunds may not be
pursued unless the Bureau for Child Support Enforcement has
examined the obligor's pattern of payment of support and the
obligee's likelihood of successfully pursuing other enforcement
actions, and has determined that the amount of past due support
which will be owed, at the time the withholding is to be made, will
be one hundred dollars or more. In determining whether the amount
of past due support will be one hundred dollars or more, the Bureau
for Child Support Enforcement shall consider the amount of all unpaid past due support, including that which may have accrued
prior to the time that the Bureau for Child Support Enforcement
first agreed to enforce the support order.
(c) The Commissioner of the Bureau for Child Support
Enforcement shall enter into agreements with the Secretary of the
Treasury and the Tax Commissioner, and other appropriate
governmental agencies, to secure information relating to the social
security number or numbers and the address or addresses of any
obligor, in order to provide notice between such agencies to aid
the Bureau for Child Support Enforcement in requesting state income
tax deductions and to aid the Tax Commissioner in enforcing such
deductions. In each such case, the Tax Commissioner, in processing
the state income tax deduction, shall notify the Bureau for Child
Support Enforcement of the obligor's home address and social
security number or numbers. The Bureau for Child Support
Enforcement shall provide this information to any other state
involved in processing the support order.
(d) For the purposes of this section, "past due support" means
the amount of unpaid past due support owed under the terms of a
support order to or on behalf of a child, or to or on behalf of a
minor child and the parent with whom the child is living,
regardless of whether the amount has been reduced to a judgment or
not.
(e) The Bureau for Child Support Enforcement may, under the
provisions of this section, enforce the collection of past due
support on behalf of a child who has reached the age of majority.
(f) The legislative rule promulgated by the commission
pursuant to the provisions of this section and pursuant to chapter
twenty-nine-a of this code, procedure shall, at a minimum, provide
that prior to notifying the Tax Commissioner of past due support,
a notice to the obligor as prescribed under subsection (a) of this
section shall:
(1) Notify the obligor that a withholding will be made from
any refund otherwise payable to such obligor;
(2) Instruct the obligor of the steps which may be taken to
contest the determination of the Bureau for Child Support
Enforcement that past due support is owed or the amount of the past
due support; and
(3) Provide information with respect to the procedures to be
followed, in the case of a joint return, to protect the share of
the refund which may be payable to another person.
(g) If the Bureau for Child Support Enforcement is notified by
the Tax Commissioner that the refund from which withholding is
proposed to be made is based upon a joint return, and if the past
due support which is involved has not been assigned to the
Department of Health and Human Resources, the Bureau for Child
Support Enforcement may delay distribution of the amount withheld
until such time as the Tax Commissioner notifies the Bureau for
Child Support Enforcement that the other person filing the joint
return has received his or her proper share of the refund, but such
delay shall not exceed six months.
(h) In any case in which an amount is withheld by the Tax Commissioner under the provisions of this section and paid to the
Bureau for Child Support Enforcement, if the Bureau for Child
Support Enforcement subsequently determines that the amount
certified as past due was in excess of the amount actually owed at
the time the amount withheld is to be distributed, the agency shall
pay the excess amount withheld to the obligor thought to have owed
the past due support or, in the case of amounts withheld on the
basis of a joint return, jointly to the parties filing such the
return.
(i) The amounts received by the Bureau for Child Support
Enforcement shall be distributed in accordance with the provisions
for distribution set forth in 42 U.S.C. §657. The commission shall
promulgate a legislative rule to establish the appropriate
distribution as may be required by the federal law.
§48-18-119. Obtaining support from unemployment compensation
benefits.
(a) The Commissioner shall determine on a periodic basis
whether individuals receiving unemployment compensation owe child
support obligations which are being enforced or have been requested
to be enforced by the Bureau for Child Support Enforcement. If an
individual is receiving such compensation and owes any such child
support obligation which is not being met, the Bureau for Child
Support Enforcement shall enter into an agreement with such
individual to have specified amounts withheld otherwise payable to
such individual, and shall submit a copy of such agreement to the
Bureau of employment programs. In the absence of such agreement, the Bureau for Child Support Enforcement shall bring legal process
to require the withholding of amounts from such compensation.
(b) The Secretary shall enter into a written agreement with
the Bureau of Employment Programs for the purpose of withholding
unemployment compensation from individuals with unmet support
obligations being enforced by the Bureau for Child Support
Enforcement. The Bureau for Child Support Enforcement shall agree
only to a withholding program that it expects to be cost effective,
and, as to reimbursement, shall agree only to reimburse the Bureau
of employment programs for its actual, incremental costs of
providing services to the Bureau for Child Support Enforcement.
(c) The commission shall promulgate a procedural rule for
selecting cases to pursue through the withholding of unemployment
compensation for support purposes. This rule shall be designed to
ensure maximum case selection and minimal discretion in the
selection process.
(d) The commissioner shall, not less than annually, provide a
receipt to an individual who requests a receipt for the support
paid through the withholding of unemployment compensation, if
receipts are not provided through other means.
(e) The Commissioner shall, through direct contact with the
Bureau of Employment Programs, process cases through the Bureau of
Employment Programs in this state, and shall process cases through
support enforcement agencies in other states. The Commissioner
shall receive all amounts withheld by the Bureau of Employment
Programs in this state, forwarding any amounts withheld on behalf of support enforcement agencies in other states to those agencies.
(f) At least one time per year, the commission shall review
and document program operations, including case selection criteria
established under subsection (c) of this section, and the costs of
the withholding process versus the amounts collected and, as
necessary, modify procedures and renegotiate the services provided
by the Bureau of employment programs to improve program and cost
effectiveness.
(g) (b) For the purposes of this section:
(1) "Legal process" means a writ, order, summons or other
similar process in the nature of garnishment which is issued by a
court of competent jurisdiction or by an authorized official
pursuant to an order to such court or pursuant to state or local
law.
(2) "Unemployment compensation" means any compensation under
state unemployment compensation law (including amounts payable in
accordance with agreements under any federal unemployment
compensation law). It includes extended benefits, unemployment
compensation for federal employees, unemployment compensation for
ex-servicemen, trade readjustment allowances, disaster unemployment
assistance, and payments under the Federal Redwood National Park
Expansion Act.
§48-18-121. Providing information to consumer reporting agencies;
requesting consumer credit reports for child support
purposes.
(a) For purposes of this section, the term "consumer reporting agency" means any person who, for monetary fees, dues, or on a
cooperative nonprofit basis, regularly engages, in whole or in
part, in the practice of assembling or evaluating consumer credit
information or other information on consumers for the purpose of
furnishing consumer reports to third parties.
(b) The Commission Commissioner
shall propose and adopt a
procedural rule in accordance with the provisions of sections four
and eight, article three, chapter twenty-nine-a of this code,
establishing establish procedures whereby information regarding the
amount of overdue support owed by an obligor will be reported
periodically by the Bureau for Child Support Enforcement to any
consumer reporting agency, after a request by the consumer
reporting agency that it be provided with the periodic reports.
(1) The procedural rule adopted by the commission procedures
shall provide that any information with respect to an obligor shall
be made available only after notice has been sent to the obligor of
the proposed action, and such obligor has been given a reasonable
opportunity to contest the accuracy of the information.
(2) The procedural rule adopted procedures shall afford the
obligor with procedural due process prior to making information
available with respect to the obligor.
(c) The information made available to a consumer reporting
agency regarding overdue support may only be made available to an
entity that has furnished evidence satisfactory to the Bureau that
the entity is a consumer reporting agency as defined in subsection
(a) of this section.
(d) The Bureau for Child Support Enforcement may impose a fee
for furnishing such information, not to exceed the actual cost
thereof.
(e) The Commissioner of the Bureau for Child Support
Enforcement, or her or his designee, may request a consumer
reporting agency to prepare and furnish to the Bureau for Child
Support Enforcement a consumer report for purposes relating to
child support, by certifying to the consumer reporting agency that:
(1) The consumer report is needed for the purpose of
establishing an individual's capacity to make child support
payments or determining the appropriate level of such payments in
order to set an initial or modified child support award;
(2) The paternity of the child of the individual has been
established or acknowledged by the individual in accordance with
state law;
(3) The individual whose report is being requested has been
given at least ten days' prior notice of such the request by
certified mail to his or her last known address that such report is
being requested; and
(4) The consumer report will be kept confidential, will be
used solely for a purpose described in subdivision (1) of this
subsection and will not be used in connection with any other civil,
administrative or criminal proceeding or for any other purpose.
ARTICLE 19. BUREAU FOR CHILD SUPPORT ENFORCEMENT ATTORNEY
§48-19-102. Appointment of Bureau for Child Support Enforcement
attorneys
(a) The Bureau for Child Support Enforcement shall employ
twenty-one employees in the position of Bureau for Child Support
Enforcement attorney, and the offices of the Bureau for Child
Support Enforcement attorneys shall be distributed geographically
so as to provide an office for each of the following areas of the
state:
(1) The counties of Brooke, Hancock and Ohio;
(2) The counties of Marshall, Tyler and Wetzel;
(3) The counties of Pleasants, Ritchie, Wirt and Wood;
(4) The counties of Calhoun, Jackson and Roane;
(5) The counties of Mason and Putnam;
(6) The county of Cabell;
(7) The counties of McDowell and Wyoming;
(8) The counties of Logan and Mingo;
(9) The county of Kanawha;
(10) The county of Raleigh;
(11) The counties of Mercer, Monroe and Summers;
(12) The counties of Fayette and Nicholas;
(13) The counties of Greenbrier and Pocahontas;
(14) The counties of Braxton, Clay, Gilmer and Webster;
(15) The counties of Doddridge, Harrison, Lewis and Upshur;
(16) The counties of Marion and Taylor;
(17) The counties of Monongalia and Preston;
(18) The counties of Barbour, Randolph and Tucker;
(19) The counties of Grant, Hampshire, Hardy, Mineral and
Pendleton;
(20) The counties of Berkeley, Jefferson and Morgan; and
(21) The counties of Boone, Lincoln and Wayne.
(b) (a) Each Bureau for Child Support Enforcement attorney
shall be appointed by the Commissioner of the Bureau for Child
Support Enforcement. The Bureau for Child Support Enforcement
attorneys shall be duly qualified attorneys licensed to practice in
the courts of this state. Bureau for Child Support Enforcement
attorneys shall be exempted from the appointments in the indigent
cases which would otherwise be required pursuant to article twenty-
one, chapter twenty-nine of this code.
(c) (b) Nothing contained herein shall prohibit the
Commissioner from temporarily assigning, from time to time as
caseload may dictate, a Bureau for Child Support Enforcement
attorney from one
geographical area to another geographical area.
(d) (c) The Bureau for Child Support Enforcement attorney is
an employee of the Bureau for Child Support Enforcement.
The following amendment to the bill (Eng. H. B. No. 3094),
from the Committee on the Judiciary, was next reported by the Clerk
and adopted:
On page two, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That §48-14-419 of the code of West Virginia, 1931, as
amended; to repeal §48-16-308 of said code; to repeal §48-18-109
and §48-18-127 of said code; to amend and reenact §48-17-101 of
said code; to amend and reenact §48-18-103, §48-18-108, §48-18-112, §48-18-113, §48-18-117, §48-18-118, §48-18-119, §48-18-121 of said
code; and to amend and reenact §48-19-102 said code, all to read as
follows:.
The bill (Eng. H. B. No. 3094), as amended, was then ordered
to third reading.
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.
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 8D. CHILD ABUSE.
§61-8D-1. Definitions.
In this article, unless a different meaning plainly is
required:
(1) "Abuse" means the infliction upon a minor of physical
injury by other than accidental means.
(2) "Child" means any person under eighteen years of age not
otherwise emancipated by law.
(3) "Controlled substance" means controlled substance as that
term is defined in subsection (d), section one hundred one, article
one, chapter sixty-a of this code.
(4) "Custodian" means a person over the age of fourteen years
who has or shares actual physical possession or care and custody of
a child on a full-time or temporary basis, regardless of whether
such person has been granted custody of the child by any contract,
agreement or legal proceeding. "Custodian" shall also include, but
not be limited to, the spouse of a parent, guardian or custodian,
or a person cohabiting with a parent, guardian or custodian in the
relationship of husband and wife, where such spouse or other person
shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
(5) "Guardian" means a person who has care and custody of a
child as the result of any contract, agreement or legal proceeding.
(6) "Neglect" means the unreasonable failure by a parent,
guardian, or any person voluntarily accepting a supervisory role
towards a minor child to exercise a minimum degree of care to
assure said minor child's physical safety or health.
(7) "Parent" means the biological father or mother of a child,
or the adoptive mother or father of a child.
(8) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(9) "Sexual exploitation" means an act whereby:
(A) A parent, custodian, or guardian or other person in a
position of trust to a child, whether for financial gain or not,
persuades, induces, entices or coerces a the child to engage in
sexually explicit conduct as that term is defined in section one, article eight-c, chapter sixty-one of this code; or
(B) A parent, guardian, or custodian or other person in a
position of trust in relation to a child persuades, induces,
entices or coerces a the child to display his or her sex organs for
the sexual gratification of the parent, guardian, custodian, person
in a position of trust or a third person, or to display his or her
sex organs under circumstances in which the parent, guardian, or
custodian or other person in a position of trust knows such display
is likely to be observed by others who would be affronted or
alarmed.
(10) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.
(11) "Sexual intrusion" means sexual intrusion as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(12) A "person in a position of trust in relation to a child"
refers to any person who is acting in the place of a parent and
charged with any of a parent's rights, duties or responsibilities
concerning a child or someone responsible for the general
supervision of a child's welfare, or any person who by virtue of
their occupation or position is charged with any duty or
responsibility for the health, education, welfare, or supervision
of the child.
§61-8D-5. Sexual abuse by a parent, guardian
or custodian or
person in a position of trust to a child; parent, guardian, or custodian or person in a position of
trust allowing sexual abuse to be inflicted upon a
child; displaying of sex organs by a parent,
guardian, or custodian; penalties.
(a) In addition to any other offenses set forth in this code,
the Legislature hereby declares a separate and distinct offense
under this subsection, as follows: If any parent, guardian or
custodian of or other person in a position of trust in relation to
a child under his or her care, custody or control, shall engage in
or attempt to engage in sexual exploitation of, or in sexual
intercourse, sexual intrusion or sexual contact with, a child under
his or her care, custody or control, notwithstanding the fact that
the child may have willingly participated in such conduct, or the
fact that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or
mental or emotional injury as a result of such conduct, then such
parent, guardian, or custodian or person in a position of trust
shall be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary not less than ten nor more than
twenty years, or fined not less than five hundred nor more than
five thousand dollars and imprisoned in the penitentiary not less
than ten years nor more than twenty years.
(b) If any parent, guardian, or custodian or other person in
a position of trust in relation to the child shall knowingly
procure another person to engage in or attempt to engage in sexual
exploitation of, or sexual intercourse, sexual intrusion or sexual contact with, a child under the care, custody or control of such
parent, guardian or custodian or person in a position of trust when
such child is less than sixteen years of age, notwithstanding the
fact that the child may have willingly participated in such conduct
or the fact that the child may have suffered no apparent physical
injury or mental or emotional injury as a result of such conduct,
such parent, guardian, or custodian or person in a position of
trust shall be guilty of a felony and, upon conviction thereof,
shall be imprisoned in the penitentiary not less than five years
nor more than fifteen years, or fined not less than one thousand
nor more than ten thousand dollars and imprisoned in the
penitentiary not less than five years nor more than fifteen years.
(c) If any parent, guardian or custodian or other person in a
position of trust in relation to the child shall knowingly procure
another person to engage in or attempt to engage in sexual
exploitation of, or sexual intercourse, sexual intrusion or sexual
contact with, a child under the care, custody or control of such
parent, guardian, or custodian or person in a position of trust
when such child is sixteen years of age or older, notwithstanding
the fact that the child may have consented to such conduct or the
fact that the child may have suffered no apparent physical injury
or mental or emotional injury as a result of such conduct, then
such parent, guardian, or custodian or person in a position of
trust shall be guilty of a felony and, upon conviction thereof,
shall be imprisoned in the penitentiary not less than one year nor
more than five years.
(d) The provisions of this section shall not apply to a
custodian or person in a position of trust whose age exceeds the
age of the child by less than four years.
The bill (Eng. H. B. No. 3098), as amended, was then ordered
to third reading.
Eng. House Bill No. 3104, Relating to the payment of
telecommunications charges.
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 one, after the enacting section by inserting the
following:
ARTICLE 7. INFORMATION SERVICES AND COMMUNICATIONS DIVISION.;
On page two, section four-a, line ten, by striking out the
words "hereby created" and inserting in lieu thereof the word
"continued";
And,
On page ten, section four-a, line one hundred fifty-five, by
striking out the words "shared account" and inserting in lieu
thereof the words "statewide contract".
The bill (Eng. H. B. No. 3104), 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.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3138, Relating to requiring
health insurance plans to cover the cost of contraceptives.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3145, Providing immunity
from civil damages for persons who volunteer their services at the
public health departments.
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 two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-19a. Civil liability of certain volunteers who render
services for a public health department during declared
periods of disaster; limitations on liability; exceptions.
(a) A person who gratuitously volunteers his or her services
in good faith to a public health department during an emergency
declared by the governor may not be held liable for any act of
simple negligence arising from his or her acts or omissions in
providing his or her services or arranging to provide additional
care: Provided, That such person is acting within the scope of a job description consistent with those promulgated by the National
Center for Disease Control.
(b) The limitation of liability established by this section
does not apply to intentional tortuous conduct or acts or omissions
constituting gross negligence.
(c) Any volunteer covered under the provisions of this section
shall not be held liable to an extent greater than the applicable
limits of his or her liability insurance policy or policies where
treatment was rendered pursuant to the provisions of this section.
On motion of Senator Barnes, the following amendments to the
Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 3145) were reported by the Clerk, considered simultaneously,
and adopted:
On page one, section nineteen-a, line fifteen, after the word
"negligence." by inserting the following: Any volunteer covered
under the provisions of this section shall not be held liable to an
extent greater than the applicable limits of his or her liability
insurance policy or policies where treatment was rendered pursuant
to the provisions of this section.;
And,
On page one, section nineteen-a, by striking out all of
subsection (c).
The question now being on the adoption of Judiciary committee
amendment to the bill, as amended, the same was put and prevailed.
The bill (Eng. Com. Sub. for H. B. No. 3145), as amended, was
then ordered to third reading.
Eng. House Bill No. 3151, Regulating dialysis technicians by
the Board of Examiners for Registered Professional Nurses.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
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.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Banking and Insurance, were reported by the Clerk, considered
simultaneously, and adopted:
On page two, section five-a, lines three and four, after the
word "provide" by striking out the comma and the words "at its
discretion,";
And,
On page two, section five-a, line eight, after the word
"Corrections" by changing the period to a colon, striking out the
word "The" and inserting in lieu thereof the words "Provided, that
the".
The bill (Eng. H. B. No. 3152), as amended, was then ordered
to third reading.
Eng. House Bill No. 3153, Establishing the crime of railroad
vandalism.
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 §61-3-28 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §61-3-41 of said code be amended
and reenacted, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-28. Offenses against railroad property and persons on
railroad property; definitions.
If any person maliciously obstruct, remove or injure any part
of a railroad, traction line or street railway, or canal, or any
bridge or fixture thereof, or shall obstruct any machinery, work,
engine or motor thereof, or any conveyor of electricity or other
power used by the same, whereby the life of any traveler on such
road or traction line or street railway is put in peril, he shall
be guilty of a felony, and, upon conviction, shall be confined in
the penitentiary not less than one year.
(a) As used in this section:
(1) "Bodily injury" means substantial physical pain, illness
or any impairment of physical injury.
(2) "Railroad" means any form of nonhighway ground
transportation that runs on rails or electromagnetic guideways,
including:
(i) Commuter or other short-haul railroad passenger service in a metropolitan or suburban area; and
(ii) High-speed ground transportation systems that connect
metropolitan areas but does not include rapid transit operations in
an urban area that are not connected to the general railroad system
of transportation;
(3) "Railroad carrier" means a person providing railroad
transportation; railroad carrier including a right-of-way, track,
bridge, yard, shop, station, tunnel, viaduct, trestle, depot,
warehouse, terminal, railroad signal system, train control system,
centralized dispatching system, or any other structure,
appurtenance, or equipment owned, leased, or used in the operation
of any railroad carrier including a train, locomotive, engine,
railroad car, work equipment, rolling stock, or safety device.
"Railroad property" does not include administrative buildings,
administrative offices, or administrative office equipment;
(4) "Right-of-way" means the track or roadbed owned, leased,
or operated by a railroad carrier which is located on either side
of its tracks and which is readily recognizable to a reasonable
person as being railroad property or is reasonably identified as
such by fencing or appropriate signs;
(5) "Yard" means a system of parallel tracks, crossovers, and
switches where railroad cars are switched and made up into trains,
and where railroad cars, locomotives and other rolling stock are
kept when not in use or when awaiting repairs.
(b) Whoever willfully damages or attempts to damage railroad
property or willfully endangers or attempts to endanger the safety of another, by:
(1) Taking, removing, altering, or otherwise vandalizing a
railroad sign, placard or marker;
(2) Throwing or dropping an object capable of causing
significant damage to railroad property at or on a locomotive,
railroad car or train;
(3) Shooting a firearm or other dangerous weapon at a
locomotive, railroad car or train;
(4) Removing appurtenances from, damaging, or otherwise
impairing the operation of any railroad signal system, including a
train control system, centralized dispatching system, or
highway-railroad grade crossing warning signal, on a railroad
owned, leased, or operated by any railroad carrier, and without
consent of the railroad carrier involved;
(5) Interfering or tampering with, or obstructing in any way,
any switch, frog, rail, roadbed, sleeper, viaduct, bridge, trestle,
culvert, embankment, structure, or appliance pertaining to or
connected with any railroad carrier without consent of the railroad
carrier involved; or
(6) Taking, stealing, removing, changing, adding to, altering,
or in any manner interfering with any part of the operating
mechanism of any locomotive, engine, tender, coach, car, caboose,
or motor car used or capable of being used by any railroad carrier
in this state without consent of the railroad carrier is guilty of
a felony.
If railroad property damage does not exceed one thousand dollars and no bodily injury occurs to another as a result of any
of the aforesaid acts, upon conviction thereof, the person shall be
fined not more than five thousand dollars, confined in a regional
jail for not more than one year, or both. If bodily injury occurs
to another not acting with or in connection with the perpetrator as
a result of any of the aforesaid acts or if railroad property
damage exceeds one thousand dollars, upon conviction thereof, the
person shall be fined not more than ten thousand dollars, committed
to the custody of the Commission of Corrections for not less than
one nor more than ten years, or both.
(d) The provisions of this section do not apply to any person
employed by a railroad who is performing the duties assigned by the
railroad or who is otherwise performing within the scope of his or
her employment.
§61-3-41. Employees conservators of the peace; special railroad
policemen; penalties.
Any person who shall willfully and unlawfully injure, impair,
weaken, destroy or misplace any building, bridge, rail, track,
sidetrack, switch, rail bonds, spur track, work engine, machine,
locomotive, handcar, depot, car, trestle, telegraph line, telegraph
pole, telegraph wire, telegraph instrument, or any other
instrument, machine, invention, or mechanical or electrical
appliance whatever, which may be, or now is used by any company
operating or using any railroad or traction line or system, or
other line or work of internal improvement, in this state; or who
shall obstruct any corporation which is the owner or lessee of any railroad or traction line or system, or other work of internal
improvement, in this state, in the use of any such property, shall
be guilty of a misdemeanor, and, upon conviction, shall be fined
not exceeding one thousand dollars and imprisoned not exceeding six
months. If the death of any person occur in consequence of any
such unlawful act, the person or persons committing the same shall
be guilty of murder and punished accordingly. Or if any person on
a train, or locomotive, or passenger car, on any railroad or
traction line or system, is maimed or disfigured by reason of any
such unlawful act, the person convicted of causing the same shall
be guilty of a felony, and shall be confined in the penitentiary
not less than one nor more than twenty years.
If any person shall shoot or throw stones, or other dangerous
missiles at or into any passenger car, or other railroad or
traction car used for carrying passengers or other persons, while
any such passenger or other person is within the same, he shall be
guilty of a felony, and, upon conviction, shall be confined in the
penitentiary not less than one nor more than ten years. And if any
person, whether a passenger or not, shall, while on any passenger
car or on any train of cars, behave in a riotous or disorderly
manner, he shall be guilty of a misdemeanor, and, upon conviction,
shall be fined not less than twenty-five nor more than two hundred
dollars, and may, in the discretion of the court, be confined in
jail not less than one nor more than six months, and may be ejected
from such car or train by the person or persons in charge thereof;
and such force as is necessary for that purpose may be used by such person or persons in charge of such passenger car or train of cars,
with such other persons as they may call to their aid.
The conductor of every passenger car and flagmen flag person
and brakemen brake person employed on such car, as well as the
conductor of every train of railroad or traction cars, shall have
all the powers of a conservator of the peace while in charge of
such car or train.
Any railroad company owning, or leasing and operating, or
using any railroad or traction line or system lying wholly or
partially within this state, whether such railroad be operated by
steam or electric power, may apply to the governor to appoint such
citizen or citizens of this state as such railroad company may
designate, to act as special police officers for such railroad or
traction company, with the consent of such citizen or citizens; and
the governor may, upon such application, appoint and commission
such person or persons, or so many of them as he may deem proper,
as such special police officers. Every police officer so appointed
shall appear before some person authorized to administer oaths and
take and subscribe the oath prescribed in the fifth section of the
fourth article of the constitution, and shall file such oath with
the clerk of the county commission, or other tribunal in lieu
thereof, of the county in which he shall reside. He or she shall
also file certified copies of such oath in the office of the
secretary of state, and in the office of the clerk of the county
commission, or other tribunal established in lieu thereof, of each
county through which such railroad or any portion thereof may extend. Every police officer appointed under the provisions of
this section shall be a conservator of the peace within each county
in which any part of such railroad may be situated, and in which
such oath or a certified copy thereof shall have been filed with
the clerk of the county commission or other tribunal established in
lieu thereof; and, in addition thereto, he shall possess and may
exercise all the powers and authority, and shall be entitled to all
the rights, privileges and immunities within such counties, as are
now or hereafter may be vested in or conferred upon a deputy
sheriff of such county. Any appointment made by the governor under
the provisions of this section may be revoked by him or her for
good cause shown, and such police officers may be removed from
office for official misconduct, incompetence, habitual drunkenness,
neglect of duty or gross immorality, in the same manner in which
regularly elected or appointed county officers may be removed from
office. Whenever any such railroad company shall desire to
dispense with the services of any such police officer, it may file
a notice to that effect, under its corporate seal, attested by its
secretary, in each of the several offices in which such oath or
certified copy thereof shall have been filed; and, thereupon, the
powers of such the police officer shall cease and determine. Such
police Police officers may wear such uniform and badge of
authority, or either, as the railroad company, upon whose
application they were appointed, may designate, and such railroad
company shall pay them for all services rendered by them pursuant
to such his or her appointment.
The bill (Eng. H. B. No. 3153), as amended, was then ordered
to third reading.
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.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
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.
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 two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 5. DIVORCE.
§48-5-608. Injunctive relief or protective orders.
(a) When allegations of abuse have been proved, the court
shall enjoin the offending party from molesting or interfering with
the other, or otherwise imposing any restraint on the personal
liberty of the other or interfering with the custodial or
visitation rights of the other. The order may permanently enjoin
the offending party from entering the school, business or place of employment of the other for the purpose of molesting or harassing
the other or from entering or being present in the immediate
environs of the residence of the petitioner or from contacting the
other, in person or by telephone, for the purpose of harassment or
threats; or from harassing or verbally abusing the other. The
relief afforded by the provisions of this subsection may be ordered
whether or not there are grounds for relief under subsection (c) of
this section and whether or not an order is entered pursuant to
such subsection.
(b) Any order entered by the court to protect a party from
abuse may grant any other relief authorized to be awarded by the
provisions of article twenty-seven of this chapter, if the party
seeking the relief has established the grounds for that relief as
required by the provisions of said article. The relief afforded by
the provisions of this subsection may be ordered whether or not
there are grounds for relief under subsection (c) of this section
and whether or not an order is entered pursuant to subsection (c)
of this section.
(c) The court, in its discretion, may enter a protective
order, as provided by the provisions of article twenty-seven of
this chapter, as part of the final relief in a divorce action,
either as a part of a order for final relief or in a separate
written order. A protective order entered pursuant to the
provisions of this subsection shall remain in effect for the period
of time ordered by the court not to exceed one hundred eighty days:
Provided, That if the court determines that a violation of a domestic violence protective order entered during or extended by
the divorce action has occurred, it the court may extend the
protective order for whatever period the court deems necessary to
protect the safety of the petitioner and others threatened or at
risk, if the court determines:
(A) That a violation of a protective order entered during or
extended by the divorce action has occurred; or
(B) Upon a motion for modification, that a violation of a
provision of a final order entered pursuant to this section has
occurred.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-401. Interaction between domestic proceedings.
(a) During the pendency of a divorce action, a person may file
for and be granted relief provided by this article until an order
is entered in the divorce action pursuant to part 5-501, et seq.;
(b) If a person who has been granted relief under this article
should subsequently become a party to an action for divorce,
separate maintenance or annulment, such person shall remain
entitled to the relief provided under this article including the
right to file for and obtain any further relief, so long as no
temporary order has been entered in the action for divorce,
annulment and separate maintenance, pursuant to Part 5-501, et
seq.;
(c) Except as provided in section 5-509 of this chapter and
section 27-402 of this article for a petition and a temporary
emergency protective order, no person who is a party to a pending action for divorce, separate maintenance or annulment in which an
order has been entered pursuant to Part 5-501, et seq. of this
chapter, shall be entitled to file for or obtain relief against
another party to that action under this article until after the
entry of a final order which grants or dismisses the action for
divorce, annulment or separate maintenance.
(d) Notwithstanding the provisions set forth in section
27-505, when an action seeking a divorce, an annulment or separate
maintenance, the allocation of custodial responsibility or a habeas
corpus action to establish custody, the establishment of paternity,
the establishment or enforcement of child support, or other relief
under the provisions of this chapter is filed or is reopened by
petition, motion or otherwise, then any order issued pursuant to
this article which is in effect on the day the action is filed or
reopened shall remain in full force and effect by operation of this
statute until: (1) A temporary order other than a procedural order
or a final order is entered pursuant to the provisions of part 5-
501, et seq. or part 6-601 et seq. of this chapter; or (2) an order
is entered modifying such order issued pursuant to this article; or
(3) the entry of a final order granting or dismissing the action.
§48-27-503. Permissive provisions in protective order.
The terms of a protective order may include:
(1) Granting possession to the petitioner of the residence or
household jointly resided in at the time the abuse occurred;
(2) Ordering the respondent to refrain from entering or being
present in the immediate environs of the residence of the petitioner;
(2) (3) Awarding temporary custody of or establishing
temporary visitation rights with regard to minor children named in
the order;
(3) (4) Establishing terms of temporary visitation with regard
to the minor children named in the order including, but not limited
to, requiring third party supervision of visitations if necessary
to protect the petitioner and/or the minor children;
(4) (5) Ordering the noncustodial parent to pay to the
caretaker parent a sum for temporary support and maintenance of the
petitioner and children, if any;
(5) (6) Ordering the respondent to pay to the petitioner a sum
for temporary support and maintenance of the petitioner, where
appropriate;
(6) (7) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or
household or family members for the purpose of violating the
protective order;
(7) (8) Ordering the respondent to participate in an
intervention program for perpetrators;
(8) (9) Ordering the respondent to refrain from contacting,
telephoning, communicating, harassing or verbally abusing the
petitioner.
(9) (10) Providing for either party to obtain personal
property or other items from a location, including granting
temporary possession of motor vehicles owned by either or both of the parties, and providing for the safety of the parties while this
occurs, including ordering a law-enforcement officer to accompany
one or both of the parties.
(10) (11) Ordering the respondent to reimburse the petitioner
or other person for any expenses incurred as a result of the
domestic violence, including, but not limited to, medical expenses,
transportation and shelter; and
(11) (12) Ordering the petitioner and respondent to refrain
from transferring, conveying, alienating, encumbering, or otherwise
dealing with property which could otherwise be subject to the
jurisdiction of the court or another court in an action for divorce
or support, partition or in any other action affecting their
interests in property.
§48-27-504. Provisions in protective order for person witnessing
or reporting domestic violence.
When the person to be protected is a person who reported or
was a witness to the domestic violence, the terms of a protective
order may order:
(1) The respondent to refrain from abusing, contacting,
telephoning, communicating, harassing, verbally abusing or
otherwise intimidating the person to be protected; and
(2) The respondent to refrain from entering the school,
business or place of employment of the person to be protected for
the purpose of violating the protective order; and
(3) The respondent to refrain from entering or being present
in the immediate environs of the residence of the petitioner.
§48-27-902. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner or minor children,
or both, or is physically present at any location:
(1) In knowing and willful violation of the terms of an
emergency or final protective order under the provisions of this
article or sections 5-509 or 5-608 of this chapter granting the
relief pursuant to the provisions of this article;
(2) In knowing and willful violation of the terms of a
protection order from another jurisdiction that is required to be
enforced pursuant to section 3, article 28 of this chapter; or
(3) In knowing and willful violation of the terms of a
condition of bail, probation or parole imposed in another state
which has the express intent or effect of protecting the personal
safety of a particular person or persons in violation of section
28-7(a)(3) of this chapter then any person authorized to file a
petition pursuant to the provisions of section 27-305 or the legal
guardian or guardian ad litem may file a petition for civil
contempt as set forth in section 27-901.
(b) When any such violation of a valid order has occurred, the
petitioner may file a criminal complaint. If the court finds
probable cause upon the complaint, the court shall issue a warrant
for arrest of the person charged.
§48-27-1001. Arrest for violations of protective orders.
(a) When a law-enforcement officer observes any respondent
abuse the petitioner or minor children or the respondent's physical
presence at any location in knowing and willful violation of the terms of an emergency or final protective order issued under the
provisions of this article or section 5-509 or 5-608 of this
chapter granting the relief pursuant to the provisions of this
article, in knowing and willful violation of the terms of a
protection order from another jurisdiction that is required to be
enforced pursuant to section four, article twenty-eight of this
chapter, he or she shall immediately arrest the respondent.
(b) When a family or household member is alleged to have
committed a violation of the provisions of section 27-903 or 28-7,
a law-enforcement officer may arrest the perpetrator for said
offense where:
(1) The law-enforcement officer has observed credible
corroborative evidence, as defined in subsection 27-1002(b), that
the offense has occurred; and
(2) The law-enforcement officer has received, from the victim
or a witness, a verbal or written allegation of the facts
constituting a violation of section 27-903; or
(3) The law-enforcement officer has observed credible evidence
that the accused committed the offense.
(c) Any person who observes a violation of a protective order
as described in this section, or the victim of such abuse or
unlawful presence, may call a local law-enforcement agency, which
shall verify the existence of a current order, and shall direct a
law-enforcement officer to promptly investigate the alleged
violation.
(d) Where there is an arrest, the officer shall take the arrested person before a circuit court or a magistrate and, upon a
finding of probable cause to believe a violation of an order as set
forth in this section has occurred, the court or magistrate shall
set a time and place for a hearing in accordance with the West
Virginia rules of criminal procedure.
The bill (Eng. Com. Sub. for H. B. No. 3178), as amended, was
then ordered to third 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.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
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.
Having been removed from the Senate second reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 3216, Describing the scope and limitations
of legislative immunity.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
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.
On second reading, coming up in regular order, was read a
second time.
At the request Senator Helmick, 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. 3258, Permitting the sale of
nonintoxicating beer within a certain distance from a church that
consents to the sale.
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 one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 16. NONINTOXICATING BEER.
§11-16-8. Form of application for license; fee and bond; refusal
of license.
(a) A license may be issued by the Commissioner to any person who
submits an application therefor, accompanied by a license fee, and,
where required, a bond, stating under oath:
(1) The name and residence of the applicant, the duration of such
residency, that the applicant has been a resident of the state for a period of two years next preceding the date of the application
and that the applicant is twenty-one years of age. If the
applicant is a firm, association, partnership, limited partnership
or corporation, the application shall include the residence of the
members or officers for a period of two years next preceding the
date of such application: Provided, That if any person, firm,
partnership, limited partnership, association or corporation
applies for a license as a distributor, such person, or in the case
of a firm, partnership, limited partnership or association, the
members or officers thereof shall state under oath that each has
been a bona fide resident of the state for four years preceding the
date of such application;
(2) The place of birth of applicant, that he or she is a citizen
of the United States and of good moral character and, if a
naturalized citizen, when and where naturalized; and, if a
corporation organized or authorized to do business under the laws
of the state, when and where incorporated, with the name and
address of each officer; that each officer is a citizen of the
United States and a person of good moral character; and if a firm,
association, partnership or limited partnership, the place of birth
of each member of the firm, association, partnership or limited
partnership, and that each member is a citizen of the United States
and if a naturalized citizen, when and where naturalized, each of
whom must qualify and sign the application: Provided, That the
requirements as to residence shall not apply to the officers of a
corporation which shall apply for a retailer's license, but the officers, agent, or employee who shall manage and be in charge of
the licensed premises shall possess all of the qualifications
required of an individual applicant for a retailer's license,
including the requirement as to residence;
(3) The particular place for which the license is desired and a
detailed description thereof;
(4) The name of the owner of the building and, if the owner is not
the applicant, that such applicant is the actual and bona fide
lessee of the premises;
(5) That the place or building in which is proposed to do business
conforms to all laws of health, fire and zoning regulations
applicable thereto, and is a safe and proper place or building, and
is not within three hundred feet of any school or church, measured
from front door to front door, along the street or streets:
Provided, That this requirement shall not apply to a Class B
license, or to any place now occupied by a beer licensee, so long
as it is continuously so occupied: Provided, however, That the
prohibition against locating any such proposed business in a place
or building within three hundred feet of any school shall not apply
to any college or university that has notified the Commissioner, in
writing, that it has no objection to the location of any such
proposed business in a place or building within three hundred feet
of such college or university: Provided further, That the
prohibition against locating any such proposed business in a place
or building within three hundred feet of any church shall not apply
to any church whenever the governing body of such church has notified the Commissioner, in writing, that it has no objection to
the location of any such proposed business in a place or building
within three hundred feet of the church: And provided further,
That any such business shall have been in business for at least one
year prior to making application: And provided further, That any
such business shall be precluded during its period of licensure
from operating video lottery: And provided further, That such
business must provide information about the outside appearance and
floor plan to the church prior to gaining the church's approval:
And provided further, That a church shall have the opportunity to
rescind such approval three years after the issuance of the license
and every third year thereafter: And provided further, That such
business was in existence on the first day of July, two thousand
five.
(6) That the applicant is not incarcerated and has not during the
five years immediately preceding the date of said application been
convicted of a felony;
(7) That the applicant is the only person in any manner pecuniarily
interested in the business so asked to be licensed, and that no
other person shall be in any manner pecuniarily interested therein
during the continuance of the license; and
(8) That the applicant has not during five years next immediately
preceding the date of said application had a nonintoxicating beer
license revoked.
(b) The provisions and requirements of subsection (a) of this
section are mandatory prerequisites for the issuance, and in the event any applicant fails to qualify under the same, license shall
be refused. In addition to the information furnished in any
application, the Commissioner may make such additional and
independent investigation of each applicant, and of the place to be
occupied, as deemed necessary or advisable; and for this reason
each and all applications, with license fee and bond, must be filed
thirty days prior to the beginning of any fiscal year, and if
application is for an unexpired portion of any fiscal year,
issuance of license may be withheld for such reasonable time as
necessary for investigation.
(c) The Commissioner may refuse a license to any applicant under
the provisions of this article if the Commissioner shall be of the
opinion:
(1) That the applicant is not a suitable person to be licensed;
(2) That the place to be occupied by the applicant is not a
suitable place; or is within three hundred feet of any school or
church, measured from front door to front door along the street or
streets: Provided, That this requirement shall not apply to a
Class B licensee, or to any place now occupied by a beer licensee,
so long as it is continuously so occupied: Provided, however, That
the prohibition against locating any such place to be occupied by
an applicant within three hundred feet of any school shall not
apply to any college or university that has notified the
Commissioner, in writing, that it has no objection to the location
of any such place within three hundred feet of such college or
university: Provided further, That the prohibition against locating any such proposed business in a place or building within
three hundred feet of any church shall not apply to any church
whenever the governing body of such church has notified the
Commissioner, in writing, that it has no objection to the location
of any such proposed business in a place or building within three
hundred feet of the church: And provided further, That any such
business shall have been in business for at least one year prior to
making application: And provided further, That any such business
shall be precluded during its period of licensure from operating
video lottery: And provided further, That such business must
provide information about the outside appearance and floor plan to
the church prior to gaining the church's approval: And provided
further, That a church shall have the opportunity to rescind such
approval three years after the issuance of the license and every
third year thereafter: And provided further, That such business
was in existence on the first day of July, two thousand five; or
(3) That the license should not be issued for reason of conduct
declared to be unlawful by this article.
On motion of Senator Deem, the following amendments to the
Judiciary committee amendment to the bill were reported by the
Clerk and considered simultaneously:
On page four, section eight, line three, after the word "five" by
changing the period to a colon and inserting the following proviso:
And provided further, That on and after the first day of July, two
thousand five, no license may be issued to an applicant whose place
or building in which the applicant proposes to do business is located within three hundred feet of any school or church, measured
from the closest property boundary.;
And,
On page six, section eight, line six, after the word "five" by
changing the period to a colon and inserting the following proviso:
"And provided further, That on and after the first day of July, two
thousand five, no license may be issued to an applicant whose place
or building in which the applicant proposes to do business is
located within three hundred feet of any school or church, measured
from the closest property boundary;".
Following a point of inquiry to the President, with resultant
response thereto,
The question being on the adoption of Senator Deem's amendments to
the Judiciary committee amendment to the bill, the same was put and
prevailed.
On motion of Senator Sprouse, the following amendments to the
Judiciary committee amendment to the bill (Eng. H. B. No. 3258)
were reported by the Clerk and considered simultaneously:
On page five, section eight, after line four, by inserting a new
subdivision, designated subdivision (2), to read as follows:
"(2) That the place to be occupied shall have video lottery
operating during its period of licensure;";
And,
By renumbering the remaining subdivisions.
Senator Kessler arose to a point of order that the amendments
offered by Senator Sprouse to the Judiciary committee amendment to the bill (Eng. H. B. No. 3258) was not germane.
Which point of order, the President ruled not well taken.
The question being on the adoption of the amendments offered by
Senator Sprouse to the Judiciary committee amendment to the bill,
the same was put and prevailed.
The question now being on the adoption of the Judiciary committee
amendment to the bill, as amended, the same was put and prevailed.
The bill (Eng. H. B. No. 3258), as amended, was then ordered to
third reading.
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.
On second reading, coming up in regular order, was read a second
time.
On motion of Senator Kessler, the following amendment to the bill
was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting section
and inserting in lieu thereof the following:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS.
§16-13A-25. Borrowing and bond issuance; procedure.
(a) Notwithstanding any other provisions of this article to the
contrary, a public service district may not borrow money, enter
into contracts for the provision of engineering, design or
feasibility studies, issue or contract to issue revenue bonds or exercise any of the powers conferred by the provisions of section
thirteen, twenty or twenty-four of this article, without the prior
consent and approval of the Public Service Commission.
(b) The Public Service Commission may waive the provision of prior
consent and approval for entering into contracts for engineering,
design or feasibility studies pursuant to this section for good
cause shown which is evidenced by the public service district
filing a request for waiver of this section stated in a letter
directed to the commission with a brief description of the project,
a verified statement by the board members that the public service
district has complied with chapter five-g of this code, and further
explanation of ability to evaluate their own engineering contract,
including, but not limited to:
(1) Experience with the same engineering firm; or
(2) Completion of a construction project requiring engineering
services. The district shall also forward an executed copy of the
engineering contract to the commission after receiving approval of
the waiver.
(c) An engineering contract that meets one or more of the following
criteria is exempt from the waiver or approval requirements:
(1) A contract with a public service district that is a Class A
utility on the first day of April, two thousand three, or
subsequently becomes a Class A utility as defined by commission
rule;
(2) A contract with a public service district that does not require
borrowing and that can be paid out of existing rates;
(3) A contract where the payment of engineering fees are contingent
upon the receipt of funding, and commission approval of the
funding, to construct the project which is the subject of the
contract; or
(4) A contract that does not exceed fifteen thousand dollars.
(d) Requests for approval or waivers of engineering contracts shall
be deemed granted thirty days after the filing date unless the
staff of the Public Service Commission or a party files an
objection to the request. If an objection is filed, the Public
Service Commission shall issue its decision within one hundred
twenty days of the filing date. In the event objection is received
to a request for a waiver, the application shall be considered a
request for waiver as well as a request for approval in the event
a waiver is not appropriate.
(e) Unless the properties to be constructed or acquired represent
ordinary extensions or repairs of existing systems in the usual
course of business, a public service district must first obtain a
certificate of public convenience and necessity from the Public
Service Commission in accordance with the provisions of chapter
twenty-four of this code, when a public service district is seeking
to acquire or construct public service property.
Thirty days prior to making formal application for the certificate,
the public service district shall prefile with the Public Service
Commission its plans and supporting information for the project in
a manner prescribed by Public Service Commission rules and
regulations.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-11. Requirements for certificate of public convenience and
necessity.
(a)
No public utility, person or corporation shall begin the
construction of any plant, equipment, property or facility for
furnishing to the public any of the services enumerated in section
one, article two of this chapter, nor apply for, nor obtain any
franchise, license or permit from any municipality or other
governmental agency, except ordinary extensions of existing systems
in the usual course of business, unless and until it shall obtain
from the Public Service Commission a certificate of public
convenience and necessity requiring authorizing such construction
franchise, license or permit
(b) Upon the filing of any application for such certificate, and
after hearing, the commission may, in its discretion, issue or
refuse to issue, or issue in part and refuse in part, such
certificate of convenience and necessity: Provided, That the
commission, after it gives proper notice and if no protest is
received within thirty days after the notice is given, may waive
formal hearing on the application. Notice shall be given by
publication which shall state that a formal hearing may be waived
in the absence of protest, made within thirty days, to the
application. The notice shall be published as a Class I legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code. The publication area shall be the proposed area of operation.
(c) Any public utility, person or corporation subject to the
provisions of this section shall give the commission at least
thirty days' notice of the filing of any such application for a
certificate of public convenience and necessity under this section:
Provided, That the commission may modify or waive the thirty-day
notice requirement and shall waive the thirty day notice
requirement for projects approved by the infrastructure and jobs
development council.
(d) The commission shall render its final decision on any
application filed after the thirtieth day of June, one thousand
nine hundred eighty-one, under the provisions of this section or
section eleven-a of this article within two hundred seventy days of
the filing of the application and within ninety days after final
submission of any such application for decision following a
hearing.
(e) The commission shall render its final decision on any
application filed under the provisions of this section that has
received the approval of the
Infrastructure and Jobs Development
Council pursuant to article fifteen-A of chapter thirty-one of this
code
, within one hundred-eighty days after filing of the
application: Provided, that if a protest is received within thirty
days after the notice
is provided pursuant to subsection (b), the
commission shall render its final decision within two hundred
seventy days of the filing of the application.
(f) If the projected total cost of the
subject of an application filed pursuant to this section or section
eleven-a of this article
is greater than fifty million dollars, the
commission shall render its final decision on any such application
filed under the provisions of this section or section eleven-a of
this article within four hundred days of the filing of the
application and within ninety days after final submission of any
such application for decision after a hearing.
(g) If such a decision is not rendered within the aforementioned
one hundred eighty-days, two hundred seventy days, four hundred
days or ninety days, the commission shall issue a certificate of
convenience and necessity as applied for in the application.
(h) The commission shall prescribe such rules and regulations as
it may deem proper for the enforcement of the provisions of this
section; and, in establishing that public convenience and necessity
do exist, the burden of proof shall be upon the applicant.
(b) (i) Pursuant to the requirements of subsection (a) of this
section the commission may issue a certificate of public
convenience and necessity to any intrastate pipeline, interstate
pipeline, or local distribution company for the transportation in
intrastate commerce of natural gas used by any person for one or
more uses, as defined, by rule, by the commission in the case of
(1) Natural gas sold by a producer, pipeline or other seller to
such person; or
(2) Natural gas produced by such person.
(j) A public utility which has received a certificate of public
convenience and necessity from the commission and has been approved by the infrastructure and jobs development council, is not required
to, and cannot be compelled to, reopen the proceeding if the cost
of the project changes but the change does not effect the rates
established for the project.
(k) Any public utility, person or corporation proposing any
electric power project that requires a certificate under this
section is not required to obtain such certificate before applying
for or obtaining any franchise, license or permit from any
municipality or other governmental agency.
The bill (Eng. H. B. No. 3280), as amended, was then ordered third
reading.
At the request of Senator Chafin, and by unanimous consent, the
Senate returned to the consideration of
Eng. House Bill No. 3258, Permitting the sale of nonintoxicating
beer within a certain distance from a church that consents to the
sale.
Having been read a second time, amended and ordered to third
reading in earlier proceedings today.
Senator Chafin moved that the Senate reconsider the vote by which
in prior proceedings today it adopted the Judiciary committee
amendment to the bill, as amended (shown in the Senate Journal of
today, pages 324 to 330, inclusive).
The question being on the adoption of Senator Chafin'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 nineteen "yeas" and
thirteen "nays".
Whereupon, the President declared Senator Chafin's reconsideration
motion had prevailed.
The vote thereon having been reconsidered,
Senator Chafin then moved that the Senate reconsider the vote by
which in prior proceedings today it adopted Senator Deem's
amendments to the Judiciary committee amendment to the bill (shown
in the Senate Journal of today, page 330).
The question being on the adoption of Senator Chafin'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 twenty "yeas" and eleven
"nays".
Whereupon, the President declared Senator Chafin's reconsideration
motion had prevailed.
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Deem's
amendments to the Judiciary committee amendment to the bill.
Senator Minard then moved that Senator Deem's amendments to the
Judiciary committee amendment to the bill be tabled.
Following a point of inquiry to the President, with resultant
response thereto,
The question being on the adoption of Senator Minard's aforestated
motion, the same was put and did not prevail.
The question now being on the adoption of Senator Deem's amendments
to the Judiciary committee amendment to the bill, and on this
question, Senator Deem demanded the yeas and nays.
On this question, the yeas were: Barnes, Boley, Bowman, Caruth,
Deem, Dempsey, Facemyer, Fanning, Foster, Guills, Harrison,
Jenkins, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio,
Sprouse, Unger, Weeks and Yoder--23.
The nays were: Bailey, Chafin, Edgell, Helmick, Hunter, Kessler,
Plymale, Prezioso, Sharpe, White and Tomblin (Mr. President)--11.
Absent: None.
So, a majority of those present and voting having voted in the
affirmative, the President declared Senator Deem's amendments to
the Judiciary committee amendment to the bill (Eng. H. B. No. 3258)
adopted.
The question being on the adoption of the Judiciary committee
amendment to the bill, as amended, the same was put.
The result of the voice vote being inconclusive, Senator Weeks
demanded a division of the vote.
A standing vote being taken, there were thirty-one "yeas" and two
"nays".
Whereupon, the President declared the Judiciary committee amendment
to the bill, as amended, adopted.
The bill (Eng. H. B. No. 3258), as amended, was then ordered to
third reading.
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. 3360, Requiring the IS & C Director to create
and maintain an information systems disaster recovery system.
On second reading, coming up in regular order, was read a second
time and ordered to third reading.
The end of today's second reading calendar having been reached, the
Senate returned to the consideration of
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 third reading, and now coming up in deferred order, with an
unreported Finance committee amendment pending, and with the right
having been granted on yesterday, Thursday, April 7, 2005, for
further amendments to be received on third reading, was again
reported by the Clerk.
At the request of Senator McCabe, unanimous consent being granted,
the bill was laid over one day, retaining its place on the
calendar, with the right to amend on third reading remaining in
effect and with the unreported Finance committee amendment pending.
Action as to Engrossed Committee Substitute for House Bill No. 3208
having been concluded, the Senate returned to the consideration of
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.
On second reading, coming up in deferred 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:
O
n page two, by striking out everything after the enacting section
and inserting in lieu thereof the following:
ARTICLE 3. CRIMES AGAINST THE PERSON.
§61-2-9c. Wanton endangerment involving the use of fire; penalty.
Any person who, during the manufacturer or production of an illegal
controlled substance uses fire, the use of which creates
substantial risk of death or serious bodily injury to another due
to the use of fire, is guilty of a felony and, upon conviction,
shall be committed to the custody of the Division of Corrections
for a definite term of years of not less than one nor more than
five years or, in the discretion of the court, confined in the
regional jail for not more than one year, or fined not less than
two hundred fifty dollars or more than two thousand five hundred
dollars, or both.
The bill (Eng. Com. Sub. for H. B. No. 3049), as amended, was then
ordered to third reading.
The Senate proceeded to the tenth order of business.
Eng. House Bill No. 2450, Relating to a child's right to nurse.
On first reading, coming up in regular order, was read a first time
and ordered to second reading.
At the request of Senator Kessler, unanimous consent being granted,
the Senate returned to the consideration of
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.
Now on third reading, having been read a second time and amended,
and then ordered to third reading in earlier proceedings today.
At the request of Senator Kessler, and by unanimous consent, the
bill was returned to second reading and the amendment stage.
On motion of Senator Helmick, the following amendment to the bill
was reported by the Clerk and adopted:
On page nine, section three, line one hundred thirty-eight, after
the word "article" by changing the period to a colon and inserting
the following proviso: Provided, That a licensed restaurant may
offer for sale off the premises, sealed bottles of wine produced by
a West Virginia farm winery.
The bill (Eng. Com. Sub. for H. B. No. 2266), as amended, was again
ordered to third reading.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 357, Authorizing Department of
Revenue promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page eleven, section four, line thirty-five, by striking out the
word "August" and inserting in lieu thereof the word "September";
And,
On page eleven, section four, by striking out all of lines thirty-
six through forty-four.
On motion of Senator Chafin, the Senate refused to concur in the
foregoing House amendments to the bill (Eng. Com. Sub. for S. B.
No. 357) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 583, Relating to appealing orders from family
court to circuit court.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page one, by striking out everything after the enacting clause
and inserting in lieu thereof the following:
That §51-2A-11, §51-2A-14 and §51-2A-16 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 2A. FAMILY COURTS.
§51-2A-11. Petition for appeal.
(a) Within thirty days following the entry of a final order of or
the entry of an order denying a motion for reconsideration under
section ten of this article made by a family court judge, or the
entry of a final order of any senior status circuit judge, circuit
judge or other judicial officer appointed to serve pursuant to the
provisions of section nineteen of this article, any party may file
a petition for appeal with the circuit court. No appeal may be had
under the provisions of this article from any order of a family
court judge or from any order of another judicial officer
temporarily serving as a family court judge other than a final
order.
(b) A petition for appeal of a final order of the family court
shall be filed in the office of the clerk of the circuit court. At
the time of filing the petition, a copy of the petition for appeal
must be served on all parties to the proceeding in the same manner
as pleadings subsequent to an original complaint are served under
Rule 5 of the Rules of Civil Procedure.
(c) The circuit judge may require, or a party may choose to submit
with the petition for appeal, a brief in support of the petition.
(d) A respondent shall have fifteen days after the filing of a
petition to file a reply to the petition for appeal. The reply
must be served on all parties to the proceeding in the same manner
required for service of the petition. The circuit judge may
require, or a party may choose to submit with the reply, a brief in
opposition to the petition.
(e) In addition to the reply, the respondent may file a
cross-petition to the petition for appeal within fifteen days after
the filing of the petition. The respondent to the cross-petition
shall have fifteen days after the filing of the cross-petition to
file a reply. The cross-petition and any reply must be served in
the same manner required for service of the original petition. The
circuit judge may require or either party may choose to submit a
brief on the cross-petition.
(f) The Supreme Court of Appeals shall develop and provide forms
for appeals filed pursuant to this section. The forms shall be
made available for distribution in the offices of the clerks of the
circuit courts and in the offices of the Secretary-Clerks to the
family court judges.
(g) The Supreme Court of Appeals shall promulgate a supervisory
rule setting forth educational requirements in domestic relations
matters for circuit court judges.
(h) An appeal from the final order of any judicial officer assigned
or appointed pursuant to the provisions of section nineteen of this
article shall be perfected and treated in all respects as an appeal
from an order of the family court. The terms "family court" or
"family court judge" as provided in this section and in sections
twelve, thirteen, fourteen and fifteen of this article mean the
judicial officer who entered the final order which is the subject
of an appeal.
§51-2A-l4. Review by circuit court; record; standard of review;
temporary order upon remand.
(a) The circuit court may refuse to consider the petition for
appeal may affirm or reverse the order, may affirm or reverse the
order in part or may remand the case with instructions for further
hearing before the family court judge.
(b) In considering a petition for appeal, the circuit court
may only consider the record as provided in subsection (d), section
eight of this article.
(c) The circuit court shall review the findings of fact made
by the family court judge under the clearly erroneous standard and
shall review the application of law to the facts under an abuse of
discretion standard.
(c) (d) If the circuit court agrees to consider a petition for
appeal, the court shall provide the parties an opportunity to
appear for oral argument, upon the request of either party or in
the discretion of the court. The provisions of this subsection are
effective until the adoption of rules by the Supreme Court of
Appeals governing the appellate procedures of family courts.
(d)(e) If the proceeding is remanded to the family court, the
circuit court must enter appropriate temporary orders for a
parenting plan or other allocation of custodial responsibility or
decision-making responsibility for a child, child support, spousal
support or such other temporary relief as the circumstances of the
parties may require. If the circuit court remands the case to the
family court, it must state the legal or factual issues to be
considered by the family court on remand. If the family court
determines that the consideration of those issues also requires consideration of collateral or interdependent issues, the family
court may also consider those other collateral or interdependent
issues.
(e)(f) The circuit court must enter an order ruling on a
petition for appeal within sixty days from the last day a reply to
the petition for appeal could have been filed. If the circuit
court does not enter the order within the sixty-day period or does
not, within the sixty-day period, enter an order stating just cause
why the order has not been timely entered, the circuit clerk shall
send a written notice to the parties that unless the parties both
file an objection within fourteen days of the date of the notice,
the appeal will be transferred to the Supreme Court of Appeals as
provided in section fifteen of this article due to the failure of
the circuit court to timely enter an order. The appeal shall be
transferred without the necessity of the filing of any petition or
further document by the petitioner.
§51-2A-16. Expiration of appellate procedures; exceptions; report
requirements.
(a) The provisions of sections eleven, twelve, thirteen,
fourteen and fifteen of this article shall expire and be of no
force and effect after the thirtieth day of June, two thousand five
ten, except as otherwise provided by subsection (b) of this
section.
(b) Appeals that are pending before a circuit court or the
Supreme Court of Appeals on the thirtieth day of June, two thousand
five ten, but not decided before the first day of July, two thousand five ten, shall proceed to resolution in accordance with
the provisions of sections eleven, twelve, thirteen, fourteen and
fifteen of this article, notwithstanding the provisions of
subsection (a) of this section that provide for the expiration of
those sections. The Supreme Court of Appeals shall, by rule,
provide procedures for those appeals that are remanded but not
concluded prior to the first day of July, two thousand five ten, in
the event that the appeals process set forth in sections eleven,
twelve, thirteen, fourteen and fifteen of this article is
substantially altered as of the first day of July, two thousand
five ten.
(c) Prior to the two thousand three eight regular session of
the Legislature and annually thereafter, the Supreme Court of
Appeals shall report to the Joint Committee on Government and
Finance the number of appeals from final orders of the family court
filed in the various circuit courts and in the Supreme Court of
Appeals, the number of pro se appeals filed, the subject matter of
the appeals, the time periods in which appeals are concluded, the
number of cases remanded upon appeal and such other detailed
information so as to enable the Legislature to study the appellate
procedures for family court matters and to consider the possible
necessity and feasibility of creating an intermediate appellate
court or other system of appellate procedure.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 583--A Bill to amend and reenact §51-2A-
11, §51-2A-14 and §51-2A-16 of the Code of West Virginia, 1931, as
amended, all relating to appealing orders from the family court to
the circuit court.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. S. B. No. 583) and
requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 7:00 p.m. tonight:
Eng. Com. Sub. for Senate Bill No. 717, Permitting Wetzel
County Hospital provide alternate retirement plan for new
employees.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senators Minard and Oliverio.
Thereafter, at the request of Senator Oliverio, and by
unanimous consent, the remarks by Senator Minard were ordered
printed in the Appendix to the Journal.
At the request of Senator Jenkins, unanimous consent being
granted, the remarks by Senator Oliverio were ordered printed in
the Appendix to the Journal.
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, Saturday, April 9, 2005, at 11 a.m.
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