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

WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

REGULAR SESSION, 2005

SIXTIETH DAY

____________

Charleston, W. Va., Saturday, April 9, 2005

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

Prayer was offered by the Right Reverend W. Michie Klusmeyer, Bishop, Episcopal Diocese of West Virginia, Charleston, West Virginia.
Pending the reading of the Journal of Friday, April 8, 2005,
On motion of Senator Edgell, 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.
On motion of Senator Love, the special order of business set for this position on the calendar (consideration of executive nominations) was postponed and made a special order of business following an anticipated recess.
The Clerk presented a communication from the Department of Health and Human Resources, submitting its Sudden Infant Death Syndrome Program quarterly report, in accordance with chapter sixteen, article one, section six of the code of West Virginia.
Which communication and report were received and filed with the Clerk.
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 House Bill No. 2780, Engrossed Committee Substitute for House Bill No. 2911 and Engrossed House Bill No. 3216.
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. 2890; and on second reading, Engrossed House Bill No. 2329, Engrossed Committee Substitute for House Bill No. 2369, Engrossed Committee Substitute for House Bill No. 2456, Engrossed Committee Substitute for House Bill No. 2877, Engrossed House Bill No. 2963, Engrossed House Bill No. 2989, Engrossed House Bill No. 3308 and Engrossed House Bill No. 3340, under rule number seventeen of the Rules of the Senate.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 94, Providing additional flexibility for school instructional support and enhancement days.
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 §18-5-45 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-45. School calendar.
(a) As used in this section, the following terms have the following meanings:
(1) "Instructional day" means a day within the instructional term which meets the following criteria:
(A) Instruction is offered to students for at least the minimum amounts of time provided by State Board rule;
(B) Instructional time is used for instruction, cocurricular activities and approved extracurricular activities and, pursuant to the provisions of subdivision (12), subsection (b), section five, article five-a of this chapter, faculty senates; and
(C) Such other criteria as the State Board determines appropriate.
(2) "Bank time" "Accrued instructional time" means instructional time accruing during the instructional term from time added to the instructional day beyond the time required by State Board rule for an instructional day. Accrued instructional time may which may be accumulated and used in larger blocks of time during the school year for instructional or noninstructional activities as further defined by the State Board.
(3) "Extracurricular activities" are activities under the supervision of the school such as athletics, noninstructional assemblies, social programs, entertainment and other similar activities as further defined by the State Board.
(4) "Cocurricular activities" are activities that are closely related to identifiable academic programs or areas of study that serve to complement academic curricula as further defined by the State Board.
(b) Findings. -
(1) The primary purpose of the school system is to provide instruction for students.
(2) The school calendar, as defined in this section, is designed to define the school term both for employees and for instruction.
(3) The school calendar traditionally has provided for one hundred eighty actual days of instruction but numerous circumstances have combined to cause the actual number of instructional days to be less than one hundred eighty.
(4) The quality and amount of instruction offered during the instructional term is affected by the extracurricular and cocurricular activities allowed to occur during scheduled instructional time.
(5) Within reasonable guidelines, the school calendar should be designed at least to guarantee that one hundred eighty actual days of instruction are possible.
(c) The county board shall provide a school term for its schools that contains the following:
(1) An employment term for teachers of no less than two hundred days, exclusive of Saturdays and Sundays; and
(2) Within the employment term, an instructional term for students of no less than one hundred eighty separate instructional days.
(d) The instructional term for students shall include one instructional day in each of the months of October, December, February, April and June which is an instructional support and enhancement day scheduled by the board to include both instructional activities for students and professional activities for teachers to improve student instruction. Instructional support and enhancement days are subject to the following provisions:
(1) Two hours of the instructional support and enhancement day shall be used for instructional activities for students. The instructional activities for students are subject to the following provisions:
(A) The instructional activities for students require the direct supervision or involvement by teachers;
(B) The instructional activities for students shall be limited to two hours;
(C)
The instructional activities for students shall be determined and scheduled at the local school level;
(D) The instructional activities for students
may include, but are not limited to, both in-school and outside of school activities such as student mentoring, tutoring, counseling, student research and other projects or activities of an instructional nature, community service, career exploration, parent and teacher conferences, visits to the homes of students, college and financial aid workshops and college visits; The instructional activities for students shall be determined and scheduled at the local school level. The first two hours of the instructional day shall be used for instructional activities for students which require the direct supervision or involvement by teachers, and such activities shall be limited to two hours.
(E) To ensure that the students who attend are properly supervised, the instructional activities for students shall be arranged by appointment with the individual school through the principal, a teacher or other professional personnel at the school; and
(F) The Each school shall establish a policy relating to the use of the two-hour block scheduled for instructional activities for students;
(2) The professional activities for teachers shall include a two-hour block of time immediately following the first two hours of instructional activities for students during which the faculty senate shall have the opportunity to meet. The instructional support and enhancement day shall include a two-hour block of time for professional activities for teachers during which the faculty senate shall have the opportunity to meet;
(3) Any time not used by the faculty senate and the remainder of the school day, All time remaining in the school day after meeting the requirements of subdivisions (1) and (2) of this subsection, not including the duty-free lunch period, shall be used for other professional activities for teachers to improve student instruction which may include, but are not limited to, professional staff development, curriculum team meetings, individualized education plan meetings and other meetings between teachers, principals, aides and paraprofessionals to improve student instruction as determined and scheduled at the local school level;
(4) Notwithstanding any other provision of law or policy to the contrary, the presence of any specific number of students in attendance at the school for any specific period of time shall not be required on instructional support and enhancement days and the transportation of students to the school shall not be required;
(5) Instructional support and enhancement days are also a scheduled work day for all service personnel and shall be used for training or other tasks related to their job classification if their normal duties are not required; and
(6) Nothing in this section may be construed to require that the instructional activities for students, faculty senate meetings and other professional activities for teachers be scheduled in any certain order.
(e) The instructional term shall commence no earlier than the twenty-sixth day of August and terminate no later than the eighth day of June.
(f) Noninstructional days shall total twenty and shall be comprised of the following:
(1) Seven holidays as specified in section two, article five, chapter eighteen-a of this code;
(2) Election day as specified in section two, article five, chapter eighteen-a of this code;
(3) Six days to be designated by the county board to be used by the employees outside the school environment; and
(4) Six days to be designated by the county board for any of the following purposes:
(A) Curriculum development;
(B) Preparation for opening and closing school;
(C) Professional development;
(D) Teacher-pupil-parent conferences;
(E) Professional meetings; and
(F) Making up days when instruction was scheduled but not conducted.
(g) Three of the days described in subdivision (4), subsection (f) of this section shall be scheduled prior to the twenty-sixth day of August for the purposes of preparing for the opening of school and staff development.
(h) At least one of the days described in subdivision (4), subsection (f) of this section shall be scheduled after the eighth day of June for the purpose of preparing for the closing of school. If one hundred eighty separate instruction days occur prior to the eighth day of June, this day may be scheduled on or before the eighth day of June.
(i) At least four of the days described in subdivision (3), subsection (f) of this section shall be scheduled after the first day of March.
(j) At least two of the days described in subdivision (4), subsection (f) of this section will be scheduled for professional development. The professional development conducted on these days will be consistent with the goals established by the state board pursuant to the provisions of section twenty-three-a, article two of this chapter.
(k) Subject to the provisions of subsection (h) of this section, all noninstructional days will be scheduled prior to the eighth day of June.
(l) Except as otherwise provided in this subsection, the The State Board may not schedule the primary statewide assessment program prior to the fifteenth day of May of the instructional year unless the State Board determines that the nature of the test mandates an earlier testing date. For the school year beginning two thousand three only, the state board may not schedule the primary statewide assessment program prior to the fifteenth day of April of the instructional year.
(m) If, on or after the first day of March, the county board determines that it is not possible to complete one hundred eighty separate days of instruction, the county board shall schedule instruction on any available noninstructional day, regardless of the purpose for which the day originally was scheduled, and the day will be used for instruction, subject to the following:
(1) Provided, That The noninstructional days scheduled for professional development shall be the last available noninstructional days to be rescheduled as instructional days;
(2) Provided, however, That On or after the first day of March, the county board also may require additional minutes of instruction in the school day to make up for lost instructional days in excess of the days available through rescheduling and, if in its judgment it is reasonable and necessary to improve student performance, to avoid scheduling instruction on noninstructional days previously scheduled for professional development; and
(3) The provisions of this subsection do not apply to: (1) Holidays; and (2) election day.
(n) The following applies to bank accrued instructional time:
(1) Except as provided in subsection (m) of this section, bank accrued instructional time may not be used to avoid one hundred eighty separate days of instruction;
(2) Bank Accrued instructional time may not be used to lengthen the time provided in law for faculty senates;
(3) The use of bank accrued instructional time for extracurricular activities will be limited by the state board; and
(4) Accrued instructional time may be used by schools and counties to provide additional time for professional staff development and continuing education as may be needed to improve student performance and meet the requirements of the federal mandates affecting elementary and secondary education. The amount of accrued instructional time used for this purpose may not exceed three instructional days; and
(4) Such (5) Other requirements or restrictions as the State Board may provide in the rule required to be promulgated by this section.
(o) The following applies to cocurricular activities:
(1) The State Board shall determine what activities may be considered cocurricular;
(2) The State Board shall determine the amount of instructional time that may be consumed by cocurricular activities; and
(3) Such Other requirements or restrictions as the State Board may provide in the rule required to be promulgated by this section.
(p) The following applies to extracurricular activities:
(1) Except as provided by subdivision (3) of this subsection, extracurricular activities may not be scheduled during instructional time;
(2) The use of bank accrued instructional time for extracurricular activities will be limited by the State Board; and
(3) The State Board shall provide for the attendance by students of certain activities sanctioned by the Secondary schools School Activities Commission when those activities are related to statewide tournaments or playoffs or are programs required for Secondary schools School Activities Commission approval.
(q) Noninstructional interruptions to the instructional day shall be minimized to allow the classroom teacher to teach.
(r) Nothing in this section prohibits establishing year-round schools in accordance with rules to be established by the State Board.
(s) Prior to implementing the school calendar, the county board shall secure approval of its proposed calendar from the State Board or, if so designated by the State Board, from the State Superintendent.
(t) The county board may contract with all or part of the personnel for a longer term.
(u) The minimum instructional term may be decreased by order of the state superintendent in any county declared a federal disaster area and where the event causing the declaration is substantially related to a reduction of instructional days.
(v) Where the employment term overlaps a teacher's or service personnel's participation in a summer institute or institution of higher education for the purpose of advancement or professional growth, the teacher or service personnel may substitute, with the approval of the county superintendent, the participation for up to five of the noninstructional days of the employment term.
(w) The State Board shall promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code for the purpose of implementing the provisions of this section.;
And,
On page one, by striking out the title and inserting in lieu thereof a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 94--A Bill to amend and reenact §18-5-45 of the Code of West Virginia, 1931, as amended, relating to the school calendar; defining terms; correcting references; providing additional flexibility for instructional support and enhancement days; and authorizing limited use of accrued instructional time for professional development and continuing education for certain purposes.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 94, 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. 94) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended 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. Com. Sub. for Com. Sub. for Senate Bill No. 191, Relating to implementation of modified mental hygiene procedures.
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 5. INVOLUNTARY HOSPITALIZATION.
§27-5-11. Modified procedures for temporary compliance orders for certain medication dependent persons with prior hospitalizations or convictions; to institute modified mental hygiene procedures; procedures; forms.

(a) The Supreme Court of Appeals shall, in consultation with the Secretary of the Department of Health and Human Resources and local mental health services consumers and providers, implement in at least four and no more than six judicial circuits, beginning on the first day of July, two thousand six, modified mental hygiene procedures that are consistent with the requirements set forth in this section. The judicial circuits selected for implementing the modified procedures shall be circuits in which the Supreme Court of Appeals determines, after consultation with the Secretary of the Department of Health and Human Resources and local mental health consumers and service providers, that adequate resources will be available to implement the modified procedures. The Secretary of the Department of Health and Human Resources, after consultation with the Supreme Court of Appeals and local mental health services consumers and service providers, shall prescribe appropriate forms to implement the modified procedures and shall annually prepare a report on the use of the modified procedures and transmit the report to the Legislature on or before the last day of each calendar year. The Supreme Court of Appeals may, after consultation with the Secretary of the Department of Health and Human Resources and local mental health services consumers and providers during the pilot program period, further modify any specific modified procedures that are implemented: Provided, That the modified procedures must be consistent with the requirements of this chapter and this section. If the Secretary of the Department of Health and Human Resources determines that the use of any modified procedure in one or more judicial circuits is placing an unacceptable additional burden upon state mental health resources, the Supreme Court of Appeals shall, in consultation with the Secretary, modify the procedures used in such a fashion as will address the concerns of the Secretary, consistent with the requirements of this chapter. The provisions of this section and the modified procedures thereby authorized shall cease to have any force and effect on the thirtieth day of June, two thousand ten, unless extended by an Act of the Legislature prior to that date.
(b) (1) The modified procedures shall authorize that a verified petition seeking a treatment compliance order may be filed by any person alleging:
(A) That an individual, on two or more occasions within a twenty-four month period prior to the filing of the petition, as a result of mental illness, has been hospitalized pursuant to the provisions of this chapter; or that the individual has been convicted of one or more crimes of violence against the person within a 24-month period prior to the filing of the petition, and the individual's failure to take prescribed medication or follow another prescribed regimen to treat a mental illness was a significant aggravating or contributing factor in the circumstances surrounding the crime;
(B) That the individual?s previous hospitalizations due to mental illness or the individual's crime of violence occurred after or as a result of the individual?s failure to take medication or other treatment as prescribed by a physician to treat the individual?s mental illness; and
(C) That the individual, in the absence of a court order requiring him or her to take medication or other treatment as prescribed, is unlikely to do so and that his or her failure to take medication or follow other regimen or treatment as prescribed is likely to lead to further instances in the reasonably near future in which the individual becomes likely to cause serious harm or commit a crime of violence against the person.
(2) Upon the filing of a petition seeking a treatment compliance order and the petition?s review by a circuit judge or mental hygiene commissioner, counsel shall be appointed for the individual if the individual does not already have counsel and a copy of the petition and all supporting evidence shall be furnished to the individual and their counsel. If the circuit judge or mental hygiene commissioner determines on the basis of the petition that it is necessary to protect the individual or to secure their examination, a detention order may be entered ordering that the individual be taken into custody and examined by a psychiatrist or licensed psychologist. A hearing on the allegations in the petition, which may be combined with a hearing on a probable cause petition conducted pursuant to the provisions of section two of this article or a final commitment hearing conducted pursuant to the provisions of section four of this article, shall be held before a circuit judge or mental hygiene commissioner. If the individual is taken into custody and remains in custody as a result of a detention order, the hearing shall be held within forty-eight hours of the time that the individual is taken into custody.
(3) If the allegations in the petition seeking a treatment compliance order are proved by the evidence adduced at the hearing, which must include expert testimony by a psychiatrist or licensed psychologist, the circuit judge or mental hygiene commissioner may enter a treatment compliance order for a period not to exceed six months upon making the following findings:
(A) That the individual is eighteen years of age or older;
(B) That on two or more occasions within a twenty-four month period prior to the filing of the petition an individual, as a result of mental illness, has been hospitalized pursuant to the provisions of this chapter; or that on at least one occasion within a twenty-four month period prior to the filing of the petition, has been convicted of a crime of violence against any person;
(C) That the individual's previous hospitalizations due to mental illness occurred as a result of the individual's failure to take prescribed medication or follow a regimen or course of treatment as prescribed by a physician or psychiatrist to treat the individual's mental illness; or that the individual has been convicted for crimes of violence against any person, and the individual's failure to take medication or follow a prescribed regimen or course of treatment of the individual's mental illness was a significant aggravating or contributing factor in the commission of the crime;
(D) That a psychiatrist or licensed psychologist who has personally examined the individual within the preceding twenty-four months has issued a written opinion that the individual, without the aid of the medication or other prescribed treatment, is likely to cause serious harm to himself or herself or to others;
(E) That the individual, in the absence of a court order requiring him or her to take medication or other treatment as prescribed, is unlikely to do so and that his or her failure to take medication or other treatment as prescribed is likely to lead to further instances in the reasonably near future in which the individual becomes likely to cause serious harm or commit a crime of violence against any person;
(F) That, where necessary, a responsible entity or individual is available to assist and monitor the individual's compliance with an order requiring the individual to take the medication or follow other prescribed regimen or course of treatment;
(G) That the individual can obtain and take the prescribed medication or follow other prescribed regimen or course of treatment without undue financial or other hardship; and
(H) That, if necessary, a medical provider is available to assess the individual within forty-eight hours of the entry of the treatment compliance order.
(4) The order may require an individual to take medication and treatment as prescribed and if appropriate to attend scheduled medication and treatment-related appointments: Provided, That a treatment compliance order shall be subject to termination or modification by a circuit judge or mental hygiene commissioner if a petition is filed seeking termination or modification of the order and it is shown in a hearing on the petition that there has been a material change in the circumstances that led to the entry of the original order that justifies the order?s modification or termination: Provided, however, That a treatment compliance order may be extended by a circuit judge or mental hygiene commissioner for additional periods of time not to exceed six months, upon the filing of a petition seeking an extension and after a hearing on the petition or upon the agreement of the individual.
(5) (A) After the entry of a treatment compliance order in accordance with the provisions of subdivisions (3) and (4) of subsection (b) of this section, if a verified petition is filed alleging that an individual has not complied with the terms of a medication and treatment compliance order and if a circuit judge or mental hygiene commissioner determines from the petition and any supporting evidence that there is probable cause to believe that the allegations in the petition are true, counsel shall be appointed for the individual and a copy of the petition and all supporting evidence shall be furnished to the individual and his or her counsel. If the circuit judge or mental hygiene commissioner considers it necessary to protect the individual or to secure his or her examination, a detention order may be entered to require that the individual be examined by a psychiatrist or psychologist. A hearing on the allegations in the petition, which may be combined with a hearing on a probable cause petition conducted pursuant to section two of this article or a final commitment hearing conducted pursuant to section four of this article, shall be held before a circuit judge or mental hygiene commissioner. If the individual is taken and remains in custody as a result of a detention order, the hearing shall be held within forty-eight hours of the time that the individual is taken into custody.
(B) At a hearing on any petition filed pursuant to the provisions of paragraph (A), subdivision (5), subsection (b) of this section, the circuit judge or mental hygiene commissioner shall determine whether the individual has complied with the terms of the medication and treatment compliance order. If the individual has complied with the order, the petition shall be dismissed: Provided, That if the evidence presented to the circuit judge or mental hygiene commissioner shows that the individual has complied with the terms of the existing order, but the individual's prescribed medication, dosage or course of treatment needs to be modified, then the newly modified medication and treatment prescribed by a psychiatrist who personally examined the individual may be properly incorporated into a modified order. If the order has not been complied with, the circuit judge or mental hygiene commissioner, after inquiring into the reasons for noncompliance and whether any aspects of the order should be modified, may continue the individual upon the terms of the original order and direct the individual to comply with the order or may modify the order in light of the evidence presented at the hearing. If the evidence shows that the individual at the time of the hearing is likely to cause serious harm to himself, herself or others as a result of the individual?s mental illness, the circuit judge or mental hygiene commissioner may convert the proceeding into a probable cause proceeding and enter a probable cause order directing the involuntary admission of the individual to a mental health facility for examination and treatment: Provided, That all applicable due process and hearing requirements of contained in section two and section three of this article have been fully satisfied.
(c) (1) The modified procedures may authorize that upon the certification of a qualified mental health professional, as described in subdivision (2) of this subsection, that there is probable cause to believe that an individual who has been hospitalized two or more times in the previous twenty-four months because of mental illness is likely to cause serious harm to himself, herself or to others as a result of the mental illness if not immediately restrained, and that the best interests of the individual would be served by immediate hospitalization, a circuit judge, mental hygiene commissioner, or designated magistrate may enter a temporary probable cause order directing the involuntary hospitalization of the individual at a mental health facility for immediate examination and treatment.
(2) The modified procedures may authorize the chief judge of a judicial circuit, or circuit judge if there is no chief judge, to enter orders authorizing specific psychiatrists or licensed psychologists, whose qualifications and training have been reviewed and approved by the Supreme Court of Appeals, to issue certifications that authorize and direct the involuntary admission of an individual subject to the provisions of this section on a temporary probable cause basis to a mental health facility for examination and treatment: Provided, That the authorized psychiatrist or licensed psychologist must conclude and certify based on personal observation prior to certification that the individual is mentally ill and, because of such mental illness is imminently likely to cause serious harm to himself or herself or to others if not immediately restrained, and promotion of the best interests of the individual requires immediate hospitalization. Immediately upon certification, the psychiatrist or licensed psychologist shall provide notice of the certification to a circuit judge, mental hygiene commissioner or designated magistrate in the county where the individual resides.
(3) No involuntary hospitalization pursuant to a temporary probable cause determination issued pursuant to the provisions of this section shall continue in effect for more than forty-eight hours without the filing of a petition for involuntary hospitalization and the occurrence of a probable cause hearing before a circuit judge, mental hygiene commissioner or designated magistrate. If at any time the chief medical officer of the mental health facility to which the individual is admitted determines that the individual is not likely to cause serious harm as a result of mental illness, the chief medical officer shall discharge the individual and immediately forward a copy of the individual?s discharge to the circuit judge, mental hygiene commissioner or
designated magistrate.;
And,
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 191--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §27-5-11, relating to mental hygiene proceedings generally; authorizing implementation of a modified mental hygiene procedure in limited number of counties relating to persons who are medication-dependent and who have had at least one prior conviction for a crime of violence against the person within the previous twenty-four months related to mental illness or two prior hospitalizations within the previous twenty- four months due to mental illness; directing cooperation of Secretary of Department of Health and Human Resources and Supreme Court of Appeals in developing modified procedures; authorizing use of treatment compliance orders in certain judicial circuits; authorization for hospitalization and treatment for up to forty- eight hours prior to probable cause hearing for medication- dependent individuals who meet requirements; reporting requirements; expiration date; time limits; requirements of petitions; procedures; required findings; hearings; and forms required for procedures.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 191, 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 Com. Sub. for S. B. No. 191) 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. Com. Sub. for Com. Sub. for S. B. No. 191) 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 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. 236, Requiring health care facilities train staff, employees and contractors on Alzheimer's disease and related dementia.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §16-5R-6, to read as follows:
ARTICLE 5R. THE ALZHEIMER'S SPECIAL CARE STANDARDS ACT.
§16-5R-6. Alzheimer's and dementia care training; rules.
(a) For the purposes of this section, "resident" means an individual receiving care or services in an adult day care facility, nursing home, assisted living facility or residential care community.
(b) The Secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-s of this code, setting minimum standards for Alzheimer's and dementia care training of all staff, employees and contractors that come in regular and direct contact with residents.
(c) The standards established in this section shall apply to adult day care facilities, nursing homes, assisted living facilities and residential care communities who provide services under the supervision of a licensed operator.;
And,
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 236--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16-5R-6, relating to the Alzheimer's Special Care Standards Act; and establishing training requirements for employees, staff and contractors in certain health facilities on the subject of Alzheimer's disease.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 236, 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. 236) 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. Senate Bill No. 278, Relating to lists of stockholders of banking institutions and bank holding companies.
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. 282, Continuing School Building Authority.
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, section eighteen, 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 School Building Authority 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. 282, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Harrison and Weeks--2.
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. 282) 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, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Harrison and Weeks--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. S. B. No. 282) 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. 283, Continuing Health Care Authority.
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, section twenty-eight, 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 Health Care Authority 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. 283, 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. 283) 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. 283) 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. 285, Continuing Division of Culture and History.
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, section one-b, 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 Division of Culture and History 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. 285, 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. 285) 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. 285) 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. 286, Continuing Public Defender Services.
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, section three-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, Public Defender Services 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. 286, 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. 286) 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. 286) 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. Com. Sub. for Senate Bill No. 341, Authorizing Department of Health and Human Resources promulgate legislative rules.
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. Com. Sub. for Senate Bill No. 353, Authorizing Department of Transportation promulgate legislative rules.
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. Com. Sub. for Senate Bill No. 382, Authorizing Department of Administration 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 four, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That §64-1-1 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that article 2, chapter 64 of said code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL LEGISLATIVE AUTHORIZATION.

§64-1-1. Legislative authorization.

Under the provisions of article three, chapter twenty-nine-a of the code of West Virginia, the Legislature expressly authorizes the promulgation of the rules described in articles two through eleven, inclusive, of this chapter, subject only to the limitations set forth with respect to each such rule in the section or sections of this chapter authorizing its promulgation. Legislative rules promulgated pursuant to the provisions of articles one through eleven, inclusive, of this chapter in effect at the effective date of this section shall continue in full force and effect until reauthorized in this chapter by legislative enactment or until amended by emergency rule pursuant to the provisions of article three, chapter twenty-nine-a of this code.
ARTICLE 2. AUTHORIZATION FOR DEPARTMENT OF ADMINISTRATION TO PROMULGATE LEGISLATIVE RULES.

§64-2-1. Department of Administration.
(a) The legislative rule filed in the State Register on the twenty-seventh day of August, two thousand four, under the authority of section forty-two, article three, chapter five-a of this code modified by the Department of Administration to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the sixteenth day of November, two thousand four, relating to the Department of Administration (leasing space on behalf of state spending units, 148 CSR 2) is authorized, with the following amendment:
On page seven, by striking out all of subsection 12.6.
(b) The legislative rule filed in the State Register on the twenty-seventh day of August, two thousand four, under the authority of section forty-eight, article three, chapter five-a of this code relating to the Department of Administration (state owned vehicles, 148 CSR 3) is authorized.
§64-2-2. Consolidated Public Retirement Board.
(a) The legislative rule filed in the State Register on the twenty-fourth day of August, two thousand four, under the authority of section one, article ten-d, chapter five of this code modified by the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventeenth day of November, two thousand four, relating to the Consolidated Public Retirement Board (general provisions, 162 CSR 1) is authorized, with the following amendment:
On page three, subdivision 6.2.1., lines sixteen and seventeen, by striking out the words "Accrued Retirement Benefit" and inserting in lieu thereof the words "vested accrued retirement benefit";
On page three, paragraph 6.2.1.1., by striking out the paragraph in its entirety and inserting in lieu thereof the following:
6.2.1.1. "Vested accrued retirement benefit' means the benefit due to the member as of the date specified by the parties in the Qualified Domestic Relations Order set out in subdivision 6.2.2. of this rule.;
On page three, subdivision 6.2.3., line nine, by striking out the words "Accrued Retirement Benefit" and inserting in lieu thereof the words "vested accrued retirement benefit";
On page three, subdivision 6.2.4., line nine, by striking out the words "Accrued Retirement Benefit" and inserting in lieu thereof the words "vested accrued retirement benefit";
On page four, paragraph 6.2.5.3., lines three and four, by striking out the words "Accrued Retirement Benefit" and inserting in lieu thereof the words "vested accrued retirement benefit";
And,
On page four, subdivision 6.2.8., line six, by striking out the words "Moreover, no qualified domestic relations order will be honored by the board while a loan under the above two sections is outstanding" and inserting in lieu thereof the words "Provided, That, a member may borrow from that portion of his or her individual account not subject to the qualified domestic relations order".
(b) The legislative rule filed in the State Register on the twenty-fourth day of August, two thousand four, under the authority of section one, article ten-d, chapter five of this code modified by the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventeenth day of November, two thousand four, relating to the Consolidated Public Retirement Board (deputy sheriff retirement system, 162 CSR 10) is authorized, with the following amendment:
On page six, by striking out section fourteen in its entirety, and redesignating the remaining sections and their components accordingly.
(c) The legislative rule filed in the State Register on the twenty-fourth day of August, two thousand four, under the authority of section one, article ten-d, chapter five of this code modified by the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventeenth day of November, two thousand four, relating to the Consolidated Public Retirement Board (benefit determination and appeal, 162 CSR 2) is authorized.
(d) The legislative rule filed in the State Register on the twenty-fourth day of August, two thousand four, under the authority of section one, article ten-d, chapter five of this code modified by the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventeenth day of November, two thousand four, relating to the Consolidated Public Retirement Board (teachers' defined contribution system, 162 CSR 3) is authorized, with the following amendment:
On page one, subsection 3.1, line four, after the words "different meaning" by inserting a new subdivision to read as follows: "3.1.1. 'Accrued benefit' is the amount credited to the member's annuity account.", and by redesignating the remaining subdivisions accordingly;
On page three, subsection 4.1, line thirteen, following the words "fifteen (15) days of the end of the pay period.", by striking out the remainder of the subsection;
On page three, subsection 4.2, twenty-one, following the words "fifteen (15) days of the end of the pay period.", by striking out the remainder of the subsection;
And,
On page eight, subsection 7.5, line fourteen, after the words "default fund for distribution to the member", by inserting the words "or beneficiary".
(e) The legislative rule filed in the State Register on the twenty-fourth day of August, two thousand four, under the authority of section one, article ten-d, chapter five of this code modified by the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventeenth day of November, two thousand four, relating to the Consolidated Public Retirement Board (teachers' defined benefit plan, 162 CSR 4) is authorized, with the following amendment:
On page seven, by striking out section 10 in its entirety.
(f) The legislative rule filed in the State Register on the twenty-fourth day of August, two thousand four, under the authority of section one, article ten-d, chapter five of this code modified by the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventeenth day of November, two thousand four, relating to the Consolidated Public Retirement Board (public employees retirement system, 162 CSR 5) is authorized with the following amendment:
On page three, by striking out section 10 in its entirety and redesignating the remaining sections and their components accordingly.
(g) The legislative rule filed in the State Register on the twenty-fourth day of August, two thousand four, under the authority of section one, article ten-d, chapter five of this code relating to the Consolidated Public Retirement Board (West Virginia State Police disability determination and appeal process, 162 CSR 9) is authorized.
§64-2-3. West Virginia Ethics Commission.
The legislative rule filed in the State Register on the twenty-sixth day of August, two thousand four, under the authority of section five-a, article two, chapter six-b of this code modified by the Ethics Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the sixteenth day of February, two thousand five, relating to the Ethics Commission (code of conduct for administrative law judges, 158 CSR 13) is authorized, with the following amendment:
On pages eleven and twelve, by striking out paragraph 4.7.a.2. in its entirety and inserting in lieu thereof the following:
"4.7.a.2. Personally solicit funds for a political organization or political candidate; Provided, That, the provisions of this paragraph do not apply to part-time state administrative law judges.
4.7.a.3. Be compelled to pay an assessment to a political organization or candidate or purchase tickets for political dinners or other similar functions."
§64-2-4. Division of Information Service and Communications.
The legislative rule filed in the State Register on the twenty-seventh day of August, two thousand four, under the authority of section four-a, article seven, chapter five-a of this code modified by the Division of Information Services and Communications to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on the thirteenth day of January, two thousand five, relating to the Division of Information Services and Communications (telecommunications payments by spending units, 161 CSR 2) is authorized, with the following amendment:
On page one, section 2, subsection (g.), after the word "IS&C", by inserting the words "or 'the Division'";
On page two, section 2, subsection "(k.) 'Shared Account'", after the words "in §5A-7-4a", by striking "(l)" and inserting in lieu thereof "(k)";
On page two, section 2, by striking all of subsection (l.) and inserting in lieu thereof the following:
"2.l5. 'Spending Unit' means a department, agency or institution of the state government for which an appropriation is requested, or to which an appropriation is made by the Legislature: Provided, That spending unit does not include the Legislature or the judiciary.";
On page three, section 3, following the words "spending units", by striking out the remainder of the section and inserting in lieu thereof "that have their telecommunications services billed on the state's shared account.";
On page three, section 4, subsection(b.), line 12, by striking out the words "to ensure the legitimacy of the charges.";
On page three, section 4, by striking out subdivision (g.) in its entirety and relettering the remaining subdivision;
On page three, section 5, by striking out the words "IS&C will insure all of its duties and rights are executed as defined below after the first billing period. This allows IS&C to implement the new policies and allow for transition by all parties (vendors, spending units, etc.)";
On page three, by striking out subdivisions 5.1.2. and 5.1.3. in their entirety and renumbering the remaining subdivision;
On page four, section 5.1.4., following the word "Charges" by striking out the words "not rejected during this preliminary review by IS&C";
On page five, section 6, by striking out the words "Any spending unit that is utilizing the services and pricing of a telecommunications provider via a state-issued contract must agree to have its charges included in the shared account and all requests for telecommunications services must be obtained by submitting to IS&C a Telecommunications Change Request form for approval.";
On page eight, section 8, line 3, after the word "via" by striking out the words "a state-issued contract" and inserting in lieu thereof the words "via a shared account";
On page eight, by striking out subsection 8.1 in its entirety;
And,
On page eight, section 8, by striking out the words "8.2 Invoices submitted for payment.
8.2.1. Vendors are required to submit all invoices to IS&C that include more than one spending unit. If vendors are providing services to spending units governed by the pricing included in the applicable state-issued contract then the charges for these services must be included on the shared account."
§64-2-5. Division of Personnel.
(a) The legislative rule filed in the State Register on the twenty-seventh day of August, two thousand four, under the authority of section ten, article six, chapter twenty-nine of this code modified by the Division of Personnel to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-third day of November, two thousand four, relating to the Division of Personnel (Administration, 143 CSR 1) is authorized.
(b) The legislative rule filed in the State Register on the twenty-seventh day of August, two thousand four, under the authority of section ten, article six, chapter twenty-nine of this code modified by the Division of Personnel to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twentieth day of January, two thousand five, relating to the Division of Personnel (preemployment reference and inquiries, 143 CSR 4) is authorized, with the following amendment:
"On page one, subsection 1.1., by striking out the word 'eligibility' and inserting in lieu thereof the word 'rejection';
On page one, subsection 2.1., line one, after the word 'employment' by striking out the word 'with' and inserting in lieu thereof the words 'in the classified service of';
On page one, subsection 2.1., line two, by striking out the semi-colon and inserting a comma, and by striking out the word 'includes' and inserting in lieu thereof the word 'including';
On page one, subsection 2.2., line two, after the word 'service.', by striking out the remainder of the subsection;
On page one, by striking out subsection 2.6. in its entirety and inserting in lieu thereof the following:
'2.5. Disqualifying event: Conviction of a crime of an infamous crime or other crime involving moral turpitude which has a reasonable connection to the position/class for which the applicant or employee is applying. For purposes of this rule, a plea of "guilty" or "no contest" is considered a conviction unless the charge was subsequently invalidated by a court decision.';
On page one, subsection 2.5., by striking out the entire subsection and inserting in lieu thereof the following:
'2.6. Director: The Director of the Division of Personnel or his or her designee.';
On page two, subsection 2.11., by striking out the words 'actions by the individual that would cause', and, after the word 'damage', by inserting the words 'or injury';
On page two, subsection 2.12., line one, after the word 'to' by inserting the words 'a classified service position in';
On page two, by striking out section 3 in its entirety and renumbering the succeeding sections accordingly;
On page two, section 4, by striking out the words 'the Director shall prescribe information required to be submitted by applicants, including fingerprints and driver's license number, that is needed by the State Police and other entities for processing or as is otherwise necessary to facilitate access to information.';
On pages two and three, by striking out the subsections 4.1. and 4.2. in their entirety, and inserting in lieu thereof the following:
'4.1. To establish the eligibility of an applicant or employee, the Director may verify information provided by the applicant, including, but not limited to:
a. Current and previous employment and/or volunteer and/or student activities;
b. Military service;
c. Formal education; and
d. Professional licensure and/or certification.
4.2. To the extent permitted by law and reasonably relevant to established eligibility standards or the nature of the position sought by the applicant, the Director may obtain and review:
a. The applicant's state and/or federal criminal records history;
b. The central abuse registry established pursuant to W. Va. Code § 15-2C-1 et seq.; and
c. The applicant's driving records.
4.3. To the extent permitted by law, the Director may require an applicant to provide any information necessary to afford the Director access to records reasonably relevant to established eligibility standards or the nature of the position sought by the applicant.
4.4. The Director shall conduct investigations and/or secure reports necessary to assess the suitability of an applicant. The Director may delegate some or all of the responsibility to qualified appointing authorities in accordance with the provisions of this rule.'
On page three, subsection 4.3, by renumbering the subsection as subsection '4.5.';
On page three, section 5, by striking out the entire section and renumbering the succeeding sections accordingly;
On page four, subsection 7.1., after the words 'separate file', by striking out the remainder of the subsection;
On page four, subsection 7.2., after the word 'all', by striking out the words 'required and requested' and, after the word 'reports', by inserting the words 'requested by the Division of Personnel pursuant to this rule;
On page four, subsection 8.1., line one, by striking out the words 'shall be' and inserting in lieu thereof the word 'is';
On page four, subsection 8.1, lines three and four, after the word 'report', by striking out the word 'the' and inserting in lieu thereof the word 'a', and by striking out the word 'limit' and inserting in lieu thereof the word 'provided';
On page four, subsection 8.2., by striking out the words 'that is needed' and inserting in lieu thereof the word 'required', and by striking out the words 'as is otherwise necessary';
On page four, subsection 9.1., line two, after the words 'employee to a' by inserting the words 'classified service';
And,
On page four, by striking out section 10 in its entirety."
§64-2-6. Board of Risk and Insurance Management.
(a) The legislative rule filed in the State Register on the twenty-sixth day of August, two thousand four, under the authority of section five, article twelve, chapter twenty-nine of this code modified by the Board of Risk and Insurance Management to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twentieth day of January, two thousand five, relating to the Board of Risk and Insurance Management (public entities insurance program, 115 CSR 2) is authorized.
(b) The legislative rule filed in the State Register on the twenty-sixth day of August, two thousand four, under the authority of section five, article twelve, chapter twenty-nine of this code modified by the Board of Risk and Insurance Management to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the sixteenth day of February, two thousand five, relating to the Board of Risk and Insurance Management (patient injury compensation fund, 115 CSR 7) is authorized.;
And,
On pages one through four, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 382--A Bill to amend and reenact §64-1-1 of the code of West Virginia, 1931, as amended; and to amend and reenact article 2, chapter 64 of said code, all relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; legislative mandate or authorization for the promulgation of certain legislative rules by various executive or administrative agencies of the state; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule- Making Review Committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee and as amended by the Legislature; authorizing Department of Administration to promulgate a legislative rule relating to leasing space on behalf of state spending units; authorizing Department of Administration to promulgate a legislative rule relating to state- owned vehicles; authorizing Consolidated Public Retirement Board to promulgate a legislative rule relating to general provisions; authorizing Consolidated Public Retirement Board to promulgate a legislative rule relating to Deputy Sheriff Retirement System; authorizing Consolidated Public Retirement Board to promulgate a legislative rule relating to benefit determination and appeal; authorizing Consolidated Public Retirement Board to promulgate a legislative rule relating to the Teachers Defined Contribution System; authorizing Consolidated Public Retirement Board to promulgate a legislative rule relating to the Teachers Defined Benefit Plan; authorizing Consolidated Public Retirement Board to promulgate a legislative rule relating to the Public Employees Retirement System; authorizing Consolidated Public Retirement Board to promulgate a legislative rule relating to West Virginia State Police disability determination and appeal process; authorizing Ethics Commission to promulgate a legislative rule relating to code of conduct for administrative law judges; authorizing Division of Information Services and Communications to promulgate a legislative rule relating to telecommunications payments by spending units; authorizing Division of Personnel to promulgate a legislative rule relating to administration of the Division; authorizing Division of Personnel to promulgate a legislative rule relating to preemployment references and inquiries; authorizing Board of Risk and Insurance Management to promulgate a legislative rule relating to the Public Entities Insurance Program; and authorizing Board of Risk and Insurance Management to promulgate a legislative rule relating to the Patient Injury Compensation Fund.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 382, 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. 382) 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. Com. Sub. for S. B. No. 382) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 386, Authorizing Department of Military Affairs and Public Safety promulgate legislative rules.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 427, Relating to health maintenance organizations.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page four, section three-a, line thirty-four, by striking out the word "A" and inserting in lieu thereof the words "For health maintenance organizations that have been operating in this state for at least three years, a".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 427, 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. 427) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the 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. 435, Creating method municipal courts can recover certain uncollectible fines.
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:
CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
§8-10-2b. Suspension of licenses for failure to pay fines and costs or failure to appear in court.

(a) If costs, fines, forfeitures or penalties imposed by the municipal court upon conviction of a person for a criminal offense as defined in section three-c, article three, chapter seventeen-b of this code are not paid in full within one hundred eighty days of the judgment, the municipal court clerk or, upon a judgment rendered on appeal, the circuit clerk shall notify the Division of Motor Vehicles of such the failure to pay: Provided, That at the time the judgment is imposed, the judge shall provide the person with written notice that failure to pay the same as ordered may result in the withholding of any income tax refund due the licensee and shall result in the suspension of such the person's license or privilege to operate a motor vehicle in this state and that such the suspension could result in the cancellation of, the failure to renew or the failure to issue an automobile insurance policy providing coverage for such the person or such the person's family: Provided, however, That the failure of the judge to provide such notice shall does not affect the validity of any suspension of such the person's license or privilege to operate a motor vehicle in this state. For purposes of this section, payment shall be stayed during any period an appeal from the conviction which resulted in the imposition of such costs, fines, forfeitures or penalties is pending.
Upon such notice, the Division of Motor Vehicles shall suspend the person's driver's license or privilege to operate a motor vehicle in this state until such time that the costs, fines, forfeitures or penalties are paid.
(b) Notwithstanding the provisions of this section to the contrary, the notice of the failure to pay such costs, fines, forfeitures or penalties shall may not be given where the municipal court, upon application of the person upon whom the same costs, fines, forfeitures or penalties were imposed filed prior to the expiration of the period within which the same these are required to be paid, enters an order finding that such the person is financially unable to pay all or a portion of the same costs, fines, forfeitures or penalties: Provided, That where the municipal court, upon finding that the person is financially unable to pay a portion thereof of the costs, fines, forfeitures or penalties, requires the person to pay the remaining portion, thereof the municipal court shall notify the Division of Motor Vehicles of such the person's failure to pay the same if the same is if not paid within the period of time ordered by such the court.
(c) If a person charged with a criminal offense fails to appear or otherwise respond in court, the municipal court clerk shall notify the Division of Motor Vehicles thereof within fifteen days of the scheduled date to appear unless such the person sooner appears or otherwise responds in court to the satisfaction of the judge. Upon such notice, the Division of Motor Vehicles shall suspend the person's driver's license or privilege to operate a motor vehicle in this state until such time that the person appears as required.
(d) On and after the first day of July, two thousand eight, if the licensee fails to respond to the Division of Motor Vehicles order of suspension within ninety days of receipt of the certified letter, the municipal court of original jurisdiction shall notify the Tax Commissioner that the licensee has failed to pay the costs, fines, forfeitures or penalties assessed by the court or has failed to respond to the citation. The notice provided by the municipal court to the Tax Commissioner must include the licensee's social security number. The Tax Commissioner, or his or her designee, shall withhold from any personal income tax refund due and owing to a licensee, the costs, fines, forfeitures or penalties due to the municipality, the Tax Commissioner's administration fee for the withholding and any and all fees that the municipal court would have collected had the licensee appeared: Provided, That the Tax Commissioner's administration fee may not exceed twenty-five dollars: Provided, however, That the Tax Commissioner may change this maximum amount limitation for this fee for fiscal years beginning on or after the first day of July, two thousand eight, by legislative rule promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code: Provided further, That the administrative fees deducted shall be deposited in the special revolving fund hereby created in the state treasury, which shall be designated as the "municipal fines and fees collection fund", and the Tax Commissioner shall make such expenditures from the fund as he or she deems appropriate for the administration of this subsection. After deduction of the Tax Commissioner's administration fee, the Tax Commissioner shall remit to the municipality all remaining amounts withheld pursuant to this section and the municipal court shall distribute applicable costs, fines, forfeitures or penalties owed to the municipality, the Regional Jail Authority Fund, the Crime Victims Compensation Fund, the Community Corrections Fund, the Governor's subcommittee on law- enforcement training or any other fund or payee that may be applicable. After the costs, fines, forfeitures or penalties are withheld, the Tax Commissioner shall refund any remaining balance due the licensee. If the refund is not sufficient to cover all the costs, fines, forfeitures or penalties being withheld pursuant to this section, the Tax Commissioner's administration fee shall be retained by the Tax Commissioner, and the remaining money withheld shall be remitted by the Tax Commissioner to the municipality. The municipality shall then allocate the money so remitted to the municipality in the following manner: (1) Any costs, fines, forfeitures or penalties due to the municipality; (2) seventy-five percent of the remaining balance shall be paid to the appropriate Regional Jail Authority Fund; (3) fifteen percent of the remaining balance shall be paid to the Crime Victims Compensation Fund; (4) six percent of the remaining balance shall be paid into the Community Corrections Fund; and (5) the final four percent shall be paid to the Governor's subcommittee on law-enforcement training. When the costs, fines, forfeitures or penalties exceed the licensee's income tax refund, the Tax Commissioner shall withhold the remaining balance in subsequent years until such time as the costs, fines, forfeitures or penalties owed are paid in full. The Tax Commissioner shall remit the moneys that he or she collects to the appropriate municipality no later than the first day of July of each year. If the municipal court or the municipality subsequently determines that any such costs, fines, forfeitures or penalties were erroneously imposed, the municipality shall promptly notify the Tax Commissioner. If the refunds have not been withheld and remitted, the Tax Commissioner may not withhold and remit payment to the municipality and shall so inform the municipality. If the refunds have already been withheld and remitted to the municipality, the Tax Commissioner shall so inform the municipality. In either event, all refunds for erroneously imposed costs, fines, forfeitures or penalties shall be made by the municipality and not by the Tax Commissioner.
(e) Rules and effective date. -- The Tax Commissioner may promulgate such rules as may be useful or necessary to carry out the purpose of this section and to implement the intent of the Legislature, to be effective on the first day of July, two thousand eight. Rules shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.
(f) On or before the first day of July, two thousand five, the municipal court may elect to reissue notice as provided in subsections (a) and (c) of this section to the Division of Motor Vehicles for persons who remain noncompliant: Provided, That the person was convicted or failed to appear on or after the first day of January, one thousand nine hundred ninety-three. If the original notification cannot be located, the Division of Motor Vehicles shall accept an additional or duplicate notice from the municipal court clerk.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 3. CANCELLATION, SUSPENSION OR REVOCATION OF LICENSES.
§17B-3-3c. Suspending license for failure to pay fines or penalties imposed as the result of criminal conviction or for failure to appear in court.

(a) The Division shall suspend the license of any resident of this state or the privilege of a nonresident to drive a motor vehicle in this state upon receiving notice from a circuit court, magistrate court or municipal court of this state, pursuant to section two-b, article three, chapter fifty of this code or section two-b, article ten, chapter eight of said code or section seventeen, article four, chapter sixty-two of said code, that such person has defaulted on the payment of costs, fines, forfeitures, penalties or restitution imposed on the person by the circuit court, magistrate court or municipal court upon conviction for any criminal offense by the date such court had required such person to pay the same, or that such person has failed to appear in court when charged with such an offense. For the purposes of this section; section two-b, article three, chapter fifty of said code; section two-b, article ten, chapter eight of said code; and section seventeen, article four, chapter sixty-two of said code, "criminal offense" shall be defined as any violation of the provisions of this code, or the violation of any municipal ordinance, for which the violation thereof may result in a fine, confinement in jail or imprisonment in the penitentiary a correctional facility of this state: Provided, That any parking violation or other violation for which a citation may be issued to an unattended vehicle shall not be considered a criminal offense for the purposes of this section; section two-b, article ten, chapter eight of said code; section two-b, article three, chapter fifty of said code; or section seventeen, article four, chapter sixty-two of said code.
(b) A copy of the order of suspension shall be forwarded to such person by certified mail, return receipt requested. No order of suspension becomes effective until ten days after receipt of a copy of such order. The order of suspension shall advise the person that because of the receipt of notice of the failure to pay costs, fines, forfeitures or penalties, or the failure to appear, a presumption exists that the person named in the order of suspension is the same person named in the notice. The Commissioner may grant an administrative hearing which substantially complies with the requirements of the provisions of section two, article five-a, chapter seventeen-c of this code upon a preliminary showing that a possibility exists that the person named in the notice of conviction is not the same person whose license is being suspended. Such request for hearing shall be made within ten days after receipt of a copy of the order of suspension. The sole purpose of this hearing shall be for the person requesting the hearing to present evidence that he or she is not the person named in the notice. In the event the Commissioner grants an administrative hearing, the Commissioner shall stay the license suspension pending the Commissioner's order resulting from the hearing.
(c) A suspension under this section and section three-a of this chapter will continue until the person provides proof of compliance from the municipal, magistrate or circuit court and pays the reinstatement fee as provided in section nine of this article. The reinstatement fee is assessed upon issuance of the order of suspension regardless of the effective date of suspension.
§17B-3-9. Surrender and return of license not required.
The Division, upon suspending or revoking a license, shall may not require that the license be surrendered to and be retained by the Division. The surrender of a license shall may not be a precondition to the commencement and tolling of any applicable period of suspension or revocation: Provided, That before the license may be reinstated, the licensee shall pay a fee of fifteen fifty dollars, in addition to all other fees and charges, which shall be collected by the Division and deposited in a special revolving fund to be appropriated to the Division for use in the enforcement of the provisions of this section. Provided, however, That when any license is suspended for failure to maintain motor vehicle liability insurance the reinstatement fee is fifty dollars;
And,
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 435--A Bill to amend and reenact §8-10-2b of the Code of West Virginia, 1931, as amended; and to amend and reenact §17B-3-3c and §17B-3-9 of said code, all relating to consequences of not paying fines and fees; requiring notice of possibility of withholding of income tax refund under certain circumstances; providing that Tax Commissioner may withhold income tax refund under certain circumstances; providing for distribution of income tax refund withheld; providing Tax Commissioner's administrative fee; providing Tax Commissioner authority to promulgate rules; authorizing reissuance of notice by municipal court under certain circumstances; providing for continuance of driver's license suspension under certain circumstances; creating fund for administrative fee and providing for expenditures from the fund; providing for consequences of erroneous imposition of fines or fees; and increasing fees.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 435, 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. 435) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, 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. 452, Continuing Board of Risk and Insurance Management.
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 twelve, 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 state Board of Risk and Insurance Management shall continue to exist until the first day of July, two thousand six, 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. 452, 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. 452) 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. 452) 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 from passage, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 455, Relating to financing of environmental control activities by certain electrical utilities.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
CHAPTER 24. PUBLIC SERVICE COMMISSION.

ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-4e. Environmental control bonds.

(a) Legislative findings. -- The Legislature hereby finds and declares: (i) That electric utilities in the state face the need to install and construct emission control equipment at existing generating facilities in the state in order to meet the requirements of existing and anticipated environmental laws and regulations and otherwise to reduce emissions from those electric generating facilities; (ii) that the capital costs associated with the installation and construction of emission control equipment are considerable; (iii) that the financial condition of some electric utilities may make the use of traditional utility financing mechanisms to finance the construction and installation of emission control equipment difficult or impossible and that this situation may cause such utilities to defer the installation of emission control equipment, to incur higher financing costs, to minimize or eliminate their use of high-sulfur coal mined in the State or to use other financing alternatives that are less favorable to the state and its citizens; (iv) that the construction and installation of emission control equipment by utilities will create public health and economic benefits to the state and its citizens, including, without limitation, emissions reductions, economic development, job growth and retention, and the increased use of high-sulfur coal mined in the State; (v) that customers of electric utilities in the state have an interest in the construction and installation of emission control equipment at electric generating facilities in the state at a lower cost than would be afforded by traditional utility financing mechanisms; (vi) that alternative financing mechanisms exist which can result in lower costs to customers and the use of these mechanisms can ensure that only those costs associated with the construction and installation of emission control equipment at electric generating facilities located in the state that generate electric energy for their ultimate use will be included in customer rates; and (vii) that in order to use such alternative financing mechanisms, the Commission must be empowered to adopt a financing order that advances these goals. The Legislature, therefore, finds that it is in the interest of the state and its citizens to encourage and facilitate the use of alternative financing mechanisms that will enable certain utilities to finance the construction and installation of emission control equipment at electric generating facilities in the state under certain conditions and to empower the Commission to review and approve alternative financing mechanisms as being consistent with the public interest, as set forth in this section.
(b) Definitions. --
As used in this section:
(1) "Adjustment mechanism" means a formula-based mechanism for making any adjustments to the amount of the environmental control charges that are necessary to correct for any over-collection or under-collection of the environmental control charges or otherwise to ensure the timely and complete payment and recovery of environmental control costs and financing costs. The adjustment mechanism is not to be used as a means to authorize the issuance of environmental control bonds in a principal amount greater, or the payment or recovery of environmental control costs in an amount greater, than that which was authorized in the financing order which established the adjustment mechanism.
(2) "Ancillary agreement" means any bond insurance policy, letter of credit, reserve account, surety bond, swap arrangement, hedging arrangement, liquidity or credit support arrangement, or other similar agreement or arrangement entered into in connection with the issuance of environmental control bonds that is designed to promote the credit quality and marketability of the bonds or to mitigate the risk of an increase in interest rates.
(3) "Assignee" means any person or legal entity to which an interest in environmental control property is sold, assigned, transferred or conveyed (other than as security) and any successor to or subsequent assignee of such a person or legal entity.
(4) "Bondholder" means any holder or owner of an environmental control bond.
(5) "Environmental control activity" means any of the following:
(A) The construction, installation and placing in operation of environmental control equipment at a qualifying generating facility.
(B) The shutdown or retirement of any existing plant, facility, unit or other property at a qualifying generating facility to reduce, control or eliminate environmental emissions.
(6) "Environmental control bonds" means bonds, debentures, notes, certificates of participation, certificates of beneficial interest, certificates of ownership or other evidences of indebtedness or ownership that are issued by a qualifying utility or an assignee, the proceeds of which are used directly or indirectly to recover, finance, or refinance environmental control costs and financing costs, and that are secured by or payable from environmental control revenues.
(7) "Environmental control charge" means a nonbypassable charge paid by a customer of a qualifying utility for the recovery of environmental control costs and financing costs.
(8) "Environmental control cost" means any cost, including capitalized cost relating to regulatory assets and capitalized cost associated with design and engineering work, incurred or expected to be incurred by a qualifying utility in undertaking an environmental control activity and, with respect to an environmental control activity, includes the unrecovered value of property that is retired, together with any demolition or similar cost that exceeds the salvage value of the property. "Environmental control cost" includes preliminary expenses and investments associated with environmental control activity that are incurred prior to the issuance of a financing order and that are to be reimbursed from the proceeds of environmental control bonds. "Environmental control cost" does not include any monetary penalty, fine or forfeiture assessed against a qualifying utility by a government agency or court under a federal or state environmental statute, rule or regulation.
(9) "Environmental control equipment" means any device, equipment, structure, process, facility or technology that is designed for the primary purpose of preventing, reducing or remediating environmental emissions and that has been or is to be constructed or installed at a qualifying generating facility.
(10) "Environmental control property" means all of the following:
(A) The rights and interests of a qualifying utility or an assignee under a financing order, including the right to impose, charge, collect and receive environmental control charges in the amount necessary to provide for the full payment and recovery of all environmental control costs and financing costs determined to be recoverable in the financing order and to obtain adjustments to the charges as provided in this section and any interest in the rights and interests.
(B) All revenues, receipts, collections, rights to payment, payments, moneys, claims or other proceeds arising from the rights and interests specified in paragraph (A) of this subdivision.
(11) "Environmental control revenues" means all revenues, receipts, collections, payments, moneys, claims or other proceeds arising from environmental control property.
(12) "Environmental emissions" means the discharge or release of emissions from electric generating facilities into the air, land or waters of the state.
(13) "Equity ratio" means, as of any given time of determination, the common equity of a qualifying utility as calculated pursuant to the uniform system of accounts required to be used in the filings of the qualifying utility with the federal Energy Regulatory Commission. "Equity ratio" shall be calculated excluding the effect of the issuance of environmental control bonds or the write down of discontinued operations.
(14) "Financing cost" means the costs to issue, service, repay, or refinance environmental control bonds, whether incurred or paid upon issuance of the bonds or over the life of the bonds, and approved for recovery by the Commission in a financing order. "Financing cost" may include any of the following:
(A) Principal, interest, and redemption premiums that are payable on environmental control bonds.
(B) Any payment required under an ancillary agreement and any amount required to fund or replenish a reserve account or other account established under any indenture, ancillary agreement or other financing document relating to the environmental control bonds.
(C) The cost of retiring or refunding any existing debt and equity securities of a qualifying utility in connection with the issuance of environmental control bonds, but only to the extent the securities were issued for the purpose of financing environmental control costs.
(D) Any costs incurred by or on behalf of or allocated to a qualifying utility to obtain modifications of or amendments to any indenture, financing agreement, security agreement or similar agreement or instrument relating to any existing secured or unsecured obligation of a qualifying utility or an affiliate of a qualifying utility, or any costs incurred by or allocated to a qualifying utility to obtain any consent, release, waiver or approval from any holder of such an obligation, that are necessary to be incurred to permit a qualifying utility to issue or cause the issuance of environmental control bonds.
(E) Any taxes, franchise fees or license fees imposed on environmental control revenues.
(F) Any cost related to issuing and servicing environmental control bonds or the application for a financing order, including, without limitation, servicing fees and expenses, trustee fees and expenses, legal fees and expenses, administrative fees, placement fees, capitalized interest, rating agency fees and any other related cost that is approved for recovery in the financing order.
(15) "Financing order" means an order of the Commission pursuant to subsection (d) of this section that grants, in whole or in part, an application filed pursuant to subsection (c) of this section and that authorizes the construction and installation of environmental control equipment, the issuance of environmental control bonds in one or more series, the imposition, charging and collection of environmental control charges, and the creation of environmental control property. A financing order may set forth conditions or contingencies on the effectiveness of the relief authorized therein and may grant relief that is different from that which was requested in the application.
(16) "Financing parties" means:
(A) Any trustee, collateral agent or other person acting for the benefit of any bondholder.
(B) Any party to an ancillary agreement the rights and obligations of which relate to or depend upon the existence of environmental control property, the enforcement and priority of a security interest in environmental control property, the timely collection and payment of environmental control revenues or a combination of these factors.
(17) "Financing statement" means a financing statement as defined in subdivision (39), subsection (a), section one hundred two, article nine, chapter forty-six of this code.
(18) "Investment grade" means, with respect to the unsecured debt obligations of a qualifying utility at any given time of determination, a rating that is within the top four investment rating categories as published by at least one nationally-recognized statistical rating organization as recognized by the United States Securities and Exchange Commission.
(19) "Nonbypassable" means that the payment of an environmental control charge may not be avoided by any electric service customer located within a utility service area, and must be paid by any such customer that receives electric delivery service from the qualifying utility for as long as the environmental control bonds are outstanding.
(20) "Nonutility affiliate" means, with respect to any qualifying utility, a person that: (i) Is an affiliate of the qualifying utility as defined in 15 U. S. C. §79b(a)(11); and (ii) is not a public utility that provides retail utility service to customers in the state within the meaning of section two, article one of this chapter.
(21) "Parent" means, with respect to any qualifying utility, any registered holding company or other person that holds a majority ownership or membership interest in the qualifying utility.
(22) "Qualifying generating facility" means any electric generating facility that: (i) Has generated electric energy for ultimate sale to customers in the state before the effective date of this section; and (ii) is owned by a qualifying utility or, on the expected date of issuance of the environmental control bonds authorized in a financing order, will be owned by a qualifying utility.
(23) "Qualifying utility" means:
(A) Any public utility that is: (i) Engaged in the delivery of electric energy to customers in this state; and (ii) at any time between the date which is two years immediately preceding the effective date of this section and the date on which an application for a financing order is made, has or had a credit rating on its unsecured debt obligations that is below investment grade.
(B) For so long as environmental control bonds issued pursuant to a financing order are outstanding and the related environmental control costs and financing costs have not been paid in full, the public utility to which the financing order was issued and its successors.
(24) "Registered holding company" means, with respect to a qualifying utility, a person that is: (i) A registered holding company as defined in 15 U. S. C. §79b(a)(12); and (ii) an affiliate of the qualifying utility as defined in 15 U. S. C. §79b(a)(11).
(25) "Regulatory sanctions" means, under the circumstances presented, any regulatory or ratemaking sanction or penalty that the Commission is authorized to impose pursuant to this chapter or any proceeding for the enforcement of any provision of this chapter or any order of the Commission that the Commission is authorized to pursue or conduct pursuant to this chapter, including without limitation: (i) The initiation of any proceeding in which the qualifying utility is required to show cause why it should not be required to comply with the terms and conditions of a financing order or the requirements of this section; (ii) the imposition of civil penalties pursuant to section three, article four of this chapter and the imposition of criminal penalties pursuant to section four of said article, in either case with reference to the provisions of section eight of said article; and (iii) a proceeding by mandamus or injunction as provided in section two of this article.
(26) "Successor" means, with respect to any legal entity, another legal entity that succeeds by operation of law to the rights and obligations of the first legal entity pursuant to any bankruptcy, reorganization, restructuring or other insolvency proceeding, any merger, acquisition, or consolidation, or any sale or transfer of assets, whether any of these occur as a result of a restructuring of the electric power industry or otherwise.
(27) "Utility service area" means: (i) The geographic area of the state in which a qualifying utility provides electric delivery service to customers at the time of issuance of a financing order; and (ii) for as long as environmental control bonds issued pursuant to a financing order are outstanding, any additions to or enlargements of said geographic area, whether or not approved by the Commission in a formal proceeding.
(c) Application for financing order. --
(1) A qualifying utility, or two or more affiliated qualifying utilities, may apply to the Commission for a financing order under this section.
(2) An application for a financing order under this section shall be filed only as provided in this subdivision.
(A) An application for a financing order under this section shall be filed as part of the application of the qualifying utility or qualifying utilities under section eleven of this article for a certificate of public convenience and necessity to engage in environmental control activities.
(B) If a qualifying utility or qualifying utilities have an application for a certificate of public convenience and necessity to engage in environmental control activities pending before the Commission on the effective date of this section, the qualifying utility or qualifying utilities may file a separate application for a financing order and the Commission shall join or consolidate the application for a financing order with the pending application for a certificate of public convenience and necessity. Notwithstanding any provision of section eleven of this article to the contrary or the total project cost of the proposed environmental control activities, the Commission shall render its final decision on any joined or consolidated proceeding for a certificate of public convenience and necessity and a financing order as described in this paragraph within two hundred seventy days of the filing of the application for the financing order and within ninety days after final submission of the joined or consolidated application for decision following a hearing.
(3) In addition to any other information required by the Commission, an application for a financing order shall include the following information:
(A) Evidence that the applicant is a qualifying utility;
(B) A description of the environmental control activities that the qualifying utility proposes to undertake, including a detailed description of the environmental control equipment to be constructed or installed at one or more qualifying generation facilities;
(C) An explanation why the environmental control activities described in the application are necessary in the context of the qualifying utility's operations, current and anticipated environmental regulations, the prospect of enforcement proceedings or litigation against the qualifying utility if the environmental control activities are not undertaken and the utility's long-range environmental compliance plans;
(D) A description of any alternatives to the environmental control activities described in the application that the qualifying utility considered and an explanation of why each alternative either is not feasible or was not selected;
(E) An estimate of the environmental control costs associated with the environmental control activities described in the application, including the estimated cost of the environmental control equipment proposed to be installed;
(F) An estimated schedule for the construction or installation of the environmental control equipment;
(G) An estimate of the date on which the environmental control bonds are expected to be issued and the expected term over which the financing costs associated with the issuance are expected to be recovered, or if the bonds are expected to be issued in more than one series, the estimated issuance date and expected term for each bond issuance;
(H) The portion of the environmental control costs the qualifying utility proposes to finance through the issuance of one or more series of environmental control bonds;
(I) An estimate of the financing costs associated with each series of environmental control bonds proposed to be issued;
(J) An estimate of the amount of the environmental control charges necessary to recover the environmental control costs and financing costs estimated in the application and the proposed calculation thereof, which estimate and calculation should take into account the estimated date of issuance and estimated principal amount of each series of environmental control bonds proposed to be issued;
(K) A proposed methodology for allocating financing costs among customer classes;
(L) A description of the proposed adjustment mechanism; and
(M) A description of the benefits to the customers of the qualifying utility and the state that are expected to result from the financing of the environmental control costs with environmental control bonds as opposed to the use of traditional utility financing mechanisms.
(4) An application for a financing order may restate or incorporate by reference any information required pursuant to subdivision (3) of this subsection that the qualifying utility previously filed with the Commission in connection with an application for a certificate of public convenience and necessity under section eleven of this article as described in paragraph (B), subdivision (2) of this subsection.
(d) Issuance of financing order. --
(1) Notice of an application for a financing order shall be given as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, with the publication area being each county in which the environmental control activities are to be undertaken and each county in the state in which the qualifying utility provides service to customers. If no substantial protest is received within thirty days after the publication of notice, the Commission may waive formal hearing on the application.
(2) The Commission shall issue a financing order, or an order rejecting the application for a financing order, as part of its final order on the application of the qualifying utility or qualifying utilities for a certificate of public convenience and necessity to engage in environmental control activities as described in subdivision (2), subsection (c) of this section.
(3) The Commission shall issue a financing order if the Commission finds all of the following:
(A) That the applicant is a qualifying utility;
(B) That the environmental control activities, including the environmental control equipment to be constructed or installed at one or more qualifying generation facilities, are necessary and prudent under the circumstances and are preferable to any alternatives available to the qualifying utility;
(C) That the cost of the environmental control activities, including the environmental control equipment to be constructed or installed at one or more qualifying generation facilities, is reasonable;
(D) That the proposed issuance of environmental control bonds will result in overall costs to customers of the qualifying utility that: (1) Are lower than would result from the use of traditional utility financing mechanisms; and (2) are just and reasonable;
(E) That the financing of the environmental control costs with environmental control bonds will result in benefits to the customers of the qualifying utility and the state; and
(F) That the proposed issuance of environmental control bonds, together with the imposition and collection of the environmental control charges on customers of the qualifying utility, are just and reasonable and are otherwise consistent with the public interest and constitute a prudent, reasonable and appropriate mechanism for the financing of the environmental control activities described in the application.
(4) The Commission shall include the following findings and requirements in a financing order:
(A) A determination of the maximum amount of environmental control costs that may be financed from proceeds of environmental control bonds authorized to be issued in the financing order;
(B) A description of the financing costs that may be recovered through environmental control charges and the period over which the costs may be recovered, subject to the application of the adjustment mechanism as provided in subsection (e) of this section. As part of this description, the Commission may include qualitative or quantitative limitations on the financing costs authorized in the financing order;
(C) A description of the adjustment mechanism and a finding that it is just and reasonable; and
(D) A description of the environmental control property that is created and that may be used to pay, and secure the payment of, the environmental control bonds and financing costs authorized to be issued in the financing order.
(5) A financing order may provide that the creation of environmental control property shall be simultaneous with the sale of the environmental control property to an assignee as provided in the application and the pledge of the environmental control property to secure environmental control bonds.
(6) A financing order may authorize the qualifying utility to conduct environmental control activities, including the construction or installation of environmental control equipment, on an estimated schedule approved in the financing order and through the issuance of more than one series of environmental control bonds. In this case, the qualifying utility will not subsequently be required to secure a separate financing order for each issuance of environmental control bonds or for each scheduled phase of the construction or installation of environmental control equipment approved in the financing order.
(7) The Commission may require, as a condition to the effectiveness of the financing order but in every circumstance subject to the limitations set forth in subdivision (1), subsection (f) of this section, that the qualifying utility give appropriate assurances to the Commission that the qualifying utility and its parent will abide by the following conditions during any period in which any environmental control bonds issued pursuant to the financing order are outstanding, in addition to any other obligation either may have under this code or federal law:
(A) Without first obtaining the prior consent and approval of the Commission, the qualifying utility will not:
(1) Lend money, directly or indirectly, to a registered holding company or a nonutility affiliate; or
(2) Guarantee the obligations of a registered holding company or a nonutility affiliate.
(B) If: (i) For a period of twelve consecutive months immediately preceding the date of determination, the qualifying utility has had an equity ratio of below thirty percent and neither the qualifying utility nor its parent has had a credit rating on its unsecured debt obligations that is investment grade; and (ii) the Commission determines that the present ability of the qualifying utility to meet its public service obligations would be impaired by the payment of dividends, the Commission may order the qualifying utility to limit or cease the payment of dividends for a period not exceeding one hundred eighty days from the date of determination, which order may be extended for one or more additional periods not to exceed one hundred eighty days each if the Commission determines that the conditions set forth in this paragraph continue to exist as of the date of each such determination.
(C) Neither the parent nor a nonutility affiliate will direct or require the qualifying utility to file a voluntary petition in bankruptcy: Provided, That nothing in this paragraph shall preclude the qualifying utility from filing a voluntary petition in bankruptcy if in the determination of the board of directors of the qualifying utility in the exercise of its fiduciary duty, the filing of its own voluntary petition in bankruptcy would be proper under applicable federal statutory and common law.
(8) A financing order may require the qualifying utility to file with the Commission a periodic report showing the receipt and disbursement of proceeds of environmental control bonds. A financing order may authorize the staff of the Commission to review and audit the books and records of the qualifying utility relating to the receipt and disbursement of proceeds of environmental control bonds. The provisions of this subdivision shall not be construed to limit the authority of the Commission under this chapter to investigate the practices of the qualifying utility or to audit the books and records of the qualifying utility.
(9) In the case of two or more affiliated qualifying utilities that have jointly applied for a financing order as provided in subdivision (1), subsection (c) of this section, a financing order may authorize each affiliated qualifying utility:
(A) to impose environmental control charges on its customers, notwithstanding the fact that the qualifying generating facility at which the environmental control activities are to be conducted is owned, or on the expected date of issuance of the environmental control bonds authorized in the financing order will be owned, by fewer than all of the affiliated qualifying utilities; and
(B) To issue environmental control bonds and to receive and use the proceeds thereof as provided in subdivision (1), subsection (j) of this section, notwithstanding the fact that all or a portion of the proceeds are expected to be used for environmental control activities to be conducted at a qualifying generating facility the ownership of which is as specified in paragraph (A) of this subdivision.
(e) Application of adjustment mechanism. --
(1) If the Commission issues a financing order, the Commission shall periodically approve the application of the adjustment mechanism specified in the financing order to correct for any over-collection or under-collection of the environmental control charges and to provide for timely payment of scheduled principal of and interest on the environmental control bonds and the payment and recovery of other financing costs in accordance with the financing order. Application of the adjustment mechanism shall occur at least annually or more frequently as provided in the financing order.
(2) On the same day the qualifying utility files with the Commission its calculation of the adjustment, it shall cause notice of the filing to be given, in the form specified in the financing order, as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code in a newspaper of statewide circulation published each weekday in Kanawha County: Provided, That this publication shall be made only if the calculation of the adjustment filed by the qualifying utility with the Commission would result in an increase in the amount of the environmental control charge.
(3) The Commission shall allow interested parties thirty days from the date the qualifying utility filed the calculation of the adjustment within which to make comments, which shall be limited to the mathematical accuracy of the calculation and of the amount of the adjustment. If the Commission determines that a hearing is necessary, the Commission shall hold a hearing on the comments within forty days of the date the qualifying utility filed the calculation of the adjustment.
(4) Each adjustment to the environmental control charge, in an amount as calculated by the qualifying utility but incorporating any correction for mathematical inaccuracy as determined by the Commission at or after the hearing, shall automatically become effective: (i) Sixty days following the date on which the qualifying utility files with the Commission its calculation of the adjustment; or (ii) on any earlier date specified in an order of the Commission approving the application of the adjustment.
(5) No adjustment pursuant to this subsection, and no proceeding held pursuant to this subsection, shall in any way affect the irrevocability of the financing order as specified in subsection (f) of this section.
(f) Irrevocability of financing order. --
(1) A financing order is irrevocable and the Commission may not reduce, impair, postpone or terminate the environmental control charges approved in the financing order or impair the environmental control property or the collection or recovery of environmental control revenues.
(2) A financing order may be subsequently amended on or after the date of issuance of environmental control bonds authorized thereunder only: (A) At the request of the qualifying utility; (B) in accordance with any restrictions and limitations on amendment set forth in the financing order; and (C) subject to the limitations set forth in subdivision (1) of this subsection.
(3) No change in the credit rating on the unsecured obligations of a qualifying utility from the credit rating that supported the determination by the Commission required in paragraph (A), subdivision (3), subsection (d) of this section shall impair the irrevocability of the financing order specified in subdivision (1) of this subsection.
(g) Judicial review. -- An order of the Commission issued pursuant to subdivision (2), subsection (d) of this section is a final order of the Commission. Any party aggrieved by the issuance of any such order may petition for suspension and review thereof by the Supreme Court of Appeals pursuant to section one, article five of this chapter. In the case of any petition for suspension and review, the Supreme Court of Appeals shall proceed to hear and determine the action as expeditiously as practicable and give the action precedence over other matters not accorded similar precedence by law.
(h) Effect of financing order. --
(1) A financing order shall remain in effect until the environmental control bonds issued pursuant to the financing order have been paid in full and all financing costs relating to the environmental control bonds have been paid in full.
(2) A financing order shall remain in effect and unabated notwithstanding the bankruptcy, reorganization, or insolvency of the qualifying utility or any affiliate thereof or the commencement of any judicial or nonjudicial proceeding therefor.
(3) For so long as environmental control bonds issued pursuant to a financing order are outstanding and the related environmental control costs and financing costs have not been paid in full, the environmental control charges authorized to be imposed in the financing order shall be nonbypassable and shall apply to:
(A) All customers of the qualifying utility located within the utility service area, whether or not the customers may become entitled by law to purchase electric generation services from a provider of electric generation services other than a qualifying utility; and
(B) Any person or legal entity located within the utility service area that may subsequently receive electric delivery service from another public utility operating in the same service area.
(i) Limitations on jurisdiction of Commission. --
(1) If the Commission issues a financing order, the Commission may not, in exercising its powers and carrying out its duties regarding regulation and ratemaking, consider environmental control bonds issued pursuant to the financing order to be the debt of the qualifying utility, the environmental control charges paid under the financing order to be revenue of the qualifying utility, or the environmental control costs or financing costs specified in the financing order to be the costs of the qualifying utility, nor may the Commission determine that any action taken by a qualifying utility that is consistent with the financing order is unjust or unreasonable from a regulatory or ratemaking perspective: Provided, That subject to the limitations set forth in subsection (f) of this section, nothing in this subdivision shall: (i) Affect the authority of the Commission to apply the adjustment mechanism as provided in subsection (e) of this section; (ii) prevent or preclude the Commission from investigating the compliance of a qualifying utility with the terms and conditions of a financing order and requiring compliance therewith; or (iii) prevent or preclude the Commission from imposing regulatory sanctions against a qualifying utility for failure to comply with the terms and conditions of a financing order or the requirements of this section.
(2) The Commission may not order or otherwise require, directly or indirectly, any public utility to use environmental control bonds to finance any project, addition, plant, facility, extension, capital improvement, environmental control equipment, or any other expenditure.
(3) The Commission may not refuse to allow the recovery of any costs associated with the performance of environmental control activities by a public utility solely because the public utility has elected or may elect to finance the performance of those activities through a financing mechanism other than the issuance of environmental control bonds.
(j) Duties of qualifying utility. --
(1) A qualifying utility for which a financing order has been issued shall cause the proceeds of any environmental control bonds issued pursuant to a financing order to be placed in a separate account. A qualifying utility may use the proceeds of the issuance of environmental control bonds for paying environmental control costs and financing costs and for no other purpose.
(2) A qualifying utility for which a financing order has been issued shall annually provide to its customers a concise explanation of the environmental control charges approved in a financing order, as modified by subsequent issuances of environmental control bonds authorized under a financing order, if any, and by application of the adjustment mechanism as provided in subsection (e) of this section. These explanations may be made by bill inserts, website information, or other appropriate means.
(3) Environmental control revenues shall be applied solely to the repayment of environmental control bonds and other financing costs.
(4) The failure of a qualifying utility to apply the proceeds of an issuance of environmental control bonds in a reasonable, prudent and appropriate manner or otherwise comply with any provision of this section shall not invalidate, impair or affect any financing order, environmental control property, environmental control charge or environmental control bonds: Provided, That subject to the limitations set forth in subsection (f) of this section, nothing in this subdivision shall prevent or preclude the Commission from imposing regulatory sanctions against a qualifying utility for failure to comply with the terms and conditions of a financing order or the requirements of this section.
(k) Environmental control property. --
(1) Environmental control property that is specified in a financing order shall constitute an existing, present property right, notwithstanding the fact that the imposition and collection of environmental control charges depend on the qualifying utility continuing to provide electric energy or continuing to perform its servicing functions relating to the collection of environmental control charges or on the level of future energy consumption. Environmental control property shall exist whether or not the environmental control revenues have been billed, have accrued or have been collected, and notwithstanding the fact that the value or amount of the environmental control property is dependent on the future provision of service to customers by the qualifying utility.
(2) All environmental control property specified in a financing order shall continue to exist until the environmental control bonds issued pursuant to a financing order are paid in full and all financing costs relating to the bonds have been paid in full.
(3) All or any portion of environmental control property may be transferred, sold, conveyed, or assigned to any person or entity not affiliated with the qualifying utility or to any affiliate of the qualifying utility created for the limited purposes of acquiring, owning or administering environmental control property or issuing environmental control bonds under the financing order or a combination of these purposes. All or any portion of environmental control property may be pledged to secure the payment of environmental control bonds, amounts payable to financing parties and bondholders, amounts payable under any ancillary agreement and other financing costs. Any transfer, sale, conveyance, assignment, grant of a security interest in or pledge of environmental control property by a qualifying utility or affiliate of a qualifying utility to an affiliate of the qualifying utility, to the extent previously authorized in a financing order, does not require the prior consent and approval of the Commission under section twelve of this article.
(4) If a qualifying utility defaults on any required payment of environmental control revenues, a court, upon application by an interested party, and without limiting any other remedies available to the applying party, shall order the sequestration and payment of the environmental control revenues for the benefit of bondholders, any assignee, and any financing parties. The order shall remain in full force and effect notwithstanding any bankruptcy, reorganization, or other insolvency proceedings with respect to the qualifying utility or any affiliate thereof.
(5) Environmental control property and environmental control revenues, and the interests of an assignee, bondholder, or financing party in environmental control property and environmental control revenues, are not subject to setoff, counterclaim, surcharge or defense by the qualifying utility or any other person or in connection with the bankruptcy, reorganization or other insolvency proceeding of the qualifying utility, any affiliate thereof or any other entity.
(6) Any successor to a qualifying utility shall be bound by the requirements of this section and shall perform and satisfy all obligations of, and have the same rights under a financing order as, the qualifying utility under the financing order in the same manner and to the same extent as the qualifying utility, including without limitation, the obligation to collect and pay to the person entitled to receive them environmental control revenues.
(l) Security interests. -- Except as otherwise provided in this subsection, the creation, perfection and enforcement of any security interest in environmental control property to secure the repayment of the principal of and interest on environmental control bonds, amounts payable under any ancillary agreement and other financing costs are governed by this subsection and not the provisions of chapter forty-six of this code. All of the following shall apply:
(1) The description or indication of environmental control property in a transfer or security agreement and a financing statement is sufficient only if the description or indication refers to this section and the financing order creating the environmental control property. This subdivision applies to all purported transfers of, and all purported grants of liens on or security interests in, environmental control property, regardless of whether the related transfer or security agreement was entered into, or the related financing statement was filed, before or after the effective date of this section.
(2) A security interest in environmental control property is created, valid, and binding at the later of the time: (i) The financing order is issued; (ii) a security agreement is executed and delivered; and (iii) value is received for the environmental control bonds. The security interest attaches without any physical delivery of collateral or other act, and the lien of the security interest shall be valid, binding and perfected against all parties having claims of any kind in tort, contract, or otherwise against the person granting the security interest, regardless of whether such parties have notice of the lien, upon the filing of a financing statement with the office of the Secretary of State. The office of the Secretary of State shall maintain any such financing statement in the same manner and in the same record keeping system it maintains for financing statements filed pursuant to article nine, chapter forty-six of this code. The filing of any financing statement under this subdivision shall be governed by the provisions regarding the filing of financing statements in article nine, chapter forty-six of this code.
(3) A security interest in environmental control property is a continuously perfected security interest and has priority over any other lien, created by operation of law or otherwise, which may subsequently attach to the environmental control property unless the holder of any such lien has agreed in writing otherwise.
(4) The priority of a security interest in environmental control property is not affected by the commingling of environmental control revenues with other amounts. Any pledgee or secured party shall have a perfected security interest in the amount of all environmental control revenues that are deposited in any cash or deposit account of the qualifying utility in which environmental control revenues have been commingled with other funds and any other security interest that may apply to those funds shall be terminated when they are transferred to a segregated account for the assignee or a financing party.
(5) No subsequent order of the Commission amending a financing order pursuant to subdivision (2), subsection (f) of this section, and no application of the adjustment mechanism as provided in subsection (e) of this section, will affect the validity, perfection or priority of a security interest in or transfer of environmental control property.
(m) Sales of environmental control property. --
(1) Any sale, assignment or transfer of environmental control property shall be an absolute transfer and true sale of, and not a pledge of or secured transaction relating to, the seller's right, title and interest in, to and under the environmental control property if the documents governing the transaction expressly state that the transaction is a sale or other absolute transfer. A transfer of an interest in environmental control property may be created only when all of the following have occurred: (i) The financing order creating the environmental control property has become effective; (ii) the documents evidencing the transfer of environmental control property have been executed and delivered to the assignee; and (iii) value is received. Upon the filing of a financing statement with the office of the Secretary of State, a transfer of an interest in environmental control property shall be perfected against all third persons, including any judicial lien or other lien creditors or any claims of the seller or creditors of the seller, other than creditors holding a prior security interest, ownership interest or assignment in the environmental control property previously perfected in accordance with this subdivision or subdivision (2), subsection (l) of this section. The office of the Secretary of State shall maintain any such financing statement in the same manner and in the same record-keeping system it maintains for financing statements filed pursuant to article nine, chapter forty-six of this code.
(2) The characterization of the sale, assignment or transfer as an absolute transfer and true sale and the corresponding characterization of the property interest of the purchaser, shall not be affected or impaired by, among other things, the occurrence of any of the following factors:
(A) Commingling of environmental control revenues with other amounts;
(B) The retention by the seller of: (i) A partial or residual interest, including an equity interest, in the environmental control property, whether direct or indirect, or whether subordinate or otherwise; or (ii) the right to recover costs associated with taxes, franchise fees or license fees imposed on the collection of environmental control revenues;
(C) Any recourse that the purchaser may have against the seller;
(D) Any indemnification rights, obligations or repurchase rights made or provided by the seller;
(E) The obligation of the seller to collect environmental control revenues on behalf of an assignee;
(F) The treatment of the sale, assignment or transfer for tax, financial reporting or other purposes;
(G) Any subsequent order of the Commission amending a financing order pursuant to subdivision (2), subsection (f) of this section; or
(H) Any application of the adjustment mechanism as provided in subsection (e) of this section.
(n) Exemption from municipal taxation. -- The imposition, collection and receipt of environmental control revenues are not subject to taxation by any municipality of the state under the authority granted to municipalities in sections five and five-a, article thirteen, chapter eight of this code.
(o) Environmental control bonds not public debt. -- Environmental control bonds issued pursuant to a financing order and the provisions of this section shall not constitute a debt or a pledge of the faith and credit or taxing power of this state or of any county, municipality or any other political subdivision of this state. Bondholders shall have no right to have taxes levied by the Legislature or the taxing authority of any county, municipality or any other political subdivision of this state for the payment of the principal thereof or interest thereon. The issuance of environmental control bonds does not, directly or indirectly or contingently, obligate the state or a political subdivision of the state to levy any tax or make any appropriation for payment of the principal of or interest on the bonds.
(p) Environmental control bonds as legal investments. -- Any of the following may legally invest any sinking funds, moneys or other funds belonging to them or under their control in environmental control bonds:
(1) The state, the West Virginia Investment Management Board, the West Virginia Housing Development Fund, municipal corporations, political subdivisions, public bodies and public officers except for members of the Public Service Commission.
(2) Banks and bankers, savings and loan associations, credit unions, trust companies, building and loan associations, savings banks and institutions, deposit guarantee associations, investment companies, insurance companies and associations and other persons carrying on a banking or insurance business, including domestic for life and domestic not-for-life insurance companies; and
(3) Personal representatives, guardians, trustees and other fiduciaries.
(q) State pledge. --
(1) The state pledges to and agrees with the bondholders, any assignee and any financing parties that the state will not take or permit any action that impairs the value of environmental control property or, except as allowed under subsection (e) of this section, reduce, alter or impair environmental control charges that are imposed, collected and remitted for the benefit of the bondholders, any assignee, and any financing parties, until any principal, interest and redemption premium in respect of environmental control bonds, all financing costs and all amounts to be paid to an assignee or financing party under an ancillary agreement are paid or performed in full.
(2) Any person who issues environmental control bonds is permitted to include the pledge specified in subdivision (1) of this subsection in the environmental control bonds, ancillary agreements and documentation related to the issuance and marketing of the environmental control bonds.
(r) Choice of law. -- The law governing the validity, enforceability, attachment, perfection, priority and exercise of remedies with respect to the transfer of an interest or right or creation of a security interest in any environmental control property, environmental control charge or financing order shall be the laws of the State of West Virginia as set forth in this section and article nine, chapter forty-six of this code.
(s) Conflicts. -- In the event of conflict between this section and any other law regarding the attachment, assignment or perfection, or the effect of perfection, or priority of any security interest in or transfer of environmental control property, this section shall govern to the extent of the conflict.
(t) Effect of invalidity on actions. -- Effective on the date that environmental control bonds are first issued under this section, if any provision of this section is held to be invalid or is invalidated, superseded, replaced, repealed or expires for any reason, that occurrence shall not affect any action allowed under this section that is taken by the Commission, a qualifying utility, an assignee, a collection agent, a financing party, a bondholder, or a party to an ancillary agreement, and any such action shall remain in full force and effect.
(u) Effectiveness of section. -- No qualifying utility may make initial application for a financing order after the date which is five years after the effective date of this section. This subsection shall not be construed to preclude any qualifying utility for which the Commission has initially issued a financing order from applying to the Commission: (i) For a subsequent order amending the financing order pursuant to subdivision (2), subsection (f) of this section; or (ii) for approval of the issuance of environmental control bonds to refund all or a portion of an outstanding series of environmental control bonds.
(v) Severability. -- If any subsection, subdivision, paragraph or subparagraph of this section or the application thereof to any person, circumstance, or transaction is held by a court of competent jurisdiction to be unconstitutional or invalid, the unconstitutionality or invalidity shall not affect the constitutionality or validity of any other subsection, subdivision, paragraph or subparagraph of this section or its application or validity to any person, circumstance, or transaction, including without limitation, the irrevocability of a financing order issued pursuant to this section, the validity of the issuance of environmental control bonds, the imposition of environmental control charges, the transfer or assignment of environmental control property, or the collection and recovery of environmental control revenues. To these ends, the Legislature hereby declares that the provisions of this section are intended to be severable and that the Legislature would have enacted this section even if any subsection, subdivision, paragraph or subparagraph of this section held to be unconstitutional or invalid had not been included in this section.
CHAPTER 46. UNIFORM COMMERCIAL CODE.

ARTICLE 9. SECURED TRANSACTIONS; SALES OF ACCOUNTS AND CHATTEL PAPER.

SUBPART 2. APPLICABILITY OF ARTICLE.

§46-9-109. Scope.
(a) General scope of article. -- Except as otherwise provided in subsections (c) and (d) of this section, this article applies to:
(1) A transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract;
(2) An agricultural lien;
(3) A sale of accounts, chattel paper, payment intangibles or promissory notes;
(4) A consignment;
(5) A security interest arising under section 2-401, 2-505, 2-711(3) or 2A-508(5) as provided in section 9-110; and
(6) A security interest arising under section 4-210 or 5-118.
(b) Security interest in secured obligation. -- The application of this article to a security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which this article does not apply.
(c) Extent to which article does not apply. -- This article does not apply to the extent that:
(1) A statute, regulation or treaty of the United States preempts this article; or
(2) The rights of a transferee beneficiary or nominated person under a letter of credit are independent and superior under section 5-114.
(d) Inapplicability of article. -- This article does not apply to:
(1) A landlord's lien, other than an agricultural lien;
(2) A lien, other than an agricultural lien, given by statute or other rule of law for services or materials, but section 9-333 applies with respect to priority of the lien;
(3) An assignment of a claim for wages, salary or other compensation of an employee;
(4) A sale of accounts, chattel paper, payment intangibles or promissory notes as part of a sale of the business out of which they arose;
(5) An assignment of accounts, chattel paper, payment intangibles or promissory notes which is for the purpose of collection only;
(6) An assignment of a right to payment under a contract to an assignee that is also obligated to perform under the contract;
(7) An assignment of a single account, payment intangible or promissory note to an assignee in full or partial satisfaction of a preexisting indebtedness;
(8) A transfer of an interest in or an assignment of a claim under a policy of insurance, other than an assignment by or to a health care provider of a health care-insurance receivable and any subsequent assignment of the right to payment, but sections 9-315 and 9-322 apply with respect to proceeds and priorities in proceeds;
(9) An assignment of a right represented by a judgment, other than a judgment taken on a right to payment that was collateral;
(10) A right of recoupment or set-off, but:
(A) Section 9-340 applies with respect to the effectiveness of rights of recoupment or set-off against deposit accounts; and
(B) Section 9-404 applies with respect to defenses or claims of an account debtor;
(11) The creation or transfer of an interest in or lien on real property, including a lease or rents thereunder, except to the extent that provision is made for:
(A) Liens on real property in sections 9-203 and 9-308;
(B) Fixtures in section 9-334;
(C) Fixture filings in sections 9-501, 9-502, 9-512, 9-516, and 9-519; and
(D) Security agreements covering personal and real property in section 9-604;
(12) An assignment of a claim arising in tort, other than a commercial tort claim, but sections 9-315 and 9-322 apply with respect to proceeds and priorities in proceeds;
(13) An assignment of a deposit account in a consumer transaction, but sections 9-315 and 9-322 apply with respect to proceeds and priorities in proceeds; or
(14) A transfer by a government or a governmental unit; or
(15) A transfer of security interest in any interest or right, or any portion or any interest or right in any environmental control property, environmental control charge or financing order as each term is defined in section four-e, article two, chapter twenty-four of this code.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 455, 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. 455) 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 S. B. No. 455) 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. Com. Sub. for Senate Bill No. 456, Relating to cure offer from merchant or seller to consumer.
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 amendments, as to
Eng. Com. Sub. for Senate Bill No. 458, Permitting transfer of State Police for certain inappropriate conduct; relocation expense.
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, section twenty, line four, after the word "substantiated" by inserting the words "and substantial";
On page two, section twenty, line seven, after the word "conduct" by inserting the words "that has occurred within the past four years and";
On page two, section twenty, line ten, after the word "made" by inserting the words "for political reasons or";
On page two, section twenty, line twelve, by striking out the words "or political reasons";
And,
On page four, section twenty, line forty-five, after the word "family." by inserting the following: However, any transferred member who was transferred because of inappropriate personal or professional conduct shall only be given a relocation expense of three hundred dollars if the transfer necessitated the relocation of the member's family.
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. 458) 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 concurrence by that body in the passage, to take effect from passage, of
Eng. Senate Bill No. 492, Relating to claims against state.
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. Com. Sub. for Senate Bill No. 498, Clarifying responsibility of Prosecuting Attorneys Institute; other provisions.
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. Com. Sub. for Senate Bill No. 522, Extending time for Hurricane council to meet as levying body.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
THE CITY COUNCIL OF HURRICANE MEETING AS A LEVYING BODY EXTENDED.
§1. Extending time for the city of Hurricane to meet as a levying body for election of additional levies to maintain the level of funding for the street department and the police department.

Notwithstanding the provisions of article eight, chapter eleven of the Code of West Virginia, one thousand nine hundred thirty-one, as amended, to the contrary, the city council of Hurricane is hereby authorized to extend the time for its meeting as a levying body and certifying its actions to the State Tax Commissioner and the State Auditor from between the seventh and twenty-eighth days of March and the third Tuesday in April until the thirty-first day of May, two thousand five, for the purpose of submitting to the voters of the city of Hurricane the continuation of an additional city levy to maintain the level of funding for the street department and the police department where necessary.;
And,
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 522--A Bill to extend the time for the city council of Hurricane to meet as a levying body for the purpose of presenting to the voters of the city of Hurricane an election to continue an additional city levy to maintain the level of funding for the street department and the police department from between the seventh and twenty-eighth days of March and the third Tuesday in April until the thirty-first day of May, two thousand five.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 522, 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. 522) 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. Com. Sub. for S. B. No. 522) 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, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 582, Granting concurrent jurisdiction to family court and circuit court to set support in abuse and neglect cases.
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 2A. FAMILY COURTS.
§51-2A-2. Family court jurisdiction; exceptions; limitations.
(a) The family court shall exercise jurisdiction over the following matters:
(1) All actions for divorce, annulment or separate maintenance brought under the provisions of article three, four or five, chapter forty-eight of this code except as provided in subsections (b) and (c) of this section;
(2) All actions to obtain orders of child support brought under the provisions of articles eleven, twelve and fourteen, chapter forty-eight of this code;
(3) All actions to establish paternity brought under the provisions of article twenty-four, chapter forty-eight of this code and any dependent claims related to such actions regarding child support, parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child;
(4) All actions for grandparent visitation brought under the provisions of article ten, chapter forty-eight of this code;
(5) All actions for the interstate enforcement of family support brought under article sixteen, chapter forty-eight of this code and for the interstate enforcement of child custody brought under the provisions of article twenty of said chapter;
(6) All actions for the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child, including actions brought under the uniform child custody jurisdiction and enforcement act, as provided in article twenty, chapter forty-eight of this code;
(7) All petitions for writs of habeas corpus wherein the issue contested is custodial responsibility for a child;
(8) All motions for temporary relief affecting parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child, child support, spousal support or domestic violence;
(9) All motions for modification of an order providing for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child or for child support or spousal support;
(10) All actions brought, including civil contempt proceedings, to enforce an order of spousal or child support or to enforce an order for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child;
(11) All actions brought by an obligor to contest the enforcement of an order of support through the withholding from income of amounts payable as support or to contest an affidavit of accrued support, filed with the circuit clerk, which seeks to collect an arrearage;
(12) All final hearings in domestic violence proceedings;
(13) Petitions for a change of name, exercising concurrent jurisdiction with the circuit court;
(14) All proceedings for payment of attorney fees if the family court judge has jurisdiction of the underlying action;
(15) All proceedings for property distribution brought under article seven, chapter forty-eight of this code;
(16) All proceedings to obtain spousal support brought under article eight, chapter forty-eight of this code; and
(17) All proceedings relating to the appointment of guardians or curators of minor children brought pursuant to sections three, four and six, article ten, chapter forty-four of this code, exercising concurrent jurisdiction with the circuit court; and
(18) Concurrently with the circuit court, all proceedings to set support obligations in cases arising under the provisions of articles five, six and seven, chapter forty-nine of this code.
(b) If an action for divorce, annulment or separate maintenance does not require the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child and does not require an award or any payment of child support, the circuit court has concurrent jurisdiction with the family court over the action if, at the time of the filing of the action, the parties also file a written property settlement agreement executed by both parties.
(c) If an action for divorce, annulment or separate maintenance is pending and a petition is filed pursuant to the provisions of article six, chapter forty-nine of this code alleging abuse or neglect of a child by either of the parties to the divorce, annulment or separate maintenance action, the orders of the circuit court in which the abuse or neglect petition is filed shall supercede and take precedence over an order of the family court respecting the allocation of custodial and decision-making responsibility for the child between the parents. If no order for the allocation of custodial and decision-making responsibility for the child between the parents has been entered by the family court in the pending action for divorce, annulment or separate maintenance, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making responsibility for the child between the parents and defer to the orders of the circuit court in the abuse or neglect proceedings.
(d) A family court is a court of limited jurisdiction. A family court is a court of record only for the purpose of exercising jurisdiction in the matters for which the jurisdiction of the family court is specifically authorized in this section and in chapter forty-eight of this code. A family court may not exercise the powers given courts of record in section one, article five of this chapter or exercise any other powers provided for courts of record in this code unless specifically authorized by the Legislature. A family court judge is not a "judge of any court of record" or a "judge of a court of record" as the terms are defined and used in article nine of this chapter.
On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendment to the bill (Eng. S. B. No. 582) 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, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 584, Allowing Bureau for Child Support Enforcement enter orders for modification of child support amounts.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §48-11-106a; and that said code be amended by adding thereto a new section, designated §48-14-107; and that said code be amended by adding thereto sections, designated §48-18-201, §48-18-202, §48-18-203, §48-18- 204, §48-18-205 and §48-18-206, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.

ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-106a. Modification of support order with the assistance of Bureau for Child Support Enforcement.

In addition to any other procedure which may exist by law, any party seeking the recalculation of support and modification under a child support order due to a substantial change in circumstances pursuant to the provisions of section one hundred six of this article may seek and obtain the assistance of the Bureau for Child Support Enforcement, pursuant to the procedures established under the provisions of sections two hundred one through two hundred six, inclusive, article eighteen of this chapter, in the preparation, assessment and presentation of an appropriate petition for modification of a support order, including the identification and narrowing of issues associated with a requested recalculation of support prior to filing the petition, and the preparation and presentation of an appropriate petition and proposed order for modification for consideration by the family court.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-107. Modification of support order with the assistance of Bureau for Child Support Enforcement.

In addition to any other procedure which may exist by law, any party seeking the recalculation of support and modification under a child support order due to a substantial change in circumstances pursuant to the provisions of section one hundred six of this article may seek and obtain the assistance of the Bureau for Child Support Enforcement, pursuant to the procedures established under the provisions of sections two hundred one through two hundred six, inclusive, article eighteen of this chapter, in the preparation, assessment and presentation of an appropriate petition for modification of a support order, including the identification and narrowing of issues associated with a requested recalculation of support prior to filing the petition, and the preparation and presentation of an appropriate petition and proposed order for modification for consideration by the family court.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-201. General provisions related to requests for assistance, recalculation of support amounts, preparation of petition and proposed orders.

(a) An obligor or an obligee under a child support order may seek and obtain the assistance of the Bureau for Child Support Enforcement to perform a recalculation of the of the support amount and prepare and present a petition seeking modification of a child support order and the presentation of a proposed order modifying support to the family court.
(b) A request for services authorized by this section shall constitute an application for services from the Bureau for Child Support Enforcement.
(c) The duties and actions directed or authorized when a request is made pursuant to this section shall be exercised by the employees and agents of the Bureau for Child Support Enforcement under the supervision and direction of Bureau for Child Support Enforcement Attorneys as part of, and in addition to, their duties as set out in section one-hundred-three, article nineteen of this chapter.
(d) In performing its duties under this section, the Bureau for Child Support Enforcement is authorized to issue subpoenas and subpoenas duces tecum, pursuant to the provisions of section one hundred twenty-three of this article, to require an obligor or obligee to produce and permit inspection and copying of designated books, papers, documents or tangible things pursuant to Rule 45 of the Rules of Civil Procedure or section one-hundred twenty-three, article eighteen of this chapter.
(e) When the Bureau for Child Support Enforcement is authorized or required by this section to notify or give notice to a party, the notice shall be given in the same manner as required for service of a petition for modification of support filed with the family court.
(f) The procedures and forms used shall provide that one party may request that their residential address and the address and identity of the employer not be revealed to another party.
(g) The Bureau for Child Support Enforcement may refuse to accept a request or take action on a request for assistance if it determines there are existing ongoing proceedings with which action taken on the request would create a conflict, or if it determines that the request was not in good faith based on the allegations made, a history of multiple such requests, or other information. If the Bureau for Child Support Enforcement makes a determination to refuse the request for assistance, it shall notify the party making the request for assistance, and if the responding party has already been notified of the request, the responding party.
(h) The Bureau for Child Support Enforcement shall prepare an explanation of the process and procedures it will use to process the request for assistance under this section. The explanation shall be made available generally to the public, given to every person who makes a request, and included with the notice to the responding party.
§48-18-202. Request for assistance by party.

To make a request for assistance under this article, a party shall submit the request in writing to the Bureau for Child Support Enforcement on a form provided by the Bureau. The written request form shall include all of the requesting party's information known to the party that is relevant to determine the child support amount. The request shall be accompanied by:
(1) A copy of the order being modified, or in the discretion of the Bureau, information sufficient to permit the Bureau to retrieve or identify the order;
(2) A form containing a statement of all of the requesting party's information known to the party that is relevant to determining the amount of child support, including a general statement or argument advancing the reason the request is being made;
(3) Copies of documentation reasonably available to the requesting party setting forth all of the requesting party's information that is relevant to determine the amount of child support;
(4) A statement setting forth the relevant information pertaining to the responding party's earnings and child support that is known or believed to be true by the requesting party;
(5) Copies of any relevant documentation which the requesting party may have in its possession which would be relevant to determining the responding party's child support obligations; and
(6) A statement of all other known proceedings pending court proceedings or other pending requests for assistance involving the parties or related to the child or children whose support is being reevaluated.
§48-18-203 Bureau processing of request for assistance or recalculation.

(a) Upon receipt of a request from a party pursuant to section two hundred two of this article, the Bureau for Child Support Enforcement shall notify the responding party that a request for assistance in the recalculation of the support amount and the related preparation and presentation of a petition or proposed order to modify an existing child support order has been submitted to the Bureau for Child Support Enforcement.
(b) As a part of the notification provided under subsection (a) of this section, notification provided by the Bureau for Child Support Enforcement to the responding party shall include the following:
(1) A blank information statement form, and an explanation of the form;
(2) A statement advising the responding party that if the responding party does not fill out and return the information statement with accompanying documentation, that the information contained on the requesting party's information statement and any attached documentation may be used to prepare a petition and proposed order to modify the parties' existing child support obligations and filed with the family court, if the submitted information shows a substantial change in the parties' circumstances;
(3) A copy of the information statement supplied by the requesting party in support of its request;
(4) A request that the responding party submit a statement and supply a copy of any information or documentation which the responding may have which would challenge, contradict or supplement the information which has been previously submitted by the requesting party, to allow the Bureau for Child Support Enforcement to more accurately recalculate any modified child support obligations of the parties;
(5) An explanation that the Bureau for Child Support Enforcement may refuse to accept a request or take action on a request if it determines there are existing ongoing proceedings with which action taken on the request would create a conflict;
(6) A request that responding party provide a list of all other known proceedings pending court proceedings or other requests for recalculation or modification of the parties' respective child support obligations; and
(7) An explanation of the process to be followed by the Bureau for Child Support Enforcement in providing the requested assistance, recalculation of the parties' modified child support obligations, including the preparation of a petition proposed order to modify the parties' existing child support obligations, when appropriate.
(c) The Bureau for Child Support Enforcement may issue a subpoena or subpoena duces tecum, pursuant to the provisions of section one hundred twenty-three of this article, to require the responding party to produce and permit inspection and copying of designated books, papers, documents or tangible things for information which are relevant to determine child support.
(d) The Bureau for Child Support Enforcement may issue a subpoena, pursuant to the provisions of section one hundred twenty- three of this article, to produce and permit inspection and copying of designated books, papers, documents or tangible things, relevant to the determination of child support to persons other than the parties to the support order.
(e) The Bureau for Child Support Enforcement may use other information and other communications or procedures available to the Bureau for Child Support Enforcement to gather information relevant to the determination of child support.
§48-18-204. Request for meeting with the Bureau.

(a) Either party may ask for an in-person meeting with the Bureau, prior to the preparation or presentation of any petition to seek a modification of a child support order or any proposed modification order to the family court. As a part of the initial contact and notice to the parties after its receipt of an assistance request under this article, the Bureau for Child Support Enforcement shall inform the parties of their right to meet with the Bureau for Child Support Enforcement, to discuss the circumstances and any relevant pertaining to the parties' child support obligations. If either party asks for a meeting, the responding party shall be notified that a meeting has been requested. The parties shall not meet with the Bureau at the same time except as allowed in the discretion of the Bureau. No party may be required to meet with the Bureau.
(b) A party may modify an information statement or provide additional documents at the meeting or at any time before the Bureau sends its proposed order to the family court.
§48-18-205. Bureau action on request of recalculation and presentation of proposed order.

(a) If the Bureau determines that no credible information exists to establish finding of a substantial change in circumstances as required by section one-hundred five, article eleven or section one hundred six, article fourteen of this chapter, the Bureau for Child Support Enforcement shall notify the parties of that fact, and notify the parties that the Bureau for Child Support Enforcement will not be preparing a petition of proposed order seeking modification of the parties' child support obligation. Under those circumstances, if the parties disagree with the Bureau for Child Support Enforcement's assessment and wish to independently file a petition for modification, the parties may still seek modification of child support by filing a petition for modification of an order for support with the family court under the provisions of sections one hundred five or one hundred six of article eleven of this chapter, or under the provisions of section one hundred six, article fourteen of this chapter.
(b) If the Bureau for Child Support Enforcement determines that there has been a substantial change of circumstances as required by section one-hundred five, article eleven of this chapter or by section one hundred-six, article fourteen of this chapter, then the Bureau for Child Support Enforcement shall prepare a petition and proposed order modifying the child support order, to be filed with the clerk of the family court.
(c) Any such petition filed by the Bureau for Child Support Enforcement filed pursuant to this article shall include the following:
(1) A copy of the proposed order;
(2) A print out of the child support guidelines calculations;
(3) A notice of the Bureau's action;
(4) The documents and statements relied upon;
(5) Any statement of findings or justification the Bureau is required or determines to include; and
(6) A form and instructions for filing an objection to the proposed order, should a party wish to do so, which form shall require a statement of the ground or grounds for filing the objection.
(d) The Bureau for Child Support Enforcement's proposed order shall be based on the child support guidelines: Provided, That the Bureau may disregard the child support guidelines or adjust the amount as allowed by article thirteen, section seven hundred two of this chapter in the following instances:
(1) When the previous child support order disregarded the child support guidelines; the grounds for the disregarding or adjusting the guidelines are stated in the worksheet or previous order or are agreed upon by the parties, or are otherwise clear; and those grounds continue to exist and can be applied to the current circumstances; or
(2) If new grounds for the disregard or adjustment are fully explained in the proposed order.
§48-18-206. Family court action on petition and proposed order prepared by Bureau for Child Support Enforcement.

(a) Upon receipt of petition for modification and proposed order prepared by the Bureau for Child Support Enforcement in accordance with the provisions of this article, the circuit clerk shall serve a copy of the petition and the proposed order upon all parties to the proceeding by personal service or by United States certified mail, return receipt requested, and direct the parties to file any objections to the proposed modified child support order within twenty days of the date of receiving such notice.
(b) Within five days of the filing of a petition for modification and proposed order, the circuit clerk shall notify the family court.
(b) If no party files timely objection to the proposed order or timely requests a hearing on the petition after receiving such notice, then the family court may proceed to review the petition and proposed order sua sponte, and may issue the proposed order. If the family court receives no objection, but the family court concludes that the proposed order should not be entered or should be changed, it shall set the matter for hearing.
(c) If the family court receives an objection to the petition or proposed order, the family court shall set a date and time for hearing.
(d) At any hearing on the proposed order, the family court shall treat the proposed order as a motion for modification made by the party requesting the Bureau to initiate the modification. The actions of the family court at a hearing shall be de novo and shall not be an appeal from the Bureau's recommended order. The family court shall notify the parties of the hearing and of the parties' rights and the procedures to be followed.
(e) The fees to be assessed for filing and service of the petition and the disbursement of the fee for petitions filed pursuant to this section shall be the same as the fee charged by the clerk for petitioning for an expedited modification of a child support order, as set forth in section eleven, article one, chapter fifty-nine of this code.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 584, 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. 584) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 588, Relating to cruelty to animals and intervention program for certain youths.
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 three, section thirteen-f, line eighteen, after "(b)" by striking out the remainder of the bill and inserting in lieu thereof the following: The Department of Juvenile Services shall establish a task force to create an Animal Cruelty Early Intervention Program. Services provided by the Department for Juvenile Services in the Animal Cruelty Early Intervention Program shall be consistent with the provisions of article five-b of this chapter and shall be designed to develop skills and supports within families and to resolve problems related to the juveniles who have engaged in animal cruelty. Services may include, but are not limited to, referral of juveniles and parents, guardians or custodians and other family members to services for psychiatric or other medical care, or psychological, welfare, legal, educational or other social services, as appropriate to the needs of the juvenile and his or her family.
(c) The effective date for this section is the first day of July, two thousand six.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-19. Cruelty to animals; penalties; exclusions.

(a) If any person cruelly mistreats, abandons or withholds proper sustenance, including food, water, shelter or medical treatment, necessary to sustain normal health and fitness or to end suffering or abandons any animal to die, or intentionally, knowingly or recklessly leaves an animal unattended and confined in a motor vehicle when physical injury to or death of the animal is likely to result, or rides an animal when it is physically unfit, or baits or harasses any animal for the purpose of making it perform for a person's amusement, or cruelly chains any animal or uses, trains or possesses any domesticated animal for the purpose of seizing, detaining or maltreating any other domesticated animal, he or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than three hundred nor more than one two thousand dollars or confined in jail not more than six months, or both.
(b) If any person intentionally tortures, or mutilates or maliciously kills an animal, or causes, procures or authorizes any other person to torture, mutilate or maliciously kill an animal, he or she is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility not less than one nor more than three five years and be fined not less than one thousand dollars nor more than five thousand dollars. For the purposes of this subsection, "torture" means an action taken for the primary purpose of inflicting pain.
(c) Any person, other than a licensed veterinarian or a person acting under the direction or with the approval of a licensed veterinarian, who knowingly and willfully administers or causes to be administered to any animal participating in any contest any controlled substance or any other drug for the purpose of altering or otherwise affecting said animal's performance is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one five hundred nor more than one two thousand dollars.
(d) Any person convicted of a violation of this section shall forfeit his or her interest in any animal and all interest in the animal shall vest in the humane society or county pound of the county in which said the conviction was rendered and the person shall, in addition to any fine imposed, be liable for any costs incurred or to be incurred by the humane society or county pound as a result.
(e) For the purpose of this section, the term "controlled substance" shall have has the same meaning ascribed to it by subsection (d), section one hundred one, article one, chapter sixty-a of this code.
(f) The provisions of this section do not apply to lawful acts of hunting, fishing, trapping or animal training or farm livestock, poultry, gaming fowl or wildlife kept in private or licensed game farms if kept and maintained according to usual and accepted standards of livestock, poultry, gaming fowl or wildlife or game farm production and management, nor to humane use of animals or activities regulated under and in conformity with the provisions of 7 U. S. C. §2131, et seq., and the regulations promulgated thereunder, as both statutes and regulations are in effect on the effective date of this section.
(g) Notwithstanding the provisions of subsection (a) of this section, any person convicted of a second or subsequent violation of said subsection is guilty of a misdemeanor and shall be confined in jail for a period of not less than ninety days nor more than one year, fined not less than five hundred dollars nor more than two three thousand dollars, or both. The incarceration set forth in this subsection shall be mandatory unless the provisions of subsection (h) of this section are complied with.
(h) (1) Notwithstanding any provision of this code to the contrary, no person who has been convicted of a violation of the provisions of subsection (a) or (b) of this section may be granted probation until the defendant has undergone a complete psychiatric or psychological evaluation and the court has reviewed the evaluation. Unless the defendant is determined by the court to be indigent, he or she shall be responsible for the cost of said evaluation.
(2) For any person convicted of a violation of subsection (a) or subsection (b) of this section, the court may, in addition to the penalties provided in this section, impose a requirement that he or she complete a program of anger management intervention for perpetrators of animal cruelty. Unless the defendant is determined by the court to be indigent, he or she shall be responsible for the cost of the program.
(i) In addition to any other penalty which can be imposed for a violation of this section, a court shall prohibit any person so convicted from possessing, owning or residing with any animal or type of animal for a period of five years following entry of a misdemeanor conviction and fifteen years following entry of a felony conviction. A violation under this subsection is a misdemeanor punishable by a fine not exceeding two thousand dollars and forfeiture of the animal.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 588, 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. 588) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 640, Allowing notary public and commissioner use stamped imprint.
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. 646, Excluding certain homeowners' associations proceeds from business and occupation tax.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 659, Clarifying definition of "money transmission".
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. Com. Sub. for Senate Bill No. 670, Relating to electing supervisors for conservation districts.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
CHAPTER 3. ELECTIONS.

ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.
§3-8-5. Detailed accounts and verified financial statements required.

(a) Every candidate, financial agent, person and association of persons, organization of any kind, including every corporation, directly or indirectly, supporting a political committee established pursuant to paragraph (C), subdivision (1), subsection (b), section eight of this article or engaging in other activities permitted by this section and also including the treasurer or equivalent officer of the association or organization, advocating or opposing the nomination, election or defeat of any candidate, and the treasurer of every political party committee shall keep detailed accounts of every sum of money or other thing of value received by him or her, including all loans of money or things of value, and of all expenditures and disbursements made, liabilities incurred, by the candidate, financial agent, person, association or organization or committee, for political purposes, or by any of the officers or members of the committee, or any person acting under its authority or on its behalf.
(b) Every person or association of persons required to keep detailed accounts under this section shall file with the officers hereinafter prescribed a detailed itemized sworn statement, according to the following provisions and times:
(1) On the last Saturday in March or within six days thereafter and annually whenever the total of all financial transactions relating to an election exceed five hundred dollars a statement which shall include all financial transactions which have taken place by the date of that statement, subsequent to any previous statement filed within the previous five years under this section;
(2) Not less than ten nor more than seventeen days preceding each primary or other election, a statement which shall include all financial transactions which have taken place by the date of the statement, subsequent to the previous statement, if any;
(3) Not less than twenty-five nor more than thirty-one days after each primary or other election, a statement which shall include all financial transactions which have taken place by the date of the statement, subsequent to the previous statement; and
(4) On the first Saturday in September or within six days thereafter, preceding the general election day whenever the total of all financial transactions relating to an election exceed five hundred dollars or whenever any loans are outstanding, a statement which shall include all financial transactions which have taken place by the date of the statement, subsequent to the previous statement.
(c) Every person who shall announce as a write-in candidate for any elective office and his or her financial agent or election organization of any kind shall comply with all of the requirements of this section after public announcement of the person's candidacy has been made.
(d) For purposes of this section, the term "financial transactions" includes all contributions or loans received and all repayments of loans or expenditures made to promote the candidacy of any person by any candidate or any organization advocating or opposing the nomination, election or defeat of any candidate to be voted on.
(e) Candidates for the office of conservation district supervisor elected pursuant to the provisions of article twenty- one-a, chapter nineteen of this code shall only be required to file the reports required by subdivisions (2) and (3), subsection (b) immediately prior to and after the general election.
CHAPTER 19. AGRICULTURE.

ARTICLE 21A. CONSERVATION DISTRICTS.
§19-21A-3. Definitions.

Wherever used or referred to in this article, unless a different meaning clearly appears from the context:
(1) "Agency of this state" includes the government of this state and any subdivision, agency or instrumentality, corporate or otherwise, of the government of this state.
(2) "Committee" or "State Conservation Committee" means the agency created in section four of this article.
(3) "District" or "conservation district" means a subdivision of this state, organized in accordance with the provisions of this article, for the purposes, with the powers and subject to the restrictions hereinafter set forth.
(4)"Governing body" means the supervisors of any conservation district, town or city, council, city commission, county court or body acting in lieu of a county court, in this state, and the term "governmental division" means any conservation district, town, city or county in this state.
(5) "Land occupier" or "occupier of land" includes any person, firm or corporation who shall hold title to, or shall be in possession of, any lands lying within a district organized under the provisions of this article, whether as owner, lessee, renter or tenant.
(6) "Landowners" or "owners of land" includes any person or persons, firm or corporation who shall hold title to three or more acres of any lands lying within a district organized under the provisions of this article.
(7) "Notice" means notice published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the county in which is located the appropriate area. At any hearing held pursuant to such notice at the time and place designated in such notice, adjournment may be made from time to time without the necessity of renewing such notice for such adjournment dates.
(8) "Petition" means a petition filed under the provisions of subsection (a), section five of this article for the creation of a district.
(9) "Soil conservation", "erosion control" or "erosion prevention projects", when used throughout the article, shall denote those projects that have been established by federal agencies in cooperation with state agencies for the purpose of demonstrating soil erosion control and water conservation practices.
(10) "State" means the State of West Virginia.
(11) "Supervisor" means one of the members of the governing body of a district, elected or appointed in accordance with the provisions of this article.
(12) "United States" or "agencies of the United States" includes the United States of America, Natural Resources Conservation Service of the United States Department of Agriculture and any other agency or instrumentality, corporate or otherwise, of the United States of America.
(13) "Works of improvement" means such structures as may be necessary or convenient for flood prevention or the conservation, development, utilization or disposal of water.
§19-21A-4. State Conservation Committee; continuation.
(a) The State Conservation Committee is continued. It serves as an agency of the state and is to perform the functions conferred upon it in this article. The committee consists of the following ten members:
(1) Four citizen members;
(2) The following ex officio members:
(A) The Director of the State Cooperative Extension Service;
(B) The Director of the State Agricultural and Forestry Experiment Station;
(C) The Secretary of the Department of Environmental Protection;
(D) The State Commissioner of Agriculture, who is the chairperson of the committee;
(E) The Director of the Division of Forestry; and
(F) The President of the West Virginia Association of Conservation Districts.
(b) The Governor shall appoint, by and with the consent of the Senate, the four citizen members. Members shall be appointed for four-year terms, which are staggered in accordance with the initial appointments under prior enactment of this section. In the event of a vacancy, the appointment is for the unexpired term.
(c) The Committee may invite the Secretary of Agriculture of the United States of America to appoint one person to serve with the Committee as an advisory member.
(d) The Committee shall keep a record of its official actions, shall adopt a seal, which shall be judicially noticed, and may perform those acts, hold public hearings and adopt or propose for legislative approval, rules necessary for the execution of its functions under this article.
(e) The State Conservation Committee may employ an administrative officer, technical experts and other agents and employees, permanent and temporary, as it requires. The administrative officer and support staff shall be known as the West Virginia Conservation Agency. The Committee shall determine their qualifications, duties and compensation. The Committee may call upon the Attorney General of the state for legal services it requires. It may delegate to its chairperson, to one or more of its members, or to one or more agents or employees, powers and duties it considers proper. The Committee may secure necessary and suitable office accommodations and the necessary supplies and equipment. Upon request of the Committee, for the purpose of carrying out any of its functions, the supervising officer of any state agency or of any state institution of learning shall, insofar as may be possible, under available appropriations and having due regard to the needs of the agency to which the request is directed, assign or detail to the Committee, members of the staff or personnel of the agency or institution of learning and make special reports, surveys or studies required by the Committee.
(f) A member of the Committee holds office so long as he or she retains the office by virtue of which he or she is serving on the Committee. A majority of the Committee is a quorum and the concurrence of a majority in any matter within their duties is required for its determination. The chairperson and members of the Committee may receive no compensation for their services on the Committee, but are entitled to reimbursement of expenses, including traveling expenses necessarily incurred in the discharge of their duties on the Committee. The Committee shall:
(1) Require the execution of surety bonds for all employees and officers who are entrusted with funds or property;
(2) Provide for the keeping of a full and accurate public record of all proceedings and of all resolutions, rules and orders issued or adopted; and
(3) Provide for an annual audit of the accounts of receipts and disbursements.
(g) In addition to other duties and powers conferred upon the State Conservation Committee, it may:
(1) Offer appropriate assistance to the supervisors of conservation districts, organized as provided in this article, in the carrying out of any of their powers and programs;
(2) Keep the supervisors of each of the several districts, organized under the provisions of this article, informed of the activities and experience of all other districts organized under this article and facilitate an interchange of advice and experience between the districts and cooperation between them;
(3) Coordinate the programs of the several conservation districts so far as this may be done by advice and consultation;
(4) Secure the cooperation and assistance of the United States and any of its agencies and of agencies of this state in the work of the districts;
(5) Disseminate information throughout the state concerning the activities and programs of the conservation districts and encourage the formation of the districts in areas where their organization is desirable;
(6) Accept and receive donations, gifts, contributions, grants and appropriations in money, services, materials or otherwise from the United States or any of its agencies, from the State of West Virginia or from other sources and use or expend the money, services, materials or other contributions in carrying out the policy and provisions of this article, including the right to allocate the money, services or materials in part to the various conservation districts created by this article in order to assist them in carrying on their operations; and
(7) Obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise or otherwise any property, real or personal, or rights or interests in the property; maintain, administer, operate and improve any properties acquired; receive and retain income from the property and to expend the income as required for operation, maintenance, administration or improvement of the properties or in otherwise carrying out the purposes and provisions of this article; and sell, lease or otherwise dispose of any of its property or interests in the property in furtherance of the purposes and the provisions of this article. Money received from the sale of land acquired in the small watershed program shall be deposited in the special account of the State Conservation Committee and expended as provided in this article.
(8) To promulgate emergency and legislative rules to effectuate the provisions of this article as amended and reenacted by the Legislature during the regular session of the Legislature in the year two thousand five.
§19-21A-5. Creation of conservation districts.
(a) Any twenty-five owners of land lying within the limits of the territory proposed to be organized into a district may file a petition with the State Conservation Committee asking that a conservation district be organized to function in the territory described in the petition. Such The petition shall set forth:
(1) The proposed name of said the district;
(2) That there is need, in the interest of the public health, safety and welfare, for a conservation district to function in the territory described in the petition;
(3) A description of the territory proposed to be organized as a district, which description shall not be required to be given by metes and bounds or by legal subdivisions, but shall be deemed sufficient if generally accurate;
(4) A request that the State Conservation Committee duly define the boundaries for such the district; that a referendum be held within the territory so defined on the question of the creation of a conservation district in such the territory; and that the Committee determine that such a district be created.
Where more than one petition is filed covering neighboring parts of the same region, whether or not these areas overlap, the State Conservation Committee may consolidate all or any such petitions.
(b) Within thirty days after such a petition has been filed with the State Conservation Committee, it shall cause due notice to be given of a proposed hearing upon the question of the desirability and necessity, in the interest of the public health, safety and welfare, of the creation of such district, upon the question of the appropriate boundaries to be assigned to such district, upon the propriety of the petition and other proceedings taken under this article and upon all questions relevant to such inquiries. Notice of the date, place and time of the hearing shall be published no less than fourteen days prior to the hearing as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. The publication area is the county or counties where the proposed district is located. All owners of land within the limits of the territory described in the petition, and of lands within any territory considered for addition to such the described territory, and all other interested parties shall have the right to attend such the hearings and to be heard. If it shall appear appears upon the hearing that it may be desirable to include within the proposed district territory outside of the area within which due notice of the hearing has been given, the hearing shall be adjourned and due notice of further hearing shall be given throughout the entire area considered for inclusion in the district and such further another hearing held. After such the hearing, if the Committee shall determine determines, upon the facts presented at such the hearing and upon such other relevant facts and information as may be available, that there is need, in the interest of the public health, safety and welfare, for a conservation district to function in the territory considered at the hearing, it shall make and record such determination and shall define, by metes and bounds or by legal subdivisions, the boundaries of such district. Districts thus defined may be a watershed or portion thereof and nothing in this article shall be interpreted to exclude from consideration, small areas often constituting a very small part of a large watershed. The district may be large or small, but in making such that determination and in defining such the boundaries, the committee shall give due weight and consideration to the topography of the area considered and of the state, the composition of soils therein, the distribution of erosion, the prevailing land-use practices, the desirability and necessity of including within the boundaries the particular lands under consideration and the benefits such lands may receive from being included within such the boundaries, the relation of the proposed area to existing watersheds and agricultural regions and to other conservation districts already organized or proposed for organization under the provisions of this article and such other physical, geographical and economic factors as are relevant, having due regard to the legislative determinations set forth in section two of this article. The territory to be included within such the boundaries need not be contiguous. If the Committee shall determine determines after such the hearing, after due consideration of the said relevant facts, that there is no need for a conservation district to function in the territory considered at the hearing, it shall make and record such its determination and shall deny the petition. After six months shall have expired from the date of the denial of any such petition, subsequent petitions covering the same or substantially the same territory may be filed as aforesaid and new hearings held and determinations made thereon.
(c) After the Committee has made and recorded a determination that there is need, in the interest of the public health, safety and welfare, for the organization of a district in a particular territory and has defined the boundaries thereof, it shall consider the question whether the operation of a district within such boundaries with the powers conferred upon conservation districts in this article is administratively practicable and feasible. To assist the Committee in the determination of such administrative practicability and feasibility, it shall be is the duty of the Committee within a reasonable time after entry of the finding that there is need for the organization of the proposed district and the determination of the boundaries thereof, to hold a referendum within the proposed district upon the proposition of the creation of the district and to cause due notice of such referendum to be given. The question of the creation of the proposed district shall be submitted to the registered voters of the proposed district at the next primary or general election. All of the provisions of chapter three of this code, unless in conflict with the provisions of this article, apply to voting and elections on the referendum, insofar as practicable.
The question shall be submitted by ballots upon which the words "For creation of a conservation district of the lands below described and lying in the county (counties) of ____________, ____________, and ____________. Against creation of a conservation district of the lands below described and lying in the county (counties) of ___________, ____________, and ____________" shall appear, with a square before each proposition and a direction to insert an X mark in the square before one or the other of said the propositions as the voter may favor or oppose creation of such a district. The ballot shall set forth the boundaries of such the proposed districts as determined by the Committee. All owners of lands lying within the boundaries of the territory, as determined by the state conservation committee, shall be eligible to vote in such referendum.
(d) The Committee shall pay all expenses for the issuance of such notices and the conduct of such and conducting hearings. and referenda and shall supervise the conduct of such hearings and referenda. It shall issue appropriate regulations promulgate rules in accordance with the provisions of article three, chapter twenty-nine-a of this code governing the conduct of such hearings. and referenda and providing for the registration prior to the date of the referendum of all eligible voters, or prescribing some other appropriate procedure for the determination of those eligible as voters in such referendum. No informalities in the conduct of such referendum or in any matter relating thereto shall invalidate said referendum or the result thereof if notice shall have been given substantially as herein provided and said referendum shall have been fairly conducted.
(e) The Committee shall publish the result of such the referendum and shall thereafter consider and determine whether the operation of the district within the defined boundaries is administratively practicable and feasible. If the Committee shall determine determines that the operation of such the district is not administratively practicable and feasible, it shall record such its determination and deny the petition. If the Committee shall determine that the operation of such the district is administratively practicable and feasible, it shall record such the determination and shall proceed with the organization of the district in the manner hereinafter provided. In making such its determination the Committee shall give due regard and weight to the attitudes of the occupiers of lands lying within the defined boundaries, the number of landowners eligible to vote in such the referendum who shall have voted, the proportion of the votes cast in such the referendum in favor of the creation of the district to the total number of votes cast, the approximate wealth and income of the land occupiers of the proposed district, the probable expense of carrying on erosion-control operations within such the district and such other economic and social factors as may be relevant to such the determination, having due regard to the legislative determinations set forth in section two of this article: Provided, That the Committee shall not have authority to determine that the operation of the proposed district within the defined boundaries is administratively practicable and feasible unless at least sixty per centum of the votes cast in the referendum upon the proposition of creation of the district shall have been cast in favor of the creation of such district.
(f) If the Committee shall determine determines that the operation of the proposed district within the defined boundaries is administratively practicable and feasible, it shall appoint two supervisors to act with the supervisors elected as provided hereinafter, as the governing body of the district.
(g) The two appointed supervisors shall present to the Secretary of State an application signed by them which shall set forth (and such application need contain no detail other than the mere by recitals: (1) That a petition for the creation of the district was filed with the State Conservation Committee pursuant to the provisions of this article and that the proceedings specified in this article were taken pursuant to such the petition; that the application is being filed in order to complete the organization of the district under this article; and that the Committee has appointed them as supervisors; (2) the name and official residence of each of the supervisors, together with a certified copy of the appointments evidencing their right to office; (3) the term of office of each of the supervisors; (4) the name which is proposed for the district; and (5) the location of the principal office of the supervisors of the district. The application shall be subscribed and sworn to by each of the said supervisors before an officer authorized by the laws of this state to take and certify oaths, who shall certify upon the application that he or she personally knows the supervisors and knows them to be the officers as affirmed in the application and that each has subscribed thereto in the officer's presence. The application shall be accompanied by a statement by the State Conservation Committee, which shall certify and such statement need contain no detail other than the mere by recitals that a petition was filed, notice issued and hearing held as aforesaid; that the Committee did duly determine that there is need, in the interest of the public health, safety and welfare, for a conservation district to function in the proposed territory and did define the boundaries thereof; that notice was given and a referendum held on the question of the creation of such the district; that the result of such the referendum showed a majority of the votes cast in such the referendum to be in favor of the creation of the district; and that thereafter the Committee did duly determine that the operation of the proposed district is administratively practicable and feasible. The said statement shall set forth the boundaries of the district as they have been defined by the Committee.
The Secretary of State shall examine the application and statement and, if he or she finds that the name proposed for the district is not identical with that of any other conservation district of this state or so nearly similar as to lead to confusion or uncertainty, he or she shall file them and shall record them in an appropriate book of record in his or her office. If the Secretary of State shall find finds that the name proposed for the district is identical with that of any other conservation district of this state, or so nearly similar as to lead to confusion and uncertainty, he or she shall certify such that fact to the State Conservation Committee which shall thereupon submit to the Secretary of State a new name for the said district, which shall not be subject to such defects. Upon receipt of such the new name, free of such defects, the Secretary of State shall record the application and statement, with the name so modified, in an appropriate book of record in his or her office. The Secretary of State shall make and issue to the said supervisors a certificate, under the seal of the state, of the due organization of the said district and shall record such the certificate with the application and statement. The boundaries of such the district shall include the territory as determined by the State Conservation Committee as aforesaid, but in no event shall they include any area included within the boundaries of another conservation district organized under the provisions of this article.
(h) After six months shall have has expired from the date of entry of a determination by the State Conservation Committee that operation of a proposed district is not administratively practicable and feasible and denial of a petition pursuant to such determination, subsequent petitions may be filed as aforesaid and action taken thereon in accordance with the provisions of this article.
(i) Petitions for including additional territory within an existing district may be filed with the State Conservation Committee and the proceedings herein provided for in the case of petitions to organize a district shall be observed in the case of petitions for such inclusion. The Committee shall prescribe the form for such petitions, which shall be as nearly as may be in the form prescribed in this article for petitions to organize a district. Where the total number of landowners in the area proposed for inclusion shall be is less than twenty-five, the petition may be filed when signed by a majority of the landowners of such the area and in such case no referendum need be held. In referenda upon petitions for such inclusion, all owners of land lying within the proposed additional area shall be eligible to vote.
(j) In any suit, action or proceeding involving the validity or enforcement of, or relating to, any contract, proceeding or action of the district, the district shall be deemed to have been established in accordance with the provisions of this article upon proof of the issuance of the aforesaid certificate by the Secretary of State. A copy of such the certificate duly certified by the Secretary of State shall be admissible in evidence in any such suit, action or proceeding and shall be proof of the filing and contents thereof.
§19-21A-6. Election of supervisors for each district.
Within thirty days after the date of issuance by the Secretary of State of a certificate of organization of a conservation district, nominating petitions may be filed with the State Conservation Committee to nominate candidates for supervisors of such the district. A candidate for supervisor shall own land in the district and have the education, training or experience necessary to carry out the duties required by this article and rules promulgated thereunder. A candidate shall file with the Committee a sworn written statement specifying that he or she meets the requirements of office. A candidate may not be placed on the ballot or be seated as a supervisor unless he or she meets these requirements. The Committee shall provide a list of qualified candidates to the Secretary of State prior to any election for supervisor at the time and in the manner specified by the Secretary.
The Committee shall have authority to extend the time within which nominating petitions may be filed. No such nominating petition shall be accepted by the Committee unless it shall be is subscribed by twenty-five or more owners of lands lying within the boundaries of such the district and within the boundaries of the county in which the candidate resides. Landowners Registered voters in the district may sign more than one such nominating petition to nominate more than one candidate for supervisor. The committee shall give due notice of an election to be held for the election of one supervisor from each county or portion thereof within the boundaries of the district. The names of all nominees in each county on behalf of whom such nominating petitions have been filed within the time designated, shall appear arranged in alphabetical order of the surnames upon a ballot, with a square before each name and a direction to insert an X mark in the square before any one name to indicate the voter's preference. All owners of lands lying within registered voters in the district shall be eligible to vote in such the election for one candidate two candidates from the county or portion thereof within the boundaries of the district in which they reside. Only such landowners shall be eligible to vote. The candidate two candidates in each county who shall receive the largest number of votes cast in such the election by landowners residing in his or her county shall be one of the elected supervisors for such district. The committee shall pay all expenses of such election, shall supervise the conduct thereof, shall prescribe regulations governing the conduct of such election and the determination of the eligibility of voters therein and shall make public the results thereof. Supervisors shall be elected in the general election to be conducted in the year two thousand eight as nonpartisan candidates. The term of office for supervisor receiving the second highest number of votes in the general election of two thousand eight shall be for two years, commencing on the first day of January, two thousand nine, and ending on the thirty-first day of December, two thousand eleven. Subsequent terms of office for supervisors elected thereafter shall be for four years. Persons currently holding the position of supervisor shall, regardless of the expiration of the currently designated term of office, continue to serve until the two thousand eight election. Unless otherwise provided or in conflict with this article, the provisions of chapter three shall apply to election of supervisors.
§19-21A-7. Supervisors to constitute governing body of district; qualifications and terms of supervisors; powers and duties.

(a) The governing body of the district consists of the supervisors, appointed or elected, as provided in this article. The two supervisors appointed by the committee shall be persons who are by training and experience qualified to perform the specialized skilled services which are required of them in the performance of their duties under this section and shall be legal residents and landowners in the district.
(b) The supervisors shall designate a chairperson and may, from time to time, change the designation. The On and after the election of supervisors in two thousand eight, term of office of each supervisor is three four years. A supervisor holds office until his or her successor has been elected or appointed. In case a new county or portion of a county is added to a district, the committee may appoint a supervisor to represent it until the next regular election of supervisors for the district takes place. If a vacancy occurs among the elected supervisors of a district, the Committee shall appoint a successor from the same county to fill the unexpired term. The appointment shall be made from a name or list of names submitted by local farm organizations and agencies the conservation district.
(c) When any county or portion of a county lying within the boundaries of a district has in effect eight hundred or more signed agreements of cooperation with occupiers of land located within the county, then at the next regular election of supervisors the land occupiers within the county or portion of the county are entitled to elect two supervisors to represent the county instead of one for the term and in the manner prescribed in this section. A majority of the supervisors constitutes a quorum and the concurrence of a majority in any matter within their duties is required for its determination.
(d) (c) A supervisor is entitled to expenses and a per diem not to exceed thirty dollars when engaged in the performance of his or her duties.
(e) (d) The supervisors may, with the approval of the State Committee, employ a secretary, technical experts and any other officers, agents and employees, permanent and temporary, as they may require and shall determine their qualifications, duties and compensation. The supervisors may delegate to their chairperson, to one or more supervisors or to one or more agents, or employees, those administrative powers and duties they consider proper. The supervisors shall furnish to the State Conservation Committee, upon request, copies of the ordinances, rules, orders, contracts, forms and other documents they adopt or employ and any other information concerning their activities required in the performance of State Conservation Committee's duties under this article.
(f) (e) The supervisors shall:
(1) Require the execution of surety bonds for all employees and officers who are entrusted with funds or property;
(2) Provide for the keeping of a full and accurate record of all proceedings and of all resolutions, rules and orders issued or adopted; and
(3) Provide for an annual audit of the accounts of receipts and disbursements.
(g) (f) Any supervisor may be removed by the State Conservation Committee upon notice and hearing for neglect of duty or malfeasance in office, but for no other reason.
(h) (g) The supervisors may invite the legislative body of any municipality or county located near the territory comprised within the district to designate a representative to advise and consult with the supervisors of a district on all questions of program and policy which may affect the property, water supply or other interests of the municipality or county.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 670, 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. 670) 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 S. B. No. 670) 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 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. 674, Relating to textbook sales at public institutions of higher education.
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 section and inserting in lieu thereof the following:
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS OF HIGHER EDUCATION.

§18B-10-14. Bookstores.

(a) Each governing board may establish and operate a bookstore at the institutions under its jurisdiction to sell books, stationery and other school and office supplies generally carried in college bookstores.
(b) The prices to be charged may not be less than the prices fixed by any fair trade agreements and shall, in all cases, include in addition to the purchase price paid by the bookstore, a sufficient handling charge to cover all expenses incurred for personal and other services, supplies and equipment, storage and other operating expenses.
(c) Each governing board also shall ensure that bookstores operated at institutions under its jurisdiction meet the additional objective of minimizing minimize the costs to students of purchasing textbooks. by adopting policies The governing board may:
(1) which may Require the repurchase and resale of textbooks on an institutional or a statewide basis; and
(2) Provide for the use of certain basic textbooks for a reasonable number of years.
(d) The Legislature recognizes that in two thousand four, the Congress of the United States commissioned the United States Government Accountability Office to study the high prices of college textbooks. Upon completion of the study, the Legislative Oversight Commission on Education Accountability shall obtain the results and any related reports produced by the Office.
(e) An employee of a governing board:
(1) May not:
(A) Receive a payment, loan, subscription, advance, deposit of money, service, benefit or thing of value, present or promised, as an inducement for requiring students to purchase a specific textbook for coursework or instruction; or
(B) Require for any course a textbook that includes his or her own writing or work if the textbook incorporates either detachable worksheets or workbook-style pages intended to be written on or removed from the textbook. This provision does not prohibit an employee from requiring as a supplement to a textbook any workbook or similar material which is published independently from the textbook; and
(2) May receive:
(A) Sample copies, instructor's copies and instructional material which are not to be sold; and
(B) Royalties or other compensation from sales of textbooks that include the employee's own writing or work.
(f) A governing board shall provide to students a listing of textbooks required or assigned for any course offered at the institution.
(1) The listing shall be prominently posted:
(A) In a central location at the institution;
(B) In any campus bookstore; and
(C) On the institution's website.
(2) The list shall include for each textbook the International Standard Book Number (ISBN), the edition number and any other relevant information.
(3) An institution shall post a book to the listing when the adoption process is complete and the textbook is designated for order by the bookstore.
(d) (g) All moneys derived from the operation of the bookstore shall be paid into a special revenue fund as provided in section two, article two, chapter twelve of this code. Subject to the approval of the Governor, each governing board periodically shall change the amount of the revolving fund necessary for the proper and efficient operation of each bookstore.
(e) (h) Moneys derived from the operation of the bookstore shall be used first to replenish the stock of goods and to pay the costs of operating and maintaining the bookstore. Notwithstanding any other provision of this section, any institution that has contracted with a private entity for bookstore operation shall deposit into an appropriate account all revenue generated by the operation and enuring to the benefit of the institution. The institution shall use the funds for nonathletic scholarships.
(i) Each governing board shall promulgate a rule in accordance with the provisions of section six, article one of this chapter to implement the provisions of this section.
(j) This section applies to textbook sales and bookstores supported by an institution's auxiliary services and those operated by a private contractor.
;
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. 674--A Bill to amend and reenact §18B-10-14 of the Code of West Virginia, 1931, as amended, relating to state institution of higher education bookstore operations and textbook sales; minimizing costs to students; requiring Legislative Oversight Commission on Education Accountability to obtain certain textbook study report; prohibiting institution employees from receiving benefits for requiring specific textbooks and providing exceptions; requiring institutions to post listing of required textbooks at certain campus locations; requiring institutions to promulgate a rule governing textbook sales and bookstore operations; and application to bookstores operated by private contractor and institutional auxiliary services.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 674, 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. 674) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 691, Relating to termination of tenancy of factory-built home.
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 three, subsection (a), after the word "no" by inserting the word "notice".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 691, 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. 691) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Senate Bill No. 699, Relating to shareholders' simultaneous participation in corporate meeting.
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. 700, Creating Community Infrastructure Investment Program within Department of Commerce.
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 28. COMMUNITY INFRASTRUCTURE INVESTMENT PROJECTS.
§22-28-1. Legislative findings.
The Legislature finds and declares that:
(a) There is a growing need for the extension of public water and sewer services throughout the state and that the extension of such services and facilities maintains the health and economic vitality of the citizens of West Virginia. In addition, access to such infrastructure facilities is equal essential to development in all regions of the state.
(b) The extension of public water and sewer services promotes public health and safety in that it enables businesses, residences, municipalities and other entities to comply with state and federal water quality standards.
(c) The cost of publicly owned sewer and water facilities are normally born by the state, its subdivisions and the citizens of West Virginia and public indebtedness incurred to construct such facilities constitutes a financial burden on the state and its political subdivisions, as well as residential consumers.
(d) The rates for public water and sewer services charged to customers of all service classes have risen in recent years due primarily to the cost of utility construction and the cost of debt service associated with such construction.
(e) There are private business entities that are in need of water and sewer services for various residential, commercial and industrial projects throughout the state and that those entities are willing to pay the cost associated with constructing needed public water and sewer services and to dedicate the facility to the local certificated public utility after construction of such facilities.
(f) Those private business entities need a method by which to enter into agreements with municipal utilities or public service districts that would enable the construction of new infrastructure as well as the expansion of existing facilities.
(g) The dedication of such infrastructure facilities to the local certificated public utility without cost greatly benefits the citizens of the state and promotes industrial, commercial and economic development.
§22-28-2. Definitions.
For the purposes of this article, the following words or terms defined have the meaning ascribed to them herein:
(a) "Certificate of appropriateness" shall refer to the document evidencing approval of a project and is issued by the Secretary of the Department of Environmental Protection pursuant to the provisions of this article. The issuance of such a certificate shall exempt the project from the provisions of section eleven of article two, chapter twenty-four of this code and, in the case of a public service district, from the provisions of section twenty- five, article thirteen-a, chapter sixteen of this code.
(b) "Community infrastructure investment agreement" shall refer to a written agreement between a municipal utility or public service district and a person that provides for the transfer of legal title to a project facility from the person to the municipal utility or public service district.
(c) "Community infrastructure investment project" shall refer to any newly constructed or enlarged and improved project facility that may be transferred to a municipal utility or public service district without cost to the municipal utility or public service district pursuant to the provisions of this article.
(d) "Person" shall refer to any individual, partnership, firm, society, association, trust, corporation or other business entity.
(e) "Project cost" shall refer to the capital cost of proposed community infrastructure investment project facilities to be constructed pursuant to the provisions of this article. "Project cost" shall also refer to newly constructed or enlarged and improved existing project facilities. Project cost shall not refer to any of the costs or expenses of ordinary operation and maintenance of the project facilities once they become operational.
(f) "Project facilities" shall refer to waste water treatment plants or water treatment plants constructed pursuant to the provisions of this article and include, but are not limited to, related storage buildings or structures, meters, hydrants, pump stations, force and gravity mains, transmission lines and other such fixtures related to the construction of water or sewer facilities. Project facilities shall not refer to the ordinary extension of collection and distribution lines or facilities from or to the project constructed pursuant to the provisions of this article to the property of any user of project facilities.
(g) "Public service district" shall refer to those public corporations and political subdivisions of the state created pursuant to the provisions of section two, article thirteen-a, chapter sixteen of this code.
(h) "Secretary" shall refer to the Secretary of the Department of Environmental Protection established in section six, article one, chapter twenty-two of this code.
§22-28-3. Creation of community infrastructure investment project; certificate of appropriateness; rule-making authority.

(a) There is hereby created a Community Infrastructure Investment Program within the Department of Environmental Protection. This Program will facilitate the construction or expansion of project facilities for the promotion of economic development and the protection of public health and environment in the state. Any public service district or municipal utility that wishes to accept a project facility constructed pursuant to a community infrastructure investment agreement with a project cost not to exceed ten million dollars, may apply to the secretary for approval of such project. Nothing herein shall be construed to require a public service district or municipal utility to use this program.
(b) Where the Secretary shall have found that the community infrastructure investment project shall have met the requirements contained in this article, the Secretary shall issue a certificate of appropriateness to the municipal utility or public service district as evidence of such approval.
(c) Municipal utilities or public service districts may jointly enter into agreements with persons for the purpose of applying to the Secretary of the Department of Environmental Protection for approval of project facilities. The minimum terms and conditions of such agreements are established by the provisions of section four of this article.
(d) The Secretary will, by legislative rule, establish the criteria for the approval of such projects and shall have sole authority to make such determination.
§22-28-4. Community infrastructure investment agreements; report to Joint Committee on Government and Finance.

(a) Municipal utilities and public service districts have the power and authority to enter into community infrastructure investment agreements with any person for the purpose of constructing new project facilities, or substantially improving or expanding project facilities.
(b) Notwithstanding any other provision in this code to the contrary, the Secretary shall have the power and the authority to review and approve all such community infrastructure investment agreements pursuant to this article.
(c) Each such agreement shall contain as a minimum the following terms and conditions to be performed by the parties thereto:
(1) The project facilities shall be engineered and constructed in accordance with the requirements for new construction established by the municipal utility or public service district;
(2) Proof or certification of the financial ability of the municipal utility or public service district to maintain and operate the public facilities;
(3) Certification that upon completion and activation of the project facility or improvements to the project facility, the title to the public facility shall be transferred without cost to the municipal utility or public service district;
(4) A finding that the construction of the new public facility, or the substantial improvement or expansion of an existing public facility, either: (i) Fosters economic growth by promoting commercial, industrial or residential development; and (ii) improves water quality or otherwise enables the affected territory to achieve compliance with any applicable state or federal health or environmental law;
(5) The municipal utility or public service district will receive or otherwise obtain without cost to the public all necessary rights of way for the operation of the public facility;
(6) The rates charged by the municipal utility or public service district to new customers to be served by the project facility shall be the rates in effect at the time of transfer of the project facility to the utility plus any additional cost of service borne by the municipal utility or public service district as a result of the project facility until such time as new rates may be finally enacted by the municipal utility or proposed by the public service district and approved by the Public Service Commission and the rates charged by the municipal utility or the public service district to existing customers shall not be impacted as a result of the obligation of the public service district or municipal utility pursuant to the community infrastructure investment agreement;
(7) Confirmation that the agreement does not violate any of the bond covenants imposed on the municipal utility or public service district;
(8) Proof that necessary permits, where applicable, have been obtained from the Division of Health and the Department of Environmental Protection;
(9) Evidence that the person responsible for the construction of or improvements to the public facility has provided funding to the municipal utility or public service district for the engagement of an engineer qualified to design and certify the structural integrity and capacity of the project facility;
(10) Proof that the person responsible for construction of or improvements to the public facility has obtained a performance bond payable to the municipal utility or public service district equal to the estimated cost of construction: Provided, That the form of the bond required by this section shall be approved by the Secretary and may include, at the option of the Secretary, surety bonding, collateral bonding (including cash and securities), establishment of an escrow account, letters of credit, performance bonding fund participation as established by the Secretary, self- bonding or a combination of these methods; and
(11) Any other conditions that the secretary may determine to be relevant as established.
(d) Where the Secretary has found that the community infrastructure investment agreement meets the requirements contained in this article, the Secretary shall issue a certificate of appropriateness to the parties as evidence of such approval.
(e) Not later than thirty days prior to the issuance of a certificate of appropriateness for any community infrastructure investment project, the Secretary shall first submit a report of the same to the Joint Committee on Government and Finance.
§22-28-5. Authority of the Department of Environmental Protection and Division of Health not affected.

Nothing contained in this article shall be construed to affect the authority of the Department of Environmental Protection pursuant to the provisions of chapter twenty-two of this code, nor the authority of the Division of Health pursuant to the provisions of chapter sixteen of this code. Facilities discharging into the Potomac River watershed and its tributaries, shall be designed to achieve nutrient reductions, for both Nitrogen and Phosphorus, consistent with West Virginia's participation in the Chesapeake Bay Program upon implementation of the Chesapeake Bay standards by the Secretary.
§22-28-6. Time for approval.
The Secretary shall approve or reject all applications for a community investment infrastructure project or agreement within thirty days, unless, by mutual agreement, such time period is extended. In no case, shall the time period extend beyond ninety days.
§22-28-7. Fees.
The Secretary shall establish by legislative rule a schedule of fees reasonably calculated to pay for the costs of the administration of the provisions of this article.
§22-28-8. Exemption from Public Service Commission approval.
All project facilities constructed or improved pursuant to the provisions of this article shall be exempt from the provisions of chapter twenty-four of this code until such time as title to the public facility shall be transferred to the municipal utility or public service district. Nothing herein shall be construed to give the Public Service Commission authority to regulate or intervene in the approval and construction of any project or agreement provided in this article. Notwithstanding any other provision of this code to the contrary, the acquisition of a project facility by a municipality or public service district under the provisions of this article shall not require the issuance of a certificate of convenience and necessity from the Public Service Commission.
§22-28-9. Rule-making authority.
The Secretary shall have the authority to propose legislative rules for promulgation in accordance with the provisions of section one, article three, chapter twenty-nine-a of this code to effectuate the purposes of this article. Notwithstanding any provision of this code to the contrary, the proposed legislative rules for this article filed in the state register by the first day of August, two thousand five, may be filed as emergency rules.;
And,
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 700--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §22-28-1, §22-28-2, §22-28-3, §22-28-4, §22-28- 5, §22-28-6, §22-28-7, §22-28-8 and §22-28-9, all relating to the creation of a Community Infrastructure Investment Program within the Department of Environmental Protection; legislative findings; definitions; granting rule-making authority; authority to promulgate emergency rules; establishing process for issuance of certificate of appropriateness; providing for community infrastructure investment agreements; setting minimum terms; authority of Division of Health and Department of Environmental Protection not affected; requiring report to Joint Committee on Government and Finance; providing for administrative fees; establishing exemption from authority of Public Service Commission; and setting time limits for approval.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 700, 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, Weeks and Tomblin (Mr. President)--31.
The nays were: Unger, White and Yoder--3.
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. 700) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 705, Delaying effective date of Municipal Sales and Service Tax and Municipal Use 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 three, section four, lines twenty-four and twenty- five, by striking out the words "a tax pursuant to subsection (a) of this section and that does not impose".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 705, 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. 705) 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. 705) 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 with its House of Delegates amended title, to take effect July 1, 2005, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 716, Creating Regional Jail Operators Partial Reimbursement Fund.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §31-20-10b; that §50-3- 1, §50-3-2 and §50-3-4a of said code be amended and reenacted; and that §59-1-11 and §59-1-28a of said code be amended and reenacted, all to read as follows:
CHAPTER 31. CORPORATIONS.

ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY.

§31-20-10b. Regional Jail Operations Partial Reimbursement Fund.

(a) There is created in the State Treasury a new fund designated the Regional Jail Operations Partial Reimbursement Fund.
(b) Revenues deposited into this Fund shall be composed of fees collected by magistrate courts pursuant to subsection (g), section one, and subdivision (3), subsection (a), section two, article three, chapter fifty of this code and by circuit courts pursuant to section eleven, article one, chapter fifty-nine of this code.
(c) Revenues deposited into this Fund shall be used to reimburse those counties and municipalities participating in the regional jail system for the cost of incarceration.
(d) The State Treasurer shall, in cooperation with the Regional Jail and Correctional Facility Authority, administer the Fund. The State Treasurer shall determine the amount of funds available for reimbursement and, upon receiving a report from the Regional Jail and Correctional Facility Authority which presents the total number of inmate days in the fiscal year immediately concluded, the State Treasurer shall calculate the reimbursement to each participant based upon a pro rata share formula.
(e) A participant's share shall be comparable with its total of inmate days, which shall consist of the number of inmates it contributed to the regional jail system and the number of days those inmates remained incarcerated.
(f) Within ninety days of the first day of July, two thousand six, and annually thereafter, each participant shall receive its reimbursement from this Fund.
CHAPTER 50. MAGISTRATE COURTS.

ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-1. Costs in civil actions.
The following costs shall be charged in magistrate courts in civil actions and shall be collected in advance:
(a) For filing and trying any civil action and for all services connected therewith, but excluding services regarding enforcement of judgment, the following amounts dependent upon the amount of damages sought in the complaint:
Where the action is for five hundred dollars
or less$30.00
Where the action is for more than five hundred
dollars but not more than one thousand
dollars$35.00
Where the action is for more than one thousand

dollars but not more than two thousand
dollars$40.00
Where the action is for more than two thousand

dollars$50.00
Where the action seeks relief other than money
damage$30.00
Five dollars from each of the filing fees listed above shall be deposited in the Court Security Fund created by the provisions of section fourteen, article three, chapter fifty-one of this code.
Five dollars from each of the filing fees listed above shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code.
(b) For each service regarding enforcement of a
judgment including execution, suggestion,
garnishment and suggestee execution $ 5.00
(c) For each bond filed in a case $ 1.00
(d) For taking deposition of witness for each
hour or portion thereof$ 1.00
(e) For taking and certifying acknowledgment of
a deed or other writing or taking oath
upon an affidavit$ .50
(f) For mailing any matter required or provided
by law to be mailed by certified or
registered mail with return receipt$ 1.00
(g) For filing and trying any civil action$20.00
Costs incurred in a civil action shall be reflected in any judgment rendered thereon. The provisions of section one, article two, chapter fifty-nine of this code, relating to the payment of costs by poor persons, shall be applicable to all costs in civil actions.
§50-3-2. Costs in criminal proceedings.
(a) In each criminal case before a magistrate court in which the defendant is convicted, whether by plea or at trial, there is imposed, in addition to other costs, fines, forfeitures or penalties as may be allowed by law: (1) Costs in the amount of sixty dollars, of which five dollars of that amount shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code; and (2) an amount equal to the one-day per diem provided for in subsection (h), section ten, article twenty, chapter thirty-one of this code; and (3) costs in the amount of thirty dollars to be deposited in the regional jail operations partial reimbursement fund created by section ten-b, article twenty, chapter thirty-one of this code. A magistrate may not collect costs in advance. Notwithstanding any other provision of this code, a person liable for fines and court costs in a criminal proceeding in which the defendant is confined in a jail or prison and not participating in a work release program shall not be held liable for the fines and court costs until ninety days after completion of the term in jail or prison. A magistrate court shall deposit five dollars from each of the criminal proceedings fees collected pursuant to this section in the Court Security Fund created in section fourteen, article three, chapter fifty-one of this code. A magistrate court shall, on or before the tenth day of the month following the month in which the fees imposed in this section were collected, remit an amount equal to the one-day per diem provided for in subsection (h), section ten, article twenty, chapter thirty-one of this code from each of the criminal proceedings in which the fees specified in this section were collected to the magistrate court clerk or, if there is no magistrate court clerk to the clerk of the circuit, together with information as may be required by the rules of the Supreme Court of Appeals and the rules of the office of chief inspector. These moneys are paid to the sheriff who shall distribute the moneys solely in accordance with the provisions of section fifteen, article five, chapter seven of this code. Amendments made to this section during the regular session of the Legislature, two thousand one, are effective after the thirtieth day of June, two thousand one.
(b) A magistrate shall assess costs in the amount of two dollars and fifty cents for issuing a sheep warrant and the appointment and swearing appraisers and docketing the proceedings.
(c) In each criminal case which must be tried by the circuit court but in which a magistrate renders some service, costs in the amount of ten dollars shall be imposed by the magistrate court and is certified to the clerk of the circuit court in accordance with the provisions of section six, article five, chapter sixty-two of this code.
§50-3-4a. Disposition of criminal costs and civil filing fees into State Treasury account for Regional Jail and Prison Development Fund.

(a) The clerk of each magistrate court shall, at the end of each month, pay into the Regional Jail and Prison Development Fund in the State Treasury an amount equal to forty dollars of the costs collected in each criminal proceeding and all but ten dollars of the costs collected for the filing of each civil action.
(b) The clerk of each magistrate court shall, at the end of each month, pay into the Regional Jail Operations Partial Reimbursement Fund established in section ten-a, article twenty, chapter thirty-one of this code the fees collected pursuant to subsection (g), section one and subdivision (3), subsection (a), section two of this article.
CHAPTER 59. FEES, ALLOWANCES AND COSTS, NEWSPAPERS; LEGAL ADVERTISEMENTS.

ARTICLE 1. FEES AND ALLOWANCES.
§59-1-11. Fees to be charged by clerk of circuit court.
(a) The clerk of a circuit court shall charge and collect for services rendered as such clerk the following fees, and such fees shall be paid in advance by the parties for whom such services are to be rendered:
(1) For instituting any civil action under the rules of civil procedure, any statutory summary proceeding, any extraordinary remedy, the docketing of civil appeals or any other action, cause, suit or proceeding, one hundred twenty-five forty-five dollars, of which thirty dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code and ten dollars shall be deposited in the special revenue account created in section six hundred three, article twenty-six, chapter forty-eight of this code to provide legal services for domestic violence victims;
(2) For instituting an action for medical professional liability, two hundred sixty dollars, of which ten dollars of that amount shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code;
(3) Beginning on and after the first day of July, one thousand nine hundred ninety-nine, for instituting an action for divorce, separate maintenance or annulment, one hundred thirty-five dollars;
(4) For petitioning for the modification of an order involving child custody, child visitation, child support or spousal support, eighty-five dollars; and
(5) For petitioning for an expedited modification of a child support order, thirty-five dollars.
(b) In addition to the foregoing fees, the following fees shall likewise be charged and collected:
(1) For preparing an abstract of judgment, five dollars;
(2) For any transcript, copy or paper made by the clerk for use in any other court or otherwise to go out of the office, for each page, fifty cents;
(3) For action on suggestion, ten dollars;
(4) For issuing an execution, ten dollars;
(5) For issuing or renewing a suggestee execution, including copies, postage, registered or certified mail fees and the fee provided by section four, article five-a, chapter thirty-eight of this code, three dollars;
(6) For vacation or modification of a suggestee execution, one dollar;
(7) For docketing and issuing an execution on a transcript of judgment from magistrate's court, three dollars;
(8) For arranging the papers in a certified question, writ of error, appeal or removal to any other court, ten dollars, of which five dollars of that amount shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code;
(9) For postage and express and for sending or receiving decrees, orders or records, by mail or express, three times the amount of the postage or express charges;
(10) For each subpoena, on the part of either plaintiff or defendant, to be paid by the party requesting the same, fifty cents;
(11) For additional service (plaintiff or appellant) where any case remains on the docket longer than three years, for each additional year or part year, twenty dollars.
(c) The clerk shall tax the following fees for services in any criminal case against any defendant convicted in such court:
(1) In the case of any misdemeanor, fifty-five eighty-five dollars; and
(2) In the case of any felony, seventy-five one hundred five dollars, of which ten dollars of that amount shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code.
(d) The clerk of a circuit court shall charge and collect a fee of twenty-five dollars per bond for services rendered by the clerk for processing of criminal bonds, and the fee shall be paid at the time of issuance by the person or entity set forth below:
(1) For cash bonds, the fee shall be paid by the person tendering cash as bond;
(2) For recognizance bonds secured by real estate, the fee shall be paid by the owner of the real estate serving as surety;
(3) For recognizance bonds secured by a surety company, the fee shall be paid by the surety company;
(4) For ten percent recognizance bonds with surety, the fee shall be paid by the person serving as surety; and
(5) For ten percent recognizance bonds without surety, the fee shall be paid by the person tendering ten percent of the bail amount.
In instances in which the total of the bond is posted by more than one bond instrument, the above fee shall be collected at the time of issuance of each bond instrument processed by the clerk, and all fees collected pursuant to this subsection (d) shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code. Nothing in this subsection (d) may be construed as authorizing the clerk to collect the above fee from any person for the processing of a personal recognizance bond; and
(e) The clerk of a circuit court shall charge and collect a fee of ten dollars for services rendered by the clerk for processing of bailpiece, and the fee shall be paid by the surety at the time of issuance. All fees collected pursuant to this subsection (e) shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code.
(f) No such clerk shall be required to handle or accept for disbursement any fees, cost or amounts, of any other officer or party not payable into the county treasury, except it be on order of the court or in compliance with the provisions of law governing such fees, costs or accounts.
§59-1-28a. Disposition of filing fees in civil actions and fees for services in criminal cases.

(a) Except for those payments to be made from amounts equaling filing fees received for the institution of divorce actions as prescribed in subsection (b) of this section, and except for those payments to be made from amounts equaling filing fees received for the institution of actions for divorce, separate maintenance and annulment as prescribed in said subsection, for each civil action instituted under the rules of civil procedure, any statutory summary proceeding, any extraordinary remedy, the docketing of civil appeals or any other action, cause, suit or proceeding in the circuit court, the clerk of the court shall, at the end of each month, pay into the funds or accounts described in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting the action as follows:
(1) Into the Regional Jail and Correctional Facility Authority Fund in the State Treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code the amount of sixty dollars; and
(2) Into the Court Security Fund in the State Treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code the amount of five dollars; and
(3) Into the Regional Jail Operations Partial Reimbursement Fund established pursuant to the provisions of section ten-b, article twenty, chapter thirty-one of this code the amount of twenty dollars.
(b) For each action for divorce, separate maintenance or annulment instituted in the circuit court, the clerk of the court shall, at the end of each month, report to the Supreme Court of Appeals, the number of actions filed by persons unable to pay, and pay into the funds or accounts in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting the divorce action as follows:
(1) Into the Regional Jail and Correctional Facility Authority Fund in the State Treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code the amount of ten dollars;
(2) Into the special revenue account of the State Treasury, established pursuant to section six hundred four, article two, chapter forty-eight of this code an amount of thirty dollars;
(3) Into the Family Court Fund established under section twenty-two, article two-a, chapter fifty-one of this code an amount of seventy dollars; and
(4) Into the Court Security Fund in the State Treasury, established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code the amount of five dollars.
(c) Notwithstanding any provision of subsection (a) or (b) of this section to the contrary, the clerk of the court shall, at the end of each month, pay into the Family Court Fund established under section twenty-two, article two-a, chapter fifty-one of this code an amount equal to the amount of every fee received for petitioning for the modification of an order involving child custody, child visitation, child support or spousal support as determined by subdivision (3), subsection (a), section eleven of this article and for petitioning for an expedited modification of a child support order as provided in subdivision (4) of said subsection.
(d) The clerk of the court from which a protective order is issued shall, at the end of each month, pay into the family court fund established under section twenty-two, article two-a, chapter fifty-one of this code an amount equal to every fee received pursuant to the provisions of section five hundred eight, article twenty-seven, chapter forty-eight of this code.
(e) The clerk of each circuit court shall, at the end of each month, pay into the Regional Jail and Correctional Facility Authority Fund in the State Treasury an amount equal to forty dollars of every fee for service received in any criminal case against any respondent convicted in such court and shall pay an amount equal to five dollars of every such fee into the Court Security Fund in the State Treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code.
(f) Beginning the first day of January, two thousand two, the The clerk of the circuit court shall, at the end of each month, pay into the Medical Liability Fund established under article twelve-b, chapter twenty-nine of this code, an amount equal to one hundred sixty-five dollars of every filing fee received for instituting a medical professional liability action.
(g) The clerk of the circuit court shall, at the end of each month, pay into the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code, those amounts received by the clerk which are dedicated for deposit in the Fund.
(h) The clerk of each circuit court shall, at the end of each month, pay into the Regional Jail Operations Partial Reimbursement Fund established in the State Treasury pursuant to the provisions of section ten-b, article twenty, chapter thirty-one of this code, those amounts received by the clerk which are dedicated for deposit in the fund.;
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. 716--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §31-20-10b; to amend and reenact §50-3-1, §50- 3-2 and §50-3-4a of said code; and to amend and reenact §59-1-11 and §59-1-28a of said code, all relating to creating the Regional Jail Operations Partial Reimbursement Fund; calculation of reimbursement to counties and municipalities; providing duties of the State Treasurer; requiring report from the Regional Jail and Correctional Facility Authority; setting date for first reimbursement; and increasing court costs for criminal and civil proceedings.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 716, 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. 716) passed with its House of Delegates amended 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 S. B. No. 716) 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. 736, Repealing superceded sections relating to proffers and conditions for final plat approval.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 749, Authorizing change in official name of public service district in certain cases.
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. 751, Making supplementary appropriation to Department of Transportation, Division of Motor Vehicles.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 34, Requesting Division of Highways name bridge on Route 13, Raleigh County, "Sergeant Billy Ray Holmes 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. 2150, Expanding the possible venues where a child neglect or abuse petition may be filed.
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, of
Eng. Com. Sub. for House Bill No. 2417, Relating to compressed gas container safe transport.
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 with its Senate amended title, to take effect from passage, 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. 2669, Authorizing miscellaneous boards and agencies to 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 Senate amendments to the bill were reported by the Clerk:
On page eleven, section nine, subdivision 5.3.a., after the word "license" by striking out the comma and the words "be at least 62 years of age,";
And,
On page eleven, section nine, subdivision 5.3.b., by striking out the words "for a period of up to one year, ending on June 30".
On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendments to the Senate amendments to the bill.
Engrossed Committee Substitute for House Bill No. 2669, 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. 2669) passed with its Senate 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. Com. Sub. for H. B. No. 2669) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
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. 49--Opposing the further designation of additional federal wilderness acreage within the Monongahela National Forest in the State of West Virginia and requesting the United States Department of Agriculture (USDA) Forest Service to consider fully the many values of active, professionally managed forests during the revision of the Monongahela National Forest Land and Resource Management Plan; and further requesting that the Forest Service implement a spatial reapportionment of management areas in the Monongahela National Forest to increase acreage available for active vegetation and timber management.
Whereas, The health, economic well-being and cultural traditions of West Virginia's citizens have historically been and continue to be dependent upon the wealth of natural resources provided by the working forests within the State; and
Whereas, The natural resources of the State of West Virginia, particularly its timber resources, are immovable, permanent, renewable assets belonging to the people of West Virginia; and
Whereas, Local municipalities and other public jurisdictions in West Virginia have had their educational, public safety and transportation infrastructure deprived of timber revenue payments-in-lieu totaling hundreds of millions of dollars due to the unwarranted actions of political activists dedicated to forest abandonment; and
Whereas, Federal wilderness designation by the United States Congress is a permanent, irrevocable condition that will forever deprive West Virginians and the nonresident visiting public of nearly all economically productive uses and reasonable access to recreational opportunities in the Monongahela National Forest; and
Whereas, The majority of our documented aging population that seeks reasonable access to Monongahela National Forest lands for recreation would be denied such reasonable access by the various mandates of federal wilderness designation which discriminate in favor of those of greater youth and vitality; and
Whereas, Professionally prescribed active timber management supplies an important source of sustainable, God-given renewable raw materials for West Virginia's forest-based industries and rural manufacturing economies; and
Whereas, Congressional designation of additional federal wilderness acreage in the Monongahela National Forest would replace scientifically justified natural resource management with an unfounded philosophical ideology of forest abandonment on more of West Virginia's rural working landscape to the detriment of West Virginians, their forests and the wildlife resources held in trust by the State of West Virginia for its people; and
Whereas, Imposing additional wilderness would diminish the biological diversity of the Monongahela National Forests wildlife habitat types due to the prohibition of all wildlife habitat and timber management and would eliminate the opportunity to seek to perpetuate the best quality and combination of wildlife habitats; and
Whereas, Designation of additional Monongahela National Forest acreage to management prescriptions 3.0 and 6.1 will facilitate the application of critically needed professional forest management toward attaining the scientifically accepted ideal of 15 percent of the forested landscape in young forest, early successional wildlife habitats (0-10 years old); and
Whereas, The State of West Virginia Division of Natural Resources is charged by the people of West Virginia to protect and conserve our fish and wildlife using sound scientific principles inherent in active wildlife management practices, including those existing within the proclamation boundaries of the Monongahela National Forest, including that acreage either currently designated or proposed as federal wilderness; and
Whereas, Compelling peer-reviewed and widely accepted scientific evidence documents that:
1. Some of the most interesting and diverse natural communities in eastern North America will be lost without active forest management;
2. Providing habitat for the greatest diversity of wildlife species over the long term involves purposefully managing for a mosaic of forest conditions; and
3. Providing both young and mature forest habitat through forest management contributes to the biological diversity of the forested landscape; and
Whereas, The designation of additional federal wilderness acreage in the Monongahela National Forest will impose unreasonable barriers to recreational opportunities for disabled, handicapped and physically impaired West Virginians and nonresident visitors to West Virginia; and
Whereas, The honorable governing bodies and economic development authorities of the counties of Grant, Pendleton, Pocahontas, Randolph and Tucker, each of which encompasses some portion of Monongahela National Forest lands, have formally and publicly opposed the designation of additional federal wilderness acreage in the Monongahela National Forest; and
Whereas, The West Virginia Legislature is bound by Article II, 2-1 of the West Virginia Constitution to recognize that the powers of government reside in all the citizens of the State and can be rightfully exercised only in accordance with their will and appointment; therefore, be it
Resolved by the Legislature of West Virginia:
That the West Virginia Legislature requests that the United States Department of Agriculture Forest Service, in developing proposed alternatives for the Monongahela National Forest Plan Revision, consider fully the many values of well-managed forests to the State of West Virginia; and, be it
Further Resolved, That the Legislature recognizes that any expansion of federal wilderness and/or the imposition of any other unreasonably restrictive land management measures would result in losses in recreational opportunity and severe economic harm to far more West Virginians than would be benefited; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby directed to send a copy of this resolution to the Honorable Nick J. Rahall II, the Honorable Alan B. Mollohan and the Honorable Shelley Moore Capito, Representatives of the State of West Virginia in the United States Congress; the Honorable Robert C. Byrd and the Honorable John D. Rockefeller IV, Senators for the State of West Virginia in the United States Congress; the Honorable Joe Manchin III, Governor of the State of West Virginia, Clyde Thompson, Supervisor of the Monongahela National Forest, and to the county commissions of each county with land in the Monongahela National Forest.
Referred to the Committee on Natural Resources.
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. 75--Requesting the Joint Committee on Government and Finance study the conundrum presented by a conflict between the statutory standards and requirements governing the practice of medicine and related health care occupations and underwriting guidelines governing the issuance of medical professional liability insurance policies.
Whereas, There is a need to ensure the availability of health care for the citizens of this state; and
Whereas, Nurse practitioners, physicians assistants and nurse anesthetists are critical to providing care to West Virginians; and
Whereas, The scope of practice of all health care providers is set forth in code; and
Whereas, Physicians utilizing nurse practitioners and physician assistants are required to have collaborative agreements in place intended to enhance the availability of care; and
Whereas, Restricting the scope of practice of mid-level health care providers could negatively impact the availability of health care in this state, especially in the rural areas; and
Whereas, An underwriting guideline requiring that a physician be on site at all times a mid-level practitioner sees patients conflicts with the statutory scope of practice of mid-level practitioners and limits the availability of care; and
Whereas, The availability and affordability of medical malpractice insurance is also important to continued access to care; and
Whereas, Underwriting guidelines address the risks associated with insured activity and provide the basis for the cost of insuring against the risk; and
Whereas, Underwriting guidelines that restrict the lawful practice of mid-level health care providers can result in reduced access to health care for patients in this state; and
Whereas, The Legislature needs to ensure access to health care and access to affordable medical malpractice insurance; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance study the statutory standards and requirements governing the practice of mid- level health care occupations and the underwriting guidelines governing the issuance of medical professional liability insurance policies to these professionals to resolve any conflicts between the two which affects the State's ability to provide health care to its citizens; and, be it
Further Resolved, That the Joint Committee on Government and Finance report on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations to the next regular session of the Legislature; and, be it
Further Resolved, That the expenses necessary to carry out its duties, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 83--Requesting the Secondary School Activities Commission to consider a rule amendment to provide at least two classes of competition in the end-of-season interscholastic tournaments for soccer, swimming and others as practicable.
Whereas, Under its current rules, the Commission may sponsor a state tournament for recognized team sports in which at least 21 schools participate and for recognized individual sports in which at least 10 schools sponsor at least the number of individuals required to permit team scoring; and
Whereas, Up to 50 percent of the member schools may sponsor a recognized sport and be required to compete against each other in the state tournament without regard to the size of the schools; and
Whereas, The specter of competing against much larger schools may dissuade smaller schools from offering their students the opportunity to participate in some of the less popular sports; therefore, be it
Resolved by the Legislature of West Virginia:
That the Secondary School Activities Commission be requested to consider amending its rules to provide at least two classes of competition in the end-of-season interscholastic tournaments for soccer, swimming and others as practicable; and, be it
Further Resolved, That the said Secondary School Activities Commission make a report of its consideration of said amendment to the Legislative Oversight Commission on Education Accountability, including any findings, conclusions and recommendations, prior to the beginning of the school year beginning on the first day of July, 2006.
Referred to the Committee on Education.
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. 84--Requesting the Joint Committee on Government and Finance to make a study on the education enhancement proposals of the West Virginia Department of Education entitled: West Virginia ACHIEVES (5-year plan); Mathematics - Our Future, A Five-Year Plan; and Professional Development Schools (HB 4669); and any other major initiatives currently being undertaken.
Whereas, Improving student performance is the premier mandate given the State Board and the Department of Education under a performance-based system of accountability; and
Whereas, New initiatives addressing various subjects, employing various methods and committing various resources are undertaken with regularity to improve student performance with varying levels of coordination, oversight and verifiable success; and
Whereas, Real improvements in student performance are dependent upon the capacity of local schools and classroom teachers to embrace the changes and commit the time and resources to effectively implement them, all of which are diminished when multiple initiatives compete for time, attention and resources, consume the limited time available for staff development, lack the coordination necessary for efficient delivery and muddle the focus teaching and learning; 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 education enhancement proposals of the West Virginia Department of Education entitled: West Virginia ACHIEVES (5-year plan); Mathematics - Our Future, A Five-Year Plan; and Professional Development Schools (HB 4669); and any other major initiatives currently being undertaken; and, be it
Further Resolved, That the said Joint Committee on Government and Finance is requested to conduct the study and prepare a report of its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the Joint Committee on Government and Finance is requested to 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 draft necessary legislation are requested to be paid from legislative appropriations to the Joint Committee on Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 99--Recommending that West Virginia's national representatives research methods for securing waivers that would help the state better tailor No Child Left Behind for West Virginia students.
Whereas, Education has traditionally been a state role and responsibility; and
Whereas, No two states are identical and no two students are identical; and
Whereas, Some parts of NCLB are difficult for local boards to implement; and
Whereas, If they fail to implement these programs, they will fall out of compliance with NCLB; and
Whereas, Extra pressure may be placed upon students due to the standardized tests and the impact the scores have on the schools and the students; and
Whereas, West Virginia would require additional funding in order to accomplish its requirements; and
Whereas, Some county superintendents have expressed frustration in trying to comply with regulations that they feel are unattainable; and
Whereas, NCLB has good intentions and every child should be given the opportunity to learn at a high level; and
Whereas, NCLB would be more successful in West Virginia if it were better tailored to the state; and
Whereas, The state needs the ability to be innovative in its approach to education; and
Whereas, NCLB has caused the focus to be more on what is not possible for the state to do instead of focusing on making the system better; and
Whereas, West Virginia is accountable for results and compliance, but does not have the flexibility it needs to attain it; therefore, be it
Resolved by the Legislature of West Virginia:
For these reasons, the Legislature hereby requests that West Virginia's national representatives research methods for securing waivers that would help the state better tailor NCLB to West Virginia's needs and increase the state's chance of success; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to West Virginia's national representatives.
Referred to the Committee on Education.
Executive Communications

Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, submitting the annual probation and parole report, which was received:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

April 8, 2005

Senate Executive Message No. 6
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
In accordance with the provisions of Section 11, Article VII of the Constitution of the State of West Virginia, and Section 16, Article 1, Chapter 5 of the Code of West Virginia, I hereby report that I granted no pardons or reprieves, nor commuted punishment to any person, and remitted no fines or penalties during the period of January 17, 2005, through April 8, 2005.
Very truly yours,
Joe Manchin III,
Governor.
Senator Tomblin (Mr. President) then laid before the Senate the following communication from His Excellency, the Governor, regarding annual reports, which communication was received:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

April 8, 2005

Senate Executive Message No. 7
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
Pursuant to the provisions of §5-1-20 of the Code of West Virginia, I hereby certify that, for the period January 17, 2005, through April 8, 2005, the following 2003-2004 annual reports have been received in the Office of the Governor:
1.Adjutant General, West Virginia;
2.Coal Heritage Highway Authority and National Coal Heritage Area Authority;
3.Community and Technical College, West Virginia State;
4.Consolidated Public Retirement Board, West Virginia;
5.Economic Development Authority, West Virginia;
6.Employee Suggestion Award Board, West Virginia Legislature;
7.Equal Employment Opportunity Office, West Virginia;
8.Interstate Pest Control Compact;
9.Labor, West Virginia Division of;
10.Library Commission, West Virginia;
11.Literacy, Governor's Council on;
12.Medicine, West Virginia Board of, Volumes I and II;
13.National and Community Service, West Virginia Commission for;
14.Oil and Gas Inspectors' Examining Board, West Virginia;
15.Optometry, West Virginia Board of;
16.Parole Board, West Virginia;
17.Personnel, West Virginia Division of;
18.Professional Surveyors, West Virginia Board of;
19.Real Estate Appraiser Licensing and Certification Board, West Virginia;
20.Real Estate Commission, West Virginia;
21.Rehabilitation Services, West Virginia Division of;
22.Social Work Examiners, West Virginia Board of;
23.State Police, West Virginia;
24.Support Enforcement Commission, West Virginia;
25.Veterinary Medicine, West Virginia Board of;
26.Water Development Authority, West Virginia.
Very truly yours,
Joe Manchin III,
Governor.
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 12:30 p.m. today:
Eng. Com. Sub. for House Bill No. 2492, Providing a funding mechanism for teen court programs.
Senator Edgell, from the committee of conference on matters of disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 717, Permitting Wetzel County Hospital provide alternate retirement plan for new employees.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendments of the House to Engrossed Committee Substitute for Senate Bill No. 717 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the House of Delegates, striking out everything after the enacting section, and agree to the same as follows:
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-18. Termination of membership; reentry.
(a) When a member of the retirement system retires or dies, he or she ceases to be a member. When a member leaves the employ of a participating public employer for any other reason, he or she ceases to be a member and forfeits service credited to him or her at that time. If he or she becomes reemployed by a participating public employer, he or she shall be reinstated as a member of the retirement system and his or her credited service last forfeited by him or her shall be restored to his or her credit: Provided, That he or she must be reemployed for a period of one year or longer to have the service restored: Provided, however, That he or she returns to the members' deposit fund the amount, if any, he or she withdrew from the fund, together with regular interest on the withdrawn amount from the date of withdrawal to the date of repayment, and that the repayment begins within two years of the return to employment and that the full amount is repaid within five years of the return to employment.
(b) The Prestera Center for Mental Health Services, Valley Comprehensive Mental Health Center, Westbrook Health Services and Eastern Panhandle Mental Health Center, and their successors in interest, shall provide for their employees a pension plan in lieu of the Public Employees Retirement System during the existence of the named mental health centers and their successors in interest.
(c) The administrative bodies of the Prestera Center for Mental Health Services, Valley Comprehensive Mental Health Center, Westbrook Health Services and Eastern Panhandle Mental Health Center shall, on or before the first day of May, one thousand nine hundred ninety-seven, give written notice to each employee who is a member of the Public Employees Retirement System of the option to withdraw from or remain in the system. The notice shall include a copy of this section and a statement explaining the member's options regarding membership. The notice shall include a statement in plain language giving a full explanation and actuarial projection figures in support of the explanation regarding the individual member's current account balance, vested and nonvested, and his or her projected return upon remaining in the Public Employees Retirement System until retirement, disability or death, in comparison with the projected return upon withdrawing from the Public Employees Retirement System and joining a private pension plan provided by the Community Mental Health Center and remaining therein until retirement, disability or death. The administrative bodies shall keep in their respective records a permanent record of each employee's signature confirming receipt of the notice.
(d) Effective the first day of March, two thousand three, and ending the thirty-first day of December, two thousand four, any member may purchase credited service previously forfeited by him or her and the credited service shall be restored to his or her credit: Provided, That he or she returns to the members' deposit fund the amount, if any, he or she withdrew from the fund, together with interest on the withdrawn amount from the date of withdrawal to the date of repayment at a rate to be determined by the Board. The repayment under this section may be made by lump sum or repaid over a period of time not to exceed sixty months. Where the member elects to repay the required amount other than by lump sum, the member is required to pay interest at the rate determined by the Board until all sums are fully repaid.
(e) Effective the first day of July, two thousand five, and ending the thirty-first day of December, two thousand six, any emergency services personnel may purchase service credit for the time period beginning the first day of January, one thousand nine hundred ninety, and ending the thirty-first day of December, one thousand nine hundred ninety-five: Provided, That person was employed as an emergency service person in this state for that time period: Provided, however, That any person obtaining service credit under this subsection is required to pay the employee's share and the employer's share upon his or her actual salary for the years in question plus interest at the assumed actuarial rate of return for the plan year being repurchased.
(f) Jobs for West Virginia's Graduates and their successors in interest shall provide a pension plan in lieu of the Public Employees Retirement System for employees hired on or after the first day of July, two thousand five.
(g) Wetzel County Hospital and their successors in interest shall provide a pension plan in lieu of the Public Employees Retirement System for employees hired on or after the first day of July, two thousand five.;
And,
That both houses recede from their respective positions as to the title of the bill and agree to the same as follows:
Eng. Com. Sub. for Senate Bill No. 717--A Bill to amend and reenact §5-10-18 of the Code of West Virginia, 1931, as amended, relating to permitting Wetzel County Hospital and Jobs for West Virginia's Graduates, respectively, to provide an alternative retirement plan for new employees in lieu of participation in the Public Employees Retirement System; establishing date; permitting emergency services personnel to purchase service credit for the years one thousand nine hundred ninety to one thousand nine hundred ninety-five; specifying the cost of the service credit; specifying interest rate; and setting forth a limited time period for emergency services personnel to make the purchase.
Respectfully Submitted,
Larry J. Edgell, Chair, Dan Foster, Clark S. Barnes, Conferees on the part of the Senate.
Doug Stalnaker, Chair, Richard Browning, Walter E. Duke, Conferees on the part of the House of Delegates.
Senator Edgell, Senate cochair of the committee of conference, was recognized to explain the report.
Thereafter, on motion of Senator Edgell, the report was taken up for immediate consideration and adopted.
Engrossed Committee Substitute for Senate Bill No. 717, as amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, 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 S. B. No. 717) passed with its conference 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. Com. Sub. for S. B. No. 717) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the sixth order of business, which agenda includes the making of main motions.
On motion of Senator Sprouse, the Senate requested the return from the House of Delegates of
Eng. Com. Sub. for Senate Bill No. 700, Creating Community Infrastructure Investment Program within Department of Commerce.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Sprouse, the Senate reconsidered the vote as to the passage of the bill.
The vote thereon having been reconsidered,
The question again being on the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Dempsey, Edgell, Facemyer, Fanning, Foster, Harrison, Helmick, Jenkins, Kessler, Lanham, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Weeks and Tomblin (Mr. President)--24.
The nays were: Caruth, Chafin, Deem, Guills, Hunter, Love, Sprouse, Unger, White and Yoder--10.
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. 700) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Senators Unger, Helmick and Yoder offered the following resolution:
Senate Concurrent Resolution No. 104--Requesting the Joint Committee on Government and Finance study the relocation of the MARC Train Layover Facility in Martinsburg, Berkeley County, to Hancock, Morgan County, in an effort to promote economic development and improve accessibility of intermodal transportation for surrounding populace in the State of West Virginia.
Whereas, Efficient and affordable intermodal passenger transportation has emerged as an essential element to the economic growth of a community; and
Whereas, Providing appropriate accessibility for an intermodal transportation center for passenger rail service, flight service and ground transportation requires adequate space, track availability and access to existing transportation infrastructure; and
Whereas, Hancock, Morgan County, offers access and opportunity for development of an intermodal transportation center with an unimpeded flow of commerce and collaboration between the State of West Virginia and contiguous states; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the relocation of the MARC Train Layover Facility in Martinsburg, Berkeley County, to Hancock, Morgan County, in an effort to promote economic development and improve accessibility of intermodal transportation for surrounding populace 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 costs associated with the relocation of the MARC Train Layover Facility from Martinsburg, Berkeley County, to Hancock, Morgan County, including, but not limited to, the initial capital, operational and maintenance costs in relation to current costs and future economic growth; and, be it
Further Resolved, That the Joint Committee on Government and Finance's study include an examination of the benefits and opportunities of an intermodal transportation center, including, but not limited to, estimated ridership potential, extended commuter market and shared costs of operation and maintenance resulting form active collaboration with and among the State of West Virginia and the District of Columbia, the State of Maryland, and the Commonwealths of Pennsylvania and Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance's study include an examination of infrastructure development and improvement projects in conjunction with an intermodal passenger transportation center in Hancock, Morgan County; 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.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senator Chafin offered the following resolution:
Senate Concurrent Resolution No. 105--Requesting the Division of Highways name the bridge that intersects with Farley Avenue in Delbarton, Mingo County, the "Dr. J. R. 'Bob' Farley Memorial Bridge".
Whereas, Dr. J. R. "Bob" Farley was born on March 24, 1902, in Delbarton, Mingo County, the son of the late James A. and Mary Farley; and
Whereas, Dr. Farley was educated in the public schools in Mingo County where he was a member of the Burch High School basketball team; and
Whereas, Dr. Farley graduated from the College of Dentistry at the University of Louisville in 1927 and returned to his native Delbarton where he practiced dentistry for 43 years; and
Whereas, Dr. Farley was community-spirited and civic-minded, serving on a plethora of community-based organizations, including as the Chairman of the Delbarton Volunteer Fire Department, the President of the Delbarton Kiwanis Club, the PTA President in Delbarton, the President of the Burch High School Band Boosters and a member of the Tug Valley Chamber of Commerce; and
Whereas, Dr. Farley, a lifelong Democrat, was a successful political figure, further serving his community variously as a member of the Mingo County Board of Education, Mayor of Delbarton and Mingo County Commissioner; and
Whereas, Dr. Farley passed away on April 26, 1970, leaving behind his three children, Lohoma Lee Schuler, Rebecca Jean O'Dell and James David Farley; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name the bridge that intersects with Farley Avenue in Delbarton, Mingo County, the "Dr. J. R. 'Bob' Farley Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the bridge as the "Dr. J. R. 'Bob' Farley Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the family of the late Dr. J. R. "Bob" Farley, in care of David Farley.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration.
On motion of Senator Chafin, the resolution was referred to the Committee on Transportation and Infrastructure.
Senator Yoder offered the following resolution:
Senate Concurrent Resolution No. 106--Requesting the Joint Committee on Government and Finance study repealing the Local Powers Act and replacing it with legislation giving counties more flexibility in meeting county-level demands.
Whereas, It is the purpose of the Local Powers Act to provide for the fair distribution of costs for county development by authorizing the assessment and collection of fees to offset the cost of commercial and residential development within affected counties; and
Whereas, The Act is outdated and too restrictive for the needs of counties in different geographical areas of this state; and
Whereas, Instead of improving the ability of counties to meet the needs of its citizens, the Act has restricted their ability to meet modern demands for planning and providing services; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study repealing the Local Powers Act and replacing it with legislation giving counties more flexibility in meeting county-level demands; 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.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senators Prezioso, Oliverio, Hunter, Minear, Kessler, Minard, Edgell, Dempsey, Jenkins, Sprouse, Bowman and McCabe offered the following resolution:
Senate Resolution No. 43--Congratulating the West Virginia University men's basketball team on its participation in the Elite Eight in the men's 2005 NCAA basketball tournament.
Whereas, The West Virginia University men's basketball team captured the hearts and imaginations of the citizens of West Virginia with its run to the Elite Eight in the 2005 NCAA tournament; and
Whereas, The West Virginia University men's basketball team beat eight nationally ranked teams on its unbelievable NCAA tournament journey; and
Whereas, Not since 1959 has the men's basketball program at West Virginia University created such a furor and caused state pride to intensify; and
Whereas, The coaching staff of the West Virginia University men's basketball team, under the command of Head Coach John Beilein and assistant coaches Jeff Neubauer, Jerry Dunn and Matt Brown, is commended for its outstanding leadership ability; and
Whereas, The members of the West Virginia University men's basketball team, consisting of Patrick Beilein, Luke Bonner, Brad Byerson, J. D. Collins, D'or Fischer, Mike Gansey, Johannes Herber, Darris Nichols, Kevin Pittsnogle, Duriel Price, Tyrone Sally, Ted Talkington and Frank Young, are commended for their outstanding athletic ability, team spirit and sportsmanship; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates the West Virginia University men's basketball team on its participation in the Elite Eight in the men's 2005 NCAA basketball tournament; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the West Virginia University men's basketball team.
At the request of Senator Prezioso, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Senators Prezioso, Oliverio, Hunter, Minear, Edgell, Kessler, Minard, Dempsey, Jenkins, Sprouse, Bowman and McCabe offered the following resolution:
Senate Resolution No. 44--Congratulating the West Virginia University women's basketball team on reaching the championship game of the 2005 Women's National Invitation Tournament.
Whereas, The West Virginia University women's basketball team exceeded all expectations by reaching the championship game of the WNIT tournament; and
Whereas, The team produced back-to-back 20-win seasons for the first time in WVU history; and
Whereas, The coaching staff of the West Virginia University women's basketball team, under the guidance of Head Coach Mike Carey and assistant coaches Cindy Martin, Sharrona Reaves and Chester Nichols, is commended for its outstanding leadership ability; and
Whereas, The members of the West Virginia University women's basketball team, consisting of LaQuanda Brandon, Meg Bulger, Becca Cline, Chakhia Cole, Kate Glusko, Kristin Heminger, Jeriece Lee, Yelena Leuchanka, Ramkia McGee, LaQuita Owens, Yolanda Paige, Amber Robinson, Olayinka Sanni and Sherell Sowho, are commended for their outstanding athletic ability, team spirit and sportsmanship; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates the West Virginia University women's basketball team on reaching the championship game of the 2005 Women's National Invitation Tournament; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the West Virginia University women's basketball team.
At the request of Senator Prezioso, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Senators Prezioso, Oliverio, Hunter, Minear, Kessler, Edgell, Minard, Dempsey, Jenkins, Sprouse, Bowman and McCabe offered the following resolution:
Senate Resolution No. 45--Congratulating West Virginia University wrestler Greg Jones on winning three national championship titles and being named NCAA Most Outstanding Wrestler of 2005.
Whereas, Greg Jones, a senior at West Virginia University, finished his collegiate career with a 51-match winning streak and back-to-back undefeated seasons and will leave WVU with a career record of 126-4; and
Whereas, Greg Jones became just the 39th wrestler in NCAA history to win three national championship titles. He was also named the NCAA tournament's Most Outstanding Wrestler, the first Eastern Wrestlers League member ever; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates West Virginia University wrestler Greg Jones on winning three national championship titles and being named NCAA Most Outstanding Wrestler of 2005; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to West Virginia University wrestler Greg Jones.
At the request of Senator Prezioso, 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 Unger, unanimous consent being granted, Senators Tomblin (Mr. President) and Unger offered the following resolution from the floor:
Senate Concurrent Resolution No. 107--Requesting the Joint Committee on Government and Finance study the state's technology infrastructure and economic development opportunities with the advancement of digital communications, broadband, wireless communications and the internet in the State of West Virginia.
Whereas, The internet revolution is driving today's economy and information technology offers increased economic opportunities, higher living standards, more individual choices and wider and more meaningful participation in government and public life; and
Whereas, The ability of people in all parts of this state to have affordable access to the internet is an important component in the ability of the state and its people and institutions to remain competitive in the information-based global economy; and
Whereas, Access to the internet will complement the learning experiences of children in rural areas by giving them a window to the world and allowing them to gather data from the information superhighway which would not otherwise be available to them; and
Whereas, Internet access will give rural medical clinics a direct connection to medical experts in this state and throughout this country; and
Whereas, The educational, medical, cultural and economic benefits of the internet are useless to people and businesses who are neither connected to nor able to access the information superhighway; and
Whereas, The efficient and comprehensive development of technology infrastructure, and the resulting benefits of accessibility to advanced information services and the internet, are linked to the coordinated ubiquitous deployment and operation of information systems, information technology, information equipment and telecommunications systems; and
Whereas, The management, goals and purposes of government are furthered by the completion of an inventory of information systems, information technology, information equipment, telecommunications- related services and systems and general technology infrastructure and linked information systems across government; and
Whereas, Technology infrastructure supports homeland security and public safety; and
Whereas, In West Virginia and nationwide, local governments are considering ways to promote broadband networks in their communities for the purposes of homeland security, public safety and economic development; and
Whereas, Local government efforts are intended to complement wirelines and cable networks; and
Whereas, Technology infrastructure is essential to business and economic development within 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's technology infrastructure and economic development opportunities with the advancement of digital communications, broadband, wireless communications and the internet in the State of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance's study include the process of developing an inventory of the statewide operation of information systems, information technology, information equipment and telecommunications-related services and systems; and, be it
Further Resolved, That the Joint Committee on Government and Finance's study examine the economic benefits to the state by the ubiquitous deployment of technology infrastructure and the process of developing an innovation center to coordinate research and development efforts throughout the state and to build sustainable communities through affordable technology infrastructure; and, be it
Further Resolved, That the Joint Committee on Government and Finance's study examine the benefits of technology infrastructure in promoting economic development, providing homeland security, providing continuity of government operations and promoting public welfare; and, be it
Further Resolved, That the Joint Committee on Government and Finance's study examine the kind of technology infrastructure, including wireless communications, necessary for widespread growth and development and identify where technology is severely lacking; and, be it
Further Resolved, That the Joint Committee on Government and Finance's study examine intergovernmental cooperation and public- private partnerships as effective methods to approach common development and ubiquitous deployment of technology infrastructure and services and the most effective use of local, state, federal and private resources; 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.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fourth order of business.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Concurrent Resolution No. 108 (originating in the Committee on the Judiciary)--Requesting the Joint Committee on Government and Finance study criminal laws of West Virginia for efficacy and consistency, including, but not limited to, possibly establishing drug weight thresholds, alternative sentencing, indeterminate sentences, community corrections, home confinement programs, work release programs, early release under specific circumstances, recidivism, presumptive parole and any other issue affecting overpopulation of West Virginia's jails and prisons.
Whereas, The criminal statutes of this state have not been reviewed collectively or updated in many years; and
Whereas, A need exists to expand and utilize community corrections, work release programs, home confinement programs and alternative sentencing and to alleviate jail overpopulation; and
Whereas, The aging inmate population requires additional medical costs, thereby increasing the burden on the taxpayers of West Virginia; and
Whereas, Representatives of the Parole Board, the judiciary, prosecutors, law enforcement, regional jails and prisons must work together on these issues to alleviate such overpopulation; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study criminal laws of West Virginia for efficacy and consistency, including, but not limited to, possibly establishing drug weight thresholds, alternative sentencing, indeterminate sentences, community corrections, home confinement programs, work release programs, early release under specific circumstances, recidivism, presumptive parole and any other issue affecting overpopulation of West Virginia's jails and prisons; 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,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the resolution (S. C. R. No. 108) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration.
On motion of Senator Kessler, the resolution was referred to the Committee on Rules.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Concurrent Resolution No. 109 (originating in the Committee on the Judiciary)--Requesting the Joint Committee on Government and Finance study the need for providing training to persons selling and serving alcohol to the public.
Whereas, Service staff require education on recognizing underage patrons, intoxication indicators and other commonly encountered issues related to the selling and serving of alcohol; and
Whereas, The failure to educate service staff may impose liability on the retailers, bar and restaurant owners and employees and endanger the public; and
Whereas, Much can be gained by bringing together knowledgeable persons and agencies, including, but not limited to, the Alcohol Beverage Control Commission, representatives of the retail industry and representatives of the food and beverage industry; and
Whereas, The Legislature should explore the possibility of developing an educational program to address these issues;
therefore, be it
Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the need for providing training to persons selling and serving alcohol to the public; 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,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the resolution (S. C. R. No. 109) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration.
On motion of Senator Kessler, the resolution was referred to the Committee on Rules.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Concurrent Resolution No. 110 (originating in the Committee on Government Organization)--Requesting the Joint Committee on Government and Finance study annexation issues in Jefferson County
.
Whereas,
The population of Jefferson County is growing and the need for housing, schools and other facilities is great ; and
Whereas, Jefferson County
has countywide zoning, has adopted the Local Powers Act and is developing unincorporated land at an extremely fast rate; and
Whereas,
Annexation of unincorporated land by municipalities has become a contentious subject in Jefferson County; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study annexation issues in Jefferson County
; and, be it
Further Resolved,
That the Joint Committee on Government and Finance develop possible annexing procedures for Jefferson County ; 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,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being granted, the resolution (S. C. R. No. 110) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration.
On motion of Senator Bowman, the resolution was referred to the Committee on Rules.
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. 111 (originating in the Committee on Education)--Requesting the Joint Committee on Government and Finance study the duties, responsibilities and authority of public school principals and assistant principals.
Whereas, The leadership provided by principals and assistant principals is one of the most important factors in determining student achievement; and
Whereas, Principals and assistant principals require time to provide the quality of leadership needed to improve student achievement; and
Whereas, Principals and assistant principals need a certain degree of control and authority in order to provide the quality of leadership needed to improve student achievement; and
Whereas, Concern has been expressed over whether or not principals and assistant principals have sufficient authority to provide effective leadership; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the duties, responsibilities and authority of public school principals and assistant principals; 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.
At the request of Senator Plymale, unanimous consent being granted, the resolution (S. C. R. No. 111) contained in the preceding report from the Committee on Education was taken up for immediate consideration.
On motion of Senator Plymale, the resolution was referred to the Committee on Rules.
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. 112 (originating in the Committee on
Transportation and Infrastructure)--Requesting the Joint Committee on Government and Finance study regulations related to impounded or towed motor vehicles released to a third party.
Whereas, The State of West Virginia requires insurance, license registration and the inspection of motor vehicles to ensure the utmost safety and confidence in the operation of motor vehicles; and
Whereas, The unexamined release of a motor vehicle to a third party of a towed, wrecked, disabled or impounded motor vehicle raises a serious concern as to each vehicle's operability, registration, insurance and compliance with state law; and
Whereas, Impounded or towed motor vehicles may be found to be noncompliant with insurance, inspection or registration regulations or otherwise deemed inoperable during the time of impoundment and no requirement exists for the impound facility or towing operator to check such upon release of the motor vehicle to a third party, which presents a potential danger to the public; 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 impounded or towed motor vehicles released to a third party; and, be it
Further Resolved, That the Joint Committee on Government and Finance's study include an examination of the regulations to ensure the release of a motor vehicle which has been towed or impounded only occurs if such motor vehicle or operator is in compliance with state regulations regarding insurance, inspection and registration; and, be it
Further Resolved, That the Joint Committee on Government and Finance's study include an examination of insurance rates pertaining to such motor vehicles; and, be it
Further Resolved, That the Joint Committee on Government and Finance's study include an examination that these issues would have on traffic safety in the State of West Virginia; 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.
At the request of Senator Unger, unanimous consent being granted, the resolution (S. C. R. No. 112) contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
On motion of Senator Unger, the resolution was referred to the Committee on Rules.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Resolution No. 46 (originating in the Committee on the Judiciary)--
Urging United States Congress review provisions in the federal PATRIOT Act.
Whereas, The devastating attacks of September 11, 2001, in the United States, and the national patriotic response thereto, have resulted in a need for reaffirmation of the American way of life; and
Whereas, The potential for excessive restriction of civil liberties by the United States government gives reason for a renewed reflection upon the founding principles of the United States of America and the State of West Virginia; and
Whereas, The Constitution of the State of West Virginia, Article I, Section 3, asserts:
"The provisions of the Constitution of the United States, and of this State, are operative alike in a period of war as in time of peace, and any departure therefrom, or violation thereof, under plea of necessity, or any other plea, is subversive of good government, and tends to anarchy and despotism."; and
Whereas, The prevention of future terrorist attacks is a critical national priority, but it is also important to preserve the fundamental civil liberties and personal freedoms which were enshrined in the Bill of Rights over 200 years ago; therefore, be it
Resolved by the Senate:
That the Senate hereby urges the United States Congress review provisions in the federal PATRIOT Act; and, be it
Further Resolved, That the Senate hereby opposes federal legislation to the extent that it infringes on civil rights and liberties; and, be it
Further Resolved, That the Senate urges the President of the United States and members of the executive branch to review, revise or rescind executive orders and policies which have been adopted since September 11, 2001, which deprive citizens or residents of liberties guaranteed by the Bill of Rights; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Secretary of the United States Senate, the Clerk of the United States House of Representatives, President George W. Bush, Attorney General Alberto Gonzales and West Virginia's congressional delegation.

And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler requested unanimous consent that the resolution (S. R. No. 46) contained in the preceding report from the Committee on the Judiciary be taken up for immediate consideration.
Which consent was not granted, Senator Weeks objecting.
On motion of Senator Kessler, the resolution (S. R. No. 46) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration.
The question being on the adoption of the resolution, and on this question, Senator Weeks demanded the yeas and nays.
The roll being taken, the yeas were: Bailey, Barnes, Bowman, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sharpe, Unger, White, Yoder and Tomblin (Mr. President)--25.
The nays were: Boley, Caruth, Facemyer, Guills, Harrison, Lanham, Minear, Sprouse and Weeks--9.
Absent: None.
So, a majority of those present and voting having voted in the affirmative, the President declared the resolution (S. R. No. 46) adopted.
The Senate again proceeded to the sixth order of business.
At the request of Senator Prezioso, unanimous consent being granted, Senators Prezioso and Foster offered the following resolution from the floor:
Senate Concurrent Resolution No. 113--Requesting the Joint Committee on Government and Finance direct the Legislative Oversight Commission on Health and Human Resources Accountability study the effectiveness of medical interventions at the end of life and at other times.
Whereas, The application of medical science and technology has the ability to prolong the dying process almost indefinitely and, in some cases, with attendant pain and suffering; and
Whereas, Most West Virginians would prefer to live a shorter period of time rather than undergo pain and suffering involved with being kept alive artificially; and
Whereas, Certain medical procedures administered in hospitals and nursing homes, such as cardiopulmonary resuscitation, have been shown to rarely result in prolonged survival in persons with chronic illness in whom death is expected, but yet can significantly increase pain and suffering; and
Whereas, The per capita age of the citizens of the State of West Virginia is currently the highest in the nation and those individuals are most deserving to be recipients of effective medical care; and
Whereas, The issues related to medical decisionmaking, allocation of resources and attendant consequences are matters of important public policy in this state; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to direct the Legislative Oversight Commission on Health and Human Resources Accountability study the effectiveness of medical interventions at the end of life and at other times; 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 from the Joint Committee on Government and Finance.
At the request of Senator Prezioso, unanimous consent being granted, the resolution was taken up for immediate consideration.
On motion of Senator Prezioso, the resolution was referred to the Committee on Rules.
At the request of Senator White, unanimous consent being granted, Senators White and Love offered the following resolution from the floor:
Senate Resolution No. 47--Honoring Jim Fitzpatrick on his receipt of the prestigious Jefferson Award for public service.
Whereas, Jim Fitzpatrick was primarily responsible for obtaining necessary funds for projects benefiting the citizens of Richwood and Nicholas County, including obtaining a much needed new boiler for the local hospital, a new roof for the Starting Points Center and organizing the Convention and Visitors Bureau; and
Whereas, Jim Fitzpatrick actively supports many community groups and entities involved in improving the community. He serves on the advisory committee to the 4-C Economic Development Authority; City of Richwood's Mayor's Advisory Committee; Director of the Nicholas County Starting Points program; Vice President-Director of the Richwood Convention and Visitors Bureau; Committee Member of the Richwood Lake Project; Director of the Cranberry Tri-Rivers Rail Trail; Member of the Richwood Chamber of Commerce; Member of the Board of Trustees of the Richwood Area Community Hospital; Chairman and Director of the Richwood City Building Commission; Committee Member of World Servants; and Director of the Cherry River Festival; and
Whereas, As a volunteer giving of his time to make his community a better place and helping to improve the lives of many people, Jim Fitzpatrick exemplifies the finest traits of service as a citizen of his community and this state and is certainly deserving of receiving the prestigious Jefferson Award established by former first lady Jacqueline Kennedy Onassis; therefore, be it
Resolved by the Senate:
That the Senate hereby honors Jim Fitzpatrick on his receipt of the prestigious Jefferson Award for public service; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to Jim Fitzpatrick, the Mayor of the City of Richwood and the members of the Nicholas County Commission.
At the request of Senator White, 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 Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 752 (originating in the Committee on Finance)- -A Bill making a supplementary appropriation of federal funds out of the Treasury from the balance of federal moneys remaining unappropriated for the fiscal year ending the thirtieth day of June, two thousand five, to the Department of Environmental Protection - Division of Environmental Protection, fund 8708, fiscal year 2005, organization 0313, all supplementing and amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand five.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (S. B. No. 752) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
The bill was read a second time and ordered to engrossment and third reading.
Engrossed Senate Bill No. 752 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 752) 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. 752) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Tomblin (Mr. President), from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 80, Requesting Joint Committee on Government and Finance study State Board of Landscape Architects.
Senate Concurrent Resolution No. 91, Requesting Joint Committee on Government and Finance direct Legislative Oversight Commission on Health and Human Resources Accountability study availability and distribution of long-term care beds in state.
And,
Com. Sub. for House Concurrent Resolution No. 79, Requesting that the Joint Committee on Government and Finance study the increasing drug problem in West Virginia.
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
At the request of Senator Chafin, unanimous consent being granted, Senate Concurrent Resolution No. 80 contained in the preceding report from the Committee on Rules was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being granted, Senate Concurrent Resolution No. 91 contained in the preceding report from the Committee on Rules was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being granted, Committee Substitute for House Concurrent Resolution No. 79 contained in the preceding report from the Committee on Rules was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2011, Relieving health care providers of liability where an injury has resulted from a prescribed drug or medical device.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2011) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.

The bill (Eng. Com. Sub. for H. B. No. 2011) was then 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 7. ACTIONS FOR INJURIES.
§55-7-23. Prescription drugs and medical devices; limiting health care providers' liability exposure.

(a) No health care provider, as defined in section two, article seven-b of this chapter, is liable to a patient or third party for injuries sustained as a result of the ingestion of a prescription drug or use of a medical device that was prescribed or used by the health care provider in accordance with instructions approved by the U. S. Food and Drug Administration regarding the dosage and administration of the drug, the indications for which the drug should be taken or device should be used and the contraindications against taking the drug or using the device: Provided, That the provisions of this section shall not apply if: (1) The health care provider had actual knowledge that the drug or device was inherently unsafe for the purpose for which it was prescribed or used; or (2) a manufacturer of such drug or device publicly announces changes in the dosage or administration of such drug or changes in contraindications against taking the drug or using the device and the health care provider fails to follow such publicly announced changes and such failure proximately caused or contributed to the plaintiff's injuries or damages.
(b) The provisions of this section are not intended to create a new cause of action.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2011) was then read a third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for House Bill No. 2011 pass?"

On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2011) 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. 2011--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §55-7-23, relating to removing health care providers' exposure to liability where, in certain cases involving prescription drugs and medical devices, a person has been injured; and exceptions.
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 McKenzie, and by unanimous consent, the remarks by Senators Jenkins and Oliverio regarding the passage of Engrossed Committee Substitute for House Bill No. 2011 were ordered printed in the Appendix to the Journal.
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. 2186, Restricting involuntary commitment for addicted persons to those who, as a result of such addiction, are likely to cause serious harm to themselves or others.
With amendments from the Committee on the Judiciary pending;
And reports the same back with the recommendation that it do pass as amended by the Committee on the Judiciary to which the bill was previously referred.
Respectfully submitted,
Walt Helmick,
Chair.

At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. H. B. No. 2186) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
The bill (Eng. H. B. No. 2186) was then 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 §27-5-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.

§27-5-2. Institution of proceedings for involuntary custody for examination; custody; probable cause hearing; examination of individual.

(a) Any adult person may make an application for involuntary hospitalization for examination of an individual when the person making the application has reason to believe that:
(1) The individual to be examined is addicted, as defined in section eleven, article one of this chapter and exhibiting behaviors set forth in subdivision (1) or (2), subsection (a) of said section; or
(2) The individual is mentally ill and, because of his or her mental illness, the individual is likely to cause serious harm to himself or herself or to others if allowed to remain at liberty while awaiting an examination and certification by a physician or psychologist.
Notwithstanding any provision of this subsection to the contrary, if the individual to be examined under the provisions of this section is incarcerated in a jail, prison or other correctional facility, only the chief administrative officer of the facility holding the individual may file the application, and the application must include the additional statement that the correctional facility itself cannot reasonably provide treatment and other services for the individual's mental illness or addiction.
(b) The person making the application shall make the application under oath.
(c) Application for involuntary custody for examination may be made to the circuit court or a mental hygiene commissioner of the county in which the individual resides or of the county in which he or she may be found. When no circuit court judge or mental hygiene commissioner is available for immediate presentation of the application, the application may be made to a magistrate designated by the chief judge of the judicial circuit to accept applications and hold probable cause hearings. A designated magistrate before whom an application or matter is pending may, upon the availability of a mental hygiene commissioner or circuit court judge for immediate presentation of an application or pending matter, transfer the pending matter or application to the mental hygiene commissioner or circuit court judge for further proceedings unless otherwise ordered by the chief judge of the judicial circuit.
(d) The person making the application shall give information and state facts in the application as may be required by the form provided for this purpose by the Supreme Court of Appeals.
(e) The circuit court, mental hygiene commissioner or designated magistrate may enter an order for the individual named in the application to be detained and taken into custody for the purpose of holding a probable cause hearing as provided for in subsection (g) of this section for the purpose of an examination of the individual by a physician, psychologist, a licensed independent clinical social worker practicing in compliance with article thirty, chapter thirty of this code or advanced nurse practitioner with psychiatric certification practicing in compliance with article seven of said chapter: Provided, That a licensed independent clinical social worker or an advanced nurse practitioner with psychiatric certification may only perform the examination if he or she has previously been authorized by an order of the circuit court to do so, said order having found that the licensed independent clinical social worker or advanced nurse practitioner with psychiatric certification has particularized expertise in the areas of mental health and mental hygiene sufficient to make such determinations as are required by the provisions of this section. The examination is to be provided or arranged by a community mental health center designated by the Secretary of the Department of Health and Human Resources to serve the county in which the action takes place. The order is to specify that the hearing be held forthwith and is to provide for the appointment of counsel for the individual: Provided, however, That the order may allow the hearing to be held up to twenty-four hours after the person to be examined is taken into custody rather than forthwith if the circuit court of the county in which the person is found has previously entered a standing order which establishes within that jurisdiction a program for placement of persons awaiting a hearing which assures the safety and humane treatment of persons: Provided further, That the time requirements set forth in this subsection shall only apply to persons who are not in need of medical care for a physical condition or disease for which the need for treatment precludes the ability to comply with said time requirements. During periods of holding and detention authorized by this subsection, upon consent of the individual or in the event of a medical or psychiatric emergency, the individual may receive treatment. The medical provider shall exercise due diligence in determining the individual's existing medical needs and provide such treatment as the individual requires, including previously prescribed medications. As used in this section, "psychiatric emergency" means an incident during which an individual loses control and behaves in a manner that poses substantial likelihood of physical harm to himself, herself or others. Where a physician, psychologist, licensed independent clinical social worker or advanced nurse practitioner with psychiatric certification has within the preceding seventy-two hours performed the examination required by the provisions of this subdivision, the community mental health center may waive the duty to perform or arrange another examination upon approving the previously performed examination. Notwithstanding the provisions of this subsection, subsection (r), section four of this article applies regarding payment by the county commission for examinations at hearings. If the examination reveals that the individual is not mentally ill or addicted, or is determined to be mentally ill but not likely to cause harm to himself, herself or others, the individual shall be immediately released without the need for a probable cause hearing and absent a finding of professional negligence such examiner shall not be civilly liable for the rendering of such opinion absent a finding of professional negligence. The examiner shall immediately provide the mental hygiene commissioner, circuit court or designated magistrate before whom the matter is pending the results of the examination on the form provided for this purpose by the Supreme Court of Appeals for entry of an order reflecting the lack of probable cause.
(f) A probable cause hearing is to be held before a magistrate designated by the chief judge of the judicial circuit, the mental hygiene commissioner or circuit judge of the county of which the individual is a resident or where he or she was found. If requested by the individual or his or her counsel, the hearing may be postponed for a period not to exceed forty-eight hours.
The individual must be present at the hearing and has the right to present evidence, confront all witnesses and other evidence against him or her and to examine testimony offered, including testimony by representatives of the community mental health center serving the area. Expert testimony at the hearing may be taken telephonically or via videoconferencing. The individual has the right to remain silent and to be proceeded against in accordance with the rules of evidence of the Supreme Court of Appeals, except as provided for in section twelve, article one of this chapter. At the conclusion of the hearing, the magistrate, mental hygiene commissioner or circuit court judge shall find and enter an order stating whether or not there is probable cause to believe that the individual, as a result of mental illness, is likely to cause serious harm to himself or herself or to others or is addicted.
(g) The magistrate, mental hygiene commissioner or circuit court judge at a probable cause hearing or at a final commitment hearing held pursuant to the provisions of section four of this article finds that the individual, as a result of mental illness, is likely to cause serious harm to himself, herself or others or is addicted and because of mental illness or addiction requires treatment, the magistrate, mental hygiene commissioner or circuit court judge may consider evidence on the question of whether the individual's circumstances make him or her amenable to outpatient treatment in a nonresidential or nonhospital setting pursuant to a voluntary treatment agreement. The agreement is to be in writing and approved by the individual, his or her counsel and the magistrate, mental hygiene commissioner or circuit judge. If the magistrate, mental hygiene commissioner or circuit court judge determines that appropriate outpatient treatment is available in a nonresidential or nonhospital setting, the individual may be released to outpatient treatment upon the terms and conditions of the voluntary treatment agreement. The failure of an individual released to outpatient treatment pursuant to a voluntary treatment agreement to comply with the terms of the voluntary treatment agreement constitutes evidence that outpatient treatment is insufficient and, after a hearing before a magistrate, mental hygiene commissioner or circuit judge on the issue of whether or not the individual failed or refused to comply with the terms and conditions of the voluntary treatment agreement and whether the individual as a result of mental illness remains likely to cause serious harm to himself, herself or others or remains addicted, the entry of an order requiring admission under involuntary hospitalization pursuant to the provisions of section three of this article may be entered. In the event a person released pursuant to a voluntary treatment agreement is unable to pay for the outpatient treatment and has no applicable insurance coverage, including, but not limited to, private insurance or Medicaid, the Secretary of the Department of Health and Human Resources may transfer funds for the purpose of reimbursing community providers for services provided on an outpatient basis for individuals for whom payment for treatment is the responsibility of the Department: Provided, That the Department may not authorize payment of outpatient services for an individual subject to a voluntary treatment agreement in an amount in excess of the cost of involuntary hospitalization of the individual. The Secretary shall establish and maintain fee schedules for outpatient treatment provided in lieu of involuntary hospitalization. Nothing in the provisions of this article regarding release pursuant to a voluntary treatment agreement or convalescent status may be construed as creating a right to receive outpatient mental health services or treatment or as obligating any person or agency to provide outpatient services or treatment. Time limitations set forth in this article relating to periods of involuntary commitment to a mental health facility for hospitalization do not apply to release pursuant to the terms of a voluntary treatment agreement: Provided, however, That release pursuant to a voluntary treatment agreement may not be for a period of more than six months if the individual has not been found to be involuntarily committed during the previous two years and for a period of no more than two years if the individual has been involuntarily committed during the preceding two years. If in any proceeding held pursuant to this article the individual objects to the issuance or conditions and terms of an order adopting a voluntary treatment agreement, then the circuit judge, magistrate or mental hygiene commissioner may not enter an order directing treatment pursuant to a voluntary treatment agreement. If involuntary commitment with release pursuant to a voluntary treatment agreement is ordered, the individual subject to the order may, upon request during the period the order is in effect, have a hearing before a mental hygiene commissioner or circuit judge where the individual may seek to have the order canceled or modified. Nothing in this section may affect the appellate and habeas corpus rights of any individual subject to any commitment order.
(h) If the certifying physician or psychologist determines that a person requires involuntary hospitalization for an addiction to a substance which, due to the degree of addiction, creates a reasonable likelihood that withdrawal or detoxification from the substance of addiction will cause significant medical complications, the person certifying the individual shall recommend that the individual be closely monitored for possible medical complications. If the magistrate, mental hygiene commissioner or circuit court judge presiding orders involuntary hospitalization, he or she shall include a recommendation that the individual be closely monitored in the order of commitment.
(i) The Supreme Court of Appeals and the Secretary of the Department of Health and Human Resources shall collect data and report to the Legislature at its regular annual sessions in two thousand three and two thousand four of the effects of the changes made in the mental hygiene judicial process along with any recommendations which they may deem proper for further revision or implementation in order to improve the administration and functioning of the mental hygiene system utilized in this state, to serve the ends of due process and justice in accordance with the rights and privileges guaranteed to all citizens, to promote a more effective, humane and efficient system and to promote the development of good mental health. The Supreme Court of Appeals and the Secretary of the Department of Health and Human Resources shall specifically develop and propose a statewide system for evaluation and adjudication of mental hygiene petitions which shall include payment schedules and recommendations regarding funding sources. Additionally, the Secretary of the Department of Health and Human Resources shall also immediately seek reciprocal agreements with officials in contiguous states to develop interstate/intergovernmental agreements to provide efficient and efficacious services to out-of-state residents found in West Virginia and who are in need of mental hygiene services.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 2186) 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, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
The nays were: Minear--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. 2186) 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. 2186--A Bill to amend and reenact §27-5-2 of the Code of West Virginia, 1931, as amended, relating to institution of proceedings for involuntary custody for examination.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Sharpe, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2457, Limiting the basis for calculating the alternate method of annual contribution required by municipalities into the Policemen's and Firemen's Pension and Relief Fund.
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.
Respectfully submitted,
William R. Sharpe, Jr.,
Vice Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. H. B. No. 2457) 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 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. 2528, Relating to alternative programs for the education of teachers.
With amendments from the Committee on Education 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 amended by the Committee on Education to which the bill was first referred; and 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. H. B. No. 2528) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on Education, was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL DEVELOPMENT.

§18A-3-1a. Alternative programs for the education of teachers.

(a) By the first day of July, one thousand nine hundred ninety-one fifteenth day of August, two thousand five, the State Board, of Education, after consultation with the Secretary of Education and the Arts, shall adopt promulgate rules in accordance with the provisions of article three-b, chapter twenty-nine-a of this code for the approval and operation of teacher education programs which are an alternative to the regular college or university programs for the education of teachers. To participate in an approved alternative teacher education program, the candidate must hold an alternative program teacher certificate issued by the Superintendent and endorsed for the instructional field in which the candidate seeks certification. An alternative program teacher certificate is a temporary certificate issued for one year to a candidate who does not meet the standard educational requirements for certification. The certificate may be renewed no more than two times. No individual may hold an alternative program teacher certificate for a period exceeding three years. The alternative program teacher certificate shall be considered a professional teaching certificate for the purpose of the issuance of a continuing contract. To be eligible for such a an alternative program teacher certificate, an applicant shall:
(1) Possess at least a bachelor's degree from an a regionally accredited institution of higher education in a discipline taught in the public schools except that the rules established by the Board may exempt candidates in selected vocational and technical areas who have at least ten years' experience in the subject field from this requirement;
(2) Pass an appropriate State Board-approved basic skills and subject matter test or complete three years of successful experience within the last seven years in the area for which licensure is being sought;
(3) Be a citizen of the United States, be of good moral character and physically, mentally and emotionally qualified to perform the duties of a teacher, and have attained the age of eighteen years on or before the first day of October of the year in which the alternative program teacher certificate is issued; and
(4) Have been offered employment in a school included in an alternative teacher education plan approved by the board to offer an alternative teacher education program. by a county board in an area of critical need and shortage; and
(5) Qualify following a criminal history check pursuant to section ten of this article.

Persons who pass the appropriate test as set forth in subdivision (2) above satisfy the requirements set forth in subdivisions (1) through (5), inclusive, of this subsection shall be granted a formal document which will enable them to seek employment as an alternative program teacher in a public school approved to offer an alternative teacher education program work in a public school in West Virginia.
(b) The rules adopted by the Board shall include provisions for the approval of alternative teacher education programs which may be offered by schools, school districts, consortia of schools or regional education service agency and for the setting of tuition charges to offset the program costs. An approved alternative teacher education program shall be in effect for a school, school district, consortium of schools or regional education service agency before an alternative program teacher may be employed in that school, school district, consortium of schools or regional education service agency. Approximately two hundred hours of formal instruction shall be provided in all of the three following phases combined. An approved alternative program shall provide essential knowledge and skills to alternative program teachers through the following phases of training:
(1) A full-time seminar/practicum of no less than twenty and no more than thirty days duration which is accomplished before the alternative program teacher has full responsibility for a classroom. The seminar/practicum shall provide formal instruction in the essential areas for professional study which shall emphasize the topics of student assessment, development and learning, curriculum, classroom management, and the use of educational computers and other technology and shall introduce basic teaching skills through supervised teaching experiences with students. The seminar and practicum components shall be integrated and shall include an orientation to the policies, organization and curriculum of the employing district;
(2) A period of intensive on-the-job supervision beginning the first day on which the alternative program teacher assumes full responsibility for a classroom and continuing for a period of at least ten weeks. During this time, the alternative program teacher shall be visited and critiqued no less than one time per week by members of a professional support team and shall be observed and formally evaluated at the end of five weeks and at the end of ten weeks by the appropriately certified members of the team. During the same period, formal instruction shall be continued in the essential areas for professional study which shall emphasize the topics of teaching skills, student assessment, development and learning, curriculum, classroom management, and the use of educational computers and other technology. At the end of the ten-week period, the alternative program teacher shall receive a formal written progress report from the chairperson of the support team; and
(3) An additional period of continued supervision and evaluation of no less than twenty weeks duration. During this period, the alternative program teacher shall be visited and critiqued at least twice per month and shall be observed formally and evaluated at least twice. No more than two months shall pass without a formal evaluation. Formal instruction shall continue in the essential areas for professional study. Opportunities shall be provided for the alternative program teacher to observe the teaching of experienced colleagues.
(1) Instruction. -- The alternative preparation program shall provide a minimum of eighteen semester hours of instruction in the areas of student assessment; development and learning; curriculum; classroom management; the use of educational computers and other technology; and special education and diversity. All programs shall contain a minimum of three semester hours of instruction in special education and diversity out of the minimum eighteen required semester hours.
(2)
Phase I. -- Phase I shall consist of a period of intensive on-the-job supervision by an assigned mentor and the school administrator for a period of not less than two weeks and no more than four weeks. The assigned mentor shall meet the requirements for mentor set forth in section two-b of this article and be paid the stipend pursuant to that section
. During this time, the teacher shall be observed daily. This phase shall include an orientation to the policies, organization and curriculum of the employing district. The alternative program teacher shall begin to receive formal instruction in those areas listed in subdivision (1) of this subsection.
(3)
Phase II. -- Phase II shall consist of a period of intensive on-the-job supervision beginning the first day following the completion of Phase I and continuing for a period of at least ten weeks. During Phase II, the alternative program teacher shall be visited and critiqued no less than one time per week by members of a professional support team, defined in subsection (c) of this section, and shall be observed and formally evaluated at the end of five weeks and at the end of ten weeks by the appropriately certified members of the team. At the end of the ten-week period, the alternative program teacher shall receive a formal written progress report from the chairperson of the support team. The alternative program teacher shall continue to receive formal instruction in those areas listed above under subdivision (1) of this subsection.
(4)
Phase III. -- Phase III shall consist of an additional period of continued supervision and evaluation of no less than twenty weeks' duration. The professional support team will determine the requirements of this phase with at least one formal evaluation being conducted at the completion of the phase. The alternative program teacher shall continue to receive formal instruction in those areas listed above under subdivision (1) of this subsection and receive opportunities to observe the teaching of experienced colleagues.
(c) Training and supervision of alternative program teachers shall be provided by a professional support team comprised of a school principal, an experienced classroom teacher who satisfies the requirements for mentor for the Beginning Educator Internship as specified in section two-b of this article, a college or university education faculty member and a curriculum supervisor. Districts or schools which do not employ curriculum supervisors or have been unable to establish a relationship with a college or university shall provide for comparable expertise on the team. The school principal shall serve as chairperson of the team. In addition to other duties assigned to it under this section and section one-b of this article, the professional support team shall submit a written evaluation of the alternative program teacher to the county superintendent. The written evaluation shall be in a form specified by the county superintendent and submitted on a date specified by the county superintendent that is prior to the first Monday of May. The evaluation shall report the progress of the alternative program teacher toward meeting the academic and performance requirements of the program.
(d) The training efforts of the districts shall be coordinated by the center for professional development and the center shall provide an orientation and training program for professional support team members shall be coordinated and provided by the Center for Professional Development in coordination with the school district, consortium of schools, regional education service agency and institution of higher education or any combination of these agencies as set forth in the plan approved by the State Board pursuant to subsection (e) of this section.
(e) A school, school district, consortium of schools or regional education service agency seeking to employ an alternative program teacher must submit a plan to the State Board of Education and receive approval. in accordance with the same procedures used for approval of collegiate preparation programs. Each plan shall describe how the proposed training program will accomplish the key elements of an alternative program for the education of teachers as set forth in this section. Each school, school district, consortium of schools or regional education service agency shall show evidence in its plan of having sought joint sponsorship of their training program with institutions of higher education.
(f) The State Board shall promulgate a rule in accordance with article three-b, chapter twenty-nine-a of this code for the approval and operation of alternative education programs to prepare highly qualified special education teachers that are separate from the programs established under the other provisions of this section and are applicable only to teachers who have at least a bachelor's degree in a program for the preparation of teachers from a regionally accredited institution of higher education. These programs are subject to the other provisions of this section only to the extent specifically provided for in the rule. These programs may be an alternative to the regular college and university programs for the education of special education teachers and also may address the content area preparation of certified special education teachers. The programs shall incorporate professional development to the maximum extent possible to help teachers who are currently certified in special education to obtain the required content area preparation. Participation in an alternative education program pursuant to this subsection shall not affect any rights
, privileges or benefits to which the participant would otherwise be entitled as a regular employee, nor does it alter any rights , privileges or benefits of participants on continuing contract status. The State Board shall report to the Legislative Oversight Commission on Education Accountability on the programs authorized under this subsection during the July, two thousand five, interim meetings or as soon thereafter as practical prior to implementation of the programs.
(g) The State Board shall promulgate a rule in accordance with article three-b, chapter twenty-nine-a of this code for the approval and operation of alternative education programs to prepare highly qualified special education teachers that are separate from the programs established under the other provisions of this section and are applicable only to persons who hold a bachelor's degree from a regionally accredited institution of higher education. These programs are subject to the other provisions of this section only to the extent specifically provided for in this rule. These programs may be an alternative to the regular college and university programs for the education of special education teachers and also may address the content area preparation of such persons. The State Board shall report to the Legislative Oversight Commission on Education Accountability on the programs authorized under this subsection during the July, two thousand five, interim meetings or as soon thereafter as practical prior to implementation of the programs.
(h) For the purposes of this section, "area of critical need and shortage" means an opening in an established, existing or newly created position which has been posted in accordance with the provisions of section seven-a, article four of this chapter and for which no fully qualified applicant has been employed.
(i) The recommendation to rehire an alternative education program teacher pursuant to section eight-a, article two of this chapter is subject to the position being posted and no fully qualified applicant being employed:
Provided,
That this provision does not apply to teachers who hold a valid West Virginia professional teaching certificate in special education and who are employed under a program operated pursuant to subsection (f) of this section.
The following amendments to the Education committee amendment to the bill (Eng. H. B. No. 2528), from the Committee on Finance, were reported by the Clerk, considered simultaneously, and adopted:
On page eleven, section one-a, subsection (i), by striking out the words "in special education";
And,
On page eleven, section one-a, after subsection (i), by adding a new subsection, designated subsection (j), to read as follows:
(j) When making decisions affecting the hiring of an alternative program teacher under the provisions of this section, a county board shall give preference to applicants who hold a valid West Virginia professional teaching certificate.
The question now being on the adoption of the Education committee amendment to the bill, as amended, the same was put and prevailed.
The bill
(Eng. H. B. No. 2528) , 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. 2528) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2528) passed.
At the request of Senator Plymale, as chair of the Committee on Education, unanimous consent being granted, the unreported Education committee amendment to the title of the bill was withdrawn.
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. 2528--A Bill to amend and reenact §18A-3-1a of the Code of West Virginia, 1931, as amended, relating to alternative programs for the education of teachers; providing for alternative program certificate, eligibility, issuance, scope and renewal limitation; changing activities, components and phases of training for alternative programs; providing for program coordination, training and approval; authorizing separate programs to prepare highly qualified special education teachers; requiring position to be posted in certain instances; and establishing hiring preference.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2853, Relating to the West Virginia Courtesy Patrol Program.
With amendments from the Committee on Transportation and Infrastructure 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 7, 2005;
And reports the same back with the recommendation that it do pass as amended by the Committee on Transportation and Infrastructure to which the bill was first referred; and 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. H. B. No. 2853) 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 Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:
O
n page five, section two, line twenty-one, after the word "program" by changing the period to a colon and inserting the following proviso: Provided, That matching federal funds are available to fund the courtesy patrol program and that said matching federal funds shall not exceed five million dollars annually.;
On page five, section two, line twenty-two, after the word "Highways" by inserting a comma and the words "using available federal funds,";
On page five, section two, line twenty-eight, after the word "provide" by inserting a comma and the words "with federal funds,";
And,
On page, five, section two, line thirty-two, after the word "patrol" by inserting the words "utilizing moneys made available by the federal government".
The following amendments to the bill (Eng. H. B. No. 2853), from the Committee on Finance, were next reported by the Clerk, considered simultaneously, and adopted:
On page five, section two, line nineteen, by striking out the word "budge" and inserting in lieu thereof the word "budget";
On page seven, section three, line twenty-eight, after "(c)" by striking out the comma and inserting in lieu thereof the words "of this";
On page seven, section three, lines twenty-eight and twenty- nine, by striking out the words "three, article two-d of this chapter";
On page seven, section three, line thirty-three, after "(c)" by striking the comma and inserting in lieu thereof the words "of this";
And,
On page seven, section three, line thirty-four, by striking out the words "three, article two-d of this chapter".
The bill (Eng. H. B. No. 2853), 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. 2853) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2853) passed.
The following amendment to the title of the bill, from the Committee on Transportation and Infrastructure, was reported by the Clerk and adopted:
O
n page one, by striking out the title and substituting therefor a new title, to read as follows:
Eng. House Bill No. 2853--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §17-2D-1, §17-2D-2, §17-2D-3 and §17-2D-4, all relating to the West Virginia Courtesy Patrol; providing a purpose; addressing the operation, scope and funding of the courtesy patrol program; and providing education services to courtesy patrol participants after program enrollment.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2939, Relating to the Federal Cash Management Act.
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. H. B. No. 2939) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 2939) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2939) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2939) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
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. 2980, Providing for the certification of special inspectors and to permit the acceptance of inspections provided by special inspectors in lieu of inspections by the Division of Labor.
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. 2980) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2980) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2980) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
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. 3130, Requiring local boards of health to conduct inspections of all elementary and secondary schools.
With amendments from the Committee on Education 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 7, 2005;
And reports the same back with the recommendation that it do pass as amended by the Committee on Education to which the bill was first referred; and 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. 3130) 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 Education, were reported by the Clerk and adopted:
On page three, section six, line nineteen, by striking out the words "shall further" and inserting in lieu thereof the words "further shall".
And,
On page eleven, section six, line one hundred seventy-nine, by striking out the words "section five,".
The following amendments to the bill, from the Committee on Finance, were next reported by the Clerk, considered simultaneously, and adopted:
On page eleven, section six, line one hundred eighty-one, by striking out the words "as required by" and inserting in lieu thereof the words "pursuant to";
And,
On page fifteen, section eleven, by striking out all of subdivision (11) and inserting in lieu thereof a new subdivision (11), to read as follows:
(11) Report the board's findings each time the board inspects a primary or secondary school to the principal of the school, the county superintendent and the president of the county school board, or to persons of like responsibility in the case of a private school. If a serious or ongoing health issue continues to exist, the board may send the report to the Commissioner of the Bureau for Public Health and the State Board of Education.
The bill (Eng. Com. Sub. for H. B. No. 3130), as amended, was then ordered to third reading.
Senator Chafin moved that the constitutional rule requiring a bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Bailey, Boley, Bowman, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Oliverio, Plymale, Prezioso, Sharpe, Unger, White, Yoder and Tomblin (Mr. President)--23.
The nays were: Barnes, Caruth, Facemyer, Guills, Harrison, Lanham, McKenzie, Minard, Minear, Sprouse and Weeks--11.
Absent: None.
So, less than four fifths of the members present and voting having voted in the affirmative, the President declared the motion to suspend the constitutional rule rejected.
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. 3306, Allowing fees charged for requests for information from the central abuse registry to be used for criminal record keeping.
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. H. B. No. 3306) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a second time and ordered to third reading.
On motion of Senator Helmick, 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. 3306) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 3306) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3362, Creating the "Hybrid Canine Control Act".
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. H. B. No. 3362) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--33.
The nays were: Weeks--1.
Absent: None.
The bill (Eng. H. B. No. 3362) was then 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 clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §19-20B-1, §19-20B-2, §19-20B-3, §19-20B-4, all to read as follows:
ARTICLE 20B. HYBRID CANINE CONTROL ACT.
§19-20B-1. Title.

This act may be known as the "Hybrid Canine Control Act".
§19-20B-2. Definitions.
As used in this article:
(a) "Commissioner" means the state Commissioner of Agriculture; and
(b) "Hybrid canine" means any animal which at any time has been or is permitted, registered, licensed, advertised or otherwise described or represented as a hybrid canine, wolf-dog hybrid, coyote-dog hybrid or as being the offspring of a wolf and domestic dog or offspring of a coyote and domestic dog or any combination of such animals to a licensed veterinarian, law-enforcement officer, humane officer, dog warden, deputy dog warden, animal control officer, an official of a county health department, Commissioner of the Department of Agriculture or the Director of the Division of Natural Resources.
§19-20B-3. Unlawful to possess hybrid canines.
It is unlawful to possess a hybrid canine as defined in section two of this article.
§19-20B-4. Penalties.
(a) A person in violation of this article shall be guilty of a misdemeanor and, upon conviction, be fined not less than fifty dollars nor more than one thousand dollars, or be confined in a regional jail not less than ten days nor more than sixty days, or both.

(b) A person who abandons or releases a hybrid canine into the wild shall be guilty of a misdemeanor and, upon conviction, be fined not less than fifty dollars nor more than one thousand dollars, or be confined in a regional jail not less than ten days nor more than sixty days, or both.
(c) Magistrates shall have concurrent jurisdiction with the circuit courts to enforce the penalties prescribed by this article.

Following discussion,
The question being on the adoption of the Judiciary committee amendment to the bill.
On motion of Senator Kessler, further consideration of the bill and the pending Judiciary committee amendment was made a special order of business following consideration of executive nominations, having been previously set as a special order following an anticipated recess.
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 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. 248, Relating to requirement that technology expenditures be made in accordance with Education Technology Strategic Plan.
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 §18-2J-1, §18-2J-2, §18-2J-3, §18-2J-4, §18-2J-5, §18-2J- 6 and §18-2J-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2J. PUBLIC AND HIGHER EDUCATION UNIFIED EDUCATIONAL TECHNOLOGY STRATEGIC PLAN.

§18-2J-1. Findings; intent and purpose of article.
(a) The Legislature finds that technology may be used in the public school system for many purposes, including, but not limited to, the following:
(1) As an instructional tool that enables teachers to meet the individual instructional needs of students who differ in learning styles, learning rates and the motivation to learn;
(2) As an effective resource for providing corrective, remedial and enrichment activities to help students achieve proficiency at grade level or above in the basic skills of reading, composition and arithmetic that are essential for advancement to more rigorous curriculum and success in higher education, occupational and avocational pursuits;
(3) To ensure that all students have a basic level of computer literacy that will enable them to participate fully in a society in which computers are an ever more prevalent medium for social, economic and informational interaction;
(4) To provide greater access for students to advanced curricular offerings, virtual field trips, problemsolving, team- building exercises, reference information and source knowledge than could be provided efficiently through traditional on-site delivery formats;
(5) To help students obtain information on post-secondary educational opportunities, financial aid and the skills and credentials required in various occupations that will help them better prepare for a successful transition following high school;
(6) To help students learn to think critically, apply academic knowledge in real life situations, make decisions and gain an understanding of the modern workplace environment through simulated workplace programs;
(7) As a resource for teachers by providing them with access to sample lesson plans, curriculum resources, on-line staff development, continuing education and college coursework; and
(8) As a tool for managing information, reporting on measures of accountability, analyzing student learning and helping to improve student, school and school system performance.
(b) The Legislature finds that technology may be used in the system of higher education for many purposes including, but not limited to, the following:
(1) For teaching, learning and research for all students across all disciplines and programs;
(2) By students, staff and faculty to discover, create, communicate and collaborate, as well as to enhance research and economic development activities;
(3) For digital age literacy, problemsolving, creativity, effective communication, collaboration and high productivity skills essential for West Virginia citizens in a rapidly changing global economy;
(4) By libraries in higher education to offer reference services in a virtual environment online;
(5) By libraries in higher education to create and share cataloging records, and that it is possible to create a seamless resource for sharing these resources between public and higher education; and
(6) To offer electronic document delivery services to distance education students and to a multitude of professionals throughout the state.
(c) The Legislature further finds that all of the uses of technology in the public school and higher education systems are not necessarily exclusive and, therefore, that areas exist wherein cooperation and collaboration between the public schools, the institutions of higher education and their respective governing bodies will enable them to combine and share resources, improve efficiency and better serve their students.
(d) The intent and purpose of this article is to establish a unified approach to the planning, procurement and implementation of technology and technology services in the public schools, the institutions of higher education and their respective governing bodies that will guide the administration and allocation of educational technology funds.
§18-2J-2. Governor's Advisory Council for Educational Technology.
(a) There is established under the Governor's Office of Technology the Governor's Advisory Council for Educational Technology composed of fifteen members as follows:
(1) The Governor's Educational Technology Advisor, ex officio, who shall chair the council;
(2) The Governor's Chief Technology Officer, ex officio;
(3) One public school technology coordinator;
(4) One public elementary, middle or junior high school teacher;
(5) One public secondary school teacher;
(6) A technology representative from Marshall University;
(7) A technology representative from West Virginia University;
(8) One member of the Center for Professional Development Board;
(9) Three individuals from the private sector with expertise in education technology;
(10) One public secondary or higher education student;
(11) One representative of the Office of Business Development;
(12) One member of the Higher Education Policy Commission, or his or her designee; and
(13) One member of the State Board, or his or her designee.
(b) The Advisory Council shall meet as necessary, but shall hold no less than four meetings annually. Eight members constitutes a quorum for conducting the business of the Advisory Council. All members of the Advisory Council are entitled to vote.
(c) The thirteen members of the Council who are not members ex officio shall be appointed by the Governor with the advice and consent of the Senate for terms of three years, except that of the original appointments, four members shall be appointed for one year; four members shall be appointed for two years; and five members shall be appointed for three years. No member may serve more than two consecutive full terms, nor may a member be appointed to a term which results in the member serving more than seven consecutive years.
(d) Members of the Advisory Council shall serve without compensation, but shall be reimbursed by the Governor for all reasonable and necessary expenses actually incurred in the performance of their official duties under this article upon presentation of an itemized sworn statement of their expenses, except that any member of the Advisory Committee who is an employee of the state shall be reimbursed by the employing agency.
§18-2J-3. Powers and duties of Governor's Advisory Council for Educational Technology.

(a) In addition to any other powers and duties assigned to it by this article and in this code, Governor's Advisory Council for Educational Technology shall:
(1) Assess the broad spectrum of technology needs present within the state's education systems as the basis for constructing a Unified Educational Technology Strategic Plan that will guide the administration and allocation of educational technology funds;
(2) Assemble and integrate into the planning process the perspectives of students, teachers, faculty and administrators regarding educational technology programs;
(3) Assess, evaluate and publicize the effects of technology use by educators and students toward student learning and achievement;
(4) Explore new approaches to improve administration, accountability and student achievement within the education systems through technology application;
(5) Promulgate a legislative rule incorporating a Unified Educational Technology Strategic Plan as provided in section five of this article;
(6) Monitor the technology programs of the agencies and education systems affected by the educational technology strategic plan to assess its implementation and effectiveness; and
(7) Advise the Governor and the Legislature on any matters the Council considers important inform the Governor and the Legislature on the state of education technology in the public schools and the institutions of higher education and on any matters requested by the Governor and the Legislature.
§18-2J-4. Educational technology strategic plan goals and strategies.

(a) The following are goals that the Governor's Advisory Council for Educational Technology should consider when constructing the educational technology strategic plan. Each goal shall apply to public education, higher education or both, as appropriate:
(1) Maintaining a reasonable balance in the resources allocated among the customary diverse uses of technology in the public school and higher education systems, while allowing flexibility to address unanticipated priority needs and unusual local circumstancesand ensuring efficient and equitable use of technology at all levels from primary school through higher education, including vocational and adult education;
(2) Providing for uniformity in technological hardware and software standards and procedures to achieve interoperability between the public school and higher education systems to the extent that the uniformity is considered prudent for reducing acquisition cost, avoiding duplication, promoting expeditious repair and maintenance and facilitating user training, while allowing flexibility for local innovations and options when the objectives relating to uniformity are reasonably met;
(3) Preserving the integrity of governance, administration, standards and accountability for technology within the public school and higher education systems, respectively, while encouraging collaborative service delivery and infrastructure investments with other entities that will reduce cost, avoid duplication or improve services, particularly with respect to other entities such as the educational broadcasting system, public libraries and other governmental agencies with compatible technology interests;
(4) Improving the long-term ability of the state to efficiently manage and direct the resources available for technology in the public school and higher education systems to establish appropriate infrastructure that ensures, to the extent practicable, a sustainable, cost-effective and transparent migration to new technology platforms;
(5) Fostering closer communication between faculty, students and administrators and promoting the collaboration of schools, libraries, researchers, community members, state agencies, organizations, business and industry, post-secondary institutions and public virtual learning environments to meet the needs of all learners; and
(6) Creating and maintaining compatible and secure technology systems that enhance the efficient operation of the education systems.
(b) The following are strategies that the Governor's Advisory Council for Educational Technology must address in the educational technology strategic plan. Unless specifically identified otherwise, each strategy shall apply to public education, higher education or both, as appropriate:
(1) The strategy for using technology in the public school and higher education systems consistent with the findings, intent and purpose of this article and other uses considered necessary to improve student performance and progress. In addition, these uses may include:
(A) Providing for individualized instruction and accommodating a variety of learning styles of students through computer-based technology, video and other technology-based instruction;
(B) Advancing learning through alternative approaches in curriculum to integrate education, research and technology into life-long learning strategies;
(C) Increasing student access to high quality blended distance learning curriculum using real time interactive and online distance education tools;
(D) Recognizing that information literacy is a fundamental competency for life-long learning and information literacy is incorporated into the curricula of higher education and the workplace; and
(E) Improving teaching and learning and the ability to increase student achievement by meeting individual student needs;
(2) The strategy for allocating the resources available and developing the capacity necessary to achieve the purposes addressed in the plan. The strategy shall:
(A) Allow for reasonable flexibility for county boards and regional education service agencies to receive assistance with the development and implementation of technological solutions designed to improve performance, enrich the curriculum and increase student access to high level courses;
(B) Allow for reasonable flexibility for county boards, regional education service agencies and institutional boards of governors to implement technological solutions that address local priorities consistent with achieving the major objectives set forth in the education technology strategic plan; and
(C) Use the most cost-effective alternative allowable pursuant to section six of this article for expending funds for technology acquisition and implementation consistent with the goals of the plan;
(D) Encourage development by the private sector of technologies and applications appropriate for education; and
(E) Encourage the pursuit of funding through grants, gifts, donations or any other source for uses related to education technology;
(3) For public education, the strategy for using technology to increase and maintain equity in the array and quality of educational offerings, expand the curriculum, deliver high quality professional development and strengthen professional qualifications among the counties notwithstanding circumstances of geography, population density and proximity to traditional teacher preparation;
(4) For public education, the strategy for developing and using the capacity of the public school system to implement, support and maintain technology in the public schools through the allocation of funds either directly or through contractual agreements with county boards and regional education service agencies for labor, materials and other costs associated with the installation, set-up, internet hook-up, wiring, repair and maintenance of technology in the public schools and state institutions of higher education;
(5) The strategy for ensuring that the capabilities and capacities of the technology infrastructure within the state and its various regions is adequate for acceptable performance of the technology being implemented in the public schools and the state institutions of higher education, for developing the necessary capabilities and capacities, or for pursuing alternative solutions;
(6) The strategy for maximizing student access to learning tools and resources at all times including before and after school or class, in the evenings, on weekends and holidays, and for public education, noninstructional days and during vacations for student use for homework, remedial work, independent learning, career planning and adult basic education;
(7) The strategy for improving the efficiency and productivity of administrators;
(8) The strategy for taking advantage of bulk purchasing abilities to the maximum extent feasible. This may include, but is not limited to:
(A) A method of recording all technology purchases across both the public education system and the higher education system;
(B) Combining the purchasing power of the public education system and the higher education system with the purchasing power of other state entities or all state entities; and
(C) A method of allowing public education and higher education to purchase from competitively bid contracts initiated through the southern regional education board educational technology cooperative and the American TelEdCommunications Alliance; and
(9) A strategy for allowing any other flexibility that is determined to be needed for the effective use of technology in public education and higher education.
(c) Nothing in this section may be construed to conflict with a state higher education institution's mission as set forth in its compact.
§18-2J-5. Unified Educational Technology Strategic Plan.

(a) On or before the first day of October, two thousand five, the Governor's Advisory Council for Educational Technology shall promulgate a legislative rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code which incorporates a Unified Educational Technology Strategic Plan as provided in this article. On or before the first day of October in each year thereafter, the Council shall submit annual updates to the rule and plan, along with any necessary revisions. The time line for updating and revising the rule and plan also shall be in accordance with the federal E-rate discount program. The plan shall become effective the school year following the time of approval of the rule.
(b) On or before the fifteenth day of June, two thousand five, and each year thereafter, each state institution of higher education shall submit a technology plan for the next fiscal year to the Higher Education Policy Commission. The plan shall be in a form and contain the information determined by the Governor's Advisory Council for Educational Technology. On or before the thirtieth day of June, two thousand five, and each year thereafter, the Higher Education Policy Commission shall submit the plans to the Governor's Advisory Council for Educational Technology for its consideration in constructing the Unified Educational Technology Strategic Plan.
§18-2J-6. Allocation and expenditure of appropriations.
(a) After the thirtieth day of June, two thousand five, notwithstanding any other provision of this code to the contrary, and specifically section seven, article two-e of this chapter, the State Board, regional education service agencies, the Higher Education Policy Commission and the state institutions of higher education shall allocate and expend state appropriations for technology in the public schools or the state institutions of higher education, as appropriate, in accordance with the Unified Educational Technology Strategic Plan subject to the following:
(1) Expenditures from grants which can only be used for certain purposes are not required to be made in accordance with the plan.
(2) If the legislative rule incorporating the plan is not approved in accordance with the provisions of article three-a, chapter twenty-nine-a of this code, the plan has no effect;
(3) For public education, the expenditures shall be made directly, or through lease-purchase arrangements pursuant to the provisions of article three, chapter five-a of this code, or through contractual agreements or grants to county boards and regional education service agencies or any combination of the foregoing options as shall best implement the strategic plan in the most cost-effective manner;
(4) Nothing in this section nor in the prior enactment of this section restricts the expenditure of educational technology funds appropriated for the fiscal year two thousand five for the purposes for which they were allocated; and
(5) Except as provided in subdivision (2) of this subsection, no more than fifty percent of the state appropriations for the fiscal year two thousand six to the Department of Education for educational technology in kindergarten through the twelfth grade may be expended or encumbered except in accordance with the Unified Educational Technology Strategic Plan.
(b) Nothing in this section requires any specific level of appropriation by the Legislature.
§18-2J-7. Report to the Legislative Oversight Commission on Education Accountability.

The State Board and the Higher Education Policy Commission shall report to the Legislative Oversight Commission on Education Accountability annually as soon as practical following the approval, annual update or revision of the Unified Educational Technology Strategic Plan. The report shall include the proposed allocations of funds or planned expenditures for educational technology within the respective public school and higher education systems during the next fiscal year in accordance with the plan compared with the previous year's allocations and expenditures.;
And,
On page one, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 248--A Bill
to amend and reenact §18-2J- 1, §18-2J-2, §18-2J-3, §18-2J-4, §18-2J-5, §18-2J-6 and §18-2J-7 of the Code of West Virginia, 1931, as amended, all relating to public and higher education technology strategic plan; making findings and stating intent and purpose; providing for Advisory Council for Educational Technology; providing powers and duties; providing for goals and strategies for technology strategic plan; requiring legislative rule incorporating technology strategic plan; requiring allocation and expenditure of technology appropriations in accordance with rule with certain exceptions; and report to Legislative Oversight Commission.
On motion of Senator Plymale, the following amendments to the House of Delegates amendments to the bill (Eng. S. B. No. 248) were reported by the Clerk and adopted:
On page six, section three, by striking out "(a)";
On page six, section three, after the word "code," by inserting the word "the";
On page six, section three, by striking out all of subdivision (5) and inserting in lieu thereof a new subdivision (5), to read as follows:
"(5) Develop a Unified Educational Technology Strategic Plan as required in section five of this article;";
On page seven, section three, subdivision (7), after the word "inform" by inserting the word "to";
On page thirteen, section five, by striking out all of subsection (a) and inserting in lieu thereof a new subsection (a), to read as follows:
(a) The Governor's Advisory Council for Educational Technology shall develop a Unified Educational Technology Strategic Plan and submit the plan to the Legislative Oversight Commission on Education Accountability for approval on or before the first day of October, two thousand five. On or before the first day of October in each year thereafter, the Council shall update the plan and submit the plan to the Commission for approval. The time line for updating and revising the rule and plan also shall be in accordance with the federal E-rate discount program. The plan is not effective until approved by the Commission.;
On page fourteen, section six, by striking out all of subdivision (2) and inserting in lieu thereof a new subsection (2), to read as follows:
"(2) If the plan is not approved by the Legislative Oversight Commission on Education Accountability, the plan has no effect;";
And,
On page one, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 248--A Bill
to amend and reenact §18-2J- 1, §18-2J-2, §18-2J-3, §18-2J-4, §18-2J-5, §18-2J-6 and §18-2J-7 of the Code of West Virginia, 1931, as amended, all relating to public and higher education technology strategic plan; making findings and stating intent and purpose; providing for Advisory Council for Educational Technology; providing powers and duties; providing for goals and strategies for technology strategic plan; requiring approval of the plan by the Legislative Oversight Commission on Education Accountability; requiring allocation and expenditure of technology appropriations in accordance with the plan with certain exceptions; and report to Legislative Oversight Commission.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments, as amended.
Engrossed Senate Bill No. 248, as amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 248) passed with its Senate 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. 248) takes effect from passage.
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,
On motion of Senator Chafin, the Senate recessed until 4 p.m. today.
Upon expiration of the recess, the Senate reconvened.
On motion of Senator Love, the special order of business set for this position on the calendar (consideration of executive nominations) was postponed and made a special order of business at 8 p.m. tonight.
The President then stated that the hour had arrived for the special order of business, as to
Eng. House Bill No. 3362, Creating the "Hybrid Canine Control Act".
Having been read a second time in earlier proceedings today, and now coming up as a special order with a Judiciary committee amendment pending (shown in the Senate Journal of today, pages 323 through 325, inclusive), was again reported by the Clerk.
The question being on the adoption of the Judiciary committee amendment to the bill.
On motion of Senator Kessler, the bill (Eng. H. B. No. 3362) was recommitted to the Committee on the Judiciary.
At the request of Senator Love, unanimous consent being granted, the Senate returned to the second order of business and the introduction of guests.
The Senate again proceeded to the sixth order of business.
At the request of Senator Chafin, and by unanimous consent, Senators Tomblin (Mr. President), Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Yoder offered the following resolution from the floor:
Senate Resolution No. 48--Recognizing the public service of Betty Lee Baird, Executive Secretary to the Senate President and distinguished West Virginian.
Whereas, Betty Lee Baird was born December 9, 1941, in Richwood, Nicholas County, the daughter of Harry and Macel McCroskey; and
Whereas, Betty Lee Baird is the proud mother of two children, Deanna "Dee Dee" Thomas and William Albert Baird III; and
Whereas, In February, 1973, Betty Lee Baird began her service with the West Virginia Senate on a part-time basis in the secretarial pool and later moved to the Office of the Senate President as a part-time receptionist; and
Whereas, Betty Lee Baird won a national typing contest in 1980, typing 166 words per minute. She traveled the United States extensively during her reign and competed against other typists in stores and malls across the country; and
Whereas, In May, 1993, Betty Lee Baird became a full-time employee of the West Virginia Senate as Executive Secretary to the Senate President and continues to serve in that capacity with outstanding dedication and commitment; and
Whereas, Betty Lee Baird devotes herself to the day-to-day operations of the Senate President's Office. She works tirelessly to initiate a system of recordkeeping for the Senate relating to executive nominations of the various departments, agencies, boards and commissions submitted by the Governor to the Senate for confirmation. One of her many duties is the assignment of parking spaces for the Senators and staff where she is affectionately known as the "Parking Queen"; and
Whereas, Betty Lee Baird has decided to retire from public service in July, 2005, bringing to an end 32 years of dedicated service to the West Virginia Senate; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the public service of Betty Lee Baird, Executive Secretary to the Senate President and distinguished West Virginian; and, be it
Further Resolved, That the Senate hereby extends its heartfelt appreciation to Betty Lee Baird for her many years of dedicated service to the West Virginia Senate. Her commitment to the Senate, together with her knowledge and expertise of the legislative process has been an inspiration to those who have known and worked with her; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to Betty Lee Baird.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration and reference to a committee dispensed with.
The question being on the adoption of the resolution (S. R. No. 48), and on this question, Senator Chafin demanded the yeas and nays.
The roll being taken, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of those present and voting having voted in the affirmative, the President declared the resolution (S. R. No. 48) adopted.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and proceeded to the seventh order of business.
Senate Concurrent Resolution No. 94, Requesting Joint Committee on Government and Finance study affordable housing for State Police officers.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 95, Requesting Joint Committee on Government and Finance study state agencies' use of state-owned meeting facilities.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 96, Requesting Joint Committee on Government and Finance study state and local tax structure.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 97, Requesting Joint Committee on Government and Finance study eliminating incarceration for certain misdemeanor convictions.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 98, Requesting Joint Committee on Government and Finance study legislation relating to advertising by lawyers.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 99, Requesting Joint Committee on Government and Finance study issues involving compulsive gambling in state.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 100, Requesting Joint Committee on Government and Finance study transportation safety issues.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 101, Requesting Joint Committee on Government and Finance study proliferation of special license plates in state.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 102, Requesting Joint Committee on Government and Finance study motor carrier regulations.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 103, Requesting Joint Committee on Government and Finance study school aid formula.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Eng. House Bill No. 2623, Continuation of the Public Land Corporation.
On unfinished business, having been received as a House message on yesterday, Friday, April 8, 2005, and now coming up in regular order, was reported by the Clerk.
The following House of Delegates amendment to the Senate amendment to the bill was again reported by the Clerk:
On page one, section nine, by striking out the word "six" and inserting in lieu thereof the word "nine".
On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendment to the Senate amendment to the bill.
Engrossed House Bill No. 2623, 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. H. B. No. 2623) 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. 2623) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for Senate Bill No. 145, Budget bill.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
Eng. Com. Sub. for House Bill No. 2111, Authorizing paramedics to practice in hospital emergency rooms.
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, White, Yoder and Tomblin (Mr. President)--33.
The nays were: Weeks--1.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2111) 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. 2163, Eliminating the set-off against unemployment compensation benefits for persons receiving social security benefits.
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. 2163) 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. 2229, Providing for the temporary detention of juvenile perpetrators of domestic violence.
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. 2229) 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. 2266, Imposing a one hundred dollar per year fee for licenses allowing wine sampling events by wine retailers.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
The nays were: Harrison--1.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2266) passed.
On motion of Senator Helmick, the following amendment to the title of the bill 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. 2266--A Bill to amend and reenact §60-8-3 of the Code of West Virginia, 1931, as amended, relating to imposing a one hundred-dollar per year fee for licenses allowing wine sampling events by wine retailers; restrictions on wine sampling events; allowing licensed restaurants to offer sealed bottles of wine produced by a West Virginia farm winery for sale off the premises; authorizing a special license to allow the sale and serving of wine by nonprofit charitable organizations and associations for certain purposes during one-day events; and authorizing special licenses for heritage fairs and festivals allowing the sale, serving and sampling of wine from a West Virginia farm winery.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 2271, Relating to the payment of expert fees in child abuse and neglect cases.
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. 2271) 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. 2334, Relating to limiting child out-of-state placements.
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. 2334) 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. 2371, Authorizing collaborative pharmacy practice agreements between pharmacists and physicians and specify requirements for the agreements.
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. 2371) 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. 2444, Mandatory participation in the motor vehicle alcohol test and lock program for repeat offenders.
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. 2444) 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. 2444--A Bill to amend and reenact §17C-5-2 of the Code of West Virginia, 1931, as amended, and to amend reenact §17C-5A-3a of said code, all relating to compliance with federal funding requirements regarding driving under the influence offenders.
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. 2471, Establishing a financial responsibility program for inmates.
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, 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. Com. Sub. for H. B. No. 2471) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 2482, Relating to including jails within the context of certain criminal acts by incarcerated persons.
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. 2482) 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. 2578, Increasing the ratios of professional and service personnel to students in net enrollment.
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, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
The nays were: Love--1.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2578) passed.
The following amendment to the title of the bill, from the Committee on Education, 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. 2578--A Bill to repeal §18- 2E-3e of the Code of West Virginia, 1931, as amended; and to amend and reenact §18-9A-5a and §18-9A-5b of said code, all relating to repealing section creating the West Virginia Science Education Enhancement Initiative Grant Program; increasing the ratios of professional and service personnel to students in net enrollment; establishing the ratios for certain school years; making certain findings; and stating legislative intent to examine state basic foundation program and address staffing and other needs as indicated by examination.
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, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
The nays were: Love--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. Com. Sub. for H. B. No. 2578) 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. 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 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. 2619) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
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.
Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.
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 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. 2782) passed.
On motion of Senator Bailey, the following amendment to the title of the bill 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. 2782--A Bill to amend and reenact §8-21-3 and §8-21-7 of the Code of West Virginia, 1931, as amended, all relating to municipal board of park and recreation commissioners generally; increasing the number of members the governing body may appoint to a board of park and recreation commissioners to not more than seven; providing for the appointment of not more than three members from the governing body if the board of park and recreation commissioners consists of six or seven members; and clarifying the preparation of all public documents and records.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 2802, Updating provisions pertaining to commercial driver's licenses to conform with federal 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. 2802) passed with its title.
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 amendment to the title of the bill was withdrawn.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2852, Implementing the recommendations of the West Virginia Pharmaceutical Cost Council.
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. 2852) 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. 2852) 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. 2878, Relating to allowing the fraud unit to investigate the forgery of insurance documents.
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. 2878) passed.
The following amendment to the title of the bill, from the Committee on Banking and Insurance, 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. 2878--A Bill to amend and reenact §23-1-1b of the Code of West Virginia, 1931, as amended; to amend and reenact §33-41-8 of said code; and to amend said code by adding thereto a new section, designated §33-41-8a, all relating to insurance fraud; authorizing the Insurance Commissioner to assign the Workers' Compensation Fraud and Abuse Unit to investigate insurance fraud; permitting the Insurance Commissioner's Fraud Unit to investigate Workers' Compensation fraud and the forgery of insurance documents; designating the Fraud Unit a criminal justice agency for purposes of access to information; and requiring fingerprinting and background checks of applicants for employment with the Fraud Unit.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 2885, Relating to tuberculosis testing, control, treatment and commitment.
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. 2885) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2885) 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. 2890, Relating to unlawful methods of hunting and fishing.
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. 2890) 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. 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.
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. 2929, Relating to the administration of anesthesia by dentists.
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. 2929) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 2937, Relating to the replacement of individual life insurance policies and annuity contracts.
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. 2937) passed.
The following amendment to the title of the bill, from the Committee on Banking and Insurance, 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. 2937--A Bill to amend and reenact §33-11- 5a of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §33-13-48, all relating to replacement of life insurance and annuities; unfair trade practices; and promulgation of emergency and legislative rules.
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. 2966, Creating a statewide thoroughbred breeders 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, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Harrison and Weeks--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. 2966) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
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 third reading, coming up in regular order, with unreported Finance committee amendments to the bill pending, and with the right having been granted on yesterday, Friday, April 8, 2005, for further amendments to be received on third reading, was reported by the Clerk.
At the request of Senator Helmick, as chair of the Committee on Finance, and by unanimous consent, the unreported Finance committee amendment to the bill was withdrawn.
On motion of Senator Plymale, the following amendment to the bill was reported by the Clerk:
On page ten, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That §5-5-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §5-10-2, §5-10-15, §5-10-17, §5-10-21, §5-10-22, §5-10-23, §5-10-26, §5-10-27, §5-10-31 and §5-10-44 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §5-10-22h; that §5-10A-2 and §5-10A-3 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §5-10A-11; that §7-14D-5, §7-14D-7, §7-14D-13 and §7-14D-23 of said code be amended and reenacted; that §12-8-2, §12-8-3, §12-8-4, §12-8-5, §12-8-6, §12-8-7, §12-8-8 and §12-8-10 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §12-8-15; that §15-2-26, §15-2-27, §15-2-27a, §15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-32, §15-2-33, §15-2- 34 and §15-2-37 of said code be amended and reenacted; that said code be amended by adding thereto four new sections, designated §15-2-25b, §15-2-31a, §15-2-31b and §15-2-39a; that §15-2A-2, §15- 2A-5, §15-2A-6, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10, §15-2A-11, §15-2A-12, §15-2A-13, §15-2A-14 and §15-2A-19 of said code be amended and reenacted; that said code be amended by adding thereto four new sections, designated §15-2A-11a, §15-2A-11b, §15-2A-21 and §15-2A-22; that §18-7A-3, §18-7A-14, §18-7A-17, §18-7a-18, §18-7a- 18a, §18-7A-23a, §18-7A-25, §18-7A-26 and §18-7A-34 of said code be amended and reenacted; that said code be amended by adding thereto three new sections, designated §18-7A-28e, §18-7A-39 and §18-7A-40; that §18-7B-2, §18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a and §18- 7B-16 of said code be amended and reenacted; that said code be amended by adding thereto two new sections, designated §18-7B-7a and §18-7B-20; that said code be amended by adding thereto a new article, designated §18-7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C- 5, §18-7C-6, §18-7C-7, §18-7C-8, §18-7C-9, §18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13 and §18-7C-14; and that said code be amended by adding thereto a new section, designated §51-9-6c, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,

SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD

OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,

OFFICES, PROGRAMS, ETC.

ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-3. Optional payment to employee in lump sum amount for accrued and unused leave at termination of employment; no withholding of any employee contribution deduction; exception.

Every eligible employee, as defined in section one of this article, at the time his or her active employment ends due to resignation, death, retirement or otherwise, may be paid in a lump sum amount, at his or her option, for accrued and unused annual leave at the employee's usual rate of pay at such the time. The lump sum payment shall be made by the time of what would have been the employee's next regular payday had his or her employment continued. In determining the amount of annual leave entitlement, weekends, holidays or other periods of normal, noncountable time shall be excluded, and no deductions may be made for contributions toward retirement from lump sum payments for unused, accrued annual leave of any kind or character, since no period of service credit is granted in relation thereto; however, such lump sum payment for unused, accrued leave of any kind or character may not be a part of final average salary computation; and where any such deduction of employee contribution may have been heretofore made previously, a refund of such the amount deducted shall be granted the former employee and made by the head of the respective former employer spending unit: Provided, That the Superintendent of the department of public safety West Virginia State Police shall make deductions for retirement contributions of members of the department State Police Death, Disability and Retirement Fund created and continued in section twenty-six, article two, chapter fifteen of this code since retirement benefits are based on cumulative earnings rather than period of service.
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-2. Definitions.

Unless a different meaning is clearly indicated by the context, the following words and phrases as used in this article, have the following meanings:
(1) "State" means the state of West Virginia;
(2) "Retirement system" or "system" means the West Virginia public employees retirement system created and established by this article;
(3) "Board of trustees" or "board" means the board of trustees of the West Virginia public employees retirement system;
(4) "Political subdivision" means the state of West Virginia, a county, city or town in the state; a school corporation or corporate unit; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; and any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns: Provided, That any mental health agency participating in the public employees retirement system before the first day of July, one thousand nine hundred ninety-seven, is considered a political subdivision solely for the purpose of permitting those employees who are members of the public employees retirement system to remain members and continue to participate in the retirement system at their option after the first day of July, one thousand nine hundred ninety-seven: Provided, however, That the regional community policing institute which participated in the public employees retirement system before the first day of July, two thousand, is considered a political subdivision solely for the purpose of permitting those employees who are members of the public employees retirement system to remain members and continue to participate in the public employees retirement system after the first day of July, two thousand;
(5) "Participating public employer" means the state of West Virginia, any board, commission, department, institution or spending unit, and includes any agency created by rule of the supreme court of appeals having full-time employees, which for the purposes of this article is considered a department of state government; and any political subdivision in the state which has elected to cover its employees, as defined in this article, under the West Virginia public employees retirement system;
(6) "Employee" means any person who serves regularly as an officer or employee, full time, on a salary basis, whose tenure is not restricted as to temporary or provisional appointment, in the service of, and whose compensation is payable, in whole or in part, by any political subdivision, or an officer or employee whose compensation is calculated on a daily basis and paid monthly or on completion of assignment, including technicians and other personnel employed by the West Virginia national guard whose compensation, in whole or in part, is paid by the federal government: Provided, That members of the Legislature, the clerk of the House of Delegates, the clerk of the Senate, employees of the Legislature whose term of employment is otherwise classified as temporary and who are employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who have been or are employed during regular sessions or during the interim between regular sessions in seven consecutive calendar years, as certified by the clerk of the house in which the employee served, members of the legislative body of any political subdivision and judges of the state court of claims are considered to be employees, anything contained in this article to the contrary notwithstanding. In any case of doubt as to who is an employee within the meaning of this article, the board of trustees shall decide the question;
(7) "Member" means any person who is included in the membership of the retirement system;
(8) "Retirant" means any member who retires with an annuity payable by the retirement system;
(9) "Beneficiary" means any person, except a retirant, who is entitled to, or will be entitled to, an annuity or other benefit payable by the retirement system;
(10) "Service" means personal service rendered to a participating public employer by an employee, as defined in this article, of a participating public employer;
(11) "Prior service" means service rendered prior to the first day of July, one thousand nine hundred sixty-one, to the extent credited a member as provided in this article;
(12) "Contributing service" means service rendered by a member within this state and for which the member made contributions to a public retirement system account of this state, to the extent credited him or her as provided by this article. This revised definition is retroactive and applicable to the first day of April, one thousand nine hundred eighty-eight, and thereafter;
(13) "Credited service" means the sum of a member's prior service credit and contributing service credit standing to his or her credit as provided in this article;
(14) "Limited credited service" means service by employees of the West Virginia educational broadcasting authority, in the employment of West Virginia university, during a period when the employee made contributions to another retirement system, as required by West Virginia university, and did not make contributions to the public employees retirement system: Provided, That while limited credited service can be used for the formula set forth in subsection (e), section twenty-one of this article, it may not be used to increase benefits calculated under section twenty- two of this article;
(15) "Compensation" means the remuneration paid a member by a participating public employer for personal services rendered by him or her to the participating public employer. In the event a member's remuneration is not all paid in money, his or her participating public employer shall fix the value of the portion of his or her remuneration which is not paid in money;
(16) "Final average salary" means either:
(A) The average of the highest annual compensation received by a member (including a member of the Legislature who participates in the retirement system in the year one thousand nine hundred seventy-one or thereafter) during any period of three consecutive years of his or her credited service contained within his or her ten years of credited service immediately preceding the date his or her employment with a participating public employer last terminated; or
(B) If he or she has less than five years of credited service, the average of the annual rate of compensation received by him or her during his or her total years of credited service; and in determining the annual compensation, under either paragraph (A) or (B) of this subdivision, of a member of the Legislature who participates in the retirement system as a member of the Legislature in the year one thousand nine hundred seventy-one or in any year thereafter, his or her actual legislative compensation (the total of all compensation paid under sections two, three, four and five, article two-a, chapter four of this code) in the year one thousand nine hundred seventy-one or in any year thereafter, plus any other compensation he or she receives in any year from any other participating public employer including the state of West Virginia, without any multiple in excess of one times his or her actual legislative compensation and other compensation, shall be used: Provided, That "final average salary" for any former member of the Legislature or for any member of the Legislature in the year one thousand nine hundred seventy-one who, in either event, was a member of the Legislature on the thirtieth day of November, one thousand nine hundred sixty-eight, or the thirtieth day of November, one thousand nine hundred sixty-nine, or the thirtieth day of November, one thousand nine hundred seventy, or on the thirtieth day of November in any one or more of those three years and who participated in the retirement system as a member of the Legislature in any one or more of those years means: (i) Either (notwithstanding the provisions of this subdivision preceding this proviso) one thousand five hundred dollars multiplied by eight, plus the highest other compensation the former member or member received in any one of the three years from any other participating public employer including the state of West Virginia; or (ii) "final average salary" determined in accordance with paragraph (A) or (B) of this subdivision, whichever computation produces the higher final average salary (and in determining the annual compensation under (ii) of this proviso, the legislative compensation of the former member shall be computed on the basis of one thousand five hundred dollars multiplied by eight, and the legislative compensation of the member shall be computed on the basis set forth in the provisions of this subdivision immediately preceding this proviso or on the basis of one thousand five hundred dollars multiplied by eight, whichever computation as to the member produces the higher annual compensation);
(17) "Accumulated contributions" means the sum of all amounts deducted from the compensations of a member and credited to his or her individual account in the members' deposit fund, together with regular interest on the contributions;
(18) "Regular interest" means the rate or rates of interest per annum, compounded annually, as the board of trustees adopts from time to time;
(19) "Annuity" means an annual amount payable by the retirement system throughout the life of a person. All annuities shall be paid in equal monthly installments, using the upper cent for any fraction of a cent;
(20) "Annuity reserve" means the present value of all payments to be made to a retirant or beneficiary of a retirant on account of any annuity, computed upon the basis of mortality and other tables of experience, and regular interest, adopted by the board of trustees from time to time;
(21) "Retirement" means a member's withdrawal from the employ of a participating public employer with an annuity payable by the retirement system;
(22) "Actuarial equivalent" means a benefit of equal value computed upon the basis of a mortality table and regular interest adopted by the board of trustees from time to time;
(23) "Retroactive service" means: (1) Service an employee was entitled to, but which the employer has not withheld d to prior service at no cost in accordance with 162 CSR 5.16;
(24) "Required beginning date" means the first day of April of the calendar year following the later of: (A) The calendar year in which the member attains age seventy and one-half; or (B) the calendar year in which the member ceases providing service covered under this system to a participating employer;
(25) "Internal Revenue Code" means the Internal Revenue Code of 1986, as it has been amended; and
(26) "Plan year" means the same as referenced in section forty-two of this article.
(1) "Accumulated contributions" means the sum of all amounts deducted from the compensations of a member and credited to his or her individual account in the members' deposit fund, together with regular interest on the contributions;
(2) "Accumulated net benefit" means the aggregate amount of all benefits paid to or on behalf of a retired member;
(3) "Actuarial equivalent" means a benefit of equal value computed upon the basis of a mortality table and regular interest adopted by the Board of Trustees from time to time;
(4) "Annuity" means an annual amount payable by the retirement system throughout the life of a person. All annuities shall be paid in equal monthly installments, rounding to the upper cent for any fraction of a cent;
(5) "Annuity reserve" means the present value of all payments to be made to a retirant or beneficiary of a retirant on account of any annuity, computed upon the basis of mortality and other tables of experience, and regular interest, adopted by the Board of Trustees from time to time;
(6) "Beneficiary" means any person, except a retirant, who is entitled to, or will be entitled to, an annuity or other benefit payable by the retirement system;
(7) "Board of Trustees" or "Board" means the Board of Trustees of the West Virginia Consolidated Public Retirement System;
(8) "Compensation" means the remuneration paid a member by a participating public employer for personal services rendered by the member to the participating public employer. In the event a member's remuneration is not all paid in money, his or her participating public employer shall fix the value of the portion of the remuneration which is not paid in money;
(9) "Contributing service" means service rendered by a member within this state and for which the member made contributions to a public retirement system account of this state, to the extent credited him or her as provided by this article;
(10) "Credited service" means the sum of a member's prior service credit, military service credit, workers' compensation service credit and contributing service credit standing to his or her credit as provided in this article;
(11) "Employee" means any person who serves regularly as an officer or employee, full time, on a salary basis, whose tenure is not restricted as to temporary or provisional appointment, in the service of, and whose compensation is payable, in whole or in part, by any political subdivision, or an officer or employee whose compensation is calculated on a daily basis and paid monthly or on completion of assignment, including technicians and other personnel employed by the West Virginia National Guard whose compensation, in whole or in part, is paid by the federal government:
Provided, That an employee of the Legislature whose term of employment is otherwise classified as temporary and who is employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who has been or is employed during regular sessions or during the interim between regular sessions in seven or more consecutive calendar years, as certified by the Clerk of the house in which the employee served, is an employee, any provision to the contrary in this article notwithstanding, and is entitled to credited service in accordance with provisions of section fourteen of this article, and: Provided, however, That members of the legislative body of any political subdivision and judges of the state Court of Claims are employees receiving one year of service credit for each one-year term served and pro-rated service credit for any partial term served, anything contained in this article to the contrary notwithstanding. In any case of doubt as to who is an employee within the meaning of this article, the Board of Trustees shall decide the question;
(12) "Employer error" means an omission, misrepresentation or violation of relevant provisions of the West Virginia Code or of the West Virginia Code of State Regulations or the relevant provisions of both the West Virginia Code and of the West Virginia Code of State Regulations by the participating public employer that has resulted in an underpayment or overpayment of contributions required. A deliberate act contrary to the provisions of this section by a participating public employer does not constitute employer error;
(13) "Final average salary" means either:
(A) The average of the highest annual compensation received by a member (including a member of the Legislature who participates in the retirement system in the year one thousand nine hundred seventy-one or thereafter), during any period of three consecutive years of credited service contained within the member's ten years of credited service immediately preceding the date his or her employment with a participating public employer last terminated; or
(B) If the member has less than five years of credited service, the average of the annual rate of compensation received by the member during his or her total years of credited service; and in determining the annual compensation, under either paragraph (A) or (B) of this subdivision, of a member of the Legislature who participates in the retirement system as a member of the Legislature in the year one thousand nine hundred seventy-one, or in any year thereafter, his or her actual legislative compensation (the total of all compensation paid under sections two, three, four and five, article two-a, chapter four of this code), in the year one thousand nine hundred seventy-one, or in any year thereafter, plus any other compensation he or she receives in any year from any other participating public employer, including the State of West Virginia, without any multiple in excess of one times his or her actual legislative compensation and other compensation, shall be used:
Provided, That "final average salary" for any former member of the Legislature or for any member of the Legislature in the year one thousand nine hundred seventy-one, who, in either event, was a member of the Legislature on the thirtieth day of November, one thousand nine hundred sixty-eight, or the thirtieth day of November, one thousand nine hundred sixty-nine, or the thirtieth day of November, one thousand nine hundred seventy, or on the thirtieth day of November in any one or more of those three years and who participated in the retirement system as a member of the Legislature in any one or more of those years means: (i) Either (notwithstanding the provisions of this subdivision preceding this proviso) one thousand five hundred dollars multiplied by eight, plus the highest other compensation the former member or member received in any one of the three years from any other participating public employer including the State of West Virginia; or (ii) "final average salary" determined in accordance with paragraph (A) or (B) of this subdivision, whichever computation produces the higher final average salary (and in determining the annual compensation under subparagraph (ii) of this proviso, the legislative compensation of the former member shall be computed on the basis of one thousand five hundred dollars multiplied by eight, and the legislative compensation of the member shall be computed on the basis set forth in the provisions of this subdivision immediately preceding this proviso or on the basis of one thousand five hundred dollars multiplied by eight, whichever computation as to the member produces the higher annual compensation);
(14) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, codified at Title 26 of the United States Code;
(15) "Limited credited service" means service by employees of the West Virginia Educational Broadcasting Authority, in the employment of West Virginia University, during a period when the employee made contributions to another retirement system, as required by West Virginia University, and did not make contributions to the Public Employees Retirement System: Provided, That while limited credited service can be used for the formula set forth in subsection (e), section twenty-one of this article, it may not be used to increase benefits calculated under section twenty- two of this article;
(16) "Member" means any person who has accumulated contributions standing to his or her credit in the members' deposit fund;
(17) "Participating public employer" means the State of West Virginia, any board, commission, department, institution or spending unit, and includes any agency created by rule of the Supreme Court of Appeals having full-time employees, which for the purposes of this article is considered a department of state government; and any political subdivision in the state which has elected to cover its employees, as defined in this article, under the West Virginia Public Employees Retirement System;
(18) "Plan year" means the same as referenced in section forty-two of this article;
(19) "Political subdivision" means the State of West Virginia, a county, city or town in the state; a school corporation or corporate unit; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; and any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns: Provided, That any mental health agency participating in the Public Employees Retirement System before the first day of July, one thousand nine hundred ninety-seven, is considered a political subdivision solely for the purpose of permitting those employees who are members of the Public Employees Retirement System to remain members and continue to participate in the retirement system at their option after the first day of July, one thousand nine hundred ninety-seven: Provided, however, That the Regional Community Policing Institute which participated in the Public Employees Retirement System before the first day of July, two thousand, is considered a political subdivision solely for the purpose of permitting those employees who are members of the Public Employees Retirement System to remain members and continue to participate in the Public Employees Retirement System after the first day of July, two thousand;
(20) "Prior service" means service rendered prior to the first day of July, one thousand nine hundred sixty-one, to the extent credited a member as provided in this article;
(21) "Regular interest" means the rate or rates of interest per annum, compounded annually, as the Board of Trustees adopts from time to time;
(22) "Required beginning date" means the first day of April of the calendar year following the later of: (A) The calendar year in which the member attains age seventy and one-half years of age; or (B) the calendar year in which a member who has attained the age seventy and one-half years of age and who ceases providing service covered under this system to a participating employer;
(23) "Retirant" means any member who commences an annuity payable by the retirement system;
(24) "Retirement" means a member's withdrawal from the employ of a participating public employer and the commencement of an annuity by the retirement system;
(25) "Retirement system" or "system" means the West Virginia Public Employees Retirement System created and established by this article;
(26) "Retroactive service" means: (1) Service between the first day of July, one thousand nine hundred sixty-one, and the date an employer decides to become a participating member of the Public Employees Retirement System; (2) service prior to the first day of July, one thousand nine hundred sixty-one, for which the employee is not entitled to prior service at no cost in accordance with 162 CSR 5.13; and (3) service of any member of a legislative body or employees of the state Legislature whose term of employment is otherwise classified as temporary for which the employee is eligible, but for which the employee did not elect to participate at that time;
(27) "Service" means personal service rendered to a participating public employer by an employee of a participating public employer; and
(28) "State" means the State of West Virginia.
§5-10-15. Military service credit; qualified military service.
(a) (1) The Legislature recognizes the men and women of this state who have served in the armed forces of the United States during times of war, conflict and danger. It is the intent of this section to confer military service credit upon persons who are eligible at any time for public employees retirement benefits for any time served in active duty in the armed forces of the United States when the duty was during any period of compulsory military service or during a period of armed conflict, as defined in this section.
(2) In addition to any benefit provided by federal law, any member of the retirement system who has previously served in or enters the active service of the armed forces of the United States during any period of compulsory military service or during a period of armed conflict shall receive credited service for the time spent in the armed forces of the United States, not to exceed five years if the member:
(A) Has been honorably discharged from the armed forces; and
(B) Substantiates by appropriate documentation or evidence his or her active military service and entry into military service during any period of compulsory military service or during periods of armed conflict.
(3) Any member of the retirement system who enters the active service of the armed forces of the United States during any period of compulsory military service or during a period of armed conflict shall receive the credit provided by this section regardless of whether he or she was a public employee at the time of entering the military service.
(4) If a member of the Public Employees Retirement System enters the active service of the United States and serves during any period of compulsory military service or during any period of armed conflict, during the period of the armed service and until the member's return to the employ of a participating public employer, the member's contributions to the retirement system is suspended and any credit balance remaining in the member's deposit fund shall be accumulated at regular interest: Provided, That notwithstanding any provision in this article to the contrary, if an employee of a participating political subdivision serving in the military service during any period of compulsory military service or armed conflict has accumulated credited service prior to the last entry into military service, in an amount that, added to the time in active military service while an employee equals nine or more years, and the member is unable to resume employment with a participating employer upon completion of duty due to death during or as a result of active service, all time spent in active military service, up to and including a total of five years, is considered to be credited service and death benefits are vested in the member: Provided, however, That the active service during the time the member is an employee must be as a result of an order or call to duty, and not as a result of volunteering for assignment or volunteering to extend the time in service beyond the time required by order or call.
(5) No member may receive duplicate credit for service for a period of compulsory military service which falls under a period of armed conflict.
(6) In any case of doubt as to the period of service to be credited a member under the provisions of this section, the Board of Trustees has final power to determine the period.
(7) The Board is empowered to may consider a petition by any member whose tour of duty, in a territory that would reasonably be considered hostile and dangerous, was extended beyond the period in which an armed conflict was officially recognized, if that tour of duty commenced during a period of armed conflict, and the member was assigned to duty stations within the hostile territory throughout the period for which service credit is being sought. The Board has the authority to evaluate the facts and circumstances peculiar to the petition, and rule on whether granting service credit for the extended tour of duty is consistent with the objectives of this article. In that determination, the Board is empowered to may grant full credit for the period under petition subject to the limitations otherwise applicable, or to grant credit for any part of the period as the board considers appropriate, or to deny credit altogether.
(8) The Board of Trustees may propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to administer the provisions of this section.
(b) For purposes of this section, the following definitions apply:
(1) "Period of armed conflict" means the Spanish-American War, the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War and any other period of armed conflict by the United States, including, but not limited to, those periods sanctioned by a declaration of war by the United States Congress or by executive or other order of the President.
(2) "Spanish-American War" means the period beginning on the twenty-first day of April, one thousand eight hundred ninety-eight, and ending on the fourth day of July, one thousand nine hundred two, and includes the Philippine Insurrection, the Boxer Rebellion, and, in the case of a veteran who served with the United States military forces engaged in hostilities in the Moro Province, means the period beginning on the twenty-first day of April, one thousand eight hundred ninety-eight, and ending on the fifteenth day of July, one thousand nine hundred three.
(3) "The Mexican border period" means the period beginning on the ninth day of May, one thousand nine hundred sixteen, and ending on the fifth day of April, one thousand nine hundred seventeen, in the case of a veteran who during the period served in Mexico, on its borders or in the waters adjacent to it.
(4) "World War I" means the period beginning on the sixth day of April, one thousand nine hundred seventeen, and ending on the eleventh day of November, one thousand nine hundred eighteen, and, in the case of a veteran who served with the United States military forces in Russia, means the period beginning on the sixth day of April, one thousand nine hundred seventeen, and ending on the first day of April, one thousand nine hundred twenty.
(5) "World War II" means the period beginning on the seventh day of December, one thousand nine hundred forty-one, and ending on the thirty-first day of December, one thousand nine hundred forty- six.
(6) "Korean conflict" means the period beginning on the twenty-seventh day of June, one thousand nine hundred fifty, and ending on the thirty-first day of January, one thousand nine hundred fifty-five.
(7) "The Vietnam era" means the period beginning on the twenty-eighth day of February, one thousand nine hundred sixty-one, and ending on the seventh day of May, one thousand nine hundred seventy-five, in the case of a veteran who served in the Republic of Vietnam during that period; and the fifth day of August, one thousand nine hundred sixty-four, and ending on the seventh day of May, one thousand nine hundred seventy-five, in all other cases.
(8) "Persian Gulf War" means the period beginning on the second day of August, one thousand nine hundred ninety, and ending on the eleventh day of April, one thousand nine hundred ninety-one.
(c) Notwithstanding the preceding provisions of this section, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this section, "qualified military service" has the same meaning as in Section 414(u) of the Internal Revenue Code. No military service credit may be used in more than one retirement system administered by the Consolidated Public Retirement Board and once used in any system, may not be used again in any other system. The retirement Board is authorized to determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the retirement Board in section one, article ten-d of this chapter, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.
§5-10-17. Retirement system membership.
The membership of the retirement system consists of the following persons:
(a) All employees, as defined in section two of this article, who are in the employ of a political subdivision the day preceding the date it becomes a participating public employer and who continue in the employ of the participating public employer on and after that date shall become members of the retirement system; and all persons who become employees of a participating public employer on or after that date shall thereupon become members of the system; except as provided in subdivisions (b) and (c) of this section.
(b) The membership of the Public Employees Retirement System shall not include any person who is a an active contributing member of, or who has been retired by, any of the State Teachers Retirement Systems, the Judges' Retirement System, the any retirement system of the Division of Public Safety West Virginia State Police, the Deputy Sheriff Retirement System or any municipal retirement system for either, or both, policemen police or firemen firefighters; and the Bureau of Employment Programs, by the Commissioner of the Bureau, may elect whether its employees will accept coverage under this article or be covered under the authorization of a separate enactment: Provided, That the exclusions of membership shall do not apply to any member of the state Legislature, the Clerk of the House of Delegates, the Clerk of the state Senate or to any member of the legislative body of any political subdivision provided he or she once becomes a contributing member of the retirement system: Provided, however, That any retired member of the retirement system of the division of public safety State Police Death, Disability and Retirement Fund, the West Virginia State Police Retirement System, the Deputy Sheriff Retirement System and any retired member of any municipal retirement system for either, or both, policemen police or firemen firefighters may on and after the effective date of this section become a member of the retirement system as provided in this article, without receiving credit for prior service as a municipal policeman police officer or fireman firefighter or as a member of the division of public safety State Police Death, Disability and Retirement Fund, the West Virginia State Police Retirement System or of the Deputy Sheriff Retirement System: Provided further, That any retired member of the State Police Death, Disability and Retirement Fund, the West Virginia State Police Retirement System, the Deputy Sheriff Retirement System and any retired member of any municipal retirement system for either, or both, police or firefighters, who begins participation in the retirement system established in this article on or after the first day of July, two thousand five, may not receive a combined retirement benefit in excess of one hundred five percent of the member's highest annual salary earned while either a member of the retirement system established in this article or while a member of the other retirement system or systems from which he or she previously retired when adding the retirement benefit from the retirement system created in this article to the retirement benefit received by that member from the other retirement system or systems set forth herein from which he or she previously retired: And provided further, That the membership of the retirement system does not include any person who becomes employed by the Prestera Center for Mental Health Services, Valley Comprehensive Mental Health Center, Westbrook Health Services or Eastern Panhandle Mental Health Center on or after the first day of July, one thousand nine hundred ninety-seven: And provided further, That membership of the retirement system does not include any person who becomes a member of the federal Railroad Retirement Act on or after the first day of July, two thousand.
(c) Any member of the state Legislature, the Clerk of the House of Delegates, the Clerk of the state Senate and any employee of the state Legislature whose employment is otherwise classified as temporary and who is employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and who has been or is so employed during regular sessions or during the interim between sessions in seven consecutive calendar years, as certified by the clerk of the house in which the employee served, or any member of the legislative body of any other political subdivision shall become a member of the retirement system provided he or she notifies the retirement system in writing of his or her intention to be a member of the system and files a membership enrollment form as prescribed by the Board of Trustees, and each person, upon filing his or her written notice to participate in the retirement system, shall by that act authorize the Clerk of the House of Delegates or the Clerk of the state Senate or such person or legislative agency as the legislative body of any other political subdivision shall designate to deduct the member's contribution, as provided in subsection (b), section twenty-nine of this article, and after the deductions have been made from the member's compensation, the deductions shall be forwarded to the retirement system.
(d) If question arises regarding the membership status of any employee, the Board of Trustees has the final power to decide the question.
(e) Any individual who is a leased employee is not eligible to participate in the system. For the purposes of this article, the term "leased employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or other similar organization. If a question arises regarding the status of an individual as a leased employee, the Board has final authority to decide the question.
§5-10-21. Deferred retirement and early retirement.
(a) Any member who has five or more years of credited service in force, of which at least three years are contributing service, and who leaves the employ of a participating public employer prior to his or her attaining age sixty years for any reason except his or her disability retirement or death, shall be is entitled to an annuity computed according to section twenty-two of this article, as that section was in force as of the date of his or her separation from the employ of a participating public employer: Provided, That he or she does not withdraw his or her accumulated contributions from the members' deposit fund: Provided, however, That on and after the first day of July, two thousand two, any person who becomes a new member of this retirement system shall, in qualifying for retirement hereunder under this section, have five or more years of service, all of which years shall be actual, contributory ones. His or her annuity shall begin the first day of the calendar month next following the month in which his or her application for same is filed with the Board of Trustees on or after his or her attaining age sixty-two years.
(b) Any member who qualifies for deferred retirement benefits in accordance with subsection (a) of this section and has ten or more years of credited service in force and who has attained age fifty-five as of the date of his or her separation, may, prior to the effective date of his or her retirement, but not thereafter, elect to receive the actuarial equivalent of his or her deferred retirement annuity as a reduced annuity commencing on the first day of any calendar month between his or her date of separation and his or her attainment of age sixty-two years and payable throughout his or her life.
(c) Any member who qualifies for deferred retirement benefits in accordance with subsection (a) of this section and has twenty or more years of credited service in force may elect to receive the actuarial equivalent of his or her deferred retirement annuity as a reduced annuity commencing on the first day of any calendar month between his or her fifty-fifth birthday and his or her attainment of age sixty-two years and payable throughout his or her life.
(d) Notwithstanding any of the other provisions of this section or of this article, except sections twenty-seven-a and twenty-seven-b of this article, and pursuant to rules promulgated by the Board, any member who has thirty or more years of credited service in force, at least three of which are contributing service, and who elects to take early retirement, which for the purposes of this subsection means retirement prior to age sixty, whether an active employee or a separated employee at the time of application, shall be is entitled to the full computation of annuity according to section twenty-two of this article, as that section was in force as of the date of retirement application, but with the reduced actuarial equivalent of the annuity the member would have received if his or her benefit had commenced at age sixty when he or she would have been entitled to full computation of benefit without any reduction.
(e) Notwithstanding any of the other provisions of this section or of this article, except sections twenty-seven-a and twenty-seven-b of this article, any member of the retirement system may retire with full pension rights, without reduction of benefits, if he or she is at least fifty-five years of age and the sum of his or her age plus years of contributing service and limited credited service, as defined in section two of this article, equals or exceeds eighty. The member's annuity shall begin the first day of the calendar month immediately following the calendar month in which his or her application for the annuity is filed with the Board.
§5-10-22. Retirement annuity.
(a) Upon a member's retirement, as provided in this article, he or she shall receive a straight life annuity equal to one and five-tenths percent of his or her final average salary multiplied by the number of years, and fraction of a year, of his or her credited service in force at the time of his or her retirement: Provided, That the final average salary used in this calculation does not include any lump sum payment for unused, accrued leave of any kind or character. The credited service used for this calculation may not include any period of limited credited service: Provided, however, That after the first day of March, one thousand nine hundred seventy, all members retired and all members retiring shall receive a straight life annuity equal to two percent of his or her final average salary multiplied by the number of years, and fraction of a year, of his or her credited service, exclusive of limited credited service in force at the time of his or her retirement. In either event, upon his or her retirement he or she has the right to elect an option provided for in section twenty- four of this article. All annuity payments shall commence effective the first day of the month following the month in which a member retires or a member dies leaving a beneficiary entitled to benefits and shall continue to the end of the month in which the retirant or beneficiary dies, and the annuity payments may not be prorated for any portion of a month in which a member retires or retirant or beneficiary dies. Any member receiving an annuity based in part upon limited credited service is not eligible for the supplements provided for in sections twenty-two-a through twenty- two-d, inclusive, of this article.
(b) The annuity of any member of the Legislature who participates in the retirement system as a member of the Legislature and who retires under this article or of any former member of the Legislature who has retired under this article (including any former member of the Legislature who has retired under this article and whose annuity was readjusted as of the first day of March, one thousand nine hundred seventy, under the former provisions of this section) shall be increased, from time to time, during the period of his or her retirement when and if the legislative compensation paid under section two, article two-a, chapter four of this code to a member of the Legislature shall be increased to the point where a higher annuity would be payable to the retirant if he or she were retiring as of the effective date of the latest increase in such legislative compensation, but on the basis of his or her years of credited service to the date of his or her actual retirement.
§5-10-22h. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or create any new benefits for any retirees or beneficiaries currently receiving monthly benefit payments from the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, in an amount that would exceed more than one percent of the accrued actuarial liability of the system as of the last day of the preceding fiscal year as determined in the annual actuarial valuation for the plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature.
(b) If any increase of existing benefits or creation of new benefits for any retirees or beneficiaries currently receiving monthly benefit payments under the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, causes any additional unfunded actuarial accrued liability in the system as calculated in the annual actuarial valuation for the plan during any fiscal year, the additional unfunded actuarial accrued liability of that pension system shall be fully amortized over no more than the five consecutive fiscal years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. The Consolidated Public Retirement Board shall include the five-year amortization in the determination of the adequacy of the employer contribution percentage for the system.
(c) The state will not increase any existing benefits or create any new benefits for active members due to retirement, death or disability of the system unless the actuarial accrued liability of the plan is at least eighty-five percent funded as of the last day of the prior fiscal year as determined in the actuarial valuation for the plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature. Any additional unfunded actuarial accrued liability due to any improvement in active members benefits shall be fully amortized over not more than ten years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. The Consolidated Public Retirement Board shall include the ten-year amortization in the determination of the adequacy of the employer contribution percentage for the system.
§5-10-23. Terminal payment following retirement.
For the purposes of this section, the term "accumulated net benefit" means the aggregate amount of all benefits paid to or on behalf of a member. This includes, without limitation: (a) Benefits paid to the member as an annuity; (b) any lump sum distributions paid to the member or to any other person on account of the member's rights to benefits from the plan; (c) survivor benefits paid to any person or persons on account of the member's rights to benefits from the plan; and (d) any other distributions on account of the member's rights to benefits from the plan whether they are paid in the nature of a refund of contributions, interest on contributions, lump sum distributions, or annuity type benefits. The amounts counted will be the amounts actually paid without regard to any optional form of any annuity benefit.
For the purposes of this section, the term "accumulated employee contributions" means all money the member has contributed to the plan, whether the form of the contribution was after tax deductions from wages, before tax deductions from wages, direct remittance by the member to repay contributions and interest previously distributed and direct remittance by the member to pay imputed contributions for periods which were not subject to contributions but may be counted for benefit purposes under the plan. The term accumulated employee contributions does not include any amount credited under the provisions of the plan as interest on member contributions.
For the purposes of this section, the term "member's account" means the excess of the accumulated employee contributions over the accumulated net benefit payments at any point in time and the term "member" includes retirant. (a) This section provides for the payment of the balance in the a retired member's account in the event that all claims to benefits payable to, or on behalf of, a member expire before his or her member account has been fully exhausted. The expiration of such the rights to benefits would be on the occasion of either the death of the retired member and any and all beneficiaries who might have a claim to regular benefit payments under the plan, for any form of benefit. Without limitation, this would include the demise of beneficiaries of survivor annuities and beneficiaries of any lump sum distributions drawing benefits under a straight life annuity, or the death of a survivor annuitant drawing benefits under any optional form of benefit selected by the retired member, whichever occurs later.
(b) In the event that all claims to benefit benefits payable to, or on behalf of, a retired member expire, and the accumulated employee contributions exceed his or her the accumulated net benefit payments paid to or on behalf of the retired member, the balance in the retired member's account shall be paid to the person or persons as the retired member has nominated by written designation duly executed and filed with the board of trustees. If there be is no designated person or persons surviving the retired member following the expiration of claims, the excess of the accumulated employee contributions over the accumulated net benefit, if any, shall be paid to his or her the retired member's estate. In no case may the plan retain any amount of the accumulated employee contributions remaining in the member's account, but it shall retain interest earned on the same accumulated employee contributions in the instance of a member's or beneficiary's post-retirement death.
§5-10-26. Reexamination of disability retirants; reemployment; adjustment of annuity for earnings.

(a) At least once each year during the first five years following the retirement of a member on account of disability, as provided in section twenty-five hereof of this article, and at least once in each three-year period thereafter, the Board of trustees may, and upon the retirant's application, may require a disability retirant, who has not attained age sixty years, to undergo a medical examination to be made by or under the direction of a physician designated by the board, or to submit a statement signed by the disability retirant's physician certifying continued disability, or both, and a copy of the disability retirants's annual statement of earnings. Should If the said retirant refuse refuses to submit to such the medical examination or provide the certification or statement in any such period, his or her disability annuity may be discontinued by the Board until his withdrawal of such refusal. Should such the retirant complies. If the refusal continue continues for one year, all his the retirant's rights in and to his the annuity may be revoked by the Board. If, upon such medical examination of a disability retirant, the said physician reports to the Board that the retirant is physically able and capable of resuming employment with a participating public employer, he the retirant shall be returned to the employ of the participating public employer from whose employment he or she retired and his or her disability annuity shall terminate: Provided, That the report of the said physician is concurred in by the board Board concurs in the physician's report.
(b) A disability retirant who is returned to the employ of a participating public employer shall again become a member of the retirement system and his the retirant's credited service in force at the time of his or her retirement shall be restored. to his credit.
(c) If a disability retirant, who has not attained age sixty years, becomes engaged in a gainful occupation, business or employment, and the sum of his earnings from such occupation, business or employment, and his disability annuity exceeds his annual rate of compensation at the time of his retirement, his disability annuity shall be reduced to an amount which when added to the amount so earned by him shall equal his said annual rate of compensation. If his earnings are later changed, his disability annuity shall be correspondingly adjusted. If a review of the disability retirant's annual statement of earnings or other financial information as required by the Board determines that the disability retirant's earned income for the preceding year exceeds the substantial gainful activity amount as defined by the United States Social Security Administration, the disability retirant's annuity shall be terminated by the Board, upon recommendation of the Board's disability review committee, on the first day of the month following the Board's action. Any person who wishes to reapply for disability retirement and whose disability retirement annuity has been terminated by the Board may do so within ninety days of the effective date of termination by requesting an examination at the applicant's expense by an appropriate medical professional chosen by the Board.
§5-10-27. Preretirement death annuities.
(a) In the event any member who has ten or more years of credited service or any former member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant to section twenty-one of this article: may at any time prior to the effective date of his or her retirement, by written declaration duly executed and filed with the board of trustees, in the same manner as if he or she were then retiring from the employ of a participating public employer, elect option A provided for in section twenty-four of this article and nominate a beneficiary whom the board finds to have had an insurable interest in the life of the member. Prior to the effective date of his or her retirement, a member may revoke his or her election of option A and nomination of beneficiary and he or she may again prior to his or her retirement elect option A and nominate a beneficiary as provided in this subsection. Upon the death of a member who has an option A election in force, his or her beneficiary, if living, shall immediately receive an annuity computed in the same manner in all respects as if the same member had retired the day preceding the date of his or her death, notwithstanding that he or she might not have attained age sixty years, and elected the said option A. If at the time of his or her retirement a member has an option A election in force, his or her election of option A and nomination of beneficiary shall thereafter continue in force. (1) Dies without leaving a surviving spouse; but (2) leaves surviving him or her a child who is financially dependent on the member by virtue of a permanent mental or physical disability upon evidence satisfactory to the Board; and (3) has named the disabled child as sole beneficiary, the disabled child shall immediately receive an annuity computed in the same manner in all respects as if the member had: (1) Retired the day preceding the date of his or her death, notwithstanding that he or she might not have attained age sixty or sixty-two years, as the case may be; (2) elected option A provided for in section twenty-four of this article; and (3) nominated his or her disabled child as beneficiary. As an alternative to annuity option A, a A member or former member with ten or more years of credited service, who does not leave surviving him or her a spouse or a disabled child, may elect to have the preretirement death benefit paid as a return of accumulated contributions in a lump sum amount to any beneficiary or beneficiaries he or she chooses.
(b) In the event any member who has ten or more years of credited service, or any former member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant to section twenty-one of this article: (1) Dies; and (2) leaves a surviving spouse, the surviving spouse shall immediately receive an annuity computed in the same manner in all respects as if the said the member had: (1) Retired the day preceding the date of his or her death, notwithstanding that he or she might not have attained age sixty or sixty-two years, as the case may be; (2) elected option A provided for in section twenty-four of this article; and (3) nominated his or her surviving spouse as beneficiary. However, the surviving spouse shall have the right to waive the annuity provided for in this section: Provided, That he or she executes a valid and notarized waiver on a form provided by the retirement Board and that the member or former member attests to the waiver. If the waiver is presented to and accepted by the retirement Board, the member or former member shall may nominate a beneficiary who has an insurable interest in the member's or former member's life. As an alternative to annuity option A, the member or former member may elect to have the preretirement death benefit paid as a return of accumulated contributions in a lump sum amount to any beneficiary or beneficiaries he or she chooses in the event a waiver, as provided for in this section, has been presented to and accepted by the retirement Board.
(c) In the event any member who has ten or more years of credited service or any former member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant to section twenty-one of this article: (1) Dies without leaving surviving him or her a spouse; but (2) leaves surviving him or her an infant child or children; and (3) does not have a beneficiary nominated as provided in subsection (a) of this section, the infant child or children shall be are entitled to an annuity to be calculated as follows: The annuity reserve shall be calculated as though the member had retired as of the date of his or her decease and elected a straight life annuity and the amount of the annuity reserve shall be paid in equal monthly installments to said the member's infant child or children until the child or children attain age twenty-one or sooner marry or become emancipated; however, in no event shall any child or children receive more than two hundred fifty dollars per month each. The annuity payments shall be computed as of the date of the death of the member and the amount of the annuity shall remain constant during the period of payment. The annual amount of the annuities payable by this section shall not exceed sixty percent of the deceased member's final average salary.
(d) In the event any member or former member does not have ten or more years of credited service, no preretirement death annuity may be authorized, owed or awarded under this section.
§5-10-31. Employers accumulation fund; employers contributions.
(a) The employers accumulation fund is hereby continued. It shall be the fund in which shall be accumulated the contributions made by the participating public employers to the retirement system and from which transfers shall be made as provided in this section.
(b) Based upon the provisions of section thirteen of this article, the participating public employers' contributions to the retirement system, as determined by the Consolidated Public Retirement Board by legislative rule promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code, shall be a percent of the members' total annual compensation related to benefits under this retirement system. In determining the amount, the Board shall give consideration to setting the amount at a sum equal to an amount which, if paid annually by the participating public employers, will be sufficient to provide for the total normal cost of the benefits expected to become payable to all members and to amortize any unfunded liability found by application of such the actuarial funding method as shall be chosen for such that purpose by the Consolidated Public Retirement Board, over such a period of years as shall be deemed determined actuarially appropriate. When proposing a rule for promulgation which relates to the amount of employer contribution, the Board may promulgate emergency rules by emergency pursuant to the provisions of article three, chapter twenty-nine-a of this code, if the inability of the Board to increase employer contributions will detrimentally affect the actuarial soundness of the retirement system. A signed statement from the state actuary will shall accompany the statement of facts and circumstances constituting an emergency which must shall be filed in the State Register. For purposes of this section, subdivision (2), subsection (b), section fifteen-a, article three, chapter twenty-nine-a of this code shall is not be applicable to the Secretary of State's determination of whether an emergency rule should be approved.
In no year may the total of the contributions provided for in this section, to be paid by any participating public employer, exceed ten and five-tenths percent of the total payroll for the members in the employ of such participating public employer for the preceding fiscal year.
§5-10-44. Correction of errors.
Should If any change or employer error in the records of any participating public employer or the retirement system result results in any person receiving from the system more or less than he or she would have been entitled to receive had the records been correct, the Board of trustees shall correct such the error, and as far as is practicable shall adjust the payment of the benefit in such a manner that the actuarial equivalent of the benefit to which such the person was correctly entitled shall be paid. Any employer error resulting in an underpayment to the retirement system may be corrected by the employee remitting the required employee contribution and the participating public employer remitting the required employer contribution. Interest shall accumulate in accordance with the Legislative Rule 162 CSR 7 concerning retirement board refund, reinstatement and loan interest factors, and any accumulating interest owed on the employee and employer contributions resulting from the employer error shall be the responsibility of the participating public employer. The participating public employer may remit total payment and the employee reimburse the participating public employer through payroll deduction over a period equivalent to the time period during which the employer error occurred.
ARTICLE 10A. DISQUALIFICATION FOR PUBLIC RETIREMENT PLAN BENEFITS.
§5-10A-2. Definitions.

As used in this article:

(a) "Retirement plan" or "plan" means the Public Employees Retirement Act, pursuant to article ten of this chapter; each municipal employees retirement plan, pursuant to article twenty- two, chapter eight of this code; each policemen's and firemen's pension and relief fund, pursuant to article twenty-two, chapter eight of this code; the West Virginia State Police Death, Disability and Retirement Fund of the West Virginia State Police, pursuant to article two, chapter fifteen of this code; the West Virginia State Police Retirement System, pursuant to article two-a, chapter fifteen of this code; the State Teachers Retirement System, pursuant to article seven-a, chapter eighteen of this code; the Teachers Defined Contribution Retirement System, pursuant to article seven-b, chapter eighteen of this code; the Deputy Sheriff Retirement System, pursuant to article fourteen-d, chapter seven of this code; supplemental and additional retirement plans, pursuant to section four-a, article twenty-three, chapter eighteen of this code; the Judges' Retirement System, pursuant to article nine, chapter fifty-one of this code; and any other plan established pursuant to this code for the payment of pension, annuity, disability or other benefits to any person by reason of his or her service as an officer or employee of this state or of any political subdivision, agency or instrumentality thereof, whenever such the plan is supported in whole or in part by public funds.
(b) "Beneficiary" means any person eligible for or receiving benefits on account of the service for a public employer by a participant in a retirement plan.
(c) "Benefits" means pension, annuity, disability or any other benefits granted pursuant to a retirement plan.
(d) "Conviction" means a conviction on or after the effective date of this article in any federal or state court of record whether following a plea of guilty, not guilty or nolo contendere, and whether or not the person convicted was serving as an officer or employee of a public employer at the time of the conviction.
(e) "Less than honorable service" means:
(1) Impeachment and conviction of a participant under the provisions of section nine, article IV of the Constitution of West Virginia, except for a misdemeanor; or
(2) Conviction of a participant of a felony for conduct related to his or her office or employment which he or she committed while holding such the office or during such the employment; or
(3) Conduct of a participant which constitutes all of the elements of a crime described in either of the foregoing subdivision (1) or (2) but for which the participant was not convicted because:
(i) Having been indicted or having been charged in an information for such the crime, he or she made a plea bargaining agreement pursuant to which he or she pleaded guilty to or nolo contendere to a lesser crime: Provided, That the lesser crime is a felony containing all the elements described in subdivision (1) or (2) of this subsection; or
(ii) Having been indicted or having been charged in an information for such the crime, he or she was granted immunity from prosecution for the same; or crime.
(iii) Having been named as an unindicted coconspirator in an indictment of another person for such a crime, which indictment resulted in the conviction of such other person, he or she was not prosecuted for such crime or conspiracy therefor.
(f) "Participant" means any person eligible for or receiving any benefit under a retirement plan on account of his or her service as an officer or employee for a public employer.
(g) "Public employer" means the State of West Virginia and any political subdivision, agency or instrumentality thereof for which there is established a retirement plan.
(h) "Supervisory board" or "Board" means the board of trustees of the West Virginia Public Employees Retirement System Consolidated Public Retirement Board; the board of trustees of any municipal retirement fund; the board of trustees of any policemen's or firemen's retirement plan; the retirement board of the West Virginia State Police; the state treasurer, state auditor and one other member of the board of public works so designated by the Governor to sit on the supervisory board of the judges' retirement plan (who shall for the purpose of this article constitute the board); the designated members of the state teachers retirement system established pursuant to section five, article seven-a, chapter eighteen of this code; the governing board of any supplemental retirement plan instituted pursuant to authority granted by section four-a, article twenty-three, chapter eighteen of this code, and any other board, commission or public body having
the duty to supervise and operate any retirement plan.

§5-10A-3. Notice of intention to terminate benefits; waiver; failure to reply.

(a) Whenever a supervisory board, upon receipt of a verified complaint or otherwise, has reasonable cause to believe that a participant rendered less than honorable service as defined in section two of this article, it shall notify the affected participant or beneficiary that it believes that the participant rendered less than honorable service and that the participant or beneficiary is thereby ineligible to receive benefits. No supervisory board shall may issue such a notice:
(1) If more than one year has two years have elapsed since the judgment of conviction upon which such the notice is based became final; or
(2) In cases described in paragraph (3), subdivision subsection (e), section two of this article, if more than one year has two years have elapsed since, as the case may be: the plea bargaining agreement, or the grant of immunity, or, in the event the participant was named as an unindicted coconspirator for a crime, the conviction of another person for such crime; or
(3) With respect to conduct which occurred prior to the effective date of this article.
(b) The notice shall contain a concise statement of the reasons why the Board believes that the participant rendered less than honorable service and shall be made either by personal service or by certified mail, return receipt requested, to the address which the participant or beneficiary maintains for purposes of corresponding with the Board. If notice is made by certified mail, service shall be deemed considered complete upon mailing and a completed receipt shall constitute proof proofs of the receipt thereof of the notice. The notice shall inform the participant or beneficiary that he or she has the right to demand that the Board seek a determination in circuit court of his or her eligibility for benefits and membership in the retirement plan by notifying the Board of such the demand within forty days. The notice shall also inform the participant or beneficiary that the Board will terminate the benefits in accordance with section four of this article and refund the participant's contributions with interest less benefits previously paid as provided in section six thereof if the participant or beneficiary either waives the right to demand that the Board take the matter before the circuit court or fails to respond to the Board's notice within forty days after service.
§5-10A-11. Notification from prosecuting attorneys.
The prosecuting attorneys of the counties of this state shall, within sixty days of a conviction or a plea agreement meeting the definition of less than honorable service, report the conviction or plea agreement to the executive director of the Board, including with the report the indictment, plea agreement and any order finding the defendant guilty.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 14D. DEPUTY SHERIFF RETIREMENT SYSTEM ACT.
§7-14D-5. Members.

(a) Any deputy sheriff first employed by a county in covered employment after the effective date of this article shall be a member of this retirement system and plan and does not qualify for membership in any other retirement system administered by the Board, so long as he or she remains employed in covered employment.
(b) Any deputy sheriff employed in covered employment on the effective date of this article shall within six months of that effective date notify in writing both the county commission in the county in which he or she is employed and the Board, of his or her desire to become a member of the plan: Provided, That this time period is extended to the thirtieth day of January, one thousand nine hundred ninety-nine, in accordance with the decision of the Supreme Court of Appeals in West Virginia Deputy Sheriffs' Association, et al v. James L. Sims, et al, No. 25212: Provided, however, That any deputy sheriff employed in covered employment on the effective date of this article has an additional time period consisting of the ten-day period following the day after which the amended provisions of this section become law to notify in writing both the county commission in the county in which he or she is employed and the Board of his or her desire to become a member of the plan. Any deputy sheriff who elects to become a member of the plan ceases to be a member or have any credit for covered employment in any other retirement system administered by the Board and shall continue to be ineligible for membership in any other retirement system administered by the Board so long as the deputy sheriff remains employed in covered employment in this plan: Provided further, That any deputy sheriff who elects during the time period from the first day of July, one thousand nine hundred ninety-eight, to the thirtieth day of January, one thousand nine hundred ninety-nine, or who so elects during the ten-day time period occurring immediately following the day after the day the amendments made during the one thousand nine hundred ninety-nine legislative session become law, to transfer from the Public Employees Retirement System to the plan created in this article shall contribute to the plan created in this article at the rate set forth in section seven of this article retroactive to the first day of July, one thousand nine hundred ninety-eight. Any deputy sheriff who does not affirmatively elect to become a member of the plan continues to be eligible for any other retirement system as is from time to time offered to other county employees but is ineligible for this plan regardless of any subsequent termination of employment and rehire.
(c) Any deputy sheriff employed in covered employment on the effective date of this article who has timely elected to transfer into this plan as provided in subsection (b) of this section shall be given credited service at the time of transfer for all credited service then standing to the deputy sheriff's service credit in the Public Employees Retirement System regardless of whether the credited service (as that term is defined in section two, article ten, chapter five of this code) was earned as a deputy sheriff. All the credited service standing to the transferring deputy sheriff's credit in the Public Employees Retirement Fund System at the time of transfer into this plan shall be transferred into the plan created by this article, and the transferring deputy sheriff shall be given the same credit for the purposes of this article for all service transferred from the Public Employees Retirement System as that transferring deputy sheriff would have received from the Public Employees Retirement System as if the transfer had not occurred. In connection with each transferring deputy sheriff receiving credit for prior employment as provided in this subsection, a transfer from the Public Employees Retirement System to this plan shall be made pursuant to the procedures described in section eight of this article: Provided, That a member of this plan who has elected to transfer from the Public Employees Retirement System into this plan pursuant to subsection (b) of this section may not, after having transferred into and become an active member of this plan, reinstate to his or her credit in this plan any service credit relating to periods of nondeputy sheriff service which were withdrawn from the Public Employees Retirement System prior to his or her elective transfer into this plan.
(c) (d) Any deputy sheriff who was employed as a deputy sheriff prior to the effective date of this article, but was not employed as a deputy sheriff on the effective date of this article, shall become a member upon rehire as a deputy sheriff. For purposes of this section subsection, the member's years of service and credited service in the Public Employees Retirement System prior to the effective date of this article shall not be counted for any purposes under this plan unless: (1) The deputy sheriff has not received the return of his or her accumulated contributions in the Public Employees Retirement fund System pursuant to section thirty, article ten, chapter five of this code; or (2) the accumulated contributions returned to the member from the Public Employees Retirement System have been repaid pursuant to section thirteen of this article. If the conditions of subdivision (1) or (2) of this subsection are met, all years of the deputy sheriff's covered employment shall be counted as years of service for the purposes of this article. Each transferring deputy sheriff shall be given credited service for the purposes of this article for all covered employment transferred from the public employees retirement system regardless of whether the credited service (as that term is defined in section two, article ten, chapter five of this code) was earned as a deputy sheriff. All service in the public employees retirement system accrued by a transferring deputy sheriff shall be transferred into the plan created by this article and the transferring deputy sheriff shall be given the same credit for the purposes of this article for all covered service which is transferred from the public employees retirement system as that transferring deputy sheriff would have received from the public employees retirement system if the transfer had not occurred. In connection with each deputy sheriff receiving credit for prior employment provided in this subsection, a transfer from public employees retirement system to this plan shall be made pursuant to the procedures described in section eight of this article.
(d) (e) Once made, the election made under provided for in this section is irrevocable. All deputy sheriffs first employed after the effective date and deputy sheriffs electing to become members as described in this section shall be members as a condition of employment and shall make the contributions required by section seven of this article.
(e) (f) Notwithstanding any other provisions of this article, any individual who is a leased employee shall is not be eligible to participate in the plan. For purposes of this plan, a "leased employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or similar organization. If a question arises regarding the status of an individual as a leased employee, the Board has final power to decide the question.
§7-14D-7. Members' contributions; employer contributions.
(a) There shall be deducted from the monthly salary of each member and paid into the Fund an amount equal to eight and one-half percent of his or her monthly salary. Any active member who has concurrent employment in an additional job or jobs and the additional employment requires the deputy sheriff to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to article ten-d, chapter five of this code shall contribute to the fund the sum of eight and one-half percent of his or her monthly salary earned as a deputy sheriff as well as the sum of eight and one-half percent of his or her monthly salary earned from any additional employment which additional employment requires the deputy sheriff to be a member of another retirement which is administered by the Consolidated Public Retirement Board pursuant to article ten-d, chapter five of this code. An additional amount shall be paid to the Fund by the county commission of the county in which the member is employed in covered employment in an amount determined by the Board: Provided, That in no year may the total of the contributions provided for in this section, to be paid by the county commission, exceed ten and one-half percent of the total payroll for the members in the employ of the county commission for the preceding fiscal year. If the Board finds that the benefits provided by this article can be actually funded with a lesser contribution, then the Board shall reduce the required member or employer contributions or both. The sums withheld each calendar month shall be paid to the Fund no later than ten fifteen days following the end of the calendar month.
(b) Any active member who has concurrent employment in an additional job or jobs and the additional employment requires the deputy sheriff to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to article ten-d, chapter five of this code shall make an additional contribution to the Fund of eight and one-half percent of his or her monthly salary earned from any additional employment which requires the deputy sheriff to be a member of another retirement which is administered by the Consolidated Public Retirement Board pursuant to said article. An additional amount shall be paid to the Fund by the concurrent employer for which the member is employed in an amount determined by the Board: Provided, That in no year may the total of the contributions provided in this section, to be paid by the concurrent employer, exceed ten and one-half percent of the monthly salary of the employee. If the Board finds that the benefits provided by this article can be funded with a lesser contribution, then the Board shall reduce the required member or employer contributions or both. The sums withheld each calendar month shall be paid to the Fund no later than fifteen days following the end of the calendar month.
§7-14D-13. Refunds to certain members upon discharge or resignation; deferred retirement; forfeitures.

(a) Any member who terminates covered employment and is not eligible to receive disability benefits under this article is, by written request filed with the Board, entitled to receive from the Fund the member's accumulated contributions. Except as provided in subsection (b) of this section, upon withdrawal the member shall forfeit his or her accrued benefit and cease to be a member.
(b) Any member of this plan who withdraws accumulated contributions from either this plan or the public employees retirement system and thereafter becomes reemployed ceases employment in covered employment and active participation in this plan, and who thereafter becomes reemployed in covered employment shall may not receive any credited service for any prior withdrawn accumulated contributions from either this plan or the Public Employees Retirement System relating to the prior covered employment unless following his or her return to covered employment and active participation in this plan, the member redeposits in the fund this plan the amount of the withdrawn accumulated contributions submitted on salary earned while a deputy sheriff, together with interest on the accumulated contributions at the rate determined by the Board from the date of withdrawal to the date of redeposit. Upon repayment he or she shall receive the same credit on account of his or her former service in covered employment as if no refund had been made. The repayment authorized by this subsection shall be made in a lump sum within sixty months of the deputy sheriff's reemployment in covered employment or if later, within sixty months of the effective date of this article.
(c) A member of this plan who has elected to transfer from the Public Employees Retirement System into this plan pursuant to subsection (b), section five of this article may not, after having transferred into and become an active member of this plan, reinstate to his or her credit in this plan any service credit relating to periods of nondeputy sheriff service which were withdrawn from the Public Employees Retirement System plan prior to his or her elective transfer into this plan.
(c) (d) Every member who completes sixty months of covered employment is eligible, upon cessation of covered employment, to either withdraw his or her accumulated contributions in accordance with subsection (a) of this section, or to choose not to withdraw his or her accumulated contribution and to receive retirement income payments upon attaining normal retirement age.
(d) (e) Notwithstanding any other provision of this article, forfeitures under the plan shall not be applied to increase the benefits any member would otherwise receive under the plan.
§7-14D-23. Loans to members.
(a) A member who is not yet receiving disability or retirement income benefits from the plan may borrow from the plan no more than one time in any year an amount up to one half of his or her accumulated contributions, but not less than five hundred dollars nor more than eight thousand dollars: Provided, That the maximum amount of any loan shall not exceed the lesser of the following: (1) Eight thousand dollars; or (2) fifty percent of his or her accumulated contributions. No member is eligible for more than one outstanding loan at any time. No loan may be made from the plan if the Board determines that the loans constitute more than fifteen percent of the amortized cost value of the assets of the plan as of the last day of the preceding plan year. The Board may discontinue the loans any time it determines that cash flow problems might develop as a result of the loans. Each loan shall be repaid through monthly installments over periods of six through sixty months and carry interest on the unpaid balance and an annual effective interest rate that is two hundred basis points higher than the most recent rate of interest used by the Board for determining actuarial contributions levels: Provided, however, That interest charged shall be commercially reasonable in accordance with the provisions of Section 72(p)(2) of the Internal Revenue Code and federal regulations issued thereunder. Monthly loan payments shall be calculated to be as nearly equal as possible with all but the final payment being an equal amount. An eligible member may make additional loan payments or pay off the entire loan balance at any time without incurring any interest penalty. At the member's option, the monthly loan payment may include a level premium sufficient to provide declining term insurance with the plan as beneficiary to repay the loan in full upon the member's death. If a member declines the insurance and dies before the loan is repaid, the unpaid balance of the loan shall be deducted from the lump sum insurance benefits payable under section twenty-one of this article.
(b) A member with an unpaid loan balance who wishes to retire may have the loan repaid in full by accepting retirement income payments reduced by deducting from the actuarial reserve for the accrued benefit the amount of the unpaid balance and then converting the remaining of the reserve to a monthly pension payable in the form of the annuity desired by the member.
(c) The entire unpaid balance of any loan, and interest due thereon, shall at the option of the Retirement Board become due and payable without further notice or demand upon the occurrence with respect to the borrowing member of any of the following events of default: (1) Any payment of principal and accrued interest on a loan remains unpaid after the same they become due and payable under the terms of the loan or after such the grace period as may be established in the discretion of the Retirement Board; (2) the borrowing member attempts to make an assignment for the benefit of creditors of his or her benefit under the retirement system; or (3) any other event of default set forth in rules promulgated by the Board pursuant to the authority granted in section one, article ten-d, chapter five of this code: Provided, That any offset of an unpaid loan balance shall be made only at such time as the member is entitled to receive a distribution under the plan.
(d) Loans shall be evidenced by such form of obligations and shall be made upon such additional terms as to default, prepayment, security, and otherwise as the Retirement Board may determine.
(e) Notwithstanding anything herein in this section to the contrary, the loan program authorized by this section shall comply with the provisions of Sections 72(p)(2) and 401 of the Internal Revenue Code and the federal regulations issued thereunder. The Retirement Board is authorized to may: (a) Apply and construe the provisions of this section and administer the plan loan program in such a manner as to comply with the provisions of Sections 72(p)(2) and 401 of the Internal Revenue Code; (b) adopt plan loan policies or procedures consistent with these federal law provisions; and (c) take such any actions as it deems considers necessary or appropriate to administer the plan loan program created hereunder under this section in accordance with these federal law provisions. The Retirement Board is further authorized in connection with the plan loan program to take any actions that may at any time be required by the Internal Revenue Service regarding compliance with the requirements of Section 72(p)(2) or 401 of the Internal Revenue Code, notwithstanding any provision in this article to the contrary.
(f) Notwithstanding anything in this article to the contrary, the loan program authorized by this section shall not be available to any deputy sheriff who becomes a member of the Deputy Sheriff Retirement System on or after the first day of July, two thousand five.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.

ARTICLE 8. PENSION LIABILITY REDEMPTION.
§12-8-2. Declaration of policy; legislative findings; legislative intent.

The Legislature finds and declares that:
(a) The Legislature has established a number of pension systems, including the Death, Disability and Retirement Fund of the West Virginia State Police established in article two, chapter fifteen of this code; the Judges' Retirement System established in article nine, chapter fifty-one of this code; and the Teachers Retirement System established in article seven-a, chapter eighteen of this code, each of which is a trust for the benefit of the participating public employees.
(b) The supreme court of appeals of West Virginia has ruled that the Legislature is obligated to fund these pension systems on an actuarially sound basis and that pension system obligations are legitimate debts of the state.
(c) As a result of financial distress that occurred in the state during the 1980s, the death, disability and retirement fund of the West Virginia State Police, the judges' retirement system and the teachers retirement system each has a significant unfunded actuarial accrued liability which is being amortized over a term of years ending no later than two thousand thirty-four through annual appropriations in addition to amounts appropriated annually for the normal cost contribution to these pension systems.
(d) The supreme court of appeals has ruled that the unfunded actuarial accrued liability of pension systems is a public debt of the state that must be repaid.
(e) The unfunded actuarial accrued liability of each pension system is a previous liability of the state. The supreme court of appeals has held that the Legislature may choose to redeem a previous liability of the state through the issuance of bonds.
(f) This article provides for the redemption of the unfunded actuarial accrued liability of each pension system, which is a previous liability of the state, through the issuance of bonds for the purpose of: (i) Providing for the safety and soundness of the pension systems; and (ii) redeeming each such previous liability of the pension systems in order to realize realizing savings over the remaining term of the amortization schedules of the unfunded actuarial accrued liabilities and thereby achieve budgetary savings.
§12-8-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) "Bonds" means bonds, notes, refunding notes and bonds or other obligations of the state issued by the Governor pursuant to this article.
(2) "Consolidated Public Retirement Board" means the Board created to administer all public retirement plans in this state under article ten-d, of chapter five of this code and any board or agency that succeeds to the powers and duties of the Consolidated Public Retirement Board.
(3) "Costs" include, but are not limited to, amounts necessary to fund any capitalized interest funds and any reserve funds, any costs relating to the issuance and determination of the validity of the bonds, fees for obtaining bond insurance, credit enhancements or liquidity facilities, administrative costs, fees incurred pursuant to subsection (f), section five of this article and costs attributable to the agreements described in section six of this article.
(4) "Death, Disability and Retirement Fund" means the Death, Disability and Retirement Fund of the department of public safety West Virginia State Police created by article two, chapter fifteen of this code.
(5) "Department of Administration" means the Department established pursuant to article one, chapter five-a of this code and any board or agency that succeeds to the powers and duties of the Department of Administration.
(6) "Executive order" means an executive order issued by the Governor to authorize the issuance of bonds as provided in this article.
(7) "Investment Management Board" means the Board established under article six, chapter twelve of this code, and any board or agency that succeeds to the powers and duties of the Investment Management Board.
(8) "Judges' Retirement System" means the Judicial Retirement System created under article nine, chapter fifty-one of this code.
(9) "Obligation holders" means any holder or owner of any bond, any trustee or other fiduciary for any such holder, or any provider of a letter of credit, policy of bond insurance, surety, or other credit enhancement or liquidity facility or swap relating to any bond.
(10) "Pension Liability Redemption Fund" means the special account in the State Treasury created pursuant to subsection (a), section eight of this article.
(11) "Pension liability redemption payments" means: (a) The principal of, premium, if any, and interest on any outstanding bonds issued pursuant to this article; and (b) any other amounts required to be paid pursuant to the terms of any outstanding bonds, any indenture authorized pursuant to this article and any other agreement entered into between the Governor and any obligation holder.
(12) "Pension systems" means the Judges' Retirement System, the Death, Disability and Retirement Fund and the Teachers Retirement fund System.
(13) "Refund" or "refunding" means the issuance and sale of bonds the proceeds of which are used or are to be used for the payment, defeasance or redemption of outstanding bonds upon or prior to maturity.
(14) "Refunding bonds" means bonds issued for the payment, defeasance or redemption of outstanding bonds upon or prior to maturity.
(15)"Teachers Retirement System" means the retirement system established in article seven-a, chapter eighteen of this code.
(16) "True interest cost" means the interest rate that, when compounded at time intervals consistent with the structure of the bond issue and used to discount the payments of principal of and interest on the bonds, causes such discounted principal and interest payments to equal the purchase price of the bonds. To ensure that the costs of issuance of the bonds are included in the true interest cost, the costs of issuance shall be deducted from the purchase price of the bonds before calculating the interest rate.
(17) "Normal cost" means the value of benefits accruing for the current valuation year under the actuarial cost method.
(18) (17) "Actuarial cost method" means a mathematical process in which the cost of benefits projected to be paid after a period of active employment has ended is allocated over the period of active employment during which such the benefits are earned.
(19) (18) "Unfunded actuarial accrued liability" means the aggregate of the unfunded actuarial accrued liabilities of the pension systems, with the unfunded actuarial accrued liability of each pension system being calculated in an actuarial valuation report provided by the Consolidated Public Retirement Board to the Department of Administration pursuant to section four of this article.
(19) "West Virginia State Police Retirement System" means the retirement system established in article two-a, chapter fifteen of this code.
(20) "West Virginia Public Employees Retirement System" means the retirement system established in article ten, chapter five of this code.
(21) "West Virginia state-sponsored pension systems" means the pension systems as defined in subdivision (12) of this section, the West Virginia Public Employees Retirement System and the West Virginia State Police Retirement System.
§12-8-4. Issuance of bonds; determination of unfunded actuarial accrued liability.

(a) Notwithstanding any other provision of this code and pursuant to section four, article ten of the constitution of West Virginia, the The Governor shall have the power may, as provided by this article, to issue the bonds authorized in this section at a time or times as provided by a resolution adopted by the Legislature to redeem a previous liability of the state by funding fund all or a portion of the unfunded actuarial accrued liability, such the bonds to be payable from and secured by moneys deposited in the Pension Liability Redemption Fund. Any bonds issued pursuant to this article, other than refunding bonds, shall be issued no later than five years after the date of adoption of the resolution of the Legislature authorizing the issuance of the bonds referred to in this section.
(b) The aggregate principal amount of bonds issued pursuant to the provisions of this article is limited to no more than the lesser of the following: (1) The principal amount necessary, after deduction of costs, underwriter's discount and original issue discount, if any, to fund not in excess of one hundred percent of the unfunded actuarial accrued liability of the Death, Disability and Retirement Fund of the division of public safety West Virginia State Police established in article two, chapter fifteen of this code, one hundred percent of the unfunded actuarial accrued liability of the Judges' Retirement System established in article nine, chapter fifty-one of this code, and ninety-five percent of the unfunded actuarial accrued liability of the Teachers Retirement System established in article seven-a, chapter eighteen of this code, as certified by the Consolidated Public Retirement Board to the Department of Administration pursuant to subsection (e) of this section; or (2) three five billion nine five hundred million dollars; but in no event shall the aggregate principal amount of bonds issued exceed the principal amount necessary, after deduction of costs, underwriter's discount and original issue discount, if any, to fund not in excess of the total unfunded actuarial accrued liability, as certified by the Consolidated Public Retirement Board to the Department of Administration pursuant to subsection (e) of this section.
(c) The costs of issuance, excluding fees for ratings, bond insurance, credit enhancements and liquidity facilities, plus underwriter's discount and any other costs associated with the issuance shall not exceed, in the aggregate, the sum of one percent of the aggregate principal amount of bonds issued. All such costs shall be subject to the review and approval of a majority of the members of a review committee. The review committee shall consist of the state treasurer and four persons having skill and experience in bond issuance, appointed by the governor.
(d) The limitation on the aggregate principal amount of bonds provided in this section shall not preclude the issuance of bonds from time to time or in one or more series.
(e) No later than ten days after receipt of a request from the Department of Administration, the Consolidated Public Retirement Board shall provide the Department of Administration with a certified statement of the amount of each pension system's unfunded actuarial accrued liability calculated in an actuarial valuation report that establishes the amount of the unfunded actuarial accrued liability as of a date specified by the Department of Administration, based upon each pension system's most recent actuarial valuation as completed by the Consolidated Public Retirement Board.
(f) No later than fifteen days after receipt of a request from the Governor, the Department of Administration shall provide the Governor with a certification of the maximum aggregate principal amount of bonds that may be issued at that time pursuant to subsection (b) of this section.
(g) Prior to any request of the governor that the Legislature prepare and consider a resolution authorizing the issuance of bonds, the bonds shall be authorized by a majority of the members of the review committee described in subsection (c) of this section.
§12-8-5. Method of bond issuance; manner of sale of bonds; authority of Department of Administration.

(a) The governor shall, by executive message, request the Legislature prepare and consider a resolution authorizing the issuance of bonds described in section four of this article. The executive message shall specify the maximum costs associated with the issue. Upon the adoption of a resolution by the Legislature authorizing the issuance of the bonds in the amount and upon the terms specified in the resolution, the bonds shall be authorized by an executive order issued by the Governor. The executive order shall be received by the Secretary of State and filed in the State Register pursuant to section three, article two, chapter twenty-nine-a of this code. The Governor, either in the executive order authorizing the issuance of the bonds or by the execution and delivery by the Governor of a trust indenture or agreement authorized in such the executive order, shall stipulate the form of the bonds, whether the bonds are to be issued in one or more series, the date or dates of issue, the time or times of maturity, which shall not exceed the longest remaining term of the current amortization schedules for the unfunded actuarial accrued liability, the rate or rates of interest payable on the bonds, which may be at fixed rates or variable rates and which interest may be current interest or may accrue, the denomination or denominations in which the bonds are issued, the conversion or registration privileges applicable to some or all of the bonds, the sources and medium of payment and place or places of payment, the terms of redemption, any privileges of exchangeability or interchangeability applicable to the bonds, and the entitlement of obligation holders to priorities of payment or security in the amounts deposited in the pension liability redemption fund. Bonds shall be signed by the Governor and attested by the Secretary of State, by either manual or facsimile signatures. The Governor shall not sign the bonds unless he shall first make a written finding, which shall be transmitted to the state treasurer, the Secretary of State, the speaker of the House of Delegates and the president of the Senate, that: (i) The true interest cost of the bonds is at least thirty basis points less than the assumed actuarial interest rate used to calculate the unfunded actuarial accrued liability; and (ii) that the issuance of the bonds will not in any manner cause a down grade or reduction in the state's general obligation credit rating by standard bond rating agencies.
(b) The bonds may be sold at public or private sale at a price or prices determined by the Governor. The Governor is authorized to may enter into any agreements necessary or desirable to effectuate the purposes of this section, including agreements to sell bonds to any person and to comply with the laws of any jurisdiction relating thereto.
(c) The Governor, in the executive order authorizing the issuance of bonds or by the execution and delivery by the Governor of a trust indenture or agreement authorized in such the executive order, may covenant as to the use and disposition of or pledge of funds made available for pension liability redemption payments or any reserve funds established pursuant to such the executive order or established pursuant to any indenture authorized by such the executive order. All costs may be paid by or upon the order of the Governor from amounts received from the proceeds of the bonds and from amounts received pursuant to section eight of this article.
(d) Bonds may be issued by the Governor upon resolution adopted by the Legislature authorizing the same.
(e) Neither the Governor, the Secretary of State nor any other person executing or attesting the bonds or any agreement authorized in this article shall be are personally liable with respect to payment of any pension liability redemption payments.
(f) (e) Notwithstanding any other provision of this code, and subject to the approval of the review committee, the Department of Administration, in the Department's discretion: (i) Shall select, employ and compensate one or more persons or firms to serve as bond counsel or cobond counsel who shall be responsible for the issuance of a final approving opinion regarding the legality of the bonds issued pursuant to this article; (ii) may select, employ and compensate one or more persons or firms to serve as underwriter or counderwriter for any issuance of bonds pursuant to this article; and (iii) may select, employ and compensate one or more fiduciaries, financial advisors and experts, other legal counsel, placement agents, appraisers, actuaries and such any other advisors, consultants and agents as may be necessary to effectuate the purposes of this article. Notwithstanding the provisions of article three, chapter five of this code, bond counsel may represent the state in court, render advice and provide other legal services as may be requested by the Governor or the Department of Administration regarding any bond issuance pursuant to this article and all other matters relating to the bonds.
(g) Notwithstanding any other provision of this code, and subject to the approval of the review committee, the state treasurer, in the state treasurer's discretion shall select, employ and compensate an independent person or firm to serve as special counsel to the state treasurer to advise the state treasurer with respect to the state treasurer's duties pursuant to this article.
§12-8-6. Contracts with obligation holders; provisions of bonds and trust indentures and other agreements.

(a) The Governor may enter into contracts with obligation holders and the Governor shall have the authority to comply fully with the terms and provisions of any contracts made with obligation holders.
(b) In addition and not in limitation to the other provisions of this section, in connection with any bonds issued pursuant to this article, the Governor may enter into: (i) Commitments to purchase or sell bonds and bond purchase or sale agreements; (ii) agreements providing for credit enhancement or liquidity, including revolving credit agreements, agreements establishing lines of credit or letters of credit, insurance contracts, surety bonds and reimbursement agreements; (iii) agreements to manage interest rate exposure and the return on investments, including interest rate exchange agreements, interest rate cap, collar, corridor, ceiling and floor agreements, option, rate spread or similar exposure agreements, float agreements and forward agreements; (iv) stock exchange listing agreements; and (v) any other commitments, contracts or agreements approved by the Governor.
(c) The Governor may covenant as to the bonds to be issued and as to the issuance of such the bonds, in escrow or otherwise, provide for the replacement of lost, destroyed or mutilated bonds, covenant against extending the time for the payment of bonds or interest thereon on the bonds and covenant for the redemption of bonds and provide the terms and conditions of such the redemption.
(d) Except as otherwise provided in any executive order or in this article, the terms of the executive order and of this article in effect on the date the bonds are issued shall constitute a contract between the state and obligation holders. Any representation, warranty or covenant made by the Governor in the executive order, any indenture of trust or trust agreement authorized by the executive order, any bond or any other contract entered into pursuant to this article with any obligation holder shall be a representation, warranty or covenant made by the state.
(e) The Governor may vest in the obligation holders, or any portion of them, the right to enforce the payment of the bonds or agreements authorized in this article or any covenants securing or relating to the bonds or such the agreements. The Governor may prescribe the procedure, if any, by which the terms of any contract with obligation holders may be supplemented, amended or abrogated, prescribe which supplements or amendments will require the consent of obligation holders and the portion of obligation holders required to effect such the consent and prescribe the manner in which such the consent may be given.
§12-8-7. Proceeds from the sale of bonds.
(a) The proceeds from the sale of bonds, other than refunding bonds, issued pursuant to this article, after payment of any costs payable at time of issuance of such the bonds, shall be paid to the Consolidated Public Retirement Board to redeem the unfunded actuarial accrued liability, which is a previous liability of the state, by funding fund the amount of the unfunded actuarial accrued liability for the pension systems provided for by such the bonds.
(b) From time to time Prior to the time of issuance, when requested by the Department of Administration, the Investment Management Board shall prepare and submit to the Governor, the Speaker of the House of Delegates, the President of the Senate and the Department of Administration the short-term and long-term investment strategies that the Investment Management Board intends to follow for investment of the plan assets of the pension systems, as adjusted by the deposit of the proceeds of bonds issued pursuant to this article and section six, article X of the Constitution of West Virginia.
(c) Commencing with the fiscal year following the fiscal year during which a series of bonds is issued under this article and the proceeds thereof are deposited into the applicable pension systems, annual appropriations by the state into the teachers retirement pension system required under other provisions of this code shall equal the amount necessary to pay the normal cost and the scheduled payment of the remaining unfunded actuarial accrued liability, if any, of such pension system: Provided, That if such amount in any one fiscal year is less than the members' required contributions to such plan, as expressed as a percentage of members' payroll, the state shall deposit into the pension liability redemption fund an amount expressed as a percentage of members' payroll, representing the difference between what the state contributes to such plan, expressed as a percentage of members' payroll, and what the members contribute to the plan, expressed as a percent of members' payroll.
§12-8-8. Continuation of Pension Liability Redemption Fund; disbursements to pay pension liability redemption payments.

(a) There is hereby created continued a special account in the State Treasury to be administered by the State Treasurer, which shall be is designated and known as the "Pension Liability Redemption Fund", into which shall be deposited any and all amounts appropriated by the Legislature or funds from any other source whatsoever which are made available by law for the purpose of making pension liability redemption payments. All funds deposited to the credit of the Pension Liability Redemption Fund shall be held in a separate account and all money belonging to the Fund shall be deposited in the State Treasury to the credit of the Pension Liability Redemption Fund.
(b) On or before the first day of November of each year, the Department of Administration shall certify to the Governor and the State Treasurer and deliver to the Speaker of the House of Delegates and the President of the Senate a certification as to the amount of pension liability redemption payments to be appropriated for the next fiscal year in order to pay in full when due all pension liability redemption payments that will become due during the next fiscal year. Such The certification shall include the amount and due date of each such pension liability redemption payment. All moneys appropriated by the Legislature in accordance with a certification made pursuant to this subsection shall be deposited into the Pension Liability Redemption Fund.
(c) The State Treasurer shall pay to the trustee under the trust indenture or agreement executed by the Governor all pension liability redemption payments as and when due. Such The payments shall be transferred by electronic funds transfer, unless some other manner of funds transfer is specified by the Governor. No payments shall be required for bonds that are defeased or bonds for which a deposit sufficient to provide for all payments on the bonds has been made.
(d) There shall be created within the Pension Liability Redemption Fund a subaccount into which there shall be deposited annually by the legislature an amount not greater than the aggregate amount certified by each system's actuary to represent the difference between the pension liability redemption payments and the annual amortization payments on the unfunded actuarial accrued liability that would have been due for such fiscal year had the bonds issued pursuant to this article not been issued. Upon resolution passed by the Legislature, the Governor shall use funds on deposit in the subaccount in the amount and upon the terms specified in the resolution: (1) To reduce any remaining unfunded actuarial accrued liability; or (2) to provide for the early retirement of the bonds if possible.
§12-8-10. State pledges and covenants.
(a) The State of West Virginia covenants and agrees with the obligation holders, and the indenture shall so state, that the bonds issued pursuant to this article are issued to redeem a previous liability of the state and shall therefore constitute a direct and general obligation of the State of West Virginia; that the pension liability redemption payments will be included in each budget along with all other amounts for payment and discharge of the principal of and interest on state debt; that the full faith and credit of the state is hereby pledged to secure the payment of the principal of and interest on the bonds; and that annual state taxes shall be collected in an amount sufficient to pay the pension liability redemption payments as they become due and payable from the Pension Liability Redemption Fund.
(b) The state hereby pledges and covenants with the obligation holders, and the indenture shall so state, that the state will not limit or alter the rights, powers or duties vested in any state official, or that state official's successors or assigns, and the obligation holders in a way that will inhibit any state official, or that state official's successors or assigns, from carrying out such the state official's rights, powers or duties under this article, nor limit or alter the rights, powers or duties of any state official, or that state official's successors or assigns, in any manner which would jeopardize the interest of any obligation holder, or inhibit or prevent performance or fulfillment by any state official, or that state official's successors or assigns, with respect to the terms of any agreement made with any obligation holder pursuant to section six of this article.
(c) The state hereby pledges and covenants with the obligation holders, and the indenture shall so state, that, while any of the bonds are outstanding, should any increase of existing benefits or the creation of new benefits under any of the pension systems, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, cause any additional unfunded actuarial accrued liability in any of the pension systems (calculated in an actuarially sound manner) during any fiscal year, such additional unfunded actuarial accrued liability of that pension system will be fully amortized over no more than the five consecutive fiscal years following the date the increase in benefits or new benefits become effective.
(d) The state hereby pledges and covenants with the obligation holders, and the indenture shall so state, that, while any of the bonds are outstanding, should any additional unfunded actuarial accrued liability in any of the pension systems (calculated in an actuarially sound manner) occur during any fiscal year due to changes in actuarial assumptions, changes in investment performance or increases in benefits or additional benefits occurring by operation of law in effect on the effective date of this article, and such additional unfunded actuarial accrued liability persists for a period of five consecutive fiscal years, the governor shall submit to the Legislature a plan to fund such additional unfunded actuarial accrued liability over a reasonable period.
(c) The state hereby pledges and covenants with the obligation holders, and the indenture shall state, that, while any of the bonds are outstanding, any changes in unfunded actuarial accrued liability in any of the West Virginia state-sponsored pension systems resulting from the actual experience for that system occurring during any fiscal year due to net differences between the expected and actual experience for that year will be fully amortized over no more than the ten consecutive fiscal years following the date the Consolidated Public Retirement Board certifies the net actuarial gain or loss to the Governor. The certification shall be made on or before the thirty-first day of January of each year. The net actuarial gain or loss for the fiscal year shall be determined from the actuarial valuation authorized by the Consolidated Public Retirement Board for each plan completed at as of the first day of the following fiscal year. Following the receipt of the certification of net actuarial gain or loss, the Governor shall submit the amount of the amortization payment or credit each year for the pension systems as part of the annual budget submission or in an executive message to the Legislature. The Consolidated Public Retirement Board shall include the ten-year amortization in the determination of the adequacy of the employer contribution percentage for the West Virginia Public Employees Retirement System and West Virginia State Police Retirement System.
(d) The state hereby pledges and covenants with the obligation holders, and the indenture shall state, that, while any of the bonds are outstanding, if the unfunded actuarial accrued liability of any of the West Virginia state-sponsored pension systems increases or decreases due to changes in actuarial assumptions adopted by the Consolidated Public Retirement Board for completion of the annual actuarial valuation for any plan, the change shall be fully amortized over no more than the ten consecutive fiscal years following the date the Consolidated Public Retirement Board certifies the net change due to changes in assumptions to the Governor. The certification shall be made on or before the thirty- first day of January of each year. Following the receipt of the certification of change due to changes in actuarial assumptions, the Governor shall submit the amount of the amortization payment each year for the pension systems as part of the annual budget submission or in an executive message to the Legislature. The Consolidated Public Retirement Board shall include the ten-year amortization in the determination of the adequacy of the employer contribution percentage for the Public Employees Retirement System and West Virginia State Police Retirement System.
(e) The state hereby pledges and covenants with the obligation holders, and the indenture shall state, that, while any of the bonds are outstanding: (1) The state will not increase any existing benefits or create any new benefits for any retirees or beneficiaries currently receiving monthly benefit payments from any of the West Virginia state-sponsored pension systems, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, in an amount that would exceed more than one percent of the accrued actuarial liability of the system as of the last day of the preceding fiscal year as determined in the annual actuarial valuation for each plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature; and (2) if any increase of existing benefits or creation of new benefits for any retirees or beneficiaries currently receiving monthly benefit payments under any of the West Virginia state-sponsored pension systems, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, causes any additional unfunded actuarial accrued liability in any of the West Virginia state-sponsored pension systems as calculated in the annual actuarial valuation for each plan during any fiscal year, the additional unfunded actuarial accrued liability of that pension system will be fully amortized over no more than the five consecutive fiscal years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. Following the receipt of the certification of additional actuarial accrued liability, the Governor shall submit the amount of the amortization payment each year for the pension systems as part of the annual budget submission or in an executive message to the Legislature. The Consolidated Public Retirement Board shall include the five-year amortization in the determination of the adequacy of the employer contribution percentage for the West Virginia Public Employees Retirement System and West Virginia State Police Retirement System.
(f) The state hereby pledges and covenants with the obligation holders, and the indenture shall state, that, while any of the bonds are outstanding that the computation of annuities or benefits for active members due to retirement, death or disability as provided for in the pension systems shall not be amended in any manner that increases any existing benefits or provides for new benefits.
(g) The state hereby pledges and covenants with the obligation holders, and the indenture shall state, that, while any of the bonds are outstanding, the state will not increase any existing benefits or create any new benefits for active members due to retirement, death or disability of the West Virginia Public Employees Retirement System or the West Virginia State Police Retirement System unless the actuarial accrued liability of the plan is at least eighty-five percent funded as of the last day of the prior fiscal year as determined in the actuarial valuation for the plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature. Any additional unfunded actuarial accrued liability due to any improvement in active members benefits shall be fully amortized over not more than ten years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. The Consolidated Public Retirement Board shall include the ten-year amortization in the determination of the adequacy of the employer contribution percentage for the West Virginia Public Employees Retirement System and West Virginia State Police Retirement System.
§12-8-15. Operation of article.
Notwithstanding the effective date of this act of the Legislature, this article shall not become operational and shall have no force and effect until the day the people ratify an amendment to the Constitution of this state authorizing pension obligation bonds.
CHAPTER 15. PUBLIC SAFETY.

ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-25b. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(a) "Board" means the Consolidated Public Retirement Board created pursuant to article ten-d, chapter five of this code.
(b) "Department" means the West Virginia State Police.
(c) "Fund", "plan" or "system" means the West Virginia Death, Disability and Retirement Fund.
(d) "Law-enforcement officer" means an individual employed or otherwise engaged in either a public or private position which involves the rendition of services relating to enforcement of federal, state or local laws for the protection of public or private safety, including, but not limited to, positions as deputy sheriffs, police officers, marshals, bailiffs, court security officers or any other law-enforcement position which requires certification, but excluding positions held by elected sheriffs or appointed chiefs of police whose duties are determined by the Board to be purely administrative in nature.
(e) "Member" means an employee of the West Virginia State Police who is an active participant in the fund.
(f) "Partially disabled" means a member's inability, on a probable permanent basis, to perform the essential duties of a law-enforcement officer by reason of any medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months, but which impairment does not preclude the member from engaging in other types of nonlaw-enforcement employment.
(g) "Physical or mental impairment" means an impairment that results from an anatomical, physiological or psychological abnormality that is demonstrated by medically accepted clinical and laboratory diagnostic techniques.
(h) "Totally disabled" means a member's probable permanent inability to engage in substantial gainful activity by reason of any medically determined physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. For purposes of this subsection, a member is totally disabled only if his or her physical or mental impairments are so severe that he or she is not only unable to perform his or her previous work as a member of the Department but also cannot, considering his or her age, education and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (1) The work exists in the immediate area in which the member lives; (2) a specific job vacancy exists; or (3) the member would be hired if he or she applied for work.
§15-2-26. Continuation of Death, Disability and Retirement Fund; designating the Consolidated Public Retirement Board as administrator of Fund.

(a) There shall be is continued the Death, Disability and Retirement Fund heretofore created for the benefit of members of the division of public safety Department and any dependent of a retired or deceased member thereof of the Department.
(b) There shall be deducted from the monthly payroll of each member of the division of public safety Department and paid into such the Fund six percent of the amount of his or her salary: Provided, That beginning on the first day of July, one thousand nine hundred ninety-four, there shall be deducted from the monthly payroll of each member and paid into the Fund seven and one-half percent of the amount of his or her salary: Provided, however, That on and after the first day of July, one thousand nine hundred ninety-five, there shall be deducted from the monthly payroll of each member and paid into the Fund nine percent of the amount of his or her salary. An additional twelve percent of the monthly salary of each member of the division Department shall be paid by the State of West Virginia monthly into such the fund out of the annual appropriation for the division Department: Provided further, That beginning on the first day of July, one thousand nine hundred ninety-five, the state shall pay thirteen percent of the monthly salary of each member into the Fund: And provided further, That beginning on the first day of July, one thousand nine hundred ninety-six, the state shall pay fourteen percent of the monthly salary of each member into the Fund: And provided further, That on and after the first day of July, one thousand nine hundred ninety-seven, the state shall pay fifteen percent of the monthly salary of each member into the Retirement Fund. There shall also be paid into the Fund amounts that have previously been collected by the Superintendent of the division of public safety Department on account of payments to members for court attendance and mileage, rewards for apprehending wanted persons, fees for traffic accident reports and photographs, fees for criminal investigation reports and photographs, fees for criminal history record checks, fees for criminal history record reviews and challenges or from any other sources designated by the Superintendent. All moneys payable into the Fund shall be deposited in the State Treasury and the Treasurer and Auditor shall keep a separate account thereof on their respective books.
(c) Notwithstanding any other provisions of this article, forfeitures under the Fund shall not be applied to increase the benefits any member would otherwise receive under the Fund.
(d) The moneys in this Fund, and the right of a member to a retirement allowance, to the return of contributions, or to any benefit under the provisions of this article, are hereby exempt from any state or municipal tax; shall not be subject to execution, garnishment, attachment or any other process whatsoever, with the exception that the benefits or contributions under the Fund shall be subject to "qualified domestic relations orders" as that term is defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans; and shall be unassignable except as is provided in this article. The Death, Disability and Retirement Fund shall be administered by the Consolidated Public Retirement Board created pursuant to article ten-d, chapter five of this code.
(e) All moneys paid into and accumulated in the Death, Disability and Retirement Fund, except such amounts as shall be designated or set aside by the awards, shall be invested by the State Board of Investments as provided by law.
§15-2-27. Retirement; awards and benefits; leased employees.
(a) The Retirement Board shall retire any member of the division of public safety Department when the member has both attained the age of fifty-five years and completed twenty-five years of service as a member of the division Department, including military service credit granted under the provisions of section twenty-eight of this article.
(b) The Retirement Board shall retire any member of the division of public safety Department who has lodged with the secretary Executive Director of the Consolidated Public Retirement Board his or her voluntary petition in writing for retirement, and:
(1) Has or shall have completed twenty-five years of service as a member of the division Department (including military service credit granted under the provisions of section twenty-eight of this article);
(2) Has or shall have attained the age of fifty years and has or shall have completed twenty years of service as a member of the division Department (excluding military service credit granted under section twenty-eight of this article); or
(3) Being under the age of fifty years has or shall have completed twenty years of service as a member of the division Department (excluding military service credit granted under section twenty-eight of this article.)
(c) When the Retirement Board retires any member under any of the provisions of this section, the Board shall, by order in writing, make an award directing that the member shall be is entitled to receive annually and that there shall be paid to the member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of the member while in status of retirement, one or the other of two amounts, whichever is the greater:
(1) An amount equal to five and one-half percent of the aggregate of salary paid to the member during the whole period of service as a member of the division of public safety Department; or
(2) The sum of six thousand dollars.
When a member has or shall have served twenty years or longer but less than twenty-five years as a member of the division Department and shall be is retired under any of the provisions of this section before he or she shall have has attained the age of fifty years, payment of monthly installments of the amount of retirement award to such the member shall commence on the date he or she attains the age of fifty years. Beginning on the fifteenth day of July, one thousand nine hundred ninety-four, in no event may the provisions of section thirteen, article sixteen, chapter five of this code be applied in determining eligibility to retire with either immediate or deferred commencement of benefit.
(d) Any individual who is a leased employee shall is not be eligible to participate in the Fund. For purposes of this Fund, a "leased employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or other similar organization. If a question arises regarding the status of an individual as a leased employee, the Board has final power to decide the question.
§15-2-27a. Retirement annual annuity adjustments.
(a) Every member of the division of public safety Department who is fifty-five years of age or older and who is retired by the Retirement Board under the provisions of section twenty-seven of this article; every member of the division of public safety Department who is retired by the Retirement Board under the provisions of section twenty-nine or thirty of this article; and every surviving spouse or other beneficiary receiving a benefit pursuant to section thirty-three or thirty-four of this article, is eligible to receive an annual retirement annuity adjustment equal to three and seventy-five hundredths percent of his or her retirement award or surviving spouse award: Provided, That for any person retiring on and after the fifteenth day of September, one thousand nine hundred ninety-four, the annual retirement annuity adjustment shall be equal to two percent of his or her retirement award or award paid to a surviving spouse or other beneficiary. Such The adjustments may not be retroactive. Yearly adjustments shall begin upon the first day of July of each year. The annuity adjustments shall be awarded and paid to the members from the Death, Disability and Retirement Fund in equal monthly installments while the member is in status of retirement. The annuity adjustments shall supplement the retirement awards and benefits as provided in this article.
(b) Any member or beneficiary who receives a benefit pursuant to the provisions of section twenty-nine, thirty, thirty-three or thirty-four of this article shall begin to receive the annual annuity adjustment one year after the commencement of the benefit on the next July first: Provided, That if the member has been retired for less than one year when the first annuity adjustment is given on that July first, that first annuity adjustment will be a pro rata share of the full year's annuity adjustment.
§15-2-28. Credit toward retirement for member's prior military service; credit toward retirement when member has joined armed forces in time of armed conflict; qualified military service.

(a) For purposes of this section, the term "active military duty" means full-time active duty with the armed forces of the United States, namely, the United States Air Force, Army, Coast Guard, Marines or Navy; and service with the National Guard or reserve military forces of any of such armed forces when the member has been called to active full-time duty and has received no compensation during the period of such duty from any person other than the armed forces.
(b) Any member of the Department who has previously served on active military duty shall be is entitled to and shall receive credit on the minimum period of service required by law for retirement pay from the service of the department of public safety West Virginia State Police under the provisions of this article for a period equal to the active military duty not to exceed five years, subject to the following:
(1) That he or she has been honorably discharged from the armed forces;
(2) That he or she substantiates by appropriate documentation or evidence his or her period of active military duty;
(3) That he or she is receiving no benefits from any other retirement system for his or her active military duty; and
(4) That, except with respect to disability retirement pay awarded under section thirty of this article, he or she has actually served with the Department for twenty years exclusive of his or her active military duty.
(c) The amount of retirement pay to which any such member is entitled shall be calculated and determined as if he or she had been receiving for the period of his or her active military duty a monthly salary from the Department equal to the average monthly salary which he or she actually received from the Department for his or her total service with the Department exclusive of the active military duty. The Superintendent is authorized to shall transfer and pay into the Death, Disability and Retirement Fund from moneys appropriated for the Department, a sum equal to eighteen percent of the aggregate of the salaries on which the retirement pay of all such members has been calculated and determined for their periods of active military duty. In addition, any person who, while a member of the Department was commissioned, enlisted or inducted into the armed forces of the United States or, being a member of the reserve officers' corps, was called to active duty in said the armed forces between the first day of September, one thousand nine hundred forty, and the close of hostilities in World War II, or between the twenty-seventh day of June, one thousand nine hundred fifty, and the close of the armed conflict in Korea on the twenty-seventh day of July, one thousand nine hundred fifty-three, between the first day of August, one thousand nine hundred sixty-four, and the close of the armed conflict in Vietnam, or during any other period of armed conflict by the United States whether sanctioned by a declaration of war by the Congress or by executive or other order of the President, shall be is entitled to and shall receive credit on the minimum period of service required by law for retirement pay from the service of the department of public safety West Virginia State Police for a period equal to the full time he or she has or shall, pursuant to such the commission, enlistment, induction or call, have served with said the armed forces subject to the following:
(1) That he or she has been honorably discharged from the armed forces;
(2) That within ninety days after honorable discharge from the armed forces he or she has presented himself or herself to the Superintendent and offered to resume service as an active member of the Department; and
(3) That he or she has made no voluntary act, whether by reenlistment, waiver of discharge, acceptance of commission or otherwise, to extend or participate in extension of the period of service with the armed forces beyond the period of service for which he or she was originally commissioned, enlisted, inducted or called.
(d) That amount of retirement pay to which any such member shall be is entitled shall be calculated and determined as if the member has continued in the active service of the Department at the rank or grade to him or her appertaining at the time of such the commission, induction, enlistment or call, during a period coextensive with the time the member served with the armed forces pursuant to the commission, induction, enlistment or call. The Superintendent of the Department is authorized to shall transfer and pay each month into the Death, Disability and Retirement Fund from moneys appropriated for the Department a sum equal to eighteen percent of the aggregate of salary which all such members would have been entitled to receive had they continued in the active service of the Department during a period coextensive with the time such the members served with the armed forces pursuant to the commission, induction, enlistment or call: Provided, That the total amount of military service credit allowable under this section shall not exceed five years.
(e) Notwithstanding any of the preceding provisions of this section, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this section, "qualified military service" has the same meaning as in Section 414(u) of the Internal Revenue Code. The Retirement Board is authorized to may determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the Retirement Board in section one, article ten-d, chapter five of this code, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.
§15-2-29. Awards and benefits for disability -- Incurred in performance of duty.

(a) Any member of the division Department who has been or shall become physically or mentally permanently not yet entered retirement status on the basis of age and service and who becomes partially disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the services required of members of the division Department and incurred pursuant to or while such the member was or shall be engaged in the performance of his or her duties as a member of the division Department shall, if, in the opinion of the Retirement Board, he or she is by reason of such that cause probably permanently unable to perform adequately the duties required of him or her as a member of the division Department, but is able to engage in any other gainful employment in a field other than law enforcement, be retired from active service by the Retirement Board. The member thereafter shall be is entitled to receive annually and there shall be paid to such the member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of such the member; or until the member attains the age of fifty; or until such the disability shall sooner terminate terminates, one or the other of two amounts, whichever is greater:
(1) An amount equal to two thirds of the salary received in the preceding twelve-month employment period: Provided, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
(b) Upon attaining age fifty, the member shall receive the benefit provided for in subsection (c), section twenty-seven of this article as it would apply to his or her aggregate career earnings from the division Department through the day immediately preceding his or her disability. The recalculation of benefit upon a member attaining age fifty shall be deemed considered to be a retirement under the provisions of section twenty-seven of this article, for purposes of determining the amount of annual annuity adjustment and for all other purposes of this article: Provided, That a member who is partially disabled under this article may not, while in receipt of benefits for partial disability, be employed as a law-enforcement officer: Provided, however, That a member retired on partial disability under this article may serve as an elected sheriff or appointed chief of police in the state without a loss of disability retirement benefits so long as the elected or appointed position is shown, to the satisfaction of the Board, to require the performance of administrative duties and functions only, as opposed to the full range of duties of a law-enforcement officer.
(c) If any member not yet in retirement status on the basis of age and service is found by the Board to be permanently and totally disabled as the result of a physical or mental impairment shall become permanently physically or mentally disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the services required of members of the division Department and incurred pursuant to or while such the member was or shall be engaged in the performance of his or her duties as a member of the division, to the extent that such member is or shall be incapacitated ever to engage in any gainful employment such Department, the member shall be is entitled to receive annually and there shall be paid to such the member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of such the member or until such the disability shall sooner terminate terminates, an amount equal to the amount of the salary received by the member in the preceding twelve-month employment period: Provided, That in no event may such the amount be less than fifteen thousand dollars per annum, unless required by section forty of this article: Provided, however, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit.
(c) (d) The Superintendent is authorized to may expend moneys from funds appropriated for the division Department in payment of medical, surgical, laboratory, X-ray, hospital, ambulance and dental expenses and fees, and reasonable costs and expenses incurred in the purchase of artificial limbs and other approved appliances which may be reasonably necessary for any member of the division Department who has or shall become becomes temporarily, permanently or totally disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the service required of members of the division Department and incurred pursuant to or while such member was or shall be engaged in the performance of duties as a member of the division Department. Whenever the Superintendent shall determine determines that any disabled member is ineligible to receive any of the aforesaid benefits at public expense, the Superintendent shall, at the request of such the disabled member, refer such the matter to the Consolidated Public Retirement Board for hearing and final decision. In no case will the compensation rendered to health care providers for medical and hospital services exceed the then current rate schedule in use by the Workers' Compensation Commission.
(d) (e) For the purposes of this section, the term "salary" does not include any compensation paid for overtime service.
§15-2-30. Same -- Due to other causes.
If any member while in active service of the division Department has, or shall in the opinion of the Retirement Board, become permanently partially or totally disabled to the extent that such the member cannot adequately perform the duties required of a member of the division Department from any cause other than those set forth in the preceding section and not due to vicious habits, intemperance or willful misconduct on his or her part, such the member shall be retired by the Retirement Board. Such The member shall be is entitled to receive annually and there shall be paid to such the member while in status of retirement, from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of such member or until such the disability shall sooner terminate terminates, a sum equal to one-half the salary received in the preceding twelve-month period: Provided, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit. If such the member, at the time of such retirement under the terms of this section, shall have has served twenty years or longer as a member of the division, such Department, the member shall be is entitled to receive annually and there shall be paid to such the member from the Death, Disability and Retirement Fund in equal monthly installments, commencing on the date such the member shall be is retired and continuing during the lifetime of such the member, until the member attains the age of fifty, while in status of retirement, an amount equal to one-half the salary received by the member in the preceding twelve-month period: Provided, however, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit.
For the purposes of this section, the term "salary" does not include any compensation paid for overtime service.
Upon attaining age fifty, the member shall receive the benefit provided for in subsection (c), section twenty-seven of this article as it would apply to his or her aggregate career earnings from the division Department through the day immediately preceding his or her disability. The recalculation of benefit upon a member attaining age fifty shall be deemed considered to be a retirement under the provisions of section twenty-seven of this article, for purposes of determining the amount of annual annuity adjustment and for all other purposes of this article.
§15-2-31. Same - Physical examinations; termination.

The Consolidated Public Retirement Board may require any member who has been or who shall be retired with compensation on account of disability to submit to a physical and/or mental examination by a physician or physicians selected or approved by the Board and cause all costs incident to such the examination including hospital, laboratory, X ray, medical and physicians' fees to be paid out of funds appropriated to defray the current expense of the division Department, and a report of the findings of such the physician or physicians shall be submitted in writing to the Consolidated Public Retirement Board for its consideration. If, from such the report or from such the report and hearing thereon on the report, the Retirement Board shall be is of opinion and find finds that such the disabled member shall have has recovered from such the disability to the extent that he or she is able to perform adequately the duties of a member of the division law-enforcement officer, the Board shall order such member to reassume active duty as a member of the division and thereupon that all payments from the Death, Disability and Retirement Fund shall be terminated. If, from the report or the report and hearing thereon on the report, the Board shall be is of the opinion and find finds that the disabled member shall have has recovered from the his or her previously determined probable permanent disability to the extent that he or she is able to engage in any gainful employment but remains unable to adequately perform the duties required as a member of the division of a law-enforcement officer, the Board shall order the payment, in monthly installments of an amount equal to two thirds of the salary, in the case of a member retired under the provisions of section twenty-nine of this article, or equal to one half of the salary, in the case of a member retired under the provisions of section thirty of this article, excluding any compensation paid for overtime service, for the twelve-month employment period preceding the disability: Provided, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit.
§15-2-31a. Application for disability benefit; determinations.
(a) Application for a disability benefit may be made by a member or, if the member is under an incapacity, by a person acting with legal authority on the member's behalf. After receiving an application for a disability benefit from a member or a person acting with legal authority on behalf of the member, the Board shall notify the Superintendent of the Department that an application has been filed: Provided, That when, in the judgment of the Superintendent, a member is no longer physically or mentally fit for continued duty as a member of the West Virginia State Police and the member has failed or refused to make application for disability benefits under this article, the Superintendent may petition the Board to retire the member on the basis of disability pursuant to rules which may be established by the Board. Within thirty days of the Superintendent's receipt of the notice from the Board or the filing of the Superintendent's petition with the Board, the Superintendent shall forward to the Board a statement certifying the duties of the member's employment, information relating to the Superintendent's position on the work relatedness of the member's alleged disability, complete copies of the member's medical file and any other information requested by the Board in its processing of the application, if this information is requested timely.
(b) The Board shall propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code relating to the processing of applications and petitions for disability retirement under this article.
(c) The Board shall notify a member and the Superintendent of its final action on the disability application or petition within ten days of the Board's final action. The notice shall be sent by certified mail, return receipt requested. If either the member or the Superintendent is aggrieved by the decision of the Board and intends to pursue judicial review of the Board's decision as provided in section four, article five, chapter twenty-nine-a of this code, the party so aggrieved shall notify the Board within twenty days of the member's or Superintendent's receipt of the Board's notice that they intend to pursue judicial review of the Board's decision.
(d) The Board may require a disability benefit recipient to file an annual statement of earnings and any other information required in rules which may be adopted by the Board. The Board may waive the requirement that a disability benefit recipient file the annual statement of earnings if the Board's physician certifies that the recipient's disability is ongoing. The Board shall annually examine the information submitted by the recipient. If a disability retirant refuses to file a statement and information, the disability benefit shall be suspended until the statement and information are filed.
§15-2-31b. Annual report on each employer's disability retirement experience.

Not later than the first day of January, two thousand six, and each first day of January thereafter, the Board shall prepare a report for the preceding fiscal year of the disability retirement experience of the State Police. The report shall specify the total number of disability applications submitted, the status of each application as of the last day of the fiscal year, total applications granted or denied, and the percentage of disability benefit recipients to the total number of State Police employees who are members of the Fund. The report shall be submitted to the Governor and the chairpersons of the standing committees of the Senate and House of Delegates with primary responsibility for retirement legislation.
§15-2-32. Retired member not to exercise police authority; retention of group insurance.

A member who has been or shall be is retired shall may not, while in retirement status, exercise any of the powers conferred upon active members by section twelve of this article; but shall be is entitled to receive free of cost to such the member and retain as his or her separate property one complete standard uniform prescribed by section nine of this article: Provided, That such the uniform may be worn by a member in retirement status only on such occasions as shall be prescribed by the Superintendent. The Superintendent is authorized to shall maintain at public expense for the benefit of all members in retirement status that group life insurance mentioned in section ten of this article. The Superintendent, when he shall be or she is of opinion that the public safety shall require, may recall to active duty during such any period as determined by the Superintendent shall determine, any member who shall be is retired under the provisions of section twenty-seven of this article, provided the consent of such the member to reassume duties of active membership shall first be had and obtained. When any member in retirement shall reassume resumes status of active membership such the member, during the period such the member shall remain remains in active status, shall is not be entitled to receive retirement pay or benefits, but in lieu thereof, shall be is entitled to receive that rate of salary and allowance pertinent to the rank or grade held by such the member when retired. When such the member shall be is released from active duty he or she shall reassume the status of retirement and shall thereupon be entitled to receive appropriate benefits as provided by this article: Provided, That the amount of such the benefits shall in no event be less than the amount determined by the order of the Retirement Board previously made in his or her behalf.
§15-2-33. Awards and benefits to dependents of member -- When member dies in performance of duty, etc.; dependent child scholarship and amount.

(a) The surviving spouse or the dependent child or children or dependent parent or parents of any member who has lost or shall lose loses his or her life by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or peculiar to the service required of members while such the member was or shall be is engaged in the performance of his or her duties as a member of the division Department, or if said the member shall die dies from any cause after having been retired pursuant to the provisions of section twenty-nine of this article, the surviving spouse or other dependent shall be is entitled to receive and shall be paid from the Death, Disability and Retirement Fund benefits as follows: To the surviving spouse annually, in equal monthly installments during his or her lifetime one or the other of two amounts, which shall become immediately available and which shall be the greater of:
(1) An amount equal to seven tenths of the salary received in the preceding twelve-month employment period by the deceased member: Provided, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
(b) In addition thereto such the surviving spouse shall be is entitled to receive and there shall be paid to such person the surviving spouse one hundred dollars monthly for each dependent child or children. If such the surviving spouse dies or if there is no surviving spouse, there shall be paid monthly to each such dependent child or children from the Death, Disability and Retirement Fund a sum equal to twenty-five percent of the surviving spouse's entitlement. If there are is no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the Death, Disability and Retirement Fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is but one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive.
(c) Any person qualified as a surviving dependent child under this section shall, in addition to any other benefits due under this or other sections of this article, be is entitled to receive a scholarship to be applied to the career development education of that person. This sum up to but not exceeding seven thousand five hundred dollars shall be paid from the Death, Disability and Retirement Fund to any university or college in this state or to any trade or vocational school or other entity in this state approved by the Board, to offset the expenses of tuition, room and board, books, fees or other costs incurred in a course of study at any of those institutions so long as the recipient makes application to the Board on an approved form and under such rules as provided by the Board may provide, and maintains scholastic eligibility as defined by the institution or the Board. The Board may by appropriate rules define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary and not inconsistent with this section.
(d) Awards and benefits for a member's surviving spouse or dependents received under any section or any of the provisions of this retirement system shall be in lieu of receipt of any such benefits for such those persons under the provisions of any other state retirement system. Receipt of benefits under any other state retirement system shall be in lieu of any right to receive any benefits under this retirement system, so that only a single receipt of retirement benefits shall occur occurs.
(e) For the purposes of this section, the term "salary" does not include any compensation paid for overtime service.
§15-2-34. Same -- When member dies from nonservice-connected causes.

(a) In any case where a member while in active service of the division Department, before having completed twenty years of service as a member of the division has died or shall die Department, dies from any cause other than those specified in this article and not due to vicious habits, intemperance or willful misconduct on his or her part, there shall be paid annually in equal monthly installments from said the Death, Disability and Retirement Fund to the surviving spouse of such the member during his or her lifetime, or until such time as said the surviving spouse remarries, a sum equal to one half of the salary received in the preceding twelve-month employment period by the deceased member: Provided, That if the member had not been employed with the division Department for twelve months prior to his or her death, the amount of monthly salary shall be annualized for the purpose of determining the benefit. Such The benefit shall become immediately available upon the death of the member. If there is no surviving spouse, or the surviving spouse dies or remarries, there shall be paid monthly to each dependent child or children, from the Death, Disability and Retirement Fund, a sum equal to twenty-five percent of the surviving spouse's entitlement. If there are is no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the Fund to the dependent parents of the deceased member during their joint lifetimes, a sum equal to the amount which a surviving spouse would have been entitled to receive: Provided, however, That when there is but one dependent parent surviving, that parent shall be is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive.
(b) For the purposes of this section, the term "salary" does not include compensation paid for overtime service.
§15-2-37. Refunds to certain members upon discharge or resignation; deferred retirement.

(a) Any member who shall be is discharged by order of the Superintendent or shall otherwise terminate terminates employment with the division shall Department, at the written request of the member to the Retirement Board, be is entitled to receive from the Retirement Fund a sum equal to the aggregate of the principal amount of moneys deducted from his or her salary and paid into the Death, Disability and Retirement Fund plus four percent interest compounded thereon calculated annually as provided and required by this article.
(b) Any member who has ten or more years of service with the division Department and who withdraws his or her contributions may thereafter be reenlisted as a member of the division Department, but may not receive any prior service credit on account of former service, unless following reenlistment the member shall redeposit redeposits in the Fund established in article two-a of this chapter the amount of the refund, together with interest thereon at the rate of seven and one-half percent per annum from the date of withdrawal to the date of redeposit, in which case he or she shall receive the same credit on account of his or her former service as if no refund had been made. He or she shall become a member of the Retirement System established in article two-a of this chapter.
(c) Every member who completes ten years of service with the division of public safety Department is eligible, upon separation of employment with the division Department, either to withdraw his or her contributions in accordance with subsection (a) of this section or to choose not to withdraw his or her accumulated contributions with interest. Upon attainment of age sixty-two, a member who chooses not to withdraw his or her contributions will be is eligible to receive a retirement annuity. Any member choosing to receive the deferred annuity under this subsection is not eligible to receive the annual annuity adjustment provided in section twenty-seven-a of this article. When the Retirement Board retires any member under any of the provisions of this section, the Board shall, by order in writing, make an award directing that the member is entitled to receive annually and that there shall be paid to the member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of the member while in status of retirement one or the other of two amounts, whichever is greater:
(1) An amount equal to five and one-half percent of the aggregate of salary paid to the member during the whole period of service as a member of the division of public safety Department; or
(2) The sum of six thousand dollars.
The annuity shall be payable during the lifetime of the member. The retiring member may choose, in lieu of such a life annuity, an annuity in reduced amount payable during the member's lifetime, with one half of such the reduced monthly amount paid to his or her surviving spouse if any, for the spouse's remaining lifetime after the death of the member. Reduction of this monthly benefit amount shall be calculated to be of equal actuarial value to the life annuity the member could otherwise have chosen.
§15-2-39a. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or create any new benefits for any retirees or beneficiaries currently receiving monthly benefit payments from the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, in an amount that would exceed more than one percent of the accrued actuarial liability of the system as of the last day of the preceding fiscal year as determined in the annual actuarial valuation for the plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature.
(b) If any increase of existing benefits or creation of new benefits for any retirees or beneficiaries currently receiving monthly benefit payments under the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, causes any additional unfunded actuarial accrued liability in any of the West Virginia state-sponsored pension systems as calculated in the annual actuarial valuation for the plan during any fiscal year, the additional unfunded actuarial accrued liability of the system shall be fully amortized over no more than the five consecutive fiscal years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. Following the receipt of the certification of additional actuarial accrued liability, the Governor shall submit the amount of the amortization payment each year for the system as part of the annual budget submission or in an executive message to the Legislature.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, the computation of annuities or benefits for active members due to retirement, death or disability as provided for in the system shall not be amended in such a manner as to increase any existing benefits or to provide for new benefits.
(d) The provisions of this section terminate effective the first day of July, two thousand twenty-five: Provided, That if bonds are issued pursuant to article eight, chapter twelve of this code, the provisions of this section shall not terminate while any of the bonds are outstanding.
ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.
§15-2A-2. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) "Active military duty" means full-time active duty with the armed forces of the United States, namely, the United States Air Force, Army, Coast Guard, Marines or Navy; and service with the National Guard or reserve military forces of any of such the armed forces when the member has been called to active full-time duty and has received no compensation during the period of such duty from any person other than the armed forces.
(2) "Base salary" means compensation paid to a member without regard to any overtime pay.
(3) "Board" means the Consolidated Public Retirement Board created pursuant to article ten-d, chapter five of this code.
(4) "Division" "Department" means the division of public safety West Virginia State Police.
(5) "Final average salary" means the average of the highest annual compensation received for employment with the division Department, including compensation paid for overtime service, received by the member during any five calendar years within the member's last ten years of service.
(6) "Fund" means the West Virginia State Police Retirement Fund created pursuant to section four of this article.
(7) "Member" or "employee" means a person regularly employed in the service of the division of public safety after the effective date of this article.
(8) "Salary" means the compensation of a member, excluding any overtime payments.
(9)"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended.
(10) "Plan year" means the twelve-month period commencing on the first day of July of any designated year and ending the following thirtieth day of June.
(11) "Required beginning date" means the first day of April of the calendar year following the later of: (a) The calendar year in which the member attains age seventy and one-half; or (b) the calendar year in which he or she retires or otherwise separates from service with the department.
(12)"Retirement system," or "system" means the West Virginia state police retirement system created and established by this article.
(7) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended.
(8) "Law-enforcement officer" means individuals employed or otherwise engaged in either a public or private position which involves the rendition of services relating to enforcement of federal, state or local laws for the protection of public or private safety, including, but not limited to, positions as deputy sheriffs, police officers, marshals, bailiffs, court security officers or any other law-enforcement position which requires certification, but excluding positions held by elected sheriffs or appointed chiefs of police whose duties are purely administrative in nature.
(9) "Member" or "employee" means a person regularly employed in the service of the Department as a law-enforcement officer after the effective date of this article.
(10) "Month of service" means each month for which a member is paid or entitled to payment for at least one hour of service for which contributions were remitted to the Fund. These months shall be credited to the member for the calendar year in which the duties are performed.
(11) "Partially disabled" means a member's inability, on a probable permanent basis, to perform the essential duties of a law enforcement officer by reason of any medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months, but which impairment does not preclude the member from engaging in other types of nonlaw-enforcement employment.
(12) "Physical or mental impairment" means an impairment that results from an anatomical, physiological or psychological abnormality that is demonstrated by medically accepted clinical and laboratory diagnostic techniques.
(13) "Plan year" means the twelve-month period commencing on the first day of July of any designated year and ending the following thirtieth day of June.
(14) "Required beginning date" means the first day of April of the calendar year following the later of: (a) The calendar year in which the member attains age seventy and one half years; or (b) the calendar year in which he or she retires or otherwise separates from service with the Department after having attained the age of seventy and one half years.
(15) "Retirement system", "plan" or "system" means the West Virginia State Police Retirement System created and established by this article.
(16) "Salary" means the compensation of a member, excluding any overtime payments.
(17) "Totally disabled" means a member's probable permanent inability to engage in substantial gainful activity by reason of any medically determined physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. For purposes of this subdivision, a member is totally disabled only if his or her physical or mental impairments are so severe that he or she is not only unable to perform his or her previous work as a member of the Department, but also cannot, considering his or her age, education and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (A) The work exists in the immediate area in which the member lives; (B) a specific job vacancy exists; or (C) the member would be hired if he or she applied for work.
(18) "Years of service" means the months of service acquired by a member while in active employment with the Department divided by twelve. Years of service shall be calculated in years and fraction of a year from the date of active employment of the member with the Department through the date of termination of employment or retirement from the Department. If a member returns to active employment with the Department following a previous termination of employment with the Department, and the member has not received a refund of contributions plus interest for the previous employment under section eight of this article, service shall be calculated separately for each period of continuous employment, and years of service shall be the total service for all periods of employment. Years of service shall exclude any periods of employment with the Department for which a refund of contributions plus interest has been paid to the member, unless the member repays the previous withdrawal, as provided in section eight of this article, to reinstate the years of service.
§15-2A-5. Members' contributions; employer contributions; forfeitures.

(a) There shall be deducted from the monthly payroll of each member and paid into the Fund created pursuant to section four of this article, twelve percent of the amount of his or her salary. An additional twelve percent of the monthly salary of each member of the Department shall be paid by the State of West Virginia monthly into such Fund out of the annual appropriation for the division.
(b) The State of West Virginia's contributions to the retirement system, as determined by the Consolidated Public Retirement Board by legislative rule promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code, shall be a percent of the members' total annual compensation related to benefits under this retirement system. In determining the amount, the Board shall give consideration to setting the amount at a sum equal to an amount which, if paid annually by the state, will be sufficient to provide for the total normal cost of the benefits expected to become payable to all members and to amortize any unfunded liability found by application of the actuarial funding method chosen for that purpose by the Consolidated Public Retirement Board, over a period of years determined actuarially appropriate. When proposing a rule for promulgation which relates to the amount of employer contribution, the board may promulgate emergency rules pursuant to the provisions of article three, chapter twenty-nine-a of this code, if the inability of the Board to increase state contributions will detrimentally affect the actuarial soundness of the retirement system. A signed statement from the state actuary shall accompany the statement of facts and circumstances constituting an emergency which shall be filed in the State Register. For purposes of this section, subdivision (2), subsection (b), section fifteen-a, article three, chapter twenty-nine-a of this code is not applicable to the Secretary of State's determination of whether an emergency rule should be approved. The state's contributions shall be paid monthly into the fund created pursuant to section four of this article out of the annual appropriation for the Department.
(b) (c) Notwithstanding any other provisions of this article, forfeitures under the system shall not be applied to increase the benefits any member would otherwise receive under the system.
§15-2A-6. Retirement; commencement of benefits.
(a) A member may retire with full benefits upon attaining the age of fifty-five and completing twenty or more years of service, by lodging with the Consolidated Public Retirement Board his or her voluntary petition in writing for retirement. A member who is less than age fifty-five may retire upon completing twenty years or more of service: Provided, That he or she will receive a reduced benefit that is of equal actuarial value to the benefit the member would have received if the member deferred commencement of his or her accrued retirement benefit to the age of fifty-five.
(b) When the Retirement Board retires a member with full benefits under the provisions of this section, the Board, by order in writing, shall make a determination that the member is entitled to receive an annuity equal to two and three-fourths percent of his or her final average salary multiplied by the number of years, and fraction of a year, of his or her service in the division Department at the time of retirement. The member's annuity shall begin the first day of the calendar month following the month in which the member's application for the annuity is filed with the Board on or after his or her attaining age and service requirements, and termination of employment.
(c) In no event may the provisions of section thirteen, article sixteen, chapter five of this code be applied in determining eligibility to retire with either a deferred or immediate commencement of benefit.
§15-2A-7. Annual annuity adjustment.

(a) Every member of the division of public safety Department who is sixty-three years of age or older and who is retired by the Retirement Board under the provisions of section six of this article; every member who is retired under the provisions of section nine or ten of this article; and every surviving spouse receiving a benefit pursuant to section twelve, thirteen or fourteen of this article is eligible to receive an annual retirement annuity adjustment equal to one percent of his or her retirement award or surviving spouse award. Such The adjustments may not be retroactive. Yearly adjustments shall begin upon the first day of July of each year. The annuity adjustments shall be awarded and paid to a member from the Fund in equal monthly installments while the member is in status of retirement. The annuity adjustments shall supplement the retirement awards and benefits provided in this article.
(b) Any member or beneficiary who receives a benefit pursuant to the provisions of section nine, ten, twelve, thirteen or fourteen of this article shall begin to receive the annual annuity adjustment one year after the commencement of the benefit on the next July first: Provided, That if the member has been retired for less than one year when the first annuity adjustment is given on that July first, that first annuity adjustment will be a pro rata share of the full year's annuity adjustment.
§15-2A-8. Refunds to certain members upon discharge or resignation; deferred retirement.

(a) Any member who shall be is discharged by order of the Superintendent or shall otherwise terminate terminates employment with the division shall Department is, at the written request of the member to the Retirement Board, be entitled to receive from the Retirement Fund a sum equal to the aggregate of the principal amount of moneys deducted from the salary of the member and paid into the Retirement Fund plus four percent interest compounded thereon calculated annually as provided and required by this article.
(b) Any member withdrawing contributions who may thereafter be reenlisted as a member of the division Department shall not receive any prior service credit on account of the former service, unless following his or her reenlistment the member shall redeposit redeposits in the Fund the amount of the refund, together with interest thereon at the rate of seven and one-half percent per annum from the date of withdrawal to the date of redeposit, in which case he or she shall receive the same credit on account of his or her former service as if no refund had been made.
(c) Every member who completes ten years of service with the division of public safety Department is eligible, upon separation of employment with the division Department, to either withdraw his or her contributions in accordance with subsection (a) of this section, or to choose not to withdraw his or her accumulated contributions with interest. Upon attainment of age sixty-two, a member who chooses not to withdraw his or her contributions will be is eligible to receive a retirement annuity. The annuity shall be payable during the lifetime of the member, and shall be in the amount of his or her accrued retirement benefit as determined under section six of this article. The retiring member may choose, in lieu of such a life annuity, an annuity in reduced amount payable during the member's lifetime, with one half of the reduced monthly amount paid to his or her surviving spouse if any, for the spouse's remaining lifetime after the death of the member. Reduction of such the monthly benefit amount shall be calculated to be of equal actuarial value to the life annuity the member could otherwise have chosen. Any member choosing to receive the deferred annuity under this subsection is not eligible to receive the annual annuity adjustment provided in section seven of this article.
§15-2A-9. Awards and benefits for disability -- Incurred in performance of duty.

(a) Any Except as otherwise provided in this section, a member of the division Department who has been or shall become physically or mentally permanently not yet entered retirement status on the basis of age and service and who becomes partially disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the services required of members of the division Department and incurred pursuant to or while the member was or shall be engaged in the performance of his or her duties as a member of the division Department shall, if, in the opinion of the Retirement Board, he or she is, by reason of such cause, unable to perform adequately the duties required of him or her as a member of the division Department, but is able to engage in other gainful employment in a field other than law enforcement, be retired from active service by the Board. The member shall thereafter be is entitled to receive annually and there shall be paid to the member from the Fund in equal monthly installments during the lifetime of the member, or until the member attains the age of fifty-five or until such the disability shall sooner terminate terminates, one or the other of two amounts, whichever is greater:
(1) An amount equal to six tenths of the base salary received in the preceding twelve-month employment period: Provided, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
Upon attaining age fifty-five, the member shall receive the benefit provided for in section six of this article as it would apply to his or her final average salary based on earnings from the division Department through the day immediately preceding his or her disability. The recalculation of benefit upon a member attaining age fifty-five shall be deemed considered to be a retirement under the provisions of section six of this article, for purposes of determining the amount of annual annuity adjustment and for all other purposes of this article: Provided, That a member who is partially disabled under this article may not, while in receipt of benefits for partial disability, be employed as a law- enforcement officer: Provided, however, That a member retired on a partial disability under this article may serve as an elected sheriff or appointed chief of police in the state without a loss of disability retirement benefits so long as the elected or appointed position is shown, to the satisfaction of the Board, to require the performance of administrative duties and functions only, as opposed to the full range of duties of a law-enforcement officer.
(b) If any Any member shall become permanently who has not yet entered retirement status on the basis of age and service and who becomes physically or mentally disabled by injury, illness or disease on a probable permanent basis resulting from any occupational risk or hazard inherent in or peculiar to the services required of members of the division Department and incurred pursuant to or while such the member was or shall be is engaged in the performance of his or her duties as a member of the division Department to the extent that the member is or shall be incapacitated ever to engage in any gainful employment, the member shall be is entitled to receive annually, and there shall be paid to such the member from the Fund in equal monthly installments during the lifetime of the member or until such the disability shall sooner terminate terminates, an amount equal to the amount of the base salary received by the member in the preceding twelve- month employment period.
(c) The Superintendent of the division is authorized to Department may expend moneys from funds appropriated for the division Department in payment of medical, surgical, laboratory, X- ray, hospital, ambulance and dental expenses and fees, and reasonable costs and expenses incurred in the purchase of artificial limbs and other approved appliances which may be reasonably necessary for any member of the division Department who has or shall become is temporarily, permanently or totally disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the service required of members of the division Department and incurred pursuant to or while the member was or shall be engaged in the performance of duties as a member of the division Department. Whenever the Superintendent shall determine determines that any disabled member is ineligible to receive any of the aforesaid benefits at public expense, the Superintendent shall, at the request of the disabled member, refer such the matter to the Board for hearing and final decision. In no case will the compensation rendered to health care providers for medical and hospital services exceed the then current rate schedule in use by the Bureau of Employment Programs, Workers' Compensation Division.
§15-2A-10. Same -- Due to other causes.
(a) If any member while in active service of the division has or shall, in the opinion of the board, become permanently State Police becomes partially or totally disabled on a probable permanent basis to the extent that the member he or she cannot adequately perform the duties required of a member of the division Department from any cause other than those set forth in the preceding section and not due to vicious habits, intemperance or willful misconduct on his or her part, the member shall be retired by the Board. There shall be paid annually to the member from the Fund in equal monthly installments, commencing on the date the member shall be is retired and continuing during the lifetime of the member; or until the member attains the age of fifty-five; while in status of retirement an amount equal to one half the base salary received by the member in the preceding twelve-month period: Provided, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit.
(b) Upon attaining age fifty-five, the member shall receive the benefit provided for in section six of this article as it would apply to his or her final average salary based on earnings from the division Department through the day immediately preceding his or her disability. The recalculation of benefit upon a member attaining age fifty-five shall be deemed considered to be a retirement under the provisions of section six of this article, for purposes of determining the amount of annual annuity adjustment and for all other purposes of this article.
§15-2A-11. Same -- Physical examinations; termination.
The Board may require any member who has been or who shall be retired with compensation on account of disability to submit to a physical and/or or mental examination or both a physical and mental examination by a physician or physicians selected or approved by the retirement Board and cause all costs incident to such the examination including hospital, laboratory, X-ray, medical and physicians' fees to be paid out of funds appropriated to defray the current expenses of the division Department, and a report of the findings of such the physician or physicians shall be submitted in writing to the Board for its consideration. If from the report or from the report and hearing thereon on the report, the Board shall be is of opinion and find finds that the disabled member shall have has recovered from such the disability to the extent that he or she is able to perform adequately the duties of a member of the division law-enforcement officer, the Board shall order the member to reassume active duty as a member of the division and thereupon that all payments from the Fund shall be terminated. If from the report or the report and hearing thereon on the report, the Board shall be is of the opinion and find that the disabled member has recovered from the his or her previously determined probable permanent disability to the extent that he or she is able to engage in any gainful employment but unable to adequately perform the duties required as a member of the division of a law-enforcement officer, the Board shall order, in the case of a member retired under the provisions of section nine of this article, that the disabled member be paid annually from the Fund an amount equal to six tenths of the base salary paid to the member in the last twelve-month employment period. The Board shall order, in the case of a member retired under the provisions of section ten of this article, that the disabled member be paid from the Fund an amount equal to one fourth of the base salary paid to the member in the last twelve-month employment period: Provided, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit.
§15-2A-11a. Physical examinations of prospective members; application for disability benefit; determinations.

(a) Not later than thirty days after an employee becomes a member of the Fund, the employer shall forward to the Board a copy of the physician's report of a physical examination which incorporates the standards or procedures described in section seven, article two of this chapter. A copy of the physicians's report shall be placed in the employee's retirement system file maintained by the Board.
(b) Application for a disability benefit may be made by a member or, if the member is under an incapacity, by a person acting with legal authority on the member's behalf. After receiving an application for a disability benefit, the Board shall notify the Superintendent of the Department that an application has been filed: Provided, That when, in the judgment of the Superintendent, a member is no longer physically or mentally fit for continued duty as a member of the West Virginia State Police and the member has failed or refused to make application for disability benefits under this article, the Superintendent may petition the Board to retire the member on the basis of disability pursuant to legislative rules proposed in accordance with article three, chapter twenty-nine-a of this code. Within thirty days of the Superintendent's receipt of the notice from the Board or the filing of the Superintendent's petition with the Board, the Superintendent shall forward to the Board a statement certifying the duties of the member's employment, information relating to the Superintendent's position on the work relatedness of the member's alleged disability, complete copies of the member's medical file and any other information requested by the Board in its processing of the application.
(c) The Board shall propose legislative rules in accordance with article three, chapter twenty-nine-a of this code relating to the processing of applications and petitions for disability retirement under this article.
(d) The Board shall notify a member and the Superintendent of its final action on the disability application or petition within ten days of the Board's final action. The notice shall be sent by certified mail, return receipt requested. If either the member or the Superintendent is aggrieved by the decision of the Board and intends to pursue judicial review of the Board's decision as provided in section four, article five, chapter twenty-nine-a of this code, the party aggrieved shall notify the Board within twenty days of the member's or Superintendent's receipt of the Board's notice that they intend to pursue judicial review of the Board's decision.
(e) The Board may require a disability benefit recipient to file an annual statement of earnings and any other information required in rules which may be adopted by the Board. The Board may waive the requirement that a disability benefit recipient file the annual statement of earnings if the Board's physician certifies that the recipient's disability is ongoing. The Board shall annually examine the information submitted by the recipient. If a disability recipient refuses to file the statement or information, the disability benefit shall be suspended until the statement and information are filed.
§15-2A-11b. Annual report on each employer's disability retirement experience.

Not later than the first day of January, two thousand six, and each first day of January thereafter, the Board shall prepare a report for the preceding fiscal year of the disability retirement experience of the State Police. The report shall specify the total number of disability applications submitted, the status of each application as of the last day of the fiscal year, total applications granted or denied, and the percentage of disability benefit recipients to the total number of the State Police employees who are members of the Fund. The report shall be submitted to the Governor and the chairpersons of the standing committees of the Senate and House of Delegates with primary responsibility for retirement legislation.
§15-2A-12. Awards and benefits to dependents of member -- When member dies in performance of duty, etc.; dependent child scholarship and amount.

The surviving spouse, the dependent child or children or dependent parent or parents of any member who has lost or shall lose his or her life by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or peculiar to the service required of members while the member was or shall be engaged in the performance of his or her duties as a member of the division Department, or the survivor of a member who dies from any cause after having been retired pursuant to the provisions of section nine of this article, shall be is entitled to receive and shall be paid from the Fund benefits as follows: To the surviving spouse annually, in equal monthly installments during his or her lifetime, one or the other of two amounts, which shall become immediately available and which shall be the greater of:
(1) An amount equal to seven tenths of the base salary received in the preceding twelve-month employment period by the deceased member: Provided, That if the member had not been employed with the division Department for twelve months prior to his or her death, the amount of monthly salary shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
In addition thereto, the surviving spouse shall be is entitled to receive and there shall be paid to such the person one hundred dollars monthly for each dependent child or children. If the surviving spouse dies or if there is no surviving spouse, there shall be paid monthly to each dependent child or children from the Fund a sum equal to one fourth of the surviving spouse's entitlement. If there is no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the Fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is but one dependent parent surviving, that parent is entitled to receive during his or her lifetime one half the amount which both parents, if living, would have been entitled to receive.
Any person qualifying as a surviving dependent child under this section shall, in addition to any other benefits due under this or other sections of this article, be is entitled to receive a scholarship to be applied to the career development education of that person. This sum, up to but not exceeding seven thousand five hundred dollars, shall be paid from the Fund to any university or college in this state or to any trade or vocational school or other entity in this state approved by the Board, to offset the expenses of tuition, room and board, books, fees or other costs incurred in a course of study at any of these institutions so long as the recipient makes application to the Board on an approved form and under such rules as provided by the Board may provide, and maintains scholastic eligibility as defined by the institution or the Board. The Board may by appropriate rules define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary and not inconsistent with this section.
Awards and benefits for a surviving spouse or dependents of a member received under any section or any of the provisions of this retirement system shall be are in lieu of receipt of any benefits for these persons under the provisions of any other state retirement system. Receipt of benefits under any other state retirement system shall be is in lieu of any right to receive any benefits under this retirement system, so that only a single receipt of state retirement benefits shall occur occurs.
§15-2A-13. Same -- When member dies from nonservice-connected causes.

In any case where a member while in active service of the division Department, before having completed twenty years of service as a member of the division has died or shall die Department, dies from any cause other than those specified in this article and not due to vicious habits, intemperance or willful misconduct on his or her part, there shall be paid annually in equal monthly installments from the Fund to the surviving spouse of the member during his or her lifetime, or until such time as the surviving spouse remarries, a sum equal to one half of the base salary received in the preceding twelve-month employment period by the deceased member: Provided, That if the member had not been employed with the division Department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit. If there is no surviving spouse or the surviving spouse dies or remarries, there shall be paid monthly to each dependent child or children from the Fund a sum equal to one fourth of the surviving spouse's entitlement. If there is no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the Fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount that a surviving spouse would have been entitled to receive: Provided, however, That when there is but one dependent parent surviving, then that parent shall be is entitled to receive during his or her lifetime one half the amount which both parents, if living, would have been entitled to receive.
§15-2A-14. Awards and benefits to dependents of member -- When member dies after retirement or after serving twenty years.

(a) When any member of the division Department has completed twenty years of service or longer as a member of the division Department and has died or shall die dies from any cause or causes other than those specified in this article before having been retired by the Board, and when a member in retirement status has died or shall die after having been retired by the Board under the provisions of this article, there shall be paid annually in equal monthly installments from the Fund to the surviving spouse of the member, commencing on the date of the death of the member and continuing during the lifetime or until remarriage of the surviving spouse, an amount equal to two thirds of the retirement benefit which the deceased member was receiving while in status of retirement, or would have been entitled to receive to the same effect as if the member had been retired under the provisions of this article immediately prior to the time of his or her death. In no event shall the annual benefit payable be less than five thousand dollars. In addition thereto, the surviving spouse is entitled to receive and there shall be paid to the surviving spouse from the Fund the sum of one hundred dollars monthly for each dependent child or children. If the surviving spouse dies or remarries, or if there is no surviving spouse, there shall be paid monthly from the Fund to each dependent child or children of the deceased member a sum equal to one fourth of the surviving spouse's entitlement. If there is no surviving spouse or no surviving spouse eligible to receive benefits and no dependent child or children, there shall be paid annually in equal monthly installments from the Fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse without children would have been entitled to receive: Provided, That when there is but one dependent parent surviving, that parent shall be is entitled to receive during his or her lifetime one half the amount which both parents, if living, would have been entitled to receive.
(b) The member may choose a higher percentage of surviving spouse benefits by taking an actuarially determined reduced initial benefit so that the chosen spouse benefit and initial benefit would be actuarially equivalent to the normal spouse benefit and initial benefit. The Retirement Board shall design these benefit options and provide them as choices for the member to select. For the purposes of this subsection, "initial benefit" means the benefit received by the member upon retirement.
§15-2A-19. Credit toward retirement for member's prior military service; credit toward retirement when member has joined armed forces in time of armed conflict; qualified military service.

(a) Any member who has previously served on active military duty is entitled to receive additional credited service for the purpose of determining the amount of retirement award under the provisions of this article for a period equal to the active military duty not to exceed five years, subject to the following:
(1) That he or she has been honorably discharged from the armed forces;
(2) That he or she substantiates by appropriate documentation or evidence his or her period of active military duty;
(3) That he or she is receiving no benefits from any other retirement system for his or her active military duty; and
(4) That, except with respect to disability retirement pay awarded under this article, he or she has actually served with the division Department for twenty years exclusive of his or her active military duty.
(b) In addition, any person who while a member of the division Department was commissioned, enlisted or inducted into the armed forces of the United States or, being a member of the reserve officers' corps, was called to active duty in the armed forces between the first day of September, one thousand nine hundred forty, and the close of hostilities in World War II, or between the twenty-seventh day of June, one thousand nine hundred fifty, and the close of the armed conflict in Korea on the twenty-seventh day of July, one thousand nine hundred fifty-three, between the first day of August, one thousand nine hundred sixty-four, and the close of the armed conflict in Vietnam, or during any other period of armed conflict by the United States whether sanctioned by a declaration of war by Congress or by executive or other order of the President, is entitled to and shall receive credit on the minimum period of service required by law for retirement pay from the service of the division of public safety Department, or its predecessor agency, for a period equal to the full time that he or she has or, pursuant to that commission, enlistment, induction or call, shall have served with the armed forces subject to the following:
(1) That he or she has been honorably discharged from the armed forces;
(2) That within ninety days after honorable discharge from the armed forces, he or she presented himself or herself to the Superintendent and offered to resume service as an active member of the division Department; and
(3) That he or she has made no voluntary act, whether by reenlistment, waiver of discharge, acceptance of commission or otherwise, to extend or participate in extension of the period of service with the armed forces beyond the period of service for which he or she was originally commissioned, enlisted, inducted or called.
(c) The total amount of military service credit allowable under this section may not exceed five years for any member of the division Department.
(d) Notwithstanding the preceding provisions of this section, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414 (u) of the Internal Revenue Code. For purposes of this section, "qualified military service" has the same meaning as in Section 414 (u) of the Internal Revenue Code. The Retirement Board is authorized to shall determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the Retirement Board in section one, article ten-d, chapter five of this code, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414 (u) of the Internal Revenue Code.
§15-2A-21. Retirement credited service through member's use, as option, of accrued annual or sick leave days.

Any member accruing annual leave or sick leave days may, after the effective date of this section, elect to use the days at the time of retirement to acquire additional credited service in this retirement system. The days shall be applied on the basis of two workdays' credit granted for each one day of accrued annual or sick leave days, with each month of retirement service credit to equal twenty workdays and with any remainder of ten workdays or more to constitute a full month of additional credit and any remainder of less than ten workdays to be dropped and not used, notwithstanding any provisions of the code to the contrary. The credited service shall be allowed and not considered to controvert the requirement of no more than twelve months' credited service in any year's period.
§15-2A-22. Limitations on benefit increases.
(a) The state will not increase any existing benefits or create any new benefits for any retirees or beneficiaries currently receiving monthly benefit payments from the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, in an amount that would exceed more than one percent of the accrued actuarial liability of the system as of the last day of the preceding fiscal year as determined in the annual actuarial valuation for the plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature.
(b) If any increase of existing benefits or creation of new benefits for any retirees or beneficiaries currently receiving monthly benefit payments under the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, causes any additional unfunded actuarial accrued liability in the system as calculated in the annual actuarial valuation for the plan during any fiscal year, the additional unfunded actuarial accrued liability of that pension system will be fully amortized over no more than the five consecutive fiscal years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. The Consolidated Public Retirement Board shall include the five-year amortization in the determination of the adequacy of the employer contribution percentage for the system.
(c) The state will not increase any existing benefits or create any new benefits for active members due to retirement, death or disability of the system unless the actuarial accrued liability of the plan shall be at least eighty-five percent funded as of the last day of the prior fiscal year as determined in the actuarial valuation for the plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature. Any additional unfunded actuarial accrued liability due to any improvement in active members benefits shall be fully amortized over not more than ten years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. The Consolidated Public Retirement Board shall include the ten-year amortization in the determination of the adequacy of the employer contribution percentage for the system.
CHAPTER 18. EDUCATION.

ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-3. Definitions.
"Teacher member" means the following persons, if regularly employed for full-time service: (a) Any person employed for instructional service in the public schools of West Virginia; (b) principals; (c) public school librarians; (d) superintendents of schools and assistant county superintendents of schools; (e) any county school attendance director holding a West Virginia teacher's certificate; (f) the executive secretary of the retirement board; (g) members of the research, extension, administrative or library staffs of the public schools; (h) the state superintendent of schools, heads and assistant heads of the divisions under his or her supervision, or any other employee under the state superintendent performing services of an educational nature; (i) employees of the state board of education who are performing services of an educational nature; (j) any person employed in a nonteaching capacity by the state board of education, the West Virginia board of regents [abolished], any county board of education, the state department of education or the teachers retirement board, if that person was formerly employed as a teacher in the public schools; (k) all classroom teachers, principals and educational administrators in schools under the supervision of the division of corrections, the division of health or the division of human services; and (l) employees of the state bod of school finance, if that person was formerly employed as a teacher in the public schools.
"Nonteaching member" means any person, except a teacher member, who is regularly employed for full-time service by: (a) Any county board of education; (b) the state board of education; (c) the West Virginia board of regents [abolished]; or (d) the teachers retirement board.
"Members of the administrative staff of the public schools" means deans of instruction, deans of men, deans of women, and financial and administrative secretaries.
"Members of the extension staff of the public schools" means every agricultural agent, boys' and girls' club agent and every member of the agricultural extension staff whose work is not primarily stenographic, clerical or secretarial.
"Retirement system" means the state teachers retirement system provided for in this article.
"Present teacher" means any person who was a teacher within the thirty-five years beginning the first day of July, one thousand nine hundred thirty-four, and whose membership in the retirement system is currently active.
"New entrant" means a teacher who is not a present teacher.
"Regularly employed for full-time service" means employment in a regular position or job throughout the employment term regardless of the number of hours worked or the method of pay.
"Employment term" means employment for at least ten months, a month being defined as twenty employment days.
"Present member" means a present teacher who is a member of the retirement system.
"Total service" means all service as a teacher while a member of the retirement system since last becoming a member and, in addition thereto, credit for prior service, if any.
"Prior service" means all service as a teacher completed prior to the first day of July, one thousand nine hundred forty-one, and all service of a present member who was employed as a teacher, and did not contribute to a retirement account because he or she was legally ineligible for membership during the service.
"Pick-up service" means service that a member was entitled to, but which the employer has not withheld or paid for.
"Average final salary" means the average of the five highest fiscal year salaries earned as a member within the last fifteen fiscal years of total service credit, including military service as provided in this article, or if total service is less than fifteen years, the average annual salary for the period on which contributions were made.
"Accumulated contributions" means all deposits and all deductions from the earnable compensation of a contributor minus the total of all supplemental fees deducted from his or her compensation.
"Regular interest" means interest at four percent compounded annually, or a higher earnable rate if set forth in the formula established in legislative rules, series seven of the Consolidated Public Retirement Board.
"Refund interest" means interest compounded, according to the formula established in legislative rules, series seven of the Consolidated Public Retirement Board.
"Employer" means the agency of and within the state which has employed or employs a member.
"Contributor" means a member of the retirement system who has an account in the teachers accumulation fund.
"Beneficiary" means the recipient of annuity payments made under the retirement system.
"Refund beneficiary" means the estate of a deceased contributor or a person he or she has nominated as beneficiary of his or her contributions by written designation duly executed and filed with the retirement board.
"Earnable compensation" means the full compensation actually received by members for service as teachers whether or not a part of the compensation is received from other funds, federal or otherwise, than those provided by the state or its subdivisions. Allowances from employers for maintenance of members shall be considered a part of earnable compensation for those members whose allowances were approved by the teachers retirement board and contributions to the teachers retirement system were made, in accordance therewith, on or before the first day of July, one thousand nine hundred eighty.
"Annuities" means the annual retirement payments for life granted beneficiaries in accordance with this article.
"Member" means a member of the retirement system.
"Public schools" means all publicly supported schools, including normal schools, colleges and universities in this state.
"Deposit" means a voluntary payment to his or her account by a member.
"Plan year" means the twelve-month period commencing on the first day of July and ending the following thirtieth day of June of any designated year.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as it has been amended.
"Required beginning date" means the first day of April of the calendar year following the later of: (a) The calendar year in which the member attains age seventy and one-half; or (b) the calendar year in which the member retires or ceases covered employment under the system.
(a) As used in this article, unless the context clearly require a different meaning:
(1) "Accumulated contributions" means all deposits and all deductions from the gross salary of a contributor plus regular interest.
(2) "Accumulated net benefit" means the aggregate amount of all benefits paid to or on behalf of a retired member;
(3) "Annuities" means the annual retirement payments for life granted beneficiaries in accordance with this article.
(4) "Average final salary" means the average of the five highest fiscal year salaries earned as a member within the last fifteen fiscal years of total service credit, including military service as provided in this article, or if total service is less than fifteen years, the average annual salary for the period on which contributions were made.
(5) "Beneficiary" means the recipient of annuity payments made under the retirement system.
(6) "Contributor" means a member of the retirement system who has an account in the teachers accumulation fund.
(7) "Deposit" means a voluntary payment to his or her account by a member.
(8) "Employer" means the agency of and within the state which has employed or employs a member.
(9) "Employment term" means employment for at least ten months, a month being defined as twenty employment days.
(10) "Gross salary" means the fixed annual or periodic cash wages paid by a participating public employer to a member for performing duties for the participating public employer for which the member was hired. Gross salary shall also include retroactive payments made to a member to correct a clerical error, or pursuant to a court order or final order of an administrative agency charged with enforcing federal or state law pertaining to the member's rights to employment or wages, with all such retroactive salary payments to be allocated to and deemed paid in the periods in which the work was or would have been done. Gross salary shall not include lump sum payments for bonuses, early retirement incentives, severance pay, or any other fringe benefit of any kind including, but not limited to, transportation allowances, automobiles or automobile allowances, or lump sum payments for unused, accrued leave of any type or character.
(11) "Internal Revenue Code" means the Internal Revenue Code of 1986, as it has been amended.
(12) "Member" means a member of the retirement system.
(13) "Members of the administrative staff of the public schools" means deans of instruction, deans of men, deans of women, and financial and administrative secretaries.
(14) "Members of the extension staff of the public schools" means every agricultural agent, boys' and girls' club agent and every member of the agricultural extension staff whose work is not primarily stenographic, clerical or secretarial.
(15) "New entrant" means a teacher who is not a present teacher.
(16) "Nonteaching member" means any person, except a teacher member, who is regularly employed for full-time service by: (a) Any county board of education; (b) the State Board of Education; (c) the West Virginia Board of Regents [abolished]; or (d) the Teachers Retirement Board.
(17) "Pick-up service" means service that a member was entitled to, but which the employer has not withheld or paid for.
(18) "Plan year" means the twelve-month period commencing on the first day of July and ending the following thirtieth day of June of any designated year.
(19) "Present member" means a present teacher who is a member of the retirement system.
(20) "Present teacher" means any person who was a teacher within the thirty-five years beginning the first day of July, one thousand nine hundred thirty-four, and whose membership in the retirement system is currently active.
(21) "Prior service" means all service as a teacher completed prior to the first day of July, one thousand nine hundred forty- one, and all service of a present member who was employed as a teacher, and did not contribute to a retirement account because he or she was legally ineligible for membership during the service.
(22) "Public schools" means all publicly supported schools, including colleges and universities in this state.
(23) "Refund beneficiary" means the estate of a deceased contributor or a person he or she has nominated as beneficiary of his or her contributions by written designation duly executed and filed with the retirement board.
(24) "Refund interest" means interest compounded, according to the formula established in legislative rules, series seven of the Consolidated Public Retirement Board.
(25) "Regular interest" means interest at four percent compounded annually, or a higher earnable rate if set forth in the formula established in legislative rules, series seven of the Consolidated Public Retirement Board.
(26) "Regularly employed for full-time service" means employment in a regular position or job throughout the employment term regardless of the number of hours worked or the method of pay.
(27) "Required beginning date" means the first day of April of the calendar year following the later of: (a) The calendar year in which the member attains age seventy and one-half years; or (b) the calendar year in which the member retires or ceases covered employment under the system after having attained the age of seventy and one half years.
(28) "Retirement system" means the State Teachers Retirement System provided for in this article.
(29) "Teacher member" means the following persons, if regularly employed for full-time service: (a) Any person employed for instructional service in the public schools of West Virginia; (b) principals; (c) public school librarians; (d) superintendents of schools and assistant county superintendents of schools; (e) any county school attendance director holding a West Virginia teacher's certificate; (f) the Executive Secretary of the Retirement Board; (g) members of the research, extension, administrative or library staffs of the public schools; (h) the State Superintendent of Schools, heads and assistant heads of the divisions under his or her supervision, or any other employee under the State Superintendent performing services of an educational nature; (i) employees of the State Board of Education who are performing services of an educational nature; (j) any person employed in a nonteaching capacity by the State Board of Education, any county board of education, the State Department of Education or the Teachers Retirement Board, if that person was formerly employed as a teacher in the public schools; (k) all classroom teachers, principals and educational administrators in schools under the supervision of the Division of Corrections, the Division of Health or the Division of Human Services; and (l) employees of the State Board of School Finance, if that person was formerly employed as a teacher in the public schools.
(30) "Total service" means all service as a teacher while a member of the retirement system since last becoming a member and, in addition thereto, credit for prior service, if any.

The masculine gender shall be construed so as to include the feminine.
Age in excess of seventy years shall be considered to be seventy years.
§18-7A-14. Contributions by members; contributions by employers.
(a) At the end of each month every member of the retirement system shall contribute six percent of that member's monthly earnable compensation gross salary to the Retirement Board: Provided, That any member employed by the West Virginia Board of Directors of the State College System or the Board of Trustees of the University System at an institution of higher education under its control shall contribute on the member's full earnable compensation, unless otherwise provided in section fourteen-a of this article.
(b) Annually, the contributions of each member shall be credited to the member's account in the Teachers Accumulation Retirement System Fund. The contributions shall be deducted from the salaries of the members as herein prescribed in this section, and every member shall be deemed considered to have given consent to such the deductions. No deductions, however, shall be made from the earnable compensation of any member who retired because of age or service, and then resumed service unless as provided in section thirteen-a of this article.
(c) The aggregate of employer contributions, due and payable under this article, shall equal annually the total deductions from the earnable compensation gross salary of members required by this section. Beginning the first day of July, one thousand nine hundred ninety-four, the rate shall be seven and one-half percent; beginning on the first day of July, one thousand nine hundred ninety-five, the rate shall be nine percent; beginning on the first day of July, one thousand nine hundred ninety-six, the rate shall be ten and one-half percent; beginning on the first day of July, one thousand nine hundred ninety-seven, the rate shall be twelve percent; beginning on the first day of July, one thousand nine hundred ninety-eight, the rate shall be thirteen and one-half percent; and beginning on the first day of July, one thousand nine hundred ninety-nine and thereafter, the rate shall be fifteen percent: Provided, That the rate shall be seven and one-half percent for any individual who becomes a member of the Teachers Retirement System for the first time on or after the first day of July, two thousand five, or any individual who becomes a member of the Teachers Retirement System as a result of the merger contemplated in article seven-c of this chapter.
(d) Payment by an employer to a member of the sum specified in the employment contract minus the amount of the employee's deductions shall be deemed considered to be a full discharge of the employer's contractual obligation as to earnable compensation.
(e) Each contributor shall file with the Retirement Board or with the employer to be forwarded to the Retirement Board an enrollment form showing the contributor's date of birth and other data needed by the Retirement Board.
§18-7A-17. Statement and computation of teachers' service; qualified military service.

(a) Under rules adopted by the Retirement Board, each teacher shall file a detailed statement of his or her length of service as a teacher for which he or she claims credit. The Retirement Board shall determine what part of a year is the equivalent of a year of service. In computing the service, however, it shall credit no period of more than a month's duration during which a member was absent without pay, nor shall it credit for more than one year of service performed in any calendar year.
(b) For the purpose of this article, the Retirement Board shall grant prior service credit to new entrants and other members of the retirement system for service in any of the armed forces of the United States in any period of national emergency within which a federal Selective Service Act was in effect. For purposes of this section, "armed forces" includes Women's Army Corps, women's appointed volunteers for emergency service, Army Nurse Corps, SPARS, Women's Reserve and other similar units officially parts of the military service of the United States. The military service is considered equivalent to public school teaching, and the salary equivalent for each year of that service is the actual salary of the member as a teacher for his or her first year of teaching after discharge from military service. Prior service credit for military service shall not exceed ten years for any one member, nor shall it exceed twenty-five percent of total service at the time of retirement. Notwithstanding the preceding provisions of this subsection, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this section, "qualified military service" has the same meaning as in Section 414(u) of the Internal Revenue Code. The Retirement Board is authorized to determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the Retirement Board in section one, article ten-d, chapter five of this code, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code. No military service credit may be used in more than one retirement system administered by the Consolidated Public Retirement Board.
(c) For service as a teacher in the employment of the federal government, or a state or territory of the United States, or a governmental subdivision of that state or territory, the Retirement Board shall grant credit to the member: Provided, That the member shall pay to the system double the amount he or she contributed during the first full year of current employment, times the number of years for which credit is granted, plus interest at a rate to be determined by the Retirement Board. The interest shall be deposited in the reserve fund and service credit granted at the time of retirement shall not exceed the lesser of ten years or fifty percent of the member's total service as a teacher in West Virginia. Any transfer of out-of-state service, as provided in this article, shall not be used to establish eligibility for a retirement allowance and the Retirement Board shall grant credit for the transferred service as additional service only: Provided, however, That a transfer of out-of-state service is prohibited if the service is used to obtain a retirement benefit from another retirement system: Provided further, That salaries paid to members for service prior to entrance into the retirement system shall not be used to compute the average final salary of the member under the retirement system.
(d) Service credit for members or retired members shall not be denied on the basis of minimum income rules promulgated by the teachers retirement board: Provided, That the member or retired member shall pay to the system the amount he or she would have contributed during the year or years of public school service for which credit was denied as a result of the minimum income rules of the Teachers Retirement Board.
(e) No members shall be considered absent from service while serving as a member or employee of the Legislature of the state of West Virginia during any duly constituted session of that body or while serving as an elected member of a county commission during any duly constituted session of that body.
(f) No member shall be considered absent from service as a teacher while serving as an officer with a statewide professional teaching association, or who has served in that capacity, and no retired teacher, who served in that capacity while a member, shall be considered to have been absent from service as a teacher by reason of that service: Provided, That the period of service credit granted for that service shall not exceed ten years: Provided, however, That a member or retired teacher who is serving or has served as an officer of a statewide professional teaching association shall make deposits to the Teachers Retirement Board, for the time of any absence, in an amount double the amount which he or she would have contributed in his or her regular assignment for a like period of time.
(g) The Teachers Retirement Board shall grant service credit to any former or present member of the West Virginia Public Employees Retirement System who has been a contributing member for more than three years, for service previously credited by the Public Employees Retirement System and: (1) Shall require the transfer of the member's contributions to the Teachers Retirement System; or (2) shall require a repayment of the amount withdrawn any time prior to the member's retirement: Provided, That there shall be added by the member to the amounts transferred or repaid under this subsection an amount which shall be sufficient to equal the contributions he or she would have made had the member been under the Teachers Retirement System during the period of his or her membership in the Public Employees Retirement System plus interest at a rate to be determined by the Board compounded annually from the date of withdrawal to the date of payment. The interest paid shall be deposited in the reserve fund.
(h) For service as a teacher in an elementary or secondary parochial school, located within this state and fully accredited by the West Virginia Department of Education, the Retirement Board shall grant credit to the member: Provided, That the member shall pay to the system double the amount contributed during the first full year of current employment, times the number of years for which credit is granted, plus interest at a rate to be determined by the Retirement Board. The interest shall be deposited in the reserve fund and service granted at the time of retirement shall not exceed the lesser of ten years or fifty percent of the member's total service as a teacher in the West Virginia public school system. Any transfer of parochial school service, as provided in this section, may not be used to establish eligibility for a retirement allowance and the Board shall grant credit for the transfer as additional service only: Provided, however, That a transfer of parochial school service is prohibited if the service is used to obtain a retirement benefit from another retirement system.
(i) Active members who previously worked in CETA (Comprehensive Employment and Training Act) may receive service credit for time served in that capacity: Provided, That in order to receive service credit under the provisions of this subsection the following conditions must be met: (1) The member must have moved from temporary employment with the participating employer to permanent full-time employment with the participating employer within one hundred twenty days following the termination of the member's CETA employment; (2) the Board must receive evidence that establishes to a reasonable degree of certainty as determined by the Board that the member previously worked in CETA; and (3) the member shall pay to the Board an amount equal to the employer and employee contribution plus interest at the amount set by the Board for the amount of service credit sought pursuant to this subsection: Provided, however, That the maximum service credit that may be obtained under the provisions of this subsection is two years: Provided further, That a member must apply and pay for the service credit allowed under this subsection and provide all necessary documentation by the thirty-first day of March, two thousand three: And provided further, That the Board shall exercise due diligence to notify affected employees of the provisions of this subsection.
(j) If a member is not eligible for prior service credit or pension as provided in this article, then his or her prior service shall not be considered a part of his or her total service.
(k) A member who withdrew from membership may regain his or her former membership rights as specified in section thirteen of this article only in case he or she has served two years since his or her last withdrawal.
(l) Subject to the provisions of subsections (a) through (l), inclusive, of this section, the Board shall verify as soon as practicable the statements of service submitted. The Retirement Board shall issue prior service certificates to all persons eligible for the certificates under the provisions of this article. The certificates shall state the length of the prior service credit, but in no case shall the prior service credit exceed forty years.
(m) Notwithstanding any provision of this article to the contrary, when a member is or has been elected to serve as a member of the Legislature, and the proper discharge of his or her duties of public office require that member to be absent from his or her teaching or administrative duties, the time served in discharge of his or her duties of the legislative office are credited as time served for purposes of computing service credit: Provided, That the Board may not require any additional contributions from that member in order for the Board to credit him or her with the contributing service credit earned while discharging official legislative duties: Provided, however, That nothing herein in this section may be construed to relieve the employer from making the employer contribution at the member's regular salary rate or rate of pay from that employer on the contributing service credit earned while the member is discharging his or her official legislative duties. These employer payments shall commence as of the first day of June, two thousand: Provided further, That any member to which the provisions of this subsection apply may elect to pay to the Board an amount equal to what his or her contribution would have been for those periods of time he or she was serving in the Legislature. The periods of time upon which the member paid his or her contribution shall then be included for purposes of determining his or her final average salary as well as for determining years of service: And provided further, That a member utilizing using the provisions of this subsection is not required to pay interest on any contributions he or she may decide to make.
(n) The Teachers Retirement Board shall grant service credit to any former member of the State Police Death, Disability and Retirement System who has been a contributing member for more than three years, for service previously credited by the State Police Death, Disability and Retirement System; and: (1) Shall require the transfer of the member's contributions to the Teachers Retirement System; or (2) shall require a repayment of the amount withdrawn any time prior to the member's retirement: Provided, That the member shall add to the amounts transferred or repaid under this paragraph an amount which is sufficient to equal the contributions he or she would have made had the member been under the Teachers Retirement System during the period of his or her membership in the State Police Death, Disability and Retirement System plus interest at a rate of six percent to be determined by the Board compounded annually from the date of withdrawal to the date of payment. The interest paid shall be deposited in the reserve fund.
§18-7A-18. Teachers Employers Contribution Collection Account; Teachers Retirement System Fund; transfers.

The funds created are the teachers accumulation fund, the employers accumulation fund, the benefit fund, the reserve fund and the expense fund. Each fund shall constitute a separate trust.
(a) The teachers accumulation fund shall be the fund in which the contributions of members shall be accumulated. The accumulated contributions of a member returned to the member upon that member's withdrawal, or paid to that member's estate or designated beneficiary in the event of death, shall be paid from the teachers accumulation fund. Any accumulated contributions forfeited by failure to claim such contributions shall be transferred from the teachers accumulation fund to the reserve fund.
(a) There is hereby created in the State Treasury a special revenue account designated the "Teachers Employers Contribution Collection Account" to be administered by the Consolidated Public Retirement Board. The Teachers Employers Contribution Collection Account shall be an interest-bearing account with interest credited to and deposited in the account and transferred in accordance with the provisions of this section.
(b) There shall be deposited into the Teachers Employers Contribution Collection Account the following:
(1) Beginning on the first day of July, one thousand nine hundred eighty-four, contributions Contributions of employers, shall be deposited in the employers accumulation fund through state appropriations, and such amounts shall be included in the budget bill submitted annually by the Governor;
(2) Beginning on the first day of July, one thousand nine hundred ninety-two and ninety-three, two thousand five, contributions from each county shall deposit in the employers accumulation fund in an amount equal to six fifteen percent of all salary paid in excess of that authorized for minimum salaries in sections two and eight-a, article four, chapter eighteen-a of this code and any salary equity authorized in section five of said article or any county supplement equal to the amount distributed for salary equity among the counties beginning on the first day of July, one thousand nine hundred ninety-four, the rate shall be seven and one-half percent; beginning on the first day of July, one thousand nine hundred ninety-five, the rate shall be nine percent; beginning on the first day of July, one thousand nine hundred ninety-six, the rate shall be ten and one-half percent; beginning on the first day of July, one thousand nine hundred ninety-seven, the rate shall be twelve percent; beginning on the first day of July, one thousand nine hundred ninety-eight, the rate shall be thirteen and one-half percent; and beginning on the first day of July, one thousand nine hundred ninety-nine and thereafter, the rate shall be fifteen percent for each individual who was a member of the Teachers Retirement System before the first day of July, two thousand five: Provided, That the rate shall be seven and one-half percent for any individual who becomes a member of the Teachers Retirement System for the first time on or after the first day of July, two thousand five, or any individual who becomes a member of the Teachers Retirement System as a result of the merger contemplated in article seven-c of this chapter;
(3) The amounts transferred pursuant to section eighteen-a of this article; and
(4) Any other moneys, available and not otherwise expended, which may be appropriated or transferred to this account
.
(c) Moneys on deposit in the Teacher Employers Contribution Collection Account shall be transferred monthly in the following order:
(1) To the Teachers Retirement System Fund the amount certified by the Consolidated Public Retirement Board as the actuarially required contribution;
(2) To the Pension Liability Redemption Fund the amount, if any, appropriated in accordance with section eight, article eight, chapter twelve of this code; and
(3) The balance, if any, to the Employee Pension and Health Care Benefits Fund established under section thirty-nine, article seven-a of this chapter.
(d) There is hereby continued in the State Treasury a separate irrevocable trust designated the Teachers Retirement System Fund. The Teachers Retirement System Fund shall be invested as provided in section nine-a, article six, chapter twelve of this code.
(e) There shall be deposited into the Teachers Retirement System Fund, the following:
(1) Moneys transferred from the Teachers Employers Contribution Collection Account;
(2) Member contributions provided for in section fifteen of this article;
(3) Gifts and bequests to the fund and any accretions and accumulations which may properly be paid into and become a part of
the fund;
(4) Specific appropriations to the fund made by the Legislature;
(5) Interest on the investment of any part or parts of the fund; and
(6) Any other moneys, available and not otherwise expended, which may be appropriated or transferred to the Teachers Retirement System or the Fund.
(c) (f) The benefit fund Teachers Retirement System Fund shall be the fund from which annuities shall be paid. Upon the retirement of a member, that member's accumulated contributions shall be transferred from the teachers accumulation fund to the benefit fund; the accumulated employers' contribution shall be transferred from the employers accumulation fund to the benefit fund; and annually a sum for prior service pension and disability credits, if needed, shall be transferred from the reserve fund to the benefit fund. Any deficit occurring in the benefit fund which is not automatically met by payments to that fund, as provided for by this article, shall be met by additional transfers from the employers accumulation fund and, if necessary, by transfers from the teachers accumulation fund.
(d) The retirement board is hereby authorized to accept gifts and bequests. All gifts, bequests and interest earnings from investments received by the board shall be deposited in the reserve fund. Any funds that may come into possession of the retirement system in this manner or which may be transferred from the teachers accumulation fund by reason of the lack of a claimant or because of a surplus in any of the funds, or any other moneys the disposition of which is not otherwise provided for, shall be credited to the reserve fund. The retirement board shall allow interest on the contributions in the teachers accumulation fund. Such interest shall be paid from the reserve fund and credited to the teachers accumulation fund. Any deficit occurring in any fund which would not be automatically covered by the payments to that fund as otherwise provided by this article shall be met by transfers from the reserve fund to such fund. In the reserve fund shall be accumulated moneys from retirement board appropriations to pay the accrued liabilities of the system, caused by the granting of prior service, ad hoc increases granted prior to the first day of July, one thousand nine hundred eighty, and disability pensions. Costs associated with board investments, such as premiums, accrued interest and commissions, shall be paid from the reserve fund.
(e) The expense fund shall be the fund from which shall be paid the expense incurred in the administration of the retirement system. The retirement board is herewith authorized to pay, from the expense fund, membership fees in such voluntary organizations as the national council on teacher retirement, anything in this code to the contrary notwithstanding. Interest on loans to members shall be deposited in the expense fund.
(g) The Consolidated Public Retirement Board is herewith given has sole authority to direct and approve the making of any and all fund transfers as provided herein in this section, anything in this code to the contrary notwithstanding.
(h) References in the code to the Teachers Accumulation Fund, the Employers Accumulation Fund, the Benefit Fund, the Reserve Fund and the Expense Fund mean the Teachers Retirement System Fund.
§18-7A-18a. Calculation of allocation to Teachers Employers Contribution Collection Account.

(a) Beginning the first day of June, one thousand nine hundred ninety-one, the consolidated public retirement board, created pursuant to article ten-d, chapter five of this code, shall make an annual calculation of the aggregate full compensation actually received by the following persons:
(1) Those persons employed on or after the first day of July, one thousand nine hundred ninety-one who would have been teacher members of the state teachers retirement system under this article if such persons' employment had begun prior to such date; and
(2) Those persons employed on and after the first day of July, one thousand nine hundred ninety-one, who would have been nonteaching members of the state teacher's retirement system under this article if such persons' employment had begun prior to such date.
(b) There shall be an annual allocation from the State General Revenue Fund to the reserve fund Teachers Employers Contribution Collection Account, created by section eighteen of this article, equal to the sum of seven and one-half percent of the aggregate compensation totals of subdivisions one and two, subsection (a) of this section actuarially required contribution, reduced by any employer contributions and other allocated amounts.
There shall be an additional allocation in each year an amount equal to the total of all irrevocably forfeited amounts in the suspension account established in section eleven, article seven-b of this chapter plus earnings thereon which have been certified to the several contributing employers as irrevocably forfeited in the prior fiscal year and subsequently utilized used by said the contributing employers to reduce their total aggregate contribution requirements pursuant to section seventeen, article seven-b of this chapter.
(c) (b) The additional allocation provided in this section represents a funding method by which a part of a rational amortization plan will be established to amortize the current unfunded liability of the Teachers Retirement System created by this article. The additional allocations are not and shall not be construed to be moneys which are owed to, nor earned by any employee. designated in subdivision (1) or (2), subsection (a) of this section. The calculation of additional allocation provided for herein is solely a mathematical formula to quantify the savings in the state general revenue funds caused by the enactment of the Teachers' Retirement Reform Act codified in article seven-b of this chapter. §18-7A-23a. Terminal benefits.
For the purposes of this section, the term "accumulated net benefit" means the aggregate amount of all benefits paid to or on behalf of a member. This includes, without limitation: (a) Benefits paid to the member as an annuity; (b) any lump sum distributions paid to the member or to any other person on account of the member's rights to benefits from the plan; (c) survivor benefits paid to any person or persons on account of the member's rights to benefits from the plan; and (d) any other distributions on account of the member's rights to benefits from the plan whether they are paid in the nature of a refund of contributions, interest on contributions, lump sum distributions, or annuity type benefits. The amounts counted will be the amounts actually paid without regard to any optional form of any annuity benefit.
For the purposes of this section, the term "accumulated employee contributions" means all money the member has contributed to the plan, whether the form of the contribution was after tax deductions from wages, before tax deductions from wages, direct remittance by the member to repay contributions and interest previously distributed and direct remittance by the member to pay imputed contributions for period which were not subject to contributions but may be counted for benefit purposes under the plan. The term accumulated employee contributions does not include any amount credited under the provisions of the plan as interest on member contributions.
For the purposes of this section, the term "member's account" means the excess of the accumulated employee contributions over the accumulated net benefit payments at any point in time and the term "member" includes each individual who has contributed, or will contribute in the future, to the teachers retirement system, including each retirant.
(a) This section provides for the payment of the balance in the a retired member's account to paid in the manner described herein in this section in the event that all claims to benefits payable to, or on behalf of, a member expire before his or her member account has been fully exhausted. The expiration of such the rights to benefits would be on the occasion of later of either the death of the retired member and any and all beneficiaries who might have a claim to regular benefit payments under the plan, for any form of benefit. Without limitation, this would include the demise of beneficiaries of survivor annuities and beneficiaries of any lump sum distributions drawing benefits under a straight life annuity, or the death of a survivor annuitant drawing benefits under any optional form of benefit selected by the retired member.
(b) In the event that all claims to benefits payable to, or on behalf of, a retired member expire, and the accumulated employee contributions exceed his or her the accumulated net benefit payments paid to or on behalf of the retired member, the balance in the retired member's account shall be paid to the person or persons as the retired member has nominated by written designation duly executed and filed with the board of trustees. If there be is no designated person or persons surviving the retired member following the expiration of the claims, the excess of the accumulated employee contributions over the accumulated net benefit, if any, shall be paid to his or her the retired member's estate: In no case may the plan retain any amount of the accumulated employee contributions remaining in the member's account, but it shall retain interest earned on the same accumulated employee contributions in the instance of a member's or beneficiary's post- retirement death. Provided, That the provisions of this section are retroactive to all members who entered retirement status on or after the ninth day of June, two thousand.
§18-7A-25. Eligibility for retirement allowance.
(a) Any member who has attained the age of sixty years or who has had thirty-five years of total service as a teacher in West Virginia, regardless of age, shall be is eligible for an annuity. No new entrant nor present member shall be is eligible for an annuity, however, if either has less than five years of service to his or her credit.
(b) Any member who has attained the age of fifty-five years and who has served thirty years as a teacher in West Virginia shall be is eligible for an annuity.
(c) Any member who has served at least thirty but less than thirty-five years as a teacher or nonteaching member in West Virginia and is less than fifty-five years of age shall be is eligible for an annuity, but the same annuity shall be the reduced actuarial equivalent of the annuity the member would have received if such the member were age fifty-five at the time such annuity was applied for.
(d) The request for any annuity shall be made by the member in writing to the Retirement Board, but in case of retirement for disability, the written request may be made by either the member or the employer.
(e) A member shall be is eligible for annuity for disability if he or she satisfies the conditions in either subsection (a) or (b) of this section and meets the conditions of subsection (c) of this section as follows:
(a) (1) His or her service as a teacher or nonteaching member in West Virginia must total at least ten years, and service as a teacher or nonteaching member must have been terminated because of disability, which disability must have caused absence from service for at least six months before his or her application for disability annuity is approved.
(b) (2) His or her service as a teacher or nonteaching member in West Virginia must total at least five years, and service as a teacher or nonteaching member must have been terminated because of disability, which disability must have caused absence from service for at least six months before his or her application for disability annuity is approved and said the disability is a direct and total result of an act of student violence directed toward the member.
(c) (3) An examination by a physician or physicians selected by the Retirement Board must show that the member is at the time mentally or physically incapacitated for service as a teacher, that for such that service the disability is total and likely to be permanent, and that he or she should be retired in consequence thereof of the disability.
(f) Continuance of the disability of the retired teacher member shall be established by medical examination, as prescribed in the preceding paragraph subdivision (3), subsection (e) of this section, annually for five years after retirement, and thereafter at such times as required by the Retirement Board may require. Effective the first day of July, one thousand nine hundred ninety- eight, a member who has retired because of a disability may select an option of payment under the provisions of section twenty-eight of this article: Provided, That any option selected under the provisions of section twenty-eight of this article shall be in all respects the actuarial equivalent of the straight life annuity benefit the disability retiree receives or would receive if the options under section twenty-eight of this article were not available and that no beneficiary or beneficiaries of the disability annuitant may receive a greater benefit, nor receive any benefit for a greater length of time, than such the beneficiary or beneficiaries would have received had the disability retiree not made any election of the options available under said section twenty-eight. In determining the actuarial equivalence, the Board shall take into account the life expectancies of the member and the beneficiary: Provided, however, That the life expectancies may at the discretion of the Board be established by an underwriting medical director of a competent insurance company offering annuities. Payment of the disability annuity provided in this article shall cease immediately if the Retirement Board finds that the disability of the retired teacher no longer exists, or if the retired teacher refuses to submit to medical examination as required by this section.
§18-7A-26. Computation of annuities.
(a) Annuitants whose annuities were approved by the Retirement Board effective before the first day of July, one thousand nine hundred eighty, shall be paid the annuities which were approved by the Retirement Board.
(b) Annuities approved by the Board effective after the thirtieth day of June, one thousand nine hundred eighty, shall be computed as provided herein in this section.
(c) Upon establishment of eligibility for a retirement allowance, a member shall be granted an annuity which shall be the sum of the following:
(a) (1) Two percent of the member's average salary multiplied by his or her total service credit as a teacher. In this paragraph subdivision "average salary" shall mean means the average of the highest annual salaries received by the member during any five years contained within his or her last fifteen years of total service credit: Provided, That the highest annual salary used in this calculation for certain members employed by the West Virginia Higher Education Policy Commission under its control shall be four thousand eight hundred dollars, as provided by section fourteen-a of this article and chapter;
(b) (2) The actuarial equivalent of the voluntary deposits of the member in his or her individual account up to the time of his or her retirement, with regular interest.
(d) The disability annuities of all teachers retired for disability shall be based upon a disability table prepared by a competent actuary approved by the Retirement Board.
(e) Upon the death of an annuitant who qualified for an annuity as the surviving spouse of an active member or because of permanent disability, the estate of the deceased or beneficiary designated for such purpose shall be paid the difference, if any, between the member's contributions with regular interest thereon, and the sum of the annuity payments. Upon the death of a spouse who was named as the member's survivor, a retirant may elect an annuity option approved by the Retirement Board in an amount adjusted on a fair basis to be of equal actuarial value as the annuity prospectively in effect relative to the surviving member at the time the new option is elected.
(f) All annuities shall be paid in twelve monthly payments. In computing the monthly payments, fractions of a cent shall be deemed considered a cent. The monthly payments shall cease with the payment for the month within which the beneficiary dies, and shall begin with the payment for the month succeeding the month within which the annuitant became eligible under this article for the annuity granted; in no case, however, shall an annuitant receive more than four monthly payments which are retroactive after the Board receives his or her application for annuity. Beginning with the first day of July, one thousand nine hundred ninety-four, the The monthly payments shall be made on the twenty-fifth day of each month, except the month of December, when the payment shall be made on the eighteenth day of December. If the date of payment falls on a holiday, Saturday or Sunday, then the payment shall be made on the preceding workday.
(g) In case the Retirement Board receives data affecting the approved annuity of a retired teacher, the annuity shall be changed in accordance with the data, the change being effective with the payment for the month within which the Board received the new data.
(h) Any person who has attained the age of sixty-five and who has served at least twenty-five years as a teacher prior to the first day of July, one thousand nine hundred forty-one, shall be is eligible for prior service credit and for prior service pensions as prescribed in this section.
§18-7A-28e. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or create any new benefits for any retirees or beneficiaries currently receiving monthly benefit payments from the retirement system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, in an amount that would exceed more than one percent of the accrued actuarial liability of the system as of the last day of the preceding fiscal year as determined in the annual actuarial valuation for each plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year.
(b) If any increase of existing benefits or creation of new benefits for any retirees or beneficiaries currently receiving monthly benefit payments under the retirement system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, causes any additional unfunded actuarial accrued liability in any of the West Virginia state-sponsored pension systems as calculated in the annual actuarial valuation for each plan during any fiscal year, additional unfunded actuarial accrued liability of that pension system shall be fully amortized over no more than the five consecutive fiscal years following the date the increase in benefits or new benefits become effective as certified by the Consolidated Public Retirement Board. Following the receipt of the certification of additional actuarial accrued liability, the Governor shall submit the amount of the amortization payment each year for the retirement system as part of the annual budget submission or in an executive message to the Legislature.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, the computation of annuities or benefits for active members due to retirement, death or disability as provided for in the retirement system shall not be amended in such a manner as to increase any existing benefits or to provide for new benefits.
(d) The provisions of this section terminate effective the first day of July, two thousand thirty-four: Provided, That if bonds are issued pursuant to article eight, chapter twelve of this code, the provisions of this section shall not terminate while any of the bonds are outstanding.
§18-7A-34. Loans to members.
(a) A An actively contributing member of the retirement system upon written application may borrow from his or her individual account in the Teachers Accumulation Fund, subject to these restrictions:
(1) Loans shall be made in multiples of ten dollars, the minimal loan being one hundred dollars and the maximum being eight thousand dollars: Provided, That the maximum amount of any loan when added to the outstanding balance of all other loans shall not exceed the lesser of the following: (A) Fifty Eight thousand dollars reduced by the excess (if any) of the highest outstanding balance of loans during the one-year period ending on the day before the date on which the loan is made, over the outstanding balance of loans to the member on the date on which the loan is made; or (B) fifty percent of the member's contributions to his or her individual account in the Teachers Accumulations Fund: Provided, however, That if the total amount of loaned money outstanding exceeds forty million dollars, the maximum shall not exceed three thousand dollars until the Retirement Board determines that loans outstanding have been reduced to an extent that additional loan amounts are again authorized.
(2) Interest charged on the amount of the loan shall be six percent per annum, or a higher rate as set by the Retirement Board: Provided, That interest charged shall be commercially reasonable in accordance with the provisions of Section 72(p)(2) of the Internal Revenue Code, and the federal regulations issued thereunder. If repayable in installments, the interest shall not exceed the annual rate so established upon the principal amount of the loan, for the entire period of the loan, and such charge shall be added to the principal amount of the loan. The minimal interest charge shall be for six months.
(3) No member shall be is eligible for more than one outstanding loan at any time.
(4) If a refund is payable to the borrower or his or her beneficiary before he or she repays the loan with interest, the balance due with interest to date shall be deducted from such the refund.
(5) From his or her monthly salary as a teacher or a nonteacher the member shall pay the loan and interest by deductions which will pay the loan and interest in substantially level payments in not more than sixty nor less than six months. Upon notice of loan granted and payment due, the employer shall be is responsible for making such the salary deductions and reporting them to the Retirement Board. At the option of the Retirement Board, loan deductions may be collected as prescribed herein for the collection of members' contribution, or may be collected through issuance of warrant by employer. If the borrower decides to make loan payments while not paid for service as a teacher, is no longer employed as a teacher or nonteaching member, the borrower must make monthly loan payments directly to the Consolidated Public Retirement Board and the Retirement Board must accept such the payments.
(6) The entire unpaid balance of any loan, and interest due thereon, shall, at the option of the Retirement Board, become due and payable without further notice or demand upon the occurrence with respect to the borrowing member of any of the following events of default: (A) Any payment of principal and accrued interest on a loan remains unpaid after the same it becomes due and payable under the terms of the loan or after such the grace period as may be established in the discretion of the Retirement Board; (B) the borrowing member attempts to make an assignment for the benefit of creditors of his or her refund or benefit under the retirement system; or (C) any other event of default set forth in rules promulgated by the Retirement Board in accordance with the authority granted pursuant to section one, article ten-d, chapter five of this code: Provided, That any refund or offset of an unpaid loan balance shall be made only at the time the member is entitled to receive a distribution under the retirement system.
(7) Loans shall be evidenced by such form of obligations and shall be made upon such additional terms as to default, prepayment, security, and otherwise as the Retirement Board may determine.
(8) Notwithstanding anything herein to the contrary, the loan program authorized by this section shall comply with the provisions of Sections 72(p)(2) and 401 of the Internal Revenue Code, and the federal regulations issued thereunder, and accordingly, the Retirement Board is authorized to: (A) Apply and construe the provisions of this section and administer the plan loan program in such a manner as to comply with the provisions of Sections 72(p)(2) and 401 of the Internal Revenue Code and the federal regulations issued thereunder; (B) adopt plan loan policies or procedures consistent with these federal law provisions; and (C) take such actions as it deems necessary or appropriate to administer the plan loan program created hereunder in accordance with these federal law provisions. The Retirement Board is further authorized in connection with the plan loan program to take any actions that may at any time be required by the Internal Revenue Service regarding compliance with the requirements of Section 72(p)(2) or 401 of the Internal Revenue Code, and the federal regulations issued thereunder, notwithstanding any provision in this article to the contrary.
(b) Notwithstanding anything in this article to the contrary, the loan program authorized by this section shall not be available to any teacher or nonteacher who becomes a member of the Teachers Retirement System on or after the first day of July, two thousand five: Provided, That a member is eligible for loan under subsection (c), section six, article seven-c of this chapter to pay all or part of the one and one-half percent contribution for service in the Defined Contribution Plan.
§18-7A-39. Employee Pension and Health Care Benefits Fund.
(a) There is hereby created in the State Treasury a special revenue account designated as the "Employee Pension and Health Care Benefits Fund" to be administered by the Department of Administration. Funds in this account may be invested in the manner permitted by the provisions of article six, chapter twelve of this code, with all interest income credited to this Fund.
(b) Effective the first day of July, two thousand five, any savings realized from the reduction in employer contributions for current retirement benefits, being the difference between the required employer contributions that would have been required into the Teachers Defined Contribution System as in effect immediately prior to the first day of July, two thousand five, and the required employer contribution for normal cost into the State Teachers Retirement System on and after the first day of July, two thousand five, shall be deposited into the Employee Pension and Health Care Benefits Fund. The Consolidated Public Retirement Board shall determine the annual amount of the savings based on the annual actuarial valuation for the plan prepared as of the first day of July following the end of each fiscal year and certify the amount to the Governor by the thirty-first day of January of that fiscal year. The Governor shall submit the amount of the savings as part of the annual budget submission or in an executive message to the Legislature.
(c) Moneys in the Employee Pension and Health Care Benefits Fund are to be used and expended to pay for the cost of unfunded health care benefits or unfunded pension benefits, or to be transferred into the Pension Liability Redemption Fund created in section eight, article eight, chapter twelve of this code.
§18-7A-40. Higher education employees.
Nothing in this article or article seven-b of this chapter shall be construed:
(1) To be in conflict with section four-a, article twenty- three, chapter eighteen of this code; or
(2) To affect the membership of higher education employees who are currently members of either the State Teachers Retirement System created in this article or the Teachers Defined Contribution Retirement System created in article seven-b of this chapter: Provided, That if the merger contemplated by article seven-c of this chapter occurs, any higher education employees who are currently members of the Teachers Defined Contribution Retirement System shall become members of the Teachers Retirement System.
ARTICLE 7B. TEACHERS DEFINED CONTRIBUTION RETIREMENT SYSTEM.
§18-7B-2. Definitions.

As used in this article, unless the context clearly require a different meaning:
(1) "Defined contribution system" or "system" means the Teachers Defined Contribution Retirement System created and established by this article:
(2) "Existing retirement system" means the State Teachers Retirement System established in article seven-a of this chapter;
(3) "Existing employer" means any employer who employed or employs a member of the existing retirement system;
(4) "Consolidated Board" or "Board" means the Consolidated Public Retirement Board created and established pursuant to article ten-d, chapter five of this code;
(5) "Member" or "employee" means the following persons, if regularly employed for full-time service: (A) Any person employed for instructional service in the public schools of West Virginia; (B) principals; (C) public school librarians; (D) superintendents of schools and assistant county superintendents of schools; (E) any county school attendance director holding a West Virginia teacher's certificate; (F) the executive secretary of the retirement board; (g) (F) members of the research, extension, administrative or library staffs of the public schools; (h) (G) the State Superintendent of Schools, heads and assistant heads of the divisions under his or her supervision, or any other employee under the State Superintendent performing services of an educational nature; (i) (H) employees of the State Board of Education who are performing services of an educational nature; (j) (I) any person employed in a nonteaching capacity by the State Board of Education, any county board of education or the State Department of Education or the teachers retirement board, if that person was formerly employed as a teacher in the public schools; (k) (J) all classroom teachers, principals and educational administrators in schools under the supervision of the Division of Corrections and the Department of Health and Human Resources; (l) (K) any person who is regularly employed for full-time service by any county board of education or the State Board of Education or the teachers retirement board; and (m) (L) the administrative staff of the public schools including deans of instruction, deans of men and deans of women, and financial and administrative secretaries;
(6) "Regularly employed for full-time service" means employment in a regular position or job throughout the employment term regardless of the number of hours worked or the method of pay;
(7) "Year of employment service" means employment for at least ten months, a month being defined as twenty employment days: Provided, That no more than one year of service may be accumulated in any twelve-month period;
(8) "Employer" means the agency of and within the State of West Virginia which has employed or employs a member;
(9) "Compensation" means the full compensation actually received by members for service whether or not a part of the compensation is received from other funds, federal or otherwise, than those provided by the state or its subdivisions;
(10) "Public schools" means all publicly supported schools, including normal schools, colleges and universities in this state;
(11) "Member contribution" means an amount reduced from the employee's regular pay periods, and deposited into the member's individual annuity account within the Defined Contribution Retirement System;
(12) "Employer contribution" means an amount deposited into the member's individual annuity account on a periodic basis coinciding with the employee's regular pay period by an employer from its own funds;
(13) "Annuity account" or "annuity" means an account established for each member to record the deposit of member contributions and employer contributions and interest, dividends or other accumulations credited on behalf of the member;
(14) "Retirement" means a member's withdrawal from the active employment of a participating employer and completion of all conditions precedent to retirement;
(15) "Permanent, total disability" means a mental or physical incapacity requiring the absence from employment service for at least six months: Provided, That the incapacity is shown by an examination by a physician or physicians selected by the Board: Provided, however, That for employees hired on or after the first day of July, two thousand five, permanent, total disability means an inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than twelve months and the incapacity is so severe that the member is likely to be permanently unable to perform the duties of the position the member occupied immediately prior to his or her disabling injury or illness;
(16) "Plan year" means the twelve-month period commencing on the first day of July of any designated year and ending on the following thirtieth day of June;
(17) "Required beginning date" means the first day of April of the calendar year following the later of: (a) The calendar year in which the member attains age seventy-one and one-half years; or (b) the calendar year in which the member retires or otherwise ceases employment with a participating employer after having attained the age of seventy and one-half years; and
(18) "Internal Revenue Code" means the Internal Revenue Code of 1986, as it has been amended.
§18-7B-7. Participation in Teachers Defined Contribution Retirement System; limiting participation in existing Teachers Retirement System.

(a) Beginning the first day of July, one thousand nine hundred ninety-one, and except as provided for in this section, the Teachers Defined Contribution Retirement System shall be the single retirement program for all new employees whose employment commences on or after that date and all new employees shall be required to participate. No additional new employees except as may be provided for in this section may be admitted to the existing Teachers Retirement System.
(b) Members of the existing Teachers Retirement System whose employment continues beyond the first day of July, one thousand nine hundred ninety-one, and those whose employment was terminated after the thirtieth day of June, one thousand nine hundred ninety-one, under a reduction in force are not affected by subsection (a) of this section and shall continue to contribute to and participate in the existing Teachers Retirement System without a change in plan provisions or benefits.
(c) Any person who was previously a member of the Teachers Retirement System and who left participating employment before the creation of the Defined Contribution System on the first day of July, one thousand nine hundred ninety-one, and who later returned to participating employment after the effective date of this section has the right to elect to return to the existing Teachers Retirement System or to elect to participate in the Defined Contribution System. The election shall be made at the time of his or her reemployment, is irrevocable and shall be made upon forms approved by and filed with the West Virginia Consolidated Public Retirement Board.
(d) Any person who was, prior to the first day of July, one thousand nine hundred ninety-one, a member of the existing Teachers Retirement System who left participating employment before the creation of the Teachers Defined Contribution Retirement System on the first day of July, one thousand nine hundred ninety-one, and who later returned to participating employment after that date and who was precluded from returning to the existing Teachers Retirement System as a result of prior provisions of this section, may elect, pursuant to the provisions of this section, readmission to the existing Teachers Retirement System: Provided, That persons who are eligible to, and who make the election to, terminate their participation in the Defined Contribution System and to return to participation in the existing Teachers Retirement System as provided for in this section shall make the election, on a form approved by and filed with the West Virginia Consolidated Public Retirement Board on or before the thirtieth day of June, two thousand two: Provided, however, That as a condition of the right of readmission to the existing Teachers Retirement System, persons a person making the election provided for in this section whose Defined Contribution Account had not, prior to such election, been divided by a qualified domestic relations order, shall pay an additional contribution to the existing Teachers Retirement System equal to one and one-half percent of his or her annual gross compensation earned for each year during which he or she participated in the Defined Contribution System and shall consent and agree to the transfer of his or her total account balance in the Defined Contribution System as of the most recent plan valuation immediately preceding his or her transfer to the existing Teachers Retirement System. For persons a person making the election provided for in this section whose defined contribution account had, prior to such the election, previously been divided by a qualified domestic relations order, the cost to such person to transfer to the existing Teachers Retirement System shall be actuarially determined by the Consolidated Public Retirement Board. Upon verification of that person's eligibility to return to participation in the existing Teachers Retirement System and the tender and transfer of funds as provided for in this subsection, persons a person making this election shall receive service credit for the time the member participated in the Defined Contribution System as if his or her participation had been in the existing Teachers Retirement System: Provided further, That the right to terminate participation in the Defined Contribution System and to resume participation in the existing Teachers Retirement System as provided for in this section is irrevocable and shall not apply to any person who, while members a member of the Teachers Retirement System, voluntarily elected to terminate his or her membership in the Teachers Retirement System and to become a participant in the Defined Contribution System pursuant to section eight of this article.
(e) Any employee whose employment with an employer was suspended or terminated while he or she served as an officer with a statewide professional teaching association, is eligible for readmission to the existing retirement system in which he or she was a member.
(f) An employee whose employment with an employer or an existing employer is suspended as a result of an approved leave of absence, approved maternity or paternity break in service or any other approved break in service authorized by the Board is eligible for readmission to the existing retirement system in which he or she was a member.
(g) In all cases in which a question exists as to the right of an employee to readmission to membership in the existing Teachers Retirement System, the Consolidated Public Retirement Board shall decide the question.
(h) Any individual who is not a "member" or "employee" as defined by section two of this article and any individual who is a leased employee is not eligible to participate in the Teachers Defined Contribution System. For purposes of this section, a "leased" employee means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or other similar organization. In all cases in which a question exists as to whether an individual is eligible for membership in this system, the Consolidated Public Retirement Board shall decide the question.
(i) Effective the first day of July, two thousand five, and continuing through the first day of two thousand six, any employee of River Valley Child Development Services, Inc., who is a member of the Teachers Defined Contribution Retirement System may elect to withdraw from membership and join the private pension plan provided by River Valley Child Development Services, Inc.
(j) River Valley Child Development Services, Inc., and its successors in interest shall provide for their employees a pension plan in lieu of the Teachers Defined Contribution Retirement System on or before the first day of July, two thousand five, and continuing thereafter during the existence of the River Valley Child Development Services, Inc., and its successors in interest. All new employees hired after the thirtieth day of June, two thousand five, shall participate in the pension plan in lieu of the Teachers Defined Contribution Retirement System.
(k) The administrative body of River Valley Child Development Services, Inc., shall, on or before the first day of June, two thousand five, give written notice to each employee who is a member of the Teachers Defined Contribution Retirement System of the option to withdraw from or remain in the system. The notice shall include a copy of this section and a statement explaining the member's options regarding membership. The notice shall include a statement in plain language giving a full explanation and actuarial projection figures, prepared by an independent actuary, in support of the explanation regarding the individual member's current account balance, vested and nonvested, and his or her projected return upon remaining in the Teachers Defined Contribution Retirement System until retirement, disability or death, in comparison with the projected return upon withdrawing from the Teachers Defined Contribution Retirement System and joining a private pension plan provided by River Valley Child Development Center, Inc., and remaining therein until retirement, disability or death. The administrative body shall keep in its records a permanent record of each employee's signature confirming receipt of the notice.
§18-7B-7a. Plan closed to persons employed for the first time after June, 2005; former employees.

The Retirement System created and established in this article shall be closed and no new members accepted in the system after the thirtieth day of June, two thousand five. Notwithstanding the provisions of sections seven and eight of this article, all persons who are regularly employed for full-time service as a member or an employee whose initial employment commences after the thirtieth day of June, two thousand five, shall become a member of the State Teachers Retirement System created and established in article seven-a of this chapter: Provided, That any person rehired after the thirtieth day of June, two thousand five, shall become a member of the Teachers Defined Contribution Retirement System created and established in this article, or of the Teachers Retirement System created and established in article seven-a of this chapter, depending upon which system he or she last contributed to while he or she was employed with an employer mandating membership and contributions to one of those plans: Provided, however, That if, and only if, the Teachers Defined Contribution Retirement System is merged and consolidated with the Teachers Retirement System pursuant to the provisions of article seven-c of this chapter, then all employees shall be a member of the Teachers Retirement System as of the first day of July, two thousand six, as provided in said article.
§18-7B-9. Members' contributions; annuity account established.
(a) Each employee who is a member of the Defined Contribution System shall contribute four and one-half percent of his or her gross compensation by salary reduction deduction. Such The salary reductions deductions shall be made by the employer at the normal payroll intervals and shall be paid to the Teachers Defined Contribution Retirement System within fifteen days of the end of the pay period: Provided, That the Board may require any employer to make the payments within such shorter period as it may determine, upon at least sixty days notice to the employer, if the Board determines the employer has the technological capacity to transfer the funds within the shorter period. The employer payments shall be remitted by the Board within five working days to the private pension, insurance, annuity, mutual fund, or other qualified company or companies designated by the Board to administer the day-to-day operations of the system.
(b) All member contributions shall be immediately deposited to an account or accounts established in the name of the member and held in trust for the benefit of the member. An account agreement shall be issued to each member setting forth the terms and conditions under which contributions are received, and the investment and retirement options available to the member. The Board shall promulgate by the thirtieth day of June, one thousand nine hundred ninety-one propose for legislative approval in accordance with article three, chapter twenty-nine-a of this code, pursuant to section six of this article, rules defining the minimum requirements for the investment and retirement options to be provided to the members.
The consolidated public employees retirement board shall study the feasibility of employees making personal contributions to the defined contribution system in addition to those required by this section and the impact of the United States Internal Revenue Code of one thousand nine hundred eighty-six, as amended, upon such contributions. The results of said study and recommendations for legislation to authorize such additional payments shall be presented to the committee on pensions and retirement of each house of the Legislature on or before the first day of October, one thousand nine hundred ninety-six.
(c) Such rules The legislative rules proposed by the Board, to the extent not inconsistent with the applicable provisions of the Internal Revenue Code of the United States, shall provide for varied retirement options including, but not limited to:
(1) Lump sum or periodic payment distributions;
(2) Joint and survivor annuities;
(3) Other annuity forms in the discretion of the Board;
(4) Variable annuities which gradually increase monthly retirement payments: Provided, That said increased payments are funded solely by the existing current value of the member's account at the time the member's retirement payments commencement commence and not, to any extent, in a manner which would require additional employer or employee contributions to any member's account after retirement or after the cessation of employment; and
(5) The instances in which, if any, distributions or loans can be made to members from their annuity account balances prior to having attained the age of fifty-five.
§18-7B-11. Termination of membership.
(a) Any member whose employment with a participating employer terminates after the completion of six complete years of employment service shall be is eligible to terminate his or her annuity account and receive a distribution from the member's annuity account, in an amount equal to the member's contribution plus one third of the employer contributions and any earnings thereon. Any member whose employment with a participating employer terminates after the completion of nine complete years of employment service shall be is eligible to terminate his or her annuity account and receive a distribution from the member's annuity account, in an amount equal to the member's contribution plus two thirds of the employer's contributions and any earnings thereon. Any member whose employment with a participating employer terminates after the completion of twelve complete years of employment service shall be is eligible to terminate his or her annuity account and receive a distribution of all funds contributed and accumulated in his or her annuity account. Any member whose employment with a participating employer terminates prior to the completion of six complete years of employment service shall be is eligible to terminate his or her annuity account and receive a distribution from the member's annuity account, in an amount equal to the member's contribution plus any earnings thereon: Provided, That on the death or permanent, total disability of any member, that member shall be is eligible to terminate his or her annuity account and receive all funds contributed to or accumulated in his or her annuity account.
(b) (1) The Upon termination of employment, regardless of whether the member has taken a distribution of all or a portion of his or her vested account, the remaining balance, if any, in the member's employer account after the distribution that is not vested shall be remitted and paid into a suspension account, hereby created, to be administered by the Board. The Board shall promulgate rules propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code regarding the distribution of any balance in the special account created by this section: Provided, That any funds in the account shall be used solely for the purpose of reducing employer contributions in future years.
(2) Any account balances remitted to the suspension account herein shall be maintained by the Board in said the suspension account in the name of the terminated employee for a period of five years following initial remittance to the suspension account the member's termination of employment. For each said terminated employee at the culmination of the aforesaid five-year period, the Board shall certify in writing to each contributing employer the amount of the account balances balance plus earnings thereon attributable to each separate contributing employers employer's previously terminated employees' accounts which have employee's account which has been irrevocably forfeited due to the elapse of a five-year period since termination pursuant to section sixteen of this article.
(c) Upon certification to the several contributing employers of the aggregate account balances plus earnings thereon which have been irrevocably forfeited pursuant to this section, the several contributing employers shall be permitted in the next succeeding fiscal year or years to reduce their total aggregate contribution requirements pursuant to section seventeen of this article, for the then current fiscal year by an amount equal to the aggregate amounts irrevocably forfeited and certified as such to each contributing employer: Provided, That should the participating employer no longer be contributing to the Defined Contribution System, any funds in the account shall be paid directly to the employer.
(d) Upon the utilization use of the amounts irrevocably forfeited to any contributing employer as a reduction in the then current fiscal year contribution obligation and upon notification provided by the several contributing employers to the Board of their intention to utilize use irrevocably forfeited amounts, the Board shall direct the distribution of said the irrevocably forfeited amounts from the suspension account to be deposited on behalf of the contributing employer to the member annuity accounts of its then current employees pursuant to section seventeen of this article: Provided, That notwithstanding any provision of this article to the contrary, when a member is or has been elected to serve as a member of the Legislature, and the proper discharge of his or her duties of public office require requires that member to be absent from his or her teaching, nonteaching or administrative duties, the time served in discharge of his or her duties of the legislative office are credited as time served for purposes of computing service credit, regardless when this time was served: Provided, however, That the Board may not require any additional contributions from that member in order for the Board to credit him or her with the contributing service credit earned while discharging official legislative duties: Provided further, That nothing herein may be construed to relieve the employer from making the employer contribution at the member's regular salary rate or rate of pay from that employer on the contributing service credit earned while the member is discharging his or her official legislative duties. These employer payments shall commence as of the first day of July, two thousand three: And provided further, That any member to which the provisions of this subsection apply may elect to pay to the Board an amount equal to what his or her contribution would have been for those periods of time he or she was serving in the Legislature.
.
§18-7B-12a. Federal minimum required distributions.

The requirements of this section apply to any distribution of a member's or beneficiary's interest and take precedence over any inconsistent provisions of this Defined Contribution System. This section applies to plan years beginning after the thirty-first day of December, one thousand nine hundred eighty-six. Notwithstanding anything in this system to the contrary, the payment of benefits under this article shall be determined and made in accordance with Section 401(a)(9) of the Internal Revenue Code and the regulations thereunder, including without limitation the incidental death benefit provisions of Section 401(a)(9)(G) of the Internal Revenue Code and the regulations thereunder. For this purpose, the following provisions apply:
(a) The payment of benefits under the Defined Contribution System to any member shall be distributed to him or her not later than the required beginning date, or be distributed to him or her commencing not later than the required beginning date, in accordance with regulations prescribed under Section 401(a)(9) of the Internal Revenue Code, over the life of the member or over the lives of the member and his or her beneficiary or over a period not extending beyond the life expectancy of the member and his or her beneficiary.
(b) If a member dies after distribution to him or her has commenced pursuant to this section but before his or her entire interest in the system has been distributed, then the remaining portion of that interest shall be distributed at least as rapidly as under the method of distribution being used at the date of his or her death.
(c) If a member dies before distribution to him or her has commenced, then his or her entire interest in the system shall be distributed by the thirty-first day of December of the calendar year containing the fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary, distributions may be made over the life of that beneficiary or over a period certain not greater than the life expectancy of the beneficiary commencing on or before the thirty-first day of December of the calendar year immediately following the calendar year in which the participant died; or
(2) If the member's beneficiary is the surviving spouse, the date distributions are required to begin shall be no later than the later of:
(A) The thirty-first day of December of the calendar year in which the member would have attained age seventy and one-half years; or
(B) The earlier of: (i) The thirty-first day of December of the calendar year in which the member died; or (ii) the thirty- first day of December of the calendar year following the calendar year in which the spouse died.
(d) For purposes of this section, any amount paid to a child of a member will be treated as if it had been paid to the surviving spouse of the member if such the remaining amount becomes payable to the surviving spouse when the child reaches the age of majority.
§18-7B-16. Years of employment service.
(a) A member of the Defined Contribution System who terminates employment with a participating employer and does not remove any funds from his or her annuity vested employee and employer account, or who removes the funds and repays them withing five years after termination, and becomes reemployed with a participating employer within five years shall retain his or her previous years of employment service for purposes of the provisions of section eleven of this article. does not forfeit any amounts placed into the suspension account pursuant to section eleven of this article and they shall be returned to his or her employer account.
(b) All years of employment service shall be counted for vesting purposes under section eleven of this article.
§18-7B-20. Prohibition of involuntary cash-outs.
Notwithstanding any provision of this section or of any legislative rule contained in series three, involuntary cash-outs to members may not be made after the thirtieth day of June, two thousand five.
ARTICLE 7C. MERGER OF TEACHERS DEFINED CONTRIBUTION RETIREMENT SYSTEM WITH STATE TEACHERS RETIREMENT SYSTEM.

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

(a) If a majority of members voting elect to merge the Defined Contribution System into the State Teachers Retirement System, the consolidation and merger shall be governed by the provisions of this article, the Defined Contribution Retirement System shall not exist after the thirtieth day of June, two thousand six, and all members of that system shall become members of the State Teachers Retirement System as provided in this article.
(b) Following the election, if the vote is in favor of the merger, the Board shall transfer all assets in the defined contribution account into the State Teachers Retirement System and members have the option to pay into the State Teachers Retirement System a one and one half of one percent contribution for service in the Defined Contribution Plan being recognized in the State Teachers Retirement System. This contribution shall be calculated based on the member's salary as of the thirtieth day of June, two thousand five, and the members attained age on that date, applying both an annual backward salary scale projection from that date for prior years based upon the salary scale assumption applied in the actuarial valuation dated the first day of July, two thousand four, for the Teachers Retirement System and a one year forward salary scale projection for the year ending on the thirtieth day of June, two thousand six.
(c) The Board shall make available to the members a loan in accordance with the provisions of section thirty-four, article seven-a of this chapter to be used by the members to pay all or a part of the one and one-half percent amount established in this section. Notwithstanding any provision of this code, any rule or any policy of the Board to the contrary, the interest rate on any loan used to pay the one and one-half percent amount may not exceed seven and one-half percent per annum and the amount total borrowed for this section may not exceed twelve thousand dollars. In the event a plan loan is used to pay the one and one-half percent, the Board shall make any necessary actuarial adjustments at the time the loan is made. The Board shall make this plan loan available for members until the thirtieth day of June, two thousand seven.
(d) The Board shall develop and institute a payroll deduction program for the repayment of the plan loan established in this section.
(e) If the merger and consolidation is elected by a majority of those persons voting, as of the first day of July, two thousand six, the members' contribution rate shall become six percent of his or her salary or wages and all members who make a contribution into the State Teachers Retirement System on or after the first day of July, two thousand six, shall be governed by the provisions of article seven-a of this chapter, subject to the provisions of this article.
(f) In the event a member has withdrawn or cashed out part of his or her defined contribution plan, that member will not be given credit for those moneys cashed out or withdrawn. The Board shall make an actuarial determination as to the amount of credit a member loses on the amounts he or she has withdrawn or cashed out, which shall be expressed as a loss of service credit: Provided, That a member may repay those amounts he or she previously cashed out or withdrew, along with interest determined by the Board and receive the same credit as if the withdrawal or cash out never occurred. If the repayment is five or more years following the cash out or withdrawal, then he or she must repay any forfeited employer contribution account balance along with interest determined by the Board in addition to repaying the cash out or withdrawn amount.
(g) Where the member has cashed out of his or her teacher defined contribution plan account balance after the last day of June, two thousand one, and that member wishes to repurchase defined contribution plan service after the thirtieth day of June, two thousand six, then the member shall repay the teachers retirement plan.
(h) Any prior service in the State Teachers Retirement System a member may have is not affected by the provisions of this article.
§18-7C-7. Service credit in State Teachers Retirement System following merger.

Any member transferring all of his or her assets from the Defined Contribution System to the State Teachers Retirement System pursuant to the provisions of this article, and who has not made any withdrawals from his or her defined contribution plan, is entitled to service credit in the State Teachers Retirement System for each year, or part of a year, as governed by the provisions of article seven-a of this chapter, the member worked and contributed to the Defined Contribution Plan. Any member who has made withdrawals or cash outs will receive service credit based upon the amounts transferred and the Board shall make the appropriate actuarial determination of and the appropriate actuarial adjustment to the service credit the member will receive.
§18-7C-8. Election; Board may contract for professional services.
(a) The Board shall arrange for and hold an election for the members of the defined contribution plan on the issue of merging and consolidating the Defined Contribution Plan into the State Teachers Retirement Plan with the result being that, if a majority of the members casting ballots vote in the positive on the issue, all members of the Defined Contribution Plan will transfer, or have transferred, all assets held by them or on their behalf in the Defined Contribution Plan to, and they shall become members of and be entitled to the benefits of, the State Teachers Retirement System and be governed by the provisions of the State Teachers Retirement System subject to the provisions of this article: Provided, That at least one-half of the members of the Defined Contribution Plan must vote on the question in order for the election to be valid and binding.
(b) Any person who has one dollar or more in a defined contribution account created and established pursuant to article seven-b of this chapter, may vote on the question of the merger.
(c) The Board may retain the services of the professionals it considers necessary to: (1) Assist in the preparation of educational materials for members of the Defined Contribution Plan to inform these members of their options in the election; (2) assist in the educational process of the members; (3) assist in the election process and the election; and (4) ensure compliance with all relevant state and federal laws.
(d) Due to the time constraints inherent in the merger process set forth in this article in specific, and due to the nature of the professional services required by the Consolidated Public Retirement Board in general, the provisions of article three, chapter five-a of this code, relating to the Division of Purchasing of the Department of Administration do not apply to any contracts for any actuarial services, investment services, legal services or other professional services authorized under the provisions of this article.
(e) The election provided for in this section may be held through certified mail or in any other way the Board determines is in the best interest of the members. Each ballot shall contain the following language, in bold fifteen point type: "By casting this ballot I am making an educated, informed and voluntary choice as to my retirement and the retirement system of which I wish to be a member. I am also certifying that I understand the consequences of my vote in this election." Each ballot shall be signed by the member voting. The Board shall retain the ballots in a permanent file. Any unsigned ballot is void.
(f) The election period shall begin not later than the first day of March, two thousand six, and the Board shall ascertain the results of the election not later than the last day of March, two thousand six. The Board shall certify the results of the election to the Governor, to the Legislature and to the members not later than the fifth day of April, two thousand six.
(g) The election period shall terminate and no votes may be cast or counted after the twelfth day of March, two thousand six, except that if the election is conducted through the United States mails, the ballot shall be postmarked not later than the twelfth day of March, two thousand six, in order to be counted.
(h) The Board shall take all necessary steps to see that the merger does not affect the qualified status with the Internal Revenue Service of either retirement plan.
§18-7C-9. Election considered final.
(a) The election is considered final and each member, whether he or she votes, or fails to vote, shall thereafter be bound by the results of the election. Every member is considered to have made an informed, educated, knowing and voluntary decision and choice with respect to the election. Those members who fail or refuse to vote are also considered to have made an informed, educated, knowing and voluntary decision and choice with respect to the election and with respect to voting and shall be bound by the results of the election as if he or she voted in the election.
(b) Only one election may be held pursuant to the provisions of this article on the issue of merging and consolidating the Defined Contribution Plan with the State Teachers Retirement Plan.
§18-7C-10. Qualified domestic relations orders.
Any member having a qualified domestic relations order against his or her defined contribution account is allowed to repurchase service in the State Teachers Retirement System by repaying any moneys previously distributed to the alternate payee along with the interest as set by the Board: Provided, That a member shall repay any amounts under this section by the last day of June, two thousand twelve. The provisions of this section are void and of no effect if the members of the Defined Contribution Plan fail to elect to merge and consolidate the Defined Contribution Plan with the State Teachers Retirement System.
§18-7C-11. Vesting.
Any member who works one hour or more after the date of merger provided in this article occurs, is subject to the vesting schedule set forth in article seven-a of this chapter: Provided, That if a member is vested under the Defined Contribution Plan and his or her last contribution was not made to the State Teachers Retirement System, that member is subject to the vesting schedule set forth in article seven-b of this chapter.
§18-7C-12. Minimum guarantees.
(a) Any member of the Defined Contribution Plan who has made a contribution to the State Teachers Retirement System after the date of merger is guaranteed a minimum benefit equal to his or her contributions to the Defined Contribution Plan as of the thirtieth day of June, two thousand six, plus his or her vested employer account balance as of that date, as stated by the Board or the Board's professional contractor.
(b) A member of the Defined Contribution Plan who has made contributions to the State Teachers Retirement System after the thirtieth day of June, two thousand six, where the Defined Contribution Plan has been merged into the State Teachers Retirement System pursuant to the provisions of this article, shall have, upon eligibility to receive a distribution under article seven-a of this chapter, at a minimum, the following three options: (1) The right to receive an annuity from the State Teachers Retirement System created and established in article seven-a of this chapter, based upon the benefit and vesting provisions of that article; (2) the right to withdraw from the State Teachers Retirement Plan and receive his or her member accumulated contributions plus regular interest thereon as set forth in article seven-a of this chapter; or (3) the right to withdraw and receive his or her original vested defined contribution account balance as of the date of the merger as determined by the Board or its professional third party benefits administrator pursuant to the vesting provisions of section twelve of this article.
(c) Any member of the Teachers Defined Contribution System who makes no contribution to the State Teachers Retirement System following approval of the merger and following the date of merger is guaranteed the receipt of the amount in his or her total vested account in the Defined Contribution Plan on the date of merger plus interest thereon at four percent accruing from the date of merger.
§18-7C-13. Due process and right to appeal.
Any person aggrieved by any actuarial determination made by the Board following the election, if the result of the election is in favor of merger and consolidation, may petition the Board and receive an administrative hearing on the matter in dispute. The administrative decision may be appealed to a circuit court.
§18-7C-14. Nonseverability.
If any provision of this article is held unconstitutional or void, the remaining provisions of this article shall be void and of no effect and, to this end, the provisions of this article are hereby declared to be nonseverable.
CHAPTER 51. COURTS AND THEIR OFFICERS.

ARTICLE 9. RETIREMENT SYSTEM FOR JUDGES OF COURTS OF RECORD.
§51-9-6c. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or create any new benefits for any retirees or beneficiaries currently receiving monthly benefit payments from the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, in an amount that would exceed more than one percent of the accrued actuarial liability of the system as of the last day of the preceding fiscal year as determined in the annual actuarial valuation for the plan completed for the Consolidated Public Retirement Board as of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature.
(b) If any increase of existing benefits or creation of new benefits for any retirees or beneficiaries currently receiving monthly benefit payments under the system, other than an increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, causes any additional unfunded actuarial accrued liability in any of the West Virginia state-sponsored pension systems as calculated in the annual actuarial valuation for the plan during any fiscal year, the additional unfunded actuarial accrued liability of the system shall be fully amortized over no more than the five consecutive fiscal years following the date the increase in benefits or new benefits become effective as certified by the consolidated public retirement board. Following the receipt of the certification of additional actuarial accrued liability, the Governor shall submit the amount of the amortization payment each year for the system as part of the annual budget submission or in an executive message to the Legislature.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, the computation of annuities or benefits for active members due to retirement, death or disability as provided for in the system shall not be amended in such a manner as to increase any existing benefits or to provide for new benefits.
(d) The provisions of this section terminate effective the first day of July, two thousand nineteen: Provided, That if bonds are issued pursuant to article eight, chapter twelve of this code, the provisions of this section shall not terminate while any of the bonds are outstanding.
On motion of Senator Chafin, the following amendment to Senator Plymale's amendment to the bill (Eng. H. B. No. 2984) was reported by the Clerk:
On page forty-three, section forty-four, after the word "paid." by inserting the following: Any member who retired pursuant to subsection (b), section twenty-two-c of this article, but whose notification and application for retirement was not processed, shall be granted such retirement benefits as provided by law upon showing compliance with all statutory requirements.
Following discussion,
The question being on the adoption of Senator Chafin's amendment to Senator Plymale's amendment to the bill (Eng. H. B. No. 2984), and on this question, Senator Deem demanded the yeas and nays.
To which demand, Senator Bowman objected.
Thereafter, Senator Deem's demand for a roll call was sustained.
The roll being taken, the yeas were: Bailey, Chafin, Dempsey, Fanning, Helmick, Hunter, Kessler, Love, Minard, Oliverio, White, Yoder and Tomblin (Mr. President)--13.
The nays were: Barnes, Boley, Bowman, Caruth, Deem, Edgell, Facemyer, Foster, Guills, Harrison, Jenkins, Lanham, McCabe, McKenzie, Minear, Plymale, Prezioso, Sharpe, Sprouse, Unger and Weeks--21.
Absent: None.
So, a majority of those present and voting not having voted in the affirmative, the President declared Senator Chafin's amendment to Senator Plymale's amendment to the bill (Eng. H. B. No. 2984) rejected.
The question now being on the adoption of Senator Plymale's amendment to the bill.
Following discussion and a point of inquiry to the President, with resultant response thereto,
The question being on the adoption of Senator Plymale's amendment to the bill, the same was put and prevailed.
Having been engrossed, the bill (Eng. H. B. No. 2984), as just amended, was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Harrison, Lanham, Minear and Oliverio--4.
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. 2984) passed.
At the request of Senator Helmick, as chair of the Committee on Finance, and by unanimous consent, the unreported Finance committee amendment to the title of the bill was withdrawn.
On motion of Senator Plymale, the following amendment to the title of the bill was reported by the Clerk and adopted:
On pages one through nine, by striking out the title and substituting therefor a new title, to read as follows:
Eng. House Bill No. 2984--A Bill to amend and reenact §5-5-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §5-10-2, §5-10-15, §5-10-17, §5-10-21, §5-10-22, §5-10-23, §5-10-26, §5-10-27, §5-10-31 and §5-10-44 of said code; to amend said code by adding thereto a new section, designated §5-10-22h; to amend and reenact §5-10A-2 and §5-10A-3 of said code; to amend said code by adding thereto a new section, designated §5-10A-11; to amend and reenact §7-14D-5, §7-14D-7, §7-14D-13 and §7-14D-23 of said code; to amend and reenact §12-8-2, §12-8-3, §12-8-4, §12-8-5, §12-8-6, §12-8-7, §12-8-8 and §12-8-10 of said code; to amend said code by adding thereto a new section, designated §12-8-15; to amend and reenact §15-2-26, §15-2-27, §15-2-27a, §15-2-28, §15-2-29, §15- 2-30, §15-2-31, §15-2-32, §15-2-33, §15-2-34 and §15-2-37 of said code; to amend said code by adding thereto four new sections, designated §15-2-25b, §15-2-31a, §15-2-31b and §15-2-39a; to amend and reenact §15-2A-2, §15-2A-5, §15-2A-6, §15-2A-7, §15-2A-8, §15- 2A-9, §15-2A-10, §15-2A-11, §15-2A-12, §15-2A-13, §15-2A-14 and §15-2A-19 of said code; to amend said code by adding thereto four new sections, designated §15-2A-11a, §15-2A-11b, §15-2A-21 and §15- 2A-22; to amend and reenact §18-7A-3, §18-7A-14, §18-7A-17, §18-7a- 18, §18-7a-18a, §18-7A-23a, §18-7A-25, §18-7A-26 and §18-7A-34 of said code; to amend said code by adding thereto three new sections, designated §18-7A-28e, §18-7A-39 and §18-7A-40; to amend and reenact §18-7B-2, §18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a and §18-7B-16 of said code; to amend said code by adding thereto two new sections, designated §18-7B-7a and §18-7B-20; to amend said code by adding thereto a new article, designated §18-7C-1, §18-7C- 2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7, §18-7C-8, §18- 7C-9, §18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13 and §18-7C-14; and to amend said code by adding thereto a new section, designated §51- 9-6c, all relating to state pensions and retirement generally; providing comprehensive changes to certain plans administered by the Consolidated Public Retirement Board; enacting the Governor's Pension Reform Act of 2005; rights of members' unused, accrued leave in final average salary in the Public Employees Retirement System; limitations on benefit increases; bond pledges and covenants regarding unfunded liabilities; limiting time for amortization; amending and adding definitions in the Public Employees Retirement System; clarifying use of restricted qualified military service credit to one retirement system; vesting of retirement benefits for those members of the armed forces accumulating nine or more years of credited service who are called from participating employment to compulsory military service or armed conflict and who die during, or as a result of, compulsory active service and prior to resumption of participating employment; setting time limit on application; restricting certain rights of members to select a plan beneficiary; establishing a cap on the amount certain persons may receive from the Public Employees Retirement System where that person is also receiving a pension from another pension or retirement system administered by the Consolidated Public Retirement Board; authorizing annual physician review and requiring an annual statement of earnings from certain persons receiving disability retirement payments; providing for suspension of benefits upon failure of disability retiree to furnish certain information; providing that interest is to be included in the calculation of terminal benefits payable as the result of death of retired participants; addressing the correction of employer errors; clarifying use of members' unused, accrued leave in final average salary; making technical corrections to the Public Employees Retirement System; amending the definitions of less than honorable service and retirement plan; increasing the time to issue notice to terminate benefits; requiring prosecuting attorneys to notify retirement board of any convictions or pleas to less than honorable service; declaring policy and making legislative findings regarding pension liability redemption; setting forth definitions; providing for issuance of bonds; method of bond issuance and sale of bonds; use of bond proceeds; continuation of Pension Liability Redemption Fund and disbursements therefrom; setting forth state pledges and covenants; operation of article; relating to the Deputy Sheriff Retirement System; concurrent contributions by members and employers; credit for nondeputy sheriff service in the Public Employees Retirement System prior to transfer; treatment of withdrawals not repaid prior to transfer; providing that any person becoming a member of the Deputy Sheriff Retirement System after the first day of July, two thousand five, may not borrow from that plan; relating to the West Virginia State Police Death, Disability and Retirement Fund generally; adding general definitions to the West Virginia State Police Death, Disability and Retirement Fund; adding definitions of "law- enforcement officer", "partially disabled", "totally disabled" and "physical or mental impairment" to the West Virginia State Police Death, Disability and Retirement Fund; making technical changes in to the West Virginia State Police Death, Disability and Retirement Fund; providing for probable permanent disability status; specifying that total disability now is inability to perform any substantial gainful employment and that partial disability is inability to perform law-enforcement duties; specifying limitation on compensation rendered to health care providers; providing that member receiving annuity for partial disability incurred in performance of duty may be employed as an elected sheriff or appointed chief of police if it is shown to the Board that such employment is not inconsistent with the partial disability; allowing application for disability to be made by person acting on member's behalf; allowing Superintendent to petition Board for member's disability when he or she deems the member disabled; authorizing rules; judicial review; allowing Board to withhold payment pending judicial review; requiring disability recipient to file annual statement of earnings and setting forth penalty for refusal or failure to do so; annual report of employer's disability retirement experience in to the West Virginia State Police Death, Disability and Retirement Fund; limitation on benefit increases; relating to amending definitions in the West Virginia State Police Retirement System; determination of contributions; acquiring retirement credited service through member's use of accrued annual or sick leave days in the West Virginia State Police Retirement System; establishing starting date for payment of annuity in the West Virginia State Police Retirement System; clarifying disability provisions and technical corrections in the West Virginia State Police Retirement System; annual report of employer's disability retirement experience in to the West Virginia State Police Retirement System; limitation on benefit increases; amending provisions relating to the State Teachers Retirement System; amending, adding and alphabetizing the definitions; providing for the use of qualified military service in the State Teachers Retirement System; providing that in the case of deceased retired participants that interest is to be included in the calculation of terminal benefits payable and making other technical modifications in the State Teachers Retirement System; clarifying provisions for loan repayment in the State Teachers Retirement System; replacing earnable compensation with gross salary in the State Teachers Retirement System; clarifying maximum loan amount and making technical corrections in the State Teachers Retirement System; making technical corrections to the Teachers Retirement System; creating the Teachers Employers Contribution Collection Account; moneys to be deposited and transfer of moneys in account; continuing the Teachers Retirement System Fund; moneys to be deposited and use of moneys in fund; discontinuing the loan program participation of teachers and nonteachers who become members of the Teachers Retirement System on or after the first day of July, two thousand five; limitation on benefits; creating Employee Pension and Health Care Benefits Fund; moneys to be deposited; use of moneys in fund; amending certain definitions in the Teachers Defined Contribution System; clarifying participation requirement in the Teachers Defined Contribution System; providing employer deadlines for deposit of contributions in the Teachers Defined Contribution System; establishing when payments are to be made into and out of the suspension account in the Teachers Defined Contribution System; adding the Internal Revenue Service provisions concerning incidental death benefits in the Teachers Defined Contribution System; clarifying that all years of employee service will be counted for vesting purposes in the Teachers Defined Contribution System; prohibiting involuntary cash-outs effective the thirtieth day of June, two thousand five; making technical corrections in the Teachers Defined Contribution System; requiring River Valley Child Development Services to offer pension plan for employees; allowing employees to withdraw from PERS; requiring notice; relating to the merger and consolidation of the Teachers Defined Contribution Retirement System and the State Teachers Retirement System generally; closing the Teachers Defined Contribution Retirement System to newly hired personnel; providing legislative findings and purpose; providing definitions; providing for merger and consolidation of the Teachers Defined Contribution Retirement System and the State Teachers Retirement System upon election; providing responsibilities of the Consolidated Public Retirement Board; setting forth dates and time periods for transition and election; requiring that increase of or new benefits to the Teachers Retirement System be amortized over a ten-year time period; providing for education about election and merger for members; requiring legal notice to members; providing for transfer of assets from the Teachers Defined Contribution Retirement System to the State Teachers Retirement System upon favorable vote for consolidation and merger; providing that the Teachers Defined Contribution Retirement System shall not exist upon favorable vote for consolidation and merger; setting forth terms of merger and consolidation of the Teachers Defined Contribution Retirement System and the State Teachers Retirement System; providing for service credit in the State Teachers Retirement; requiring members of Teachers Defined Contribution Plan to pay additional amount to receive credit upon merger; providing options and loans for members moving to the remaining plan; providing service credit for transferring member; addressing withdrawals and cash outs; providing for election on the question of merger and consolidation of the Teachers Defined Contribution Retirement System and the State Teachers Retirement System; setting forth requirements of election; allowing Consolidated Public Retirement Board to contract directly for professional services for purposes of performing its responsibilities related to the merger and consolidation and conducting the election; permitting only one election; addressing qualified domestic relations orders; providing for vesting of members and minimum guarantees of benefits for them; providing for due process and right to appeal; providing for nonseverability of the new article; and limitation on benefit increases in Judges' Retirement System.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Harrison, Lanham, Minear and Oliverio--4.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2984) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fifth order of business.
Filed Conference Committee Reports

The Clerk announced the following conference committee report had been filed at 5:30 p.m. today:
Eng. Senate Bill No. 604, Establishing method for projecting increase in net enrollment for each school district.
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced that that body had refused to 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. Senate Bill No. 583, Relating to appealing orders from family court to circuit court.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Webster, Hrutkay and Howard.
On motion of Senator Chafin, the Senate agreed to the appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Dempsey, White and Caruth.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate again proceeded to the sixth order of business, which agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2852, Implementing the recommendations of the West Virginia Pharmaceutical Cost Council.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate.
On motion of Senator Chafin, the Senate reconsidered the vote as to the effective date and passage.
The vote thereon having been reconsidered,
At the request of Senator Prezioso, unanimous consent was granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator Prezioso, the following amendment to the bill was reported by the Clerk and adopted:
On pages four and five, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §5-16-7b of the Code of West Virginia, 1931, as amended, be repealed; that §5-16C-1, §5-16C-2, §5-16C-3, §5-16C-4, §5-16C-5, §5-16C-6, §5-16C-7, §5-16C-8, §5-16C-9 and §5-16C-10 of said code be repealed; that §5A-3-1a of said code be repealed; that §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17 of said code be amended and reenacted; that said code be amended by adding thereto ten new sections, designated §5A-3C-18, §5A-3C-19, §5A-3C-20, §5A- 3C-21, §5A-3C-22, §5A-3C-23, §5A-3C-24, §5A-3C-25, §5A-3C-26 and §5A-3C-27; that §5F-2-2 of said code be amended and reenacted; and that §29-22-18a of said code be amended and reenacted, all to read as follows:.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2852), as just amended, 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. 2852) passed.
On motion of Senator Prezioso, the following amendment to the title of the bill was reported by the Clerk and adopted:
On pages one through four, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2852--A Bill to repeal §5-16-7b of the Code of West Virginia, 1931, as amended; to repeal §5-16C-1, §5-16C-2, §5-16C-3, §5-16C-4, §5-16C-5, §5-16C-6, §5-16C-7, §5-16C-8, §5-16C-9 and §5-16C-10 of said code; to repeal §5A-3-1a of said code; to amend and reenact §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17 of said code; to amend said code by adding thereto ten new sections, designated §5A-3C-18, §5A-3C-19, §5A-3C-20, §5A-3C-21, §5A-3C-22, §5A-3C-23, §5A-3C-24, §5A-3C-25, §5A-3C-26 and §5A-3C-27; to amend and reenact §5F-2-2 of said code; and to amend and reenact §29-22-18a of said code, all relating generally to the creation of the Office of the Pharmaceutical Advocate and the transfer of most of the powers and responsibilities of the Pharmaceutical Cost Management Council to the Pharmaceutical Advocate; legislative findings; defining terms; powers and duties of the Office of the Pharmaceutical Advocate; creation of the cabinet-level position of the Pharmaceutical Advocate; qualifications and salary of the Pharmaceutical Advocate; powers and duties of the Pharmaceutical Advocate; creation of the Pharmaceutical Advisory Council; qualifications of Council members; powers and duties of the Council; reporting requirements of the Council, the Pharmaceutical Advocate and the Office of the Pharmaceutical Advocate; transferring powers and duties of the West Virginia Public Employees Insurance Act to negotiate for and purchase pharmaceuticals to the Pharmaceutical Advocate; transfer of the powers and duties to negotiate and execute prescription drug purchasing agreements to the Pharmaceutical Advocate; transfer of the powers and duties to negotiate and execute pharmacy benefit management contracts to the Pharmaceutical Advocate; establishing the Federal Supply Schedule as a benchmark for the purchase of Brand name pharmaceutical drugs; exempting the Pharmaceutical Advocate from state purchasing requirements; authority to investigate the feasibility of purchasing Canadian drugs; authority to investigate multistate discussion groups and agreements; elimination of the transfer of the Clearinghouse Program to the state; elimination of the transfer of the pharmaceutical discount program to the state; authorizing the Pharmaceutical Advocate to take advantage of Act of Congress, accept gifts, grants and matching funds; continuing agency management ability until the Office of the Pharmaceutical Advocate is operational; prohibiting restraint of trade and conforming the standards for same with other provisions of the code; providing civil and criminal penalties for restraint of trade; reporting of advertising costs to the Pharmaceutical Advocate; state role and responsibilities; participation by all state agencies who are payors for prescription drugs; authority for the Pharmaceutical Advocate to investigate participation in a preferred drug list by private individuals, commercial insurance carriers and self-insured companies; rule- making authority; identifying potential use of savings; sunset provisions; severability provision; transfer of the powers and duties of the West Virginia Pharmaceutical Cost Management Council to the Office of the Pharmaceutical Advocate; providing authority for the secretary of each department to cooperate with the Office of the Pharmaceutical Advocate in the purchase of prescription drugs; and eliminating requirement that the Governor focus resources on creation of a prescription drug program from the state Lottery Act.
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. 2852) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate again proceeded to the eighth order of business.
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 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. 2991) 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. 3002, Removing the thirty day deadline for submitting party designations to be eligible to vote in the primary election.
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. 3002) 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. 3002--A Bill to amend and reenact §3-2-6 and §3-2-31 of the Code of West Virginia, 1931, as amended, all relating to registration of voters generally; providing that a voter may register up to the twenty-first day before an election; and conforming the requirement that a voter designate a political party before the primary no later than the close of voter registration before the primary.
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. 3010, Providing that the Commissioner of Corrections may authorize wardens or administrators to establish imprest funds for transporting inmates.
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. 3010) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
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 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. 3014) 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. 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 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. 3016) 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. 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 third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Harrison and Weeks--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. 3023) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 3045, Relating to the creation and modification of public service districts.
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. 3045) 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. 3048, Relating to restructuring of the hunting and fishing license system.
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. 3048) passed.
The following amendment to the title of the bill, from the Committee on Natural Resources, 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. 3048--A Bill to repeal §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; to amend and reenact §20-2-30a, §20-2-33, §20-2-44 and §20-2-44b of said code; to amend said code 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 to amend and reenact §20-2B-6, §20-2B-7, §20-2B-8, §20-2B-9 and §20-2B-10 of said code, all relating to the restructuring of the hunting and fishing license system; increasing fees; providing an effective date; creating a system to index fees to the Consumer Price Index; and providing for requirements for certification of training.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fifth order of business.
Filed Conference Committee Reports

The Clerk announced the following conference committee report had been filed at 5:50 p.m. today:
Eng. Senate Bill No. 583, Relating to appealing orders from family court to circuit court.
The Senate again proceeded to the eighth order of business.
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 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. 3049) 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. 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 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. 3068) 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. 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 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. 3089) passed.
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 amendment to the title of the bill was withdrawn.
On motion of Senator Unger, the following amendment to the title of the bill was reported by the Clerk and adopted:
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 3089--A Bill to amend and reenact §17C-17A-3 and §17C-17A-12 of the Code of West Virginia, 1931, as amended; and to amend and reenact §24A-1A-2 of said code, all relating to the regulation of the commercial transportation of coal; adding representatives to the Commercial Motor Vehicle Weight and Safety Enforcement Advisory Committee; authorizing the Division to provide for special crossing permits by legislative rule; creating the Coal Resource Transportation Designation Committee and authorizing it to make recommendations to the Joint Committee on Government and Finance and to designate roads to the coal resource transportation road system under certain circumstances; and adding routes to the coal resource transportation road system in Braxton, Webster, Nicholas and Ohio counties.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 3094, Relating to child support and enforcement.
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. 3094) 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. 3094--A Bill to repeal §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 and §48-18-121 of said code; and to amend and reenact §48-19-102 said code, all relating to child support enforcement; repealing authority of the West Virginia Support Enforcement Commission to promulgate rules; repealing certain duties of the commission; repealing authority of Bureau for Child Support Enforcement to contract for certain services; repealing authority of commission to adopt form to identify support payments; increasing the number of members on the Commission; altering the organization of certain Bureau employees; removing Commission authority to promulgate fee rules; authorizing the Commissioner of the Bureau for Child Support Enforcement to cooperate with other states in the enforcement of child support; moving certain rulemaking authority from the Commission to the Commissioner; removing Commission authority to require certain bonding requirements of Bureau employees; moving authority from Commission to the Commissioner relating to collecting child support from state and federal taxes; revising requirements relating to withholding child support payments from the Bureau of Employment Programs; and removing geographic delineations for certain Bureau attorneys.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator McKenzie, unanimous consent being granted, Senator McKenzie addressed the Senate regarding Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 442 (Relating generally to authorizing table games at licensed horse and dog racetracks).
Senator Bowman requested unanimous consent that the remarks by Senator McKenzie be ordered printed in the Appendix to the Journal.
Which consent was not granted, Senator Chafin objecting.
On motion of Senator Kessler, the remarks by Senator McKenzie were ordered printed in the Appendix to the Journal.
Pending announcement of a meeting of the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 8 p.m. tonight.
Night Session

Upon expiration of the recess, the Senate reconvened and, at the request of Senator Chafin, unanimous consent being granted, returned to the fourth order of business.
Senator Love, from the Committee on Confirmations, submitted the following report, which was received:
Your Committee on Confirmations has had under consideration
Senate Executive Message No. 2, dated March 24, 2005, requesting confirmation by the Senate of the nominations mentioned therein. The following list of names from Executive Message No. 2 is submitted:
1.For Member, Real Estate Appraiser Licensing and Certification Board, Linda York, Fairmont, Marion County, for the term ending June 30, 2006.
2.For Member, Housing Development Fund, Everette E. Sullivan, Dunbar, Kanawha County, for the term ending October 30, 2008.
3.For Secretary, Department of Commerce, L. Thomas Bulla, Charleston, Kanawha County, to serve at the will and pleasure of the Governor.
4.For Member, New River Community and Technical College Board of Governors, Leslie Baker, Beckley, Raleigh County, for the term ending June 30, 2005.
5.For Member, New River Community and Technical College Board of Governors, William Blake, Lewisburg, Greenbrier County, for the term ending June 30, 2005.
6.For Member, New River Community and Technical College Board of Governors, Kay Carpenter, Webster Springs, Webster County, for the term ending June 30, 2006.
7.For Member, New River Community and Technical College Board of Governors, Robert Farley, Princeton, Mercer County, for the term ending June 30, 2006.
8.For Member, New River Community and Technical College Board of Governors, Edward Knight, Lewisburg, Greenbrier County, for the term ending June 30, 2007.
9.For Member, New River Community and Technical College Board of Governors, Marilyn Leftwich, White Sulphur Springs, Greenbrier County, for the term ending June 30, 2007.
10.For Member, New River Community and Technical College Board of Governors, David Nalker, Lewisburg, Greenbrier County, for the term ending June 30, 2008.
11.For Member, New River Community and Technical College Board of Governors, Vickie Nutter, Craigsville, Nicholas County, for the term ending June 30, 2008.
12.For Member, New River Community and Technical College Board of Governors, William Sherwood, Princeton, Mercer County, for the term ending June 30, 2008.
13.For Member, Community and Technical College of Shepherd Board of Governors, Dave Blythe, Martinsburg, Berkeley County, for the term ending June 30, 2005.
14.For Member, Community and Technical College of Shepherd Board of Governors, Bill Clark, Berkeley Springs, Morgan County, for the term ending June 30, 2005.
15.For Member, Community and Technical College of Shepherd Board of Governors, The Honorable Vicki Douglas, Martinsburg, Berkeley County, for the term ending June 30, 2006.
16.For Member, Community and Technical College of Shepherd Board of Governors, Bob Kutcher, Kearneysville, Jefferson County, for the term ending June 30, 2006.
17.For Member, Community and Technical College of Shepherd Board of Governors, Taylor Perry, Martinsburg, Berkeley County, for the term ending June 30, 2007.
18.For Member, Community and Technical College of Shepherd Board of Governors, Maria Lorensen, Martinsburg, Berkeley County, for the term ending June 30, 2007.
19.For Member, Community and Technical College of Shepherd Board of Governors, Jane Peters, Charles Town, Jefferson County, for the term ending June 30, 2008.
20.For Member, Community and Technical College of Shepherd Board of Governors, Jim Rodgers, Martinsburg, Berkeley County, for the term ending June 30, 2008.
21.For Member, Community and Technical College of Shepherd Board of Governors, Shirley Tolbert, Charles Town, Jefferson County, for the term ending June 30, 2008.
22.For Member, Forest Management Review Commission, The Honorable James Willison, Sistersville, Tyler County, for the term ending March 14, 2009.
23.For Member, Board of Control for Southern Regional Education Board, The Honorable Roman W. Prezioso, Jr., Fairmont, Marion County, for the term ending June 30, 2008.
24.For Member, Board of Control for Southern Regional Education Board, The Honorable Robert H. Plymale, Ceredo, Wayne County, for the term ending June 30, 2006.
25.For Member, Board of Control for Southern Regional Education Board, The Honorable Thomas Campbell, Lewisburg, Greenbrier County, for the term ending June 30, 2005.
26.For Member, Board of Control for Southern Regional Education Board, Jay Cole, Charleston, Kanawha County, for the term ending June 30, 2008.
27.For Member, Motor Vehicle Dealers Advisory Board, Kelly Smith, Charleston, Kanawha County, for the term ending June 30, 2007.
28.For Member, Motor Vehicle Dealers Advisory Board, Patrick Allen, Pennsboro, Ritchie County, for the term ending June 30, 2006.
29.For Member, Motor Vehicle Dealers Advisory Board, James Williams, Martinsburg, Berkeley County, for the term ending June 30, 2005.
30.For Member, Motor Vehicle Dealers Advisory Board, Polly Diller, Charleston, Kanawha County, for the term ending June 30, 2007.
31.For Member, Council for Community and Economic Development, Michael J. Basile, Hurricane, Putnam County, for the term ending June 30, 2008.
32.For Member, Pharmaceutical Cost Management Council, Leah Summers, Cannonsburg, Pennsylvania, for the term ending June 30, 2008.
33.For Member, Regional Jail and Correctional Facility Authority, Garry E. Wheeler, Hinton, Summers County, for the term ending June 30, 2008.
34.For Member, Oil and Gas Conservation Commission, Robert L. Radabaugh, Sand Fork, Gilmer County, for the term ending July 27, 2010.
35.For Member, Oil and Gas Conservation Commission, Barry Lay, Glenville, Gilmer County, for the term ending July 27, 2008.
36.For Member, Oil and Gas Conservation Commission, Anthony Gum, Buckhannon, Upshur County, for the term ending July 27, 2006.
37.For Member, Eastern West Virginia Community and Technical College Board of Governors, The Honorable Phyllis M. Cole, Petersburg, Grant County, for the term ending June 30, 2008.
Senate Executive Message No. 3, dated April 4, 2005, requesting confirmation by the Senate of the nominations mentioned therein. The following list of names from Executive Message No. 3 is submitted:
1.For Member, Center for Nursing Board of Directors, Janice Maynard, Delbarton, Mingo County, for the term ending June 30, 2008.
2.For Member, Center for Nursing Board of Directors, Cynthia Persily, Charleston, Kanawha County, for the term ending June 30, 2008.
3.For Member, Center for Nursing Board of Directors, Pamela Alderman, Chapmanville, Logan County, for the term ending June 30, 2006.
4.For Member, Center for Nursing Board of Directors, Duane Napier, Huntington, Cabell County, for the term ending June 30, 2006.
5.For Member, Center for Nursing Board of Directors, Shelia Kyle, Huntington, Cabell County, for the term ending June 30, 2008.
6.For Member, Center for Nursing Board of Directors, Denise Campbell, Elkins, Randolph County, for the term ending June 30, 2006.
7.For Member, Center for Nursing Board of Directors, Dottie Oakes, Morgantown, Monongalia County, for the term ending June 30, 2006.
8.For Member, Center for Nursing Board of Directors, Mary Beth Barr, Petersburg, Grant County, for the term ending June 30, 2008.
9.For Member, Center for Nursing Board of Directors, Eugenia Basham, Cool Ridge, Raleigh County, for the term ending June 30, 2006.
10.For Member, Center for Nursing Board of Directors, Amy Campbell, Charleston, Kanawha County, for the term ending June 30, 2008.
11.For Member, Center for Nursing Board of Directors, Teresa Witt, Farmington, Marion County, for the term ending June 30, 2008.
12.For Member, Agricultural Land Protection Authority Board of Trustees, Gary Foster, Fairmont, Marion County, for the term ending June 30, 2008.
13.For Member, Agricultural Land Protection Authority Board of Trustees, Bob Baird, Gallipolis Ferry, Mason County, for the term ending June 30, 2006.
14.For Member, Agricultural Land Protection Authority Board of Trustees, Rod Graves, Sinks Grove, Monroe County, for the term ending June 30, 2005.
15.For Member, Agricultural Land Protection Authority Board of Trustees, Mark Metheny, Morgantown, Monongalia County, for the term ending June 30, 2006.
16.For Member, Agricultural Land Protection Authority Board of Trustees, Tim Cottrill, Point Pleasant, Mason County, for the term ending June 30, 2005.
17.For Member, Education Commission of the States, Nancy Sturm, Charleston, Kanawha County, to serve at the will and pleasure of the Governor.
18.For Member, Education Commission of the States, Jay Cole, Charleston, Kanawha County, to serve at the will and pleasure of the Governor.
19.For Member, Education Commission of the States, Steve Paine, Charleston, Kanawha County, to serve at the will and pleasure of the Governor.
21.For Member, Board of Directors of the Clay Center for the Arts and Sciences, Joyce Allen, Coalton, Randolph County, for the term ending June 30, 2005.
22.For Member, Board of Directors of the Clay Center for the Arts and Sciences, Diane Dailey, Martinsburg, Berkeley County, for the term ending June 30, 2007.
23.For Member, Board of Directors of the Clay Center for the Arts and Sciences, Bob Shell, Barboursville, Cabell County, for the term ending June 30, 2007.
24.For Member, Contractor Licensing Board, Gene Thompson, Nitro, Kanawha County, for the term ending June 30, 2008.
25.For Member, Contractor Licensing Board, Kenneth Tubbs, Frankford, Greenbrier County, for the term ending June 30, 2008.
26.For Member, Contractor Licensing Board, Randy Ferguson, Huntington, Cabell County, for the term ending June 30, 2008.
And,
Senate Executive Message No. 5, dated April 8, 2005, requesting confirmation by the Senate of the nominations mentioned therein. The following list of names from Executive Message No. 5 is submitted:
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.
And reports the same back with the recommendation that the Senate do advise and consent to all of the nominations listed above.
Respectfully submitted,
Shirley Love,
Chair.
__________

The time having arrived for the special order of business to consider the list of nominees for public office submitted by His Excellency, the Governor, the special order thereon was called by the President.
Thereupon, Senator Tomblin (Mr. President) laid before the Senate the following executive messages:
Senate Executive Message No. 3-W, dated January 12, 2005 (shown in the Senate Journal of that day, pages 44 and 45);
Senate Executive Message No. 2, dated March 24, 2005 (shown in the Senate Journal of that day, pages 38 to 41, inclusive);
Senate Executive Message No. 3, dated April 4, 2005 (shown in the Senate Journal of April 6, 2005, pages 65 to 68, inclusive);
And,
Senate Executive Message No. 5, dated April 8, 2005 (shown in the Senate Journal of that day, pages 51 and 52).
Senator Love then moved that the Senate advise and consent to the nomination of The Honorable Robert H. Plymale to the Board of Control for Southern Regional Education Board (being nomination number 24 in Executive Message No. 2).
Prior to the call of the roll, Senator Plymale moved to be excused from voting under rule number forty-three of the Rules of the Senate, which motion prevailed.
The roll was then taken; and
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: None.
Excused from voting: Plymale--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared Senator Love's motion had prevailed and the nomination of The Honorable Robert H. Plymale to the Board of Control for Southern Regional Education Board had been confirmed.
Senator Love then moved that the Senate advise and consent to the nomination of The Honorable Roman W. Prezioso, Jr., to the Board of Control for Southern Regional Education Board (being nomination number 23 in Executive Message No. 2).
Prior to the call of the roll, Senator Prezioso moved to be excused from voting under rule number forty-three of the Rules of the Senate, which motion prevailed.
The roll was then taken; and
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: None.
Excused from voting: Prezioso--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared Senator Love's motion had prevailed and the nomination of The Honorable Roman W. Prezioso, Jr., to the Board of Control for Southern Regional Education Board had been confirmed.
Senator Love then moved that the Senate advise and consent to all of the executive nominations referred to in the foregoing report from the Committee on Confirmations, except Nomination Nos. 23 and 24, Executive Message No. 2, The Honorable Roman W. Prezioso, Jr., and The Honorable Robert H. Plymale for Members, Board of Control for Southern Regional Education Board, which were previously confirmed.
The roll was then taken; and
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, 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 Senator Love's motion had prevailed.
__________

Consideration of executive nominations having been concluded,
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 returned to the Senate calendar, on third reading, Engrossed House Bill No. 2780.
Senator Chafin also announced that in the same meeting, the Committee on Rules, in accordance with rule number seventeen of the Rules of the Senate, had placed consideration of Engrossed Committee Substitute for House Bill No. 3208, Engrossed House Bill No. 3236 and Engrossed House Bill No. 2780 preceding consideration of all other bills on today's third reading calendar.
The Senate again proceeded to the eighth order of business.
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 out of regular order, with unreported Finance committee amendments to the bill pending, and with the right having been granted on Thursday, April 7, 2005, for further amendments to be received on third reading, was reported by the Clerk.
At the request of Senator Helmick, as chair of the Committee on Finance, and by unanimous consent, the unreported Finance committee amendment to the bill was withdrawn.
On motion of Senator McCabe, the following 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 6. LOCAL EMERGENCY TELEPHONE SYSTEM.
§24-6-6b. Wireless enhanced 911 fee.
(a) Beginning on the first day of January, one thousand nine hundred ninety-eight, all CMRS providers, as defined in section two of this article, shall, on a monthly basis, collect from each of their in-state two-way service subscribers a wireless enhanced 911 fee. No later than the first day of August, one thousand nine hundred ninety-eight, the Public Service Commission shall, after the receipt of comments and the consideration of evidence presented at a hearing, issue an order which directs the CMRS providers regarding all relevant details of wireless enhanced 911 fee collection, including the determination of who is considered an in- state two-way service subscriber and which shall specify how the CMRS providers shall deal with fee collection shortfalls caused by uncollectible accounts. The Public Service Commission shall solicit the views of the wireless telecommunications utilities prior to issuing the order.
(b) The wireless enhanced 911 fee is seventy-five cents three dollars per month for each valid retail commercial mobile radio service subscription, as that term is defined by the Public Service Commission in its order issued under subsection (a) of this section: Provided, That beginning on the first day of July, two thousand five, the wireless enhanced 911 fee shall include ten cents to be distributed to the West Virginia State Police to be used for equipment upgrades for improving and integrating their communication efforts with those of the enhanced 911 systems: Provided, however, That for the fiscal year beginning on the first day of July, two thousand five, and for every fiscal year thereafter, one million dollars of the wireless enhanced 911 fee shall be distributed by the Public Service Commission to subsidize the construction of towers. The moneys shall be deposited in a fund administered by the West Virginia Public Service Commission, entitled "Enhanced 911 Wireless Tower Access Assistance Fund", and shall be expended in accordance with an enhanced 911 wireless tower access matching grant order adopted by the Public Service Commission. The Commission order shall contain terms and conditions designed to provide financial assistance loans or grants to state agencies, political subdivisions of the state and wireless telephone carriers for the acquisition, equipping and construction of new wireless towers, which would provide enhanced 911 service coverage and which would not be available otherwise due to marginal financial viability of the applicable tower coverage area: Provided further, That the grants shall be allocated among potential sites based on application from county commissions demonstrating the need for enhanced 911 wireless coverage in specific areas of this state. Any tower constructed with assistance from the fund created by this subdivision shall be available for use by emergency services, fire departments and law- enforcement agencies communication equipment, so long as that use does not interfere with the carrier's wireless signal: And provided further, That the Public Service Commission shall promulgate rules in accordance with article three, chapter twenty- nine-a of this code to effectuate the provisions of this subsection. The Public Service Commission is specifically authorized to promulgate emergency rules.
(c) Beginning in the year one thousand nine hundred ninety- seven, and every two years thereafter, the Public Service Commission shall conduct an audit of the wireless enhanced 911 fee and shall recalculate the fee so that it is the weighted average rounded to the nearest penny, as of the first day of March of the respecification year, of all of the enhanced 911 fees imposed by the counties which have adopted an enhanced 911 ordinance: Provided, That the wireless enhanced 911 fee may never be increased by more than twenty-five percent of its value at the beginning of the respecification year: Provided, however, That the fee may never be less than the amount set in subsection (b) of this section: Provided further, That beginning on the first day of July, two thousand five, the wireless enhanced 911 fee shall include ten cents to be distributed to the West Virginia State Police to be used for equipment upgrades for improving and integrating their communication efforts with those of the enhanced 911 systems: And provided further, That beginning on the first day of July, two thousand five, one million dollars of the wireless enhanced 911 fee shall be distributed by the Public Service Commission to subsidize the construction of wireless towers as specified in subsection (b) of this section.
(d) The CMRS providers shall, after retaining a three-percent billing fee, send the wireless enhanced 911 fee moneys collected, on a monthly basis, to the Public Service Commission. The Public Service Commission shall, on a quarterly and approximately evenly staggered basis, disburse the fee revenue in the following manner:
(1) Each county that does not have a 911 ordinance in effect as of the original effective date of this section in the year one thousand nine hundred ninety-seven or has enacted a 911 ordinance within the five years prior to the original effective date of this section in the year one thousand nine hundred ninety-seven shall receive eight and one-half tenths of one percent of the fee revenues received by the Public Service Commission: and from the remainder of the revenues, each Provided, That after the effective date of this section, in the year two thousand five, when two or more counties consolidate into one county to provide government services, the consolidated county shall receive one percent of the fee revenues received by the Public Service Commission for itself and for each county merged into the consolidated county. Each county shall receive a pro rata portion eight and one half tenths of one percent of the fee revenues remainder of the fee revenues received by the Public Service Commission: based on that county's percentage of the total number of local exchange telephone access lines and line equivalents in service in the state Provided, That after the effective date of this section, in the year two thousand five, when two or more counties consolidate into one county to provide government services, the consolidated county shall receive one percent of the fee revenues received by the Public Service Commission for itself and for each county merged into the consolidated county. Then, from any moneys remaining, each county shall receive a pro rata portion of that remainder based on that county's population as determined in the most recent decennial census as a percentage of the state total population. The Public Service Commission shall recalculate the county disbursement percentages on a yearly basis, with the changes effective on the first day of July, and using data as of the preceding first day of March. The public utilities which normally provide local exchange telecommunications service by means of lines, wires, cables, optical fibers or by other means extended to subscriber premises shall supply the data to the Public Service Commission on a county- specific basis no later than the first day of June of each year;
(2) Counties which have an enhanced 911 ordinance in effect shall receive their share of the wireless enhanced 911 fee revenue for use in the same manner as the enhanced 911 fee revenues received by those counties pursuant to their enhanced 911 ordinances;
(3) The Public Service Commission shall deposit the wireless enhanced 911 fee revenue for each county which does not have an enhanced 911 ordinance in effect into an escrow account which it has established for that county. Any county with an escrow account may, immediately upon adopting an enhanced 911 ordinance, receive the moneys which have accumulated in the escrow account for use as specified in subdivision (2) of this subsection: Provided, That a county that adopts a 911 ordinance after the original effective date of this section in the year one thousand nine hundred ninety- seven or has adopted a 911 ordinance within five years of the original effective date of this section in the year one thousand nine hundred ninety-seven shall continue to receive one percent of the total 911 fee revenue for a period of five years following the adoption of the ordinance. and Thereafter, each county shall receive that county's portion eight and one half tenths of one percent of the remaining fee revenue, being disbursed to counties on a pro rata basis plus that county's additional pro rata portion of the fee revenues then remaining, based on that county's population as determined in the most recent decennial census as a percentage of the state total population: Provided, however, That every five years from the year one thousand nine hundred ninety- seven, all fee revenue residing in escrow accounts shall be disbursed on the pro rata basis specified in subdivision (1) of this subsection, except that data for counties without enhanced 911 ordinances in effect shall be omitted from the calculation and all escrow accounts shall begin again with a zero balance.
(e) CMRS providers have the same rights and responsibilities as other telephone service suppliers in dealing with the failure by a subscriber of a CMRS provider to timely pay the wireless enhanced 911 fee.
(f) Notwithstanding the provisions of section one-a of this article, for the purposes of this section, the term "county" means one of the counties provided for in section one, article one, chapter one of this code.
(g) From any funds distributed to a county pursuant to this section, a total of three percent quarter shall be set aside in a special fund to be used exclusively for the purchase of equipment that will provide information regarding the x and y coordinates of persons who call an emergency telephone system through a commercial mobile radio service: Provided, That upon purchase of the necessary equipment, the special fund shall be dissolved and any surplus shall be used for general operation of the emergency telephone system as may otherwise be provided by law.

Following discussion,
The question being on the adoption of Senator McCabe's amendment to the bill (Eng. Com. Sub. for H. B. No. 3208), the same was put and prevailed.
Having been engrossed, the bill, as just amended, 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, Dempsey, Edgell, Facemyer, Fanning, Guills, Helmick, Hunter, Kessler, Lanham, Love, McCabe, Minard, Minear, Sharpe, White and Tomblin (Mr. President)--22.
The nays were: Deem, Foster, Harrison, Jenkins, McKenzie, Oliverio, Plymale, Prezioso, Sprouse, Unger, Weeks and Yoder--12.
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. 3208) passed.
At the request of Senator Helmick, as chair of the Committee on Finance, and by unanimous consent, the unreported Finance committee amendment to the title of the bill was withdrawn.
On motion of Senator McCabe, the following amendment to the title of the bill 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. 3208--A Bill to amend and reenact §24-6-6b of the Code of West Virginia, 1931, as amended, relating to the wireless enhanced 911 fee; raising the fee; earmarking ten cents of the fee for the State Police; earmarking one million dollars of the fee for the construction of wireless towers; creating the Enhanced 911 Wireless Tower Access Assistance Fund to be administered by the Public Service Commission; authorizing the Commission to provide loans and matching grants; use of towers for emergency services; authorizing the Commission to promulgate rules and emergency rules; adjusting the formula by which the Public Service Commission distributes wireless enhanced 911 fees to the counties; and allowing counties which consolidate government services to receive one percent of fee for each county consolidated.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
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 third reading, coming up out of regular order, with an unreported Finance committee amendment pending, and with the right having been granted on yesterday, Friday, April 8, 2005, for further amendments to be received on third reading, was reported by the Clerk.
At the request of Senator Helmick, as chair of the Committee on Finance, and by unanimous consent, the unreported Finance committee amendment to the bill was withdrawn.
On motion of Senator Helmick, the following amendment to the bill was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §22-3-11a and §22-3- 32a, all to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-11a. Special reclamation tax; clarification of imposition of tax; procedures for collection and administration of tax; application of Tax Procedure and Administration Act and Tax Crimes and Penalties Act.

(a) It is the intent of the Legislature to clarify that, from the date of its enactment, the special reclamation tax imposed pursuant to the provisions of section eleven of this article is intended to be in addition to any other taxes imposed on persons conducting coal surface mining operations, including, but not limited to, the tax imposed by section thirty-two of this article, the tax imposed by article twelve-b, chapter eleven of this code, the taxes imposed by article thirteen-a of said chapter and the tax imposed by article thirteen-v of said chapter.
(b) Notwithstanding any other provisions of section eleven of this article to the contrary, under no circumstance shall an exemption from the taxes imposed by article twelve-b, thirteen-a or thirteen-v, chapter eleven of this code be construed to be an exemption from the tax imposed by section eleven of this article.
(c) When coal included in the measure of the tax imposed by section eleven of this article is exempt from the tax imposed by article twelve-b, chapter eleven of this code, the tax imposed by section eleven of this article shall be paid to the tax commissioner in accordance with the provisions of sections four through fourteen, inclusive, article twelve-b, chapter eleven of this code, which provisions are hereby incorporated by reference in this article.
(d) General procedure and administration. -- Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten, chapter eleven of this code applies to the special tax imposed by section eleven of this article with like effect as if such act were applicable only to the special tax imposed by said section and were set forth in extenso in this article, notwithstanding the provisions of section three, article ten, chapter eleven of this code.
(e) Tax crimes and penalties. -- Each and every provision of the "West Virginia Tax Crimes and Penalties Act" set forth in article nine, chapter eleven of this code applies to the special tax imposed by section eleven of this article with like effect as if such act were applicable only to the special tax imposed by said section and set forth in extenso in this article, notwithstanding the provisions of section two, article nine, chapter eleven of this code.
§22-3-32a. Special tax on coal; clarification of imposition of tax; procedures for collection and administration of tax.

(a) It is the intent of the Legislature to clarify that from the date of its enactment, the special tax on coal imposed pursuant to the provisions of section thirty-two of this article is intended to be in addition to any other taxes imposed on every person in this state engaging in the privilege of severing, extracting, reducing to possession or producing coal for sale profit or commercial use, including, but not limited to, the tax imposed by section eleven of this article, the tax imposed by article twelve- b, chapter eleven of this code, the taxes imposed by article thirteen-a of said chapter and the tax imposed by article thirteen- v of said chapter.
(b) Notwithstanding any other provisions of section thirty-two of this article to the contrary, under no circumstance shall an exemption from the taxes imposed by article twelve-b, thirteen-a or thirteen-v, chapter eleven of this code be construed to be an exemption from the tax imposed by section thirty-two of this article.
(c) When coal included in the measure of the tax imposed by section thirty-two of this article is exempt from the tax imposed by article twelve-b, chapter eleven of this code, the tax imposed by section thirty-two of this article shall be paid to the tax commissioner in accordance with the provisions of sections four through fourteen, inclusive, article twelve-b, chapter eleven of this code, which provisions are hereby incorporated by reference in this article.
Having been engrossed, the bill, as just amended, was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--33.
The nays were: Weeks--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. 3236) passed.
On motion of Senator Helmick, the following amendment to the title of the bill 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. 3236--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §22-3-11a and §22-3-32a, all relating generally to the special reclamation tax and special tax on coal production; clarifying that both of these taxes apply to production of thin seam coal and providing for payment thereof; and providing that the special reclamation is subject to the West Virginia Tax Crimes and Penalties Act and the West Virginia Tax Procedure and Administration Act.
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, White, Yoder and Tomblin (Mr. President)--33.
The nays were: Weeks--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. 3236) 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. 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.
On third reading, coming up out of regular order, with an unreported Finance committee amendment pending, and with the right having been granted on yesterday, Friday, April 8, 2005, for further amendments to be received on third reading, was reported by the Clerk.
Under rule number forty-three of the Rules of the Senate, Senator Bowman was excused from voting on any matter pertaining to the bill.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10. Accounting and reporting; Commission to provide communications protocol data; distribution of net terminal income; remittance through electronic transfer of funds; establishment of accounts and nonpayment penalties; Commission control of accounting for net terminal income; settlement of accounts; manual reporting and payment may be required; request for reports; examination of accounts and records.

(a) The Commission shall provide to manufacturers, or applicants applying for a manufacturer's permit, the protocol documentation data necessary to enable the respective manufacturer's video lottery terminals to communicate with the Commission's central computer for transmitting auditing program information and for activation and disabling of video lottery terminals.
(b) The gross terminal income of a licensed racetrack shall be remitted to the Commission through the electronic transfer of funds. Licensed racetracks shall furnish to the Commission all information and bank authorizations required to facilitate the timely transfer of moneys to the Commission. Licensed racetracks must provide the Commission thirty days' advance notice of any proposed account changes in order to assure the uninterrupted electronic transfer of funds. From the gross terminal income remitted by the licensee to the Commission, the Commission shall deduct an amount sufficient to reimburse the Commission for its actual costs and expenses incurred in administering racetrack video lottery at the licensed racetrack, and the resulting amount after the deduction is the net terminal income. The amount deducted for administrative costs and expenses of the Commission may not exceed four percent of gross terminal income: Provided, That any amounts deducted by the Commission for its actual costs and expenses that exceeds its actual costs and expenses shall be deposited into the State Lottery Fund. For all fiscal years beginning on or after the first day of July, two thousand one, the Commission shall not receive an amount of gross terminal income in excess of the amount of gross terminal income received during the fiscal year ending on the thirtieth day of June, two thousand one, but four percent of any amount of gross terminal income received in excess of the amount of gross terminal income received during the fiscal year ending on the thirtieth day of June, two thousand one, shall be deposited into the fund established in section eighteen-a, article twenty-two of this chapter.
(c) Net terminal income shall be divided as set out in this subsection. For all fiscal years beginning on or after the first day of July, two thousand one, any amount of net terminal income received in excess of the amount of net terminal income received during the fiscal year ending on the thirtieth day of June, two thousand one, shall be divided as set out in section ten-b of this article. The licensed racetrack's share is in lieu of all lottery agent commissions and is considered to cover all costs and expenses required to be expended by the licensed racetrack in connection with video lottery operations. The division shall be made as follows:
(1) The Commission shall receive thirty percent of net terminal income, which shall be paid into the State Lottery Fund as provided in section ten-a of this article;
(2) Until the first day of July, two thousand five, fourteen percent of net terminal income at a licensed racetrack shall be deposited in the special fund established by the licensee, and used for payment of regular purses in addition to other amounts provided for in article twenty-three, chapter nineteen of this code, on and after the first day of July, two thousand five, the rate shall be seven percent of net terminal income;
(3) The county where the video lottery terminals are located shall receive two percent of the net terminal income: Provided, That:
(A) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter, any amount in excess of the two percent received during the fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack is located that has participated in the West Virginia Thoroughbred Development Fund since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipalities of the county shall receive fifty percent of the excess amount, said fifty percent to be divided among the municipalities on a per capita basis as determined by the most recent decennial United States census of population; and
(B) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter, any amount in excess of the two percent received during the fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack other than a racetrack described in paragraph (A) of this proviso is located and where the racetrack has been located in a municipality within the county since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided, if applicable, as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipality shall receive fifty percent of the excess amount; and
(C) This proviso shall not affect the amount to be received under this subdivision by any other county other than a county described in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be paid for and on behalf of all employees of the Licensed Racing Association by making a deposit into a special fund to be established by the Racing Commission to be used for payment into the pension plan for all employees of the Licensed Racing Association;
(5) The West Virginia Thoroughbred Development Fund created under section thirteen-b, article twenty-three, chapter nineteen of this code and the West Virginia Greyhound Breeding Development Fund created under section ten of said article shall receive an equal share of a total of not less than one and one-half percent of the net terminal income: Provided, That for any racetrack which does not have a breeder's program supported by the Thoroughbred Development Fund or the Greyhound Breeding Development Fund, the one and one-half percent provided for in this subdivision shall be deposited in the special fund established by the licensee and used for payment of regular purses, in addition to other amounts provided in subdivision (2) of this subsection and article twenty- three, chapter nineteen of this code;
(6) The West Virginia Racing Commission shall receive one percent of the net terminal income which shall be deposited and used as provided in section thirteen-c, article twenty-three, chapter nineteen of this code;
(7) A licensee shall receive forty-seven forty-six and one-half percent of net terminal income;
(8) (A) The Tourism Promotion Fund established in section twelve, article two, chapter five-b of this code shall receive three percent of the net terminal income: Provided, That for the fiscal year beginning the first day of July, two thousand three, the Tourism Commission shall transfer from the Tourism Promotion Fund five million dollars of the three percent of the net terminal income described in this section and section ten-b of this article into the fund administered by the West Virginia Economic Development Authority pursuant to section seven, article fifteen, chapter thirty-one of this code, five million dollars into the Capitol Renovation and Improvement Fund administered by the Department of Administration pursuant to section six, article four, chapter five-a of this code and five million dollars into the Tax Reduction and Federal Funding Increased Compliance Fund; and
(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, for each fiscal year beginning after the thirtieth day of June, two thousand four, this three percent of net terminal income and the three percent of net terminal income described in paragraph (B), subdivision (8), subsection (a), section ten-b of this article shall be distributed as provided in this paragraph as follows:
(i) 1.375 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the Tourism Promotion Fund created under section twelve, article two, chapter five-b of this code;
(ii) 0.375 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the Development Office Promotion Fund created under section three-b, article two, chapter five-b of this code;
(iii) 0.5 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the Research Challenge Fund created under section ten, article one-b, chapter eighteen-b of this code;
(iv) 0.6875 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the Capitol Renovation and Improvement Fund administered by the Department of Administration pursuant to section six, article four, chapter five-a of this code; and
(v) 0.0625 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the 2004 Capitol Complex Parking Garage Fund administered by the Department of Administration pursuant to section five-a, article four, chapter five-a of this code;
(9) On and after the first day of July, two thousand five, seven percent of net terminal income shall be deposited into the Workers' Compensation Debt Reduction Fund created in section five, article two-d, chapter twenty-three of this code; and
(10) The remaining one percent of net terminal income shall be deposited as follows:
(A) For the fiscal year beginning the first day of July, two thousand three, the Veterans Memorial Program shall receive one percent of the net terminal income until sufficient moneys have been received to complete the veterans memorial on the grounds of the state capitol complex in Charleston, West Virginia. The moneys shall be deposited in the State Treasury in the Division of Culture and History Special Fund created under section three, article one-i, chapter twenty-nine of this code: Provided, That only after sufficient moneys have been deposited in the Fund to complete the veterans memorial and to pay in full the annual bonded indebtedness on the veterans memorial, not more than twenty thousand dollars of the one percent of net terminal income provided for in this subdivision shall be deposited into a special revenue fund in the State Treasury, to be known as the "John F. 'Jack' Bennett Fund". The moneys in this fund shall be expended by the Division of Veterans Affairs to provide for the placement of markers for the graves of veterans in perpetual cemeteries in this state. The Division of Veterans Affairs shall promulgate legislative rules pursuant to the provisions of article three, chapter twenty-nine-a of this code specifying the manner in which the funds are spent, determine the ability of the surviving spouse to pay for the placement of the marker and setting forth the standards to be used to determine the priority in which the veterans grave markers will be placed in the event that there are not sufficient funds to complete the placement of veterans grave markers in any one year, or at all. Upon payment in full of the bonded indebtedness on the veterans memorial, one hundred thousand dollars of the one percent of net terminal income provided for in this subdivision shall be deposited in the special fund in the Division of Culture and History created under section three, article one-i, chapter twenty-nine of this code and be expended by the Division of Culture and History to establish a West Virginia Veterans Memorial Archives within the Cultural Center to serve as a repository for the documents and records pertaining to the veterans memorial, to restore and maintain the monuments and memorial on the capitol grounds: Provided, however, That five hundred thousand dollars of the one percent of net terminal income shall be deposited in the State Treasury in a special fund of the Department of Administration, created under section five, article four, chapter five-a of this code, to be used for construction and maintenance of a parking garage on the state capitol complex; and the remainder of the one percent of net terminal income shall be deposited in equal amounts in the Capitol Dome and Improvements Fund created under section two, article four, chapter five-a of this code and Cultural Facilities and Capitol Resources Matching Grant Program Fund created under section three, article one of this chapter.
(B) For each fiscal year beginning after the thirtieth day of June, two thousand four:
(i) Five hundred thousand dollars of the one percent of net terminal income shall be deposited in the State Treasury in a special fund of the Department of Administration, created under section five, article four, chapter five-a of this code, to be used for construction and maintenance of a parking garage on the state capitol complex; and
(ii) The remainder of the one percent of net terminal income and all of the one percent of net terminal income described in paragraph (B), subdivision (9), subsection (a), section ten-b of this article shall be distributed as follows: The net terminal income shall be deposited in equal amounts into the Capitol Dome and Capitol Improvements Fund created under section two, article four, chapter five-a of this code and the Cultural Facilities and Capitol Resources Matching Grant Program Fund created under section three, article one, chapter twenty-nine of this code until a total of one million five hundred thousand dollars is deposited into the Cultural Facilities and Capitol Resources Matching Grant Program Fund; thereafter, the remainder shall be deposited into the Capitol Dome and Capitol Improvements Fund.
(d) Each licensed racetrack shall maintain in its account an amount equal to or greater than the gross terminal income from its operation of video lottery machines, to be electronically transferred by the Commission on dates established by the Commission. Upon a licensed racetrack's failure to maintain this balance, the Commission may disable all of a licensed racetrack's video lottery terminals until full payment of all amounts due is made. Interest shall accrue on any unpaid balance at a rate consistent with the amount charged for state income tax delinquency under chapter eleven of this code. The interest shall begin to accrue on the date payment is due to the Commission.
(e) The Commission's central control computer shall keep accurate records of all income generated by each video lottery terminal. The Commission shall prepare and mail to the licensed racetrack a statement reflecting the gross terminal income generated by the licensee's video lottery terminals. Each licensed racetrack shall report to the Commission any discrepancies between the Commission's statement and each terminal's mechanical and electronic meter readings. The licensed racetrack is solely responsible for resolving income discrepancies between actual money collected and the amount shown on the accounting meters or on the Commission's billing statement.
(f) Until an accounting discrepancy is resolved in favor of the licensed racetrack, the Commission may make no credit adjustments. For any video lottery terminal reflecting a discrepancy, the licensed racetrack shall submit to the Commission the maintenance log which includes current mechanical meter readings and the audit ticket which contains electronic meter readings generated by the terminal's software. If the meter readings and the Commission's records cannot be reconciled, final disposition of the matter shall be determined by the Commission. Any accounting discrepancies which cannot be otherwise resolved shall be resolved in favor of the Commission.
(g) Licensed racetracks shall remit payment by mail if the electronic transfer of funds is not operational or the Commission notifies licensed racetracks that remittance by this method is required. The licensed racetracks shall report an amount equal to the total amount of cash inserted into each video lottery terminal operated by a licensee, minus the total value of game credits which are cleared from the video lottery terminal in exchange for winning redemption tickets, and remit the amount as generated from its terminals during the reporting period. The remittance shall be sealed in a properly addressed and stamped envelope and deposited in the United States mail no later than noon on the day when the payment would otherwise be completed through electronic funds transfer.
(h) Licensed racetracks may, upon request, receive additional reports of play transactions for their respective video lottery terminals and other marketing information not considered confidential by the Commission. The Commission may charge a reasonable fee for the cost of producing and mailing any report other than the billing statements.
(i) The Commission has the right to examine all accounts, bank accounts, financial statements and records in a licensed racetrack's possession, under its control or in which it has an interest, and the licensed racetrack shall authorize all third parties in possession or in control of the accounts or records to allow examination of any of those accounts or records by the Commission.
On motion of Senator McCabe, the following amendment to the Finance committee amendment to the bill (Eng. H. B. No. 2780) was reported by the Clerk and adopted:
On page one, by striking out everything after the section caption and inserting in lieu thereof the following:
(a) The Commission shall provide to manufacturers, or applicants applying for a manufacturer's permit, the protocol documentation data necessary to enable the respective manufacturer's video lottery terminals to communicate with the Commission's central computer for transmitting auditing program information and for activation and disabling of video lottery terminals.
(b) The gross terminal income of a licensed racetrack shall be remitted to the Commission through the electronic transfer of funds. Licensed racetracks shall furnish to the Commission all information and bank authorizations required to facilitate the timely transfer of moneys to the Commission. Licensed racetracks must provide the Commission thirty days' advance notice of any proposed account changes in order to assure the uninterrupted electronic transfer of funds. From the gross terminal income remitted by the licensee to the Commission, the Commission shall deduct an amount sufficient to reimburse the Commission for its actual costs and expenses incurred in administering racetrack video lottery at the licensed racetrack, and the resulting amount after the deduction is the net terminal income. The amount deducted for administrative costs and expenses of the Commission may not exceed four percent of gross terminal income: Provided, That any amounts deducted by the Commission for its actual costs and expenses that exceeds its actual costs and expenses shall be deposited into the State Lottery Fund. For all fiscal years beginning on or after the first day of July, two thousand one, the Commission shall not receive an amount of gross terminal income in excess of the amount of gross terminal income received during the fiscal year ending on the thirtieth day of June, two thousand one, but four percent of any amount of gross terminal income received in excess of the amount of gross terminal income received during the fiscal year ending on the thirtieth day of June, two thousand one, shall be deposited into the fund established in section eighteen-a, article twenty-two of this chapter.
(c) Net terminal income shall be divided as set out in this subsection. For all fiscal years beginning on or after the first day of July, two thousand one, any amount of net terminal income received in excess of the amount of net terminal income received during the fiscal year ending on the thirtieth day of June, two thousand one, shall be divided as set out in section ten-b of this article. The licensed racetrack's share is in lieu of all lottery agent commissions and is considered to cover all costs and expenses required to be expended by the licensed racetrack in connection with video lottery operations. The division shall be made as follows:
(1) The Commission shall receive thirty percent of net terminal income, which shall be paid into the State Lottery Fund as provided in section ten-a of this article;
(2) Until the first day of July, two thousand five, fourteen percent of net terminal income at a licensed racetrack shall be deposited in the special fund established by the licensee, and used for payment of regular purses in addition to other amounts provided for in article twenty-three, chapter nineteen of this code, on and after the first day of July, two thousand five, the rate shall be seven percent of net terminal income;
(3) The county where the video lottery terminals are located shall receive two percent of the net terminal income: Provided, That:
(A) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter, any amount in excess of the two percent received during the fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack is located that has participated in the West Virginia Thoroughbred Development Fund since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipalities of the county shall receive fifty percent of the excess amount, said fifty percent to be divided among the municipalities on a per capita basis as determined by the most recent decennial United States census of population; and
(B) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter, any amount in excess of the two percent received during the fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack other than a racetrack described in paragraph (A) of this proviso is located and where the racetrack has been located in a municipality within the county since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided, if applicable, as follows:
(i) The county shall receive fifty percent of the excess amount; and
(ii) The municipality shall receive fifty percent of the excess amount; and
(C) This proviso shall not affect the amount to be received under this subdivision by any other county other than a county described in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be paid for and on behalf of all employees of the Licensed Racing Association by making a deposit into a special fund to be established by the Racing Commission to be used for payment into the pension plan for all employees of the Licensed Racing Association;
(5) The West Virginia Thoroughbred Development Fund created under section thirteen-b, article twenty-three, chapter nineteen of this code and the West Virginia Greyhound Breeding Development Fund created under section ten of said article shall receive an equal share of a total of not less than one and one-half percent of the net terminal income; Provided, That for any racetrack which does not have a breeder's program supported by the thoroughbred development fund or the greyhound breeding development fund, the one and one-half percent provided for in this subdivision shall be deposited in the special fund established by the licensee and used for payment of regular purses, in addition to other amounts provided in subdivision (2) of this subsection and article twenty- three, chapter nineteen of this code.
(6) The West Virginia Racing Commission shall receive one percent of the net terminal income which shall be deposited and used as provided in section thirteen-c, article twenty-three, chapter nineteen of this code;
(7) A licensee shall receive forty-seven forty-six and one- half percent of net terminal income;
(8) (A) The Tourism Promotion Fund established in section twelve, article two, chapter five-b of this code shall receive three percent of the net terminal income: Provided, That for the fiscal year beginning the first day of July, two thousand three, the Tourism Commission shall transfer from the Tourism Promotion Fund five million dollars of the three percent of the net terminal income described in this section and section ten-b of this article into the fund administered by the West Virginia Economic Development Authority pursuant to section seven, article fifteen, chapter thirty-one of this code, five million dollars into the Capitol Renovation and Improvement Fund administered by the Department of Administration pursuant to section six, article four, chapter five-a of this code and five million dollars into the Tax Reduction and Federal Funding Increased Compliance Fund; and
(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, for each fiscal year beginning after the thirtieth day of June, two thousand four, this three percent of net terminal income and the three percent of net terminal income described in paragraph (B), subdivision (8), subsection (a), section ten-b of this article shall be distributed as provided in this paragraph as follows:
(i) 1.375 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the Tourism Promotion Fund created under section twelve, article two, chapter five-b of this code;
(ii) 0.375 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the Development Office Promotion Fund created under section three-b, article two, chapter five-b of this code;
(iii) 0.5 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the Research Challenge Fund created under section ten, article one-b, chapter eighteen-b of this code;
(iv) 0.6875 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the Capitol Renovation and Improvement Fund administered by the Department of Administration pursuant to section six, article four, chapter five-a of this code; and
(v) 0.0625 percent of the total amount of net terminal income described in this section and in section ten-b of this article shall be deposited into the 2004 Capitol Complex Parking Garage Fund administered by the Department of Administration pursuant to section five-a, article four, chapter five-a of this code;
(9) (A) On and after the first day of July, two thousand five, seven percent of net terminal income shall be deposited into the Workers' Compensation Debt Reduction Fund created in section five, article two-d, chapter twenty-three of this code: Provided, That in any fiscal year when the amount of money generated by this subdivision totals eleven million dollars, all subsequent distributions under this subdivision shall be deposited in the special fund established by the licensee and used for the payment of regular purses in addition to the other amounts provided for in article twenty-three, chapter nineteen of this code;
(B) The deposit of the seven percent of net terminal income into the Workers Compensation Debt Reduction Fund pursuant to this subdivision shall expire and not be imposed with respect to these funds and shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to the other amounts provided for in article twenty-three, chapter nineteen of this code, on and after the first day of the month following the month in which the Governor certifies to the Legislature that: (i) The revenue bonds issued pursuant to article two-d, chapter twenty-three of this code have been retired or payment of the debt service provided for; and (ii) that an independent certified actuary has determined that the unfunded liability of the old fund, as defined in chapter twenty-three of this code, has been paid or provided for in its entirety
; and
(10) The remaining one percent of net terminal income shall be deposited as follows:
(A) For the fiscal year beginning the first day of July, two thousand three, the Veterans Memorial Program shall receive one percent of the net terminal income until sufficient moneys have been received to complete the veterans memorial on the grounds of the state capitol complex in Charleston, West Virginia. The moneys shall be deposited in the State Treasury in the Division of Culture and History Special Fund created under section three, article one-i, chapter twenty-nine of this code: Provided, That only after sufficient moneys have been deposited in the fund to complete the veterans memorial and to pay in full the annual bonded indebtedness on the veterans memorial, not more than twenty thousand dollars of the one percent of net terminal income provided for in this subdivision shall be deposited into a special revenue fund in the State Treasury, to be known as the "John F. 'Jack' Bennett Fund". The moneys in this fund shall be expended by the Division of Veterans Affairs to provide for the placement of markers for the graves of veterans in perpetual cemeteries in this state. The Division of Veterans Affairs shall promulgate legislative rules pursuant to the provisions of article three, chapter twenty-nine-a of this code specifying the manner in which the funds are spent, determine the ability of the surviving spouse to pay for the placement of the marker and setting forth the standards to be used to determine the priority in which the veterans grave markers will be placed in the event that there are not sufficient funds to complete the placement of veterans grave markers in any one year, or at all. Upon payment in full of the bonded indebtedness on the veterans memorial, one hundred thousand dollars of the one percent of net terminal income provided for in this subdivision shall be deposited in the special fund in the Division of Culture and History created under section three, article one-i, chapter twenty-nine of this code and be expended by the Division of Culture and History to establish a West Virginia Veterans Memorial Archives within the Cultural Center to serve as a repository for the documents and records pertaining to the veterans memorial, to restore and maintain the monuments and memorial on the capitol grounds: Provided, however, That five hundred thousand dollars of the one percent of net terminal income shall be deposited in the State Treasury in a special fund of the Department of Administration, created under section five, article four, chapter five-a of this code, to be used for construction and maintenance of a parking garage on the state capitol complex; and the remainder of the one percent of net terminal income shall be deposited in equal amounts in the Capitol Dome and Improvements Fund created under section two, article four, chapter five-a of this code and Cultural Facilities and Capitol Resources Matching Grant Program Fund created under section three, article one of this chapter.
(B) For each fiscal year beginning after the thirtieth day of June, two thousand four:
(i) Five hundred thousand dollars of the one percent of net terminal income shall be deposited in the State Treasury in a special fund of the Department of Administration, created under section five, article four, chapter five-a of this code, to be used for construction and maintenance of a parking garage on the state capitol complex; and
(ii) The remainder of the one percent of net terminal income and all of the one percent of net terminal income described in paragraph (B), subdivision (9), subsection (a), section ten-b of this article shall be distributed as follows: The net terminal income shall be deposited in equal amounts into the Capitol Dome and Capitol Improvements Fund created under section two, article four, chapter five-a of this code and the Cultural Facilities and Capitol Resources Matching Grant Program Fund created under section three, article one, chapter twenty-nine of this code until a total of one million five hundred thousand dollars is deposited into the Cultural Facilities and Capitol Resources Matching Grant Program Fund; thereafter, the remainder shall be deposited into the Capitol Dome and Capitol Improvements Fund.
(d) Each licensed racetrack shall maintain in its account an amount equal to or greater than the gross terminal income from its operation of video lottery machines, to be electronically transferred by the Commission on dates established by the Commission. Upon a licensed racetrack's failure to maintain this balance, the Commission may disable all of a licensed racetrack's video lottery terminals until full payment of all amounts due is made. Interest shall accrue on any unpaid balance at a rate consistent with the amount charged for state income tax delinquency under chapter eleven of this code. The interest shall begin to accrue on the date payment is due to the Commission.
(e) The Commission's central control computer shall keep accurate records of all income generated by each video lottery terminal. The Commission shall prepare and mail to the licensed racetrack a statement reflecting the gross terminal income generated by the licensee's video lottery terminals. Each licensed racetrack shall report to the Commission any discrepancies between the Commission's statement and each terminal's mechanical and electronic meter readings. The licensed racetrack is solely responsible for resolving income discrepancies between actual money collected and the amount shown on the accounting meters or on the Commission's billing statement.
(f) Until an accounting discrepancy is resolved in favor of the licensed racetrack, the Commission may make no credit adjustments. For any video lottery terminal reflecting a discrepancy, the licensed racetrack shall submit to the Commission the maintenance log which includes current mechanical meter readings and the audit ticket which contains electronic meter readings generated by the terminal's software. If the meter readings and the Commission's records cannot be reconciled, final disposition of the matter shall be determined by the Commission. Any accounting discrepancies which cannot be otherwise resolved shall be resolved in favor of the Commission.
(g) Licensed racetracks shall remit payment by mail if the electronic transfer of funds is not operational or the Commission notifies licensed racetracks that remittance by this method is required. The licensed racetracks shall report an amount equal to the total amount of cash inserted into each video lottery terminal operated by a licensee, minus the total value of game credits which are cleared from the video lottery terminal in exchange for winning redemption tickets, and remit the amount as generated from its terminals during the reporting period. The remittance shall be sealed in a properly addressed and stamped envelope and deposited in the United States mail no later than noon on the day when the payment would otherwise be completed through electronic funds transfer.
(h) Licensed racetracks may, upon request, receive additional reports of play transactions for their respective video lottery terminals and other marketing information not considered confidential by the Commission. The Commission may charge a reasonable fee for the cost of producing and mailing any report other than the billing statements.
(i) The Commission has the right to examine all accounts, bank accounts, financial statements and records in a licensed racetrack's possession, under its control or in which it has an interest, and the licensed racetrack shall authorize all third parties in possession or in control of the accounts or records to allow examination of any of those accounts or records by the Commission.
(j) A license to operate video lottery games shall be granted, renewed or remain in full force and effect notwithstanding the failure of the licensee to meet the requirements of subdivision (6), subsection (a), section seven of this article.
The question now being on the adoption of the Finance committee amendment to the bill, as amended, the same was put and prevailed.
Having been engrossed, the bill, as just amended, was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, 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: Harrison--1.
Absent: None.
Excused from voting: Bowman--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2780) passed.
On motion of Senator McCabe, the following amendment to the title of the bill 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. 2780--A Bill to amend and reenact §29-22A- 10 of the Code of West Virginia, 1931, as amended, relating to racetrack video lottery; 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 correspondingly reducing the allocation of racetrack video lottery net terminal income to licensees; deleting provisions relating to a racetrack which does not have a breeder's program supported by the Thoroughbred Development Fund or Greyhound Breeding Development Fund; requiring the one and one-half percent of net terminal income designated for the West Virginia Thoroughbred Development Fund to be diverted to the special fund established by the licensee and used for payment of regular purses; limiting allocation to Workers' Compensation and providing for distribution of certain funds to be deposited in the special fund established by the licensee and used for payment of regular purses; providing for expiration of certain income into the Workers' Compensation Debt Reduction Fund; and providing for license to be granted, renewed or maintained notwithstanding failure of licensee to meet certain requirements.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the second order of business and the introduction of guests.
On motion of Senator Chafin, the Senate recessed for five minutes.
Upon expiration of the recess, the Senate reconvened and again proceeded to the eighth order of business.
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 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. 3098) 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. 3104, Relating to the payment of telecommunications charges.
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. 3104) 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. 3125, Providing for biannual independent review of the Neighborhood Investment Program and to extend the program until July 1, 2008.
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. 3125) 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. 3138, Relating to requiring health insurance plans to cover the cost of contraceptives.
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, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Barnes, Harrison and Weeks--3.
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. 3138) passed.
The following amendment to the title of the bill, from the Committee on Banking and Insurance, 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. 3138--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §33-16E-1, §33-16E-2, §33-16E-3, §33-16E-4, §33-16E-5, §33-16E-6 and §33-16E-7, all relating to insurance and contraceptive coverage; providing definitions; specifying application of article; requiring health insurance plans provide parity for contraceptive drugs, devices and outpatient services; and providing exemptions and prohibitions.
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. 3145, Providing immunity from civil damages for persons who volunteer their services at the public health departments.
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. 3145) 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. 3145--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §55-7-19a, relating to providing limited immunity from civil damages for persons who volunteer their services to public health departments during declared emergencies and when acting within the scope of job description promulgated by the National Center for Disease Control; and providing that the limitation of liability does not apply to intentional tortious conduct or acts or omissions constituting gross negligence.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 3151, Regulating dialysis technicians by the Board of Examiners for Registered Professional Nurses.
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. 3151) 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. 3151) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
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 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. 3152) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 3152) 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. 3153, Establishing the crime of railroad vandalism.
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. 3153) 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. 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 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. 3174) 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. 3178, Relating to domestic violence and clarifying when permanent injunctions and other provisions may be granted in final divorce orders.
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. 3178) 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. 3178--A Bill to amend and reenact §48-5-608 of the Code of West Virginia, 1931, as amended; and to amend and reenact §48-27-305, §48-27-401, §48-27-503, §48- 27-504, §48-27-901 and §48-27-1001 of said code, all relating to domestic violence generally; extending protection to any residence expending bases for temporary protective orders; and authority arrest for violations of out-of-state court orders.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
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 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. 3211) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 3216, Describing the scope and limitations of legislative immunity.
Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 3258, Permitting the sale of nonintoxicating beer within a certain distance from a church that consents to the sale.
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: Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Helmick, Jenkins, Kessler, Lanham, Love, McCabe, Oliverio, Plymale, Prezioso, Sharpe, Unger, Weeks, White and Yoder--23.
The nays were: Bailey, Barnes, Dempsey, Guills, Harrison, Hunter, McKenzie, Minard, Minear, Sprouse and Tomblin (Mr. President)--11.
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. 3258) passed.
At the request of Senator Kessler, as chair of the Committee on the Judiciary, and by unanimous consent, the unreported Judiciary committee amendment to the title of the bill was withdrawn.
On motion of Senator Kessler, the following amendment to the title of the bill 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. 3258--A Bill to amend and reenact §11-16-8 of the Code of West Virginia, 1931, as amended, relating to permitting the sale of nonintoxicating beer within a certain distance from a church that consents to the sale; clarifying the determination of distance for purpose of issuing license; granting Commissioner discretion to refuse to issue license to business that operates video lottery; and specific requirements.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
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 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. 3280) passed.
On motion of Senator Kessler, the following amendment to the title of the bill was reported by the Clerk and adopted:
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. House Bill No. 3280--A Bill to amend and reenact §16-13A- 25 of the Code of West Virginia, 1931, as amended; and to amend and reenact §24-2-11 of said code, all relating to modifying the review by the Public Service Commission of public convenience and necessity applications where the project has been approved by Infrastructure and Jobs Development Council; removing the necessity for public service districts to prefile with the Public Service Commission; providing for a waiver of thirty-day notice requirement for projects approved by the Infrastructure and Jobs Development Council; providing that the Public Service Commission render a final decision on Infrastructure and Jobs Development Council- approved applications; providing that Infrastructure and Jobs Development Council-approved projects receiving a certificate of public convenience may not be compelled to reopen; and allowing electric power projects to apply for and receive certain licenses and permits.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
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.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Harrison, Love and Weeks--3.
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. 3354) 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. 3360, Requiring the IS & C Director to create and maintain an information systems disaster recovery system.
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. 3360) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the second order of business and the introduction of guests.
At the request of Senator White, unanimous consent being granted, Senator White addressed the Senate regarding the adoption of Senate Resolution No. 46 (Urging Congress to review provisions in the federal PATRIOT Act).
Thereafter, at the request of Senator Barnes, and by unanimous consent, the remarks by Senator White were ordered printed in the Appendix to the Journal.
The Senate again proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 30, Discontinuing use of prior approval system of insurance rate and form filing; other provisions.
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, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That §33-2-20 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §33-2-21; that §33-6-8 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §33-6-15a; that §33-16-2 of said code be amended and reenacted; that §33-16B-1 and §33-16B-3 of said code be amended and reenacted; that §33-17-8 and §33-17-9 of said code be amended and reenacted; that said code be amended by adding thereto three new sections, designated §33-17A-4a, §33-17A-4b and §33-17A-4c; and that §33-20-4 of said code be amended and reenacted, all to read as follows:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-20. Authority of Commissioner to allow withdrawal of insurance carriers from doing business in the state.

(a) Notwithstanding any provision of the code to the contrary, the Commissioner may, consistent with the provisions of this section, authorize an insurer to withdraw from the line of automobile liability insurance for personal, private passenger automobiles covered by article six-a of this chapter or from doing business entirely in this state if:
(1) The insurer has submitted and received approval from the Commissioner of a withdrawal plan; and
(2) The insurer demonstrates to the satisfaction of the Commissioner that allowing the insurer to withdraw would be in the best interest of the insurer, its policyholders and the citizens of this state.
(b) Any insurer that elects to nonrenew or cancel the particular type or line of insurance coverage provided for by section five, article seventeen-a of this chapter shall submit to the Insurance Commissioner a withdrawal plan for informational purposes only prior to cancellation or nonrenewal of all its business in this state.
(c) The Commissioner shall promulgate rules pursuant to chapter twenty-nine-a of this code setting forth the criteria for withdrawal plans: Provided, That the procedural rules previously promulgated setting forth the criteria for withdrawal plans, which rules were made effective the twenty-fifth day of September, two thousand four, shall continue in effect in the same manner as if this section had not been amended during the first extraordinary session of the Legislature in two thousand five.
§33-2-21. Authority of Insurance Commissioner to regulate workers compensation industry; authority of Insurance Commissioner to administer chapter twenty-three of the code of West Virginia.

(a) Upon the termination of the Workers' Compensation Commission pursuant to chapter twenty-three of this code, the powers and duties heretofore imposed upon the Workers' Compensation Commission as they relate to general administration of the provisions of said chapter are hereby transferred to and imposed upon the Insurance Commissioner.
(b) Unless otherwise specified in chapter twenty-three of this code, upon termination of the Workers' Compensation Commission, the duties imposed upon the Workers' Compensation Commission as they relate to the award and payment of disability and death benefits and the review of claims in articles four and five, chapter twenty- three of this code will be imposed upon the Employers Mutual Insurance Company established pursuant to article two-c, chapter twenty-three of this code, a private carrier offering workers' compensation insurance in this state and self-insured employers. Whenever reference is made to the Workers' Compensation Commissioner in those articles, the duty prescribed shall apply to the Employers Mutual Insurance Company, a private carrier or self- insured employer, as applicable.
(c) From the effective date of this enactment, the Insurance Commissioner shall regulate all insurers licensed to transact workers' compensation insurance in this state and all of the provisions of this chapter shall apply to such insurers, unless otherwise exempted by statute.
ARTICLE 6. THE INSURANCE POLICY.
§33-6-8. Filing of forms.
(a) Except as provided in section eight, article seventeen of this chapter (fire and marine forms), no No insurance policy form, no group certificate form, no insurance application form where a written application is required and is to be made a part of the policy and no rider, endorsement or other form to be attached to any policy shall be delivered or issued for delivery in this state by an insurer unless it has been filed with the Commissioner and, to the extent required by subdivision (1), subsection (b) of this section, approved by the Commissioner, except that as to group insurance policies delivered outside this state, only the group certificates to be delivered or issued for delivery in this state shall be filed for approval with the Commissioner. This section shall does not apply to policies, riders, endorsements or forms of unique character designed for and used with relation to insurance upon a particular subject, or which relate to the manner of distribution of benefits or to the reservation of rights and benefits under life or accident and sickness insurance policies, and are used at the request of the individual policyholder, contract holder or certificate holder, nor to the surety bond forms. (b) (1) Every such filing shall be made Forms for noncommercial lines shall be filed by an insurer not no less than sixty days in advance of any such delivery. At the expiration of such sixty days the sixty-day period, unless the period was extended by the Commissioner to obtain additional information from the insurer, the form so filed shall be is deemed to be approved unless prior thereto it has been was affirmatively approved or disapproved by the Commissioner. Approval of any such form by the Commissioner shall constitute constitutes a waiver of any unexpired portion of such waiting the sixty day period. The commissioner may at any time, after notice and for cause shown, withdraw any such approval.
(2) Forms for: (A) Commercial lines property and casualty risks; and (B) any mass-marketed life and/or health insurance policy offered to members of any association by the association shall be filed with the Commissioner and need not be approved by the Commissioner prior to use. The Commissioner may, within the first thirty days after receipt of the form, request information to ensure compliance with applicable statutory provisions and may disapprove forms not in compliance with the provisions of this chapter. If the Commissioner does not disapprove the form within the thirty-day period, the form is effective upon its first use after filing.
(c) Any order of the Commissioner disapproving any such form or withdrawing a previous approval shall state the grounds therefor.
(c) When an insurer does not submit supporting information with the form filing that allows the Commissioner to determine whether the form meets all applicable statutory requirements, the Commissioner shall require the insurer to furnish supporting information. The sixty-day period for personal lines risks shall be suspended on the date the Commissioner requests additional information and shall recommence on the date the Commissioner receives the supporting information: Provided, That the Commissioner shall have no less than fifteen days from receipt of the supporting information to act. The Commissioner may request additional information after the initial sixty-day period with respect to noncommercial lines, or thirty-day period with respect to commercial lines and mass-marketed life and/or health insurance to associations, to ensure continuing compliance with applicable statutory provisions and may at any time, after notice and for cause shown, withdraw any approval or disapprove any form: Provided, however, That any disapproval by the Commissioner of any form or withdrawal of a previous approval shall state the grounds therefor and shall include a notice that the insurer may request a hearing on the denial or withdrawal of approval.
(d) The Commissioner may, by order, exempt from the requirements of this section for so long as he or she deems considers proper any insurance document or form or type thereof as specified in such the order, to which, in his or her opinion, this section may not practicably be applied, or the filing and approval of which are, in his or her opinion, not desirable or necessary for the protection of the public.
(e) Notwithstanding any other provisions of this section, any mass marketed life and/or health insurance policy offered to members of any association by the association shall be exempt from the provision requiring prior approval under this section: Provided, That for For purposes of this section: the association shall
(1) An association must have a minimum of sixty-one members at the outset of the issuance of the mass-marketed life and/or health insurance policy and shall have been organized and maintained in good faith for purposes other than that of obtaining or providing insurance. Provided, however, That the The association shall also have been in active existence for at least two years and shall have a constitution and bylaws which provide that: (i) (A) The association holds annual meetings to further purposes of its members; (ii) (B) except in the case of credit unions, the association collects dues or solicits contributions from members; and (iii) (C) the members have voting privileges and representation on the governing board and committees that exist under the authority of the ass