WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

REGULAR SESSION, 2006

THIRTIETH DAY

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Charleston, W. Va., Thursday, February 9, 2006

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

Prayer was offered by Dr. D. W. Cummings, Pastor, Bethlehem Apostolic Temple, Wheeling, West Virginia.
Pending the reading of the Journal of Wednesday, February 8, 2006,
On motion of Senator McKenzie, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Clerk presented the following communication from the Commission on Special Investigations:
WEST VIRGINIA LEGISLATURE

COMMISSION ON SPECIAL INVESTIGATIONS

CHARLESTON

January 8, 2006

West Virginia Legislature
Charleston, West Virginia
Pursuant to Chapter 4, Article 5, Section 2 of the West Virginia Code, we submit the Twenty-fifth Annual Report of the Commission on Special Investigations to the West Virginia Legislature.
Respectfully submitted,
Earl Ray Tomblin,
Senate,
Robert S. Kiss,
House of Delegates,
Cochairs.
Which communication and report were received and filed with the Clerk.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4008--A Bill to amend and reenact §16-15-1 and §16-15-3a of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §16-15-3b, all relating to authorizing mergers to form regional housing authorities; providing definitions; authorizing subsequent joining of local and regional housing authorities; authorizing housing authorities to initiate merger by joint resolution; providing that contents of joint resolution include transfer of assets and liabilities, membership of authority and adoption of a plan of merger; and conferring on the regional housing authority the powers and duties of authorities it succeeds.
Referred to the Committee on Government Organization.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4096--A Bill to amend and reenact §58-5-14 of the Code of West Virginia, 1931, as amended, relating to appeal bonds; limiting bond amounts; consolidating multiple judgments for bonding purposes; and providing exceptions to bonding limitations.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4296--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §55-7-18a, relating to providing employers with qualified immunity from liability for disclosing job-related information concerning a current or former employee to a prospective employer; requiring written disclosure of the job- related information; and providing for the correction of false or misleading information.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4353--A Bill to amend and reenact §17C-5A-1 of the Code of West Virginia, 1931, as amended, relating to requiring law-enforcement officers have a valid complaint, signed by a magistrate or municipal judge, with a showing of probable cause before reporting said offense to the Commissioner of the Department of Motor Vehicles.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4368--A Bill to amend and reenact §60-8-18 of the Code of West Virginia, 1931, as amended, relating to the alleged violations of Alcohol Beverage Control Commission (ABCC) rules, orders and related code provisions by persons and entities holding licenses to sell or serve wine; clarifying the code provisions to clearly provide for the investigation of licensee's alleged violation of rules or orders issued by the ABCC Commissioner; and providing expanded alternative sanction options to the ABCC Commissioner for certain violations.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4391--A Bill to amend and reenact §29-18- 24 of the Code of West Virginia, 1931, as amended, relating to continuation of the State Rail Authority.
Referred to the Committee on Government Organization.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4392--A Bill to amend and reenact §19-21A- 4a of the Code of West Virginia, 1931, as amended, relating to continuation of the West Virginia Conservation Agency.
Referred to the Committee on Government Organization.
The Senate proceeded 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 Bill No. 11, Adding circuit court judge to twenty-third judicial circuit.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 11 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §51-2-1 of the Code of West Virginia, 1931, as amended, relating to adding one circuit court judge to the twenty-third judicial circuit effective the first day of August, two thousand six.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
The bill (Com. Sub. for S. B. No. 11), under the original double committee reference, was then referred to the Committee on Finance.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Com. Sub. for Senate Bill No. 47, Prohibiting local ordinances from discriminating against factory-built housing.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Bill No. 166, Restructuring Parole Board.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Edwin J. Bowman,
Chair.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 305, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to Deputy Sheriff Retirement System.
Senate Bill No. 306, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to benefit determination and appeals.
Senate Bill No. 307, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to Teachers' Defined Benefit Plan.
Senate Bill No. 308, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to service credit for accrued and unused sick and annual leave.
And,
Senate Bill No. 309, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to State Police.
And reports the same back with the recommendation that they each do pass; but under the original triple committee references first be referred to the Committee on Finance; and then to the Committee on the Judiciary.
Respectfully submitted,
Dan Foster,
Chair.
The bills, under the original triple committee references, were referred to the Committee on Finance; and then to the Committee on the Judiciary.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 362, Requiring Tax Commissioner disclose certain information to Consolidated Public Retirement Board.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Dan Foster,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance.
Senator Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
Senate Bill No. 383, Authorizing Division of Natural Resources promulgate legislative rule relating to miscellaneous permits and licenses.
And reports the same back without recommendation as to passage; but under the original triple committee reference first be referred to the Committee on Finance; and then to the Committee on the Judiciary.
Respectfully submitted,
John Pat Fanning,
Chair.
The bill, under the original triple committee reference, was referred to the Committee on Finance; and then to the Committee on the Judiciary.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 473, Enhancing penalties for careless driving resulting in death or serious bodily injury.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 473 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §17C-5-3 of the Code of West Virginia, 1931, as amended, relating to creating the criminal offense of reckless driving causing serious bodily injury; defining serious bodily injury; and penalties.
 With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Bill No. 505, Extending time for Fairmont city council to meet as levying body.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Edwin J. Bowman,
Chair.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Eng. Com. Sub. for House Bill No. 4032, Relating to authorizing the Consolidated Public Retirement Board to recover the payment and a fee, as provided by legislative rule, from a participating employer who fails to timely pay amounts due.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Dan Foster,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Eng. Com. Sub. for House Bill No. 4034, Removing the requirement that a no longer disabled employee must return to his or her former job.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Dan Foster,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance, with amendments from the Committee on Pensions pending.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills and joint resolution were introduced, read by their titles, and referred to the appropriate committees:
By Senators Kessler, Jenkins, Minard, Barnes, Hunter and Edgell:
Senate Bill No. 540-- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-11-8a, relating to creating the offense of solicitation to commit a felony crime of violence against the person; penalties; and defenses.
 Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senator Jenkins:
Senate Bill No. 541-- A Bill to amend and reenact §33-6A-1 of the Code of West Virginia, 1931, as amended, relating to providing an insurer may void the issuance of an insurance policy for failure of consideration by providing written notice to the insured.
 Referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.
By Senator Sprouse:
Senate Bill No. 542-- A Bill to amend and reenact §18-10A-2a of the Code of West Virginia, 1931, as amended, relating to providing that rehabilitation counselors employed by the Division of Rehabilitation Services shall be paid at an equivalent rate to public school counselors.
 Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.
By Senator Sprouse:
Senate Bill No. 543-- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §55-7E-1, §55-7E-2, §55-7E-3, §55-7E-4, §55-7E-5, §55-7E-6, §55-7E-7, §55-7E-8 and §55-7E-9, all relating to providing for certain judicial standards and procedures for personal injury and wrongful death claims arising out of asbestos or silica exposure; providing a short title; setting forth findings and purpose; setting forth definitions; setting forth legal standards and procedures for establishing physical impairment; prescribing statute of limitation standards; requesting the state Supreme Court of Appeals to permit consolidation of asbestos or silica claims for trial; and providing an effective date.
 Referred to the Committee on the Judiciary.
By Senators Yoder and Sprouse:
Senate Bill No. 544-- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-24-12a, relating to providing a corporate tax credit for qualified health insurance policies provided by corporate employers to employees.
 Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senator Plymale:
Senate Bill No. 545-- A Bill to amend and reenact §18A-4-10 and §18A-4-15 of the Code of West Virginia, 1931, as amended, all relating to prohibiting school personnel from collecting both temporary total disability benefits and personal leave with cause benefits for the same time period; addressing the payment of certain workers' compensation benefits to school personnel who receive payments of salary less than year-round; allowing a school service person awarded workers' compensation benefits to return to work on a trial basis; and providing that the return to work on a trial basis may include performance of other duties if certain conditions are satisfied.
 Referred to the Committee on Education; and then to the Committee on Finance.
By Senator White:
Senate Bill No. 546-- A Bill to amend and reenact §17A-10-8 of the Code of West Virginia, 1931, as amended, relating to exempting nonprofit organizations from paying an annual motor vehicle registration fee.
 Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senator Sprouse:
Senate Joint Resolution No. 10-- Proposing an amendment to the Constitution of the State of West Virginia, relating to authorizing the Legislature to issue and sell state bonds not exceeding the aggregate amount of two hundred fifty million dollars to be used for financing flood mitigation projects in this State; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
Senators Jenkins, Plymale and Foster offered the following resolution:
Senate Concurrent Resolution No. 37- Requesting the Joint Committee on Government and Finance direct the Legislative Oversight Commission on Health and Human Resources Accountability to study the potential benefits of sexual assault nurse examiner (SANE) programs.
Whereas, Sexual assault is a prevalent crime that has a devastating long-term impact on victims of all ages, from all racial and ethnic groups and both genders. In the United States, one in three women and one in seven men have been victims of sexual assault and one in four girls and one in six boys will be sexually victimized before reaching age 18; and
Whereas, Of the approximately 750,000 adult women living in West Virginia, approximately 85,000 have been sexually assaulted at least once during their lives; and
Whereas, Formal training of registered nurses to become sexual assault nurse examiners is essential for conducting the forensic examination of the victim of a sexual assault; and
Whereas, Currently there are approximately 159 registered nurses trained as SANEs in 38 of the 69 licensed medical facilities in the State of West Virginia; and
Whereas, A SANE program may be tailored to the needs of any locality or region to provide a victim-sensitive solution to systemic gaps in response to sexual assault victims; and
Whereas, The Regional Mobile SANE Project proved extremely successful its first year of operation in the northern part of the state. The Project allowed four hospitals to share trained nurses and resulted in 24-hour-a-day, seven-day-a-week coverage for all four hospitals; and
Whereas, The West Virginia Foundation for Rape Information and Services, the Marshall University Forensic Science Center and the West Virginia State Police Crime Laboratory together have provided classroom-based SANE training to registered nurses in the State of West Virginia since 2001 and are interested in developing and utilizing distance education modalities in the future; 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 to study the benefits of sexual assault nurse examiner (SANE) programs; and, be it
Further Resolved, That the Legislative Oversight Commission on Health and Human Resources accountability determine the benefits to each licensed medical facility in West Virginia of participating in a regional alliance of facilities sharing a pool of fully trained SANE nurses; and, be it
Further Resolved, That the Legislative Oversight Commission on Health and Human Resources Accountability assess prosecution of cases involving forensic evidence collected by SANEs to determine whether more licensed health care facilities should participate; and, be it
Further Resolved, That the Legislative Oversight Commission on Health and Human Resources Accountability explore the possibility of utilizing distance education modalities associated with institutions of higher education to promote future SANE training 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, 2007, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
 Which, under the rules, lies over one day.
Senators Prezioso, Oliverio, McCabe, Minard, Barnes, Minear and Hunter offered the following resolution:
Senate Resolution No. 13- Congratulating West Virginia University Hospitals on its designation as a Magnet hospital by the American Nurses Credentialing Center.
Whereas, The designation of Magnet status by the American Nurses Credentialing Center involves the recruitment and retention of well-qualified nurses which is directly correlated to both stability in patient care and reenforcement of positive outcomes; and
Whereas, The Magnet designation recognizes that West Virginia University Hospitals demonstrates excellence in both nursing philosophy and practice, as well as upholding the professional nursing practice; and
Whereas, West Virginia University Hospitals adheres to national standards for improving patient care and leadership and has a proven level of excellence in nursing care; and
Whereas, West Virginia University Hospitals recognizes that Magnet designation is a hospitalwide effort, consisting of nurses, physicians, ancillary departments and administration committed to providing quality health care; and
Whereas, West Virginia University Hospitals is honored to be the first and only hospital in West Virginia to receive the designation by the American Nurses Credentialing Center as a Magnet hospital; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates West Virginia University Hospitals on its designation as a Magnet hospital by the American Nurses Credentialing Center; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate representatives of West Virginia University Hospitals.
 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.
Thereafter, at the request of Senator Bailey, and by unanimous consent, the remarks by Senator Chafin regarding the adoption of Senate Resolution No. 13 were ordered printed in the Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
Petitions

Senator Jenkins presented a petition from Carl A. Wells and numerous West Virginia residents, supporting Senate Bill No. 146 (Raising minimum wage).
Referred to the Committee on Labor.
Senator Jenkins presented a petition from Patricia McElroy and numerous West Virginia residents, requesting the Legislature to support the inclusion of music therapy in the MR/DD Waiver Program to allow for Medicaid reimbursement.
Referred to the Committee on Finance.
Senator Jenkins presented a petition from Rutha Smith and numerous West Virginia residents, requesting the Legislature to reinstate prayer in schools and display the Ten Commandments in government buildings.
Referred to the Committee on the Judiciary.
The Senate proceeded to the tenth order of business.
 Com. Sub. for Senate Bill No. 270, Continuing Board of Banking and Financial Institutions; membership qualifications.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 462, Relating to filing interstate compacts with Secretary of State.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
 The Senate proceeded to the twelfth order of business.
Remarks were made by Senators Chafin and Sprouse.
Thereafter, at the request of Senator Bailey, and by unanimous consent, the remarks by Senator Chafin were ordered printed in the Appendix to the Journal.
At the request of Senator Chafin, unanimous consent being granted, the Senate returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 295, Authorizing Department of Administration promulgate legislative rule relating to selecting design-builders under Design-Build Procurement Act.
Senate Bill No. 324, Authorizing Department of Environmental Protection promulgate legislative rule relating to solid waste management.
Senate Bill No. 325, Authorizing Department of Environmental Protection promulgate legislative rule relating to hazardous waste management.
Senate Bill No. 327, Authorizing Department of Environmental Protection promulgate legislative rule relating to Community Infrastructure Investment Program.
Senate Bill No. 344, Authorizing Department of Health and Human Resources promulgate legislative rule relating to Alzheimer's and dementia special care units and programs.
Senate Bill No. 346, Authorizing Department of Health and Human Resources promulgate legislative rule relating to public water systems.
Senate Bill No. 349, Authorizing Department of Health and Human Resources promulgate legislative rule relating to cancer registry.
Senate Bill No. 350, Authorizing Department of Health and Human Resources promulgate legislative rule relating to reportable diseases, events and conditions.
Senate Bill No. 376, Authorizing Division of Natural Resources promulgate legislative rule relating to boating.
And,
Senate Bill No. 378, Authorizing Division of Natural Resources promulgate legislative rule relating to commercial whitewater outfitters.
And reports the same back with the recommendation that they each do pass; but under the original triple committee references first be referred to the Committee on the Judiciary.
Respectfully submitted,
Walt Helmick,
Chair.
The bills, under the original triple committee references, were then referred to the Committee on the Judiciary.
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. 296, Authorizing Department of Administration promulgate legislative rule relating to cannibalization of state property.
Senate Bill No. 297, Authorizing Department of Administration promulgate legislative rule relating to waste disposal of state property.
Senate Bill No. 298, Authorizing Department of Administration promulgate legislative rule relating to leasing space on behalf of state spending units.
Senate Bill No. 303, Authorizing Auditor promulgate legislative rule relating to Purchasing Card Program.
Senate Bill No. 334, Authorizing Ethics Commission promulgate legislative rule relating to compliance audits.
Senate Bill No. 337, Authorizing State Fire Commission promulgate legislative rule relating to Fire Code.
Senate Bill No. 338, Authorizing State Fire Commission promulgate legislative rule relating to Building Code.
And,
Senate Bill No. 397, Authorizing Secretary of State promulgate legislative rule relating to loan program for purchase of voting equipment, software and services.
And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
Respectfully submitted,
Walt Helmick,
Chair.
The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
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. 310, Authorizing Department of Environmental Protection promulgate legislative rule relating to Nitrogen Oxide Budget Trading Program as means of control and reduction of nitrogen oxides from nonelectric generating units as means to mitigate transport of ozone precursors.
Senate Bill No. 316, Authorizing Department of Environmental Protection promulgate legislative rule relating to Mercury Budget Trading Program to reduce mercury emissions.
Senate Bill No. 317, Authorizing Department of Environmental Protection promulgate legislative rule relating to control of annual nitrogen oxide emissions to mitigate interstate transport of fine particulate matter and nitrogen oxides.
Senate Bill No. 318, Authorizing Department of Environmental Protection promulgate legislative rule relating to control of ozone season nitrogen oxide emissions to mitigate interstate transport of ozone and nitrogen oxides.
Senate Bill No. 323, Authorizing Department of Environmental Protection promulgate legislative rule relating to Environmental Excellence Program.
Senate Bill No. 341, Authorizing Division of Forestry promulgate legislative rule relating to ginseng.
And,
Senate Bill No. 352, Authorizing Division of Highways promulgate legislative rule relating to use of state road rights-of-way and adjacent areas.
And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
Respectfully submitted,
Walt Helmick,
Chair.
The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
The Senate proceeded to the thirteenth order of business.
At the respective requests of Senators Bowman and McKenzie, unanimous consent being granted, it was ordered that the Journal show had Senators Bowman and McKenzie been present in the chamber on yesterday, Wednesday, February 8, 2006, they would have voted "yea" on the passage of Engrossed Senate Bill No. 539.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Friday, February 10, 2006, at 11 a.m.
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