_________*__________





Saturday, March 11, 2006



The House of Delegates met at 10:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Friday, March 10, 2006, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports

Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. C. R. 79, Requesting that the Committee on Government and Finance to conduct a study on the public health crisis created in West Virginia created by antibiotic resistance,
H. C. R. 80, Requesting the Joint Committee on Government and Finance study the feasibility of establishing a drug repository program,
H. C. R. 81, Requesting that the Joint Committee on Government and Finance study the State's need for regulation of pharmacy benefit managers,
H. C. R. 83, Requesting the Joint Committee on Government and Finance study the causes and adverse effects of children in this state who are not covered by healthcare insurance,
H. C. R. 90, Requesting the Division of Highways to make and place a memorial sign to read, "In Loving Memory of Joe King, November 18th, 2005, Will Never Be Forgotten",
H. C. R. 99, Requesting the Joint Committee on Government and Finance to study the development of Coalwood Way and related sites in the Big Creek District of McDowell County as historical, cultural and recreational facilities,
S. C. R. 28, Requesting Division of Highways name bridge at Keyser, Mineral County, "Jonah E. Kelley, World War II Congressional Medal of Honor Recipient, Memorial Bridge",
S. C. R. 29, Designating December, 2006, "West Virginia Legislature's Back to School Month",
And,
S. C. R. 40, Authorizing Water Development Authority issue bonds and notes in excess of $400 million,
And reports the same back with the recommendation that they each be adopted.
Messages from the Executive

Mr. Speaker, Mr. Kiss, presented a communication from His Excellency, the Governor, advising that on March 6, 2006, he approved S. B. 216 and S. B. 454
The Speaker laid before the House of Delegates a communication from His Excellency, the Governor, as follows:
State of West Virginia

OFFICE OF THE GOVERNOR

charleston 25305

Executive Message No. 2
March 10, 2006

The Honorable Robert S. Kiss, Speaker
West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305
Dear Mr. Speaker:
Pursuant to the provisions of § 5-1-20 of the Code of West Virginia, I hereby certify that the following 2004-2005 annual reports have been received in the Office of the Governor:
1.Accountancy, West Virginia Board of
2.Aeronautics Commission, West Virginia Department of Transportation
3.Affordable Housing Trust Fund, West Virginia
4.Architects, West Virginia State Board of
5.
Banking, Division of, West Virginia Department of Revenue

6.
Barbers and Cosmetologists, Board of, West Virginia Department

of Health and Human Resources
7. Board of Medicine, West Virginia, Volumes I and II
8.Chiropractic, West Virginia Board of
9.
Coal Mine Health and Safety, Board of, and Coal Mine Safety Technical
Review Committee, Miners Health, Safety and Training Division, West Virginia Department of Commerce

10.Commercial Motor Vehicle Weight and Safety Enforcement Advisory Committee, West Virginia Public Service Commission
11.
Community Corrections Act, Governor's Committee on Crime, Delinquency and Correction

12.Consumer Advocacy, West Virginia Office of the
13.Consumer Advocate Division, West Virginia Public Service Commission
14.Consumer Protection and Antitrust Divisions, Office of the West Virginia
Attorney General
15.Corrections, Division of, West Virginia Department of Military Affairs
and Public Safety
16.Court of Claims, West Virginia
17.Court System, West Virginia Supreme Court of Appeals
18.Deaf and Hard of Hearing, West Virginia Commission for the
19.Dental Examiners, West Virginia Board of
20.Economic Development Authority, West Virginia
21.Education, Board of, West Virginia Department of Education
22.Equal Employment Opportunity Office, West Virginia
23.Examiners in Counseling, West Virginia Board of
24.Family Support Program, Developmental Disabilities Division, West Virginia
Department of Health and Human Resources

25.
Fire Marshal, State Fire Commission, West Virginia Department of Military Affairs and Public Safety

26.
Forestry, Division of, West Virginia Department of Commerce

27.Funeral Service Examiners, West Virginia Board of
28.Housing Development Fund, West Virginia
29.Human Rights Commission, West Virginia
30.Infrastructure and Job Development Council, West Virginia
31.Interstate Pest Control Compact, West Virginia Department of Agriculture
32.Investment Management Board, West Virginia
33.Juvenile Services, Division of, West Virginia Department of Military Affairs and

Public Safety
34.Labor, Division of, West Virginia Department of Commerce
35.Library Commission, West Virginia
36.Licensed Practical Nurses, West Virginia State Board of Examiners for
37.Logging Sediment Control Act, Enforcement of, Division of Forestry,
West Virginia Department of Commerce
38.Long Term Care, Office of Health Facility Licensure and Certification,
West Virginia Department of Health and Human Resources
39.Medicine, West Virginia Board of
40.Message Therapy Licensure, West Virginia Board of
41.Mine Inspectors' Examining Board, West Virginia Office of Miners Health,

Safety and Training, West Virginia Department of Commerce

42.Motor Vehicles, Division of, West Virginia Department of Transportation

43.Motorsports Council, West Virginia
44.Municipal Bond Commission, West Virginia
45.National and Community Service, West Virginia Commission for
46.Natural Resources, Division of, West Virginia Department of Commerce
47.Neighborhood Investment Program, West Virginia Development office
48.Nursing Home Administrators Licensing Board, West Virginia
49.Occupational Therapy, West Virginia Board of
50.Office of Judges, West Virginia Workers' Compensation Commission
51.Oil and Gas Inspectors' Examining Board, West Virginia Department of
Environmental Protection
52.Osteopathy, West Virginia Board of
53.Parkways, Economic Development and Tourism Authority, West Virginia
Department of Transportation
54.Parole Board, West Virginia Department of Military Affairs and
Public Safety
55.Personnel, Division of, West Virginia Department of Administration
56.Physical Therapy, West Virginia Board of
57.Planning and Development Council, Region VII, West Virginia
58.Poison Center, Robert C. Byrd Health Sciences Center
59.Professional Engineers, West Virginia State Board of Registration for
60.Professional Surveyors, West Virginia Board of
61.Psychologists, West Virginia Board of Examiners of
62.Public Employees Insurance Agency Comprehensive Annual Financial
Report, West Virginia Department of Administration
63.Purchase of Commodities and Services from the Handicapped, Committee for the

West Virginia Association of Rehabilitation Facilities
64.Radiologic Technology, West Virginia Board of Examiners for
65.Real Estate Commission, West Virginia
66.Registered Professional Nurses, West Virginia Board of Examiners for
67.Rehabilitation Services, Division of, West Virginia Department of Education and the Arts
68.Respiratory Care, West Virginia Board of
69.Risk and Insurance Management, Board of, West Virginia Department of Administration
70.Ron Yost Personal Assistance Services Board, West Virginia Statewide Independent Living Council, West Virginia Division of Rehabilitation Services
71.Rural Development Agency, West Virginia USDA
72.Senior Services, West Virginia Bureau of
73.Small Business Development, Division of, West Virginia Development Office
74.Social Work Examiners, West Virginia Board of
75.Speech-Language Pathology and Audiology, West Virginia Board of Examiners

for

76.State Police, West Virginia Department of Military Affairs and Public Safety

77. Rehabilitation Council, West Virginia
78. Support Enforcement Commission, West Virginia
79.Tax Appeals, Chief Administrative Law Judge for the Office of, West Virginia

Department of Revenue
80.Transportation Coordinating Council, West Virginia
81.Treasury Investments, West Virginia Board of
82.Veterinary Medicine, West Virginia Board of
83.Water Development Authority, West Virginia
84.Workforce Investment Board, Inc., Northern Panhandle
85.Youth Services, Bureau for Children and Families, West Virginia Department of

Health and Human Resources
86.Veterinary Medicine, West Virginia Board of
87.Water Development Authority, West Virginia
Very truly yours,
Joe Manchin III
Governor.
State of West Virginia

OFFICE OF THE GOVERNOR

charleston 25305

March 10, 2006

Executive Message No. 3
The Honorable Robert S. Kiss, Speaker
West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305
Dear Mr. Speaker:
As empowered by Section 11, Article 7 of the Constitution of the State of West Virginia, and Section 16, Article 1, Chapter 5 of the Code of West Virginia, I extended relief to the persons named on the attached report. I submit this report in accordance with the above-cited provisions for the period April 9, 2005 through March 10, 2006.
Very truly yours,
Joe Manchin III
Governor.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 2118, Providing for reimbursement to the bail bondsman for the amount of a forteited bond under certain circumstances.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2235, Increasing salaries for magistrate clerks, magistrate assistants and magistrate deputy clerks.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2306, Requiring that annual reports be recorded on CD-Rom for distribution.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 3119, Providing that the Division of Natural Resources may not reduce the habitat land acreage available for hunting and shooting.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 3295, Increasing certain fees charged to collect delinquent taxes.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4015, Relating to funding of the Revenue Shortfall Reserve Fund.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with a title amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4030, Relating to limiting the administration of a Voluntary Contribution Fund or similar benefit plan by members and employees of the West Virginia State Police.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4034, Removing the requirement that a no longer disabled employee must return to his or her former job.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4048, Placing limitations on the use of eminent domain.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4296, Providing employer immunity from liability for disclosing job-related information concerning an employee or former employee to a prospective employer.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4431, Allowing the clerk of the county commission to set reasonable fees charged for electronic or other medium versions of documents recorded in the office of clerk of the county commission.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4565, Establishing section of vital statistics in Bureau for Public Health.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect July 1, 2006, a bill of the House of Delegates as follows:
H. B. 4578, Extending the expiration date of provisions permitting retired teachers to accept employment as substitutes in areas of critical need and shortage for an unlimited number of days without affecting retirement benefits.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4588, Creating a crime for concealing a human body of a victim of a murder, voluntary manslaughter or involuntary manslaughter and prescribing penalties therefor.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4626, Including private schools, parochial schools, church schools, and other schools operated by a religious order in state student teaching programs.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4849, Relating to the West Virginia Sunset Law.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4850, Expediting the sunrise application process.
Resolutions Introduced

Delegates Campbell and Canterbury offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 102 - "Requesting the Joint Committee on Government and Finance to undertake a study of the availability and connectivity of broadband services and networks in this state and to appoint a connectivity advisory committee to develop a statewide broadband policy, map private and public broadband data networks in West Virginia and develop a catalogue of resources for communities and counties seeking broadband services."
Whereas, In building and improving the infrastructure of this state, access to broadband services for all communities is vital; and
Whereas, Access to the Internet and highspeed broadband services is largely nonexistent in many areas of the state reducing the chances of communities to attract and retain business and high paying employment; and
Whereas, There is no state policy or concerted effort to achieve broadband connectivity throughout the state; and
Whereas, It is essential to the viability of many communities that all communities in this state have access to broadband connectivity; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to undertake a study of the availability and connectivity of broadband services and networks in this state and to appoint a connectivity advisory committee to develop a statewide broadband policy, map private and public broadband data networks in West Virginia and develop a catalogue of resources for communities and counties seeking broadband services; and, be it
Further Resolved, That the connectivity advisory committee develop a draft of statewide broadband policy, prepare a map of private and public broadband data networks in West Virginia and develop a catalogue of resources for communities and counties seeking broadband services and make recommendations on the status of broadband access in this state to the Joint Committee On Government and Finance; 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.
Delegates Ashley, Varner and Armstead offered the following resolution which was read by the Clerk, as follows:
H. R. 33 - "Commemorating the life of Robert C. 'Bob' Polen, avid outdoorsman, loyal friend, and former member of the House of Delegates from Marshall County."
Whereas, Robert C. "Bob" Polen was born on July 15, 1935, in Marshall County, West Virginia, son of the late Iva Caylor Polen and Lloyd Polen; and
Whereas, Bob was a graduate of Moundsville High School and attended West Virginia University; and
Whereas, He was employed at PPG's Natrium plant for 27 years as a research chemist; and
Whereas, Bob was the father of three children, Mark Allen, John Robert, and Cynthia June, and the grandfather of several grandchildren; and
Whereas, In 1966, Bob ran for and was elected to the House of Delegates representing Marshall County and was reelected in 1968, 1970 and 1972; and
Whereas, During his service in the House of Delegates, Bob served on the Committees on Agriculture and Natural Resources; Judiciary; Redistricting; and Rules; and
Whereas, Following his years in the Legislature, Bob became the Executive Director of the Railroad Association, and was the state government affairs representative for the railroad corporations in West Virginia and served as an assistant legislative liaison for former Governor Cecil Underwood; and
Whereas, Bob's friends knew him as an avid golfer and sportsman with a keen sense of humor and an enthusiasm for life and they also knew him as a loyal and trustworthy human being who served this Legislature and the state with honor, humility and effectiveness; and
Whereas, Bob was a Baptist and a member of K of P; Sanford PTA; Marshall County Civil Technology Advisory Commission; Marshall County Torchbearers and Pin Wearers Association; Marshall County 4-H Leaders' Association; and the Marshall County Cooperative Extension Service; and
Whereas, Bob departed this earthly life on November 7, 2005, at the age of seventy and his passing should not go unnoticed by this body; therefore, be it
Resolved by the House of Delegates:
That regret is hereby expressed by the members of the House of Delegates at the passing of Robert C. "Bob" Polen, outdoorsman, loyal friend, and former member of the House of Delegates from Marshall County; and, be it
Further Resolved, That the Clerk of the House of Delegates forward certified copies of this resolution to the surviving family members of Robert C. "Bob" Polen.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (H. R. 33) to a committee was dispensed with, and it was taken up for immediate consideration and adopted.
Delegates Wysong, Tabb and Doyle offered the following resolution which was read by the Clerk as follows:
H. R. 34 - "Commemorating the passing of Dr. James M. Moler, noted educator, state legislator and civic leader who died on August 8, 2005, at the age of ninety-five, leaving behind a rich legacy for Jefferson County and the State of West Virginia."
Whereas, Dr. James M. Moler was born on January 27, 1910, in Jefferson County, West Virginia, where he remained a lifelong resident; and
Whereas, Dr. James M. Moler attended Jefferson County schools, then went on to obtain a teaching certificate from Shepherd College, a A.B. degree from Berea College, a Masters degree from Duke University, and a Doctorate degree from the University of Virginia; and
Whereas, Dr. James M. Moler served Jefferson County and the State of West Virginia as a public school principal, college administrator and professor, and held numerous other positions in the field of education; and
Whereas, Dr. James M. Moler made many important contributions in the field of education in West Virginia, including organizing the first Regional Educational Service Agency(RESA) in the eastern panhandle and serving as its initial director, serving as president of the West Virginia School Principals Association, serving as president of the West Virginia Educational Association, and organizing the Shepherd College Foundation and serving as its director; and
Whereas, Dr. James M. Moler made important contributions to Jefferson County and the State of West Virginia while serving as a member of the West Virginia House of Delegates, including championing the "one delegate district" concept that brought legislative districting reforms, and sponsoring the first legislation to share betting proceeds from the horse racing industry with Jefferson County; and
Whereas, Dr. James M. Moler made numerous other civic contributions to Jefferson County and beyond, including serving as international president of the Kiwanis, serving on the West Virginia Centennial Commission, and serving as chairman of the trustees of Asbury United Methodist Church; therefore, be it
Resolved by the House of Delegates:
That regret is hereby expressed by the members at the passing of Dr. James M. Moler, noted educator, state legislator and civic leader who died on August 8, 2005, at the age of 95, leaving behind a rich legacy for Jefferson County and the State of West Virginia; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to Dr. James M. Moler's beloved wife of 70 years, Katherine Watson Moler.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (H. R. 34) to a committee was dispensed with, and it was taken up for immediate consideration and adopted.
Petition

Delegate Varner presented a resolution, adopted by the Marshall County Board of Education, in support of the West Virginia Education Association's proposals for repeal of the 80/20 PEIA legislation and the six percent across the board pay raise for teachers; which was referred to the Committee on Finance.
Delegate Sumner presented a petition, signed by two hundred seventy-two residents of the 27th District, expressing opposition to S. B. 251, creating Beckley-Raleigh County Building Code Authority; which was referred to the Committee on Government Organization.
Delegates Poling and Campbell presented a petition signed by sixty-five residents of the State, supporting the six percent across the board pay raise for teachers; which was referred to the Committee on Finance.
Delegate Sumner presented a petition, signed by six hundred seventy-five residents of the State, supporting the six percent across the board pay raise for teachers; which was referred to the Committee on Finance.

Delegate Lane presented a petition, signed by numerous residents of the state, in support of Logan's law; which was referred to the Committee on the Judiciary.
Consent Calendar

Third Reading

The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for S. B. 11, Adding circuit court judge to twenty-third judicial circuit,

S. B. 223, Relating to examination of insurance and health care entities,
Com. Sub. for S. B. 467, Amending group life insurance requirements,
Com. Sub. for S. B. 468, Amending group accident and sickness insurance requirements, Com. Sub. for S. B. 490, Providing gasoline excise tax exemption for certain county aging programs,
And,
Com. Sub. for S. B. 754
, Clarifying risk categories covered by farmers' mutual insurance companies.
On the passage of the bills, the yeas and nays were taken (Roll No. 517), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Hunt and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (Com. Sub. for S. B. 11, S. B. 223, Com. Sub. for S. B. 467, Com. Sub. for S. B. 468, Com. Sub. for S. B. 490 and Com. Sub. for S. B. 754) passed.
An amendment to the title of S. B. 11, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 11 - "A Bill to amend and reenact §51-2-1 of the Code of West Virginia, 1931, as amended; and to further amend said chapter by adding thereto a new section, designated §51-3-18, all relating generally to the appointment of judges and magistrates to fill vacancies; providing for an additional circuit court judge to be appointed to the twenty-third judicial circuit; and providing for the expeditious filling of judicial vacancies by limiting the time during which a challenge to an appointment may be instituted."
An amendment to the title of S. B. 468, recommended by the Committee on Banking and Insurance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 468 - "A Bill to amend and reenact §33-16-2 of the Code of West Virginia, 1931, as amended, relating to group accident and sickness insurance requirements; decreasing the number of employees that must participate and eliminating the participation requirement if the premium is paid by the employees or jointly by the employer and employees." Delegate Staton moved that Com. Sub. for S. B. 11 take effect July 1, 2006.
On this question, the yeas and nays were taken (Roll No. 524), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Hunt and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 11) takes effect July 1, 2006.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bill and request concurrence therein.
Special Calendar

Unfinished Business

Action on Senate Messages

The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
Com. Sub. for S. B. 53, Changing ratio of school nurses to enrollment.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by amending the title of the bill to read as follows:
Com. Sub. for S. B. 53 - "A Bill to amend and reenact §18-5-22 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §18-9A-10a, all relating to improving the capacity of county boards of education to provide school health services; providing for distribution to counties of appropriations to support certain school health service needs; eliminating the authority of the Commissioner of the Bureau for Public Health to promulgate a rule to implement certain training and create certain standards and giving that authority to the State Board of Education; and establishing an allowance for new nurse positions to the extent funds are available."
The bill, was amended by the Senate, was then put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 525), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 53) passed.
Delegate Staton moved that the bill take effect July 1, 2006.
On this question, the yeas and nays were taken (Roll No. 526), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 53) takes effect July 1, 2006.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
Com. Sub. for S. B. 219, Changing expiration date of graduated driver's licenses; prohibiting cell phone use by certain minors.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
Com. Sub. for H. B. 2328, Giving precedential application to written advisory opinions issued by the ethics commission's committee on open governmental meetings.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 9A. OPEN GOVERNMENTAL PROCEEDINGS.
§6-9A-11. Request for advisory opinion; maintaining confidentiality.

(a) Any governing body or member thereof subject to the provisions of this article may seek advice and information from the executive director of the West Virginia Ethics Commission or request in writing an advisory opinion from the West Virginia Ethics Commission Committee on Open Governmental Meetings as to whether an action or proposed action violates the provisions of this article. The executive director may render oral advice and information upon request. The committee shall respond in writing and in an expeditious manner to a request for an advisory opinion. The opinion shall be is binding on the parties requesting the opinion.
(b) Any governing body or member thereof that seeks an advisory opinion and acts in good faith reliance on the opinion has an absolute defense to any civil suit or criminal prosecution for any action taken in good faith reliance on the opinion unless the committee was willfully and intentionally misinformed as to the facts by the body or its representative.
(c) A governing body or member thereof that acts in good faith reliance on a written advisory opinion sought by another person or governing body has an absolute defense to any civil suit or criminal prosecution for any action taken based upon a written opinion of the West Virginia ethics commission committee, as long as underlying facts and circumstances surrounding the action were the same or substantially the same as those being addressed by the written opinion.
(c) (d) The committee and commission may take appropriate action to protect from disclosure information which is properly shielded by an exception provided for in section four of this article."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2328 - "A Bill to amend and reenact §6-9A-11 of the code of West Virginia, 1931, as amended, relating to advisory opinions of the West Virginia Ethics Commission Committee generally and providing that reliance on a written advisory opinion is an absolute defense in certain actions."
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 527), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Caputo, Ferrell, Leach and Swartzmiller.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2328) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
Com. Sub. for H. B. 4004, Relating to the use of a traffic law photo-monitoring device to detect traffic law violations.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
Com. Sub. for H. B. 4036, Relating to soliciting or advocating murder, providing criminal penalties and specifying that the offenses and penalties are cumulative to other offenses and penalties.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were then 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 section, designated §61-11-8a, to read as follows:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-8a. Solicitation to commit certain felonies; classification; defenses.
(a) Any person who solicits another to commit a violation of the law which constitutes a felony crime of violence against the person is guilty of a felony, and upon conviction thereof, shall be:
(1) Confined in a state correctional facility for not less than three nor more than fifteen years if the offense solicited is punishable by life imprisonment;
(2) Imprisoned in the state correctional facility for not less than one nor more three years or fined not more than five thousand dollars, or both, if the offense solicited is punishable by incarceration in the state correctional facility for a term of less than life imprisonment. In the circuit court's discretion a person so convicted may be ordered confined in jail for a term not to exceed one year in lieu of incarceration in a state correctional facility;
(b)(1) As used in this section, 'solicitation' means the willful and knowing instigation or inducement of another to commit a felony crime of violence against the person of a third person; and
(2) As used in this section, 'felony crime of violence against the person' means the felony offense set forth in sections one, nine, ten-b and twelve, article two of this chapter.
(c) In a prosecution under the provisions of this section, it is not a defense:
(1) That the defendant belongs to a class of persons who by definition are legally incapable in an individual capacity of committing the crime that is the object of the solicitation; or
(2) That a person whom the defendant solicits could not be guilty of a crime that is the object of the solicitation.
(d) It is an affirmative and complete defense to a prosecution under the provisions of this section that the defendant under circumstances manifesting a voluntary and complete renunciation of the defendant's criminal intent, after soliciting another person to engage in conduct constituting a felony, prevented the commission of the crime."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4036 - "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; defining terms; penalties; and defenses."
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 528), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4036) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
Com. Sub. for H. B. 4049, Relating to state funded student financial aid.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
Com. Sub. for H. B. 4096, Relating to amount of an appeal bond.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
§58-5-14. Appeal bond generally; limitation on amount.
(a)When required by the court, an appeal shall not take effect until bond is given by the appellants or petitioners, or one of them, or some other person, in a penalty to be fixed by the court or judge by or in which the appeal is allowed or entered with condition: If a supersedeas be awarded, to abide by and perform the judgment and to pay to the opposite party, and to any person injured all such costs and damages as they, or either of them, may incur or sustain by reason of said appeal, in case such judgment, or such part, be affirmed, or the appeal be dismissed, and also, to pay all damages, costs and fees, which may be awarded against or incurred by the appellant or petitioners; and if it is an appeal from a judgment dissolving an injunction, or dismissing a bill of injunction, with a further condition, to indemnify and save harmless the surety in the injunction bond against loss or damage in consequence of his suretyship; and with condition when no supersedeas is awarded to pay such specific damages, and such costs and fees as may be awarded or incurred: Provided, That whenever an appeal is awarded in any action or suit wherein a judgment for the payment of money has been entered against an insured in an action which is defended by an insurance corporation, or other insurer, on behalf of the insured under a policy of insurance, the limit of liability of which is less than the amount of said judgment, execution on the judgment to the extent of the policy coverage shall be stayed until final determination of such appeal, and no execution shall be issued, or action brought, maintained or continued against such insured, insurance corporation, or other insurer, for the amount of such judgment so stayed, by either the injured party, the insured, or the legal representative, heir or assigns of any of them, during the pendency of such proceeding, provided such insurance corporation, or other insurer, shall:
(1) File with the clerk of the court in which the judgment was entered, a sworn statement of one of its officers, describing the nature of the policy and the amount of coverage thereof;
(2) Give or cause to be given by the judgment debtor or some other person for him a bond in a penalty to be fixed by the court or judge by or in which the appeal is allowed or entered, not to exceed the amount of such insurance coverage set out in the sworn statement above required, with condition to pay the amount of such coverage upon said judgment if the judgment or such part is affirmed or the appeal is dismissed, plus interest on said sum and cost;
(3) Serve a copy of such sworn statement and bond upon the judgment creditor or his attorney;
(4) Deliver or mail to the insured at the latest address of the insured appealing upon the records of such insurance corporation, or other insurer, written notice that execution on such judgment to the extent that it is not covered by such insurance is not stayed in respect to the insured: Provided, That the filing of a bond by the insured or someone for him, conditioned upon the payment of the balance of the judgment and interest not stayed by the insured as aforesaid if the judgment is affirmed or the appeal is dismissed, shall stay execution on the balance of said judgment not covered by such insurance: Provided, however, That the filing of such statement and bond hereunder by an insurance corporation or other insurer shall not thereby make such insurance corporation or other insurer a party to such action, either in the trial court or in the appellate court.
(b) Except for bonds required under section four, article eleven-a, chapter four of this code, an appeal bond required by a court in accordance with this code may not exceed the amount of the total judgment, which includes the actual judgment, plus costs, interest and fees: Provided, That for a judgment exceeding twenty-five million dollars, the appeal bond shall not exceed, by election of the judgment debtor, twenty-five million dollars or fifty percent of the net worth of the judgment debtor. For the purposes of this section, multiple judgments resulting from cases that have been consolidated or aggregated for purpose of trial proceedings shall be treated as a single judgment.
(c) The limitations of subsection (b) notwithstanding, if the appellee provides by a preponderance of the evidence that the appellant or appellants do not have the assets to have a reasonable ability to satisfy the judgment or are dissipating or diverting assets outside the ordinary course of business to the effect that the ability to pay the ultimate judgment is impaired, the court is not bound by the limitations stated in subsection (b) and may set the appeal bond at any amount not to exceed the total judgment.
(d) This section shall be applicable to judgments entered after the first day of July, two thousand six."
On motion of Delegate Staton the House concurred in the Senate amendment with further amendment as follows:
On page three of the Senate amendment, beginning on line twenty-four, by striking out all of subsections (c) and (d) and inserting in lieu thereof the following:
"(c) The limitations of subsection (b) notwithstanding, the court is not bound by the limitations of subsection (b) and may set the appeal bond at any amount not to exceed the value of the total judgment if the appellee proves to the court by a preponderance of evidence that a judgment debtor is:
(1) Dissipating or diverting assets outside the ordinary course of business that will impair the judgment debtors ability to pay the ultimate judgment, or
(2) With respect to a judgment debtor who has elected to invoke the limitations of fifty percent of net worth under that subsection, that the judgment debtor does not have the assets to have a reasonable ability to satisfy the judgment.
(d) The provisions of this section enacted during the two thousand six regular session shall be applicable to judgments entered after the first day of July, two thousand six."
The bill, as amended by the Senate and further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 529), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4096) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
Com. Sub. for H. B. 4108, Allowing an osteopathic physician and surgeon to supervise up to three physician assistants generally.
The following Senate amendments were reported by the Clerk:
On page three, section one, line twenty-two, after the word "promulgate" by inserting the words "legislative and emergency".
On page nine, section one, lines one-hundred forty eight and one-hundred forty nine, by striking out the words "during the preceding one-year period of a minimum of twenty hours".
On page nine, section one, line one hundred fifty-two, after the word "assistants." by inserting "The osteopathy board shall promulgate legislative rules for minimum continuing hours necessary for certification renewal. These rules shall provide for minimum hours equal to or more than the hours necessary for national certification."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4108 - "A Bill to amend and reenact §30-14A-1 of the Code of West Virginia, 1931 as amended, relating to osteopathic physician assistants; allowing an osteopathic physician and surgeon to supervise up to three physician assistants generally; and providing for legislative and emergency rule-making authority."
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 530), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4108) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
H. B. 4112, Extending the time for the County Commission of Mineral County, West Virginia, to meet as a levying body.
The following Senate amendments were then reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"MINERAL COUNTY COMMISSION MEETING AS LEVYING BODY EXTENDED.
§1. Extending time for the Mineral County Commission to meet as a levying body for an election to continue excess levies for volunteer fire departments and the ambulance authority.
Notwithstanding the provision of article eight, chapter eleven of the Code of West Virginia, 1931, as amended, the County Commission of Mineral County, West Virginia, is hereby authorized to extend the time for its meeting as a levying body, setting the levy rate and certifying its actions to the State Tax Commissioner, from between the seventh and twenty-eighth days of March and the third Tuesday in April until the third Tuesday in May, two thousand six, for the purpose of presenting to the voters of the county an election for continuing excess levies to provide funding for the volunteer fire departments and the ambulance authority."
And,
By amending the title of bill to read as follows:
H. B. 4112 - "A Bill to extend the time for the County Commission of Mineral County to meet as a levying body for the purpose of presenting to the voters of the county an election for continuing excess levies to provide funding for volunteer fire departments and the ambulance authority from between the seventh and twenty-eighth days of March and the third Tuesday in April until the third Tuesday in May, two thousand six."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 531), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4112) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 532), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4112) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
Com. Sub. for H. B. 4119, Creating the ATV Responsibility Act.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 15. ATV RESPONSIBILITY ACT.
§20-15-1. Legislative findings.

The West Virginia Legislature finds that trail-oriented recreation for off-highway vehicle enthusiasts offered by the Hatfield-McCoy Trail significantly contributes to the economy of West Virginia and is enjoyed by a large and growing number of residents and nonresidents alike. Since it is recognized that there are inherent risks in the operation of such off-highway vehicles which should be understood by each operator and which cannot be eliminated by authorized outfitters or licensees, it is the purpose of this article to define the areas of responsibility and affirmative acts which authorized outfitters must perform or risk being liable for loss, damage or injury suffered by participants, and to define the risk which the participants expressly assume and for which there can be no recovery.
§20-15-2. Definitions.
The terms in this article have the following meaning, unless the context clearly requires a different meaning:
(1) 'All-terrain vehicle' or 'ATV' shall mean any motor vehicle, fifty-two inches or less in width, having an unladen weight of eight hundred pounds or less, traveling on four or more low pressure tires with a seat designed to be straddled by the rider, designed for or capable of travel over unimproved terrain.
(2) 'Motorcycle' means any motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than two wheels in contact with the ground.
(3) 'Authorized outfitter' or 'licensee' means a commercial outfitter, which is a person, partnership, limited liability company ('LLC'), corporation, other organization, or any combination thereof, licensed by the Hatfield-McCoy Regional Recreation Authority, who operate from any temporary or permanent camp, private or public lodge, or private home, who provide guided tours or the rental of all-terrain vehicles or motorcycles for use on assigned lands for monetary profit or gain.
(4) 'Participant' means any person using the services or equipment of an authorized outfitter or licensee, including passengers of an all-terrain vehicle or motorcycle.
§20-15-3. Scope.
The provisions of this article shall only apply to authorized outfitters or licensees licensed by the Hatfield-McCoy Regional Recreation Authority and any participant as defined in section two.
§20-15-4. Duties of authorized outfitters or licensees.
(a) Every authorized outfitter or licensee shall:
(1) Mark for identification purposes all equipment and vehicles used in the business;
(2) Maintain all equipment and vehicles used in the business in such condition that the equipment and vehicles are safe to operate or use as intended and recommended by the manufacturer;
(3) Provide facilities, equipment and services, conforming to safety and other requirements established by the rules promulgated by the Hatfield-McCoy Regional Recreation Authority;
(4) Provide facilities, equipment and services as advertised or as agreed to by the authorized outfitter or licensee and the participant;
(5) Provide protective helmets which are size appropriate and which meet the current performance specifications established by the American National Standards Institute standard, z 90.1, the United States Department of Transportation federal motor vehicle safety standard no. 218 or Snell safety standards for protective headgear for vehicle users as defined by subdivision (5), subsection (a), section one, article one, chapter seventeen-f of this code, to all persons using all- terrain vehicles or motorcycles;
(6) Make reasonable and prudent efforts to determine the ability of a participant to safely operate an all-terrain vehicle or motorcycle and to provide all-terrain vehicles or motorcycles which are age and size appropriate as recommended by the manufacturer; and
(8) Make certain that every guide offered to participants by the authorized outfitter or licensee has a current standard first aid training certificate and CPR certificate issued by the American Red Cross or its equivalent and ATV safety training through the ATV Safety Institute;
(9) Make certain that employees carry first aid kits when acting as guides; and
(10) Make known to any participant any dangerous condition as to trail lands, facilities or equipment to be traversed or used which the outfitter or licensee knows or through the exercise of due diligence should know, by advising the participant in writing or by conspicuously posting warning signs upon the premises.
(b) An authorized outfitter or licensee may not rent or lease an all-terrain vehicles or motorcycles to a person under the age of eighteen years or allow any owner-operated all-terrain vehicle or motorcycle on any guided tour when operated by any person under the age of eighteen years without first obtaining a written statement, signed by the minor's parent or guardian certifying that:
(1) Any machine to be operated by the minor or his parent or guardian is of a model that is recommended by the manufacturer as appropriate to the minor's age and size;
(2) All rules governing the use of the vehicle and the Hatfield-McCoy Recreation Area have been explained to the minor in sufficient detail to enable the minor to abide by the rules; and
(3) Any minor under the age of sixteen will remain under the supervision of and the sight of the parent or guardian at all times.
(c) An authorized outfitter or licensee shall provide a participant with written notification of his or her duties as prescribed in section five of this article, and the participant shall sign the notification and shall be kept on file by the outfitter or licensee for not less than five years.
§20-15-5. Duties of participants.
(a) All participants:
(1) Shall comply with any requirements established by law, including those in section one, article one, chapter seventeen-f of this code which defines those acts prohibited by operators of all-terrain vehicles;
(2) Shall comply with the rules or regulations established for use of the Hatfield-McCoy Recreation Area;
(3) Shall, as to the operator or licensee, expressly assume the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in operating an all-terrain vehicle or motorcycle owned by the authorized outfitter or licensee, and caused by any of the following:
(A) Variations in terrain, slope or angle of terrain;
(B) Surface or subsurface conditions including: rocks, trees or other forms of forest growth or debris;
(C) Collisions with signs, markers, width restrictors, culverts, bridges, pipes, equipment, vehicles or any other objects or fixtures used in trail management, maintenance, construction or development;
(D) Collisions with signs, markers, pipes, equipment, vehicles, or any component thereof used in natural resource maintenance, development, or extraction;
(E) Collisions with electrical transmission poles, towers, lines, guy wires or any component thereof.
(4) Shall obey all rules or instructions announced by the authorized outfitter or licensee, with regard to the operation of the all-terrain vehicle or motorcycle he or she is operating; and
(5) Shall wear all safety equipment provided by the authorized outfitter or licensee, or which might otherwise be required by law.
(b) Each participant shall have the sole individual responsibility for:
(1) Knowing the range of his or her own ability to negotiate any slope or trail;
(2) Operating the ATV or motorcycle within the limits of the participant's own ability;
(3) Maintaining reasonable control of speed and course at all times;
(4) Heeding all posted warnings;
(5) Operating only on trails designated by the Hatfield-McCoy Regional Recreation Authority; and
(6) Refraining from acting in a manner which may cause or contribute to the injury of any person.
(c) If while riding an ATV or motorcycle, any participant collides with any object or person, the responsibility for the collision shall be solely that of the participant or participants involved and not that of the authorized outfitter or licensee unless the authorized outfitter or licensee or his or her agent caused the collision in a tortious manner.
(d) After an accident, a participant may not leave the area where the accident took place without:
(1) Leaving personal identification, including his or her name and address;
(2) Notifying the proper authorities; and
(3) Obtaining assistance when he or she knows or reasonably should know that any other person involved in the accident is in need of medical or other assistance.
(e) Where a participant is a lawful passenger, that participant may not distract or perform any act which might interfere with the safe operation of the all-terrain vehicle or motorcycle of which he or she is a passenger.
(f) Any person under the age of sixteen years shall remain under the direct supervision and within sight of a parent or guardian both of whom must otherwise comply with state or federal laws and any rules or regulations promulgated thereunder.
(g) A participant may not make any alterations or tamper with the all-terrain vehicle or motorcycle he or she is operating or of which he or she is a passenger in any way which would interfere with the continued safe operation of that machine.
§20-15-6. Liability of authorized outfitters and licensees.
(a) Any authorized outfitter or licensee is liable for injury, loss or damage caused by failure to follow the duties set forth in section four of this article where the violation of duty is causally related to the injury, loss or damage suffered.
(b) An authorized outfitter or licensee is not liable for any injury, loss or damage caused by the negligence of any person who is not an agent or employee of the authorized outfitter or licensee.
(c) An authorized outfitter or licensee is not liable for any injury, loss or damage caused by a participant's violation of any duty described in section five of this article.
(d) An authorized outfitter or licensee is not liable for any injury, loss or damage caused solely by the participant's failure to negotiate the terrain or environment over which or through which the participant is operating his or her all-terrain vehicle or motorcycle as described in section five of this article.
§20-15-7. Liability of participants.
Any participant is liable for injury, loss or damage resulting from violations of the duties established in section five of this article where the violation of duty is causally related to the injury, loss or damage suffered.
§20-15-8. Authorized outfitters required to carry insurance.
Every authorized outfitter or licensee shall carry public liability insurance in limits of not less than three hundred thousand dollars per occurrence."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment with amendment, as follows:
On page three of the Senate amendment, section four, line nineteen, by striking out subdivision six through ten and inserting in lieu thereof the following:
"(6) Provide all-terrain vehicles or motorcycles which are age and size appropriate as recommended by the manufacturer;
(7) Make certain that every guide offered to participants by the authorized outfitter or licensee has a current standard first aid training certificate and CPR certificate issued by the American Red Cross or its equivalent and ATV safety training through the ATV Safety Institute; and
(8) Make certain that employees carry first aid kits when acting as guides."
The bill, as amended by the Senate, and further amended by the House, was then put upon its passage:
On the passage of the bill, the yeas and nays were taken (Roll No. 533), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4119) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
Com. Sub. for H. B. 4135, Authorizing the Department of Environmental Protection to promulgate legislative rules.
The following Senate amendment was then reported by the Clerk:
On page eight, section one, line sixty-six, after the word "authorized" by changing the period to a comma and adding the following: with the following amendments:
On page seventy-one, section two, paragraph §38-2.7.2.e.1, after line five, by inserting a new paragraph, designated §38-2.7.2.e.1, to read as follows:
§38-2.7.2.e.1. Bio-oil Cropland. Agricultural production of renewable energy crops through long-term intensive cultivation of close-growing commercial biological oil species (such as soybeans, rapeseed or canola) for harvest and ultimate production of bio-fuels as an alternative to petroleum based fuels and other valuable products;
On page seventy-one, section two, paragraph §38-2.7.3.d, after §38-2.7.3.c, by inserting a new paragraph, designated §38-2.7.3.d, to read as follows:
§38-2.7.3.d. A change in postmining land use to bio-oil cropland constitutes an equal or better use of the affected land, as compared with pre-mining use for purposes of W. Va. Code §22-3- 13(c) in the determination of variances of approximate original contour for mountaintop removal operations subject to §38-2-7.8 of this rule;
On page one hundred two, after §38-2-7.7.f.3, by inserting a new subsection, designated §38- 2-7.8, to read as follows:
"7.8. Bio-oil Crop Land.
7.8.1. Criteria for Approving Bio-oil Cropland Postmining Land Use.
7.8.1.a. An alternative postmining land use for bio-oil cropland may be approved by the secretary after consultation with the landowner and or land management agency having jurisdiction over state or federal lands: Provided, That the following conditions have been met.
7.8.1.a.1. There is a reasonable likelihood for the achievement of bio-oil crop production (such as soybeans, rapeseed or canola) as witnessed by a contract between the landowner and a commercially viable individual or entity, binding the parties to the production of bio-oil crops for a measurement period of at least two years after the competition of all restoration activity within the permitted boundaries;
7.8.1.a.2. The bio-oil crop reclamation plan is reviewed and approved by an agronomist employed by the West Virginia Department of Agriculture. The applicants shall pay for any review under this section;
7.8.1.a.3. The use does not present any actual or probable hazard to the public health or safety or threat of water diminution or pollution;
7.8.1.a.4. Bio-oil crop production is not:
7.8.1.a.4.A. Impractical or unreasonable;
7.8.1.a.4.B. Inconsistent with applicable land use policies or plans;
7.8.1.a.4.C. Going to involve unreasonable delays in implementation; or
7.8.1.a.4.D. In violation of any applicable law.
7.8.2. Soil reconstruction specifications for bio-oil crop postmining land use shall be established by the W. Va. Department of Agriculture in consultation with the U. S. Natural Resources Conservation Service and based upon the standards of the National Cooperative Soil Survey and shall include, at a minimum, physical and chemical characteristics of reconstructed soils and soil descriptions containing soil-horizon depths, soil densities, soil pH, and other specifications such that constructed soils will have the capability of achieving levels of yield equal to, or higher that, those required for the production of commercial seed oils species (such as soybeans, rapeseed or canola) and meets the requirement of 14.3 of this rule.
7.8.3. Bond Release.
7.8.3.a. Phase I bond release shall not be approved until W. Va. Department of Agriculture certifies and the secretary finds that the soil meets the criteria established in this rule and has been placed in accordance with this rule. The applicants shall pay for any review under this section.
7.8.3.b. The secretary may authorize in consultation with the W. Va. Department of Agriculture, the Phase III bond release only after the applicant affirmatively demonstrates, and the secretary finds, that the reclaimed land can support bio-oil production; and there is a binding contract for production which meets the requirements of subdivision 7.8.1.a of this rule; and the requirements of paragraph 9.3.f.2 of this rule are met. The applicant shall pay for any review under this section.
7.8.3.c. Once final bond release is authorized, the permittee's responsibility for implementing the bio-oil cropland reclamation plan shall cease."
And,
On page thirteen, section three, line forty-one, after the word "rulemaking" by striking out the remainder of the subsection and inserting in lieu thereof the words "to effectuate its findings. The division may also recommend legislation that may be necessary to protect human health and the environment consistent with the division's findings."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
Delegate Armstead requested to be excused from voting on the passage of Com. Sub. for H. B. 4135 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 534), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Manchin and Walters.
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4135) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 535), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4135) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate on yesterday, as to
Com. Sub. for H. B. 4192, Authorizing the Department of Military Affairs and Public Safety to promulgate legislative rules.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page six, section one, lines fifty-six and fifty-seven, by striking out the words "disapproved and not authorized." and inserting in lieu thereof "authorized with the following amendment:".
On page four, subsection 5.2, after the word "qualifications" by striking out the words "and he or she" and inserting a period and the words "The applicant".
On page six, section one, line sixty-eight, by striking out the words "disapproved and not".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4192 - "A Bill to amend and reenact article 6, chapter 64 of the code of West Virginia, 1931, as amended; all relating generally to the promulgation of administrative rules by the Department of Military Affairs and Public Safety 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 the State Fire Commission to promulgate a legislative rule relating to the State Fire Code; authorizing the State Fire Commission to promulgate a legislative rule relating to the State Building Code; authorizing the State Fire Commission to promulgate a legislative rule relating to the certification of home inspectors; authorizing the State Fire Commission to promulgate a legislative rule relating to standards for the certification and continuing education of municipal, county and other public sector building code officials, building code inspectors and plans examiners; and authorizing the State Police to promulgate a legislative rule relating to the West Virginia State Police Grievance Procedure."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 536), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Lane and Walters.
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4192) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 537), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4192) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
H. B. 4283, Providing a preference to West Virginia veterans in the awarding of state contracts in the competitive bidding process.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
H. B. 4307, Extending the weekend driving privileges of antique motor vehicles and motorcycles.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
H. B. 4484, Extending the time for the county commission of Marion County, West Virginia, to meet as a levying body.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by amending the title of the bill to read as follows:
H. B. 4484 - "Bill to extend the time for the County Commission of Marion County to meet as a levying body for the purpose of presenting to the voters of the county an election for continuing an excess levy to provide funding for vital public services from between the seventh and twenty- eighth days of March and the third Tuesday in April until the first Thursday in June, two thousand six."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 538), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4484) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 539), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4484) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
Com. Sub. for H. B. 4486, Relating to minimum base pay for members of the National Guard and providing tuition payment for the cost of post-graduate courses.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §15-1B-16 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
CHAPTER 15. PUBLIC SAFETY.

ARTICLE 1B. NATIONAL GUARD.
§15-1B-16. Pay and allowances.
(a) Pay and allowances for officers and enlisted personnel of the National Guard for drill, encampment or other duty for training prescribed or ordered by the federal government shall be such as are provided by the laws of the United States.
(b) Officers and enlisted personnel of the National Guard in active service of the state shall receive the same pay and allowances, in accordance with their rank and service, as are prescribed for the armed forces of the United States: Provided, That no member of the National Guard shall receive base pay of less than seventy-five one hundred dollars per day while he or she is in active service of the state.
(c) Notwithstanding any of the provisions of this article, members of the National Guard may, with their consent, perform without pay, or without pay and allowances, any duties prescribed by section thirteen of this article pursuant to competent orders therefor: Provided, That necessary expenses may be furnished such personnel within the discretion of the Adjutant General."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4486 - "A Bill to amend and reenact §15-1B-16 of the Code of West Virginia, 1931, as amended, relating to the National Guard generally; and increasing the base pay of members of the National Guard while in active service to the state."
Delegate Rick Thompson requested to be excused from voting on the passage of Com. Sub. for Com . Sub. for H. B. 4486 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 540), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4486) passed.
Delegate Staton moved that the bill take effect July 1, 2006.
On this question, the yeas and nays were taken (Roll No. 541), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4486) takes effect July 1, 2006.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
Com. Sub. for H. B. 4490, Relating generally to the regulation of selling new or used vehicles.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk.
On page thirteen, section three, line twelve, by striking out the words "for a period of at least five years".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 542), and there were--yeas 92, nays 6, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Hrutkay, Lane, Louisos, Schoen, Trump and Walters.
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4490) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
Com. Sub. for H. B. 4513, Transferring authority to the Insurance Commissioner regarding employers in default to old workers' compensation fund.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments 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 §33-2-22, to read as follows:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-22. Authority of Insurance Commissioner regarding employers in default to workers' compensation funds; injunctions against defaulting employers.

(a) Upon termination of the Workers' Compensation Commission, all of the powers previously conferred upon the Workers' Compensation Commission in regard to employers defaulting to the Workers' Compensation Fund, as set forth in article two, chapter twenty-three of this code, shall transfer to the Insurance Commissioner in regard to employers that are in default to the Old Fund, have liability to the uninsured employers' fund or are in policy default or fail to maintain mandatory workers' compensation coverage, all as defined in article two-c, chapter twenty- three of this code.
(b) In any case in which an employer is in default to the Old Fund, has liability to the uninsured employers fund or is in policy default or otherwise fails to maintain mandatory workers' compensation coverage, all as defined in article two-c, chapter twenty-three of this code, the Insurance Commissioner may bring an action in the circuit court of Kanawha County to enjoin the employer from continuing to operate the employer's business: Provided, That the Insurance Commissioner may, in his or her sole discretion, as an alternative to this action, require the employer to file a bond in the form prescribed by the Commissioner with satisfactory surety in an amount not less than one hundred fifty percent of the total payments, interest and penalties due.
(c) In any action instituted pursuant to subsection (b) of this section, the circuit court shall issue an injunction if the Insurance Commissioner proves by a preponderance of the evidence that the employer is in default to the Old Fund, has liability to the uninsured fund or is in policy default or has otherwise failed to maintain mandatory workers' compensation coverage.
(d) Notwithstanding any provision of this code to the contrary, the commissioner shall have the authority to waive penalty and interest accrued on moneys due the Old Fund. The enactment of the provisions of this subsection shall be applied retrospectively to the first day of January, two thousand six, and may not be construed to require the commissioner to adjust or otherwise modify any agreements reached with regard to the payment of penalty or interest since that date."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4513 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-2-22, relating to the Insurance Commissioner's authority; transferring authority of the former Workers' Compensation Commission to the Insurance Commissioner with respect to collection of amounts owed by employers; permitting Insurance Commissioner to accept a bond from defaulting employers; and requiring circuit courts to issue injunction against operation of business by a defaulting employer."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment as follows:
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 §33-2-22, to read as follows:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-22. Authority of Insurance Commissioner regarding employers in default to workers' compensation funds; injunctions against defaulting employers.

(a) Upon termination of the Workers' Compensation Commission, all of the powers and authority previously conferred upon the Workers' Compensation Commission pursuant to article two, chapter twenty-three of this code, relating to employers in default to the Workers' Compensation Fund, are hereby transferred to the Insurance Commissioner and shall be applied by the Commissioner to those employers in default to the Old Fund or having liability to the uninsured employers' fund or who are in policy default or fail to maintain mandatory workers' compensation coverage, all as defined in article two-c, chapter twenty-three of this code.
(b) In any case in which an employer is in default to the Old Fund or has liability to the uninsured employers fund or who is in default on a policy or otherwise fails to maintain mandatory workers' compensation coverage, all as defined in article two-c, chapter twenty-three of this code, the commission may bring an action in the circuit court of Kanawha County to enjoin the employer from continuing to operate the employer's business: Provided, That the commissioner may, in his or her sole discretion, and as an alternative to this action pursuant to this subsection, require the employer to file a bond, in the form prescribed by the Commissioner, with satisfactory surety in an amount not less than one hundred fifty percent of the total payments, interest and penalties due.
(c) In any action instituted pursuant to subsection (b) of this section, the circuit court shall issue an injunction prohibiting the employer from operating the employer's business, if the Insurance Commissioner proves by a preponderance of the evidence, that the employer is in default to the Old Fund or has liability to the uninsured fund or is in policy default or has otherwise failed to maintain mandatory workers' compensation coverage.
(d) Notwithstanding any provision of this code to the contrary, the commissioner shall have the authority to waive penalty and interest accrued on moneys due the Old Fund. The enactment of the provisions of this subsection shall be applied retrospectively to the first day of January, two thousand six, and may not be construed to require the commissioner to adjust or otherwise modify any agreements reached with regard to the payment of penalty or interest since that date."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4513 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-2-22, relating to the Insurance Commissioner's authority; transferring authority of the former Workers' Compensation Commission to the Insurance Commissioner with respect to collection of amounts owed by employers; permitting Insurance Commissioner to accept a bond from defaulting employers; requiring circuit courts to issue injunction against operation of business by a defaulting employer; and permitting the Commissioner to waive penalties and interest on moneys due the old fund."
The bill, as amended by the Senate, and further amended by the House was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 543), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4513) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 544), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Manchin.
Absent And Not Voting: Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4513) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
Com. Sub. for H. B. 4536, Improving competition among telephone public utilities providing landline services.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk.
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 2E. REQUIREMENTS FOR PHONE SERVICE SALES.
§24-2E-2. Telephone services agreements.

(a) Limitation on termination fees. -- On and after the effective date of this section, no telephone public utility may, in connection with its continued provision of landline telephone service pursuant to an automatic renewal provision contained in a customer service agreement with a business customer, impose a termination fee that is greater than the charges for one month's service, which fee shall be computed by averaging the service charges invoiced to the terminating customer during the preceding four months.
(b) Service agreements already automatically renewed. -- If, as of the effective date of this section, a telephone public utility is providing landline telephone service to a customer pursuant to an automatic renewal provision contained in a customer service agreement with a business customer, the telephone public utility may not impose a termination fee that is greater than the charges for two months' service, which fee shall be computed by averaging the service charges invoiced to the terminating customer during the preceding four months.
(c) Limitation on applicability. --
(1) Nothing herein shall be construed as preventing a telephone public utility and its business customers from entering into customer service agreements, governing, among other matters, any termination fee that may be imposed on the customer for terminating the service agreement during its initial term.
(2) The provisions of this section do not apply to service agreements between one telephone public utility and another telephone public utility."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4536 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §24-2E-2, relating generally to improving competition among telephone public utilities providing landline services to business customers; limiting termination fees charged by telephone public utilities for landline service to business customers and providing method of computing termination fee; specifying how this act applies to existing landline business customer services agreements, whether in their original term or in a rollover term; and providing that act does not apply to services agreements between two telephone public utilities."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 545), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Iaquinta.
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4536) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
Com. Sub. for S. B. 4625, Extending certain authority to professional personnel designee of school principal.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments 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. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-1. Authority of teachers and other school personnel; exclusion of pupils having infectious diseases; suspension or expulsion of disorderly pupils; corporal punishment abolished.

(a) The teacher shall stand in the place of the parent(s), guardian(s) or custodian(s) in exercising authority over the school and shall have control of all pupils enrolled in the school from the time they reach the school until they have returned to their respective homes, except that where transportation of pupils is provided, the driver in charge of the school bus or other mode of transportation shall exercise such authority and control over the children while they are in transit to and from the school.
(b) Subject to the rules of the State Board of Education, the teacher shall exclude from the school any pupil or pupils known to have or suspected of having any infectious disease, or any pupil or pupils who have been exposed to such any infectious disease, and shall immediately notify the proper health officer or medical inspector of such the exclusion. Any pupil so excluded shall not be readmitted to the school until such the pupil has complied with all the requirements of the rules governing such those cases or has presented a certificate of health signed by the medical inspector or other proper health officer.
(c) The teacher shall have authority to may exclude from his or her classroom or school bus any pupil who is guilty of disorderly conduct; who in any manner interferes with an orderly educational process; who threatens, abuses or otherwise intimidates or attempts to intimidate a school employee or a pupil; or who willfully disobeys a school employee; or who uses abusive or profane language directed at a school employee. Any pupil excluded shall be placed under the control of the principal of the school or a designee. The excluded pupil may be admitted to the classroom or school bus only when the principal, or a designee, provides written certification to the teacher that the pupil may be readmitted and specifies the specific type of disciplinary action, if any, which was taken. If the principal finds that disciplinary action is warranted, he or she shall provide written and, if possible, telephonic notice of such the action to the parent(s), guardian(s) or custodian(s). When a teacher excludes the same pupil from his or her classroom or from a school bus three times in one school year, and after exhausting all reasonable methods of classroom discipline provided in the school discipline plan, the pupil may be readmitted to the teacher's classroom only after the principal, teacher and, if possible, the parent(s), guardian(s) or custodian(s) of the pupil have held a conference to discuss the pupil's disruptive behavior patterns, and the teacher and the principal agree on a course of discipline for the pupil and inform the parent(s), guardian(s) or custodian(s) of the course of action. Thereafter, if the pupil's disruptive behavior persists, upon the teacher's request, the principal may, to the extent feasible, transfer the pupil to another setting.
(d) The Legislature finds that suspension from school is not appropriate solely for a pupil's failure to attend class. Therefore, no pupil may be suspended from school solely for not attending class. Other methods of discipline may be used for the pupil which may include, but are not limited to, detention, extra class time or alternative class settings.
(e) Corporal punishment of any pupil by a school employee is prohibited.
(f) Each county board is solely responsible for the administration of proper discipline in the public schools of the county and shall adopt policies consistent with the provisions of this section to govern disciplinary actions. These policies shall encourage the use of alternatives to corporal punishment, providing for the training of school personnel in alternatives to corporal punishment and for the involvement of parent(s), guardian(s) or custodian(s) in the maintenance of school discipline. The county boards of education shall provide for the immediate incorporation and implementation in the schools of a preventive discipline program which may include the responsible student program and a student involvement program which may include the peer mediation program, devised by the West Virginia Board of Education. Each board may modify such those programs to meet the particular needs of the county. The county boards shall provide in-service training for teachers and principals relating to assertive discipline procedures and conflict resolution. The county boards of education may also may establish cooperatives with private entities to provide middle educational programs which may include programs focusing on developing individual coping skills, conflict resolution, anger control, self-esteem issues, stress management and decision making for students and any other program related to preventive discipline.
(g) For the purpose of this section:
(1) 'Pupil or student' shall include includes any child, youth or adult who is enrolled in any instructional program or activity conducted under board authorization and within the facilities of or in connection with any program under public school direction: Provided, That, in the case of adults, the pupil-teacher relationship shall terminate when the pupil leaves the school or other place of instruction or activity; and
(2) 'Teacher' shall mean means all professional educators as defined in section one, article one of this chapter and shall include the driver of a school bus or other mode of transportation; and
(3) 'Principal' means the principal, assistant principal, vice principal or the administrative head of the school or a professional personnel designee of the principal or the administrative head of the school
.
(h) Teachers shall exercise such other authority and perform such other duties as may be prescribed for them by law or by the rules of the State Board of Education not inconsistent with the provisions of this chapter and chapter eighteen of this code.
§18A-5-1a. Possessing deadly weapons on premises of educational facilities; possessing a controlled substance on premises of educational facilities; assaults and batteries committed by pupils upon teachers or other school personnel; temporary suspension, hearing; procedure, notice and formal hearing; extended suspension; sale of narcotic; expulsion; exception; alternative education.

(a) A principal shall suspend a pupil from school or from transportation to or from the school on any school bus if the pupil, in the determination of the principal after an informal hearing pursuant to subsection (d) of this section, has: (I) Violated the provisions of subsection (b), section fifteen, article two, chapter sixty-one of this code; (ii) violated the provisions of subsection (b), section eleven-a, article seven of said chapter; or (iii) sold a narcotic drug, as defined in section one hundred one, article one, chapter sixty-a of this code, on the premises of an educational facility, at a school-sponsored function or on a school bus. If a student has been suspended pursuant to this subsection, the principal shall, within twenty-four hours, request that the county superintendent recommend to the county board that the student be expelled. Upon such a request by a principal, the county superintendent shall recommend to the county board that the student be expelled. Upon such recommendation, the county board shall conduct a hearing in accordance with subsections (e), (f) and (g) of this section to determine if the student committed the alleged violation. If the county board finds that the student did commit the alleged violation, the county board shall expel the student.
(b) A principal shall suspend a pupil from school, or from transportation to or from the school on any school bus, if the pupil, in the determination of the principal after an informal hearing pursuant to subsection (d) of this section, has: (I) Committed an act or engaged in conduct that would constitute a felony under the laws of this state if committed by an adult; or (ii) unlawfully possessed on the premises of an educational facility or at a school-sponsored function a controlled substance governed by the uniform controlled substances act as described in chapter sixty-a of this code. If a student has been suspended pursuant to this subsection, the principal may request that the superintendent recommend to the county board that the student be expelled. Upon such recommendation by the county superintendent, the county board may hold a hearing in accordance with the provisions of subsections (e), (f) and (g) of this section to determine if the student committed the alleged violation. If the county board finds that the student did commit the alleged violation, the county board may expel the student.
(c) A principal may suspend a pupil from school, or transportation to or from the school on any school bus, if the pupil, in the determination of the principal after an informal hearing pursuant to subsection (d) of this section: (I) Threatened to injure, or in any manner injured, a pupil, teacher, administrator or other school personnel; (ii) willfully disobeyed a teacher; (iii) possessed alcohol in an educational facility, on school grounds, a school bus or at any school-sponsored function; (iv) used profane language directed at a school employee or pupil; (v) intentionally defaced any school property; (vi) participated in any physical altercation with another person while under the authority of school personnel; or (vii) habitually violated school rules or policies. If a student has been suspended pursuant to this subsection, the principal may request that the superintendent recommend to the county board that the student be expelled. Upon such recommendation by the county superintendent, the county board may hold a hearing in accordance with the provisions of subsections (e), (f) and (g) of this section to determine if the student committed the alleged violation. If the county board finds that the student did commit the alleged violation, the county board may expel the student.
(d) The actions of any pupil which may be grounds for his or her suspension or expulsion under the provisions of this section shall be reported immediately to the principal of the school in which the pupil is enrolled. If the principal determines that the alleged actions of the pupil would be grounds for suspension, he or she shall conduct an informal hearing for the pupil immediately after the alleged actions have occurred. The hearing shall be held before the pupil is suspended unless the principal believes that the continued presence of the pupil in the school poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process, in which case the pupil shall be suspended immediately and a hearing held as soon as practicable after the suspension.
The pupil and his or her parent(s), guardian(s) or custodian(s), as the case may be, shall be given telephonic notice, if possible, of this informal hearing, which notice shall briefly state the grounds for suspension.
At the commencement of the informal hearing, the principal shall inquire of the pupil as to whether he or she admits or denies the charges. If the pupil does not admit the charges, he or she shall be given an explanation of the evidence possessed by the principal and an opportunity to present his or her version of the occurrence. At the conclusion of the hearing or upon the failure of the noticed student to appear, the principal may suspend the pupil for a maximum of ten school days, including the time prior to the hearing, if any, for which the pupil has been excluded from school.
The principal shall report any suspension the same day it has been decided upon, in writing, to the parent(s), guardian(s) or custodian(s) of the pupil by regular United States mail. The suspension also shall be reported to the county superintendent and to the faculty senate of the school at the next meeting after the suspension.
(e) Prior to a hearing before the county board, the county board shall cause a written notice which states the charges and the recommended disposition to be served upon the pupil and his or her parent(s), guardian(s) or custodian(s), as the case may be. The notice shall state clearly whether the board will attempt at hearing to establish the student as a dangerous student, as defined by section one, article one of this chapter. The notice also shall include any evidence upon which the board will rely in asserting its claim that the student is a dangerous student. The notice shall set forth a date and time at which the hearing shall be held, which date shall be within the ten-day period of suspension imposed by the principal.
(f) The county board shall hold the scheduled hearing to determine if the pupil should be reinstated or should or, under the provisions of this section, must be expelled from school. If the county board determines that the student should or must be expelled from school, it may also may determine whether the student is a dangerous student pursuant to subsection (g) of this section. At this, or any hearing before a county board conducted pursuant to this section, the pupil may be represented by counsel, may call his or her own witnesses to verify his or her version of the incident and may confront and cross-examine witnesses supporting the charge against him or her. Such The a hearing shall be recorded by mechanical means unless recorded by a certified court reporter. Any such The hearing may be postponed for good cause shown by the pupil but he or she shall remain under suspension until after the hearing. The State Board may adopt other supplementary rules of procedure to be followed in these hearings. At the conclusion of the hearing the county board shall either: (1) Order the pupil reinstated immediately at the end of his or her initial suspension; (2) suspend the pupil for a further designated number of days; or (3) expel the pupil from the public schools of the county.
(g) A county board that did not intend prior to a hearing to assert a dangerous student claim, that did not notify the student prior to the hearing that such a dangerous student determination would be considered and that determines through the course of the hearing that the student may be a dangerous student shall schedule a second hearing within ten days to decide the issue. The hearing may be postponed for good cause shown by the pupil, but he or she remains under suspension until after the hearing.
A county board that expels a student, and finds that the student is a dangerous student, may refuse to provide alternative education. However, after a hearing conducted pursuant to this section for determining whether a student is a dangerous student, when the student is found to be a dangerous student, is expelled and is denied alternative education, a hearing shall be conducted within three months after the refusal by the board to provide alternative education to reexamine whether or not the student remains a dangerous student and whether the student shall be provided alternative education. Thereafter, a hearing for the purpose of reexamining whether or not the student remains a dangerous student and whether the student shall be provided alternative education shall be conducted every three months for so long as the student remains a dangerous student and is denied alternative education. During the initial hearing, or in any subsequent hearing, the board may consider the history of the pupil's conduct as well as any improvements made subsequent to the expulsion. If it is determined during any of the hearings that the student is no longer a dangerous student or should be provided alternative education, the student shall be provided alternative education during the remainder of the expulsion period.
(h) The superintendent may apply to a circuit judge or magistrate for authority to subpoena witnesses and documents, upon his or her own initiative, in a proceeding related to a recommended student expulsion or dangerous student determination, before a county board conducted pursuant to the provisions of this section. Upon the written request of any other party, the superintendent shall apply to a circuit judge or magistrate for the authority to subpoena witnesses, documents or both on behalf of the other party in a proceeding related to a recommended student expulsion or dangerous student determination before a county board. If the authority to subpoena is granted, the superintendent shall subpoena the witnesses, documents or both requested by the other party. Furthermore, if the authority to subpoena is granted, it shall be exercised in accordance with the provisions of section one, article five, chapter twenty-nine-a of this code.
Any hearing conducted pursuant to this subsection may be postponed: (1) For good cause shown by the pupil; (2) when proceedings to compel a subpoenaed witness to appear must be instituted; or (3) when a delay in service of a subpoena hinders either party's ability to provide sufficient notice to appear to a witness. A pupil remains under suspension until after the hearing in any case where a postponement occurs.
The county boards are directed to report the number of pupils determined to be dangerous students to the State Board of Education. The State Board will compile the county boards' statistics and shall report its findings to the Legislative Oversight Commission on Education Accountability.
(I) Pupils may be expelled pursuant to the provisions of this section for a period not to exceed one school year, except that if a pupil is determined to have violated the provisions of subsection (a) of this section the pupil shall be expelled for a period of not less than twelve consecutive months: Provided, That the county superintendent may lessen the mandatory period of twelve consecutive months for the expulsion of the pupil if the circumstances of the pupil's case demonstrably warrant. Upon the reduction of the period of expulsion, the county superintendent shall prepare a written statement setting forth the circumstances of the pupil's case which warrant the reduction of the period of expulsion. The county superintendent shall submit the statement to the county board, the principal, the faculty senate and the local school improvement council for the school from which the pupil was expelled. The county superintendent may use the following factors as guidelines in determining whether or not to reduce a mandatory twelve-month expulsion:
(1) The extent of the pupil's malicious intent;
(2) The outcome of the pupil's misconduct;
(3) The pupil's past behavior history; and
(4) The likelihood of the pupil's repeated misconduct.
(j) In all hearings under this section, facts shall be found by a preponderance of the evidence.
(k) For purposes of this section, nothing herein may be construed to be in conflict with the federal provisions of the Individuals with Disabilities Education Act, of 1990 (PL 101-476) 20 U.S.C. §1400 et seq.
(l) Each suspension or expulsion imposed upon a pupil under the authority of this section shall be recorded in the uniform integrated regional computer information system (commonly known as the West Virginia Education Information System) described in subsection (f), section twenty-six, article two, chapter eighteen of this code.
(1) The principal of the school at which the pupil is enrolled shall create an electronic record within twenty-four hours of the imposition of the suspension or expulsion.
(2) Each record of a suspension or expulsion shall include the pupil's name and identification number, the reason for the suspension or expulsion, and the beginning and ending dates of the suspension or expulsion.
(3) The State Board of Education shall collect and disseminate data so that any principal of a public school in West Virginia can review the complete history of disciplinary actions taken by West Virginia public schools against any pupil enrolled or seeking to enroll at that principal's school. The purposes of this provision are to allow every principal to fulfill his or her duty under subsection (b), section fifteen-f, article five, chapter eighteen of this code to determine whether a pupil requesting to enroll at a public school in West Virginia is currently serving a suspension or expulsion from another public school in West Virginia and to allow principals to obtain general information about pupils' disciplinary histories.
(m) Principals may exercise any other authority and perform any other duties to discipline pupils consistent with state and federal law, including policies of the State Board of Education.
(n) Each county board is solely responsible for the administration of proper discipline in the public schools of the county and shall adopt policies consistent with the provisions of this section to govern disciplinary actions.
(o) For the purpose of this section, 'principal' means the principal, assistant principal, vice principal or the administrative head of the school or a professional personnel designee of the principal or the administrative head of the school."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4625 - "A Bill to amend and reenact §18A-5-1 and §18A-5-1a of the Code of West Virginia, 1931, as amended, relating to authority over pupils and discipline; defining principal to include principal, assistant principal, vice principal, administrative head of school or professional personnel designee of school principal or administrative head."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 546), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4625) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 547), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Caputo, Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4625) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
H. B. 4632, Relating to employing homeland security and emergency service personnel.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §15-5-15 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be further amended by adding thereto a new section, designated §61-1-10, all to read as follows:
CHAPTER 15. PUBLIC SAFETY.

ARTICLE 5. DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT.
§15-5-15. Emergency service personnel.

(a) No person shall may be employed or associated in any capacity in homeland security or any emergency service organization established under this article who has been convicted of a felony or who advocates or has advocated a change by force or violence in the constitutional form of the government of the United States or this state or the overthrow of any government in the United States by force or violence or who has been convicted of or is under indictment or information charging any subversive act against the United States.
(b) Each person who is appointed to serve in an organization for homeland security or emergency services shall undergo a background check and shall, before entering upon his or her duties, take an oath, in writing, before a person authorized to administer oaths in this state, which shall be substantially as follows:
'I,_________________, do solemnly swear or affirm that I will support and defend the Constitution of the United States and the Constitution of West Virginia against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; that I am not a convicted felon; and that I will well and faithfully and competently discharge the duties upon which I am about to enter.
And I do further swear or affirm that I do not advocate, nor am I a member of any political party or organization that advocates, the overthrow of the government of the United States or this state by force or violence; and that during such time as while I am a member of the (name of organization) I will not advocate or become a member of any political party or organization that advocates the overthrow of the government of the United States or this state by force or violence.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 1. CRIMES AGAINST THE GOVERNMENT.
§61-1-10. Persons convicted of a felony involving the use or threatened use of a firearm required to report to sheriff when entering county courthouse.

(a) Upon arriving at the county courthouse and before proceeding to any other area in the courthouse, any person who has been convicted of a felony which involved the use or threatened use of a firearm, either in this state or another state, is required to report directly to the sheriff's office and inform the sheriff or the sheriff's designated employee that the individual has been convicted of a felony which involved the use or threatened use of a firearm and describe the purpose of the individual's visit to the courthouse.
(b) In a county where the sheriff does not have an office in the county courthouse, any person who has been convicted of a felony which involved the use or threatened use of a firearm, either in this state or another state, before entering the courthouse, is required to report to the sheriff's office and inform the sheriff or a designated employee that the individual has been convicted of a felony which involved the use or threatened use of a firearm and describe the purpose of the individual's visit to the courthouse.
(c) A person who violates any provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred dollars nor more than one thousand dollars."
And,
By amending the title of the bill to read as follows:
H. B. 4632 - "A Bill to amend and reenact §15-5-15 of the Code of West Virginia, 1931, as amended, and to further amend said code by adding thereto a new section, designated §61-1-10, relating to public safety, homeland security and crimes against the government; prohibiting employment of certain persons as homeland security and emergency service personnel; requiring persons who have been convicted of a felony involving the use or threatened use of a firearm to report to sheriff when visiting a county courthouse; and providing criminal penalty for violation."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 548), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4632) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
H. B. 4651, Relating to continuing the statewide poison center generally.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
Com. Sub. for H. B. 4694, Relating to abuse and neglect of children.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-3. Definitions relating to abuse and neglect.
(a) 'Abused child' means a child whose health or welfare is harmed or threatened by:
(1) A parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home; or
(2) Sexual abuse or sexual exploitation; or
(3) The sale or attempted sale of a child by a parent, guardian or custodian in violation of section sixteen, article four, chapter forty-eight of this code; or
(4) Domestic violence as defined in section two hundred two, article twenty-seven, chapter forty-eight of this code.
In addition to its broader meaning, physical injury may include an injury to the child as a result of excessive corporal punishment.
(b) 'Abusing parent' means a parent, guardian or other custodian, regardless of his or her age, whose conduct, as alleged in the petition charging child abuse or neglect, has been adjudged by the court to constitute child abuse or neglect.
(c) 'Battered parent' means a parent, guardian or other custodian who has been judicially determined not to have condoned the abuse or neglect and has not been able to stop the abuse or neglect of the child or children due to being the victim of domestic violence as defined by section two hundred two, article twenty-seven, chapter forty-eight of this code, which domestic violence was perpetrated by the person or persons determined to have abused or neglected the child or children.
(c) (d) 'Child abuse and neglect' or 'child abuse or neglect' means physical injury, mental or emotional injury, sexual abuse, sexual exploitation, sale or attempted sale or negligent treatment or maltreatment of a child by a parent, guardian or custodian who is responsible for the child's welfare, under circumstances which harm or threaten the health and welfare of the child.
(d) (e) 'Child abuse and neglect services' means social services which are directed toward:
(1) Protecting and promoting the welfare of children who are abused or neglected;
(2) Identifying, preventing and remedying conditions which cause child abuse and neglect;
(3) Preventing the unnecessary removal of children from their families by identifying family problems and assisting families in resolving problems which could lead to a removal of children and a breakup of the family;
(4) In cases where children have been removed from their families, providing services to the children and the families so as to reunify such children with their families or some portion thereof;
(5) Placing children in suitable adoptive homes when reunifying the children with their families, or some portion thereof, is not possible or appropriate; and
(6) Assuring the adequate care of children who have been placed in the custody of the department or third parties.
(e) (f) 'Imminent danger to the physical well-being of the child' means an emergency situation in which the welfare or the life of the child is threatened. Such emergency situation exists when there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited, or reasonable cause to believe that the following conditions threaten the health or life of any child in the home:
(1) Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling or a babysitter or other caretaker;
(2) A combination of physical and other signs indicating a pattern of abuse which may be medically diagnosed as battered child syndrome;
(3) Nutritional deprivation;
(4) Abandonment by the parent, guardian or custodian;
(5) Inadequate treatment of serious illness or disease;
(6) Substantial emotional injury inflicted by a parent, guardian or custodian; or
(7) Sale or attempted sale of the child by the parent, guardian or custodian.
(f) (g) 'Legal guardianship' means the permanent relationship between a child and caretaker, established by order of the circuit court having jurisdiction over the child, pursuant to the provisions of chapters forty-eight and forty-nine of this code.
(g) (h) 'Multidisciplinary team' means a group of professionals and paraprofessionals representing a variety of disciplines who interact and coordinate their efforts to identify, diagnose and treat specific cases of child abuse and neglect. Multidisciplinary teams may include, but are not limited to, medical, educational, child care and law-enforcement personnel, social workers, psychologists and psychiatrists. Their goal is to pool their respective skills in order to formulate accurate diagnoses and to provide comprehensive coordinated treatment with continuity and follow-up for both parents and children. 'Community team' means a multidisciplinary group which addresses the general problem of child abuse and neglect in a given community and may consist of several multidisciplinary teams with different functions.
(h) (I) (1) 'Neglected child' means a child:
(A) Whose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when such refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian; or
(B) Who is presently without necessary food, clothing, shelter, medical care, education or supervision because of the disappearance or absence of the child's parent or custodian;
(2) 'Neglected child' does not mean a child whose education is conducted within the provisions of section one, article eight, chapter eighteen of this code.
(I) (j) 'Parenting skills' means a parent's competencies in providing physical care, protection, supervision and psychological support appropriate to a child's age and state of development.
(j) (k) 'Sexual abuse' means:
(A) As to a child who is less than sixteen years of age, any of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in, or knowingly procure another person to engage in, with such child, notwithstanding the fact that the child may have willingly participated in such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct:
(I) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(B) As to a child who is sixteen years of age or older, any of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in, or knowingly procure another person to engage in, with such child, notwithstanding the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct:
(I) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(C) Any conduct whereby a parent, guardian or custodian displays his or her sex organs to a child, or procures another person to display his or her sex organs to a child, for the purpose of gratifying the sexual desire of the parent, guardian or custodian, of the person making such display, or of the child, or for the purpose of affronting or alarming the child.
(k) (l) 'Sexual contact' means sexual contact as that term is defined in section one, article eight-b, chapter sixty-one of this code.
(l) (m) 'Sexual exploitation' means an act whereby:
(1) A parent, custodian or guardian, whether for financial gain or not, persuades, induces, entices or coerces a child to engage in sexually explicit conduct as that term is defined in section one, article eight-c, chapter sixty-one of this code;
(2) A parent, guardian or custodian persuades, induces, entices or coerces a child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian or a third person, or to display his or her sex organs under circumstances in which the parent, guardian or custodian knows such display is likely to be observed by others who would be affronted or alarmed.
(m) (n) 'Sexual intercourse' means sexual intercourse as that term is defined in section one, article eight-b, chapter sixty-one of this code.
(n) (o) 'Sexual intrusion' means sexual intrusion as that term is defined in section one, article eight-b, chapter sixty-one of this code.
(o) (p) 'Parental rights' means any and all rights and duties regarding a parent to a minor child, including, but not limited to, custodial rights and visitational rights and rights to participate in the decisions affecting a minor child.
(p) (q) 'Placement' means any temporary or permanent placement of a child who is in the custody of the state in any foster home, group home or other facility or residence.
(q) (r) 'Serious physical abuse' means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.
(r) (s) 'Siblings' means children who have at least one biological parent in common or who have been legally adopted by the same parents or parent.
(s) (t) 'Time-limited reunification services' means individual, group, and family counseling, inpatient, residential or outpatient substance abuse treatment services, mental health services, assistance to address domestic violence, services designed to provide temporary child care and therapeutic services for families, including crisis nurseries and transportation to or from any such services, provided during fifteen of the most recent twenty-two months a child has been in foster care, as determined by the earlier date of the first judicial finding that the child is subjected to abuse or neglect, or the date which is sixty days after the child is removed from home.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-2. Petition to court when child believed neglected or abused-right to counsel; improvement period; hearing; priority of proceeding; transcript.

(a) In any proceeding under the provisions of this article, the child, his or her or parents and his or her legally established custodian or other persons standing in loco parentis to him or her shall have the right to be represented by counsel at every stage of the proceedings and shall be informed by the court of their right to be so represented and that if they cannot pay for the services of counsel, that counsel will be appointed. Counsel of the child shall be appointed in the initial order. If the order gives physical custody of the child to the state, the initial order shall appoint counsel for the parents or, if the parents are separated or divorced, the parents or parent or other person or persons standing in loco parentis who had physical custody of the child for the majority of the time in the period immediately preceding the petition: Provided, That such representation shall only continue after the first appearance if the parent or other persons standing in loco parentis cannot pay for the services of counsel. Counsel for other parties shall only be appointed upon request for appointment of counsel. If the requesting parties have not retained counsel and cannot pay for the services of counsel, the court shall, by order entered of record, appoint an attorney or attorneys to represent the other party or parties and so inform the parties. Under no circumstances may the same attorney represent both the child and the other party or parties, nor shall the same attorney represent both parents or custodians. However, one attorney may represent both parents or custodians where both parents or guardians consent to this representation after the attorney fully discloses to the client the possible conflict and where the attorney assures the court that she or he is able to represent each client without impairing her or his professional judgment; however, if more than one child from a family is involved in the proceeding, one attorney may represent all the children. A parent who has been judicially determined to be battered shall be entitled to his or her own attorney. The court may allow to each attorney so appointed a fee in the same amount which appointed counsel can receive in felony cases. Any attorney appointed pursuant to this section shall by the first day of July, one thousand nine hundred ninety-three, and three hours per year each year thereafter, receive a minimum of three hours of continuing legal education training on representation of children, child abuse and neglect: Provided, however, That where no attorney who has completed this training is available for such appointment, the court shall appoint a competent attorney with demonstrated knowledge of child welfare law to represent the child. Any attorney appointed pursuant to this section shall perform all duties required as an attorney licensed to practice law in the State of West Virginia.
(b) In any proceeding brought pursuant to the provisions of this article, the court may grant any respondent an improvement period in accord with the provisions of this article. During such period, the court may require temporary custody with a responsible person which has been found to be a fit and proper person for the temporary custody of the child or children or the state Department or other agency during the improvement period. An order granting such improvement period shall require the Department to prepare and submit to the court a family case plan in accordance with the provisions of section three, article six-d of this chapter.
(c) In any proceeding pursuant to the provisions of this article, the party or parties having custodial or other parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses. The petition shall not be taken as confessed. A transcript or recording shall be made of all proceedings unless waived by all parties to the proceeding. The rules of evidence shall apply. Where relevant, the court shall consider the efforts of the state Department to remedy the alleged circumstances. At the conclusion of the hearing, the court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected and, if applicable, whether the parent, guardian, or custodian is a battered parent, all of which shall be incorporated into the order of the court. The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing proof.
(d) Any petition filed and any proceeding held under the provisions of this article shall, to the extent practicable, be given priority over any other civil action before the court, except proceedings under article two-a, chapter forty-eight of this code and actions in which trial is in progress. Any petition filed under the provisions of this article shall be docketed immediately upon filing. Any hearing to be held at the end of an improvement period and any other hearing to be held during any proceedings under the provisions of this article shall be held as nearly as practicable on successive days and, with respect to said hearing to be held at the end of an improvement period, shall be held as close in time as possible after the end of said improvement period and shall be held within sixty days of the termination of such improvement period.
(e) Following the court's determination, it shall be inquired of the parents or custodians whether or not appeal is desired and the response transcribed. A negative response shall not be construed as a waiver. The evidence shall be transcribed and made available to the parties or their counsel as soon as practicable, if the same is required for purposes of further proceedings. If an indigent person intends to pursue further proceedings, the court reporter shall furnish a transcript of the hearing without cost to the indigent person if an affidavit is filed stating that he or she cannot pay therefor.
§49-6-3. Petition to court when child believed neglected or abused -- Temporary custody.
(a) Upon the filing of a petition, the court may order that the child alleged to be an abused or neglected child be delivered for not more than ten days into the custody of the state department or a responsible person found by the court to be a fit and proper person for the temporary care of the child pending a preliminary hearing, if it finds that: (1) There exists imminent danger to the physical well-being of the child; and (2) there are no reasonably available alternatives to removal of the child, including, but not limited to, the provision of medical, psychiatric, psychological or homemaking services in the child's present custody: Provided, That where the alleged abusing person, if known, is a member of a household, the court shall not allow placement pursuant to this section of the child or children in said home unless the alleged abusing person is or has been precluded from visiting or residing in said home by judicial order. In a case where there is more than one child in the home, or in the temporary care, custody or control of the alleged offending parent, the petition shall so state, and notwithstanding the fact that the allegations of abuse or neglect may pertain to less than all of such children, each child in the home for whom relief is sought shall be made a party to the proceeding. Even though the acts of abuse or neglect alleged in the petition were not directed against a specific child who is named in the petition, the court shall order the removal of such child, pending final disposition, if it finds that there exists imminent danger to the physical well-being of the child and a lack of reasonable available alternatives to removal. The initial order directing such custody shall contain an order appointing counsel and scheduling the preliminary hearing, and upon its service shall require the immediate transfer of custody of such child or children to the department or a responsible relative which may include any parent, guardian, or other custodian. The court order shall state: (1) That continuation in the home is contrary to the best interests of the child and why; and (2) whether or not the department made reasonable efforts to preserve the family and prevent the placement or that the emergency situation made such efforts unreasonable or impossible. The order may also direct any party or the department to initiate or become involved in services to facilitate reunification of the family.
(b) Whether or not the court orders immediate transfer of custody as provided in subsection (a) of this section, if the facts alleged in the petition demonstrate to the court that there exists imminent danger to the child, the court may schedule a preliminary hearing giving the respondents at least five days' actual notice. If the court finds at the preliminary hearing that there are no alternatives less drastic than removal of the child and that a hearing on the petition cannot be scheduled in the interim period, the court may order that the child be delivered into the temporary custody of the department or a responsible person or agency found by the court to be a fit and proper person for the temporary care of the child for a period not exceeding sixty days: Provided, That the court order shall state: (1) That continuation in the home is contrary to the best interests of the child and set forth the reasons therefor; (2) whether or not the department made reasonable efforts to preserve the family and to prevent the child's removal from his or her home; (3) whether or not the department made reasonable efforts to preserve the family and to prevent the placement or that the emergency situation made such efforts unreasonable or impossible; and (4) what efforts should be made by the department, if any, to facilitate the child's return home: Provided, however, That if the court grants an improvement period as provided in section twelve of this article, the sixty-day limit upon temporary custody is waived.
(c) If a child or children shall, in the presence of a child protective service worker, be in an emergency situation which constitutes an imminent danger to the physical well-being of the child or children, as that phrase is defined in section three, article one of this chapter, and if such worker has probable cause to believe that the child or children will suffer additional child abuse or neglect or will be removed from the county before a petition can be filed and temporary custody can be ordered, the worker may, prior to the filing of a petition, take the child or children into his or her custody without a court order: Provided, That after taking custody of such child or children prior to the filing of a petition, the worker shall forthwith appear before a circuit judge or a juvenile referee of the county wherein custody was taken, or if no such judge or referee be available, before a circuit judge or a juvenile referee of an adjoining county, and shall immediately apply for an order ratifying the emergency custody of the child pending the filing of a petition. The circuit court of every county in the state shall appoint at least one of the magistrates of the county to act as a juvenile referee, who shall serve at the will and pleasure of the appointing court, and who shall perform the functions prescribed for such position by the provisions of this subsection. The parents, guardians or custodians of the child or children may be present at the time and place of application for an order ratifying custody, and if at the time the child or children are taken into custody by the worker, the worker knows which judge or referee is to receive the application, the worker shall so inform the parents, guardians or custodians. The application for emergency custody may be on forms prescribed by the supreme court of appeals or prepared by the prosecuting attorney or the applicant, and shall set forth facts from which it may be determined that the probable cause described above in this subsection exists. Upon such sworn testimony or other evidence as the judge or referee deems sufficient, the judge or referee may order the emergency taking by the worker to be ratified. If appropriate under the circumstances, the order may include authorization for an examination as provided for in subsection (b), section four of this article. If a referee issues such an order, the referee shall by telephonic communication have such order orally confirmed by a circuit judge of the circuit or an adjoining circuit who shall on the next judicial day enter an order of confirmation. If the emergency taking is ratified by the judge or referee, emergency custody of the child or children shall be vested in the department until the expiration of the next two judicial days, at which time any such child taken into emergency custody shall be returned to the custody of his or her parent or guardian or custodian unless a petition has been filed and custody of the child has been transferred under the provisions of section three of this article.
(d) For purposes of the court's consideration of temporary custody pursuant to the provisions of subsection (a) or (b) of this section, the department is not required to make reasonable efforts to preserve the family if the court determines:
(1) The parent has subjected the child, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent to aggravated circumstances which include, but are not limited to, abandonment, torture, chronic abuse and sexual abuse;
(2) The parent has:
(A) Committed murder of the child's other parent, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
(B) Committed voluntary manslaughter of the child's other parent, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
(C) Attempted or conspired to commit such a murder or voluntary manslaughter or been an accessory before or after the fact to either such crime; or
(D) Committed unlawful or malicious wounding that results in serious bodily injury to the child, the child's other parent, or to another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent; or,
(3) The parental rights of the parent to a sibling another child have been terminated involuntarily.
§49-6-5. Disposition of neglected or abused children.
(a) Following a determination pursuant to section two of this article wherein the court finds a child to be abused or neglected, the department shall file with the court a copy of the child's case plan, including the permanency plan for the child. The term case plan means a written document that includes, where applicable, the requirements of the family case plan as provided for in section three, article six-d of this chapter and that also includes at least the following: A description of the type of home or institution in which the child is to be placed, including a discussion of the appropriateness of the placement and how the agency which is responsible for the child plans to assure that the child receives proper care and that services are provided to the parents, child and foster parents in order to improve the conditions in the parent(s) home; facilitate return of the child to his or her own home or the permanent placement of the child; and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child. The term 'permanency plan' refers to that part of the case plan which is designed to achieve a permanent home for the child in the least restrictive setting available. The plan must document efforts to ensure that the child is returned home within approximate time lines for reunification as set out in the plan. Reasonable efforts to place a child for adoption or with a legal guardian may be made at the same time reasonable efforts are made to prevent removal or to make it possible for a child to safely return home. If reunification is not the permanency plan for the child, the plan must state why reunification is not appropriate and detail the alternative placement for the child to include approximate time lines for when such placement is expected to become a permanent placement. This case plan shall serve as the family case plan for parents of abused or neglected children. Copies of the child's case plan shall be sent to the child's attorney and parent, guardian or custodian or their counsel at least five days prior to the dispositional hearing. The court shall forthwith proceed to disposition giving both the petitioner and respondents an opportunity to be heard. The court shall give precedence to dispositions in the following sequence:
(1) Dismiss the petition;
(2) Refer the child, the abusing parent, the battered parent or other family members to a community agency for needed assistance and dismiss the petition;
(3) Return the child to his or her own home under supervision of the department;
(4) Order terms of supervision calculated to assist the child and any abusing parent or battered parent or parents or custodian which prescribe the manner of supervision and care of the child and which are within the ability of any parent or parents or custodian to perform;
(5) Upon a finding that the abusing parent or battered parent or parents are presently unwilling or unable to provide adequately for the child's needs, commit the child temporarily to the custody of the state department, a licensed private child welfare agency or a suitable person who may be appointed guardian by the court. The court order shall state: (A) That continuation in the home is contrary to the best interests of the child and why; (B) whether or not the department has made reasonable efforts, with the child's health and safety being the paramount concern, to preserve the family, or some portion thereof, and to prevent or eliminate the need for removing the child from the child's home and to make it possible for the child to safely return home; (C) what efforts were made or that the emergency situation made such efforts unreasonable or impossible; and (D) the specific circumstances of the situation which made such efforts unreasonable if services were not offered by the department. The court order shall also determine under what circumstances the child's commitment to the department shall continue. Considerations pertinent to the determination include whether the child should: (i) Be continued in foster care for a specified period; (ii) be considered for adoption; (iii) be considered for legal guardianship; (iv) be considered for permanent placement with a fit and willing relative; or (v) be placed in another planned permanent living arrangement, but only in cases where the department has documented to the circuit court a compelling reason for determining that it would not be in the best interests of the child to follow one of the options set forth in subparagraphs (i), (ii), (iii) or (iv) of this paragraph. The court may order services to meet the special needs of the child. Whenever the court transfers custody of a youth to the department, an appropriate order of financial support by the parents or guardians shall be entered in accordance with section five, article seven of this chapter; or
(6) Upon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and, when necessary for the welfare of the child, terminate the parental, custodial or and guardianship rights and/or responsibilities of the abusing parent and commit the child to the permanent sole custody of the nonabusing parent, if there be one, or, if not, to either the permanent guardianship of the department or a licensed child welfare agency. The court may award sole custody of the child to a non-abusing battered parent. If the court shall so find, then in fixing its dispositional order the court shall consider the following factors: (A) The child's need for continuity of care and caretakers; (B) the amount of time required for the child to be integrated into a stable and permanent home environment; and (C) other factors as the court considers necessary and proper. Notwithstanding any other provision of this article, the court shall give consideration to the wishes of a child fourteen years of age or older or otherwise of an age of discretion as determined by the court regarding the permanent termination of parental rights. No adoption of a child shall take place until all proceedings for termination of parental rights under this article and appeals thereof are final. In determining whether or not parental rights should be terminated, the court shall consider the efforts made by the department to provide remedial and reunification services to the parent. The court order shall state: (i) That continuation in the home is not in the best interest of the child and why; (ii) why reunification is not in the best interests of the child; (iii) whether or not the department made reasonable efforts, with the child's health and safety being the paramount concern, to preserve the family, or some portion thereof, and to prevent the placement or to eliminate the need for removing the child from the child's home and to make it possible for the child to safely return home, or that the emergency situation made such efforts unreasonable or impossible; and (iv) whether or not the department made reasonable efforts to preserve and reunify the family, or some portion thereof, including a description of what efforts were made or that such efforts were unreasonable due to specific circumstances.
(7) For purposes of the court's consideration of the disposition custody of a child pursuant to the provisions of this subsection, the department is not required to make reasonable efforts to preserve the family if the court determines:
(A) The parent has subjected the child, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent to aggravated circumstances which include, but are not limited to, abandonment, torture, chronic abuse and sexual abuse;
(B) The parent has:
(i) Committed murder of the child's other parent, another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent;
(ii) Committed voluntary manslaughter of the child's other parent, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent;
(iii) Attempted or conspired to commit such a murder or voluntary manslaughter or been an accessory before or after the fact to either such crime; or
(iv) Committed a felonious assault that results in serious bodily injury to the child,
or the child's other parent, to another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent; or
(C) The parental rights of the parent to a sibling another child have been terminated involuntarily.
(b) As used in this section, 'no reasonable likelihood that conditions of neglect or abuse can be substantially corrected' shall mean that, based upon the evidence before the court, the abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or with help. Such conditions shall be considered to exist in the following circumstances, which shall not be exclusive:
(1) The abusing parent or parents have habitually abused or are addicted to alcohol, controlled substances or drugs, to the extent that proper parenting skills have been seriously impaired and such person or persons have not responded to or followed through the recommended and appropriate treatment which could have improved the capacity for adequate parental functioning;
(2) The abusing parent or parents have willfully refused or are presently unwilling to cooperate in the development of a reasonable family case plan designed to lead to the child's return to their care, custody and control;
(3) The abusing parent or parents have not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child, as evidenced by the continuation or insubstantial diminution of conditions which threatened the health, welfare or life of the child;
(4) The abusing parent or parents have abandoned the child;
(5) The abusing parent or parents have repeatedly or seriously injured the child physically or emotionally, or have sexually abused or sexually exploited the child, and the degree of family stress and the potential for further abuse and neglect are so great as to preclude the use of resources to mitigate or resolve family problems or assist the abusing parent or parents in fulfilling their responsibilities to the child; or
(6) The abusing parent or parents have incurred emotional illness, mental illness or mental deficiency of such duration or nature as to render such parent or parents incapable of exercising proper parenting skills or sufficiently improving the adequacy of such skills; or
(7) The battered parent's parenting skills have been seriously impaired and said person has willfully refused or is presently unwilling or unable to cooperate in the development of a reasonable treatment plan or has not adequately responded to or followed through with the recommended and appropriate treatment plan.
(c) The court may, as an alternative disposition, allow the parents or custodians an improvement period not to exceed six months. During this period the court shall require the parent to rectify the conditions upon which the determination was based. The court may order the child to be placed with the parents, or any person found to be a fit and proper person, for the temporary care of the child during the period. At the end of the period, the court shall hold a hearing to determine whether the conditions have been adequately improved and at the conclusion of the hearing shall make a further dispositional order in accordance with this section.
§49-6-5b. When efforts to terminate parental rights required.
(a) Except as provided in subsection (b) of this section, the department shall file or join in a petition or otherwise seek a ruling in any pending proceeding to terminate parental rights:
(1) If a child has been in foster care for fifteen of the most recent twenty-two months as determined by the earlier of the date of the first judicial finding that the child is subjected to abuse or neglect or the date which is sixty days after the child is removed from the home;
(2) If a court has determined the child is abandoned; or
(3) If a court has determined the parent has committed murder or voluntary manslaughter of another of his or her children or the other parent of his or her children; has attempted or conspired to commit such murder or voluntary manslaughter or has been an accessory before or after the fact of either crime; has committed unlawful or malicious wounding resulting in serious bodily injury to the child or to another of his or her children or to the other parent of his or her children; or the parental rights of the parent to a sibling have been terminated involuntarily.
(b) The department may determine not to file a petition to terminate parental rights when:
(1) At the option of the department, the child has been placed with a relative;
(2) The department has documented in the case plan made available for court review a compelling reason, including, but not limited to, the child's age and preference regarding termination or the child's placement in custody of the department based on any proceedings initiated under article five of this chapter, that filing the petition would not be in the best interests of the child; or
(3) The department has not provided, when reasonable efforts to return a child to the family are required, the services to the child's family as the department deems necessary for the safe return of the child to the home."
And,

By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4694 - "A Bill to amend §49-1-3, §49-6-2, §49-5-3, §49-6-5 and §49-6- 5b of the Code of West Virginia, 1931, as amended, all relating to abuse and neglect of children; definition of battered parent; consideration of factors associated with a battered parent in abuse and neglect cases; petition to court; battered parent entitled to an attorney; court determination of battered parent; providing treatment and assistance for battered parent; consideration of acts or attempted acts of murder, voluntary manslaughter or unlawful or malicious wounding with serious injury by one parent against other parent in abuse and neglect cases; considering aggravating circumstances of abuse, neglect or violent acts of parent in temporary and permanent custody determinations when such acts are committed against the other parent; considering aggravating circumstances of abuse, neglect or violent acts of parent in temporary and permanent custody determinations when such acts are committed or against other children in the household or other children under the parent's care or custody; relating to the department's obligation to attempt to preserve the family when such aggravating circumstances exist; and definitions."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 549), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4694) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
Com. Sub. for H. B. 4790, Prescribing and modifying the duties of the Secretary of the Department of Health and Human Resources in child welfare placement.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
H. B. 4792, Authorizing the purchasing of certain services from a bank or trust company or an affiliate of a bank or trust company.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed.
The House of Delegates next proceeded to take up consideration of a message received from

the Senate on yesterday, as to
H. B. 4854, Expert opinions of licensed psychologists in the treatment and evaluation of children and taking testimony of child witnesses.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill
was then postponed.
Unfinished Business

H. R. 16, Acknowledging the intrinsic value of Happy Retreat as a historical landmark; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
The following resolutions, coming up in regular order, as unfinished business, were reported by the Clerk and adopted:
H. C. R. 65, Urging the President and Congress to develop and implement a quality affordable health care policy for all Americans,
H. C. R. 72, Interim study, retail liquor sales on Sunday,
H. C. R. 93, Requesting the Governor to proclaim the fourth Friday of April each year as "Children's Memorial Flag Day",
And,
H. C. R. 95, Interim study on the regulation of all-terrrain vehicles and the impact of recent safety legislation.
Delegate Frich requested to be recorded as having voted "Nay" on H. C. R. 72.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Third Reading

Com. Sub. for H. B. 4013, Budget Bill, making appropriations of public money out of the Treasury in accordance with Section 51, Article VI of the Constitution; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed.
Com. Sub. for S. B. 205, Relating to sex offender registry; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page five, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof, the following language:
"That §15-12-2a and §15-12-3a of the Code of West Virginia, 1931, as amended, be repealed; that §15-12-2, §15-12-3, §15-12-4, §15-12-5, §15-12-8, §15-12-9 and §15-12-10 of said code be amended and reenacted; that said code be amended by adding thereto two new sections, designated §15-12-6a and §15-12-11; that said code be amended by adding thereto twenty-two new sections, designated §15-13-1, §15-13-2, §15-13-3, §15-13-4, §15-13-5, §15-13-6, §15-13-7, §15-13-8, §15- 13-9, §15-13-10, §15-13-11, §15-13-12, §15-13-13, §15-13-14, §15-13-15, §15-13-16, §15-13-17, §15-13-18, §15-13-19, §15-13-20, §15-13-21 and §15-13-22; that §17B-2-3 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18A-3-12; that §61-8B-3 and §61-8B-7 of said code be amended and reenacted; that said code be amended by adding thereto three new sections, designated §61-8B-3a, §61-8B-7a and §61-8B-9a; that §62-12-2 and §62-12-26 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §62-12-27, all to read as follows:
ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§15-12-2. Registration.
(a) The provisions of this article apply both retroactively and prospectively.
(b) Any person who has been convicted of an offense or an attempted offense or has been found not guilty by reason of mental illness, mental retardation or addiction of an offense under any of the following provisions of chapter sixty-one of this code or under a statutory provision of another state, the United States Code or the Uniform Code of Military Justice which requires proof of the same essential elements shall register as set forth in subsection (d) of this section and according to the internal management rules promulgated by the superintendent under authority of section twenty- five, article two of this chapter:
(1) Article eight-b, including the provisions of former section six of said article, relating to the offense of sexual assault of a spouse, which was repealed by an act of the Legislature during the year two thousand legislative session;
(2) Article eight-c;
(3) Sections five and six, article eight-d;

(4) Section fourteen, article two; or

(5) Sections six, seven, twelve and thirteen, article eight.

(c) Any person who has been convicted of a criminal offense and the sentencing judge made a written finding that the offense was sexually motivated shall also register as set forth in this article.
(d) Persons required to register under the provisions of this article shall register at the West Virginia State Police detachment in the county of his or her residence, in which he or she owns real property, place of employment, occupation, and school and/or training facility which he or she attends and, in doing so, provide or cooperate in providing, at a minimum, the following when registering:
(1) The full name of the registrant, including any aliases, nicknames or other names used by the registrant;
(2) The address where the registrant intends to reside or resides at the time of registration: Provided, That a post office box shall not be provided in lieu of a physical residential address; the name and address of the registrant's employer or place of occupation at the time of registration, the names and addresses of any anticipated future employers or places of occupation, the name and address of any school or training facility the registrant is attending at the time of registration and the names and addresses of any schools or training facilities the registrant expects to attend.
(3) The registrant's social security number;
(4) A full-face photograph of the registrant at the time of registration;
(5) A brief description of the crime or crimes for which the registrant was convicted;
(6) Fingerprints;
(7) Information related to any motor vehicle, trailer or motor home owned or regularly operated by a registrant, including vehicle make, model, color, license plate number and vehicle identification number; and
(8) Information relating to any internet accounts the registrant has and the screen names, user names or aliases the registrant uses on the internet; and
(9) Information related to any telephone or electronic paging device numbers that the registrant uses, including, but not limited to, residential, work and mobile telephone numbers.
(e) (1) On the date that any person convicted or found not guilty by reason of mental illness, mental retardation or addiction of any of the crimes listed in subsection (b) of this section, hereinafter referred to as a 'qualifying offense', including those persons who are continuing under some post- conviction supervisory status, are released, granted probation or a suspended sentence, released on parole, probation, home detention, work release, conditional release or any other release from confinement, the Commissioner of Corrections, regional jail administrator, city or sheriff operating a jail or secretary of the Department of Health and Human Resources which releases the person, and any parole or probation officer who releases the person or supervises the person following the release, shall obtain all information required by subsection (d) of this section prior to the release of the person, inform the person of his or her duty to register and send written notice of the release of the person to the State Police within three business days of receiving the information. The notice must include the information required by said subsection. Any person having a duty to register for a qualifying offense shall register upon conviction, unless that person is confined or incarcerated, in which case he or she shall register within three business days of release, transfer or other change in disposition status.
(2) Any registration requirements required by this section do not apply to persons during periods of civil confinement pursuant to article thirteen of this chapter, except for those persons conditionally released to a less restrictive alternative pursuant to section thirteen, article thirteen of this chapter.
(3) Notwithstanding any provision of this article to the contrary, a court of this state shall, upon presiding over a criminal matter resulting in conviction of an offense requiring registration pursuant to the provisions of this article, cause, within seventy-two hours of the final order of conviction being entered, the transmittal for inclusion in the registry, all information required for registration by a registrant as well as the following non-identifying information regarding the victim or victims:
(1) His or her sex;
(2) His or her age at the time of the offense;
(3) The relationship, if any, between the victim and the perpetrator.
The provisions of this paragraph do not relieve a person required to register pursuant to this section from complying with any provision of this article.
(f) For any person determined to be a sexually violent predator, the notice required by subsection (d) of this section must also include:
(1) Identifying factors, including physical characteristics;
(2) History of the offense; and

(3) Documentation of any treatment received for the mental abnormality or personality disorder.
(g) At the time the person is convicted or found not guilty by reason of mental illness, mental retardation or addiction in a court of this state of the crimes set forth in subsection (b) of this section, the person shall sign in open court a statement acknowledging that he or she understands the requirements imposed by this article. The court shall inform the person so convicted of the requirements to register imposed by this article and shall further satisfy itself by interrogation of the defendant or his or her counsel that the defendant has received notice of the provisions of this article and that the defendant understands the provisions. The statement, when signed and witnessed, constitutes prima facie evidence that the person had knowledge of the requirements of this article. Upon completion of the statement, the court shall provide a copy to the registry as well as any documents relating to charges, conviction or sentencing. Persons who have not signed a statement under the provisions of this subsection and who are subject to the registration requirements of this article must be informed of the requirement by the state police whenever the state police obtain information that the person is subject to registration requirements.
(h) The state police shall maintain a central registry of all persons who register under this article and shall release information only as provided in this article. The information required to be made public by the state police by subdivision (2), subsection (b), section five of this article is to be accessible through the internet. No information relating to internet accounts, screen names, user names, or aliases or telephone or electronic paging device numbers a registrant has or uses may be released through the internet.
(I) For the purpose of this article, 'sexually violent offense' means:
(1) Sexual assault in the first degree as set forth in section three, article eight-b, chapter sixty- one of this code or of a similar provision in another state, federal or military jurisdiction;
(2) Sexual assault of a child as set forth in section three-a, article eight-b, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction;
(3)
Sexual assault in the second degree as set forth in section four, article eight-b, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction;
(3) (4) Sexual assault of a spouse as set forth in the former provisions of section six, article eight-b, chapter sixty-one of this code, which was repealed by an act of the Legislature during the two thousand legislative session, or of a similar provision in another state, federal or military jurisdiction;
(4) (5) Sexual abuse in the first degree as set forth in section seven, article eight-b, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction;
(6) Sexual abuse of a child as set forth in section seven-a, article eight-b, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction.
(7) Sexual abuse by a parent, guardian, custodian or person in a position of trust to a child as set forth in section five, article eight-D, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction;
(8) Incest as set forth in section twelve, article eight, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction;
(9) A felony offense that is comparable to a sexually violent offense as defined in subparagraphs (1) through (8) of this paragraph, or any federal or out-of-state conviction for a felony offense that under the laws of this state would be a sexually violent offense as defined in this subsection;
(10) any of the following provisions of chapter sixty-one of this code:
(A) section one, article two;
(B) section nine, article two;
(C) section ten, article two;
(D) section fourteen, article two;
(E) section twenty-eight, article two;
(F) section twenty-nine, article two;
(G) sections six and seven, article eight; or
(H) section eleven, article three,
if the act, either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to this article, has been determined beyond a reasonable doubt to have been sexually motivated, as that term is defined in subsection (j) of this section; or
(11) An act that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the felonies designated in subparagraphs (1) through (10).

(j) For purposes of this article, the term 'sexually motivated' or 'sexual motivation' means that one of the purposes for which a person committed the crime was for any persons' sexual gratification.
(k) For purposes of this article, the term 'sexually violent predator' means a person who has been convicted or found not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.
(l) For purposes of this article, the term 'mental abnormality' means a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.
(m) For purposes of this article, the term 'predatory act' means an act directed at a stranger or at a person with whom a relationship has been established or promoted for the primary purpose of victimization determined to be a sexually violent predator pursuant to article thirteen of this chapter.
(n) For the purposes of this article, the term 'business days', means days exclusive of Saturdays, Sundays and legal holidays as defined in section one, article two, chapter two of this code.
§15-12-3. Change in registry information.
(a) When any person required to register under this article changes his or her residence, address, place of employment or occupation, vehicle information required by section two of this article, or school or training facility which he or she is attending, or motor vehicle, trailer or motor home information required by section two of this article, or when any of the other information required by this article changes, he or she shall, within ten business days, inform the West Virginia State Police of the changes in the manner prescribed by the Superintendent of State Police in procedural rules promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.
(b) If a person who is required to register under the provisions of this article acquires real property within a county in this state, he or she must send written notice of the address of the property to the West Virginia State Police detachment in the county where the real property is located within ten days of acquiring the property.
§15-12-4. Duration.
(a) A person required to register under the terms of this article shall continue to comply with this section, except during ensuing periods of incarceration or confinement, until:
(1) Ten years have elapsed since the person was released from prison, jail or a mental health facility or ten years have elapsed since the person was placed on probation, parole or supervised or conditional release. The ten-year registration period shall not be reduced by the sex offender's release from probation, parole or supervised or conditional release; or
(2) For the life of that person if that person: (A) Has one or more prior convictions or has previously been found not guilty by reason of mental illness, mental retardation or addiction for any qualifying offense referred to in this article; or (B) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense as referred to in this article, and upon motion of the prosecuting attorney, the court finds by clear and convincing evidence, that the qualifying offense involved multiple victims or multiple violations of the qualifying offense; or (C) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense; or (D) has been determined pursuant to section two-a of this article thirteen of this chapter to be a sexually violent predator; or (E) has been convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense as referred to in this article, involving a minor.
(b) A person whose conviction is overturned for the offense which required them to register under this article shall, upon petition to the court, have their name removed from the registry.
§15-12-5. Distribution and disclosure of information; community information programs by prosecuting attorney and state police; petition to circuit court.

(a) Within five business days after receiving any notification as described in this article, the state police shall distribute a copy of the notification statement to:
(1) The supervisor of each county and municipal law-enforcement office and any campus police department in the city and county where the registrant resides, owns real property, is employed or attends school or a training facility;
(2) The county superintendent of schools in each county where the registrant resides, owns real property, is employed or attends school or a training facility;
(3) The child protective services office charged with investigating allegations of child abuse or neglect in the each county where the registrant resides, owns real property, is employed or attends school or a training facility;
(4) All community organizations or religious organizations which regularly provide services to youths in the each county where the registrant resides, owns real property, is employed or attends school or a training facility;
(5) Individuals and organizations which provide day care services for youths or day care, residential or respite care, or other supportive services for mentally or physically incapacitated or infirm persons in the each county where the registrant resides, owns real property, is employed or attends school or a training facility; and
(6) The Federal Bureau of Investigation (FBI).
(b) Information concerning persons whose names are contained in the sexual offender registry is not subject to the requirements of the West Virginia Freedom of Information Act, as set forth in chapter twenty-nine-b of this code, and may be disclosed and disseminated only as otherwise provided in this article and as follows:
(1) When a person has been determined to be a sexually violent predator under the terms of section two-a of this article thirteen of this chapter, the state police shall notify the prosecuting attorney of the county in which the person resides, owns real property, is employed or attends a school or training facility. The prosecuting attorney shall cooperate with the state police in conducting a community notification program which is to include publication of the offender's name, photograph, place of residence or location of real property owned by the offender, employment and education or training, as well as information concerning the legal rights and obligations of both the offender and the community. Information relating to the victim of an offense requiring registration may not be released to the public except to the extent the prosecuting attorney and the state police consider it necessary to best educate the public as to the nature of sexual offenses: Provided, That no victim's name may be released in any public notification pursuant to this subsection. No information relating to internet accounts, screen names, user names, or aliases or telephone or electronic paging device numbers a registrant has or uses may be released to the public with this notification program. The prosecuting attorney and State Police may conduct a community notification program in the county of residence, employment or where a person is attending school or a training facility of any person who is required to register for life under the terms of subdivision (2), subsection (a), section four of this article. Community notification may be repeated when determined to be appropriate by the prosecuting attorney;
(2) The state police shall maintain and make available to the public at least quarterly the list of all persons who are required to register for life according to the terms of subdivision (2), subsection (a), section four of this article. No information concerning the identity of a victim of an offense requiring registration or information relating to internet accounts, screen names, user names, or aliases or telephone or electronic paging device numbers a registrant has or uses may be released with this list. The method of publication and access to this list are to be determined by the superintendent; and
(3) A resident of a county may petition the circuit court for an order requiring the state police to release information about persons residing or owning real property in that county who are required to register under section two of this article. The court shall determine whether information contained on the list is relevant to public safety and whether its relevance outweighs the importance of confidentiality. If the court orders information to be released, it may further order limitations upon secondary dissemination by the resident seeking the information. In no event may information concerning the identity of a victim of an offense requiring registration or information relating to internet accounts, screen names, user names or aliases a registrant has or uses be released.
(c) The state police may furnish information and documentation required in connection with the registration to authorized law enforcement, campus police and governmental agencies of the United States and its territories, of foreign countries duly authorized to receive the same, of other states within the United States and of the State of West Virginia upon proper request stating that the records will be used solely for law enforcement-related purposes. The state police may disclose information collected under this article to federal, state and local governmental agencies responsible for conducting pre-employment checks.
(d) An elected public official, public employee or public agency is immune from civil liability for damages arising out of any action relating to the provisions of this section except when the official, employee or agency acted with gross negligence or in bad faith.
§15-12-6a. Release of information to the Sexual Offender Registry.
Upon the request of the entity maintaining the Sexual Offender Registry, agencies in possession of records produced in conjunction with the investigation, prosecution, adjudication, incarceration, probation, parole, or pre-sentence review of a sex offender and/or any other records produced in conjunction with a sex offense shall provide those records to the entity maintaining the Sexual Offender Registry.
§15-12-8. Failure to register or provide notice of registration changes; penalty.

(a) Except as provided in this section, any person required to register under this article who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any information as required by this article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty dollars nor more than ten thousand dollars or imprisoned in the county or regional jail not more than one year, or both: Provided, That each Each time the a person has a change in any of the registration information as required by this article and knowingly fails to register the change or changes, each failure to register each separate item of information changed shall constitute a separate offense under this section.
(b) Any person required to register under this article who is convicted of a second or subsequent offense of failing to register or provide a change in any information as required by this article or any person who is required to register for life pursuant to subsection (2), subdivision (a), section four of this article and who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article or who knowingly fails to register or knowingly fails to provide a change in information as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Except as provided in this section, any person required to register for ten years or less pursuant to subdivision (1), subsection (a), section four of this article who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any information as required by this article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty dollars nor more than ten thousand dollars or confined in jail not more than one year, or both fined and imprisoned. Any person convicted of a second offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Any person convicted of a third or subsequent offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than five years nor more than twenty- five years.
(c) Any person required to register as a sexual predator who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article or who knowingly fails to register or knowingly fails to provide a change in any information as required by this article is guilty of a felony and, upon conviction thereof, shall, for a first offense, be confined in a state correctional facility not less than two years nor more than ten years and for a second or subsequent offense, is guilty of a felony and shall be confined in a state correctional facility not less than five years nor more than twenty years. Any person required to register for life pursuant to this article who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any information as required by this article, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Any person convicted of a second or subsequent offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than ten years nor more than twenty-five years.
(d) In addition to any other penalty specified for failure to register under this article, any person under the supervision of a probation officer, parole officer or any other sanction short of confinement in jail or prison who knowingly refuses to register or who knowingly fails to provide a change in information as required by this article shall be subject to immediate revocation of probation or parole and returned to confinement for the remainder of any suspended or unserved portion of his or her original sentence. Any person required to register pursuant to section nine of this article who is convicted of failing to register as required by this article and who knowingly avoids registration or who knowingly fails to register as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Any person required to register pursuant to section nine of this article who is convicted of a second or subsequent offense of failing to register as required by this article and who knowingly avoids registration or who knowingly fails to register as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than ten years nor more than twenty-five years.
(e) In addition to any other penalty specified for failure to register under this article, any person under the supervision of a probation officer, parole officer or any other sanction short of confinement in a jail, correctional facility or special commitment facility pursuant to article thirteen of this chapter, who knowingly refuses to register or who knowingly fails to provide a change in information as required by this article shall be subject to immediate revocation of probation or parole and returned to confinement for the remainder of any suspended or unserved portion of his or her original sentence.
§ 15-12-9. Registration of out-of-state offenders.
(a) When any probation or parole officer accepts supervision of and has legal authority over any person required to register under this article from another state under the terms and conditions of the uniform act for out-of-state parolee supervision established under article six, chapter twenty-eight of this code, the officer shall give the person written notice of the registration requirements of this section and obtain a signed statement from the person required to register acknowledging the receipt of the notice. The officer shall obtain and submit to the state police the information required in subsection (d), section two of this article.
(b) Any person:
(1) Who resides in another state or federal or military jurisdiction;
(2) Who is employed, carries on a vocation, is a student in this state or is a visitor to this state for a period of more than fifteen continuous days; and
(3) Who is required by the state, federal or military jurisdiction in which he or she resides to register in that state, federal or military jurisdiction as a sex offender, or has been convicted of a violation in that state, federal or military jurisdiction that is similar to a violation in this article requiring registration as a sex offender in this state, shall register in this state and otherwise comply with the provisions of this article.
(c) Any person acquiring real property in this state or changing residence to this state from another state or federal or military jurisdiction who is required to register as a sex offender under the laws of that state or federal or military jurisdiction shall register as a sex offender in this state.
§15-12-10. Address verification.
The State Police shall verify addresses of those persons registered as sexually violent predators every ninety days and all other registered persons once a year. The State Police may require registrants to periodically submit to new fingerprints and photographs as part of the verification process. The method of verification shall be in accordance with internal management rules pertaining thereto promulgated by the superintendent under authority of section twenty-five, article two, chapter fifteen of this code. All registrants, including those for whom there has been no change in registration information since their initial registration or previous address verification, must respond to all verification inquiries or requests made by the State Police pursuant to this section.
§15-12-11. Additional penalties.
A person commits a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty dollars nor more than ten thousand dollars or imprisoned in jail not more than one year, or both fined and imprisoned, when he or she:
(1) Knows that a sexual offender required to register under this article is not complying, or has not complied, with the registration requirements of this article; and
(2) Intends to assist the sexual offender in eluding a law-enforcement agency seeking to find said sexual offender to question the sexual offender about, or to arrest the sexual offender for, his or her noncompliance with the requirements of this article; and withholds information from the law- enforcement agency about the sexual offender's non-compliance with requirements of this article while aware of the whereabouts of the sexual offender or provides information to the law- enforcement agency regarding the sexual offender that he or she knows to be false.
ARTICLE 13. SEXUALLY VIOLENT PREDATOR ACT.
§15-13-1. Legislative Findings.
The Legislature finds:
(1) That a small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for the existing involuntary treatment pursuant to article five, chapter twenty-seven of this Code, which is intended to be a short-term civil commitment system that is primarily designed to provide short-term treatment to individuals with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment under article five, chapter twenty-seven of this Code, sexually violent predators generally have personality disorders and/or mental abnormalities which are unamenable to existing mental illness treatment modalities and those conditions render them likely to engage in sexually violent behavior.
(2) That sex offenders' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment act, article five, chapter twenty-seven of this Code, is inadequate to address the risk to re-offend because during confinement these offenders do not have access to potential victims and therefore they will not engage in an overt act during confinement as required by the involuntary treatment act for continued confinement.
(3) That the prognosis for curing sexually violent offenders is poor, the treatment needs of this population are very long term, and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the involuntary treatment act.
§15-13-2 Definitions.
Unless the context clearly requires otherwise, the definitions in this section apply throughout this article:
(1) 'Department' means the Department of Health and Human Resources.
(2) 'Escort' means a correctional officer or other person approved by the superintendent of the facility or the superintendent's designee to accompany a resident on a leave of absence and be in visual or auditory contact with the resident at all times.
(3) 'Escorted leave' means a leave of absence from a facility housing persons detained or committed pursuant to this article under the continuous supervision of an escort.
(4) 'Less restrictive alternative' means court-ordered treatment in a setting less restrictive than total confinement which satisfies the conditions set forth in section eleven of this article.
(5) 'Likely to engage in predatory acts of sexual violence if not confined in a secure facility' means that the person more probably than not will engage in such acts if released unconditionally from detention on the sexually violent predator petition. Such likelihood must be evidenced by a recent overt act if the person is not totally confined at the time the petition is filed under section four of this article.
(6) 'Mental abnormality' means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of others.
(7) 'Predatory' means acts directed towards: (a) Strangers; (b) individuals with whom a relationship has been established or promoted for the primary purpose of victimization; or (c) persons of casual acquaintance with whom no substantial personal relationship exists.
(8) 'Recent overt act' means any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act.
(9) 'Resident' means a person detained or committed pursuant to this article.
(10) 'Risk potential activity' or 'risk potential facility' means an activity or facility that provides a higher incidence of risk to the public from persons conditionally released from the secure facility. Risk potential activities and facilities include: Public and private schools, school bus stops, licensed day care and licensed preschool facilities, public parks, publicly dedicated trails, sports fields, playgrounds, recreational and community centers, churches, synagogues, temples, mosques, public libraries, and public and private youth camps. For purposes of this article, 'school bus stops' does not include bus stops established primarily for public transit.
(11) 'Secretary' means the Secretary of the Department of Health and Human Resources or the Secretary's designee.
(12) 'Secure facility' means a residential facility for persons civilly confined under the provisions of this article that includes security measures sufficient to protect the community. Such facilities include total confinement facilities, and any residence used as a court-ordered placement under section eleven of this article.
(13) 'Sexual motivation' or 'sexually motivated' means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification.
(14) 'Sexually violent offense' means an act that is defined in:
(a) Sexual assault in the first degree as set forth in section three, article eight-b, chapter sixty- one of this code or of a similar provision in another state, federal or military jurisdiction;
(b) Sexual assault of a child as set forth in section three-a, article eight-b, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction;
(c) Sexual assault in the second degree as set forth in section four, article eight-b, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction;
(d) Sexual assault of a spouse as set forth in the former provisions of section six, article eight- b, chapter sixty-one of this code, which was repealed by an act of the Legislature during the two thousand legislative session, or of a similar provision in another state, federal or military jurisdiction;
(e) Sexual abuse in the first degree as set forth in section seven, article eight-b, chapter sixty- one of this code or of a similar provision in another state, federal or military jurisdiction;
(f) Sexual abuse of a child as set forth in section seven-a, article eight-b, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction.
(g) Sexual abuse by a parent, guardian, custodian or person in a position of trust to a child as set forth in section five, article eight-D, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction;
(h) Incest as set forth in section twelve, article eight, chapter sixty-one of this code or of a similar provision in another state, federal or military jurisdiction;
(I) A felony offense that is comparable to a sexually violent offense as defined in subparagraphs (a) through (h) of this paragraph, or any federal or out-of-state conviction for a felony offense that under the laws of this state would be a sexually violent offense as defined in this subsection;
(j) any of the following provisions of chapter sixty-one of this code:
(I) section one, article two;
(ii) section nine, article two;
(iii) section ten, article two;
(iv) section fourteen, article two;
(v) section twenty-eight, article two;
(vi) section twenty-nine, article two;
(vii) sections six and seven, article eight; or
(viii) section eleven, article three,
if the act, either at the time of sentencing for the offense or subsequently during civil commitment proceedings pursuant to this article, has been determined beyond a reasonable doubt to have been sexually motivated, as that term is defined in paragraph thirteen of this section; or
(k) An act that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the felonies designated in subparagraphs (a) through (j).
(15) 'Sexually violent predator' means any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.
(16) 'Total confinement facility' means a secure facility that provides supervision and sex offender treatment services in a total confinement setting. Total confinement facilities include a special commitment center or any facility designated as a total confinement facility by the secretary.
§15-13-3. Notice to prosecuting attorney prior to release.
(a)(1) An agency with jurisdiction shall refer, in writing, each person convicted of a sexually violent offense to the prosecuting attorney of the county where that person was charged, three months prior to:
(I) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense: Provided, That if the anticipated release is by the Parole Board, than the agency with jurisdiction may delay the release of said offender who has been granted parole for up to three months in order to notify a prosecuting attorney who has requested in writing the referral of that offender;
(ii) The anticipated release from total confinement of a person found to have committed a sexually violent offense as a juvenile;
(iii) Release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial pursuant to section four, article six, chapter twenty- seven of the Code; or
(iv) Release of a person who has been found not guilty by reason of insanity of a sexually violent offense pursuant to section four, article six-A, chapter twenty-seven of the Code.
(2) The agency shall provide the prosecutor with all relevant information including, but not limited to, the following information:
(I) A complete copy of the institutional records compiled by the Division of Corrections relating to the person, and any such out-of-state Division of Corrections' records, if available;
(ii) All records relating to the psychological or psychiatric evaluation and/or treatment of the person; and
(iii) The most recent mental health evaluation or mental health records review.
(b) The agency with jurisdiction, its employees, and officials shall be immune from liability for any good-faith conduct under this section.
(c) As used in this section, 'agency with jurisdiction' means that agency with the authority to direct the release of a person serving a sentence or term of confinement and includes the Division of Corrections, the West Virginia Parole Board, the Regional Jail and Correctional Facility Authority and the Department of Health and Human Resources.
§15-13-4. Sexually violent predator petition - Filing.
When it appears that:
(1) (A) A person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement;
(B) A person found to have committed a sexually violent offense as a juvenile is about to be released from total confinement;
(C) A person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial is about to be released, or has been released pursuant to section four, article six-A, chapter twenty-seven of the Code;
(D) A person who has been found not guilty by reason of insanity of a sexually violent offense is about to be released, pursuant to section four, article six-A, chapter twenty-seven of the Code; or
(E) A person who at any time previously has been convicted of a sexually violent offense and has since been released from total confinement and has committed a recent overt act; and
(2) It appears that the person may be a sexually violent predator, the prosecuting attorney of the county where the person was convicted or charged may file a petition in the circuit court alleging that the person is a 'sexually violent predator' and stating sufficient facts to support such allegation.
§15-13-5. Sexually violent predator petition - Probable cause hearing - Judicial determination - Transfer for evaluation.
(a) Upon the filing of a petition under section four of this article, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If such determination is made the judge shall direct that the person be taken into custody.
(b) Within seventy-two hours after a person is taken into custody pursuant to subsection (a) of this section, the court shall provide the person with notice of, and an opportunity to appear in person, at a hearing to contest probable cause as to whether the person is a sexually violent predator. At this hearing, the court shall:
(1) verify the person's identity; and
(2) determine whether probable cause exists to believe that the person is a sexually violent predator.
At the probable cause hearing, the State may rely upon the petition and certification for determination of probable cause filed pursuant to section four of this article. The State may supplement this with additional documentary evidence or live testimony.
(c) At the probable cause hearing, the person shall have the following rights in addition to the rights previously specified: (1) to be represented by counsel; (2) to present evidence on his or her behalf; (3) to cross-examine witnesses who testify against him or her; and (4) to view and copy all petitions and reports in the court file.
(d) If the judge finds that probable cause exists that the person is a sexually violent predator, the judge shall direct that the person be transferred to an appropriate facility for an evaluation as to whether the person is a sexually violent predator. The evaluation shall be conducted by a person deemed to be professionally qualified to conduct such an examination pursuant to rules developed by the Department. In adopting such rules, the Department shall consult with the Bureau for Public Health and the Division of Corrections. In no event shall the person be released from confinement prior to trial. A witness called by either party shall be permitted to testify by telephone.
§15-13-6. Trial - Rights of parties.
(a) Within forty-five days after a determination of probable cause pursuant to section five of this article, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced. At all stages of the proceedings under this article, any person subject to this article shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist him or her. The person shall be confined in a secure facility for the duration of the trial.
(b) Whenever any person is subjected to an examination under this article, he or she may retain experts or professional persons to perform an examination on their behalf. When the person wishes to be examined by a qualified expert or professional person of his or her own choice, such examiner shall be permitted to have reasonable access to the person for the purpose of such examination, as well as to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf.
§15-13-7. Trial - Determination - Commitment procedures.
(a) The court shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. In determining whether or not the person would be likely to engage in predatory acts of sexual violence if not confined in a secure facility, the fact finder may consider only placement conditions and voluntary treatment options that would exist for the person if unconditionally released from detention on the sexually violent predator petition.
(1) If, on the date that the petition is filed, the person was living in the community after release from custody, the state must also prove beyond a reasonable doubt that the person had committed a recent overt act. If the state alleges that the prior sexually violent offense that forms the basis for the petition for commitment was an act that was sexually motivated, the state must prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated.
(2) If the court determines that the person is a sexually violent predator, the person shall be committed to the custody of the Department for placement in a secure facility operated by the Department for control, care, and treatment until such time as: (I) The person's condition has so changed that the person no longer meets the definition of a sexually violent predator; or (ii) conditional release to a less restrictive alternative as set forth in section eleven of this article is in the best interest of the person and conditions can be imposed that would adequately protect the community.
(3) If the court decides that the state has not met its burden of proving that the person is a sexually violent predator, the court shall direct the person's release.
(b) If the person charged with a sexually violent offense has been found incompetent to stand trial, and is about to or has been released pursuant to section four, article six-A, chapter twenty-seven of the Code, and his or her commitment is sought pursuant to subsection (a) of this section, the court shall first hear evidence and determine whether the person did commit the act or acts charged if the court did not enter a finding prior to dismissal under section four, article six-A, chapter twenty-seven of the Code that the person committed the act or acts charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall apply. After hearing evidence on this issue, the court shall make specific findings on whether the person did commit the act or acts charged, the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on his or her own behalf, the extent to which the evidence could be reconstructed without the assistance of the person, and the strength of the prosecution's case. If, after the conclusion of the hearing on this issue, the court finds, beyond a reasonable doubt, that the person did commit the act or acts charged, it shall enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this section.
(c) A court has jurisdiction to order a less restrictive alternative placement only after a hearing ordered pursuant to section ten of this article following initial commitment under this section and in accord with the provisions of this article.
§15-13-8. Annual examinations of persons committed under article.
Each person committed under this article shall have a current examination of his or her mental condition made by the Department at least once every year. The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that would adequately protect the community. The Department shall file this periodic report with the court that committed the person under this article. The report shall be in the form of a declaration or certification in compliance with the requirements of section ten-a, article one, chapter thirty-nine of the Code and shall be prepared by a professionally qualified person as defined by rules adopted by the secretary. A copy of the report shall be served on the office of the prosecuting attorney involved in the initial commitment and upon the committed person and his or her counsel. The committed person may retain, or if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her, and such expert or professional person shall have access to all records concerning the person.
§15-13-9. Rights of persons committed.
(a) Any person subjected to restricted liberty as a sexually violent predator pursuant to this article shall not forfeit any legal right or suffer any legal disability as a consequence of any actions taken or orders made, other than as specifically provided in this article.
(b) Any person committed pursuant to this article shall be provided adequate care and individualized treatment. The Department shall keep records detailing all medical, expert, and professional care and treatment received by a committed person, and shall keep copies of all reports of periodic examinations made pursuant to this article. All such records and reports shall be made available upon request only to: The committed person, his or her attorney, the prosecuting attorney, the court, a protection and advocacy agency or another expert or professional person who, upon proper showing, demonstrates a need for access to such records.
(c) At the time a person is taken into custody or transferred into a facility pursuant to a petition under this article, the person in charge of such facility or his or her designee shall take reasonable precautions to inventory and safeguard the personal property of the persons detained or transferred. A copy of the inventory, signed by the staff member making it, shall be given to the person detained and shall, in addition, be open to inspection to any responsible relative, subject to limitations, if any, specifically imposed by the detained person. For purposes of this subsection, 'responsible relative' includes the guardian, conservator, attorney, spouse, parent, adult child, or adult brother or sister of the person. The facility shall not disclose the contents of the inventory to any other person without consent of the patient or order of the court.
(d) Nothing in this article prohibits a person presently committed from exercising a right presently available to him or her for the purpose of obtaining release from confinement, including the right to petition for a writ of habeas corpus.
§15-13-10. Petition for conditional release to less restrictive alternative or unconditional discharge - Procedures.
(a) If the secretary determines that the person's condition has so changed that either: (a) the person no longer meets the definition of a sexually violent predator; or (b) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the secretary shall authorize the person to petition the court for conditional release to a less restrictive alternative or unconditional discharge. The petition shall be filed with the court and served upon the prosecuting attorney responsible for the initial commitment. The court, upon receipt of the petition for conditional release to a less restrictive alternative or unconditional discharge, shall within forty-five days order a hearing.
(b)(1) Nothing contained in this article shall prohibit the person from otherwise petitioning the court for conditional release to a less restrictive alternative or unconditional discharge without the secretary's approval. The secretary shall provide the committed person with an annual written notice of the person's right to petition the court for conditional release to a less restrictive alternative or unconditional discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall file the notice and waiver form and the annual report with the court. If the person does not affirmatively waive the right to petition, the court shall set a show cause hearing to determine whether probable cause exists to warrant a hearing on whether the person's condition has so changed that: (I) he or she no longer meets the definition of a sexually violent predator; or (ii) conditional release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community.
(2) The committed person shall have a right to have an attorney represent him or her at the show cause hearing, which may be conducted solely on the basis of affidavits or declarations, but the person is not entitled to be present at the show cause hearing. At the show cause hearing, the prosecuting attorney or attorney general shall present prima facie evidence establishing that the committed person continues to meet the definition of a sexually violent predator and that a less restrictive alternative is not in the best interest of the person and conditions cannot be imposed that adequately protect the community. In making this showing, the state may rely exclusively upon the annual report prepared pursuant to section eight of this article. The committed person may present responsive affidavits or declarations to which the state may reply.
(3) If the court at the show cause hearing determines that either: (I) The state has failed to present prima facie evidence that (A) the committed person continues to meet the definition of a sexually violent predator; or (B) release to a less restrictive alternative is not in the best interest of the person and conditions cannot be imposed that would adequately protect the community; or (ii) probable cause exists to believe that the person's condition has so changed that: (A) The person no longer meets the definition of a sexually violent predator; or (B) release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community, then the court shall set a hearing on either or both issues.
(4) If the court has not previously considered the issue of release to a less restrictive alternative, either through a trial on the merits or through the procedures set forth in subsection (a), section twelve of this article, the court shall consider whether release to a less restrictive alternative would be in the best interests of the person and conditions can be imposed that would adequately protect the community, without considering whether the person's condition has changed.
(c)(1) At the hearing resulting from subsection (a) or (b) of this section, the committed person shall be entitled to be present and have the benefit of all constitutional protections that were afforded to the person at the initial commitment proceeding. The prosecuting agency shall represent the state and shall have the right to have the committed person evaluated by experts chosen by the state. The committed person shall also have the right to have experts evaluate him or her on his or her behalf and the court shall appoint an expert if the person is indigent and requests an appointment.
(2) If the issue at the hearing is whether the person should be unconditionally discharged, the burden of proof shall be upon the state to prove beyond a reasonable doubt that the committed person's condition remains such that the person continues to meet the definition of a sexually violent predator. Evidence of the prior commitment trial and disposition is admissible.
(3) If the issue at the hearing is whether the person should be conditionally released to a less restrictive alternative, the burden of proof at the hearing shall be upon the state to prove beyond a reasonable doubt that conditional release to any proposed less restrictive alternative either: (I) is not in the best interest of the committed person; or (ii) does not include conditions that would adequately protect the community. Evidence of the prior commitment trial and disposition is admissible.
(d)(1) Probable cause exists to believe that a person's condition has 'so changed,' under subsection (b) of this section, only when evidence exists, since the person's last commitment trial proceeding, of a substantial change in the person's physical or mental condition such that the person either no longer meets the definition of a sexually violent predator or that a conditional release to a less restrictive alternative is in the person's best interest and conditions can be imposed to adequately protect the community.
(2) A new trial proceeding under subsection (c) of this section may be ordered, or held, only when there is current evidence from a licensed professional of one of the following and the evidence presents a change in condition since the person's last commitment trial proceeding:
(I) An identified physiological change to the person, such as paralysis, stroke, or dementia, that renders the committed person unable to commit a sexually violent act and this change is permanent; or
(ii) A change in the person's mental condition brought about through positive response to continuing participation in treatment which indicates that the person meets the standard for conditional release to a less restrictive alternative or that the person would be safe to be at-large if unconditionally released from commitment.
(3) For purposes of this section, a change in a single demographic factor, without more, does not establish probable cause for a new trial proceeding under subsection (c) of this section. As used in this section, a single demographic factor includes, but is not limited to, a change in the chronological age, marital status, or gender of the committed person.
(e) The jurisdiction of the court over a person civilly committed pursuant to this article continues until such time as the person is unconditionally discharged.
§15-13-11. Conditional release to less restrictive alternative - Findings.
Before the court may enter an order directing conditional release to a less restrictive alternative, it must find the following:
(1) The person will be treated by a treatment provider who is qualified to provide such treatment in the state of West Virginia;
(2) the treatment provider has presented a specific course of treatment and has agreed to assume responsibility for such treatment and will report progress to the court on a regular basis, and will report violations immediately to the court, the prosecutor, and the county probation officer;
(3) housing exists that is sufficiently secure to protect the community, and the person or agency providing housing to the conditionally released person has agreed in writing to accept the person, to provide the level of security required by the court, and immediately to report to the court, the prosecutor, and the supervising probation officer if the person leaves the housing to which he or she has been assigned without authorization;
(4) the person is willing to comply with the treatment provider and all requirements imposed by the treatment provider and by the court; and
(5) the person is willing to comply with supervision requirements imposed by the division of corrections.
§15-13-12. Conditional release to less restrictive alternative - Verdict.
(a) Upon the conclusion of the evidence in a hearing held pursuant to section ten of this article or through summary judgment proceedings prior to such a hearing, if the court finds that there is no legally sufficient evidentiary basis to find that the conditions set forth in section eleven of this article have been met, the court shall grant a motion by the state for a judgment as a matter of law on the issue of conditional release to a less restrictive alternative.
§15-13-13. Conditional release to less restrictive alternative - Judgment - Conditions - Annual review.
(a) If the court determines that conditional release to a less restrictive alternative is in the best interest of the person and includes conditions that would adequately protect the community, and the court determines that the minimum conditions set forth in section eleven of this article and in this section are met, the court shall enter judgment and direct a conditional release.
(b) The court shall impose any additional conditions necessary to ensure compliance with treatment and to protect the community. If the court finds that conditions do not exist that will both ensure the person's compliance with treatment and protect the community, then the person shall be remanded to the custody of the Department for control, care, and treatment in a secure facility as designated in subsection (a), section seven of this article.
(c) If the service provider designated by the court to provide inpatient or outpatient treatment or to monitor or supervise any other terms and conditions of a person's placement in a less restrictive alternative is other than the Department or the division of corrections, then the service provider so designated must agree in writing to provide such treatment, monitoring, or supervision in accord with this section. Any person providing or agreeing to provide treatment, monitoring, or supervision services pursuant to this article may be compelled to testify and any privilege with regard to such person's testimony is deemed waived.
(d) Prior to authorizing any release to a less restrictive alternative, the court shall impose such conditions upon the person as are necessary to ensure the safety of the community. The court shall order the division of corrections to investigate the less restrictive alternative and recommend any additional conditions to the court. These conditions shall include, but are not limited to the following: Specification of residence, prohibition of contact with potential or past victims, prohibition of alcohol and other drug use, participation in a specific course of inpatient or outpatient treatment that may include monitoring by the use of polygraph and plethysmograph, supervision by a probation officer, a requirement that the person remain within the state unless the person receives prior authorization by the court, and any other conditions that the court determines are in the best interest of the person or others. A copy of the conditions of release shall be given to the person and to any designated service providers.
(e) Any service provider designated to provide inpatient or outpatient treatment shall monthly, or as otherwise directed by the court, submit to the court, to the Department facility from which the person was released, to the prosecutor of the county in which the person was found to be a sexually violent predator, and to the supervising probation officer, a report stating whether the person is complying with the terms and conditions of the conditional release to a less restrictive alternative.
(f) Each person released to a less restrictive alternative shall have his or her case reviewed by the court that released him or her no later than one year after such release and annually thereafter until the person is unconditionally discharged. Review may occur in a shorter time or more frequently, if the court, in its discretion on its own motion, or on motion of the person, the secretary, or the prosecuting attorney so determines. The sole question to be determined by the court is whether the person shall continue to be conditionally released to a less restrictive alternative. The court in making its determination shall be aided by the periodic reports filed pursuant to subsection (e) of this section and the opinions of the secretary and other experts or professional persons.
§15-13-14. Conditional release to less restrictive alternative - Hearing on revocation or modification - Authority to apprehend conditionally released person.
(a) Any service provider submitting reports pursuant to subsection (e), section thirteen of this article, the supervising probation officer or the prosecuting attorney may petition the court, or the court on its own motion may schedule an immediate hearing, for the purpose of revoking or modifying the terms of the person's conditional release to a less restrictive alternative if the petitioner or the court believes the released person is not complying with the terms and conditions of his or her release or is in need of additional care, monitoring, supervision, or treatment.
(b) If the prosecuting attorney, the supervising probation officer, or the court, based upon information received by them, reasonably believes that a conditionally released person is not complying with the terms and conditions of his or her conditional release to a less restrictive alternative, the court or probation officer may order that the conditionally released person be apprehended and taken into custody until such time as a hearing can be scheduled to determine the facts and whether or not the person's conditional release should be revoked or modified. The court shall be notified before the close of the next judicial day of the person's apprehension. Both the prosecuting attorney and the conditionally released person shall have the right to request an immediate mental examination of the conditionally released person. If the conditionally released person is indigent, the court shall, upon request, assist him or her in obtaining a qualified expert or professional person to conduct the examination.
(c) The court, upon receiving notification of the person's apprehension, shall promptly schedule a hearing. The issue to be determined is whether the state has proven by a preponderance of the evidence that the conditionally released person did not comply with the terms and conditions of his or her release. Hearsay evidence is admissible if the court finds it otherwise reliable. At the hearing, the court shall determine whether the person shall continue to be conditionally released on the same or modified conditions or whether his or her conditional release shall be revoked and he or she shall be committed to total confinement, subject to release only in accordance with provisions of this article.
§15-13-15. Department of Health and Human Resources - Jurisdiction continues after criminal conviction - Exception.
A person subject to court order under the provisions of this article who is thereafter convicted of a criminal offense remains under the jurisdiction of the Department following: (1) Completion of the criminal sentence; or (2) release from confinement in a state or local correctional facility, and shall be returned to the custody of the Department.
This section does not apply to persons subject to a court order under the provisions of this article who are thereafter sentenced to life without the possibility of release.
§15-13-16. Release of information authorized.
In addition to any other information required to be released under this article, the Department is authorized, pursuant to section five, article twelve of this chapter, to release relevant information that is necessary to protect the public, concerning a specific sexually violent predator committed under this article.
§15-13-17. Notice of escape or disappearance.
In the event of an escape by a person committed under this article from a state institution or the disappearance of such a person while on conditional release, the superintendent or probation officer shall notify the following as appropriate: Local law enforcement officers, other governmental agencies, the person's relatives, and any other appropriate persons about information necessary for the public safety or to assist in the apprehension of the person.
§15-13-18. Notice of conditional release or unconditional discharge - Notice of escape and recapture.
(a) At the earliest possible date, and in no event later than thirty days before conditional release or unconditional discharge, except in the event of escape, the Department shall send written notice of conditional release, unconditional discharge, or escape, to the following:
(1) The chief of police of the city, if any, in which the person will reside or in which placement will be made under a less restrictive alternative;
(2) The sheriff of the county in which the person will reside or in which placement will be made under a less restrictive alternative; and
(3) The sheriff of the county where the person was last convicted of a sexually violent offense, if the Department does not know where the person will reside.
(b) The Department shall notify the State Police Sexual Offender Registry of the release of all sexually violent predators.
(c) The same notice as required by subsection (a) of this section shall be sent to the following if such notice has been requested in writing about a specific person found to be a sexually violent predator under this article:
(1) The victim or victims of any sexually violent offenses for which the person was convicted in the past or the victim's next of kin if the crime was a homicide. 'Next of kin' as used in this section means a person's spouse, parents, siblings, and children;
(2) Any witnesses who testified against the person in his or her commitment trial; and
(3) Any person specified in writing by the prosecuting attorney.
Information regarding victims, next of kin, or witnesses requesting the notice, information regarding any other person specified in writing by the prosecuting attorney to receive the notice, and the notice are confidential and shall not be available to the committed person.
(d) If a person committed as a sexually violent predator under this article escapes from a Department facility, the Department shall immediately notify, by the most reasonable and expedient means available, the state police, the chief of police of the city or town and the sheriff of the county in which the committed person resided immediately before his or her commitment as a sexually violent predator, or immediately before his or her incarceration for his or her most recent offense. If previously requested, the Department shall also notify the witnesses and the victims of the sexually violent offenses for which the person was convicted in the past or the victim's next of kin if the crime was a homicide. If the person is recaptured, the Department shall send notice to the persons designated in this subsection as soon as possible but in no event later than two working days after the Department learns of such recapture.
(e) If the victim or victims of any sexually violent offenses for which the person was convicted in the past or the victim's next of kin, or any witness is under the age of sixteen, the notice required by this section shall be sent to the parents or legal guardian of the child.
(f) The Department shall send the notices required by this article to the last address provided to the Department by the requesting party. The requesting party shall furnish the Department with a current address.
(g) Nothing in this section shall impose any liability upon a chief of police of a city or town, or sheriff of a county for failing to request in writing a notice as provided in subsection (a) of this section.
§15-13-19. Escorted leave - Conditions.
The superintendent of any facility housing persons detained or committed pursuant to this article may, subject to the approval of the secretary, grant escorted leaves of absence to residents confined in such institutions to:
(1) Go to the bedside of the resident's wife, husband, child, mother or father, or other member of the resident's immediate family who is seriously ill;
(2) Attend the funeral of a member of the resident's immediate family listed in subparagraph (1) of this section; and
(3) Receive necessary medical or dental care which is not available in the institution.
§15-13-20. Escorted leave - Notice.
A resident shall not be allowed to start a leave of absence under section nineteen of this article until the secretary, or the secretary's designee, has notified any state, county and city law enforcement agency having jurisdiction in the area of the resident's destination.
§15-13-21. Escorted leave - Rules.
(a) The secretary is authorized to adopt rules providing for the conditions under which residents will be granted leaves of absence and providing for safeguards to prevent escapes while on leaves of absence. Leaves of absence granted to residents under section nineteen of this article, however, shall not allow or permit any resident to go beyond the boundaries of this state.
(b) The secretary shall adopt rules requiring reimbursement of the state from the resident granted leave of absence, or the resident's family, for the actual costs incurred arising from any leave of absence granted under the authority of subparagraphs (1) and (2) of section nineteen of this article. No state funds shall be expended in connection with leaves of absence granted under subparagraphs (1) and (2) of section nineteen of this article unless the resident and the resident's immediate family are indigent and without resources sufficient to reimburse the state for the expenses of such leaves of absence.
§15-13-22. Rules.
The Secretary is hereby directed to propose rules and emergency rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code in accordance with the provisions of this section and for the oversight and operation of the program established pursuant to this article. Such rules shall include provisions for an annual inspection of a special commitment center and requirements for treatment plans and the retention of records.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSE.

ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.

§17B-2-3. What persons may not be licensed; exceptions.
(a) The Division may not issue any license hereunder:
(1) To any person who is under the age of eighteen years: Provided, That the Division may issue a junior driver's license or on or after the first day of January, two thousand and one, a graduated driver's license, to a person under the age of eighteen years in accordance with the provisions of section three-a of this article;
(2) To any person, as a Class A, B, C or D driver, who is under the age of eighteen years;
(3) To any person, whose license has been suspended or revoked, during the suspension or revocation;
(4) To any person who is an habitual drunkard or is addicted to the use of narcotic drugs;
(5) To any person, who has previously been adjudged to be afflicted with or suffering from any mental disability or disease and who has not at the time of application been restored to competency by judicial decree or released from a hospital for the mentally incompetent upon the certificate of the superintendent of the institution that the person is competent, and not then unless the Commissioner is satisfied that the person is competent to operate a motor vehicle with a sufficient degree of care for the safety of persons or property;
(6) To any person who is required by this chapter to take an examination, unless the person has successfully passed the examination;
(7) To any person when the Commissioner has good cause to believe that the operation of a motor vehicle on the highways by the person would be inimical to public safety or welfare.
(b) After the effective date of the amendments to this section enacted during the two thousand six session of the West Virginia Legislature, the Division may not issue a license or nondriver identification card to any person determined to be a sexually violent predator pursuant to article thirteen, chapter fifteen of this code or any person convicted of a violation of section three-a, article eight-B, chapter sixty-one of this code, unless he or she obtains a driver's license or nondriver identification card coded by the Commissioner to denote the licensee is a sexually violent offender as follows:
(1) If an applicant is determined to be a sexually violent predator or is convicted of a violation of section three-a, article eight-B, chapter sixty-one of this code, after the effective date of this section, the court shall take possession of his or her driver's license or nondriver identification card and shall direct the person to report to the Division for a replacement driver's license or nondriver identification card coded by the Commissioner to denote the licensee is a sexually violent offender. The court shall forward to the Division all licenses or nondriver identification cards that it receives, along with a copy of the judgment order.
(2) The Division may charge a fee of five dollars for a replacement license or nondriver identification card. Upon showing proof that a person is no longer determined to be a sexually violent predator or is removed from the sexual offender registry as a person convicted of a violation of section three-a, article eight-B, chapter sixty-one of this code, the Division shall issue a driver's license or nondriver identification card without the sexually violent offender code printed upon the license at no charge. No person issued a special operator's license or nondriver identification card under the provisions of this section may alter or deface the license to obscure the special marking identifying the owner as a sexually violent offender.
(3) Any person failing to comply with the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor more than five hundred dollars and confined in jail for not more than one year.
CHAPTER 18A. SCHOOL PERSONNEL.

ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL DEVELOPMENT.

§18A-3-12. Mandatory sexual offender registry checks of school service personnel, contractors and service providers.
(a) Prior to permitting professional educators, administrators and school service personnel contact with students or access to school grounds when students are present, the county school board shall check against the sexual offender registry, established pursuant to article twelve, chapter fifteen of this code, and the United States Department of Justice National Sex Offender Public Registry, or its successor, the name, and address and fingerprints of the professional educators, administrators and school service personnel.
(b) As of the effective date of this section, professional educators, administrators and school service personnel already permitted direct contact with students or access to school grounds when students are present shall have their names, and addresses and fingerprints checked against the sexual offender registry within a reasonable time from the effective date of this section.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-3. Sexual assault in the first degree.
(a) A person is guilty of sexual assault in the first degree when:
(1) The person engages in sexual intercourse or sexual intrusion with another person and, in so doing:
(I) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act.
(2) The person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is eleven years old or less and is not married to that person.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than fifteen nor more than thirty-five years, or fined not less than one thousand dollars nor more than ten thousand dollars and imprisoned in a state correctional facility not less than fifteen nor more than thirty-five years.
§61-8B-3a. Sexual assault of a child.
(a) A person is guilty of sexual assault of a child when the person, sixteen years old or more, engages in sexual intercourse or sexual intrusion with another person who has not attained the age of thirteen years and who is at least four years younger than the defendant and is not married to the defendant.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than twenty-five nor more than life, or fined not less than two thousand dollars nor more than ten thousand dollars and imprisoned in a state correctional facility not less than twenty-five nor more than life.
(c) Any person violating the provisions of this section and the violation causes a death, the person is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for life without the possibility of parole.
§61-8B-7. Sexual abuse in the first degree.
(a) A person is guilty of sexual abuse in the first degree when:
(1) Such person subjects another person to sexual contact without their consent, and the lack of consent results from forcible compulsion; or
(2) Such person subjects another person to sexual contact who is physically helpless; or
(3) Such person, being fourteen years old or more, subjects another person to sexual contact who is eleven years old or less.
(b) Any person who violates the provisions of this section shall be is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary a state correctional facility not less than one year nor more than five years, or fined not more than ten thousand dollars and imprisoned in the penitentiary a state correctional facility not less than one year nor more than five years.
§61-8B-7a. Sexual abuse of a child.
(a) A person is guilty of sexual abuse of a child when the person, sixteen years old or more, subjects another person to sexual contact who has not attained the age of thirteen years and who is at least four years younger than the defendant and is not married to the defendant.
(b) Any person who violates the provisions of this section is guilty of a felony, and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than ten years nor more than twenty-five years, or fined not more than ten thousand dollars and imprisoned in a state correctional facility not less than ten years nor more than twenty-five years.
§61-8B-9a. Enhanced penalties for those determined to be sexually violent predators.
'Notwithstanding any provision of this article to the contrary, any person who has been designated a sexually violent predator pursuant to the provisions of article thirteen, chapter fifteen of this code and thereafter commits and thereafter is convicted of a violation of section three-a or section seven-a, of this article shall be subject to the following penalties:
(1) For a violation of section three-a of this article, the penalty shall be imprisonment in a state correctional facility for life without the possibility of parole.
(2) For a violation of section seven-a of this article, the penalty shall be imprisonment in a state correctional facility for not less than twenty years nor more than fifty years.
CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.
(a) All persons who are found guilty of or plead guilty to any felony, the maximum penalty for which is less than life imprisonment, and all persons who are found guilty of or plead guilty to any misdemeanor, shall be eligible for probation, notwithstanding the provisions of sections eighteen and nineteen, article eleven, chapter sixty-one of this code.
(b) The provisions of subsection (a) of this section to the contrary notwithstanding, any person who:
(1)
commits Commits or attempts to commit a felony with the use, presentment or brandishing of a firearm shall be ineligible for probation. Nothing in this section shall apply to an accessory before the fact or a principal in the second degree who has been convicted as if he or she were a principal in the first degree if, in the commission of or in the attempted commission of the felony, only the principal in the first degree used, presented or brandished a firearm;
(2) Is found guilty or pleads guilty to a violation of section three-a, article eight-b, chapter sixty-one of this code shall be ineligible for probation
.
(c)(1) The existence of any fact which would make any person ineligible for probation under subsection (b) of this section because of the commission or attempted commission of a felony with the use, presentment or brandishing of a firearm shall not be applicable unless such fact is clearly stated and included in the indictment or presentment by which such person is charged and is either: (I) Found by the court upon a plea of guilty or nolo contendere; or (ii) found by the jury, if the matter be tried before a jury, upon submitting to such jury a special interrogatory for such purpose; or (iii) found by the court, if the matter be tried by the court, without a jury.
(2) The amendments to this subsection adopted in the year one thousand nine hundred eighty-one:
(A) Shall apply to all applicable offenses occurring on or after the first day of August of that year;
(B) Shall apply with respect to the contents of any indictment or presentment returned on or after the first day of August of that year irrespective of when the offense occurred;
(C) Shall apply with respect to the submission of a special interrogatory to the jury and the finding to be made thereon in any case submitted to such jury on or after the first day of August of that year or to the requisite findings of the court upon a plea of guilty or in any case tried without a jury: Provided, That the state shall give notice in writing of its intent to seek such finding by the jury or court, as the case may be, which notice shall state with particularity the grounds upon which such finding shall be sought as fully as such grounds are otherwise required to be stated in an indictment, unless the grounds therefor are alleged in the indictment or presentment upon which the matter is being tried;
(D) Shall not apply with respect to cases not affected by such amendment and in such cases the prior provisions of this section shall apply and be construed without reference to such amendment; and
Insofar as such amendments relate to mandatory sentences without probation, all such matters requiring such sentence shall be proved beyond a reasonable doubt in all cases tried by the jury or the court.
(d) For the purpose of this section, the term 'firearm' shall mean any instrument which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive, gunpowder, or any other similar means.
(e) In the case of any person who has been found guilty of, or pleaded guilty to, a felony or misdemeanor under the provisions of section twelve or twenty-four, article eight, chapter sixty-one of this code, or under the provisions of article eight-c or eight-b of said chapter, such person shall only be eligible for probation after undergoing a physical, mental and psychiatric study and diagnosis which shall include an on-going treatment plan requiring active participation in sexual abuse counseling at a mental health facility or through some other approved program: Provided, That nothing disclosed by the person during such study or diagnosis shall be made available to any law-enforcement agency, or other party without that person's consent, or admissible in any court of this state, unless such information disclosed shall indicate the intention or plans of the probationer to do harm to any person, animal, institution or property, in which case such information may be released only to such persons as might be necessary for protection of the said person, animal, institution or property.
(f) Any person who has been convicted of a violation of the provisions of article eight-b, eight-c or sections five and six, article eight-d, chapter sixty-one of this code, or of section fourteen, article two, or of sections twelve and thirteen, article eight, chapter sixty-one of this code, or of a felony violation involving a minor of section six or seven, article eight, chapter sixty-one of this code, or of a similar provision in another jurisdiction shall be required to be registered upon release on probation. Any person who has been convicted of an attempt to commit any of the offenses set forth in this subsection shall also be registered upon release on probation.
(g) The probation officer shall within three days of release of the offender, send written notice to the state police of the release of the offender. The notice shall include:
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's social security number;
(4) A recent photograph of the person;
(5) A brief description of the crime for which the person was convicted;
(6) Fingerprints; and
(7) For any person determined to be a sexually violent predator as defined in section two-a, article twelve, chapter fifteen of this code, the notice shall also include:
(I) Identifying factors, including physical characteristics;
(ii) History of the offense; and
(iii) Documentation of any treatment received for the mental abnormality or personality disorder.
§62-12-26. Extended supervision for certain sex offenders; sentencing; conditions; supervision provisions; supervision fee.

(a) Notwithstanding any provision of this code to the contrary, any defendant convicted after the effective date of this section of a violation of section twelve, article eight, chapter sixty-one of this code or a felony violation of the provisions of article eight-b, eight-c or eight-d of said chapter may shall, as part of the sentence imposed at final disposition, be required to serve, in addition to any other penalty or condition imposed by the court, a period of supervised release of up to fifty years: Provided, That a defendant designated after the effective date of the amendments to this section enacted during the two thousand six session of the West Virginia Legislature as a sexually violent predator pursuant to article thirteen, chapter fifteen of this code or convicted of a sexually violent offense as defined by subsection (I), section two, article twelve, chapter fifteen of this code, involving a minor, shall be subject, in addition to any other penalty or condition imposed by the court, to supervised release for life and shall be further prohibited from:
(1) establishing a residence or accepting employment within one thousand feet of a school or child care facility or within one thousand feet of the residence of a victim or victims of any sexually violent offenses for which the person was convicted;
(2) establishing a residence or any other living accommodation in a household in which a child under sixteen resides if the person has been convicted of a sexually violent offense involving a child, unless the person is the parent, grandparent or stepparent of the child:
Provided, That the person was the stepparent of the child prior to being convicted of a sexual violent offense, and
(I) the person's parental rights have not been terminated;
(ii) the child is not a victim of a sexually violent offense perpetrated by the person; and
(iii) the court determines that the person convicted of the sexually violent offense is not likely to cause harm to the child or children with whom such person will reside.
The period of supervised release imposed by the provisions of this section shall begin upon the expiration of any period of probation, the expiration of any sentence of incarceration or the expiration of any period of parole supervision imposed or required of the person so convicted, whichever expires later.
(b) Any person sentenced to a period of supervised release pursuant to the provisions of this section shall be supervised by the probation office of the sentencing court or by the community corrections program established in said circuit unless jurisdiction is transferred elsewhere by order of the sentencing court.
(c) A defendant sentenced to a period of supervised release shall be subject to any or all of the conditions applicable to a person placed upon probation pursuant to the provisions of section nine, article twelve, chapter sixty-one of this code: Provided, That any defendant sentenced to a period of supervised release pursuant to this section shall be required to participate in appropriate offender treatment programs or counseling during the period of supervised release unless the court deems such to no longer be appropriate or necessary and makes express findings in support thereof: Provided however, That a defendant convicted of a sexually violent offense as defined in subsection (I), section two, article twelve, chapter fifteen of this code and sentenced to supervised release for life pursuant to subsection (a) of this section, shall be subject to electronic monitoring, as defined in section twenty-seven, article twelve of this chapter, for the duration of their supervised release.
(d) The sentencing court may, based upon defendant's ability to pay, impose a supervision fee to offset the cost of supervision. Said fee shall not exceed fifty dollars per month. Said fee may be modified periodically based upon the defendant's ability to pay.
(e) Modification of conditions or revocation. -- The court may:
(1) Terminate a term of supervised release and discharge the defendant released at any time after the expiration of two years of supervised release, pursuant to the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interests of justice;
(2) Extend a period of supervised release if less than the maximum authorized period was previously imposed or modify, reduce or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, consistent with the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision;
(3) Revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release without credit for time previously served on supervised release if the court, pursuant to the West Virginia Rules of Criminal Procedure applicable to revocation of probation, finds by clear and convincing evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this subdivision may not be required to serve more than the period of supervised release: Provided, That no person may serve a period of incarceration for a violation of supervised release which exceeds the maximum statutory period of confinement for the offense of conviction underlying the period of supervised release;
(4) Order the defendant to remain at his place of residence during nonworking hours and, if the court so directs, to have compliance monitored by telephone or electronic signaling devices, except that an order under this paragraph may be imposed only as an alternative to incarceration.
(f) Written statement of conditions. -- The court shall direct that the probation officer provide the defendant with a written statement that sets forth all the conditions to which the term of supervised release is subject and that it is sufficiently clear and specific to serve as a guide for the defendant's conduct and for such supervision as is required.
(g) Supervised release following revocation. -- When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (a) of this section, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such term of supervised release shall not exceed the term of supervised release authorized by this section less any term of imprisonment that was imposed upon revocation of supervised release.
(h) Delayed revocation. -- The power of the court to revoke a term of supervised release for violation of a condition of supervised release and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (f) of this section, a further term of supervised release extends beyond the expiration of the term of adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.
§62-12-27. Mandatory electronic monitoring of sexually violent offenders on probation and parole; penalty for tampering with or destroying electronic monitoring device.

(a) A defendant convicted of a sexually violent offense as defined in subsection (I), section two, article twelve, chapter fifteen of this code shall be subject, as a condition of his or her subsequent probation or parole, to electronic monitoring for the duration of said probation or parole.
(b) If probation or parole for a defendant convicted of a sexually violent offense as defined under subsection (I), section two, article twelve, chapter fifteen of this code is revoked by the court pursuant to this article and the court imposes a subsequent term of probation or parole following the revocation, the court must order electronic monitoring as a condition of any subsequent term of probation or parole.
(c) For the purposes of this section, 'electronic monitoring' means the use of an electronic signaling device or apparatus approved by the Division of Corrections and the West Virginia Supreme Court of Appeals which is capable of recording or transmitting information regarding the offender's presence or nonpresence in a designated area. The Division of Corrections and the West Virginia Supreme Court of Appeals must select a system that actively monitors and identifies the defendant's location and timely reports or records the defendant's presence near or within a crime scene or a prohibited area or the defendant's departure from specified geographic limitations.
(d) A person who intentionally alters, tampers with, damages or destroys any electronic monitoring equipment, absent court or commission order, unless such person is the owner of the equipment, or an agent of the owner, performing ordinary maintenance and repair, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than three years nor more than ten years."
The bill was then read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 550), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 205) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 205 - "A Bill to repeal §15-12-2a and §15-12-3a of the Code of West Virginia, 1931, as amended; to amend and reenact §15-12-2, §15-12-3, §15-12-4, §15-12-5, §15-12- 8, §15-12-9 and §15-12-10 of said code; to amend said code by adding thereto two new sections, designated §15-12-6a and §15-12-11; to amend said code by adding thereto twenty-two new sections, designated §15-13-1, §15-13-2, §15-13-3, §15-13-4, §15-13-5, §15-13-6, §15-13-7, §15-13-8, §15- 13-9, §15-13-10, §15-13-11, §15-13-12, §15-13-13, §15-13-14, §15-13-15, §15-13-16, §15-13-17, §15-13-18, §15-13-19, §15-13-20, §15-13-21 and §15-13-22 of said code; to amend and reenact §17B-2-3 of said code; to amend said code by adding thereto a new section, designated §18A-3-12; to amend and reenact §61-8B-3 and §61-8B-7; to amend and reenact §62-12-2 and §62-12-26 of said code; and to amend said code by adding thereto a new section, designated §62-12-27, all relating to the protection of the citizenry from sex offenders; clarifying registration requirements; providing a definition for certain terms; providing for the release of sex offender information to the sexual abuse registry by the judiciary and law-enforcement agencies; providing for penalties for failure to properly register with the central abuse registry; creating new penalties for out-of-state sex offenders that fail to register; providing for verification of sex offender information by the sexual abuse registry; providing for penalties for assisting sex offenders evade registration; creating the sexually violent predator act; procedures for judicial determination; rights of parties and committed persons; procedures for conditional release to less restrictive alternative or unconditional release; duties and rule-making authority of Department of Health and Human Resources; procedures upon escape or disappearance; procedures for escorted leave; requiring sexually violent predators to be issued special coded driver's licenses or nondriver identification cards that identify the holder or owner as a sexually violent offender; creating the crimes of sexual assault of a child and sexual abuse of a child; increasing incarceration for certain crimes committed by sexually violent predators; prohibiting probation for defendants committing sexual assault of a child; providing for supervised release requirements for sexually violent offenders; providing for electronic monitoring for sexually violent offenders on supervised release, probation and parole; and providing for professional educators, administrators and school service personnel to be checked against the sexual offender registry."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Senate Message

A messag from the Senate, by
The Clerk of the Senate, announced that the Senate had requested the return of S. B. 219, Changing expiration date of graduated driver's licenses; prohibiting cell phone use by certain minors.
On motion of Delegate Staton, the House of Delegates acceded to the request of the Senate.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
On motion of Delegate Staton, the House then proceeded to consideration of S. B. 783, Relating to National Board for Professional Teaching Standards certification; on second reading, coming up in regular order.
The bill was then read a second time.
An amendment, recommended by the Committee on Education, was reported by the Clerk and adopted, by amending the bill on page one, following the enacting clause, by strikingout the remainder of the bill and inserting in lieu thereof the following:
"That §18A-1-1 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 §18A-2-9a; that §18A-4-2a of said code be amended and reenacted; and that said code be amended by adding thereto a new section designated §18A-4-2b, all to read as follows:
CHAPTER 18A. SCHOOL PERSONNEL.

ARTICLE 1. GENERAL PROVISIONS.

§18A-1-1. Definitions.

The definitions contained in section one, article one, chapter eighteen of this code apply to this chapter. In addition, the following words used in this chapter and in any proceedings pursuant to this chapter shall, unless the context clearly indicates a different meaning, be construed as follows:
(a) 'School personnel' means all personnel employed by a county board whether employed on a regular full-time basis, an hourly basis or otherwise. School personnel shall be comprised of two categories: Professional personnel and service personnel;
(b) 'Professional personnel' means persons who meet the certification requirements of the state, licensing requirements of the state or both and includes the professional educator and other professional employees;
(c) 'Professional educator' has the same meaning as 'teacher' as defined in section one, article one, chapter eighteen of this code. Professional educators shall be classified as:
(1) 'Classroom teacher' means a professional educator who has direct instructional or counseling relationship with pupils, spending the majority of his or her time in this capacity;
(2) 'Principal' means a professional educator who, as agent of the county board, has responsibility for the supervision, management and control of a school or schools within the guidelines established by the county board. The major area of the responsibility shall be the general supervision of all the schools and all school activities involving pupils, teachers and other school personnel;
(3) 'Athletic director' means a professional educator who is responsible for supervising the management and operation of the athletic programs and activities of the school to which he or she is assigned;
(3) (4) 'Supervisor' means a professional educator who, whether by this or other appropriate title, is responsible for working primarily in the field with professional and other personnel in instructional and other school improvement; and
(4) (5) 'Central office administrator' means a superintendent, associate superintendent, assistant superintendent and other professional educators, whether by these or other appropriate titles, who are charged with the administering and supervising of the whole or some assigned part of the total program of the countywide school system;
(d) 'Other professional employee' means that person from another profession who is properly licensed and is employed to serve the public schools and includes a registered professional nurse, licensed by the West Virginia Board of Examiners for Registered Professional Nurses and employed by a county board, who has completed either a two-year (sixty-four semester hours) or a three-year (ninety-six semester hours) nursing program;
(e) 'Service personnel' means those who serve the school or schools as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch and as aides;
(f) 'Principals academy' or 'academy' means the academy created pursuant to section two-b, article three-a of this chapter;
(g) 'Center for professional development' means the center created pursuant to section one, article three-a of this chapter;
(h) 'Job-sharing arrangement' means a formal, written agreement voluntarily entered into by a county board with two or more of its employees who wish to divide between them the duties and responsibilities of one authorized full-time position;
(I) 'Prospective employable professional personnel' means certified professional educators who:
(1) Have been recruited on a reserve list of a county board;
(2) Have been recruited at a job fair or as a result of contact made at a job fair;
(3) Have not obtained regular employee status through the job posting process provided for in section seven-a, article four of this chapter; and
(4) Have obtained a baccalaureate degree from an accredited institution of higher education within the past year;
(j) 'Dangerous student' means a pupil who is substantially likely to cause serious bodily injury to himself, herself or another individual within that pupil's educational environment, which may include any alternative education environment, as evidenced by a pattern or series of violent behavior exhibited by the pupil, and documented in writing by the school, with the documentation provided to the student and parent or guardian at the time of any offense; and
(k) 'Alternative education' means an authorized departure from the regular school program designed to provide educational and social development for students whose disruptive behavior places them at risk of not succeeding in the traditional school structures and in adult life without
positive interventions.
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-9a. Duties and responsibilities of interscholastic athletic directors.

(a) Upon the recommendation of the county superintendent of schools, the county board of education may employ and assign through written contract, athletic directors who shall supervise the management and the operation of high school and/or middle school athletic activities to which they are assigned. An athletic director shall hold valid credentials appropriate for his or her assignment. Beginning on the first day of July, two thousand seven, the prerequisites for assignment as an interscholastic athletic director are:
(1) A minimum of five years interscholastic or intercollegiate coaching experience; and
(2) Compliance with one of the following education requirements:
(A) A college degree in athletic administration;
(B) A masters degree in educational administration; or
(C) Completion of the following Leadership Training Classes provided through the National Interscholastic Athletic Administration Association (NIAAA) Leadership Training Program:
LTC 501 - Athletic Administration: Philosophy, Leadership, Organizations and Professional Programs;
LTC 502 - Athletic Administration: Principles, Strategies and Methods; and
LTC 504 - Athletic Administration: Legal Issues I (Risk Management).
(b) Any person employed in the capacity of athletic director during, or prior to, the two thousand four - two thousand five school year is exempt from the prerequisites set forth in subsection (a), except that the person must complete the Leadership Training Courses set forth in subdivision (2)(C), subsection (a) within three years of the effective date of this legislation.
(c) Under the supervision of the school principal and in accordance with the rules and regulations of the county board of education, the athletic director shall assume administrative responsibility for the planning, management, operation and evaluation of the total athletic program for the school for which he or she is assigned. The responsibilities of the athletic director include, but are not limited to, the following: (1) Supervision of games; (2) Overseeing the athletic budget; (3) Hiring of game officials; (4) Scheduling athletic contest; (5) Knowing and upholding all county, West Virginia Secondary Schools Activities Commission (WVSSAC) and league rules and regulations; (6) Maintain proper records which includes a permanent file of players; medical forms, insurance forms, participation records, parent consent forms and birth certificates; (7) Scheduling transportation for athletic teams; (8) Prepare and verify athletic eligibility lists; (9) Supervise, observe and evaluate coaches; (10) Secure all needed personnel for basic athletic event operations; (11) Procure and care for athletic equipment; and (12) Other duties involving athletics as assigned by the principal or as a part of a county job description for athletic directors.
(d) Upon recommendation of the county superintendent of schools, the county board of education may, when needed, employ and assign through written contract, assistant athletic directors who shall work under the direction of the school principal and athletic director. An assistant athletic director shall hold valid credentials appropriate for his or her assignment. Beginning on the first day of July, two thousand seven, the prerequisite for assignment as a high school assistant athletic director is the completion of the Leadership Training Courses set forth in subdivision (2)(C), subsection (a).
(e) Any person employed in the capacity of assistant athletic director during, or prior to, the two thousand four - two thousand five school year is exempt from the prerequisite set forth in subsection (d), except that the person must complete the Leadership Training Courses set forth in subdivision (2)(C), subsection (a) within three years of the effective date of this legislation.
(f) County boards of education are encouraged to employ an athletic director for each high school in the county and for each middle school and junior high school in the county.

§18A-4-2a. State minimum salary bonus for classroom teachers with national board certification.

(a) The Legislature hereby finds and declares that the rigorous standards and processes for certification by the National Board for Professional Teaching Standards (NBPTS) helps to promote the quality of teaching and learning. Therefore, classroom teachers in the public schools of West Virginia should be encouraged to achieve national board certification through a reimbursement of expenses and an additional salary bonus which reflects their additional certification, to be paid in accordance with the provisions of this section.
(b) One thousand dollars shall be paid annually to each classroom teacher who holds a valid certificate issued by the national board of professional teaching standards for the life of the certification, but in no event more than ten years for any one certification: Provided, That beginning on the first day of July, two thousand one, in lieu of the one thousand dollars, Two thousand five hundred dollars shall be paid annually to each classroom teacher who holds a valid certificate issued by the National Board of Professional Teaching Standards for the life of the certification, but in no event more than ten years for any one certification.
(c) The payments:
(I) (1) Shall be in addition to any amounts prescribed in the applicable state minimum salary schedule;
(ii) (2) Shall be paid in equal monthly installments; and
(iii) (3) Shall be considered a part of the state minimum salaries for teachers.
(d) One thousand dollars shall be paid for reimbursement once to each teacher who enrolls in the program for the national board for professional teaching standards certification and one thousand dollars shall be paid for reimbursement once to each teacher who completes the national board for professional teaching standards certification.  Effective the first day of July, two thousand one, in lieu of the one thousand dollar payment for reimbursements, One-half the certification fee shall be paid for reimbursement once to each teacher who enrolls in the program for the National Board for Professional Teaching Standards certification and one-half the certification fee shall be paid for reimbursement once to each teacher who completes the National Board for Professional Teaching Standards certification.  Completion shall be defined as the completion of ten scorable entries, as verified by the National Board for Professional Teaching Standards. Teachers who achieve National Board for Professional Teaching Standards certification may be reimbursed a maximum of six hundred dollars for expenses actually incurred while obtaining the National Board for Professional Teaching Standards certification.
(e) The state board shall limit the number of teachers who receive the initial reimbursements of the certification fees set forth in subsection (d) to one hundred teachers annually. Effective the first day of July, two thousand one, in lieu of the limit of one hundred teachers annually, The state board shall limit the number of teachers who receive the initial reimbursements of the certification fees set forth in subsection (d) to two hundred teachers annually. The state board shall establish selection criteria for the teachers by the legislative rule required pursuant to subsection (g) of this section.
(f) Subject to the provisions of subsection (e) of this section, funding for reimbursement of the certification fee and expenses actually incurred while obtaining the National Board for Professional Teaching Standards certifications shall be administered by the state department of education from an appropriation established for that purpose by the Legislature. If funds appropriated by the Legislature to accomplish the purposes of this subsection are insufficient, the state department shall prorate the reimbursements for expenses and shall request of the Legislature, at its next regular session, funds sufficient to accomplish the purposes of this subsection, including needed retroactive payments.
(g) The state board shall promulgate legislative rules pursuant to article three-b, chapter twenty-nine-a of this code to implement the provisions of this section.
§18A-4-2b. State minimum salary supplement for professional personnel with recognized national certification in speech-language pathology, audiology or counseling.

(a) (1) The Legislature finds that achieving a nationally recognized professional certification in speech-language pathology or audiology involves a rigorous process of demonstrating both knowledge and skills and results in highly trained and capable employees. Individuals who attain the national professional certification by the American Speech-Language-Hearing Association (ASHA) provide needed and essential services to the school students of this state and, consequently, should be encouraged to achieve and maintain the national board certification through reimbursement of expenses and a salary bonus which reflects their additional certification, to be paid in accordance with subsection (b) of this section.
(2) The Legislature further finds and declares that the rigorous standards and processes for advanced certification by either the National Board of Certified Counselors (NBCC) or the West Virginia Board of Examiners in Counseling (WVBEC) helps to promote the quality of counseling in schools. Counselors in the public schools of West Virginia should be encouraged to achieve and maintain the advanced certification through reimbursement of expenses and a salary bonus that reflects their additional certification, to be paid in accordance with subsection (b) of this section.
(3) Therefore, the purpose of this section is to provide a statewide salary supplement for certain professional personnel employed in the public schools who hold a nationally recognized professional certification in speech-language pathology, audiology or counseling, to treat the professional certification equally, to encourage others to attain such a certification and to help school systems with recruitment of these highly qualified professionals.
(b) In addition to any amounts prescribed in the applicable state minimum salary schedule, effective the first day of July two thousand six, any professional personnel who hold national certification or other credential as provided in this section, must be paid an annual salary supplement of two thousand five hundred dollars. The payment is:
(1) To be made in equal monthly installments;
(2) To be considered a part of the state minimum salaries for teachers; and
(3) To continue for the life of the certification, or for ten years for any one certification, whichever first expires.
(c) Effective the first day of July, two thousand six, professional personnel employed as speech-language pathologists, audiologists or counselors are eligible upon enrollment for reimbursement for one-half of the fee for certification in accordance with this section. In addition, these personnel are eligible upon attainment of the certification for reimbursement of the remainder of the application fee plus other expenses actually incurred toward attainment of the certification, not exceeding six hundred dollars, upon approval by the department of education. No more than one hundred speech-language pathologists, audiologists and counselors, combined total, are eligible for reimbursement in any one fiscal year.
(d) Notwithstanding subsection (b) of this section, no more than one hundred speech-language pathologists, audiologists and counselors, combined total, shall be paid the annual salary supplement provided for in said subsection during the first year of implementation. The number of speech- language pathologists, audiologists and counselors paid the annual salary supplement provided for in said subsection (b) may not exceed an additional one hundred qualified recipients in each of the subsequent fiscal years. The state board shall promulgate a legislative rule establishing criteria for selection of the individuals eligible for reimbursement and a salary supplement in accordance with this section. The selection criteria shall prioritize the length of time the certification has been held and the years of experience of the holder in determining eligibility.
(e) The board shall report the rule to the Legislative Oversight Commission on Education Accountability by the January, two thousand seven, legislative interim meeting period, and shall report on its progress in developing the rule to the commission during each prior interim meeting period.
(f) Payment of the supplement and reimbursement provided in this section is subject to legislative appropriation therefore; nothing in this section requires any appropriation, or any specific level of appropriation, by the Legislature.
(g) Notwithstanding any other provision of this section or the provisions of section two-a of this article, professional personnel may not be paid a salary supplement pursuant to the provisions of both said sections."

Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 551), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Ferrell and Leach.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 552), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 783) passed.
An amendment to the title of the bill, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 783 - "A Bill to amend and reenact §18A-1-1 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §18A-2-9a; to amend and reenact §18A-4-2a of said code; and to amend said code by adding thereto a new section designated §18A-4-2b, all relating to school personnel; defining and setting standards for assignment of athletic directors and assistants; employment; duties; exemptions; defining completion of the National Board for Professional Teaching Standards certification; establishing state minimum salary supplement for professional personnel holding professional certification in speech-language pathology, audiology or counseling; limitations; applicability; and state board rule."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
At 12:13 p.m., on motion of Delegate Staton, the House of Delegates recessed until 2:30 p.m., and reconvened at that time.
Miscellaneous Business

Delegate Butcher announced that he was absent on yesterday when the votes were taken on Roll Nos. 474, 512 and 514, and that had he been present, he would have voted "Yea" thereon.
Third Reading

Com. Sub. for S. B. 10, Allowing tax credits for community foundation contributions; on third reading, at the request of Delegate Staton, and by unanimous consent, postponed.
Com. Sub. for S. B. 18, Granting tuition waivers to children and spouses of parole and probation officers killed in line of duty; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 553), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell, Hatfield, Leach and Swartzmiller.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 18) passed.
Delegate Staton moved that the bill take effect July 1, 2006.
On this question, the yeas and nays were taken (Roll No. 554), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell, Hatfield, Leach and Swartzmiller.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 18) takes effect July 1, 2006.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 112, Establishing Alzheimer's Disease Registry; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 5R. THE ALZHEIMER'S SPECIAL CARE STANDARDS ACT.
§16-5R-7. Establishment of a central registry.
(a) To the extent funds are available, the governing board of the West Virginia University shall establish an Alzheimer's Disease Registry to collect information concerning alzheimer's disease and related disorders. The purpose of the registry shall be to provide a central database of information to assist in the development of public policy and planning. The information collected by the registry shall be analyzed to prepare reports and perform studies as necessary when such data identifies information useful in developing policy.
(b) All reporting sources, including hospitals, physicians, facilities, clinics or other similar units diagnosing or providing treatment or care for alzheimer's disease and related disorders, shall provide a report of each case to the Alzheimer's Disease Registry in the format specified.
(c) All information reported pursuant to this section is confidential and shall be used only for the purposes set forth herein. A report provided to the alzheimer's disease registry that discloses the identity of the individual being treated shall only be released in accordance with the provisions of the Health Insurance Portability and Accountability Act of 1996. No liability of any kind or character for damages or other relief shall arise or be enforced against any reporting source by reason of having provided the information or material to the alzheimer's disease registry.
(d) The governing board shall propose rules pursuant to the provisions of article three, chapter twenty-nine-a of this code to implement this section. The rules shall include, but not be limited to: (1) The content and design of all forms and reports required by this section; (2) the type of information to be collected and maintained; (3) the procedures for disclosure of nonidentifying data to other appropriate research entities; (4) the manner in which reporting entities or individuals, including families, may be contacted by the registry for additional relevant information; and (5) any other matter necessary to the administration of this section."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 555), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell, Leach and Swartzmiller.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 112) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Third Reading

Com. Sub. for S. B. 183, Creating certain special license plates; on third reading coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, temporarily postponed.
Com. Sub. for S. B. 245, Creating Consolidated Local Government Act; on third reading coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, temporarily postponed.
S. B. 251, Creating Beckley-Raleigh County Building Code Authority; on third reading coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, temporarily postponed.
Com. Sub. for S. B. 299, Authorizing various executive or administrative agencies promulgate legislative rules; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS TO PROMULGATE LEGISLATIVE RULES.
§64-9-1. Commissioner of Agriculture.
(a) The legislative rule filed in the State Register on the twenty-eighth day of July, two thousand five, authorized under the authority of section two, article nine, chapter nineteen of this code, modified by the Department of Agriculture to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on the twenty-third day of December, two thousand five, relating to the Department of Agriculture (animal disease control, 61 CSR 1), is authorized.
(b) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section four, article sixteen-a, chapter nineteen of this code, modified by the Department of Agriculture to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on the sixteenth day of December, two thousand five, relating to the Department of Agriculture (certified pesticide applicators, 61 CSR 12A), is authorized.
(c) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section four, article sixteen-a, chapter nineteen of this code, modified by the Department of Agriculture to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on the sixteenth day of December, two thousand five, relating to the Department of Agriculture (integrated pest management programs in schools and day care centers/facilities, 61 CSR 12J), is authorized.
(d) The legislative rule filed in the State Register on the twenty-second day of December, two thousand five, authorized under the authority of section twenty, article twelve, chapter eight-a of this code, modified by the Department of Agriculture 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 six, relating to the Department of Agriculture (voluntary farmland protection program, 61 CSR 26), is authorized.
§64-9-2. State Auditor.
The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section ten-a, article three, chapter twelve of this code, modified by the Auditor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-first day of December, two thousand five, relating to the Auditor (state purchasing card program, 155 CSR 7), is authorized.
§64-9-3. State Conservation Committee.
The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section four, article twenty-one-a, chapter nineteen of this code, modified by the State Conservation Committee to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on the fourth day of January, two thousand six, relating to the State Conservation Committee (State Conservation Committee, 63 CSR 1), is authorized.
§64-9-4. Board of Dental Examiners.
(a) The legislative rule filed in the State Register on the twenty-eighth day of July, two thousand five, authorized under the authority of section six, article four, chapter thirty of this code, relating to the Board of Dental Examiners (fees established by the board, 5 CSR 3), is authorized.
(b) The legislative rule filed in the State Register on the twenty-eighth day of July, two thousand five, authorized under the authority of section six, article four, chapter thirty of this code, modified by the Board of Dental Examiners to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the sixth day of January, two thousand six, relating to the Board of Dental Examiners (dental advertising, 5 CSR 8), is authorized.
§64-9-5. Governor's Committee on Crime, Delinquency and Correction.
The legislative rule filed in the State Register on the twenty-third day of November, two thousand four, authorized under the authority of section three, article two, chapter seventeen-g of this code, modified by the Governor's Committee on Crime, Delinquency and Correction 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 six, relating to the Governor's Committee on Crime, Delinquency and Correction (motor vehicles stop data collection standards for the study of racial profiling, 149 CSR 5), is authorized as follows:
TITLE 149

LEGISLATIVE RULE

GOVERNOR'S COMMITTEE ON CRIME, DELINQUENCY AND CORRECTION


SERIES 5

MOTOR VEHICLE STOP DATA COLLECTION STANDARDS

FOR THE STUDY OF RACIAL PROFILING


§149-5-1. General.
1.1. Scope. -- This legislative rule establishes standards for the collection, reporting and compilation of data, for the purpose of studying the possible practice of racial profiling by law enforcement in West Virginia. This legislative rule further establishes the standards by which this data will be issued.
1.2. Authority. -- W. Va. Code §17G-2-3.
1.3. Filing Date. --
1.4. Effective Date. --
§149-5-2. Definitions.
2.1 'Act' means the West Virginia Racial Profiling Data Collection Act, West Virginia Code § 17G-1-1, et seq.
2.2. 'Chief executive' means the superintendent of the State Police; the chief conservation officer of the Division of Natural Resources; the sheriff of any West Virginia county; any administrative deputy appointed by the chief conservation officer of natural resources; or the chief of any West Virginia municipal law enforcement agency.
2.3. 'Commissioner' means the Commissioner of the Division of Motor Vehicles.
2.4. 'Composition of a patrol area' means the composition of a patrol area based on the ethnicity, national origin, gender and age of the population of the patrol area.
2.5. 'County' means any one of the fifty-five major political subdivisions of the state.
2.6. 'Director' means the Director of the Governor's Committee on Crime, Delinquency and Correction
2.7. 'Division' means the West Virginia Division of Motor Vehicles
2.8. 'Form', or "MSF," means the West Virginia Motor Vehicle Stop Form to be developed and promulgated by the Division of Motor Vehicles for collecting and reporting data for the study of racial profiling under the Act and this rule.
2.9. 'Governor's Committee' means the Governor's Committee on Crime, Delinquency and Correction established as a state planning agency pursuant to W. Va. Code §15-9-1.
2.10. 'Gross data' means aggregate data regarding the information obtained pursuant to section 3 of this rule.
2.11. 'Law enforcement agency' or 'agency' means any West Virginia state, county or municipal agency with officers who are authorized to direct or regulate traffic or to make arrests or issue citations or warnings for violations of traffic laws and ordinances.
2.12. 'Law enforcement officer' or 'officer' means any duly authorized member of a law enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality of the state, including persons employed as campus police officers at state institutions of higher education and those persons employed as rangers by the Hatfield-McCoy regional recreation authority.
2.13. 'Law enforcement official' or 'official' means the duly appointed chief administrator of a designated law enforcement agency or a duly authorized designee.
2.14. 'Minority group' means individuals of any ethnic descent, including, but not limited to, African-American, Hispanic, Native American, Middle Eastern, Asian or Pacific Islander.
2.15. 'Motor vehicle violation' or 'violation' means a violation of any motor vehicle statute or ordinance.
2.16. 'Municipality' means any incorporated town, village or city whose boundaries lie within the geographic boundaries of the state.
2.17. 'Patrol area' means a clearly defined geographic area that is established for the general purpose of providing a visible law enforcement presence in the area, in order to (1) secure property and to protect the public from the risks of damage or injury arising from criminal activity, (2) respond to emergency and non-emergency demands of citizens in a timely manner, (3) conduct prevention and other proactive patrol tasks effectively; and (4) conduct all other patrol tasks effectively, including traffic control and special missions work.
§149-5-3. Patrol Areas.
3.1. The chief executive of every law enforcement agency in the state shall establish patrol areas for all of the territory within the jurisdiction of the agency.
3.2. Patrol areas must be drawn so that population-based data on the composition of a patrol area, as well as data on the perceived ethnicity, national origin, gender and age of those committing acts justifying a traffic stop, can be used to reliably and validly observe the absence or presence of bias-based profiling associated with traffic stops in a statistically meaningful way.
The boundaries of a patrol area must be easily recognizable to the officer patrolling it.
3.3. The chief executive shall designate each patrol area with a number of up to three digits. Chief executives of counties with a population of 20,000 or less and municipalities with a population of 5,000 or less may designate the entire county or municipality, respectively, as a patrol area.
3.4. On or before November 1, 2006, the chief executive shall submit to the Governor's Committee a map showing the boundaries and designations of patrol areas. The Governor's Committee shall review the boundaries of the patrol areas to determine whether they are adequate for use in preparing the reports to the Legislature required by section 11 of this rule. If the patrol areas are not adequate for that purpose, the Governor's Committee shall notify the chief executive, who shall cooperate with the Governor's Committee to establish patrol areas that are relevant to the obligations of the Governor's Committee under the Act.
3.5. All designations of patrol areas must be finalized no later than December 15, 2006. Each chief executive must provide training to the officers of his or her agency to familiarize them with the boundaries and designations of each patrol area. The chief executive shall also provide any dispatchers with copies of a map showing the patrol area boundaries and designations so as to assist any officer who is unsure of the patrol area in which he or she has made a stop.
§149-5-4. Data Collection.
4.1. Beginning January 1, 2007, each time a law enforcement officer stops a motor vehicle for a violation, the officer shall record on the MSF the information required to be collected pursuant to subsection 5 of this section and file it with his or her agency before the officer goes off duty.
4.2 The officer shall collect information relating to the perceived racial characteristics of the operator of a motor vehicle only when the stop results from a violation When the stop results from a non-violation, the officer is not required to collect this information, even if the stop ultimately results in a citation for a violation. For the purposes of this rule, non-violation stops include, but are not limited to, a checkpoint for driving under the influence, license, registration or seat belts, a stop of multiple vehicles due to an accident or a stop made from an emergency dispatch.
4.3. The Commissioner shall designate a single point of contact within the Division responsible for the implementing and administering the provisions of the Act and this rule. The Commissioner may, from time to time, change this designation. The Division shall notify all law enforcement agencies of this designation and of any change in the designation.
4.4. The Motor Vehicle Stop Form developed by the Division of Motor Vehicles shall:
4.4.a. Be capable of collecting all of the information required by subsection 5 of this section; and,
4.4.b. At a minimum, be developed in hard copy format; however, the Division may, in its discretion, develop the form so as to allow a law enforcement agency the ability to complete and/or submit the required information in an electronic format.
4.5. The information to be collected on the MSF includes:
4.5.a. A unique identifier (i.e. numeric, alphanumeric, barcode, etc.) which will distinguish the MSF established pursuant to the Act and this rule to be distinguished from all other forms the Division has issued.;
4.5.b. The law enforcement agency's complete Originating Agency Identifier (ORI number), or an abbreviated version of that identifier singularly unique to that particular law enforcement agency;
4.5.c. A unique identifier for a law enforcement officer within his or her law enforcement agency. The chief executive or official of the agency shall assign a unique four (4) digit identifier to each officer within the agency to record on the MSF;
4.5.d. The month, day and year of the stop;
4.5.e. The approximate hour and minute of the stop;
4.5.f. The approximate duration of the stop in hours and minutes;
4.5.g.The patrol area in which the stop occurred;
4.5.h. Whether the stop took place on a city street, county road, state highway or interstate highway;
4.5.i.Whether the vehicle had West Virginia or out-of-state license plates;
4.5.j. The reason for the stop, including:
4.5.j.1. A moving violation;
4.5.j.2. Vehicle equipment violations or defects;
4.5.j.3. Inspection violations;
4.5.j.4. Investigatory stops for non-motor vehicle criminal activity;
4.5.j.5. Seatbelt violation;
4.5.j.6. Driving while impaired;
4.5.j.7. Courtesy stop or citizen assistance; and
4.5.j.8 Other motor vehicle violations;
4.5.k. The perceived identifying characteristics of the operator, including:
4.5.k.1. Whether the operator was male or female;
4.5.k.2. Whether the operator was:
4.5.k.2.A. White (W);
4.5.k.2.B. Black/African American (B/AA);
4.5.k.2.C. Asian/Pacific Islander (A/PI);
4.5.k.2.D. Native American (NA);
4.5.k.2.E. Middle Eastern (ME); or,
4.5.k.2.F. Other (Oth);
4.5.k.3. Ethnicity. -- whether the operator was:
4.5.k.3.A. Hispanic/Latino (H/L); or,
4.5.k.3.B. Nonhispanic/Latino (NH/L);
4.5.k.4. The age of the operator;
4.5.l. The United States Postal ZIP Code that include the operator's home address;
4.5.m. The number of occupants in the vehicle other than the operator;
4.5.n. Whether a search was performed as a result of the stop and, if so:
4.5.n.1. The authority for the search, including :
4.5.n.1.A. Consent;
4.5.n.1.B. Reasonable Suspicion/Weapon;
4.5.n.1.C. Incident to Arrest;
4.5.n.1.D. Inventory;
4.5.n.1.E. Probable Cause;
4.5.n.1.F. Plain View;
4.5.n.1.G. Probation/Parole Waiver; and,
4.5.n.1.H. Other;
4.5.n.2. Whether the following were searched:
4.5.n.2.A. Vehicle;
4.5.n.2.B. Driver;
4.5.n.2.C. Passenger(s); and
4.5.n.2.D. Personal Effects;
4.5.n.3. Whether contraband was discovered or seized in the course of the search;

4.5.o. The disposition of the stop, including:
4.5.o.1. Issuance of a citation or warning;
4.5.o.2. Arrest of the operator or a passenger;
4.5.o.3. Courtesy service or assistance;
4.5.o.6. No action taken; and
4.5.p. Instructions detailing how to complete and submit the Form. The instructions may be included on the MSF itself, or provided as an attachment.
4.6. MSF Distribution. -- The Division shall distribute the Forms to all West Virginia law enforcement agencies in hard copy format on a monthly basis. The Division may distribute the Forms less or more frequently to a particular agency if the Commissioner determines that the monthly distribution does not meet the needs of that agency. Regardless how frequently the Forms are distributed to a particular agency, they shall be distributed in an amount sufficient to allow for the reporting of data for the greatest anticipated number of motor vehicle stops for that agency for any given calendar month. A law enforcement agency may request additional MVSFs from the Division as the need arises.
4.7. Additional Responsibilities of the Division of Motor Vehicles. -- Prior to October 1, 2006, the Division shall establish and submit to the Governor's Committee for approval a mechanism for:
4.7.a. Periodically reviewing data submitted on the MSF;
4.7.b. Ensuring that data submitted on the MSF is correct and usable pursuant to the requirements of this rule;
4.7.c. Returning incomplete or rejected MVSFs to law enforcement agencies for correction or completion; and
4.7.d. Removing duplicate data
§149-5-5. Data Reporting.
5.1. Reporting. -- Beginning January 1, 2007, each law enforcement agency shall submit all MVSFs completed by its officers to the Division, via United States Postal Service or any other reputable mail delivery service, hand-delivery or, at the discretion of the Division, electronically .
5.2. Reporting Frequency. -- Each agency shall submit all MVSFs on a monthly basis, and they must be received by the Division no later than close of business, normal operating hours, on the fifteenth (15th) day following the end of the reporting calendar month.
5.3. MVSFs Condition and Usability. -- MVSFs which are incomplete, incorrect or are submitted in unusable condition shall be returned to the agency for completion or correction.
5.4. MSF Completion Training. -- On or after July 1, 2006, the Director shall, In consultation with the Fraternal Order of Police, the Sheriff's Association, the Trooper's Association, the Deputy Sheriff's Association, and the Chiefs of Police Association, develop an appropriate program for training officers on how to complete and submit MVSFs. Every law enforcement officer must receive this training prior to January 1, 2007, and must be able, upon completion of the training, to successfully complete and submit the MSF in a manner usable for the purposes of this rule. Additional and/or ongoing training may be required by the law enforcement agency or by the Division if problematic reporting is identified.
5.5. The chief executive or law enforcement official of the agency shall ensure that the requirements of this section are met by periodically auditing and reviewing MVSFs submitted by the officers within his or her agency to ensure that the facts of the stops taking place are not being intentionally misrepresented.
§149-5-6. Non-compliance of Reporting.
If a law enforcement agency fails to comply with the provisions of section 5 of this rule, the Division shall notify the agency by certified mail of its noncompliance and require the agency to comply within fifteen (15) calendar days. If the law enforcement agency fails to comply within this fifteen (15) day extension period, the Division shall recommend to the Governor, in writing, that State-controlled funds appropriated to the agency be withheld until the requirements of section 5 are met.
§149-5-7. Receipt and Retention of MSF.
The Commissioner shall establish a written policy designed to address reasonably foreseeable complications which may arise as a result of receiving and retaining MVSFs, including, but not limited to:
1. A mechanism for identifying the time, day, date and year the MSF was received by the Division;
2. A mechanism for maintaining accurate and easily accessible data regarding the reporting habits of individual law enforcement agencies; and,
3. The identification of an appropriate and logistically feasible time period to retain MVSFs submitted in hard copy format or electronically as a result of this rule.
§149-5-8. Individual Law Enforcement Agency Data Request and Release.
8.1. Individual Agency Data Release Request. -- Upon written request by the chief executive or law enforcement official, the Division shall provide, within thirty (30) calendar days, data regarding the officers of the chief executive or official's agency. This request must be in writing and must be received by the Division no sooner than thirty (30) days after the end of the calendar month for which the data is being requested. The data shall be organized so as to allow the chief executive or law enforcement official the ability to review the information collected for his or her agency and officers and shall be grouped for periods covering at least one calendar month.
8.2. Individual Agency Data Release. -- The Division may not release data regarding individual law enforcement agencies and officers to anyone other than the Governor's Committee or the chief executive or official who has requested the data for his or her officers or agency in accordance with subsection 1 of this section.
§149-5-9. Data limitations and individual officer anonymity and exemption.
9.1. Any and all data collected, reported, compiled and issued as a result of this rule will be used only for the purposes outlined in this rule.
9.2. Except as provided in section 7 of this rule, no individual officer information may be released in any manner to any person or entity. The Division, the Governor's Committee and any chief executive or law enforcement official shall take appropriate safeguards to protect the identity of individual officers collecting data pursuant to this rule at all times.
§149-5-10. Methodology of Data Compilation.
On or before July 1, 2006, the Division will submit to the Governor's Committee for approval a written proposal stating the method by which the data collected on the MVSFs will be compiled and provided to the Governor's Committee for analysis. The methodology proposed and selected must enable the Governor's Committee to analyze the data so as to accomplish it obligations under subsections 11.2. and 11.3 of this rule.
§149-5-11. Governor's Committee on Crime Delinquency and Correction Annual Report.
11.1. On or before the thirty-first day of January, two thousand eight, the Commissioner shall provide the Director in electronic delimited text format, the data collected from the MSF. In addition to the data collected from the MSF, the Commissioner shall provide any other data required by the Governor's Committee to fulfill its obligations under subsections 11.2. and 11.3 of this rule. This data shall include, but not be limited to:
11.1.a. Estimates of the number of vehicles traveling on the public highways; and,
11.1.b. Demographic characteristics of registered vehicle owners and/or licensed drivers by zip codes and/or other geographical identifiers.
11.2. On or before the first day of July, two thousand eight, the Director shall publish a preliminary public report of the data collected and provide a copy thereof to all law enforcement agencies subject to this rule in hard copy or electronic format. A copy of the report and analysis of the data collected shall also be provided to the Governor and to the Joint Committee on Government and Finance.
11.3. On or before the first day of February, two thousand nine, the Director shall publish a final public report of the data collected and provide a copy thereof to all law enforcement agencies subject to this rule in hard copy or electronic format. A copy of the report and analysis of the data collected shall also be provided to the Governor and to the Joint Committee on Government and Finance. At a minimum, this public report shall include, but not be limited to, the following information resulting from the provisions of this rule:
11.3.a. An executive summary which summarizes the findings of the report;
11.3.b. The number of motor vehicle stops and searches of motor vehicles occupied by members of a perceived minority group;
11.3.c. The number of motor vehicle stops and searches of motor vehicles occupied by persons who are not members of a minority group;
11.3.d. The population of minorities in the areas where the stops occurred;
11.3.e. Estimates of the number of all vehicles traveling on the public highways where the stops occurred;
11.3.f. Factors to be included in any evaluation that the data may indicate racial profiling, racial stereotyping or other race-based discrimination or selective enforcement; and,
11.3.g. Other data deemed appropriate by the Governor's Committee on Crime, Delinquency and Correction for the analysis of the protection of constitutional rights.'
§64-9-6. Board of Examiners for Licensed Practical Nurses.
The legislative rule filed in the State Register on the fifth day of July, two thousand five, authorized under the authority of section five, article seven-a, chapter thirty of this code, modified by the State Board of Examiners for Licensed Practical Nurses to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the first day of November, two thousand five, relating to the State Board of Examiners for Licensed Practical Nurses (policies regulating licensure of the licensed practical nurse, 10 CSR 2), is authorized, with the following amendment:"
On page two, section 8, at the beginning of the second sentence in the section, by striking out the words "If the board participates" and inserting in lieu thereof the words "Should the board participate"; and,
On page three, subsection 11.2, in the second sentence, by striking out the words "marriage certificate or divorce decree" and inserting in lieu thereof the words "marriage certificate, divorce decree or an order of a court of competent jurisdiction.
§64-9-7. Board of Occupational Therapy.
The legislative rule filed in the State Register on the twenty-seventh day of June, two thousand five, authorized under the authority of section six, article twenty-eight, chapter thirty of this code, modified by the Board of Occupational Therapy to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on the twenty-first day of November, two thousand five, relating to the Board of Occupational Therapy (administrative rule of the Board of Occupational Therapy and licensure of occupational therapists and occupational therapy assistants, 13 CSR 1), is authorized, with the following amendment:
On page two, subdivision 2.8.b, after the words "direct line of" by striking out the word "site" and inserting in lieu thereof the word "sight";
On page three, subsection 3.4, by striking out the words 'one hundred dollars ($100.00)' and inserting in lieu thereof the words 'fifty dollars ($50.00)';
On page six, subsection 9.2.a.1, by striking out the words 'for ninety (90) days from date of issuance of the limited permit' and inserting in lieu thereof the words 'until the date on which the results of the next qualifying examination have been made public';
On page six, subsection 9.2.b.1, by striking out the words 'for ninety (90) days from the date of issuance of the limited permit' and inserting in lieu thereof the words 'one (1) year or until eligibility to sit for the certification exam is withdrawn or the results of the certification exam have been made public'; and,
On page twelve, subsection 13.3, after the words 'licensed Occupational Therapist supervising' by striking out the word 'and' and inserting in lieu thereof the word 'an'.
§64-9-8. Board of Optometry.
(a) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section three, article eight, chapter thirty of this code, relating to the Board of Optometry (rules for the West Virginia Board of Optometry, 14 CSR 1), is authorized.
(b) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section three, article eight, chapter thirty of this code, relating to the Board of Optometry (schedule of fees, 14 CSR 5), is authorized.
§64-9-9. Board of Osteopathy.
The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section one, article fourteen-a, chapter thirty of this code, modified by the Board of Osteopathy to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-third day of January, two thousand six, relating to the Board of Osteopathy (osteopathic physician assistants, 24 CSR 2), is authorized with the following amendments:
On page four, subdivision 2.6.1, by striking the words "three (3) physician assistants" and inserting in lieu thereof, the following "two (2) physician assistants".
On page eleven, subdivision 2.12.8., line one, after the word "assistant", by inserting the word "not".
On page sixteen, subdivision 2.14.1, by striking the subdivision in its entirety and inserting in lieu thereof the following:
"2.14.1 Each osteopathic physician assistant, as a condition of biennial renewal of osteopathic physician assistant license, shall provide written documentation of participation in and successful completion of a minimum of twenty (20) hours of continuing education, during each year of the two year period, in courses approved by the Board for the purposes of continuing education of osteopathic physician assistants.
§64-9-10. Board of Pharmacy.
The legislative rule filed in the State Register on the seventh day of July, two thousand five, authorized under the authority of sections six and seven, article ten, chapter sixty-a of this code, modified by the Board of Pharmacy to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the eleventh day of October, two thousand five, relating to the Board of Pharmacy (ephedrine and pseudoephedrine control, 15 CSR 11), is authorized.
§64-9-11. Board of Examiners of Psychologists.
The legislative rule filed in the State Register on the twenty-eighth day of July, two thousand five, authorized under the authority of section six, article twenty-one, chapter thirty of this code, modified by the Board of Examiners of Psychologists to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on the fourth day of January, two thousand six, relating to the Board of Examiners of Psychologists (qualifications for licensure as a psychologist or a school psychologist, 17 CSR 3), is authorized, with the following amendments:"
On page one, subsection 2.2., by striking out the word "institute" and inserting in lieu thereof the word "institution".
On page five, subsection 8.4., after the word "as" by striking out the word "a".
On page seven, paragraph 12.1.d., by striking out "@" and inserting in lieu thereof a quotation mark.
And,
On page seven, section 12.7., by striking out the word "loner" and inserting in lieu thereof the word "longer".
§64-9-12. Radiologic Technology Board of Examiners.
(a) The legislative rule filed in the State Register on the twenty-first day of July, two thousand five, authorized under the authority of section five, article twenty-three, chapter thirty of this code, relating to the Radiologic Technology Board of Examiners (rule of the West Virginia Radiologic Technology Board of Examiners, 18 CSR 1), is authorized.
(b) The legislative rule filed in the State Register on the twenty-eighth day of July, two thousand five, authorized under the authority of section five, article twenty-three, chapter thirty of this code, modified by the Radiologic Technology Board of Examiners to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-eighth day of December, two thousand five, relating to the Radiologic Technology Board of Examiners (standard of ethics, 18 CSR 5), is authorized, with the following amendment:
On page two, at the end of section 4.1, after the words "comfort of patients." by inserting the words "The individual shall:".
On page two, subsection 4.1.1, by striking the words "The individual shall".
On page two, subsection 4.1.1, after the words "in a professional manner," by striking out the word "responds" and inserting in lieu thereof the word "respond".
On page two, subsection 4.1.1, after the words "to patient needs and" by striking out the word "supports" and inserting in lieu thereof the word "support".
On page two, subsection 4.1.4, after the words "theoretical knowledge and concepts," by striking out the word "uses" and inserting in lieu thereof the word "use".
On page two, subsection 4.1.4, after the words "they were designed, and" by striking out the word "employs" and inserting in lieu thereof the word "employ".
On page two, subsection 4.1.5, after the words "assess situations;" by striking out the word "exercises" and inserting in lieu thereof the word "exercise".
On page two, subsection 4.1.5, after the words "discretion and judgment;" by striking out the word "assumes" and inserting in lieu thereof the word "assume".
On page two, subsection 4.1.5, after the words "professional decisions; and" by striking out the word "acts" and inserting in lieu thereof the word "act".
On page two, subsection 4.1.6, after the words "treatment of the patient and" by striking out the word "recognizes" and inserting in lieu thereof the word "recognize".
On page two, subsection 4.1.7, by striking out the first word "uses" and inserting in lieu thereof the word "use".
On page two, subsection 4.1.7, after the words "equipment and accessories," by striking out the word "employs" and inserting in lieu thereof the word "employ".
On page two, subsection 4.1.7, after the words "techniques and procedures," by striking out the word "performs" and inserting in lieu thereof the word "perform".
On page two, subsection 4.1.7, after the words "standard of practice, and" by striking out the word "demonstrates" and inserting in lieu thereof the word "demonstrate".
On page two, subsection 4.1.8, after the words "appropriate to the profession and" by striking out the word "protects" and inserting in lieu thereof the word "protect".
On page two, subsection 4.1.9, after the words "course of professional practice," by striking out the word "respects" and inserting in lieu thereof the word "respect".
On page three, section 5.1, after the words "for all present Licensees," by striking out the word "Permittee"s" and inserting in lieu thereof the word "Permittees".
On page three, at the end of section 5.1, after the words "An individual" by striking out the word "shall" and inserting in lieu thereof the word "may".
On page three, subdivision 5.1.2(a), after the words "examination of the Board;" and before the words "disclosing information" by striking out the word "or".
On page three, subdivision 5.1.2(a), after the words "understood by the recipient as" by striking out the comma and the words "any portion of or".
On page four, subdivision 5.1.2(c), after the word "impersonating" by striking out the word "a" and inserting in lieu thereof the word "an".
On page four, subdivision 5.1.5(a), after the words "rule or regulation exists," by inserting the words "a departure from or failure to conform".
On page four, subdivision 5.1.5(b), after the words "danger to a" by striking out the word "patient's" and inserting in lieu thereof the word "patient's".
On page five, subsection 5.1.7, after the words "reasonable skill and safety" by striking out the words "to patients".
On page five, subsection 5.1.7, after the words "any other material" by striking out the semicolon inserting in lieu thereof a comma.
On page five, subsection 5.1.9, after the words "harm the public; or" by striking out the word "demonstrating" and inserting in lieu thereof the word "demonstrate".
On page five, subsection 5.1.10, after the words "demeaning to a patient" by striking out the semicolon and inserting in lieu thereof a comma.
On page five, subsection 5.1.10, after the words "to a patient, or" by striking out the word "engaging" and inserting in lieu thereof the word "engage".
On page five, in the last sentence of subsection 5.1.10 after the word "This" by inserting the word "subsection".
On page five, subsection 5.1.12, after the words "or otherwise" by striking out the word "participating" and inserting in lieu thereof the word "participate".
On page five, subsection 5.1.14, after the words "assist, advise or" by striking out the word "allowing" and inserting in lieu thereof the word "allow".
On page five, subsection 5.1.14, after the words "appropriate state permit" by striking out the comma.
On page six, section 5.2, by striking the words "Convictions, criminal proceedings or military court-martials." and inserting in lieu thereof the words "An individual must report convictions, criminal proceedings or military court-martials as set forth in this section:".
On page six, subsection 5.2.1, after the words "abuse related violations" by striking out the words "must be reported".
On page six, subsection 5.2.2, after the words "nolo contendere" by striking out the words "must be reported".
On page six, subsection 5.2.3, after the words "patient-related infractions" by striking out the words "must be reported".
§64-9-13. Real Estate Appraiser Licensure and Certification Board.
(a) The legislative rule filed in the State Register on the eleventh day of July, two thousand five, authorized under the authority of section seven, article thirty-eight, chapter thirty of this code, modified by the Real Estate Appraiser Licensure and Certification Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the eighteenth day of January, two thousand six, relating to the Real Estate Appraiser Licensure and Certification Board (requirements for licensure and certification, 190 CSR 2), is authorized.
(b) The legislative rule filed in the State Register on the eleventh day of July, two thousand five, authorized under the authority of section nine, article thirty-eight, chapter thirty of this code, relating to the Real Estate Appraiser Licensure and Certification Board (renewal of licensure and certification, 190 CSR 3), is authorized.
§64-9-14. Secretary of State.
(a) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section forty-eight, article one, chapter three of this code, modified by the Secretary of State to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the tenth day of January, two thousand six, relating to the Secretary of State (loan program for purchase of voting equipment, software and services, 153 CSR 10), is authorized, with the following amendment:
On page one, subsection 1.1., line one, after the words "administration of the", by inserting the words "County Assistance Voting Equipment Fund ('Fund')".
On page one, subsection 1.1., by striking out the words "S. B. 3002" and inserting in lieu thereof the words "W. Va. Code §3-1-48".
On page one, section 2., by striking out the words "County commissions" and inserting in lieu thereof the words "A county commission".
On page one, section 2., after the word "loan", by inserting the words "from the Fund".
On page one, section 2., after the words "related services", by inserting a comma.
On page one, subsection 3.1., after the words "requesting a loan", by striking out the comma and inserting the words "from the Fund".
On page one, subdivision 3.2.a., by striking out the word "County" and inserting in lieu thereof the word "county".
On page one, subdivision 3.2.c., after the word "funds", by inserting a comma.
On page two, section 4.1, by striking out the words "County commissions" and inserting in lieu thereof the words "A county commission".
On page two, section 4.1, after the words "obtain a loan", by inserting the words "from the Fund".
On page two, subsection 4.2., after the words "fifty percent" by inserting "(50%)".
On page two, subsection 4.2., by striking out the words "required by the county commission".
On page two, subsection 4.2., after the words "Commission that" by striking out the word "it" and inserting in lieu thereof the words "the county commission".
On page two, section 4.3, by striking out the words "County commissions" and inserting in lieu thereof the words "A county commission".
On page two, section 5., by striking out the word "only".
On page two, section 5., after the words "approved by the State Election Commission", by inserting the word "only".
On page two, section 5., after the word "services", by inserting the words "and only".
On page two, section 5., after the words "if certified", by inserting a comma and the words "when necessary,".
On page two, section 5., by striking out the words "if applicable".
On page two, section 6., by striking out the word "contracted" and inserting in lieu thereof the word "contract".
On page three, section 6., after the word "county", by inserting a period, striking out the words "and the" and inserting in lieu thereof the word "The".
On page three, subsection 7.1., after the words "forty-five days", by striking out the words "of receipt".
On page three, subsection 7.1., after the words "a denial", by striking out the words "shall have" and inserting in lieu thereof the word "has".
On page three, subsection 7.2., after the word "loan" by striking out the colon and the words "Provided that" and inserting in lieu thereof the word "if".
On page three, subsection 7.3., by striking out the words "a period not to exceed five years or".
On page three, subsection 7.3., after the words "length of the contract", by inserting a comma and the words "not to exceed five years".
On page three, subsection 7.3., after the word "services", by inserting a period and striking out the remainder of the sentence.
On page three, subsection 7.4., after the words "basis for", by striking out the word "repayment".
On page three, subsection 7.4., after the word "allow", by inserting the word "a".
On page three, subsection 7.4., by striking out the words "continuation for a period of" and inserting in lieu thereof the words "to continue for".
On page three, subsection 7.4., by striking out the word "total".
On page three, section 8., after the words "one request" by striking out the comma and the words "will be" and inserting in lieu thereof the word "is".
On page three, section 8., after the words "time of the request" by changing the comma to a period, striking out the word "the" and inserting in lieu thereof the word "The".
On page three, section 8., line five, after the words "presidential election", by changing the colon to a period and by striking out the remainder of the section.
On page three, section 9., after the words "The loan", by striking out the word "shall" and inserting in lieu thereof the word "may".
On page three, section 9., after the words "apply for", by striking out the words "matching funds" and inserting in lieu thereof the words "a loan".
On page four, section 10., after the words "voting system" by striking out the comma and the words "shall be" and inserting in lieu thereof the word "is".
On page four, section 10., after the words "loan proceeds", by striking out the comma and the words "that will be available to such counties under this loan program according to section 8 of this rule" and inserting in lieu thereof the words "available to any such county".
On page four, subsection 11.3., by placing quotation marks around the words "Nonpayment of the loan installments" and by striking out the words "shall mean" and inserting in lieu thereof the word "means".
On page four, subsection 11.4., by striking out the word "Any" inserting in lieu thereof the word "The Secretary of State will cease any".
On page four, subsection 11.4., after the words "legal action", by striking out the words "will cease".
On page four, subsection 11.4., by striking out the words "shall be" and inserting in lieu thereof the word "is".
(b) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of sections nine-a and nine-b, article four-a, chapter three of this code, modified by the Secretary of State to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on the tenth day of January, two thousand six, relating to the Secretary of State (public testing of ballot-marking voting systems and precinct ballot-scanning devices, 153 CSR 11), is authorized, with the following amendment:
On page one, subsection 1.1., after the words "ballot scanning", by striking out the words "the approval and use of various types of vote recording devices" and inserting in lieu thereof the word "systems".
On page one, subdivision 2.1.a., after the words "system ballot", by striking out the comma.
On page one, section 3., by striking out the word "will" and inserting in lieu thereof the word "shall".
On page one, subsection 5.1., by striking out the word "annually" and inserting in lieu thereof the words "every two years".
(c) The legislative rule filed in the State Register on the twenty-first day of June, two thousand five, authorized under the authority of section three, article three, chapter thirty-nine-a of this code, modified by the Secretary of State to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the tenth day of January, two thousand six, relating to the Secretary of State (use of digital signatures, state certificate authority and state repository, 153 CSR 30), is authorized.
§64-9-15. Statewide Addressing and Mapping Board.
(a) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section five, article one, chapter twenty-four-e of this code, modified by the Statewide Addressing and Mapping Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventeenth day of October, two thousand five, relating to the Statewide Addressing and Mapping Board (final distribution and use of the statewide addressing and mapping fund, 169 CSR 3), is authorized, with the following amendment:
On page two, subsection 2.1, following the words "in the fund" and the comma by striking the words "in the same proportions and manner as wireless enhanced 911 fees are distributed to county commissions under W.Va. Code §24-6-6b for the year in which the remaining amounts from the fund are distributed" and inserting the words "according to the formula contained in W.Va. Code §24-6-6b(d)(1): Provided, That the provisions of §24-6-6b(d)(1) by which a county may receive a special eight and one half tenths of one percent because of the date upon which it enacted its 911 ordinance are not applicable to the apportionment of funds transferred pursuant to this rule.
(b) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section nine, article one, chapter twenty-four-e of this code, modified by the Statewide Addressing and Mapping Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the eleventh day of October, two thousand five, relating to the Statewide Addressing and Mapping Board (standard fees for planimetric elevation data, 169 CSR 4), is authorized, with the following amendment:
On page three, subdivision 2.2.a., following the word "Fund" and the period, by striking out the remainder of subdivision 2.2.a.; and,
On page three, subdivision 2.2.b., following the word "purposes" and the period, by striking out the remainder of subdivision 2.2.b.
§64-9-16. Board of Veterinary Medicine.
(a) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section four, article ten, chapter thirty of this code, modified by the Board of Veterinary Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of October, two thousand five, relating to the Board of Veterinary Medicine (organization and operation, 26 CSR 1), is authorized, with the following amendment:
On page ten, subsection 9.4, by striking out the underlined words "or any authorized reporting agent";
On page eleven, subsection 9.5, by striking out the word "investigation" and striking out the underlined words "legal fees"; and,
On page eleven, subsection 9.5, by striking out the words "to the veterinarian who was the subject of disciplinary action" and inserting in lieu thereof the words "to a veterinarian against whom disciplinary action was taken."
(b) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section nine, article ten-a, chapter thirty of this code, modified by the Board of Veterinary Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of October, two thousand five, relating to the Board of Veterinary Medicine (certified animal euthanasia technicians, 26 CSR 5), is authorized.
(c) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand five, authorized under the authority of section four, article ten, chapter thirty of this code, relating to the Board of Veterinary Medicine (schedule of fees, 26 CSR 6), is authorized."
Delegate Overington moved to amend the amendment on page two, section one, line eighteen, after the word "authorized" by striking the period and inserting in lieu thereof the following:
"with the following amendment:
'On page four, section three, following subsection 3.7, by inserting a new subdivision, designated subdivision "3.8", to read as follows:
'3.8 The Authority, Board or any County Farmland Board is prohibited from acquiring land or property that is not currently being used as farmland or is not currently usable as farmland."
On the adoption of the amendment to the amendment, Delegate Overington demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 556), and there were--yeas 24, nays 73, absent and not voting 3, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Blair, Border, Canterbury, Carmichael, Duke, Fragale, Frich, Howard, Lane, Leggett, Louisos, Moore, Overington, Porter, Roberts, Rowan, Schadler, Sobonya, Stevens, Sumner, Susman and Tansill.
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted.
The amendment recommended by the Committee on the Judiciary was then adopted. There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 557), and there were--yeas 87, nays 10, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Armstead, Blair, Border, Frich, Lane, Schadler, Sobonya, Stevens, Walters and Wells.
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 299) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 558), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 299) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 361, Relating to investment powers of Investment Management Board; on third reading, coming up in regular order, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §5-10D-1, §5-10D-2 and §5-10D-3 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 §5-10D-8; and that §12-6-1a, §12-6-2, §12-6-3, §12-6-4, §12-6-5, §12-6-9c and §12-6-12 of said code be amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,

SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD

OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,

OFFICES, PROGRAMS, ETC.

ARTICLE 10D. CONSOLIDATED PUBLIC RETIREMENT BOARD.
§5-10D-1. Consolidated Public Retirement Board continued; members; vacancies; investment of plan funds.

(a) The Consolidated Public Retirement Board is continued to administer all public retirement plans in this state. It shall administer the Public Employees Retirement System established in article ten of this chapter; the Teachers Retirement System established in article seven-a, chapter eighteen of this code; the Teachers Defined Contribution Retirement System created by article seven-b of said chapter; the West Virginia State Police Death, Disability and Retirement Fund created by article two, chapter fifteen of this code; the West Virginia State Police Retirement System created by article two- a of said chapter; the Deputy Sheriff Death, Disability and Retirement Fund created by article fourteen-d, chapter seven of this code; and the Judges' Retirement System created under article nine, chapter fifty-one of this code and provide oversight of the Investment Management Board in its investment of these funds.
(b) The membership of the Consolidated Public Retirement Board consists of:
(1) The Governor or his or her designee;
(2) The State Treasurer or his or her designee;
(3) The State Auditor or his or her designee;
(4) The Secretary of the Department of Administration or his or her designee;
(5) Four residents of the state, who are not members, retirants or beneficiaries of any of the public retirement systems, to be appointed by the Governor, with the advice and consent of the Senate; and
(6) A member, annuitant or retirant of the Public Employees Retirement System who is or was a state employee; a member, annuitant or retirant of the Public Employees Retirement System who is not or was not a state employee; a member, annuitant or retirant of the Teachers Retirement System; a member, annuitant or retirant of the West Virginia State Police Death, Disability and Retirement Fund; a member, annuitant or retirant of the Deputy Sheriff Death, Disability and Retirement Fund; and a member, annuitant or retirant of the Teachers Defined Contribution Retirement System all to be appointed by the Governor, with the advice and consent of the Senate.
(c) The appointed members of the board serve five-year terms. A member appointed pursuant to subdivision (6), subsection (b) of this section ceases to be a member of the board if he or she ceases to be a member of the represented system. If a vacancy occurs in the appointed membership, the Governor, within sixty days, shall fill the vacancy by appointment for the unexpired term. No more than five appointees may be of the same political party.
(d) The Consolidated Public Retirement Board has all the powers, duties, responsibilities and liabilities of the Public Employees Retirement System established pursuant to article ten of this chapter; the Teachers Retirement System established pursuant to article seven-a, chapter eighteen of this code; the Teachers Defined Contribution System established pursuant to article seven-b of said chapter; the West Virginia State Police Death, Disability and Retirement Fund created pursuant to article two, chapter fifteen of this code; the West Virginia State Police Retirement System created by article two-a of said chapter; the Deputy Sheriff Death, Disability and Retirement Fund created pursuant to article fourteen-d, chapter seven of this code; and the Judges' Retirement System created pursuant to article nine, chapter fifty-one of this code and their appropriate governing boards.
(e) The Consolidated Public Retirement Board may propose rules for legislative approval, in accordance with article three, chapter twenty-nine-a of this code, necessary to effectuate its powers, duties and responsibilities: Provided, That the board may adopt any or all of the rules, previously promulgated, of a retirement system which it administers.
(f) The Consolidated Public Retirement Board shall continue to transfer all funds received for the benefit of the retirement systems within the consolidated pension plan as defined in section three- c, article six-b, chapter forty-four of this code, including, but not limited to, all employer and employee contributions, to the West Virginia Investment Management Board: Provided, That the employer and employee contributions of the Teachers Defined Contribution System, established in section three, article seven-b, chapter eighteen of this code, and voluntary deferred compensation funds invested by the West Virginia Consolidated Public Retirement Board pursuant to section five, article ten-b of this chapter may not be transferred to the West Virginia Investment Management Board.
(g) Notwithstanding any provision of this code or any legislative rule to the contrary, all assets of the public retirement plans set forth in subsection (a) of this section shall be held in trust. The Consolidated Public Retirement Board is a trustee for all public retirement plans, except with regard to the investment of funds: Provided, That the Consolidated Public Retirement Board is a trustee with regard to the investments of the Teachers Defined Contribution System, the voluntary deferred compensation funds invested pursuant to section five, article ten-b of this chapter and any other assets of the public retirement plans administered by the Consolidated Public Retirement Board as set forth in subsection (a) of this section for which no trustee has been expressly designated in this code.
(h) The board may employ the West Virginia Investment Management Board to provide investment management consulting services for the investment of funds in the Teachers Defined Contribution System.
§5-10D-2. Chairman and vice chairman; executive director; employees; legal advisor; actuary.

(a) The Secretary of the Department of Administration shall serve as the board's chairman. The board shall elect from its own number a chairman and vice chairman.
(b) The board shall appoint an executive director of the retirement systems. The executive director shall be the chief administrative officer of all the systems and he or she shall not be a member of the board. He or she shall perform such duties as are required of him or her in this article and as the board from time to time delegates to him or her. The compensation of the executive director shall be fixed by the board subject to the approval of the Governor. The executive director shall, with the approval of the board of trustees, employ any administrative, technical and clerical employees required in the proper operation of the systems.
(c) Notwithstanding the provisions of section two, article three of this chapter, the board shall employ and be represented by an attorney licensed to practice law in the State of West Virginia who is not an active member of any of the retirement systems administered by the board.
(d) An actuary, employed by the state or the board pursuant to section four of this article, shall be the actuarial consultant to the board.
§5-10D-3. Board meetings; quorum; vote; proceedings; compensation.
(a) The board shall hold a meeting at least once each three months, and shall designate the time and place of the meeting. Seven voting trustees constitute a quorum at any meeting of the board. Each member is entitled to one vote on each question before the board. The board shall adopt its own rules of procedure and shall keep a record of its proceedings. All meetings of the board shall be public.
(b) Each January the board shall hold a joint meeting with the investment management board to comprehensively review portfolio holdings and asset allocations, investment performance, portfolio risk and risk tolerance, investment policy and strategy, stability, turnover, liquidity, investment management board's budget and administrative expenses, investment management fees, plan actuarial valuations, plan discount rates and matters arising from the investment oversight activities of the board. The meeting shall be jointly organized by the staffs of both boards and chaired by the Governor. The meeting shall be open to the public.
(c) The members shall serve as members without compensation for their services as such: Provided, That each member shall be reimbursed, upon approval of the board, for any necessary expenses actually incurred by him or her in carrying out his or her duties. No public employee member may suffer any loss of salary or wages on account of his or her service as trustee.
§5-10D-8. Oversight of the Investment Management Board; findings; duty to monitor investment management board; audits, performance and consultant reviews and studies; performance measures; access to information; annual report.

(a) The Legislature finds that it has created the Investment Management Board, under article six, chapter twelve of this code, to possess extensive expertise in the investment of public funds and the Consolidated Public Retirement Board, under this article, to possess extensive knowledge of retirement benefits and a stakeholder interest in the optimal investment of retirement funds and efficient use of resources for the administration of pension fund investment.
(b) The board shall perpetually monitor the activities of the Investment Management Board, including the acquisition, disposition and retention of investments; the allocation of investment between classes, styles and strategies of permissible investments; investment performance; levels and changes of portfolio risk; determination and reconsideration of risk tolerance; promulgation of investment policy and strategy; maintenance of portfolio diversity, stability, turnover and liquidity; administrative expenses and budget; management fees; and conformance to the investment restrictions, limitations and requirements imposed by law.
(c) The board may commission or direct such audits, performance and consultant reviews and studies of the Investment Management Board as may be necessary to fulfill the requirements of this subsection:
Provided, That this activity shall occur at the expense of the board.
(d) The board request the Investment Management Board to maintain performance measures that would be useful in fulfilling the requirements of this section.
(e) The board and its employees shall be granted access to all books, records, employees, members and vendors of the investment management board.
(f) Within the first seven calendar days of each calendar year, the board shall file an annual report with the Joint Committee on Government and Finance summarizing its oversight activities of the Investment Management Board; any audit or review findings and recommendations; board recommendations, accolades, concerns or other feedback regarding investment performance, policies, laws, practices and matters relating to this oversight.


CHAPTER 12. PUBLIC MONEYS AND SECURITIES.

ARTICLE 6. WEST VIRGINIA INVESTMENT MANAGEMENT BOARD.
§12-6-1a. Legislative findings.

(a) The Legislature hereby finds and declares that all the public employees covered by the Public Employees Retirement System, the Teachers Retirement System, the West Virginia State Police Retirement System, the Death, Disability and Retirement Fund of the Division of Public Safety, the Judges' Retirement System and the Deputy Sheriffs Retirement System should benefit from a prudent and conscientious staff of financial professionals dedicated to the administration, investment and management of those employees and employers financial contributions and that an independent board and staff should be immune to changing political climates and should provide a stable and continuous source of professional financial investment and management.
(b) The Legislature finds and declares that teachers and other public employees throughout the state are experiencing economic difficulty and that in order to reduce this economic hardship on these dedicated public employees and to help foster sound financial practices, the West Virginia Investment Management Board may develop, implement and maintain an efficient and modern system for the investment and management of the state's money, except those moneys managed in accordance with article six-c of this chapter. The Legislature further finds that in order to implement these sound fiscal policies, the West Virginia Investment Management Board shall operate as an independent board with its own full-time staff of financial professionals, immune to changing political climates, in order to provide a stable and continuous source of professional financial management.
(c) The Legislature hereby finds and declares further that experience has demonstrated that prudent investment provides diversification and beneficial return not only for public employees but for all citizens of the state and that in order to have access to this sound fiscal policy, public employee and employer contributions to the 401(a) plans are declared to be made to an irrevocable trust on behalf of each plan, available for no use or purpose other than for the benefit of those public employees.
(d) The Legislature hereby finds and declares further that the Workers' Compensation Old Fund and Coal-Workers' Pneumoconiosis Fund are trust funds to be used exclusively for those workers, miners and their beneficiaries who have sacrificed their health in the performance of their jobs and further finds that the assets available to pay awarded benefits should be prudently invested so that awards may be paid.
(e) The Legislature hereby finds and declares further that an independent public body corporate with appropriate governance is the best means of assuring prudent financial management of these funds under rapidly changing market conditions and regulations.
(f) The Legislature hereby finds and declares further that in accomplishing this purpose, the West Virginia Investment Management Board, created and established continued and reestablished by this article, is acting in all respects for the benefit of the state's public employees and ultimately the citizens of the state and the West Virginia Investment Management Board may act as trustee of the irrevocable trusts created by this article and to manage and invest other state funds.
(g) The Legislature hereby finds and declares further that the standard of care and prudence applied to trustees, the conduct of the affairs of the irrevocable trusts created by this article and the investment of other state funds is intended to be that applied to the investment of funds as described in the 'Uniform Prudent Investor Act' codified as article six-c, chapter forty-four of this code and as described in section eleven of this article.
(h) The Legislature further finds and declares that the West Virginia Supreme Court of Appeals declared the West Virginia Trust Fund Act unconstitutional in its decision rendered on the twenty-eighth day of March, one thousand nine hundred ninety-seven, to the extent that it authorized investments in corporate stock, but the court also recognized that there were other permissible constitutional purposes of the West Virginia Trust Fund Act and that it is the role of the Legislature to determine those purposes consistent with the court's decision and the Constitution of West Virginia.
(I) The Legislature hereby further finds and declares that it is in the best interests of the state and its citizens to create a new continue and reestablish the Investment Management Board in order to: (1) Be in full compliance with the provisions of the Constitution of West Virginia; and (2) protect all existing legal and equitable rights of persons who have entered into contractual relationships with the West Virginia Board of Investments and the West Virginia Trust Fund.
§12-6-2. Definitions.
As used in this article, unless a different meaning clearly appears from the context:
(1) 'Beneficiaries' means those individuals entitled to benefits from the participant plans;
(2) 'Board' means the governing body for the West Virginia Investment Management Board and any reference elsewhere in this code to board of investments or West Virginia trust fund means the board as defined in this subdivision;
(3) 'Consolidated fund' means the investment fund managed by the board and established pursuant to subsection (a), section eight of this article;
(4) (3) '401(a) plan' means a plan which is described in section 401(a) of the Internal Revenue Code of 1986, as amended, and with respect to which the board has been designated to hold assets of the plan in trust pursuant to the provisions of section nine-a of this article;
(5) (4) 'Local government funds' means the moneys of a political subdivision, including policemen's pension and relief funds, firemen's pension and relief funds and volunteer fire departments, transferred to the board for deposit;
(6) (5) 'Participant plan' means any plan or fund subject now or hereafter to subsection (a), section nine-a, article six of this chapter;
(7) (6) 'Political subdivision' means and includes a county, municipality or any agency, authority, board, county board of education, commission or instrumentality of a county or municipality and regional councils created pursuant to the provisions of section five, article twenty- five, chapter eight of this code;
(8) (7) 'Trustee' means any member serving on the West Virginia investment management board: Provided, That in section nine-a of this article in which the terms of the trusts are set forth, 'trustee' means the West Virginia investment management board;
(9) (8) 'Securities' means all bonds, notes, debentures or other evidences of indebtedness and other lawful investment instruments; and
(10) (9) 'State funds' means all moneys of the state which may be lawfully invested except the 'school fund' established by section four, article XII of the state constitution.
§12-6-3. West Virginia investment management board continued; body corporate; trust fund board; trustees; nomination and appointment of trustees, qualifications and terms of appointment, advice and consent; annual and other meetings; designation of representatives and committees; board meetings with committees regarding investment policy statement required; open meetings, qualifications.

(a) There is hereby continued the West Virginia Investment Management Board. The board is created as a governmental public body corporate and spending unit of the state established to provide prudent fiscal administration, investment and management for the funds of the participant plans and any other funds managed by the board.
(b) The board shall be governed by a board of trustees, consisting of thirteen members: Provided, That beginning with the reenactment of this section in the year two thousand six, the board shall continue to be governed by a board of trustees, which shall by attrition, transition to consist of nine members.
(1) Nominations made to the West Virginia trust fund board and the West Virginia board of investments shall remain in effect and are hereby specifically reauthorized and those members shall be members of the investment management board and shall serve out the remainder of their respective terms subject to the advice and consent of the Senate: Provided, That prior appointments which have been confirmed by the Senate are hereby specifically reauthorized without further action of the Senate. Members of the board upon reenactment of this section in the year two thousand six shall remain in place and shall serve out the remainder of their respective terms: Provided, That prior appointments which have been confirmed by the Senate are hereby specifically reauthorized for the duration of the confirmed term without further action of the Senate.
(2) Any appointment is effective immediately upon appointment by the Governor with respect to voting, constituting a quorum, receiving compensation and expenses and all other rights and privileges of the trustee position. All appointees shall have experience in pension management, institutional management or financial markets and one. One trustee shall be an attorney experienced in finance and investment matters; and one trustee shall be a certified public accountant; one shall possess a doctorate of philosophy in economics; one shall possess a doctorate of philosophy in finance; one shall possess the designation of 'Chartered Financial Analyst', 'Chartered Investment Counselor', 'Certified Fund Specialist' or 'Chartered Market Technician'; and one shall represent participants of the state retirement plans: Provided, That appointments following the reenactment of this section in the year two thousand six shall be made from among any specific professional, educational, representative requirements not represented on the board.
(3) The Governor, the State Auditor and the State Treasurer or their designees shall serve as members of the board. They shall serve by virtue of their office and are not entitled to compensation under the provisions of this article. The Governor, the Auditor and the Treasurer or their designees are subject to all duties, responsibilities and requirements of the provisions of this article, including, but not limited to, the provisions of subsections (e) and (f), section four of this article.
(c) As member terms expire the Governor may appoint or reappoint one member for each two that expire until the ultimate board membership of six appointed trustees is realized, at which time the Governor may appoint or reappoint one member for each one that expires. At the end of each trustee's term, the Governor may reappoint or appoint a successor who shall serve for a term ending on the thirty-first day of January in the sixth year following the year of his or her appointment: Provided, That for all terms ending in the year two thousand one, two appointments shall be for two- year terms; two appointments shall be for three-year terms; one shall be for a four-year term; and two shall be for six-year terms. Except for vacancy appointments made pursuant to subsection (d) of this section, all subsequent appointments shall be for terms ending on the thirty-first day of January in the sixth year following the year of appointment. No more than six four of the ten six appointed trustees may belong to the same political party. Two of the appointed six members shall be appointed from each of the state's congressional districts.
(d) In the event of a vacancy among the trustees, an appointment shall be made by the Governor to fill the unexpired term. If any member is unable to serve out the remainder of his or her term, no replacement shall be appointed until a vacancy reduces appointed membership to five appointed members at which time the Governor shall appoint a replacement to fill each unexpired term.
(e) The Governor may remove any trustee, other than trustees who serve by virtue of their elective office, in case of gross negligence or misfeasance and may declare that position vacant and may appoint a person for the vacancy as provided in subsection (d) of this section.
(f) Each trustee, other than those enumerated in subsection (b), subdivision (3) of this section, is entitled to receive and, at the trustee's option, the board shall pay to the trustee compensation in the amount of five thousand dollars per year and additional compensation in the amount of five hundred dollars per meeting attended by the trustee in excess of the four quarterly meetings required by this section. In addition, all trustees shall receive reasonable and necessary expenses actually incurred in discharging trustee duties pursuant to this article.
(g) The board shall meet quarterly and may include in its bylaws procedures for the calling and holding of additional meetings. For any quarterly or additional meeting in which the board shall review or modify its securities list or its investment objectives pursuant to subsection (f), section twelve of this article, the board shall give ten days' notice in writing to the designated representative of each participant plan selected pursuant to subdivision (1), subsection (I) of this section and the meeting shall be open to the members and beneficiaries of the participant plans for that portion of the meeting in which the board undertakes the review or modification.
(h) The board shall hold an annual meeting before the start of the fiscal year. The annual meeting may also serve as a quarterly meeting. The annual meeting shall be open to the public and the board shall receive oral and written comments from representatives, members and beneficiaries of the participant plans and from other citizens of the state. At the annual meeting, the board shall adopt a fee schedule and a budget reflecting fee structures for the year.
(I) Pursuant to subsection (j) of this section, the board shall meet with committees representing the participant plans to discuss the board's drafting, reviewing or modifying the written investment policy of the trust with respect to that committee's participant plan pursuant to section twelve of this article. Representatives and committees shall be designated as follows:
(1) The West Virginia Consolidated Public Retirement Board shall promulgate procedural rules by which each 401(a) plan for which the board is trustee, shall designate an individual representative of each 401(a) plan and the West Virginia Workers' Compensation Commission shall promulgate procedural rules by which the pneumoconiosis fund and the workers' compensation fund shall designate an individual representative of each fund.
(2) On or before the first day of June of each year, the Consolidated Public Retirement Board shall submit in writing to the board the names of the six designated representatives of the 401(a) plans and the Workers' Compensation Commission shall submit the names of the two representatives.
(3) Each designated representative shall provide to the board his or her current address, updated each year on or before the first day of July, to which address the board shall provide notice of meetings of the board pursuant to subsection (g) of this section.
(4) Each designated representative shall submit in writing to the board on or before the first day of July of each year the names of no more than three persons comprising a committee representing the beneficiaries of that representative's participant plan.
(j) At its annual meeting, the board shall meet with each of the seven committees, formed pursuant to subdivision (1), subsection (I) of this section, for the purpose of receiving input from the committees regarding the board's drafting, reviewing or modifying its written investment policy statement for investment of the funds of the participant plans. In developing the investment policy statement, the trustees shall receive each committee's stated objectives and policies regarding the risk tolerances and return expectations of each participant plan, with attention to the factors enumerated in section twelve of this article, in order to provide for the continuing financial security of the trusts and the participant plans. The board may meet with the committees or any of them at its quarterly and additional meetings for the same purpose.
(k) Each January the board shall hold a joint meeting with the Consolidated Public Retirement Board to comprehensively review portfolio holdings and asset allocations, investment performance, portfolio risk and risk tolerance, investment policy and strategy, stability, turnover, liquidity, the board's budget and administrative expenses, investment management fees, plan actuarial valuations, plan discount rates and matters arising from the investment oversight activities of the board. The meeting shall be jointly organized by the staffs of both boards and chaired by the Governor. The meeting shall be open to the public.
(k) (l) All meetings of the board shall be open to the representatives of the participant plans as appointed pursuant to subdivision (1), subsection (I) of this section. The representatives are subject to any rules, bylaws, guidelines, requirements and standards promulgated by the board. The representatives shall observe standards of decorum established by the board. The representatives are subject to the same code of conduct applicable to the trustees and are subject to all board rules and bylaws. The representatives are also subject to any requirements of confidentiality applicable to the trustees. Each representative is liable for any act which he or she undertakes which violates any rule, bylaw or statute governing ethical standards, confidentiality or other standard of conduct imposed upon the trustees or the representatives. Any meeting of the board may be closed, upon adoption of a motion by any trustee, when necessary to preserve the attorney-client privilege, to protect the privacy interests of individuals, to review personnel matters or to maintain confidentiality when confidentiality is in the best interest of the beneficiaries of the trusts.
(m) The board shall accommodate the reasonable needs and requirements of the consolidated public retirement board in the fulfillment of its responsibilities under section eight, article ten-D, chapter five of this code.
§12-6-4. Management and control of fund; officers; staff; fiduciary or surety bonds for trustees; liability of trustees.

(a) The management and control of the board shall be vested solely in the trustees in accordance with the provisions of this article.
(b) The Governor shall be the chairman of the board and the trustees shall elect a vice chairman who may not be a constitutional officer or his or her designee to serve for a term of two years. Effective with any vacancy in the vice chairmanship, the board shall elect a vice chairman to a new two-year term. The vice chairman shall preside at all meetings in the absence of the chairman. Annually, the trustees shall elect a secretary, who need not be a member of the board, to keep a record of the proceedings of the board.
(c) The trustees shall appoint a chief executive officer of the board and shall fix his or her duties and compensation. The chief executive officer shall have five years' experience in investment management with public or private funds within the ten years next preceding the date of appointment. The chief executive officer additionally shall have academic degrees, professional designations and other investment management or investment oversight or institutional investment experience in a combination the trustees consider necessary to carry out the responsibilities of the chief executive officer position as defined by the trustees.
(d) The trustees shall retain an internal auditor to report directly to the trustees and shall fix his or her compensation. The internal auditor shall be a certified public accountant with at least three years experience as an auditor. The internal auditor shall develop an internal audit plan, with board approval, for the testing of procedures and the security of transactions.
(e) Each trustee shall give a separate fiduciary or surety bond from a surety company qualified to do business within this state in a penalty amount of one million dollars for the faithful performance of his or her duties as a trustee. The board shall purchase a blanket bond for the faithful performance of its duties in the amount of fifty million dollars or in an amount equivalent to one percent of the assets under management, whichever is greater. The amount of the blanket bond is in addition to the one million dollar individual bond required of each trustee by the provisions of this section. The board may require a fiduciary or surety bond from a surety company qualified to do business in this state for any person who has charge of, or access to, any securities, funds or other moneys held by the board and the amount of the fiduciary or surety bond shall be fixed by the board. The premiums payable on all fiduciary or surety bonds shall be an expense of the board.
(f) The trustees and employees of the board are not liable personally, either jointly or severally, for any debt or obligation created by the board: Provided, That the trustees and employees of the board are liable for acts of misfeasance or gross negligence.
(g) The board is exempt from the provisions of sections section seven and eleven, article three, chapter twelve of this code and article three, chapter five-a of said code: Provided, That the trustees and employees of the board are subject to purchasing policies and procedures which shall be promulgated by the board. The purchasing policies and procedures may be promulgated as emergency rules pursuant to section fifteen, article three, chapter twenty-nine-a of this code. The board's purchase of investments and legal, accounting, financial and investment advisor and consulting services shall be exempt from the provisions of article three, chapter five-a of this code.
(h) Any employee of the West Virginia trust fund who previously was an employee of another state agency may return to the public employees retirement system pursuant to section eighteen, article ten, chapter five of this code and may elect to either: (1) Transfer to the Public Employees Retirement System his or her employee contributions, with accrued interest and, if vested, his or her employer contributions, with accrued interest and retain as credited state service all time served as an employee of the West Virginia trust fund; or (2) retain all employee contributions with accrued interest and, if vested, his or her employer contributions with interest and forfeit all service credit for the time served as an employee of the West Virginia trust fund.
§12-6-5. Powers of the Board.
The board may exercise all powers necessary or appropriate to carry out and effectuate its corporate purposes. The board may:
(1) Adopt and use a common seal and alter it at pleasure;
(2) Sue and be sued;
(3) Enter into contracts and execute and deliver instruments;
(4) Acquire (by purchase, gift or otherwise), hold, use and dispose of real and personal property, deeds, mortgages and other instruments;
(5) Promulgate and enforce bylaws and rules for the management and conduct of its affairs;
(6) Notwithstanding any other provision of law, retain and employ legal, accounting, financial and investment advisors and consultants;
(7) Acquire (by purchase, gift or otherwise), hold, exchange, pledge, lend and sell or otherwise dispose of securities and invest funds in interest earning deposits and in any other lawful investments;
(8) Maintain accounts with banks, securities dealers and financial institutions both within and outside this state;
(9) Engage in financial transactions whereby securities are purchased by the board under an agreement providing for the resale of the securities to the original seller at a stated price;
(10) Engage in financial transactions whereby securities held by the board are sold under an agreement providing for the repurchase of the securities by the board at a stated price;
(11) Consolidate and manage moneys, securities and other assets of the other funds and accounts of the state and the moneys of political subdivisions which may be made available to it under the provisions of this article;
(12) Enter into agreements with political subdivisions of the state whereby moneys of the political subdivisions are invested on their behalf by the board;
(13) Charge and collect administrative fees from political subdivisions for its services;
(14) Exercise all powers generally granted to and exercised by the holders of investment securities with respect to management of the investment securities;
(15) Contract with one or more banking institutions in or outside the state for the custody, safekeeping and management of securities held by the board;
(16) Make and, from time to time, amend and repeal bylaws, rules and procedures not inconsistent consistent with the provisions of this article;
(17) Hire its own employees, consultants, managers and advisors as it considers necessary and fix their compensation and prescribe their duties;
(18) Develop, implement and maintain its own banking accounts and investments;
(19) Do all things necessary to implement and operate the Board and carry out the intent of this article;
(20) Upon request of the State Treasurer, transmit funds for deposit in the State Treasury to meet the daily obligations of state government;
(21) Establish one or more investment funds for the purpose of investing the funds for which it is trustee, custodian or otherwise authorized to invest pursuant to this article. Interests in each fund shall be designated as units and the board shall adopt industry standard accounting procedures to determine each fund`s unit value. The securities in each investment fund are the property of the board and each fund shall be considered an investment pool or fund and may not be considered a trust nor may the securities of the various investment funds be considered held in trust. However, units in an investment fund established by or sold by the board and the proceeds from the sale or redemption of any unit may be held by the board in its role as trustee of the participant plans; and
(22) Notwithstanding any other provision of the code to the contrary, conduct investment transactions, including purchases, sales, redemptions and income collections, which shall not be treated by the State Auditor as recordable transactions on the state's accounting system.
§12-6-9c. Authorization of additional investments.
Notwithstanding the restrictions which may otherwise be provided by law with respect to the investment of funds, the board, all administrators, custodians or trustees of pension funds other than the board, each political subdivision of this state and each county board of education is authorized to invest funds in the securities of or any other interest in any investment company or investment trust registered under the Investment Company Act of 1940, 15 U. S. C. §80a, the portfolio of which is limited: (I) To obligations issued by or guaranteed as to the payment of both principal and interest by the United States of America or its agencies or instrumentalities; and (ii) to repurchase agreements fully collateralized by obligations of the United States government or its agencies or instrumentalities: Provided, That the investment company or investment trust takes delivery of the collateral either directly or through an authorized custodian: Provided, however, That the investment company or investment trust is rated within one of the top two rating categories of any nationally recognized rating service such as Moody's or Standard & Poor's.
§12-6-12. Investment restrictions.

(a) The board shall hold in non-real estate equity investments no more than sixty percent of the assets managed by the board and no more than sixty percent of the assets of any individual participant plan or the consolidated fund.
(b) The board shall hold in real estate equity investments no more than twenty-five percent of the assets managed by the board and no more than twenty-five percent of the assets of any individual participant plan: Provided, That any such investment be only made upon the recommendation by a professional, third-party fiduciary investment adviser registered with the Securities and Exchange Commission under the Investment Advisors Act of 1940, as amended; the approval of the board; and the execution by a third-party investment manager: Provided, however, That the board's ownership interest in any fund is less than forty percent of the fund's assets at the time of purchase: Provided further, other public sector entities; educational institutions and their endowments and foundations collectively invest in the fund in an amount equal to or greater than fifty percent of the board's contemplated total investment in the fund, at the time of acquisition: And provided further, That the requirements of subsection (e), section four of this article are fully maintained. For the purposes of this subsection, 'fund' means a real estate investment trust traded on a major exchange of the United States of America or other collection of related or unrelated investments, at least three of which are unrelated and the largest of which is not greater than forty percent of the fund's composition, at the time of purchase.
(b) (c) The board shall hold in international securities no more than twenty percent of the assets managed by the board and no more than twenty percent of the assets of any individual participant plan or the consolidated fund. International security shall be defined as a security, the trading of which occurs neither in whole or in part in United States dollars or a fund or collection of equity securities marketed or designated as providing 'international,' 'global,' 'foreign,' 'world' or comparable exposure.
(c) (d) The board may not at the time of purchase hold more than five percent of the assets managed by the board in the non-real estate equity securities of any single company or association: Provided, That if a company or association has a market weighting of greater than five percent in the Standard & Poor's 500 index of companies, the board may hold securities of that non-real estate equity equal to its market weighting.
(d) (e) The board shall at all times limit its asset allocation and types of securities to the following:
(1) The board may not hold more than twenty percent of the aggregate participant plan assets in commercial paper. Any commercial paper at the time of its acquisition shall be in one of the two highest rating categories by an agency nationally known for rating commercial paper;
(2) (1) At no time shall the board hold more than seventy-five percent of the assets managed by the board in corporate debt. Any corporate debt security at the time of its acquisition shall be rated in one of the six highest rating categories by a nationally recognized rating agency; and
(3)(2) No security may be purchased by the board unless the type of security is on a list approved by the board. The board may modify the securities list at any time and shall give notice of that action pursuant to subsection (g), section three of this article and shall review the list at its annual meeting.
(e) (f) Notwithstanding the investment limitations set forth in this section, it is recognized that the assets managed by the board, or the assets of the consolidated fund or participant plans, whether considered in the aggregate or individually, may temporarily exceed the investment limitations in this section due to market appreciation, depreciation and rebalancing limitations. Accordingly, the limitations on investments set forth in this section shall not be considered to have been violated if the board rebalances the assets it manages or the assets of the consolidated fund or participant plans, whichever is applicable, to comply with the limitations set forth in this section at least once every six twelve months based upon the latest available market information and any other reliable market data that the board considers advisable to take into consideration except for those assets authorized by subsection (h) of this section for which compliance with the percentage limitations shall be measured at such time as the investment is funded.
(f) (g) The board, at the annual meeting provided for in subsection (g), section three of this article, shall review, establish and modify, if necessary, the investment objectives of the individual participant plans as incorporated in the investment policy statements of the respective trusts so as to provide for the financial security of the trust funds giving consideration to the following:
(1) Preservation of capital;
(2) Diversification;
(3) Risk tolerance;
(4) Rate of return;
(5) Stability;
(6) Turnover;
(7) Liquidity; and
(8) Reasonable cost of fees.
(h) In addition to any and all other investment authority granted to the board by this article, the board is expressly authorized to invest no more than ten percent of the assets managed by the board, and no more than ten percent of the assets of any individual participant plan, or any other endowment or other fund managed by the board, as measured at the time of the investment, in any one or more classes, styles or strategies of alternative investments suitable and appropriate for investment by the board: Provided, That the requirements of subsection (e), section four of this article are fully maintained. A suitable and appropriate alternative investment is a private equity fund such as a venture capital, private real estate or buy-out fund; commodities fund; distressed debt fund; mezzanine debt fund; fixed income arbitrage fund; put or call on an individual security purchased for the purpose of hedging an authorized investment position; or fund consisting of any combination of private equity, distressed or mezzanine debt, fixed income arbitrage investments, private real estate, commodities and other types and categories of investment permitted under this article as well as puts and calls intended to hedge the fund's investments: Provided, That any such investment be only made upon the recommendation by a professional, third-party fiduciary investment adviser registered with the Securities and Exchange Commission under the Investment Advisors Act of 1940, as amended; the approval of the board; and the execution by a third-party investment manager: Provided ,however, That the board's ownership interest in any fund is less than forty percent of the fund's assets at the time of purchase: Provided further, That other public sector entities; educational institutions; and educational institutions, their endowments and foundations collectively invest in the fund in an amount equal to or greater than fifty percent of the board's contemplated total investment in the fund, at the time of acquisition. For the purposes of this subsection, 'fund' means a collection of related or unrelated investments, at least three of which are unrelated and the largest of which is not greater than forty percent of the fund's composition, at the time of purchase. To facilitate access to markets, control, manage or diversify portfolio risk, or enhance performance or efficiency in connection with investments in alternative investments and all other types and categories of investment permitted under this article, the board may enter into commercially customary and prudent market transactions consistent with the laws of the state: Provided, That neither the purpose nor the effect of such transactions may materially increase market risk or market exposure of the total portfolio of investments under management by the board. The investments described in this subsection are subject to the requirements, limitations and restrictions set forth in this subsection of this section, and the standard of care set forth in section eleven of this article, but are not subject to any other limitations or restrictions set forth elsewhere in this article or code. The authority to acquire alternative investments under this subsection shall expire the first day of July, two thousand nine."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 559), and there were--yeas 91, nays 6, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Browning, Ellem, Frederick, Wakim, Walters and White.
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 361) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 361- "A Bill to amend and reenact §5-10D-1, §5-20D-2 and §5-10D-3 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §5-10D-8; and to amend and reenact §12-6-1a, §12-6-2, §12-6-3, §12-6-4, §12-6-5, §12-6-9c and §12-6-12 of said code, all relating to the West Virginia investment management board generally; prescribing responsibilities for oversight of the investment management board by the consolidated public retirement board; establishing the secretary of the department of administration as chairman of the consolidated public retirement board; requiring annual joint public meetings of the investment management board and the consolidated public retirement board chaired by the governor; providing that the investment management board is a public governmental entity; reducing membership of the board; specifying additional requirements for membership on the board; removing certain exemptions from travel and purchasing rules; providing certain exemptions from state purchasing requirements; removing certain requirements regarding investments in the securities of any interest in any investment company or investment trust under the Investment Act of 1940; excluding real estate equity investments from the limitation on the percentage of investments that may be made in equities; providing a limitation on the percentage of investments that may be made in real estate equities; providing requirements for investment in real estate equities; defining 'international securities'; eliminating certain restrictions on the purchase of securities in commercial paper and corporate debt; and authorizing the board to enter into alternative investments and providing requirements for those investments."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 444, Relating to proof of lawful disposal of solid waste; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page three, section ten, line twenty-three, following the word "addition" by striking out the remainder of the sentence and inserting "to up to forty hours of community service such as picking up trash along roadways, or other appropriate service to be determined by the magistrate".
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 560), and there were--yeas 89, nays 8, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Carmichael, Ellem, Lane, Louisos, Perdue, Schadler and Thompson, Rick.
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 444) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 480, Relating to time period for paying criminal proceedings costs; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 561), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 480) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 562), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 480) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 496, Allowing out-of-state transport of legally obtained game; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 2. WILDLIFE RESOURCES.
§20-2-12. Transportation of wildlife out of state; penalties.
(a) No person shall at any time A person may not transport or have in his or her possession with the intention of transporting beyond the limits of the state any species of wildlife or any part thereof killed, taken, captured or caught within this state, except as provided for in this section.
(b) Provided, That A nonresident person legally entitled to hunt and fish in this state may take with him or her personally, when leaving the state, any wildlife that he or she has lawfully taken or killed, not exceeding, during the open season, the number that any person may lawfully take or kill in any two days possess.
(c) This section shall does not apply to persons legally entitled to propagate and sell wild animals, wild birds, fish, amphibians and other forms of aquatic life.
(d) Provided, however, That Licensed resident hunters and trappers and resident and nonresident fur dealers may transport beyond the limits of the state pelts of game and fur-bearing animals taken during the legal season.
(e) Provided further, That The hide, head, antlers and feet of a legally killed deer and the hide, head, skull, organs and feet of a legally killed black bear may also be transported beyond the limits of the state.
(f) The director shall have authority to promulgate rules and regulations in accordance with chapter twenty-nine-a of this code dealing with the transportation and tagging of wildlife and the skins. thereof.
(g) Notwithstanding any provision of this section, any A person violating the provisions of this section by transporting or possessing with the intention of transporting beyond the limits of this state deer or wild boar shall be deemed to have committed a separate offense for each animal so transported or possessed.
(h) Any A person violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty dollars nor more than three hundred dollars and be imprisoned in the county jail not less than ten nor more than sixty days."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 563), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Eldridge, Ferrell, Leach and Pino.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 496) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 503, Providing pay raise for State Police; temporary promotions; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §15-2-4 and §15-2-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-4. Appointment of commissioned officers, noncommissioned officers, other members; temporary and permanent positions.

(a) The superintendent shall appoint, from the enlisted membership of the State Police, a deputy superintendent who shall hold the rank of lieutenant colonel and be next in authority to the superintendent. The superintendent shall appoint, from the enlisted membership of the State Police, the number of other officers and members he or she considers necessary to operate and maintain the executive offices, training school and forensic laboratory; and to keep records relating to crimes and criminals, coordinate traffic safety activities, maintain a system of supplies and accounting and perform other necessary services.
(b) The ranks within the membership of the State Police shall be colonel, lieutenant colonel, major, captain, first lieutenant, second lieutenant, first sergeant, sergeant, corporal, trooper first class, senior trooper, trooper or cadet trooper. Each member while in uniform shall wear the insignia of rank as provided by law and written State Police policies. Members assigned to the forensic laboratory shall hold the title of trooper, be classified as criminalists and wear the insignia of classification as provided by written State Police policies.
The superintendent may appoint from the membership of the State Police seventeen principal supervisors who shall receive the compensation and hold the temporary rank of lieutenant colonel, major or captain at the will and pleasure of the superintendent. The superintendent may also appoint from the membership of the executive protection section of the State Police two additional supervisors who shall receive the compensation and hold the temporary rank of first lieutenant and serve at the will and pleasure of the superintendent. Appointments are exempt from any eligibility requirements established by the career progression system: Provided, That any member appointed from within the executive protection section of the State Police to the temporary rank of first lieutenant must have completed a minimum of two years service within the executive protection section prior to becoming eligible for such appointment. Any person appointed to a temporary rank under the provisions of this article remains eligible for promotion or reclassification under the provisions of the career progression system if his or her permanent rank is below that of first lieutenant. Upon the termination of a temporary appointment by the superintendent, the member may not be reduced to a rank or classification below his or her permanent rank or classification, unless the reduction results from disciplinary action, and remains eligible for subsequent appointment to a temporary rank.
§15-2-5. Career progression system; salaries; exclusion from wage and hour law, with supplemental payment; bond; leave time for members called to duty in guard or reserves.

(a) The superintendent shall establish within the West Virginia State Police a system to provide for: The promotion of members to the supervisory ranks of sergeant, first sergeant, second lieutenant and first lieutenant; the classification of nonsupervisory members within the field operations force to the ranks of trooper, senior trooper, trooper first class or corporal; the classification of members assigned to the forensic laboratory as criminalist I-VII; and the temporary reclassification of members assigned to administrative duties as administrative support specialist I- VIII.
(b) The superintendent may propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code for the purpose of ensuring consistency, predictability and independent review of any system developed under the provisions of this section.
(c) The superintendent shall provide to each member a written manual governing any system established under the provisions of this section and specific procedures shall be identified for the evaluation and testing of members for promotion or reclassification and the subsequent placement of any members on a promotional eligibility or reclassification recommendation list.
(d) Beginning on the first day of November, two thousand five, and continuing thereafter until and including the thirtieth day of June, two thousand six, members shall receive annual salaries as follows:
ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Cadet During Training $2,218.50 Mo.$26,622
Cadet Trooper After Training 2,621.50 Mo.31,458
Trooper Second Year31,922
Trooper Third Year 32,294
Trooper Fourth & Fifth Year 32,594
Senior Trooper 34,682
Trooper First Class 36,770
Corporal 38,858
Sergeant 43,034
First Sergeant 45,122
Second Lieutenant 47,210
First Lieutenant 49,298
Captain 51,386
Major 53,474
Lieutenant Colonel 55,562
ANNUAL SALARY SCHEDULE (BASE PAY)

ADMINISTRATION SUPPORT

SPECIALIST CLASSIFICATION

I $32,594 II 34,682 III36,770 IV 38,858 V 43,034 VI 45,122 VII 47,210 VIII 49,298
ANNUAL SALARY SCHEDULE (BASE PAY)

CRIMINALIST CLASSIFICATION

I $32,594II 34,682 III 36,770 IV 38,858 V 43,044 VI 45,122 VII 47,210
VIII 49,298
Beginning on the first day of July, two thousand six, and continuing until and including the thirtieth day of June, two thousand seven, members shall receive annual salaries as follows:
ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Cadet During Training$2,343.50 Mo.$28,122
Cadet Trooper After Training2,913.17 Mo.34,958
Trooper Second Year 36,922
Trooper Third Year 37,294
Senior Trooper 37,682
Trooper First Class 38,270
Corporal 38,858
Sergeant 43,034
First Sergeant 45,122
Second Lieutenant 47,210
First Lieutenant 49,298
Captain 51,386
Major 53,474
Lieutenant Colonel 55,562
ANNUAL SALARY SCHEDULE (BASE PAY)

ADMINISTRATION SUPPORT

SPECIALIST CLASSIFICATION

I$37,294 II 37,682 III38,270 IV 38,858 V43,034 VI 45,122 VII47,210 VIII 49,298
ANNUAL SALARY SCHEDULE (BASE PAY)

CRIMINALIST CLASSIFICATION

I$37,294 II 37,682 III38,270 IV 38,858 V43,044 VI 45,122 VII47,210
VIII 49,298
Beginning on the first day of July, two thousand seven, until and including the thirtieth day of June, two thousand eight, members shall receive annual salaries as follows:
ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Cadet During Training$2,468.50 Mo.$29,622
Cadet Trooper After Training 3,038.17 Mo.36,458
Trooper Second Year 37,922
Trooper Third Year 38,294
Senior Trooper 38,682
Trooper First Class 39,270
Corporal 39,858
Sergeant 44,034
First Sergeant 46,122
Second Lieutenant48,210
First Lieutenant 50,298
Captain52,386
Major54,474
Lieutenant Colonel 56,562
ANNUAL SALARY SCHEDULE (BASE PAY)

ADMINISTRATION SUPPORT

SPECIALIST CLASSIFICATION

I$38,294 II 38,682 III39,270 IV 39,858 V44,034 VI46,122 VII48,210 VIII50,298
ANNUAL SALARY SCHEDULE (BASE PAY)

CRIMINALIST CLASSIFICATION

I$38,294 II 38,682 III39,270 IV 39,858 V44,044VI 46,122 VII48,210
VIII 50,298
Beginning on the first day of July, two thousand eight, and continuing thereafter, members shall receive annual salaries as follows:
ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Cadet
During Training$2,593.50 Mo.$31,122
Cadet Trooper After Training3,163.17 Mo.37,958
Trooper Second Year38,922
Trooper Third Year39,294
Senior Trooper 39,682
Trooper First Class 40,270
Corporal 40,858
Sergeant 45,034
First Sergeant 47,122
Second Lieutenant 49,210
First Lieutenant 51,298
Captain 53,386
Major 55,474
Lieutenant Colonel 57,562
ANNUAL SALARY SCHEDULE (BASE PAY)

ADMINISTRATION SUPPORT

SPECIALIST CLASSIFICATION

I$39,294 II 39,682 III40,270IV 40,858 V45,034 VI 47,122
VII49,210 VIII51,298
ANNUAL SALARY SCHEDULE (BASE PAY)

CRIMINALIST CLASSIFICATION

I$39,294 II 39,682 III40,270 IV 40,858 V45,034 VI 47,122
VII49,210 VIII 51,298
Each member of the West Virginia State Police whose salary is fixed and specified in this annual salary schedule is entitled to the length of service increases set forth in subsection (e) of this section and supplemental pay as provided in subsection (g) of this section.
(e) Each member of the West Virginia State Police whose salary is fixed and specified pursuant to this section shall receive, and is entitled to, an increase in salary over that set forth in subsection (d) of this section, for grade in rank, based on length of service, including that service served before and after the effective date of this section with the West Virginia State Police as follows: At the end of five two years of service with the West Virginia State Police, the member shall receive a salary increase of six four hundred dollars to be effective during his or her next three years year of service and a like increase at three-year yearly intervals thereafter, with the increases to be cumulative.
(f) In applying the salary schedules set forth in this section where salary increases are provided for length of service, members of the West Virginia State Police in service at the time the schedules become effective shall be given credit for prior service and shall be paid the salaries the same length of service entitles them to receive under the provisions of this section.
(g) The Legislature finds and declares that because of the unique duties of members of the West Virginia State Police, it is not appropriate to apply the provisions of state wage and hour laws to them. Accordingly, members of the West Virginia State Police are excluded from the provisions of state wage and hour law. This express exclusion shall not be construed as any indication that the members were or were not covered by the wage and hour law prior to this exclusion.
In lieu of any overtime pay they might otherwise have received under the wage and hour law, and in addition to their salaries and increases for length of service, members who have completed basic training and who are exempt from federal Fair Labor Standards Act guidelines may receive supplemental pay as provided in this section.
The authority of the superintendent to propose a legislative rule or amendment thereto for promulgation in accordance with article three, chapter twenty-nine-a of this code to establish the number of hours per month which constitute the standard work month for the members of the West Virginia State Police is hereby continued. The rule shall further establish, on a graduated hourly basis, the criteria for receipt of a portion or all of supplemental payment when hours are worked in excess of the standard work month. The superintendent shall certify monthly to the West Virginia State Police's payroll officer the names of those members who have worked in excess of the standard work month and the amount of their entitlement to supplemental payment. The supplemental payment may not exceed two hundred thirty-six dollars monthly. The superintendent and civilian employees of the West Virginia State Police are not eligible for any supplemental payments.
(h) Each member of the West Virginia State Police, except the superintendent and civilian employees, shall execute, before entering upon the discharge of his or her duties, a bond with security in the sum of five thousand dollars payable to the State of West Virginia, conditioned upon the faithful performance of his or her duties, and the bond shall be approved as to form by the Attorney General and as to sufficiency by the Governor.
(i) In consideration for compensation paid by the West Virginia State Police to its members during those members' participation in the West Virginia State Police Cadet Training Program pursuant to section eight, article twenty-nine, chapter thirty of this code, the West Virginia State Police may require of its members by written agreement entered into with each of them in advance of such participation in the program that, if a member should voluntarily discontinue employment any time within one year immediately following completion of the training program, he or she shall be obligated to pay to the West Virginia State Police a pro rata portion of such compensation equal to that part of such year which the member has chosen not to remain in the employ of the West Virginia State Police.
(j) Any member of the West Virginia State Police who is called to perform active duty training or inactive duty training in the National Guard or any reserve component of the Armed Forces of the United States annually shall be granted, upon request, leave time not to exceed thirty calendar days for the purpose of performing the active duty training or inactive duty training and the time granted may not be deducted from any leave accumulated as a member of the West Virginia State Police.

An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 564), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 503) passed.
The title of the bill was then amended to read as follows:
S. B. 503 - "A Bill to amend and reenact §15-2-4 and §15-2-5 of the Code of West Virginia, 1931, as amended; relating to the appointment, temporary promotion and compensation of the membership of the West Virginia State Police; providing for the temporary promotion from the membership of the executive protection section of the West Virginia State Police; providing annual salary schedules and adjusting annual experience increment pay for the West Virginia State Police; and authorizing recovery of compensation from certain members."
Delegate Staton moved that the bill take effect July 1, 2006.
On this question, the yeas and nays were taken (Roll No. 565), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 503) takes effect July 1, 2006.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 566, Amending Crime Victims Compensation Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 566), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 566) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 578, Allowing Public Service Commission to order takeover of certain utilities; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"§24-2-11d. Revocation of certificate of public convenience and necessity; acquisition of facilities by capable public utility.

(a) In addition to the powers conferred by section seven, article two of this chapter, upon a finding by the Public Service Commission that a public utility which holds a certificate of public convenience and necessity to provide natural gas or electric service is unable or unwilling to adequately serve its customers or has been actually or effectively abandoned by its owner or owners, or that its management is grossly and willfully inefficient, irresponsible or unresponsive to the needs of its customers, or is not capable of providing economical and efficient utility service, the commission may, after reasonable notice and opportunity for hearing has been afforded to the affected utility and its customers, revoke the certificate of public convenience and necessity held by the public utility. In the case of such revocation, the commission shall concurrently order a capable public utility to acquire the facilities of the revoked public utility and to provide service to the customers of the revoked public utility. The commission shall also allow a capable public utility that acquires the facilities of a revoked public utility to recover all reasonable costs related to such acquisition of facilities and upgrading of service to customers of the revoked public utility, including but not limited to additional capital, environmental, operating and maintenance costs.
(b) In making a determination to revoke a certificate of public convenience and necessity, pursuant to subsection (a) of this section, the commission shall consider: (1) The financial, managerial and technical ability of the public utility considered for revocation; (2) the financial, managerial and technical ability of the capable public utility; (3) the expenditures that may be necessary to make improvements to the facilities of the public utility considered for revocation to assure compliance with all applicable statutory and regulatory standards concerning adequacy, efficiency, safety and reasonableness of service; and (4) any other matters which may be relevant.
(c) The price of the acquisition of the facilities of the revoked public utility shall be determined by an agreement between the revoked public utility and the acquiring capable public utility, subject to a determination by the commission that the price is reasonable. If the revoked public utility and the acquiring capable public utility are unable to agree on an acquisition price or the commission disapproves the acquisition price on which the utilities have agreed, the commission shall issue an order directing the acquiring capable public utility to acquire the revoked public utility by following the procedure prescribed for exercising the power of eminent domain pursuant to article two, chapter fifty-four of this code. The fact that the acquisition price has not been agreed to or finally determined shall not delay the effect of any order issued by the commission pursuant to subsection (a) of this section.
(d) As used in this section, the following words and phrases shall have the following meanings:
(1) 'Capable public utility' means a public utility which provides electric or natural gas service and has at least twenty-five thousand customers which provides the same type of utility service as the revoked public utility and has the financial, managerial and technical ability to comply with all applicable statutory and regulatory standards concerning adequacy, efficiency, safety and reasonableness of service on a long-term basis;
(2) 'Revoked public utility' means a public utility with less than twenty-five thousand customers which has had its certificate of public convenience and necessity revoked by the commission pursuant to subsection (a) of this section.
(e) Any action of the Public Service Commission to revoke the certificate of public convenience and necessity of an electric or natural gas public utility pursuant to the provisions of this section must be initiated on or before March 1, 2008."
The bill was then read a third time.
Delegates Armstead and Stephens requested to be excused from voting on the passage of S. B. 578 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentlemen from voting, stating that they were members of a class of persons possibly to be affected by the passage of the bill and that they demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 567), and there were--yeas 95, nays 2, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Lane and Schadler.
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 578) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
S. B. 578 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §24-2-11d, relating to increasing the power of the Public Service Commission to with respect to the takeover or transfer or takeover of troubled utilities; authorizing the revocation of certificates of public convenience and necessity for the effective abandonment or inability or unwillingness of gas and electric utilities to adequately serve its customers; establishing criteria which would need to be met to support a contemplated revocation of certificate authority; authorizing the Public Service Commission to concurrently require another public utility to acquire and serve the customers, facilities and service territory of a revoked utility; listing additional criteria to be considered prior to revoking authority or approving acquisition of territory; providing for the determination of an acquisition price for the revoked utility's facilities and territory, either by agreement or by eminent domain; requiring reasonable notice and hearing to affected utility and customers before revoking certificate; establishing deadline by which Public Service Commission may initiate proceeding to revoke authority pursuant to section."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 587, Relating to increment pay for certain higher education faculty; on third reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, postponed.
S. B. 633, Addressing certain teacher critical shortage areas; on third reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, postponed.
Com. Sub. for S. B. 644, Authorizing motor vehicle insurance verification program; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page thirteen, section three, line two hundred twelve, following the word "address", by inserting the words "and to any lien holder noted on the certificate of title,".
On page thirteen, section three, line two hundred twenty- three, following the word "If", by inserting a comma and the words "after the notice required in clause (I) of this subparagraph is given to the owner and the lien holder,".
On page fifteen, section three, following line two hundred fifty-nine, by inserting a new subdivision to read as follows:
"(h) Revocation of a motor vehicle registration pursuant to this section shall not affect the perfection or priority of a lien or security interest attaching to the motor vehicle that is noted on the certificate of title to the motor vehicle."
On page twenty-one, section seven, line thirty-four, following the word "she" by inserting the words "and any lienholder noted on the certificate of title".
On page twenty-two, section seven, following line fifty-four, by inserting a new subsection (h) to read as follows:
"(h) Revocation of a motor vehicle registration pursuant to this section shall not affect the perfection or priority of a lien or security interest attaching to the motor vehicle that is noted on the certificate of title to the motor vehicle."
And,
On page twenty-four, section three, line forty-two, following the word "and", by inserting the word "revoke".
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 568), and there were--yeas 95, nays 2, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Lane and Louisos.
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 644) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 653, Relating to duties of Chief Technology Officer; establishing Technology Infrastructure Fund; on third reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, postponed.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 4488, Creating a commission to complete a comprehensive study of the state's behavioral health system.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Hunter, Sharpe and Guills.
On motion of Delegate Staton, the House of Delegates agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Hatfield, Marshall and Ashley.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Third Reading

S. B. 709, Relating to planning commission membership; on third reading, coming up in regular order, was read a third time.
Delegate Border requested to be excused from voting on the passage of S. B. 709 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 569), and there were--yeas 87, nays 9, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Armstead, Canterbury, Caputo, Hrutkay, Lane, Longstreth, Louisos, Martin and Walters.
Absent And Not Voting: Browning, Eldridge, Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 709) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 765, Relating to start of workday for school bus operators and transportation aides; on third reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, postponed.
Com. Sub. for S. B. 767, Authorizing business registration certificate revocation of employer in default; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 570), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 767) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 571), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 767) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 772, Providing for subrogation rights for James "Tiger" Morton Catastrophic Illness Commission; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 572), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 772) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 774, Organizing offices in Department of Environmental Protection; on third reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, postponed.
S. B. 786, Exempting certain severance wages from personal income tax; on third reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, postponed.
S. B. 792, Merging Fairmont State Community and Technical College with Fairmont State University; renaming Community and Technical College of Shepherd; on third reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, postponed.
H. B. 4863, Supplementing, amending, reducing, and increasing items of the existing appropriations from the state road fund to the department of transportation, division of highways; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 573), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4863) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 574), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4863) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Second Reading

Com. Sub. for S. B. 125, Budget bill; on second reading, coming up in regular order, was read a second time.
On motion of Delegate Staton, the bill was amended on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the provisions of Com. Sub. for H. B. 4013.
The bill was then ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 575), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a third time and put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 576), and there were--yeas 92, nays 5, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Armstead, Lane, Louisos, Overington and Walters.
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 125) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 577), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 125) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 795, Making supplementary appropriation from State Fund, General Revenue, to Department of Military Affairs and Public Safety, Office of Emergency Services; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 578), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a third time and put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 579), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 795) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 580), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 795) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Unfinished Business

Action on Senate Messages

The House next proceeded to take up consideration of a message received from the Senate, and postponed until this time, as to:
H. B. 4307, Extending the weekend driving privileges of antique motor vehicles and motorcycles.
On motion of Delegate, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, section three-a, line three, by striking out the word "antique".
And,
On page two, section three-a, line five, by striking out the word "antique".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 581), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4307) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 582), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ferrell and Long.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4307) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House then proceeded to take up consideration of a message received from the Senate, and postponed until this time, as to:
H. B. 4651, Relating to continuing the statewide poison center generally.
On motion of Delegate, the bill was taken up for immediate consideration.
The following Senate amendment, was reported by the Clerk:
On page two, by striking out the article heading and inserting in lieu thereof a new article heading, to read as follows:
"ARTICLE 11B. WEST VIRGINIA POISON CENTER."
And,
On page four, section two, lines eleven through thirteen, by striking out "The Higher Education Policy Commission shall allocate funds as necessary to operate, continue, certify and maintain the West Virginia Poison Center."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 583), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4651) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate, and postponed until this time, as to:
Com. Sub. for H. B. 4790, Prescribing and modifying the duties of the Secretary of the Department of Health and Human Resources in child welfare placement.
On motion of Delegate, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §49-2B-17 of the Code of West Virginia, 1931, as amended be repealed; and that §49- 2B-1, §49-2B-2, §49-2B-3, §49-2B-4, §49-2B-5, §49-2B-6, §49-2B-7, §49-2B-8, §49-2B-9, §49-2B- 10, §49-2B-11, §49-2B-12, §49-2B-13, §49-2B-14, §49-2B-15 and §49-2B-16 of said code be amended and reenacted, all to read as follows:
ARTICLE 2B. DUTIES OF SECRETARY OF HEALTH AND HUMAN RESOURCES FOR CHILD WELFARE.

§49-2B-1. Policy and purpose.

(a) It is the policy of the state to assist a child and the child's family as the basic unit of society through efforts to strengthen and preserve the family unit. In the event of a temporary or permanent absence of parents or the separation of a child from the family unit for care or treatment purposes, it is the policy of the state to assure that a child receives care and nurturing as close as possible to society's expectations of a family's care and nurturing of its child. The state has a duty to assure that proper and appropriate care is given and maintained.
(b) It is also the policy of this state to ensure that those persons and entities offering quality child care services are not over-encumbered by licensure certification and registration requirements and that the extent of regulation of child care facilities and child placing agencies be moderately proportionate to the size of the facility.
(c) Through licensure, approval, certification and registration of child care facilities and child welfare agencies, the state exercises its benevolent police power to protect the user of a service from risks against which he or she would have little or no competence for self protection. Licensure, approval, certification and registration processes shall, therefore, continually balance the child's rights and need for protection with the interests, rights and responsibility of the service providers.
(d) In order to carry out the above policy, the Legislature enacts this article to protect and prevent harm to children separated from their families and to enhance their continued growth and well-being while in care.
(e) The purposes of this article are:
(1) To protect the health, safety and well-being of children in substitute care by preventing improper and harmful care;
(2) To establish statewide rules for regulating programs as defined in this article;
(3) To encourage and assist in the improvement of child care programs;
(4) To ensure that persons and entities offering child care services are not unduly burdened by licensure certification and regulation registration requirements; and
(5) To ensure that all child care programs be safe, reliable and geared to the ages and needs of the children they serve, meet basic health and safety standards, and employ people who have the training and experience needed to work with children.
(f) In order to carry out these purposes, the powers of the child welfare licensing board created by chapter nineteen, acts of the Legislature, one thousand nine hundred forty-five, are hereby transferred to the commissioner of human services, along with the other powers granted by this article.
§49-2B-2. Definitions.
As used in this article, unless the context otherwise requires:
(a) 'Approval' means a finding by the commissioner secretary that a facility operated by the state has met the requirements set forth in the rules promulgated pursuant to this article.
(b) 'Certificate of approval' means a statement of the commissioner secretary that a facility operated by the state has met the requirements set forth in the rules promulgated pursuant to this article.
(c) 'Certificate of license' means a statement issued by the commissioner secretary authorizing an individual, corporation, partnership, voluntary association,
municipality or county, or any agency thereof, to provide specified services for a limited period of time in accordance with the terms of the certificate.
(d) 'Certificate of registration' means a statement issued by the commissioner secretary to a family day child care home, informal family child care home or relative family child care home, upon receipt of a self-certification statement of compliance with the rules promulgated pursuant to the provisions of this article.
(e) 'Certification' means a statement issued by the commissioner to a family day care facility upon satisfactory inspection, approval and certification that the facility has complied with the applicable rules promulgated by the commissioner.
(f) (e) 'Child' for the purpose of residential services under this article means any person under eighteen years of age or is a transitioning adult.
(f) 'Child' for the purpose of child care services means an individual who meets one of the following conditions:
(1)Is under thirteen years of age.
(2)Is thirteen to eighteen years of age and under court supervision.
(3)Is thirteen to eighteen years of age and presenting a significant delay of at least twenty-five percent in one or more areas of development, or a six (6) month delay in two or more areas as determined by an early intervention program, special education program or other multi- disciplinary team.
(g) 'Child care' means responsibilities assumed and services performed in relation to a child's physical, emotional, psychological, social and personal needs and the consideration of the child's rights and entitlements, but does not include secure detention or incarceration under the jurisdiction of the Division of Juvenile Services, created under section two, article five-e of this chapter. It includes the provision of child care services or residential services.
(h) 'Child placing agency' means a child welfare agency organized for the purpose of placing children in private family homes for foster care or ro adoption. The function of a child-placing agency may include the investigation and certification of foster family homes and foster family group homes as provided in this chapter. The function of a child placing agency may also include the supervision of children who are sixteen or seventeen years old and living unlicensed residences.
(I) 'Child welfare agency' means any agency or facility maintained by the state or any county or municipality thereof, or any agency or facility maintained by an individual, firm, corporation, association or organization, public or private, to receive children for care and maintenance or for placement in residential care facilities, including, without limitation, private homes, or any facility that provides care for unmarried mothers and their children: Provided, That the term does not include juvenile detention facilities or juvenile correctional facilities operated by or under contract with the division of juvenile services, created under section two, article five-e of this chapter, nor any other facility operated by that division for the secure housing or holding of juveniles committed to its custody.
(j) 'Commissioner' means the commissioner of human services.
(k) (h)' Day Child care center' means a facility operated by a child welfare agency maintained by the state or any county or municipality thereof, or any agency or facility maintained by an individual, firm, corporation, association or organization, public or private for the care of thirteen or more children on a nonresidential basis. for child care services in any setting, if the facility is open for more than 30 days per year per child.
(I) 'Child care services' means direct care and protection of children during a portion of a twenty-four (24) hour day outside of the child's own home which provides experiences to children that foster their healthy development and education.
(j) 'Child placing agency' means a child welfare agency organized for the purpose of placing children in private family homes for foster care or for adoption. The function of a child-placing agency may include the investigation and certification of foster family homes and foster family group homes as provided in this chapter. The function of a child placing agency may also include the supervision of children who are sixteen or seventeen years old and living unlicensed residences.
(k) 'Child welfare agency' means any agency or facility maintained by the state or any county or municipality thereof, or any agency or facility maintained by an individual, firm, corporation, association or organization, public or private, to receive children for care and maintenance or for placement in residential care facilities, including, without limitation, private homes, or any facility that provides care for unmarried mothers and their children: Provided, That the term does not include juvenile detention facilities or juvenile correctional facilities operated by or under contract with the Division of Juvenile Services, created under section two, article five-e of this chapter, nor any other facility operated by that division for the secure housing or holding of juveniles committed to its custody.
(l) 'Department' means the Department of Health and Human Resources.
(m) 'Facility' means a place or residence, including personnel, structures, grounds and equipment, used for the care of a child or children on a residential or other basis for any number of hours a day in any shelter or structure maintained for that purpose: Provided, That the term does not include any juvenile detention facility or juvenile correctional facility operated by or under contract with the Division of Juvenile Services, created pursuant to section two, article five-e of this chapter, for the secure housing or holding of juveniles committed to its custody.
(n) 'Family day child care home' means a facility which is used to provide nonresidential child care services for compensation in other than the child's own home. a provider's residence. The provider may care for four to six children, at one time including children who are living in the household, who are under six years of age. No more than two of the total number of children may be under twenty-four months of age.
(o) 'Family day child care facility' means any facility which is used to provide nonresidential child care services for compensation for seven to twelve children, including children who are living in the household, who are under six years of age. No more than four of the total number of children may be under twenty-four months of age. A facility may be in a provider's residence or a separate building.
(p) 'Foster family group home' means a private residence which is used for the care on a residential basis of six, seven or eight children who are unrelated by blood, marriage or adoption to any adult member of the household.
(q) (p) 'Foster family home' means a private residence which is used for the care on a residential basis of no more than five children who are unrelated by blood, marriage or adoption to any adult member of the household.
(r) 'Group home' means any facility, public or private, which is used to provide residential child care for ten or fewer children.
(s) 'Group home facility' means any facility, public or private, which is used to provide residential care for eleven or more children: Provided, That the term does not include any juvenile detention facility or juvenile correctional
facility operated by or under contract with the division of juvenile services, created pursuant to section two, article five-e of this chapter, for the secure housing or holding of juveniles committed to its custody.
(q) 'Informal family child care' means a home that is used to provide nonresidential child care services for compensation for three (3) or fewer children, including children who are living in the household, who are under six years of age. Care is given in the provider's own home to at least one (1) child who is not related to the caregiver.
(t) (r) 'License' means the grant of official permission to a facility to engage in an activity which would otherwise be prohibited.
(s) 'Out of school time' means a child care service which offers activities to children before and after school, on school holidays, when school is closed due to emergencies, and on school calendar days set aside for teacher activities.
(u) (t) 'Registration' means the process by which a family day child care home, informal family child care home or a relative family child care home self-certifies compliance with the rules promulgated pursuant to this article.
(v) (u) 'Residential child care' or 'child care on a residential basis services' means child care which includes the provision of nighttime shelter and the personal discipline and supervision of a child by guardians, custodians or other persons or entities on a continuing or temporary basis. It may include care and or treatment for transitioning adults: Provided, That the term does not include or apply to any juvenile detention facility or juvenile correctional facility operated by the Division of Juvenile Services, created pursuant to section two, article five-e of this chapter, for the secure housing or holding of juveniles committed to its custody.
(v) 'Relative family child care' means a home that provides nonresidential child care services only to children related to the caregiver. The caregiver is a grandparent, great grandparent, aunt, uncle, great-aunt, great-uncle or adult sibling of the child(ren) receiving care. Care is given in the provider's home.
(w) 'Rule' means a statement issued by the commissioner secretary of the standard to be applied in the various areas of child care.
(x) 'Transitioning adult' means an individual with a transfer plan to move to an adult setting who meets one of the following conditions:
(1) Is eighteen years of age but under twenty-one years of age, was
in departmental custody upon reaching eighteen years of age and committed an act of delinquency before reaching eighteen years of age, remains under the jurisdiction of the juvenile court, and requires supervision and care to complete an education and or treatment program which was initiated prior to the eighteenth birthday.
(2)Is eighteen years of age but under twenty-one years of age, was adjudicated abused, neglected, or in departmental custody upon reaching eighteen years of age and enters into a contract with the Department to continue in an educational, training, or treatment program which was initiated prior to the eighteenth birthday.
(w) (y) 'Secretary' means the Secretary of the Department of Health and Human Resources.
(x) (z) 'Variance' means a declaration that a rule may be accomplished in a manner different from the manner set forth in the rule.
(aa) 'Waiver' means a declaration that a certain rule is inapplicable in a particular circumstance.
§49-2B-3. Licensure, certification, approval and registration requirements.

(a) Any person, corporation or child welfare agency, other than a state agency, which operates a residential child care facility, a child-placing agency or a day care center shall obtain a license from the department.
(b) Any residential child care facility, day care center or any child-placing agency operated by the state shall obtain approval of its operations from the commissioner secretary: Provided, That this requirement does not apply to any juvenile detention facility or juvenile correctional facility operated by or under contract with the Division of Juvenile Services, created pursuant to section two, article five-e of this chapter, for the secure housing or holding of juveniles committed to its custody. The facilities and placing agencies shall maintain the same standards of care applicable to licensed facilities, centers or placing agencies of the same category.
(c) Any family day care facility which operates in this state, including family day care facilities approved by the department for receipt of funding, shall obtain a statement of certification from the department.
(d) Every family day care home which operates in this state, including family day care homes approved by the department for receipt of funding, shall obtain a certificate of registration from the department.
(e) This section does not apply to:
(1) A kindergarten, preschool or school education program which is operated by a public school or which is accredited by the state Department of Education, or any other kindergarten, preschool or school programs which operate with sessions not exceeding four hours per day for any child;
(2) An individual or facility which offers occasional care of children for brief periods while parents are shopping, engaging in recreational activities, attending religious services or engaging in other business or personal affairs;
(3) Summer recreation camps operated for children attending sessions for periods not exceeding thirty days;
(4) Hospitals or other medical facilities which are primarily used for temporary residential care of children for treatment, convalescence or testing;
(5) Persons providing family day care solely for children related to them; or
(6) Any juvenile detention facility or juvenile correctional facility operated by or under contract with the Division of Juvenile Services, created pursuant to section two, article five-e of this chapter, for the secure housing or holding of juveniles committed to its custody.
(f) The commissioner secretary is hereby authorized to issue an emergency rule relating to conducting a survey of existing facilities in this state in which children reside on a temporary basis in order to ascertain whether they should be subject to licensing under this article or applicable licensing provisions relating to behavioral health treatment providers.
(g) Any informal family child care home or relative family child care home may voluntarily register and obtain a certificate of registration from the department.
§49-2B-4. Rules.
(a) The commissioner secretary shall promulgate rules in accordance with the provisions of chapter twenty-nine-a of this code regarding the licensure, approval, certification and registration of child care facilities and the implementation of the provisions of this article. The rules shall provide at a minimum the requirement that every residential child care facility shall be subject to an annual time study regarding the quantification of staff supervision time at each facility. Every residential child care facility shall participate in the time study at the request of the department.
(b) The commissioner secretary shall review the rules promulgated pursuant to the provisions of this article at least once every five years, making revisions when necessary or convenient.
(c) On or before the first day of July, two thousand six, the department shall promulgate emergency rules pursuant to the provisions of article three, chapter twenty-nine-a of this code that creates requirements for informal family child care homes and relative family child care homes that voluntarily register with the department. All individuals, facilities, entities, programs, agencies or family child care homes subject to said emergency rules shall have one hundred eighty days to come into compliance after promulgation of such rules.
§49-2B-5. Penalties; injunctions.
(a) Any individual or corporation which operates a child welfare agency, residential child care facility or day child care center without a license when a license is required is guilty of a misdemeanor, and, upon conviction thereof, shall be punished by imprisonment in jail not exceeding one year, or a fine of not more than five hundred dollars, or both fined and imprisoned.
(b) Any family child care facility which operates without certification a license when certification a license is required is guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars.
(c) Where a violation of this article or a rule promulgated by the commissioner secretary may result in serious harm to children under care, the commissioner secretary may seek injunctive relief against any person, corporation, child welfare agency, child placing agency, day child care center, family day child care facility, family day child care home or governmental official through proceedings instituted by the attorney general, or the appropriate county prosecuting attorney, in the circuit court of Kanawha County or in the circuit court of any county where the children are residing or may be found.
§49-2B-6. Conditions of licensure, approval and registration.

(a) A license or approval is effective for a period of up to two years from the date of issuance, unless revoked or modified to provisional status based on evidence of a failure to comply with the provisions of this article or any rules promulgated pursuant to this article. The license or approval shall be reinstated upon application to the commissioner secretary and a determination of compliance.
(b) A statement of certification is effective for a period of two years from the date of issuance, unless revoked or modified to provisional status based on evidence of a failure to comply with the provisions of this article or any rules promulgated pursuant to this article. The statement of certification shall be reinstated upon application to the commissioner and a determination of compliance.
(b) An initial six-month license or approval shall be issued to an applicant establishing a new service found to be in compliance on initial review with regard to policy, procedure, organization, risk management, human resources, service environment and record keeping regulations;
(c) A certificate of registration is effective for a period of two years from the date of issuance, unless revoked based on evidence of a failure to comply with the provisions of this article or any rules promulgated pursuant to this article. The certificate of registration shall be reinstated upon application to the commissioner including a statement of assurance of continued compliance with the rules promulgated pursuant to this article.
(c) A provisional license or approval may be issued when a licensee is not in compliance with this rule but does not pose a significant risk to the rights, well-being, health and safety of a consumer. It shall expire not more than six months from date of issuance, and not be consecutively reissued unless the provisional recommendation is that of the state fire marshal.
(d) The license, approval certification or registration issued under this article is not transferable and applies only to the facility and its location stated in the application. The license, approval or certification shall be publicly displayed: Provided, that family day care homes, foster family homes, foster family group homes and group homes shall be required to display licenses, statements of certification or registration upon request rather than by posting.
(d) A renewal license or approval may be issued of any duration up to two years at the discretion of the Secretary. In the event a renewal license is not issued, the facility must make discharge plans for residents and cease operation within 30 days of the expiration of the license.
(e) A provisional license, certification or approval:
(1) An initial license, certification or approval to a new facility which has been unable to demonstrate full compliance because the facility is not fully operational; or
(2) A temporary license, certification or approval to an established licensed or certified facility which is temporarily unable to conform to the provisions of this article or the rules promulgated hereunder.
(e) A certificate of registration is effective for a period up to two years from the date of issuance, unless revoked based on evidence of a failure to comply with the provisions of this article or any rules promulgated pursuant to this article. The certificate of registration shall be reinstated upon application to the secretary, including a statement of assurance of continued compliance with the rules promulgated pursuant to this article.
(f) A provisional license, certification or approval shall expire six months from the date of issuance and may be reinstated no more than two times. The issuance of a provisional license, certification or approval shall be contingent upon the submission to the commissioner of an acceptable plan to overcome identified deficiencies within the period of the provisional license or approval.
(f) The license, approval or registration issued under this article is not transferable and applies only to the facility and its location stated in the application. The license, registration or approval shall be publicly displayed: Provided, That foster and adoptive family homes, informal family child care homes and relative family child care homes shall be required to display registration certificates of registration or approval upon request rather than by posting.
(g) Provisional certificates of registration shall may be issued to family day child care homes.
(h) The commissioner secretary, as a condition of issuing a license, certification, registration or approval, may:
(1) Limit the age, sex or type of problems of children allowed admission to a particular facility;
(2) Prohibit intake of any children; or
(3) Reduce the number of children which the agency, facility or home operated by the agency is licensed, approved, certified or registered to receive.
§49-2B-7. Waivers and variances to rules.
Waivers or variances of rules may be granted by the commissioner secretary if the health, safety or well-being of a child would not be endangered thereby. The commissioner secretary shall promulgate by rule criteria and procedures for the granting of waivers or variances so that uniform practices may be maintained throughout the state.
§49-2B-8. Application for license or approval.
(a) Any person or corporation or any governmental agency intending to act as a child welfare agency shall apply for a license, statement of certification, approval or registration certificate to operate child care facilities regulated by this article. Applications for licensure, certification, approval or registration shall be made separately for each child care facility to be licensed, approved, certified or registered.
(b) The commissioner secretary shall prescribe forms and reasonable application procedures including, but not limited to, fingerprinting of applicants and other persons responsible for the care of children for submission to the state police and, if necessary, to the federal bureau of investigation for criminal history record checks.
(c) Before issuing a license, certification or approval, the commissioner secretary shall investigate the facility, program and persons responsible for the care of children. The investigation shall include, but not be limited to, review of resource need, reputation, character and purposes of applicants, a check of personnel criminal records, if any, and personnel medical records, the financial records of applicants and consideration of the proposed plan for child care from intake to discharge.
(d) Before a family day care home registration is granted, the commissioner secretary shall make inquiry as to the facility, program and persons responsible for the care of children. The inquiry shall include self-certification by the prospective family day care home of compliance with standards including, but not limited to:
(1) Physical and mental health of persons present in the home while children are in care;
(2) Criminal and child abuse or neglect history of persons present in the home while children are in care;
(3) Discipline;
(4) Fire and environmental safety;
(5) Equipment and program for the children in care;
(6) Health, sanitation and nutrition.
(e) Further inquiry and investigation may be made as the commissioner secretary may direct.
(f) The commissioner secretary shall make a decision on each application within sixty days of its receipt and shall provide to unsuccessful applicants written reasons for the decision.
§49-2B-9. Supervision and consultation required.
(a) The commissioner secretary shall provide supervision to ascertain compliance with the rules promulgated pursuant to this article through regular monitoring, visits to facilities, documentation, evaluation and reporting. The commissioner secretary shall be responsible for training and education, within fiscal limitations, specifically for the improvement of care in family day child care homes and facilities. The commissioner secretary shall consult with applicants, the personnel of child welfare agencies, and children under care to assure the highest quality child care possible.
(b) The director of the department of health and the State Fire Marshal shall cooperate with the commissioner secretary in the administration of the provisions of this article by providing such reports and assistance as may be requested by the commissioner secretary.
§49-2B-10. Investigative authority.
(a) The commissioner secretary shall enforce the provisions of this article.
(b) An on-site evaluation of every facility regulated pursuant to this article, except certified family day care facilities and registered family child day care homes, informal family child care and relative family child care homes shall be conducted no less than once per year by announced or unannounced visits.
(c) Every certified family day care facility shall be satisfactorily inspected by the department prior to issuance of certification. Future inspections shall occur at not longer than two year intervals or upon receipt by the department of a complaint about the facility.
(d) (c) A random sample of not less than five percent of the total number of registered family child day care homes, informal family child care homes and relative family child care homes shall be monitored annually through on-site evaluations.
(e) (d) The commissioner secretary shall have access to the premises, personnel, children in care and records of each facility subject to inspection, including, but not limited to, case records, corporate and financial records and board minutes. Applicants for licenses, approvals, certifications and certificates of registration shall consent to reasonable on-site administrative inspections, made with or without prior notice, as a condition of licensing, approval, certification or registration.
(e) When a complaint is received by the commissioner secretary alleging violations of licensure, approval, certification or registration requirements, the commissioner secretary shall investigate the allegations. The commissioner secretary may notify the facility's director before or after a complaint is investigated and shall cause a written report of the results of the investigation to be made.
(f) The commissioner secretary may enter any unlicensed, uncertified unregistered or unapproved child care facility or personal residence for which there is probable cause to believe that the facility or residence is operating in violation of this article. Such entries shall be made with a law- enforcement officer present. The commissioner secretary may enter upon the premises of any unregistered residence only after two attempts by the commissioner secretary to bring this facility into compliance.
§49-2B-11. Revocation; provisional licensure certification and approval.

(a) The commissioner secretary may revoke or make provisional the licensure or certification registration of any home facility or child welfare agency regulated pursuant to this article if a facility materially violates any provision of this article, or any terms or conditions of the license, certification registration or approval issued, or fails to maintain established requirements of child care: Provided, That the provisions of this section shall not apply to family child day care homes.
(b) The commissioner secretary may revoke the certificate of registration of any family day child care home if a facility materially violates any provision of this article, or any terms or conditions of the registration certificate issued, or fails to maintain established requirements of child care.
§49-2B-12. Closing of facilities by the secretary; placement of children.

When the commissioner secretary finds that the operation of a child care facility constitutes an immediate danger of serious harm to children served by the facility, the commissioner secretary shall issue an order of closure terminating operation of the facility. When necessary, the commissioner secretary shall place or direct the placement of the children in a residential child care facility which has been closed into appropriate facilities. A facility closed by the commissioner secretary may not operate pending administrative or judicial review with out court order.
§49-2B-13. Administrative and judicial review.
Any person, corporation, governmental official or child welfare agency, aggrieved by a decision of the commissioner secretary made pursuant to the provisions of this article may contest the decision upon making a request for a hearing by the commissioner secretary within thirty days of receipt of notice of the decision. Administrative and judicial review shall be made in accordance with the provisions of article five, chapter twenty-nine-a of this code. Any decision issued by the commissioner secretary may be made effective from the date of issuance. Immediate relief there from may be obtained upon a showing of good cause made by verified petition to the circuit court of Kanawha County or the circuit court of any county where the affected facility or child welfare agency may be located. The dependency of administrative or judicial review shall not prevent the commissioner secretary from obtaining injunctive relief pursuant to section five of this article.
§49-2B-14. Annual reports; directory; licensing reports and recommendations.

(a) The commissioner secretary shall submit on or before the first day of January of each year a report to the Governor, and upon request to members of the Legislature, concerning the regulation of child welfare agencies, child placing agencies, day child care centers, family day child care facilities, family day child care homes, informal family child care homes, relative family child care homes and child care facilities during the year. The report shall include, but not be limited to, data on the number of children and staff at each facility (except family day child care, informal family child care homes and relative family child care, applications received, types of licenses, certifications, approvals and registrations granted, denied, made provisional or revoked and any injunctions obtained or facility closures ordered.
(b) The commissioner secretary also shall compile annually a directory of licensed, certified and approved child care providers including a brief description of their program and facilities, the program's capacity and a general profile of children served. A listing of family day child care homes shall also be compiled annually.
(c) Licensing reports and recommendations for licensure and certification which are a part of the yearly review of each licensed facility shall be sent to the facility director. Copies shall be available to the public upon written request to the commissioner secretary.
§49-2B-15. Education of the public.
The Legislature finds that state owned or leased facilities are suitable for the provision of child day care and that such day care centers are needed by public employees and other parents in this state. Therefore, the department of human services, in consultation with the department of finance and administration and other appropriate agencies, shall plan and assist in implementing day care services for public employees and other parents. Suitable space for at least one pilot program shall be provided in Morgantown, and two other pilot programs may be initiated during fiscal year one thousand nine hundred eighty-nine and continued thereafter. The department of human services shall consider such findings as were made by the legislative interim committee on day care centers and shall conduct such other statewide needs assessments as may facilitate the provision of day care for public employees statewide. The day care centers shall meet all licensing requirements prescribed by law and shall be under the supervision of the department of human services through profit or nonprofit independent operators in accordance with standards and requirements established by federal law and rules promulgated by the commissioner secretary of human services. The space provided for day care shall be available without charge for rent, unless such rent shall be required pursuant to bonding covenants. Any alterations necessary to meet state or federal standards shall be provided for by and at the expense of the operator of the day care center. Such space shall be made available with the approval of the department of finance and administration as to space under the control of the executive branch, the board of regents as to space at state institutions of higher education, and by the appropriate official in the legislative or judicial branch as to space under their control.
Operators of such day care centers shall charge reasonable fees for child care, and parents using the day care shall pay such fees set at a level that will cover all projected operating costs, less any costs covered by the absence of rent or by donations or fund-raising activities. Fees may be established pursuant to a sliding fee schedule with fees based on the parents' household income. General liability insurance coverage shall be provided by the operators of such day care centers, and such coverage may be provided to nonprofit corporations by the board of risk and insurance management pursuant to subsection (b), section five, article twelve, chapter twenty-nine of this code. Parents shall have the opportunity for involvement in the implementation and operation of the day care centers and shall have access to their children at any time. The department of human services, in consultation with those branches and departments of government wherein day care facilities are located, shall report to the Legislature prior to the first day of January, one thousand nine hundred eighty-nine, its findings relevant to the costs of operation of the pilot program or programs, the benefits to employees and other parents of such day care centers, the problems incident to the operation of the centers, and other matters relevant to the operation of such centers together with recommendations for future operation of such centers at other state owned or leased facilities.
The secretary shall provide ongoing education of the public in regard to the requirements of this article through the use of mass media and other methods as are deemed appropriate and within fiscal limitations.
§49-2B-16. Implementation of the Integrated Pest Management Program.

The commissioner shall provide ongoing education of the public in regard to the requirements of this article through the use of mass media and other methods as are deemed appropriate.
By the fifteenth day of August, one thousand nine hundred ninety-five, the secretary shall implement the Integrated Pest Management Program promulgated under rules by the Department of Agriculture under authority of section four, article sixteen-a, chapter nineteen of this code."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4790 - "A Bill to repeal §49-2B-17 of the Code of West Virginia, 1931, as amended; and to amend and reenact §49-2B-1, §49-2B-2, §49-2B-3, §49-2B-4, §49-2B-5, §49-2B-6, §49-2B-7, §49-2B-8, §49-2B-9, §49-2B-10, §49-2B-11, §49-2B-12, §49-2B-13, §49-2B-14, §49- 2B-15 and §49-2B-16 of said code, all relating to prescribing and modifying the duties of the Secretary of the Department of Health and Human Resources in child welfare placement; relating to authority to promulgate emergency rules providing for voluntary registration of relative family child care homes and informal family child care homes; defining terms; updating statutory language; providing for a time study by the Department of Health and Human Resources; modifying requirements related to child care placement in certain homes or facilities; and repealing the section of the code concerning the establishment of pilot day care programs."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment with further amendment, as follows:
On page thirteen, section four, subsections (b) and (c) beginning on line eighteen, by striking out subsections (b) and (c) in their entireties and inserting in lieu thereof a new subsection (b) to read as follows:
"(b) The commissioner secretary shall review the rules promulgated pursuant to the provisions of this article at least once every five years, making revisions when necessary or convenient: Provided, That on or before the first day of September, two thousand six, the department shall promulgate emergency rules pursuant to the provisions of article three, chapter twenty-nine-a of this code that amends and replaces licensing requirements for group residential programs for children, 78 CSR 3, and child placing agencies for children, 78 CSR 2. Provided, however, That on or before the first day of July, two thousand six, the department shall promulgate emergency rules pursuant to the provisions of article three, chapter twenty-nine-a of this code that creates requirements for informal family child care homes and relative family child care homes that voluntarily register with the department. All individuals, facilities, entities, programs, agencies or family child care homes subject to said emergency rules shall have one hundred eighty days to come into compliance after promulgation of such rules."

The bill, as amended by the Senate and further amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 584), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4790) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request it concurrence therein.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
H. B. 4854, Expert opinions of licensed psychologists in the treatment and evaluation of children and taking testimony of child witnesses.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 6B. PROTECTION AND PRESERVATION OF STATEMENTS AND TESTIMONY OF CHILD WITNESS.

§62-6B-3. Findings of fact required for taking testimony of child witness by closed-circuit television; considerations for court.
(a) Upon a written motion filed by the prosecuting attorney, and upon findings of fact determined pursuant to subsection (b) of this section, a circuit court may order that the testimony of a child witness may be taken at a pretrial proceeding or at trial through the use of live, two-way closed-circuit television.
(b) Prior to ordering that the testimony of a child witness may be taken through the use of live, two-way closed-circuit television, the circuit court must find by clear and convincing evidence, after conducting an evidentiary hearing on this issue, that:
(1) The child is an otherwise competent witness;
(2) That, absent the use of live, two-way closed-circuit television, the child witness will be unable to testify due solely to being required to be in the physical presence of the defendant while testifying;
(3) The child witness can only testify if live, two-way closed-circuit television is used in the trial; and
(4) That the state's ability to proceed against the defendant without the child witness' live testimony would be substantially impaired or precluded.
(c) The court shall consider the following factors in determining the necessity of allowing a child witness to testify by the use of live, two-way closed-circuit television:
(1) The age and maturity of the child witness;
(2) The facts and circumstances of the alleged offense;
(3) The necessity of the child's live testimony to the prosecution's ability to proceed;
(4) Whether or not the facts of the case involve the alleged infliction of bodily injury to the child witness or the threat of bodily injury to the child or another; and
(5) Any mental or physical handicap of the child witness.
(d) In determining whether to allow a child witness to testify through live, two-way closed- circuit television the court shall appoint a psychiatrist, doctoral-level licensed psychologist with at least five years clinical experience or a licensed clinical social worker with at least five years of significant clinical experience in the treatment and evaluation of children who shall serve as an advisor or friend of the court to provide the court with an expert opinion as to whether, to a reasonable degree of professional certainty, the child witness will suffer severe emotional harm, be unable to testify based solely on being in the physical presence of the defendant while testifying and that the child witness does not evidence signs of being subjected to undue influence or coercion. The opinion of the psychiatrist, doctoral-level licensed psychologist or licensed clinical social worker shall be filed with the circuit court at least thirty days prior to the final hearing on the use of live, two-way closed-circuit television and the defendant shall be allowed to review the opinion and present evidence on the issue by the use of an expert or experts or otherwise."
And,
By amending the title of the bill to read as follows:
H. B. 4854 - "A Bill to amend and reenact §62-6B-3 of the Code of West Virginia, 1931, as amended, relating to allowing expert opinions of licensed psychologists with at least five years clinical experience in treatment and evaluation of children; and taking testimony of child witness through use of live two-way closed circuit television."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 585), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4854) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
H. B. 2118, Providing for reimbursement to the bail bondsman for the amount of a forfeited bond under certain circumstances.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 1C. BAIL.

§62-1C-12. Same -- Exoneration; return of deposit.

(a) When the condition of the bond has been satisfied or the forfeiture thereof has been set aside or remitted, the court or justice magistrate shall exonerate the surety and release any bail and, if the bail be in a form other than a recognizance, the deposit shall be returned to the person who made the same. The surety may be exonerated by a deposit of cash in the amount of the bail or by a timely surrender of the defendant into custody.
(b) Notwithstanding any provision of this code to the contrary, when a bail bondsman, as defined in article ten, chapter fifty-one of this code, has a surety bond forfeited because of the failure of a defendant to appear before a court or magistrate, that bail bondsman shall be reimbursed the full amount of the bond forfeiture, be it cash or surety, if the bail bondsman returns the defendant to the custody of the court or magistrate, within two years of the forfeiture of the bond.
(c) The Administrator of the West Virginia Supreme Court of Appeals shall, ex officio, be empowered to audit, review and suspend any bail bondsman whose surety on bonds is or becomes insufficient or whose assets are below the amount of bonds he or she has in existence."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2118 - "A Bill to amend and reenact §62-1C-12 of the Code of West Virginia, 1931, as amended, relating to forfeiture of bail bond for failure of a defendant to appear in court; providing for reimbursement to the bail bondsman for the amount of the forfeited bond if the bail bondsman later returns the bonded person to the custody of court; and authorizing the Administrator of the West Virginia Supreme Court to oversee bondsmen and audit, review and suspend bondsmen who have insufficient assets."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 586), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2118) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
Com. Sub. for H. B. 2235, Increasing salaries for magistrate clerks, magistrate assistants and magistrate deputy clerks.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page nine, section nine-a, line six, by striking out the word "sixty-two" and inserting in lieu thereof the word "seventy-two".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment with further amendment, as to the title of the bill as follows:
Com. Sub. for H. B. 2235 - "A Bill to amend and reenact §50-1-8, §50-1-9 and §50-1-9a of the Code of West Virginia, 1931, as amended, all relating to employees of magistrate courts generally; increasing salaries for magistrate court clerks, magistrate assistants and magistrate court deputy clerks; and increasing the maximum number of magistrate court deputy clerks that may be appointed."
The bill, as amended by the Senate, and further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 587), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Lane and Spencer.
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2235) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates. and request its concurrence therein.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
Com. Sub. for H. B. 2306, Requiring that annual reports be recorded on CD-Rom for distribution.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"CHAPTER 4. THE LEGISLATURE.

ARTICLE 1. OFFICERS, MEMBERS AND EMPLOYEES; APPROPRIATIONS; INVESTIGATIONS; DISPLAY OF FLAGS; RECORDS; USE OF CAPITOL BUILDING; PREFILING OF BILLS AND RESOLUTIONS; STANDING COMMITTEES; INTERIM MEETINGS; NEXT MEETING OF THE SENATE.
§4-1-23. Annual reports to be sent to the legislative librarian.
(a) Any office, agency, commission or board required by any section of this code to provide an annual report to the Legislature, legislative manager, legislative auditor, the president of the Senate and the speaker of the House of Delegates or the Joint Committee on Government and Finance shall submit the report to the legislative librarian. All audit reports shall be submitted to the legislative manager.
(b) Any office, agency, commission or board required by any section of this code to provide an annual report may submit its annual report on an electronic computer disc or CD-Rom, to be filed in the same manner as a printed annual report. Any report filed in an electronic format shall be considered as having satisfied the filing requirements.
The office, agency, commission or board shall publish its annual report on its web site, if it has web site.
(c) Any Senator or Delegate wanting to receive a copy of an annual report shall submit a written request to the office, agency, commission or board.


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 1. THE GOVERNOR.
§5-1-20. Reports to the Governor; form and contents; transmission to the Legislature; special reports.
(a) The subordinate officers of the executive department and the officers of all public institutions of the state shall make an annual report to the Governor as soon as possible after the close of each fiscal year, notwithstanding any other provision of law to the contrary. All state officers, boards, commissions, departments and institutions required by law to make reports to the Governor, the Legislature or any administrative board or state official shall cover fiscal year periods and such reports shall be submitted in typewritten form or any legible form produced by mechanical means.
(b) The Governor shall by executive order prescribe the general contents of the reports to be submitted to him or her. The form and format of the reports shall be as prescribed in section twenty-eight, article three, chapter five-a of this code.
(c) The Governor shall transmit copies of the report to the Legislature and lodge a copy of all such reports with the Department of Archives and History where the same shall be kept as permanent records. All annual reports to the Legislature shall be submitted to the legislative librarian. Any Senator or Delegate wanting to receive a copy of an annual report shall submit a written request to the office, agency, commission or board
.
(d) The Governor may at any time require information in writing, under oath, from any officer, board, department or commission of the executive department or the principal officer or manager of any state institution, upon any subject relating to the condition, management and expense of their respective offices or institutions.
(e) Annual reports may be submitted on an electronic computer disc or CD-Rom, to be filed in the same manner as a printed annual report. Any report filed in an electronic format shall be considered as having satisfied the filing requirements.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS

ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.

§ 30-1-17. Annual reports.

(a) A licensing board organized under this chapter may submit its annual report on an electronic computer disc or CD-Rom, to be filed in the same manner as a printed annual report. Any report filed in an electronic format shall be considered as having satisfied the filing requirements. The licensing board shall publish its annual report on its web site, if it has web site.
(b) Any Senator or Delegate wanting to receive a copy of an annual report shall submit a written request to the office, agency, commission or board."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2306 - "A Bill to amend and reenact §4-1-23 of the Code of West Virginia, 1931, as amended; to amend and reenact §5-1-20 of said code, and to amend said code by adding thereto a new section, designated §30-1-17; all relating to permitting agency annual reports to be submitted on an electronic computer disc or CD-Rom; and requiring legislators to submit written requests for agency annual reports."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 588), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2306) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
Com. Sub. for H. B. 3119, Providing that the Division of Natural Resources may not reduce the habitat land acreage available for hunting and shooting.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, lines two and three, by striking out the words "wildlife management areas under its ownership" and inserting in lieu thereof the words "all of its lands".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 589), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3119) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
H. B. 3295, Increasing certain fees charged to collect delinquent taxes.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page four, section two, line twenty-five, after the word "redemption." by inserting "Payment received within fourteen business days prior to the date of sale must be paid by cashier check, money order, certified check or United States currency."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 590), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3295) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
Com. Sub. for S. B. 4015, Relating to funding of the Revenue Shortfall Reserve Fund.
On motion of Delegate, the bill was taken up for immediate consideration.
The following Senate amendments, were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §4-11A-2 and §4-11A-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §11B-2-20 of said code be amended and reenacted; and that §33-20F-4 of said code be amended and reenacted, all to read as follows:
CHAPTER 4. THE LEGISLATURE.

ARTICLE 11A. LEGISLATIVE APPROPRIATION OF TOBACCO SETTLEMENT FUNDS.

§4-11A-2. Receipt of settlement funds and required deposit in West Virginia Tobacco Settlement Medical Trust Fund until the first day of June, two thousand five, then to Workers' Compensation Debt Reduction Fund; deposit of strategic compensation payments; transfer of trust fund moneys.

(a) The Legislature finds and declares that certain dedicated revenues should be preserved in trust for the purpose of stabilizing the state's health-related programs and delivery systems. It further finds and declares that these dedicated revenues should be preserved in trust for the purpose of educating the public about the health risks associated with tobacco usage and establishing a program designed to reduce and stop the use of tobacco by the citizens of this state and in particular by teenagers.
(b) There is hereby created a special account in the state treasury, designated the 'West Virginia Tobacco Settlement Medical Trust Fund', which shall be an interest-bearing account and may be invested in the manner permitted by section nine, article six, chapter twelve of this code, with the interest income a proper credit to the fund. Unless contrary to federal law, fifty percent of all revenues received pursuant to the master settlement agreement shall be deposited in this fund. Funds paid into the account may also be derived from the following sources:
(1) All interest or return on investment accruing to the fund;
(2) Any gifts, grants, bequests, transfers or donations which may be received from any governmental entity or unit or any person, firm, foundation or corporation;
(3) Any appropriations by the Legislature which may be made for this purpose; and
(4) Any funds or accrued interest remaining in the Board of Risk and Insurance Management physicians' mutual insurance company account created pursuant to section seven, article twenty-f, chapter thirty-three of this code on or after the first day of July, two thousand four.
(c)(1) The moneys from the principal in the trust fund may not be expended for any purpose, except that on the first day of April, two thousand three, the treasurer shall transfer to the Board of Risk and Insurance Management physicians' mutual insurance company account created by section seven, article twenty-f, chapter thirty-three of this code, twenty-four million dollars from the West Virginia Tobacco Settlement Medical Trust Fund for use as the initial capital and surplus of the physicians' mutual insurance company created pursuant to said article. The remaining moneys in the trust fund resulting from interest earned on the moneys in the fund and the return on investments of the moneys in the fund shall be available only upon appropriation by the Legislature as part of the state budget and expended in accordance with the provisions of section three of this article.
(2) Notwithstanding any other provision of this code to the contrary, on the effective date of the amendment and reenactment of this section during the regular session of the Legislature in two thousand six, all moneys in the trust fund and any interest or other return earned thereon shall be transferred to the Revenue Shortfall Reserve Fund - Part B created in section twenty, article two, chapter eleven-b of this code and the trust fund shall be closed. No provisions of the amendments made to this section during the regular session of the Legislature in two thousand six may be construed to change the requirements of this section for the deposit of revenues received pursuant to the tobacco master settlement agreement into the workers' compensation debt reduction fund.
(d) Notwithstanding the preceding subsections to the contrary, the first thirty million dollars of all revenues received after the thirtieth day of June, two thousand five, pursuant to section IX(c)(1) of the tobacco master settlement agreement shall in the fiscal year beginning the first day of July, two thousand five, and each fiscal year thereafter, be deposited in the workers' compensation debt reduction fund established in the state treasury in section five, article two-d, chapter twenty-three of this code. Receipts in excess of thirty million dollars shall be deposited as into the Tobacco Settlement Fund provided in section three of this article.
(e) Notwithstanding anything in this code to the contrary, strategic compensation payments received pursuant to section IX(c)(2) of the tobacco master settlement agreement, beginning in two thousand eight, shall be deposited in their entirety in the workers' compensation debt reduction fund.
§4-11A-3. Receipt of settlement funds and required deposit in the West Virginia Tobacco Settlement Fund.

(a) There is hereby created in the state treasury a special revenue account, designated the 'Tobacco Settlement Fund', which shall be an interest bearing account and may be invested in the manner permitted by the provisions of article six, chapter twelve of this code, with the interest income a proper credit to the fund. Unless contrary to federal law, fifty percent of all revenues received pursuant to the master settlement agreement shall be deposited in this fund. These funds shall be available only upon appropriation by the Legislature as part of the state budget: Provided, That for the fiscal year two thousand, the first five million dollars received into the fund shall be transferred to the public employees insurance reserve fund created in article two, chapter five-a of this code.
(b) Appropriations from the Tobacco Settlement Fund are limited to expenditures for the following purposes:
(1) Reserve funds for continued support of the programs offered by the Public Employees Insurance Agency established in article sixteen, chapter five of this code;
(2) Funding for expansion of the federal-state medicaid program as authorized by the Legislature or mandated by the federal government;
(3) Funding for public health programs, services and agencies; and
(4) Funding for any state owned or operated health facilities.
(c) Notwithstanding the provisions of section two, article two, chapter twelve of this code, moneys within the tobacco settlement trust fund may not be redesignated for any purpose other than those set forth in this section.
CHAPTER 11B. DEPARTMENT OF REVENUE.

ARTICLE 2. STATE BUDGET OFFICE.
§11B-2-20. Reduction of appropriations; powers of Governor; Revenue Shortfall Reserve Fund and permissible expenditures therefrom.

(a) Notwithstanding any provision of this section, the Governor may reduce appropriations according to any of the methods set forth in sections twenty-one and twenty-two of this article. The Governor may, in lieu of imposing a reduction in appropriations, request an appropriation by the Legislature from the Revenue Shortfall Reserve Fund established in this section.
(b) A Revenue Shortfall Reserve Fund is hereby continued within the State Treasury. The Revenue Shortfall Reserve Fund shall be funded as set forth in this subsection from surplus revenues, if any, in the State Fund, General Revenue, as the surplus revenues may accrue from time to time. Within sixty days of the end of each fiscal year, the secretary shall cause to be deposited into the Revenue Shortfall Reserve Fund the first fifty percent of all surplus revenues, if any, determined to have accrued during the fiscal year just ended. The Revenue Shortfall Reserve Fund shall be funded continuously and on a revolving basis in accordance with this subsection up to an aggregate amount not to exceed five ten percent of the total appropriations from the State Fund, General Revenue, for the fiscal year just ended. If at the end of any fiscal year the Revenue Shortfall Reserve Fund is funded at an amount equal to or exceeding five ten percent of the State's General Revenue Fund budget for the fiscal year just ended, then there shall be no further obligation of the secretary under the provisions of this section to apply any surplus revenues as set forth in this subsection until that time the Revenue Shortfall Reserve Fund balance is less than five ten percent of the total appropriations from the state fund, general revenue.
(c) Not earlier than the first day of November of each calendar year, if the state's fiscal circumstances are such as to otherwise trigger the authority of the Governor to reduce appropriations under this section or section twenty-one or section twenty-two of this article, then in that event the Governor may notify the presiding officers of both houses of the Legislature in writing of his or her intention to convene the Legislature pursuant to section nineteen, article VI of the Constitution of West Virginia for the purpose of requesting the introduction of a supplementary appropriation bill or to request a supplementary appropriation bill at the next preceding regular session of the Legislature to draw money from the surplus Revenue Shortfall Reserve Fund to meet any anticipated revenue shortfall. If the Legislature fails to enact a supplementary appropriation from the Revenue Shortfall Reserve Fund during any special legislative session called for the purposes set forth in this section or during the next preceding regular session of the Legislature, then the Governor may proceed with a reduction of appropriations pursuant to sections twenty-one and twenty-two of this article. Should any amount drawn from the Revenue Shortfall Reserve Fund pursuant to an appropriation made by the Legislature prove insufficient to address any anticipated shortfall, then the Governor may also proceed with a reduction of appropriations pursuant to sections twenty-one and twenty-two of this article.
(d) Upon the creation of the fund, the Legislature is authorized and may make an appropriation from the Revenue Shortfall Reserve Fund for revenue shortfalls, for emergency revenue needs caused by acts of God or natural disasters or for other fiscal needs as determined solely by the Legislature.
(e) Prior to the thirty-first day of October, in any fiscal year in which revenues are inadequate to make timely payments of the state's obligations, the Governor may by executive order, after first notifying the presiding officers of both houses of the Legislature in writing, borrow funds from the Revenue Shortfall Reserve Fund. The amount of funds borrowed under this subsection shall not exceed one and one-half percent of the general revenue estimate for the fiscal year in which the funds are to be borrowed, or the amount the Governor determines is necessary to make timely payment of the state's obligations, whichever is less. Any funds borrowed pursuant to this subsection shall be repaid, without interest, and redeposited to the credit of the Revenue Shortfall Reserve Fund within ninety days of their withdrawal.
(f) There is hereby created in the State Treasury the 'Revenue Shortfall Reserve Fund - Part B.' The Revenue Shortfall Reserve Fund - Part B shall consist of moneys transferred from the West Virginia Tobacco Settlement Medical Trust Fund pursuant to the provisions of section two, article eleven-a, chapter four of this code, repayments made of the loan from the West Virginia Tobacco Settlement Medical Trust Fund to the physician's mutual insurance company pursuant to the provisions of article twenty-f, chapter thirty-three of this code, and all interest and other return earned on the moneys in the Revenue Shortfall Reserve Fund - Part B. Moneys in the Revenue Shortfall Reserve Fund - Part B may be expended solely for the purposes set forth in subsection (d) of this section, subject to the following conditions:
(1) No moneys in the Revenue Shortfall Reserve Fund - Part B nor any interest or other return earned thereon may be expended for any purpose unless all moneys in the Revenue Shortfall Reserve Fund described in subsection (b) of this section have first been expended, except that the interest or other return earned on moneys in the Revenue Shortfall Reserve Fund - Part B may be expended as provided in subdivision (2) of this subsection; and
(2) Notwithstanding any other provision of this section to the contrary, the Legislature may appropriate any interest and other return earned thereon that may accrue on the moneys in the Revenue Shortfall Reserve Fund - Part B after the thirtieth day of June, two thousand twenty-five, for expenditure for the purposes set forth in section three, article eleven-a, chapter four of this code; and
(3) Any appropriation made from Revenue Shortfall Reserve Fund - Part B shall be made only in instances of revenue shortfalls or fiscal emergencies of an extraordinary nature.
(g) Subject to the conditions upon expenditures from the Revenue Shortfall Reserve Fund - Part B prescribed in subsection (f) of this section, in appropriating moneys pursuant to the provisions of this section, the Legislature may in any fiscal year appropriate from the Revenue Shortfall Reserve Fund and the Revenue Shortfall Reserve Fund - Part B a total amount up to but not exceeding ten percent of the total appropriations from the State Fund, General Revenue, for the fiscal year just ended.
(h)(1) Of the moneys in the Revenue Shortfall Reserve Fund, one hundred million dollars, or such greater amount as may be certified as necessary by the director of the budget for the purposes of subsection (e) of this section, shall be made available to the West Virginia Board of Treasury Investments for management and investment of the moneys in accordance with the provisions of article six-c, chapter twelve of this code. All other moneys in the Revenue Shortfall Reserve Fund shall be made available to the West Virginia Investment Management Board for management and investment of the moneys in accordance with the provisions of article six, chapter twelve of this code. Any balance of the Revenue Shortfall Reserve Fund including accrued interest and other return earned thereon at the end of any fiscal year shall not revert to the general fund but shall remain in the Revenue Shortfall Reserve Fund for the purposes set forth in this section.
(2) All of the moneys in the Revenue Shortfall Reserve Fund - Part B shall be made available to the West Virginia Investment Management Board for management and investment of the moneys in accordance with the provisions of article six, chapter twelve of this code. Any balance of the Revenue Shortfall Reserve Fund - Part B including accrued interest and other return earned thereon at the end of any fiscal year shall not revert to the general fund but shall remain in the Revenue Shortfall Reserve Fund - Part B for the purposes set forth in this section.

CHAPTER 33. INSURANCE.

ARTICLE 20F. PHYSICIANS' MUTUAL INSURANCE COMPANY.
§33-20F-4. Authorization for creation of company; requirements and limitations; repayment of loan.

(a) Subject to the provisions of this article, a physicians' mutual insurance company may be created as a domestic, private, nonstock, nonprofit corporation. As an incentive for its creation, the company may be eligible for funds from the Legislature in accordance with the provisions of section seven of this article. The company must remain for the duration of its existence a domestic mutual insurance company owned by its policyholders and may not be converted into a stock corporation, a for-profit corporation or any other entity not owned by its policyholders. The company may not declare any dividend to its policyholders; sell, assign or transfer substantial assets of the company; or write coverage outside this state, except for counties adjoining this state, until after any and all debts owed by the company to the state have been fully paid.
(b) For the duration of its existence, the company is not and may not be considered a department, unit, agency, or instrumentality of the state for any purpose. All debts, claims, obligations, and liabilities of the company, whenever incurred, shall be the debts, claims, obligations, and liabilities of the company only and not of the state or of any department, unit, agency, instrumentality, officer, or employee of the state.
(c) The moneys of the company are not and may not be considered part of the general revenue fund of the state. The debts, claims, obligations, and liabilities of the company are not and may not be considered a debt of the state or a pledge of the credit of the state.
(d) The company is not subject to provisions of article nine-a, chapter six of this code or the provisions of article one, chapter twenty-nine-b of this code.
(e)(1) All premiums collected by the company are subject to the premium taxes, additional premium taxes, additional fire and casualty insurance premium taxes and surcharges contained in sections fourteen, fourteen-a, fourteen-d and thirty-three, article three of this chapter: Provided, That while the loan to the company of moneys from the West Virginia Tobacco Settlement Medical Trust Fund pursuant to section nine of this article remains outstanding, the commissioner may waive the company's premium taxes, additional premium taxes and additional fire and casualty insurance premium taxes if payment would render the company insolvent or otherwise financially impaired.
(2) On and after the first day of July, two thousand three, any premium taxes and additional premium taxes paid by the company and by any insurer on its medical malpractice line pursuant to sections fourteen and fourteen-a, article three of this chapter, shall be temporarily applied toward replenishing the moneys appropriated from the West Virginia Tobacco Settlement Medical Trust Fund pursuant to subsection (c), section two, article eleven-a, chapter four of this code pending repayment of the loan of such moneys by the company.
(3) The State Treasurer shall notify the commissioner when the moneys appropriated from the West Virginia tobacco settlement medical trust have been fully replenished, at which time the commissioner shall resume depositing premium taxes and additional premium taxes diverted pursuant to subdivision (2) of this subsection in accordance with the provisions of sections fourteen and fourteen-a, article three of this chapter.
(4) Payments received by the treasurer from the company in repayment of any outstanding loan made pursuant to section nine of this article shall be deposited in the West Virginia Tobacco Settlement Medical Trust Fund and dedicated to replenishing the moneys appropriated therefrom under subsection (c), section two, article eleven-a, chapter four of this code. Once the moneys appropriated from the West Virginia Tobacco Settlement Medical Trust Fund have been fully replenished, the treasurer shall deposit any payments from the company in repayment of any outstanding loan made pursuant to section nine of this article in said fund and transfer a like amount from said fund to the commissioner for disbursement in accordance with the provisions of sections fourteen and fourteen-a, article three of this chapter.
(5) Notwithstanding any other provision of this code to the contrary, on and after the effective date of the amendment and reenactment of this section during the regular session of the Legislature in two thousand six, all moneys otherwise required by this section to be deposited in the West Virginia Tobacco Settlement Medical Trust Fund and dedicated to replenishing the moneys transferred therefrom under subsection (c), section two, article eleven-a, chapter four of this code shall instead be paid into the Revenue Shortfall Reserve Fund - Part B created in section twenty, article two, chapter eleven-b of this code."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4015 - "A Bill to amend and reenact §4-11A-2 and §4-11A-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §11B-2-20 of said code; and to amend and reenact §33-20F-4 of said code, all relating generally to reserve funding; creating the Revenue Shortfall Reserve Fund - Part B; providing for the transfer of all moneys in the West Virginia Tobacco Settlement Medical Trust Fund including any interest and earnings thereon to the Revenue Shortfall Reserve Fund - Part B; closing the West Virginia Tobacco Settlement Medical Trust Fund; providing funding for the Revenue Shortfall Reserve Fund; providing legislative authority to appropriate moneys from the Revenue Shortfall Reserve Fund and the Revenue Shortfall Reserve Fund - Part B; providing that repayments from the loan made to the physicians' mutual insurance company shall be paid into the Revenue Shortfall Reserve Fund - Part B; providing for the investment of moneys in the Revenue Shortfall Reserve Fund and the Revenue Shortfall Reserve Fund - Part B; and making technical corrections."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 591), and there were--yeas 81, nays 16, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Armstead, Brown, Carmichael, Duke, Frich, Hamilton, Hatfield, Lane, Louisos, Overington, Rowan, Sobonya, Stevens, Sumner, Thompson, Rick and Walters.

Absent And Not Voting: Browning, Eldridge, and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4015) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
H. B. 4030, Relating to limiting the administration of a Voluntary Contribution Fund or similar benefit plan by members and employees of the West Virginia State Police.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment, was reported by the Clerk:
On page one, by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4030 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-2-9, relating to legislative findings; and limiting the administration of a voluntary contribution fund or similar benefit plan by members and employees of the West Virginia State Police."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 592), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4030) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
H. B. 4296, Providing employer immunity from liability for disclosing job-related information concerning an employee or former employee to a prospective employer.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-18a. Employer immunity from liability; disclosure of information regarding former employees.

(a) Any employer or his or her designated agent who discloses job-related information that may be reasonably considered adverse about a former or current employee to a prospective employer of the former or current employee is presumed to be acting in good faith and is immune from civil liability for the disclosure or its consequences: Provided, That the disclosure of such information pursuant to this subsection shall be in writing and a copy of any such disclosure shall be provided to the former or current employee at the time of disclosure.
(b) For the purposes of this section, the presumption of good faith is rebutted upon a showing, by a preponderance of the evidence, that the information disclosed was:
(1) Knowingly false;
(2) Disclosed with reckless disregard for the truth;
(3) Deliberately misleading;
(4) Rendered with malicious purpose toward the former or current employee; or
(5) Disclosed in violation of a nondisclosure agreement or applicable law.
(c) For purposes of this section, 'job-related information' means information concerning a person's education, training, experience, qualifications, conduct and job performance which is offered for the purpose of providing criteria to evaluate the person's suitability for employment.
(d) If an employer disclosed job-related information to a prospective employer of a former or current employee that was false or misleading, and if the current or former employee requests, then the employer shall give corrected information to every person or entity that is in the employer's records as having received the original information, with a copy thereof to the former or current employee."
And,
By amending the title to read as follows:
Com. Sub. for H. B. 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 to a prospective employer job-related information reasonably believed to be adverse concerning a current or former employee; requiring written disclosure of the job-related information; and providing for the correction of false or misleading information."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 593), and there were--yeas 94, nays 2, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Hrutkay, Longstreth and Martin.
Absent And Not Voting: Eldridge, Ferrell and Moore.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4296) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
Com. Sub. for H. B. 4431, Allowing the clerk of the county commission to set reasonable fees charged for electronic or other medium versions of documents recorded in the office of clerk of the county commission.
On motion of Delegate, the bill was taken up for immediate consideration.
The following Senate amendment, was reported by the Clerk:
On page five, section ten, line sixty-five, after the word "electronic" by inserting the word "form".
On page five, section ten, line sixty-seven, by striking out the word "other".
And,
On page five, section ten, line sixty-eight, by striking out the word "fees".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 594), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Eldridge, Ferrell, Hall and Marshall.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4431) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
Com. Sub. for H. B. 4565, Establishing section of vital statistics in Bureau for Public Health.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page sixty, section twenty-five, lines twenty-four through twenty-nine, by striking out all of subsection (e).
And,
By relettering the remaining subsections.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 595), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4565) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
Com. Sub. for H. B. 4588, Creating a crime for concealing a human body of a victim of a murder, voluntary manslaughter or involuntary manslaughter and prescribing penalties therefor.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-5a. Concealment of deceased human body; penalty.

(a) Any person who, by any means, knowingly and willfully conceals, attempts to conceal or who otherwise aids and abets any person to conceal a deceased human body where death occurred as a result of criminal activity is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility for not less than one year nor more than five years and fined not less than one thousand dollars, nor more than five thousand dollars.
(b) It shall be a complete defense in a prosecution pursuant to subsection (a) of this section that the defendant affirmatively brought to the attention of law enforcement within forty-eight hours of concealing the body and prior to being contacted regarding the death by law enforcement the existence and location of the concealed deceased human body.
(c) The provisions of subsection (a) of this section do not apply to practitioners regulated by the provisions of article six, chapter thirty of this code or their agents while acting in their lawful professional capacities."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4588 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-2-5a, relating to creating a crime for concealing a deceased human body; exceptions; defense of affirmatively informing law enforcement; and prescribing penalties."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 596), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Ellem.
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4588) passed.
Delegate Staton moved that the bill take effect July 1, 2006.
On this question, the yeas and nays were taken (Roll No. 597), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge, Ennis, Ferrell and Staton.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4588) takes effect July 1, 2006.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
Com. Sub. for H.. B. 4626, Including private schools, parochial schools, church schools, and other schools operated by a religious order in state student teaching programs.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments, were 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-3-1. Teacher preparation programs; program approval and standards; authority to issue teaching certificates.

(a) The education of professional educators in the state shall be is under the general direction and control of the state board of Education after consultation with the Secretary of Education and the Arts and the Chancellor for Higher Education who shall represent the interests of teacher educator preparation programs within the institutions of higher education in this state as those institutions are defined in section two, article one, chapter eighteen-b of this code.
The education of professional educators in the state includes all programs leading to certification to teach or serve in the public schools including:
(1) Those programs in all institutions of higher education, including student teaching in the public schools as provided in this section;
(2) Beginning teacher internship programs;
(3) The granting of West Virginia certification to persons who received their preparation to teach outside the boundaries of this state, except as provided in subsection (b) of this section;
(4) Any alternative preparation programs in this state leading to certification, including programs established pursuant to the provisions of section one-a of this article and programs which are in effect on the effective date of this section; and
(5) Any continuing professional education, professional development and in-service training programs for professional educators employed in the public schools in the state.
(b) The state board, of Education after consultation with the Secretary of Education and the Arts and the Chancellor for Higher Education, who shall represent the interests of teacher preparation programs within the institutions of higher education in this state as those institutions are defined in section two, article one, chapter eighteen-b of this code shall adopt standards for the education of professional educators in the state and for the awarding of awarding certificates valid in the public schools of this state. The standards shall include, but not be limited subject to the following: conditions
(1) The standards approved by the Board for teacher preparation shall include A provision for the study of multicultural education. As used in this section, multicultural education means the study of the pluralistic nature of American society including its values, institutions, organizations, groups, status positions and social roles;
(2) Effective the first day of January, one thousand nine hundred ninety-three The standards approved by the Board shall also include A provision for the study of classroom management techniques, and shall include including methods of effective management of disruptive behavior which shall include societal factors and their impact on student behavior; and
(3) Effective on the effective date of this section, any teacher who Subject to the provisions of section ten of this article, a teacher from another state shall be awarded a teaching certificate for a comparable grade level and subject area valid in the public schools of this state, if he or she:
(A) Holds a valid teaching certificate or a certificate of eligibility issued by another state;

(I) (B) Has graduated from a teacher an educator preparation program at a regionally accredited institution of higher education;
(ii) (C) Possesses the minimum of a bachelor's degree; and
(iii) Holds a valid teaching certificate or certificates issued by another state, or holds a certificate of eligibility issued by another state; and
(D) Meets all of the requirements of the state for full certification except employment. shall be, upon application, awarded a teaching certificate or certificates for the same grade level or levels and subject area or areas valid in the public schools of this state, subject only to the provisions of section ten of this article
(c) To give prospective teachers the teaching experience needed to demonstrate competence as a prerequisite to certification to teach in the West Virginia public schools, the state board of Education may enter into an agreement with county boards for the use of the public schools.
(d) An agreement established pursuant to subsection (c) of this section
Such agreement shall recognize student teaching as a joint responsibility of the teacher educator preparation institution and the cooperating public schools and shall include:
(1) The minimum qualifications for the employment of public school teachers selected as supervising teachers, including the requirement that field-based and clinical experiences be supervised by a teacher fully certified in the state in which that teacher is supervising;
(2) The remuneration to be paid public school teachers by the State Board, in addition to their contractual salaries, for supervising student teachers; and
(3) Minimum standards to guarantee the adequacy of the facilities and program of the public school selected for student teaching;
(4) That the student teacher, under the direction and supervision of the supervising teacher, shall exercise the authority of a substitute teacher; and
(5) A provision requiring any higher education institution with an educator preparation program to document that the student teacher's field-based and clinical experiences include participation and instruction with multicultural, at-risk and exceptional children at each programmatic level for which the student teacher seeks certification.
(e) Beginning the fall, two thousand six - two thousand seven academic term, in lieu of the student teaching experience in a public school setting required by this section, an institution of higher education may provide an alternate student teaching experience in a nonpublic school setting if the institution of higher education:
(1) Complies with the provisions of this section;
(2) Has a state board approved educator preparation program; and
(3) Enters into an agreement pursuant to subdivisions (f) and (g) of this section.
(f) At the discretion of the higher education institution, an agreement for an alternate student teaching experience between an institution of higher education and a nonpublic school shall require that either:
(1) The student teacher complete at least one-half of the clinical experience in a public school; or
(2) The educator preparation program include a requirement that any student performing student teaching in a nonpublic school complete at least:
(A) Two hundred clock hours of field-based training in a public school; and
(B) A course, which is a component of the institution's state board approved educator preparation program, that provides to prospective teachers information that is equivalent to the teaching experience needed to demonstrate competence as a prerequisite to certification to teach in the public schools in West Virginia. The course shall include instruction on at least the following elements:
(I) State board policy and provisions of this code governing public education;
(ii) Requirements for federal and state accountability, including the mandatory reporting of child abuse;
(iii) Federal and state mandated curriculum and assessment requirements, including multicultural education, safe schools and student code of conduct;
(iv) Federal and state regulations for the instruction of exceptional students as defined by the Individuals with Disabilities Education Act, 20 U.S.C. §1400
et seq.;
(v) Varied approaches for effective instruction for students who are at-risk;
(g) In addition to the requirements set forth in subsection (f) of this section, an agreement for an alternate student teaching experience between an institution of higher education and a nonpublic school shall:
(1) Require that the higher education institution with an educator preparation program document that the student teacher's field-based and clinical experiences include participation and instruction with multicultural, at-risk and exceptional children at each programmatic level for which the student teacher seeks certification; and
(2) Include the minimum qualifications for the employment of school teachers selected as supervising teachers, including the requirement that field-based and clinical experiences be supervised by a teacher fully certified in the state in which that teacher is supervising.
(d) (h) The state superintendent of Schools may issue certificates to graduates of teacher education educator preparation programs and alternative teacher education educator preparation programs approved by the state board. of Education and The certificates are issued in accordance with this section and rules adopted by the State Board after consultation with the Secretary of Education and the Arts and the Chancellor for Higher Education.
(1) A certificate to teach shall not may be granted only to any person who is: not
(A) A citizen of the United States, except as provided in subdivision (2) of this subsection;
(B) Is not of good moral character; and
(C) Physically, mentally and emotionally qualified to perform the duties of a teacher; and who has not attained the age of
(D) At least eighteen years on or before the first day of October of the year in which his or her certificate is issued. except that
(2) A permit to teach in the public schools of this state may be granted to a person who is an exchange teacher from a foreign country, or an alien person who meets the requirements to teach. may be granted a permit to teach within the public schools of the state
(e) (I) In consultation with the Secretary of Education and the Arts and the Chancellor for Higher Education, institutions of higher education approved for teacher educator preparation may cooperate with each other, with the Center for Professional Development and with one or more county boards in the organization and operation of to organize and operate centers to provide selected phases of the teacher educator preparation program. Such as The phases include, but are not limited to:
(1)
Student teaching;
(2) Beginning teacher internship programs;
(3) Instruction in methodology; and
(4) Seminar programs for college students, teachers with provisional certification, professional support team members and supervising teachers.
The institutions of higher education, the Center for Professional Development and county boards may by mutual agreement budget and expend funds for the operation of to operate the centers through payments to the appropriate fiscal office of the participating institutions, the center for professional development and the county boards.
(f) (j) The provisions of this section shall not be construed to do not require the discontinuation of an existing student teacher training center or school which meets the standards of the state board. of Education.
(g) (k) All institutions of higher education approved for teacher educator preparation in the school year of one thousand nine hundred sixty-two--sixty-three school year shall continue to hold that distinction so long as they meet the minimum standards for teacher educator preparation. Nothing contained herein shall infringe in this section infringes upon the rights granted to any institution by charter given according to law previous to the adoption of this code.
(l) Notwithstanding any other provision of this section, nor any other provision of rule, law or this code to the contrary, an institution of higher education may enter into an agreement with a nonpublic school:
(1) For the purposes of this section regarding student teaching;
(2) For the spring, two thousand six academic term only;
(3) If the institution is approved for educator preparation by the state board; and
(4) If the institution had entered into the agreement for that academic term prior to the effective date of this section.
(m) As used in this section:
(1) 'Nonpublic school' means a private school, parochial school, church school, school operated by a religious order or other nonpublic school that elects to:
(A) Comply with the provisions of article twenty-eight, chapter eighteen of this code;
(B) Participate on a voluntary basis in a state operated or state sponsored program provided to such schools pursuant to this section; and
(C) Comply with the provisions of this section;
(2) 'At-risk' means having the potential for academic failure, including, but not limited to the risk of dropping out of school, involvement in delinquent activity or poverty as indicated by free or reduced lunch status; and
(3) 'Exceptional children' has the meaning ascribed pursuant to section one, article twenty, chapter eighteen of this code, but does not include gifted students.
"
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4626 - "A Bill to amend and reenact §18A-3-1 of the Code of West Virginia, 1931, as amended, relating to educator preparation programs generally; adding requirements for the student teaching experience agreement; and providing for an alternate student teaching experience in a nonpublic school setting in lieu of the student teaching experience required in a public school setting."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 598), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Anderson, Eldridge, Ferrell and Schoen.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4626) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 599), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge and Ferrell.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4626) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
H. B. 4849, Relating to the West Virginia Sunset Law.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 10. THE WEST VIRGINIA SUNSET LAW.
§4-10-4. Termination of agencies following full performance evaluations.

The following agencies terminate on the date indicated, but no agency terminates under this section unless a full performance evaluation has been conducted upon the agency:
(1) On the first day of July, two thousand six: Division of Motor Vehicles; Department of Revenue; Department of Health and Human Resources; Department of Environmental Protection; State Police; Consolidated Public Retirement Board; and Workers' Compensation.
(2) (1) On the first day of July, two thousand seven: Office of Health Facilities Licensure and Certification within the Department of Health and Human Resources; Development Office; Parkways, Economic Development and Tourism Authority; Division of Highways; Division of Personnel; Office of the Insurance Commissioner; and Division of Culture and History; Department of Revenue; Department of Health and Human Resources; Department of Environmental Protection; and State Police.
(3) (2) On the first day of July, two thousand eight: Purchasing Division within the Department of Administration; Division of Rehabilitation Services; Division of Corrections; Division of Labor; Investment Management Board; and Division of Natural Resources; and Consolidated Public Retirement Board.
(4) (3) On the first day of July, two thousand nine: Office of Judges in Workers' Compensation; and Public Land Corporation.
(4) On the first day of July, two thousand twelve: Division of Motor Vehicles.
§4-10-4a. Termination of agencies previously subject to full performance evaluations following compliance monitoring and further inquiry updates.

The following agencies terminate on the date indicated, but no agency terminates under this section unless a compliance monitoring and further inquiry update has been completed on the agency subsequent to the prior completion of a full performance evaluation:
(1) On the first day of July, two thousand six: Tourism Commission within the Development Office.
(2) On the first day of July, two thousand seven: School Building Authority; and Tourism Commission within the Development Office.
(3) (2) On the first day of July, two thousand eight: James 'Tiger' Morton Catastrophic Illness Commission.
§4-10-5. Termination of agencies following preliminary performance reviews.

The following agencies terminate on the date indicated, but no agency terminates under this section unless a preliminary performance review has been conducted upon the agency:
(1) On the first day of July, one thousand nine hundred ninety-six: Juvenile Facilities Review Panel.
(2) On the first day of July, one thousand nine hundred ninety-seven: Public Employees Insurance Agency Advisory Board; Cable Television Advisory Board.
(3) On the first day of July, one thousand nine hundred ninety-nine: Tree Fruit Industry Self- improvement Assessment Program.
(4) On the first day of July, two thousand: Terms of Family Law Master and Family Law Master System.
(5) On the first day of July, two thousand three: Advisory Council on Public Health; Governor's Office of Fiscal Risk Analysis and Management.
(6) On the first day of July, two thousand four: Workers' Compensation Appeal Board.
(7) On the first day of July, two thousand five: Clean Coal Technology Council; and Steel Advisory Commission and Steel Futures Program.
(8) On the first day of July, two thousand six: Family Protection Services Board; Medical Services Fund Advisory Council; West Virginia Stream Partners Program; Ohio River Valley Water Sanitation Commission; State Lottery Commission; Whitewater Commission within the Division of Natural Resources; Unemployment Compensation; Women's Commission; Personal Assistance Services Program; Contractor Licensing Board; State Rail Authority; Office of Explosives and Blasting; Waste Tire Fund; Care Home Advisory Board; Capitol Building Commission; Records Management and Preservation Board; Public Employees Insurance Agency; Soil Conservation Committee; and Rural Health Advisory Panel.
(9) On the first day of July, two thousand seven: Human Rights Commission; Office of Coalfield Community Development; State Fire Commission; Children's Health Insurance Board; Board of Banking and Financial Institutions; Lending and Credit Rate Board; Governor's Cabinet on Children and Families; State Geological and Economic Survey; and Public Energy Authority and Board; Ron Yost Personal Assistance Services Program; Records Management and Preservation Board; Public Employees Insurance Agency; Office of Explosives and Blasting; Waste Tire Fund; West Virginia Stream Partners Program; Ohio River Valley Water Sanitation Commission; State Lottery Commission; Whitewater Commission within the Division of Natural Resources; and Contractor Licensing Board.
(10) On the first day of July, two thousand eight: Ethics Commission; Public Service Commission; Parks section and parks function of the Division of Natural Resources; Office of Water Resources of the Department of Environmental Protection; Marketing and Development Division of Department of Agriculture; Public Defender Services; Health Care Authority; Public Employees Insurance Agency Finance Board; West Virginia Prosecuting Attorneys Institute; and Design-Build Board.
(11) On the first day of July, two thousand nine: Driver's Licensing Advisory Board; West Virginia Commission for National and Community Service; Membership in the Southern Regional Education Board; Bureau of Senior Services; Oil and Gas Inspector's Examining Board; Division of Protective Services; Motorcycle Safety Awareness Board; Commission on Holocaust Education; and Commission for the Deaf and Hard of Hearing; and Rural Health Advisory Panel.
(12) On the first day of July, two thousand ten: Meat Inspection Program of the Department of Agriculture; Motor Vehicle Dealers Advisory Board; Interstate Commission on Uniform State Laws; Center for Professional Development Board; Interstate Commission on the Potomac River Basin; and Bureau for Child Support Enforcement.
(13) On the first day of July, two thousand eleven: Manufactured Housing Construction and Safety Standards Board; State Board of Risk and Insurance Management; and State Rail Authority.
(14) On the first day of July, two thousand twelve: Family Protection Services Board; State Conservation Committee; and Women's Commission.
§4-10-5a. Termination of agencies previously subject to preliminary performance reviews following compliance monitoring and further inquiry updates.

The following agencies terminate on the date indicated, but no agency terminates under this section unless a compliance monitoring and further inquiry update has been completed on the agency subsequent to the prior completion of a preliminary performance review:
(1) On the first day of July, two thousand: State Building Commission.
(2) On the first day of July, two thousand six: State Board of Risk and Insurance Management.
(3) On the first day of July, two thousand seven: Office of the Environmental Advocate; Racing Commission; Educational Broadcasting Authority; and Oral Health Program.
(4) On the first day of July, two thousand eight: Environmental Quality Board; and Emergency Medical Services Advisory Council.
(5) On the first day of July, two thousand nine: Capitol Building Commission.
(5) (6) On the first day of July, two thousand ten: Veterans' council; and Oil and Gas Conservation Commission; and Unemployment Compensation.
§4-10-5b. Termination of boards created to regulate professions and occupations.

(a) The Legislative Auditor shall evaluate each board created under chapter thirty of this code to regulate professions and occupations, at least once every twelve years. The evaluation shall assess whether the board complies with the policies and provisions of chapter thirty of this code and other applicable laws and rules, whether the board follows a disciplinary procedure which observes due process rights and protects the public interest and whether the public interest requires that the board be continued.
(b) The following boards terminate on the date indicated, but no board terminates under this section unless a regulatory board evaluation has been conducted upon the board:
(1) On the first day of July, two thousand six: Board of Examiners in Counseling; Board of Osteopathy; Board of Examiners of Land Surveyors; Board of Dental Examiners; Board of Licensed Dietitians; Board of Examiners of Psychologists; and Real Estate Commission.
(2) On the first day of July, two thousand seven: Board of Registration for Sanitarians; Board of Embalmers and Funeral Directors; Board of Optometry; Board of Social Work Examiners; Board of Respiratory Care Practitioners; Board of Veterinary Medicine; and Board of Accountancy; and Board of Examiners of Psychologists.
(3) (2) On the first day of July, two thousand eight: Nursing Home Administrators Board; Board of Hearing Aid Dealers; Board of Pharmacy; Board of Medicine; Board of Barbers and Cosmetologists; and Board of Acupuncture; Board of Licensed Dietitians; Board of Examiners in Counseling; and Board of Dental Examiners.
(4) (3) On the first day of July, two thousand nine: Board of Physical Therapy; Board of Chiropractic Examiners; Board of Landscape Architects; and Board of Occupational Therapy; and Real Estate Commission; and Board of Osteopathy.
(5) (4) On the first day of July, two thousand ten: Board of Registration for Professional Engineers; Board of Examiners for Registered Professional Nurses; Board of Examiners for Licensed Practical Nurses; Board of Examiners for Speech Language Pathology and Audiology; Board of Registration for Foresters; and Radiologic Technology Board of Examiners.
(5) On the first day of July, two thousand eleven: West Virginia Board of Professional Surveyors.
(6) On the first day of July, two thousand thirteen: Real Estate Appraiser Licensure and Certification Board.
(7) On the first day of July, two thousand fourteen: Board of Architects.
(8) On the first day of July, two thousand fifteen: Massage Therapy Licensure Board."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 600), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Schoen.

Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4849) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House next proceeded to take up consideration of a message received from the Senate,
as to:
H. B. 4850, Expediting the sunrise application process.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §30-1A-2 and §30-1A-3 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §30-1A-2a, all to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS

ARTICLE 1A. PROCEDURE FOR REGULATION OF OCCUPATIONS AND PROFESSIONS.

§30-1A-2. Required application for regulation of professional or occupational group.

(a) Any professional or occupational group or organization, any individual or any other interested party which proposes the regulation of any unregulated professional or occupational group shall submit an application for regulation to the Joint Standing Committee on Government Organization, no later than the first day of December of any year as set out in section two-a of this article. The Joint Standing Committee on Government Organization may only accept an application for regulation of a professional or occupational group when the party submitting an application files with the committee a statement of support for the proposed regulation which has been signed by at least ten residents or citizens of the state of West Virginia who are members of the professional or occupational group for which regulation is being sought.
(b) The completed application shall contain:
(1) A description of the occupational or professional group proposed for regulation, including a list of associations, organizations and other groups currently representing the practitioners in this state, and an estimate of the number of practitioners in each group;
(2) A definition of the problem and the reasons why regulation is deemed necessary;
(3) The reasons why certification, registration, licensure or other type of regulation is being requested and why that regulatory alternative was chosen;
(4) A detailed statement of the fee structure conforming with the statutory requirements of financial autonomy as set out in subsection (c), section six, article one, chapter thirty of this code;
(5) A detailed statement of the location and manner in which the group plans to maintain records which are accessible to the public as set out in section twelve, article one, chapter thirty of this code;
(6) The benefit to the public that would result from the proposed regulation; and
(7) The cost of the proposed regulation.
§30-1A-2a. Date applications are due and reporting date.
(a) For an application for regulation received after the first day of December and on or before the first day of June, the Performance Evaluation and Research Division of the Office of the Legislative Auditor shall present a report to the Joint Committee on Government Organization by the thirty-first day of December of that year.
(b) For an application for regulation received after the first day of June and on or before the first day of December, the Performance Evaluation and Research Division of the Office of the Legislative Auditor shall present a report to the Joint Committee on Government Organization by the thirtieth day of June of the next year.
§30-1A-3. Analysis and evaluation of application.
(a) The Joint Committee on Government Organization shall refer the completed application of the professional or occupational group to the Performance Evaluation and Research Division of the Office of the Legislative Auditor.
(b) The Performance Evaluation and Research Division of the Office of the Legislative Auditor shall conduct an analysis and evaluation of the application. The analysis and evaluation shall be based upon the criteria listed in subsection (c) of this section. The Performance Evaluation and Research Division of the Office of the Legislative Auditor shall submit a report, and such supporting materials as may be required, to the Joint Standing Committee on Government Organization, no later than the first day of July following the date the proposal is submitted to the joint standing committee on government organization as set out in section two-a of this article.
(c) The report shall include evaluation and analysis as to:
(1) Whether the unregulated practice of the occupation or profession clearly harms or endangers the health, safety or welfare of the public, and whether the potential for the harm is easily recognizable and not remote or dependent upon tenuous argument;
(2) Whether the public needs, and can reasonably be expected to benefit from, an assurance of initial and continuing professional or occupational competence; and
(3) Whether the public can be adequately protected by other means in a more cost-effective manner."
And,
By amending the title of the bill to read as follows:
H. B. 4850 - "A Bill to amend and reenact §30-1A-2 and §30-1A-3 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §30- 1A-2a, all relating to expediting the sunrise application process."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 601), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4850) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 602), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Eldridge and Ferrell.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4850) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
On motion of Delegate Staton, the House of Delegates requested the return from the Senate of
H. B. 4119, Creating the ATV Responsibility Act
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had acceded to the request of the House of the return of
H. B. 4419, Enhancing penalties for crimes against the elderly.
On motions of Delegate Staton, severally made, the House of Delegates then proceeded to take the bill up for immediate consideration, reconsidered the passage thereof and then reconsidered its action in concurring in the Senate amendment thereto.
On the further motion of the same Gentleman, the House of Delegtes then concurred in the Senate amendment with amendment, as follows:
On page three of the Senate amendment, line nineteen, by striking out subdivision (6) through (10) and inserting in lieu thereof the following:
"(6) Provide all-terrain vehicles or motorcycles which are age and size appropriate as recommended by the manufacturer;
(7) Make certain that every guide offered to participants by the authorized outfitter or licensee has a current standard first aid training certificate and CPR certificate issued by the American Red Cross or its equivalent and ATV safety training through the ATV Safety Institute; and
(8) Make certain that employees carry first aid kits when acting as guides."
And,
On page three, section four, line nineteen, by striking out subdivision (6) through (10) and inserting in lieu thereof the following:
"(6) Provide all-terrain vehicles or motorcycles which are age and size appropriate as recommended by the manufacturer;
(7) Make reasonable and prudent efforts to ensure that participants have received the safety training required by the provisions of the legislative rule for the use of the Hatfield-McCoy Regional Recreation Area;
(8) Make certain that every guide offered to participants by the authorized outfitter or licensee has a current standard first aid training certificate and CPR certificate issued by the American Red Cross or its equivalent and ATV safety training through the ATV Safety Institute; and
(9) Make certain that employees carry first aid kits when acting as guides.
(10) Make known to any participant any dangerous condition as to trail lands, facilities or equipment to be traversed or used which is known by the outfitter or licensee."
The bill, as amended by the Senate, and further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 603), and there were--yeas 95, nays 3, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Caputo, Louisos and Manchin.
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4119) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

H. R. 9, Amending the Rules of the House relating to compelling a standing committee to take up and report out a bill; coming up in regular order as unfinished business, was reported by the Clerk.
The Speaker propounded "Shall the resolution be rejected?"
On this question, Delegate Overington demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 604), and there were--yeas 70, nays 28, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Blair, Border, Canterbury, Carmichael, Duke, Ellem, Evans, Frich, Hall, Hamilton, Howard, Lane, Louisos, Overington, Porter, Roberts, Rowan, Schadler, Sobonya, Stevens, Sumner, Tansill, Trump, Wakim and Walters.
Absent And Not Voting: Eldridge and Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. R. 9) rejected.
The following resolutions, coming up in regular order, as unfinished business, were reported by the Clerk and adopted:
H. C. R. 79, Requesting that the Committee on Government and Finance to conduct a study on the public health crisis created in West Virginia created by antibiotic resistance,
H. C. R. 80, Requesting the Joint Committee on Government and Finance study the feasibility of establishing a drug repository program,
H. C. R. 81, Requesting that the Joint Committee on Government and Finance study the State's need for regulation of pharmacy benefit managers,
H. C. R. 83, Requesting the Joint Committee on Government and Finance study the causes and adverse effects of children in this state who are not covered by healthcare insurance,
H. C. R. 90, Requesting the Division of Highways to make and place a memorial sign to read, "In Loving Memory of Joe King, November 18th, 2005, Will Never Be Forgotten",
And,
H. C. R. 99, Requesting the Joint Committee on Government and Finance to study the development of Coalwood Way and related sites in the Big Creek District of McDowell County as historical, cultural and recreational facilities.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates proceeded to the Seventh Order of Business for the purpose of introducing a resolution.
Delegates Staton, Varner, Pino, Stalnaker, Talbott, Spencer and G. White offered the following resolution, which was read by its title s follows:
H. R. 36 - "Commemorating the twenty-fifth anniversary of the Judith A. Herndon Legislative Fellows Program and recognizing the contributions of its director, Dr. Stephen Cupps."
W
HEREAS , Since 1970, Judith A. Herndon diligently served the State of West Virginia for ten years as both Senator and Delegate; and
W
HEREAS , In 1978, Judith Herndon was rated the most effective state legislator in a Charleston Gazette survey; and
W
HEREAS , To honor the life and dedication of Senator Herndon, a legislative program was established to instruct undergraduate students from institutions of higher learning in West Virginia; and
W
HEREAS , During the majority of the twenty-five year history of the Judith A. Herndon Fellows Program, Dr. Stephen Cupps has tirelessly directed the program - - dedicating many hours to both legislators and students; and
W
HEREAS , This successful annual internship program benefits not only the participating students, but also the Members of the West Virginia State Legislature; therefore be it
Resolved by the West Virginia House of Delegates:
That the West Virginia House of Delegates hereby commemorates the twenty-fifth anniversary of the Judith A. Herndon Legislative Fellows Program; and be it
Further resolved, That the West Virginia House of Delegates congratulates Dr. Stephen Cupps for his continued direction and dedicated service to the Judith A. Herndon Legislative Fellows Program; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby directed to present a copy of the resolution to Dr. Stephen Cupps, Herndon Program Director.
At the request of Delegate Staton, and by unanimous consent, reference of the resolution (H. R. 36) to a committee was dispensed with
The question now being on the adoption of the resolution, Delegate Staton demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 605), and there were--yeas 90, nays none, absent and not voting 10, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Eldridge, Ferrell, Fragale, Hatfield, Houston, Marshall, Miley, Perdue and Tucker.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. R. 36) adopted.
Conference Committee Report Availability

At 4:30 p.m., the Clerk announced the availability in his office of the report of the Committee of Conference on H. B. 4488, Creating a commission to complete a comprehensive study of the state's behavioral health system.
Delegate Staton asked and obtained unanimous consent that the remarks of the interns regarding their experience serving with the House of Delegates be printed in the Appendix to the Journal.
At 4:31 p.m., on motion of Delegate Staton, the House of Delegates recessed until 7:00 p.m., and reconvened at that time.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports

Chairman Michael, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has given further consideration to:
S. B. 603, Renaming day after Thanksgiving Day as Lincoln's Day,
And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 603) was taken up for immediate consideration and read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 606), and there were--yeas 90, nays 9, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Barker, Caputo, Eldridge, Hrutkay, Long, Longstreth, Manchin, Martin and Porter.
Absent And Not Voting: Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 603) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Chairman Michael, from the Committee on Finance submitted the following report, which was received:
Your Committee on has had under consideration:
S. B. 32, Relating to educational opportunities for children of military personnel,
And reports the same back, by unanimous vote of the committee, with amendment, with the recommendation that it do pass, as amended,
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 32) was taken up for immediate consideration and read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, following the enacting clause, by striking out the remainder of the bill, and inserting in lieu thereof the following:
"That §18-19-1, §18-19-2 and §18-19-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §18C-1-4 of said code be amended and reenacted, all to read as follows:
ARTICLE 19. EDUCATIONAL OPPORTUNITIES FOR CHILDREN OF DECEASED SOLDIERS, SAILORS, MARINES AND AIRMEN.

§18-19-1. Appropriation to provide educational opportunities.
(a) For the purpose of providing The purpose of this article is to provide educational opportunities for the children of those:
(1) Who served in:
(A) The Army, Navy or Marine Corps of the United States during the world war from the sixth day of April, sixth one thousand nine hundred seventeen, to the second day of July, second one thousand nine hundred twenty-one, all dates inclusive;
(B) or served in The Armed Forces of the United States of America at any time between the first day of December, first one thousand nine hundred forty-one, and the declaration of peace by the Congress of the United States, all dates inclusive;
(C) or served in The Armed Forces of the United States of America at any time between the twenty-seventh day of June, twenty-seventh one thousand nine hundred fifty, and the thirty-first day of January, thirty-first one thousand nine hundred fifty-five, all dates inclusive;
(D) or served in The Armed Forces of the United States of America at any time between the fifth day of August, fifth one thousand nine hundred sixty-four, and the seventh day of May, seventh one thousand nine hundred seventy-five, all dates inclusive; or
(E) The Armed Forces of the United States of America at any time during which the forces or members of the reserve components are called to active duty by the President of the United States under Title 10 of the United States Code for the purpose of entering into armed combat; and
(2) Who were killed in action or have died or may hereafter die from disease or disability resulting from such this war service.
(b) For the purpose of this article, there shall be is appropriated from the State Fund, General Revenue the sum of at least five thousand dollars for each fiscal year commencing the first day of July first and ending on the thirtieth day of June thirty of each year of the next biennium to be used for the benefit of such these children while attending state post-secondary education or training institutions.
(c) This benefit also shall be given to children of a service member killed during hostile actions as defined by the agency administering this section.
(d) The term 'children' as used in this article shall include includes any child of a veteran who has been legitimized by operation of law prior to the veteran's demise.
§18-19-2. Eligibility of applicant for benefits; application forms; preference.

(a) To be eligible for the benefits of this article, said children a child set forth in section one of this article must shall be:
(1) At least sixteen and not more than twenty-two twenty-five years of age;
(2) Enrolled in a post-secondary education or training institution in this state; and
(3) have had their domiciles in this state for at least twelve months preceding their application for said benefits The child of an enlistee who designated West Virginia as his or her state of record.
(b) Such The application shall be made to, and upon forms provided by, the West Virginia Division of Veterans' Affairs. which The division shall determine the eligibility of those who make such application apply and the yearly amount to be allotted each applicant. which The amount, in the discretion of the division, may vary from year to year, but shall may not exceed the sum of five hundred dollars one thousand dollars in any one semester or a total of two thousand dollars in any one year. In selecting those to receive the benefits of this article, preference shall be given those who are otherwise financially unable to secure said the educational opportunities. and to those whose parent was domiciled in this state during the period of such parent's war service
§18-19-3. No tuition fees to be charged; how funds to be expended; cessation of allowances.

No tuition fees shall be charged such applicants
(a) A state post-secondary education or training institution may not charge tuition and fees to an eligible applicant attending any state education or training that institution pursuant to this article. and The funds herein appropriated shall be expended by said the West Virginia Division of Veterans' Affairs only for matriculation fees, board, room rent, books, supplies and other necessary living expenses of such those children.
(b) In the event that a child eligible for a tuition waiver pursuant to this section attends a private post-secondary education or training institution where the tuition waiver is not applicable, that child remains eligible for up to two thousand dollars per year in education benefits pursuant to section two of this article.
(c) In addition to the tuition waiver available pursuant to this section, a child attending a state post-secondary education or training institution is eligible for up to two thousand dollars per year in education benefits as provided in section two of this article.
(d) Said The division is charged with the duty of disbursing the funds herein provided and shall draw its requisitions upon the State Auditor for that purpose. In the its discretion of said the division, if satisfied as to the accuracy and amounts of the expenditures, shall make the such requisitions may be made payable to said the post-secondary education or training institutions or to those furnishing to said the children board, room rent, books, supplies and other necessary living expenses. the division being first satisfied as to the correctness and amounts of such expenditures. Should any child withdraw from any such
(e) If a child receiving benefits or tuition waivers pursuant to this article withdraws from the institution, all allowances to such the child shall cease. No
(f) A member or employee of said the division shall may not receive any additional compensation for the services herein required.
(g) Acceptance of benefits or tuition waivers pursuant to this article does not limit the acceptance of any other scholarship or grant for which a student may be eligible.
(h) Notwithstanding the provisions of this article to the contrary, until the first day of January, two thousand seven, benefits received pursuant to this article may be used for educational opportunities received at an education or training institution that is below the post-secondary level.
§18C-1-4. Eligibility of commuting students and children of military personnel for state funded student financial aid, grants and scholarships.

(a) Notwithstanding any other provision of this code or rule of the higher education policy commission to the contrary, a person who has met all other conditions of eligibility for state funded financial aid, grants, or scholarships shall not be deemed ineligible for state funded financial aid, grants or scholarship based solely upon his or her attendance at a private high school outside the state if: (1) During his or her attendance at the school outside the state, the student was residing to the contrary, a student who attended a public or private high school outside the state is eligible for state funded student financial aid, grants and scholarships if:
(1) The student meets all other eligibility requirements for the aid, grant or scholarship; and either
(2) The student resided in West Virginia while attending high school in another state, and:
(A) The student resided with his or her parent or legal guardian in this state and that parent or legal guardian who:
(I) Was a resident of this state; and
(ii) Had been a resident of this state for at least two years prior to immediately preceding the student's attendance at the school;
(2) (B) The student commuted during the school term on a daily basis from this state to attend the school; in another state
(3) (C) The student is a dependent of the parent or legal guardian upon which eligibility is based; and
(D) The student has not established domicile outside the state; and
(4) (E) At the discretion of the State Superintendent of Schools, as defined in section one, article one, chapter eighteen of this code:
(I) The school is fully accredited in the state of its location that state to the degree acceptable to the State Superintendent of Schools; of this state in his or her discretion and
(5) (ii) The school's curriculum requirements for graduation are the same as equivalent to the curriculum requirements for graduation in this state, or sufficiently similar to those requirements, as determined by the State Superintendent of Schools; or of this state in his or her discretion. (b) Nothing in
(3) The student resided and attended high school in another state or a United States territory, United States possession or foreign country and:
(A) The student resided with his or her parent or legal guardian; and
(B) The student's parent or legal guardian:
(I) Served in the United States armed forces while the student attended high school in such state, territory, possession or country;
(ii) Was stationed for military purposes in such state, territory, possession or country; and
(iii) Maintained legal residence in West Virginia while stationed in such state, territory, possession or country.
(b)
This section may not be construed to alter, amend or extend any application deadlines or other requirements established by law or policy.
(c) The provisions of this section expire on the thirtieth day of June, two thousand ten."
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 607), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 608), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 32) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 32 - "A Bill to amend and reenact §18-19-1, §18-19-2 and §18-19-3 of the Code of West Virginia, 1931, as amended; and to amend and reenact §18C-1-4 of said code, all relating to state-funded student financial aid resources; modifying eligibility criteria for certain programs; modifying the types of institutions at which certain benefits may be used; expanding certain benefit eligibility to children of certain military personnel; increasing certain benefit amounts; extending eligibility age limits for certain benefits; and extending the benefit eligibility until a date certain to certain students who attend public high school outside the state."
Delegate Staton moved that the bill take effect July 1, 2006.
On this question, the yeas and nays were taken (Roll No. 609), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 32) takes effect July 1, 2006.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
S. C. R. 1, Requesting Division of Highways name bridge at Allen Junction, Wyoming County, "Staff Sergeant Grover Robert Taylor Memorial Bridge",
S. C. R. 19, Requesting Division of Highways name bridge at Miller's Creek, Mingo County, "Arnold J. Starr Memorial Bridge",
S. C. R. 27, Requesting Division of Highways name bridge at Pinch, Kanawha County, "Cross Brothers' Bridge",
S. C. R. 31, Requesting Division of Highways rename Watson Bridge in Fairmont, Marion County, "Jim Costello Memorial Bridge",
S. C. R. 33, Requesting Division of Highways name bridge in Wellsburg, Brooke County, "John G. Chernenko Bridge",
S. C. R. 51, Requesting Division of Highways name bridge between Huntington, Cabell County, and Proctorville, Ohio, "Frank 'Gunner' Gatski Memorial Bridge",
S. C. R. 64, Requesting Division of Highways name bridge in Sharples, Logan County, "Sharples Stags Memorial Bridge",
S. C. R. 79, Requesting Division of Highways rename Warriormine Road in War, McDowell County, "Glenn Hatcher Way",
S. C. R. 84, Requesting Joint Committee on Government and Finance study antibiotic resistance health crisis,
H. C. R. 88, Trooper J. D. "Dave" Harris Memorial Bridge,
H. C. R. 94, Captain Charles H. Feller Memorial Bridge,
And,
H. C. R. 102, Interim study of the availability and connectivity of broadbands services and networks in this state.
And reports the same back with the recommendation that they each be adopted.
At the respective requests of Delegate Staton, and by unanimous consent, the resolutions (S. C. R. 1, S. C. R. 19, S. C. R. 27, S. C. R. 31, S. C. R. 33, S. C. R. 51, S. C. R. 64, S. C. R. 79, S. C. R. 84, H. C. R. 88, H. C. R. 94 and H. C. R. 102) we each taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein on those requiring the same.
On motion for leave, concurrent resolutions were introduced (Originating in the Committee on Rules and reported with the recommendation that they be adopted), which were read by their titles, as follows:
By Mr. Speaker, Mr. Kiss, and Delegates Amores, Anderson, Armstead, Beane, Border, Browning, Campbell, Carmichael, Hall, Kominar, Leach, Mahan, Michael, Pino, Staton, Trump and Varner:

H. C. R. 103 - "Requesting the Joint Committee on Government and Finance to conduct a study of the West Virginia Parkways, Economic Development and Tourism Authority."
Whereas, The West Virginia Parkways, Economic Development and Tourism Authority operates and maintains the West Virginia Turnpike to develop and maintain the West Virginia Turnpike through Mercer, Raleigh, Fayette, and Kanawha counties, and roads connecting to it; and,
Whereas, The West Virginia Parkways, Economic Development and Tourism Authority promotes the tourism industry and fosters economic and tourism development opportunities, all of which create and retain jobs while enhancing the image of West Virginia; and, Whereas, The Legislature has the responsibility to oversee the West Virginia Parkways, Economic Development and Tourism Authority and is obligated to review the selection process of West Virginia Parkways, Economic Development and Tourism Authority board members and the term limits for such members; and
Whereas, In response the West Parkways Authority proposed increasing the tolls for the West Virginia Turnpike. This caused public concern over the financial condition of the West Virginia Parkways, Economic Development and Tourism Authority, and its commitment to highway and economic development in southern West Virginia; and,
Whereas, The Legislature should review the overall efficiency of the West Virginia Parkways, Economic Development and Tourism Authority, its revenue sources and funding, its present and proposed expenditures, operations and administrative costs; and,
Whereas, The Legislature should review the employment relations and practices of the West Virginia Parkways, Economic Development and Tourism Authority; and
Whereas, The Legislature should review the grievance process of the West Virginia Parkways, Economic Development and Tourism Authority; now, therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby

requested to study ways in which improvements can be made in the operation and efficiency of the West Virginia Parkways, Economic Development and Tourism Authority, including ways to provide accountability to improve the Authority and improve its public image; 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 the legislative appropriations to the Joint Committee on Government and Finance.
And,
By Delegate Amores:
H. C. R. 104
- "Requesting the Joint Committee on Government and Finance to study consumer lending practices and mortgage lending practices."
Whereas, various financial institutions are offering and marketing mortgage and loan refinancing and debt consolidation offerings, which are being increasing utilized by consumers to provide additional access to capital and monetary resources; and
Whereas, while most of the refinancing and lending alternatives are extended in this state are made available by financial institutions to provide West Virginians with reasonable access to their available homeowner's equity, there is concern that there are some practices in the consumer lending and mortgage lending industry which have resulted in the issuance of loans or the incurrence of obligations which, at the time they were executed, encumbered consumers and mortgage holders with an unreasonable amount of debt in relation to the actual market value of their home or property, or otherwise contained unreasonable and unfair terms and conditions which resulted in unreasonable and excessive costs and financial obligations to the consumers and mortgage holders; and Whereas, there is concern that some consumers have also been provided with multiple loans or obligations against the same property, without a reasonable ability to pay for the multiple debts; and
Whereas, there is concern that some of the loan and financial opportunities which are actively marketed in this state may contain terms and conditions which may be deemed unreasonable, and could be construed as unfair trade practices in violation of existing laws; and
Whereas, some of these practices may have contributed to the unreasonable and unfair foreclosure upon outstanding mortgage obligations which were issued to West Virginians;
Whereas, while the State of West Virginia has extended the Banking Commissioner and other oversight and enforcement bodies with the power to investigate and monitor the records and activities of regulated consumer lenders and mortgage lenders enforcement, to enforce the laws of this state, there is a question as to whether the existing oversight and regulatory methods are sufficient to allow for the identification and monitoring of excesses and abuses that may exist in some portions of the industry; and
Whereas, there is some question as to what information may be legitimately required from all regulated lenders through the annual financial reporting process under existing statutes, to allow for a broad examination of specific indicators for all lenders, with the intent of helping to identify a need for further examination an individual lenders' practices; and
Whereas, Approximately one half of states have adopted specific legislation to address and to regulate predatory mortgage lending practices; and
Whereas, To determine the most effective means of the state's existing regulation of this industry, to examine the methods and the effectiveness of existing laws and methods used to monitor and respond to potential abuses and unfair practices, to examine the need for additional regulatory oversight, enforcement or investigatory tools, as well as to determine the impact of such action upon West Virginia citizens, it is necessary to study the practices and regulatory oversight of consumer lending practices and mortgage lending practices; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study consumer lending and mortgage lending practices; 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.
And reports the same back with the recommendation that they each be adopted.
At the respective requests of Delegate Staton, and by unanimous consent, the resolutions (H. C. R. 103 and H. C. R. 104) were each taken up for immediate consideration and adopted.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
S. B. 438, Regulating title insurance rates,
And reports the same back, with amendment, with the recommendation that it do pass, as amended.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill as follows:
On page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 20. RATES AND RATING ORGANIZATIONS.
§33-20-2. Scope of article.

(a) This article applies to fire, marine, casualty and surety insurance on risks or operations in this state.
(b) This article shall does not apply:
(1) To reinsurance, other than joint reinsurance to the extent stated in section eleven of this article;
(2) To life or accident and sickness insurance;
(3) To insurance of vessels or craft, their cargoes, marine builders' risks, marine protection and indemnity or other risks commonly insured under marine, as distinguished from inland marine, insurance policies;
(4) To insurance against loss of or damage to aircraft, including their accessories and equipment, or against liability, other than workers' compensation and employer's liability, arising out of the ownership, maintenance or use of aircraft;
(5) To title insurance;
(6) (5) To malpractice insurance insofar as the provisions of this article directly conflict and thereby are supplanted by article twenty-b of this chapter.
(c) If any kind of insurance, subdivision or combination thereof, or type of coverage, is subject to both the provisions of this article expressly applicable to casualty and surety insurance and to those expressly applicable to fire and marine insurance, the commissioner may apply to filings made for such kind of insurance the provisions of this article which are in his or her judgment most suitable.
§33-20-3. Ratemaking.

All rates shall be made in accordance with the following provisions:
(a) Due consideration shall be given to past and prospective loss experience within and outside this state, to catastrophe hazards, if any, to a reasonable margin for underwriting profit and contingencies, to dividends, savings or unabsorbed premium deposits allowed or returned by insurers to their policyholders, members or subscribers, to past and prospective expenses both countrywide and those specially applicable to this state and to all other relevant factors within and outside this state.
(b) Rates shall may not be excessive, inadequate or unfairly discriminatory.
(c) Rates for casualty and surety insurance to which this article applies shall also be subject to the following provisions:
(1) The systems of expense provisions included in the rates for use by any insurer or group of insurers may differ from those of other insurers or groups of insurers to reflect the requirements of the operating methods of any such insurer or group with respect to any kind of insurance or with respect to any subdivision or combination thereof for which subdivision or combination separate expense provisions are applicable.
(2) Risks shall be grouped by classifications and by territorial areas for the establishment of rates and minimum premiums. Classification of rates shall be modified to produce rates for individual risks in a territorial area in accordance with rating plans which establish standards for measuring variations in hazards or expense provisions, or both. Such standards may measure any differences among risks that can be demonstrated to have a probable effect upon losses or expenses: Provided, That such standards shall include the establishment of at least seven territorial rate areas within the state: Provided, however, That such territorial rate established by any insurer or group of insurers may differ from those of other insurers or group of insurers.
(3) Due consideration shall be given to such factors as expense, management, individual experience, underwriting judgment, degree or nature of hazard or any other reasonable considerations, provided such factors apply to all risks under the same or substantially the same circumstances or conditions.
(d) Rates for fire and marine insurance to which this article applies shall also be subject to the following provisions:
(1) Manual, minimum, class rates, rating schedules or rating plans shall be made and adopted, except in the case of specific inland marine rates on risks specially rated.
(2) Due consideration shall be given to the conflagration hazard and in the case of fire insurance rates, consideration shall be given to the experience of the fire insurance business during a period of not less than the most recent five-year period for which such experience is available.
(e) Rates for title insurance to which this article applies shall also be subject to the following provisions:
(1) Title insurance rates shall be reasonable and adequate for the class of risks to which they apply. Rates may not be unfairly discriminatory between risks involving essentially the same hazards and expense elements. The rates may be fixed in an amount sufficient to furnish a reasonable margin for profit after provisions to account for: (i) Probable losses as indicated by experience within and without this state; (ii)exposure to loss under policies; (iii) allocations to reserves; (iv) costs participating insurance; (v) operating costs; and (vi) other items of expense fairly attributable to the operation of a title insurance business.
(2) (A) Policies may be grouped into classes for the establishment of rates. A title insurance policy that is unusually hazardous to the title insurance company because of an alleged defect or irregularity in the title insured or because of uncertainty regarding the proper interpretation or application of the law involved may be classified separately according to the facts of each case.
(B) Title insurance companies shall file separate rate schedules for commercial and non- commercial risks. The Insurance Commissioner shall promulgate rules regarding the requirements of this subsection which shall give due consideration to the nature of commercial transactions and the need for greater protections for consumers in non-commercial transactions.
(3) Title insurance rates may not include charges for abstracting, record searching, certificates regarding the record title, escrow services, closing services and other related services that may be offered or furnished or the cost and expenses of examinations of titles.
(e) (f) Except to the extent necessary to meet the provisions of subdivisions (b) and (c) of this section, uniformity among insurers in any matters within the scope of this section is neither required nor prohibited.
(f) (g) Rates made in accordance with this section may be used subject to the provisions of this article."
The bill was then read a third time.
Delegates Trump and Staton requested to be excused from voting on the passage of S. B. 438 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentlemen from voting, stating that they were members of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 610), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 438) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 438 - "A Bill to amend and reenact §33-20-2 and §33-20-3 of the Code of West Virginia, as amended, all relating to title insurance; providing for review of title insurance rates by the Insurance Commissioner; setting forth criteria for rate review; allowing grouping into different rate classifications; requiring separate rate filings for commercial and non-commercial risks; and excluding certain expenses from inclusion in title insurance rates."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with amendment, and the passage, as amended, of
Com. Sub. for S. B. 219, Changing expiration date of graduated driver's licenses; prohibiting cell phone use by certain minors.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate title amendment was reported by the Clerk and adopted, amending the title of the bill to read as follows:
Com. Sub. for S. B. 219 - "A Bill to amend and reenact §17B-1-1 of the Code of West Virginia, 1931, as amended; and to amend and reenact §17B-2-3a of said code, all relating to graduated driver's licenses generally; changing the expiration for level one permits and level two licenses; prohibiting the use of a handheld wireless communication device while driving by a minor holding a level one instruction permit or a level two license; and providing penalties for such violations."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 611), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Hamilton and Longstreth.
Absent And Not Voting: Crosier and Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 219) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4023, Raising the minimum wage in accordance with legislation now pending before Congress.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page five, section two, after line sixty-five, by adding a new subsection, designated subsection (c), to read as follows:
"(c) Notwithstanding any provision or definition to the contrary, the wages established pursuant to this section shall be applicable to all individuals employed by the State of West Virginia, its agencies, and departments, regardless if such employee or employer are subject to any federal act relating to minimum wage: Provided, that at no time shall the minimum wage established pursuant to this section fall below the federal minimum hourly wage as prescribed by 29 U. S. C. §206(a)(1)."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4023 - "A Bill to amend and reenact §21-5C-2 of the Code of West Virginia, 1931, as amended, relating to increasing the state minimum and training wage; linking the state minimum and training wage to the federal minimum and training wage; making all departments and agencies of the State of West Virginia subject to the minimum wage established in this section regardless of federal law; and providing the minimum wage will not fall below the federal minimum wage."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 612), and there were--yeas 89, nays 10, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Blair, Carmichael, Frich, Howard, Overington, Roberts, Sobonya, Stevens, Sumner and Trump.
Absent And Not Voting: Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4023) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4308, Limiting the definition of conviction for purposes of administrative license revocation proceedings.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk, and adopted, amending the bill on page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §17C-5A-1a and §17C-5A-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.

§17C-5A-1a. Revocation upon conviction for driving under the influence of alcohol, controlled substances or drugs.

(a) If a person is convicted for an offense defined in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section because the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or the combined influence of alcohol or controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight, or did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, and if the person does not act to appeal the conviction within the time periods described in subsection (b) of this section, the person's license to operate a motor vehicle in this state shall be revoked or suspended in accordance with the provisions of this section.
(b) The clerk of the court in which a person is convicted for an offense described in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section shall forward to the commissioner a transcript of the judgment of conviction. If the conviction is the judgment of a magistrate court, the magistrate court clerk shall forward the transcript when the person convicted has not requested an appeal within twenty days of the sentencing for such conviction. If the conviction is the judgment of a mayor or police court judge or municipal court judge, the clerk or recorder shall forward the transcript when the person convicted has not perfected an appeal within ten days from and after the date upon which the sentence is imposed. If the conviction is the judgment of a circuit court, the circuit clerk shall forward the transcript when the person convicted has not filed a notice of intent to file a petition for appeal or writ of error within thirty days after the judgment was entered.
(c) If, upon examination of the transcript of the judgment of conviction, the commissioner shall determine that the person was convicted for an offense described in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section because the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or the combined influence of alcohol or controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight, the commissioner shall make and enter an order revoking the person's license to operate a motor vehicle in this state. If the commissioner determines that the person was convicted of driving a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the commissioner shall make and enter an order suspending the person's license to operate a motor vehicle in this state. The order shall contain the reasons for the revocation or suspension and the revocation or suspension periods provided for in section two of this article. Further, the order shall give the procedures for requesting a hearing which is to be held in accordance with the provisions of said section. The person shall be advised in the order that because of the receipt of a transcript of the judgment of conviction by the commissioner a presumption exists that the person named in the transcript of the judgment of conviction is the person named in the commissioner's order and such constitutes sufficient evidence to support revocation or suspension and that the sole purpose for the hearing held under this section is for the person requesting the hearing to present evidence that he or she is not the person named in the transcript of the judgment of conviction. A copy of the order shall be forwarded to the person by registered or certified mail, return receipt requested. No revocation or suspension shall become effective until ten days after receipt of a copy of the order.
(d) The provisions of this section shall not apply if an order reinstating the operator's license of the person has been entered by the commissioner prior to the receipt of the transcript of the judgment of conviction.
(e) For the purposes of this section, a person is convicted when the person enters a plea of guilty or is found guilty by a court or jury: Provided, That for the purposes of this chapter a plea of nolo contendre stands as neither an admission of guilt nor a conviction for administrative revocation proceedings.
§17C-5A-3. Safety and treatment program; reissuance of license.

(a) The Division of Motor Vehicles, in cooperation with the Department of Health and Human Resources, the division of alcoholism and drug abuse, shall propose a legislative rule or rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code, establishing a comprehensive safety and treatment program for persons whose licenses have been revoked under the provisions of this article, or section seven, article five of this chapter, or subsection (6), section five, article three, chapter seventeen-b of this code, and shall likewise establish the minimum qualifications for mental health facilities or other public agencies or private entities conducting the safety and treatment program: Provided, That the commissioner may establish standards whereby the division will accept or approve participation by violators in another treatment program which provides the same or substantially similar benefits as the safety and treatment program established pursuant to this section. The program shall include, but not be limited to, treatment of alcoholism, alcohol and drug abuse, psychological counseling, educational courses on the dangers of alcohol and drugs as they relate to driving, defensive driving, or other safety driving instruction, and other programs designed to properly educate, train and rehabilitate the offender.
(b) (1) The Division of Motor Vehicles, in cooperation with the Department of Health and Human Resources, the division of alcoholism and drug abuse, shall provide for the preparation of an educational and treatment program for each person whose license has been revoked under the provisions of this article or section seven, article five of this chapter, or subsection (6), section five, article three, chapter seventeen-b of this code, which shall contain the following: (A) A listing and evaluation of the offender's prior traffic record; (B) characteristics and history of alcohol or drug use, if any; (C) his or her amenability to rehabilitation through the alcohol safety program; and (D) a recommendation as to treatment or rehabilitation, and the terms and conditions of the treatment or rehabilitation. The program shall be prepared by persons knowledgeable in the diagnosis of alcohol or drug abuse and treatment. The cost of the program shall be paid out of fees established by the commissioner of motor vehicles in cooperation with the Department of Health and Human Resources, division of alcohol and drug abuse. The program provider shall collect the established fee from each participant upon enrollment. The program provider shall also at the time of enrollment remit to the commissioner a portion of the collected fee established by the commissioner in cooperation with the Department of Health and Human Resources, which shall be deposited into an account designated the driver's rehabilitation fund, which was created by a prior enactment of this section and which is hereby continued, to be used for the administration of the program.
(2) The commissioner, after giving due consideration to the program developed for the offender, shall prescribe the necessary terms and conditions for the reissuance of the license to operate a motor vehicle in this state revoked under this article, or section seven, article five of this chapter, or subsection (6), section five, article three, chapter seventeen-b of this code, which shall include successful completion of the educational, treatment or rehabilitation program, subject to the following:
(A) When the period of revocation is six months, the license to operate a motor vehicle in this state shall not be reissued until: (I) at least ninety days have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (ii) the offender has successfully completed the program; (iii) all costs of the program and administration have been paid; and (iv) all costs assessed as a result of a revocation hearing have been paid.
(B) When the period of revocation is for a period of years, the license to operate a motor vehicle in this state shall not be reissued until: (I) at least one half of such time period has elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (ii) the offender has successfully completed the program; (iii) all costs of the program and administration have been paid; and (iv) all costs assessed as a result of a revocation hearing have been paid.
(C) When the period of revocation is for life, the license to operate a motor vehicle in this state shall not be reissued until: (I) at least ten years have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (ii) the offender has successfully completed the program; (iii) all costs of the program and administration have been paid; and (iv) all costs assessed as a result of a revocation hearing have been paid.
(D) Notwithstanding any provision of this code or any rule, any mental health facilities or other public agencies or private entities conducting the safety and treatment program when certifying that a person has successfully completed a safety and treatment program, shall only have to certify that such person has successfully completed the program.
(c) (1) The Division of Motor Vehicles, in cooperation with the Department of Health and Human Resources, division of alcoholism and drug abuse, shall provide for the preparation of an educational program for each person whose license has been suspended for sixty days pursuant to the provisions of subsection (l), section two, article five-a of this chapter. The educational program shall consist of not less than twelve nor more than eighteen hours of actual classroom time.
(2) When a sixty-day period of suspension has been ordered, the license to operate a motor vehicle shall not be reinstated until: (A) At least sixty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect; (B) the offender has successfully completed the educational program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a suspension hearing have been paid.
(d) A required component of the rehabilitation program provided for in subsection (b) of this section and the education program provided for in subsection (c) of this section shall be participation by the violator with a victim impact panel program providing a forum for victims of alcohol and drug related offenses and offenders to share first-hand experiences on the impact of alcohol and drug related offenses in their lives. The commissioner shall propose legislative rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code to implement victim impact panels where appropriate numbers of victims are available and willing to participate, and shall establish guidelines for other innovative programs which may be substituted where such victims are not available, so as to assist persons whose licenses have been suspended or revoked for alcohol and drug related offenses to gain a full understanding of the severity of their offenses in terms of the impact of such offenses on victims and offenders. The legislative rules proposed for promulgation by the commissioner shall require, at a minimum, discussion and consideration of the following:
(A) Economic losses suffered by victims or offenders;
(B) Death or physical injuries suffered by victims or offenders;
(C) Psychological injuries suffered by victims or offenders;
(D) Changes in the personal welfare or familial relationships of victims or offenders; and
(E) Other information relating to the impact of alcohol and drug related offenses upon victims or offenders.
Any rules promulgated pursuant to this subsection shall contain provisions which ensure that any meetings between victims and offenders shall be nonconfrontational and ensure the physical safety of the persons involved.
(e) Notwithstanding the provisions of this section, or the legislative rules implementing this section, the commissioner may, in consultation with the Department of Health and Human Services, division of alcoholism and drug abuse offer alternatives to the present program established by this section. If the commissioner determines that alternative programs to the present program exists in this state or other states which address the assessment, treatment and education of offenders, he or she may approve an alternative program as meeting the requirements of this section as follows:
(1) The authority to offer alternatives to the present program established by this section shall expire the first day of July, two thousand ten;
(2) Completion of an alternative program approved by the commissioner shall meet the requirements of this section;
(3) The commissioner is authorized to promulgate emergency rules in addition to proposed rules to implement the provisions of this subsection governing alternate programs which will not supercede existing rules governing the present program; and
(4) The commissioner, after due consideration of the effectiveness of alternatives as compared to the present program in addressing the issue of driving under the influence shall submit his or her recommendation concerning the viability of alternatives to the present program to the Legislature no later than the fifteenth day of January, two thousand ten.
"
And,
By amending the title of the bill to read as follows:
H. B. 4308 - "A Bill to amend and reenact §17C-5A-1a and §17C-5A-3 of the Code of West Virginia, 1931, as amended, relating to limiting the definition of conviction for purposes of administrative license revocation proceedings; and license revocation for driving under the influence generally; and pilot testing of alternative to current safety and treatment programs."
On motion of Delegate Staton, the House concurred in the Senate amendments with amendment, as follows:
H. B. 4308 - "A Bill to amend and reenact §17C-5A-1a and §17C-5A-3 of the Code of West Virginia, 1931, as amended, relating to criminal and administrative procedure and treatment for persons charged with driving under the influence; limiting the definition of conviction for purposes of administrative license revocation proceedings; and license revocation for driving under the influence generally; and pilot testing of alternative to current safety and treatment programs."
Delegates Ellem and Lane requested to be excused from voting on the passage of H. B. 4308 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentlemen from voting, stating that they were members of a class of persons possibly to be affected by the passage of the bill and that they demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
The bill, as amended by the Senate and further amendment by the House , was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 613), and there were--yeas 67, nays 31, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Ashley, Barker, Blair, Boggs, Border, Carmichael, Duke, Frederick, Frich, Hall, Hamilton, Hunt, Louisos, Mahan, Miley, Overington, Porter, Roberts, Rowan, Schoen, Sobonya, Spencer, Stevens, Sumner, Tabb, Trump, Wakim, Walters, Wells and Wysong.
Absent And Not Voting: Ferrell and Staton.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4308) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with amendments, and the passage, as amended, of
H. B. 4353, 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.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk and adopted, amending the bill on page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §17C-5-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §17C-5A-1 of said code be amended and reenacted, all to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes the death of any person within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the safety of others and, when the influence of alcohol, controlled substances or drugs is shown to be a contributing cause to the death, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than ten years and shall be fined not less than one thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes the death of any person within one year next following the act or failure, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than ninety days nor more than one year and shall be fined not less than five hundred dollars nor more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than one year, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than six months, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(e) Any person who, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, drives a vehicle in this state, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than six months, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(f) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this state by any other person who:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(g) Any person who knowingly permits his or her vehicle to be driven in this state by any other person who is an habitual user of narcotic drugs or amphetamine or any derivative thereof, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(h) Any person under the age of twenty-one years who drives a vehicle in this state while he or she has an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, for a first offense under this subsection, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars. For a second or subsequent offense under this subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for twenty-four hours and shall be fined not less than one hundred dollars nor more than five hundred dollars. A person who is charged with a first offense under the provisions of this subsection may move for a continuance of the proceedings, from time to time, to allow the person to participate in the vehicle alcohol test and lock program as provided for in section three-a, article five-a of this chapter. Upon successful completion of the program, the court shall dismiss the charge against the person and expunge the person's record as it relates to the alleged offense. In the event the person fails to successfully complete the program, the court shall proceed to an adjudication of the alleged offense. A motion for a continuance under this subsection may not be construed as an admission or be used as evidence.
A person arrested and charged with an offense under the provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (I) of this section may not also be charged with an offense under this subsection arising out of the same transaction or occurrence.
(I) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) The person when so driving has on or within the motor vehicle one or more other persons who are unemancipated minors who have not reached their sixteenth birthday, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than two days nor more than twelve months, which jail term is to include actual confinement of not less than forty-eight hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars.
(j) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (I) of this section, for the second offense under this section, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than six months nor more than one year, and the court may, in its discretion, impose a fine of not less than one thousand dollars nor more than three thousand dollars: Provided, That if a person violates subsection (I) for the second offense under this section, and such person has previously been convicted of violation of subsection (I), then such person shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than three years, and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.
(k) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (I) of this section, for the third or any subsequent offense under this section, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than three years, and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars: Provided, That if a person violates subsection (I) for the third or subsequent offense under this section and such person has previously been convicted of violation of subsection (I), then such person shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than three nor more than ten years, and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.
(l) For purposes of subsections (j) and (k) of this section relating to second, third and subsequent offenses, the following types of convictions are to be regarded as convictions under this section:
(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e) or (f) of this section or under a prior enactment of this section for an offense which occurred within the ten-year period immediately preceding the date of arrest in the current proceeding;
(2) Any conviction under a municipal ordinance of this state or any other state or a statute of the United States or of any other state of an offense which has the same elements as an offense described in subsection (a), (b), (c), (d), (e), (f) or (g) of this section, which offense occurred within the ten-year period immediately preceding the date of arrest in the current proceeding.
(m) A person may be charged in a warrant or indictment or information for a second or subsequent offense under this section if the person has been previously arrested for or charged with a violation of this section which is alleged to have occurred within the applicable time period for prior offenses, notwithstanding the fact that there has not been a final adjudication of the charges for the alleged previous offense. In that case, the warrant or indictment or information must set forth the date, location and particulars of the previous offense or offenses. No person may be convicted of a second or subsequent offense under this section unless the conviction for the previous offense has become final.
(n) The fact that any person charged with a violation of subsection (a), (b), (c), (d) or (e) of this section, or any person permitted to drive as described under subsection (f) or (g) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug does not constitute a defense against any charge of violating subsection (a), (b), (c), (d), (e), (f) or (g) of this section.
(o) For purposes of this section, the term 'controlled substance' has the meaning ascribed to it in chapter sixty-a of this code.
(p) The sentences provided herein upon conviction for a violation of this article are mandatory and may not be subject to suspension or probation: Provided, That the court may apply the provisions of article eleven-a, chapter sixty-two of this code to a person sentenced or committed to a term of one year or less for a first offense under this section. An order for home detention by the court pursuant to the provisions of article eleven-b of said chapter may be used as an alternative sentence to any period of incarceration required by this section for a first or subsequent offense: Provided, however, That for any period of home incarceration ordered for a person convicted of second offense under this section, electronic monitoring shall be required for no fewer than five days of the total period of home confinement ordered and the offender may not leave home for those five days notwithstanding the provisions of section five, article eleven-b, chapter sixty-two of this code: Provided further, That for any period of home incarceration ordered for a person convicted of a third or subsequent violation of this section, electronic monitoring shall be included for no fewer than ten days of the total period of home confinement ordered and the offender may not leave home for those ten days notwithstanding section five, article eleven-b, chapter sixty-two of this code.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.

17C-5A-1. Implied consent to administrative procedure; revocation for driving under the influence of alcohol, controlled substances or drugs or refusal to submit to secondary chemical test.

(a) Any person who is licensed to operate a motor vehicle in this state and who drives a motor vehicle in this state shall be deemed to have given his or her consent by the operation thereof, subject to the provisions of this article, to the procedure set forth in this article for the determination of whether his or her license to operate a motor vehicle in this state should be revoked because he or she did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or combined influence of alcohol or controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight, or did refuse to submit to any designated secondary chemical test, or did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight.
(b) Any law-enforcement officer arresting a person for an offense described in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section shall report to the Commissioner of the Division of Motor Vehicles by written statement within forty-eight hours the name and address of the person so arrested: Provided, That the officer shall have a valid criminal complaint, signed by a magistrate or municipal judge, with a determination of probable cause, before reporting said offense to the Commissioner of the Department of Motor Vehicles. The arresting officer shall, within forty-eight hours of the issuance of the criminal complaint provide a statement to the commissioner reflecting the name and address of the subject of the criminal complaint. The report shall include the specific offense with which the person is charged and, if applicable, a copy of the results of any secondary tests of blood, breath or urine. The signing of the statement required to be signed by this subsection shall constitute an oath or affirmation by the person signing the statement that the statements contained therein are true and that any copy filed is a true copy. The statement shall contain upon its face a warning to the officer signing that to willfully sign a statement containing false information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor.
(c) If, upon examination of the written statement of the officer and the tests results described in subsection (b) of this section, the commissioner shall determine that a person was arrested for an offense described in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section, and that the results of any secondary test or tests indicate that at the time the test or tests were administered the person had, in his or her blood, an alcohol concentration of eight hundredths of one percent or more, by weight, or at the time the person was arrested he or she was under the influence of alcohol, controlled substances or drugs, the commissioner shall make and enter an order revoking the person's license to operate a motor vehicle in this state. If the results of the tests indicate that at the time the test or tests were administered the person was under the age of twenty-one years and had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the commissioner shall make and enter an order suspending the person's license to operate a motor vehicle in this state. A copy of the order shall be forwarded to the person by registered or certified mail, return receipt requested, and shall contain the reasons for the revocation or suspension and describe the applicable revocation or suspension periods provided for in section two of this article. No revocation or suspension shall become effective until ten days after receipt of a copy of the order.
(d) Any law-enforcement officer taking a child into custody under the provisions of section six-a, article five of this chapter who has reasonable cause to believe that the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, or that the act of the child in driving the motor vehicle was such that it would provide grounds for arrest for an offense defined under the provisions of section two of said article if the child were an adult, shall report to the Commissioner of the Division of Motor Vehicles by written statement within forty-eight hours the name and address of the child.
(e) If applicable, the report shall include a description of the specific offense with which the child could have been charged if the child were an adult, and a copy of the results of any secondary tests of blood, breath or urine. The signing of the statement required to be signed by this subsection shall constitute an oath or affirmation by the person signing such statement that the statements contained therein are true and that any copy filed is a true copy. Such statement shall contain upon its face a warning to the officer signing that to willfully sign a statement containing false information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor. (f) Upon examination of the written statement of the officer and any test results described in subsection (d) of this section, if the commissioner determines that the results of the tests indicate that at the time the test or tests were administered the child had, in his or her blood, an alcohol concentration of two hundredths of one percent or more, by weight, but also determines that the act of the child in driving the motor vehicle was not such that it would provide grounds for arrest for an offense defined under the provisions of subsection (a), (b), (c), (d), (e), (f) or (g), section two, article five of this chapter if the child were an adult, the commissioner shall make and enter an order suspending the child's license to operate a motor vehicle in this state. If the commissioner determines that the act of the child in driving the motor vehicle was such that it would provide grounds for arrest for an offense defined under the provisions of subsection (a), (b), (c), (d), (e), (f) or (g), section two, article five of this chapter if the child were an adult, the commissioner shall make and enter an order revoking the child's license to operate a motor vehicle in this state. A copy of such order shall be forwarded to the child by registered or certified mail, return receipt requested, and shall contain the reasons for the suspension or revocation and describe the applicable suspension or revocation periods provided for in section two of this article. No suspension or revocation shall become effective until ten days after receipt of a copy of such order."
And,
By amending the title of the bill to read as follows:
H. B. 4353 - "A Bill to amend and reenact §17C-5-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §17C-5A-1 of said code, all relating to criminal and administrative penalties for driving under the influence of alcohol, controlled substance or drugs; providing for enhanced criminal penalties for second and subsequent offense of driving under the influence of alcohol, controlled substance or drugs with a minor under the age of sixteen in the vehicle; relating to initiation of administrative procedures; 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; and authorizing notice to Division of Motor Vehicles within forty-eight hours to be sent of complaint issuing."
On motion of Delegate Staton, the House concurred in the Senate amendments with further amendment by amending the title of the bill to read as follows:
H. B. 4353 - "A Bill to amend and reenact §17C-5-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §17C-5A-1 of said Code, all relating to criminal and administrative procedures related to persons charged with driving under the influence of alcohol, controlled substance or drugs; providing for enhanced criminal penalties for second and subsequent offense of driving under the influence of alcohol, controlled substance or drugs with a minor under the age of sixteen in the vehicle; relating to initiation of administrative procedures; 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; and authorizing notice to Division of Motor Vehicles within forty-eight hours to be sent of complaint issuing."
The bill, as amended by the Senate and further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 614), and there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael and Walters.
Absent And Not Voting: Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4353) passed.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with amendment, and the passage, as amended, of
H. B. 4406, Removing the requirement to evaluate certain classroom teachers at least every three years.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate title amendment was reported by the Clerk:
H. B. 4406 - "A Bill to amend and reenact §18A-2-12 of the Code of West Virginia, 1931, as amended, relating to professional evaluations of classroom teachers; limiting the frequency of requiring an evaluation or a professional growth and development plan for certain classroom teachers; and making technical changes."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 615), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Lane and Overington.
Absent And Not Voting: Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4406) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4404, Relating to the use of a traffic law photo-monitoring device to detect traffic law violations.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"§17C-6-7a. Prohibition of the use of traffic law photo-monitoring devices to detect or prove traffic law violations.

(a) As used in this section 'traffic law photo-monitoring device' means an electronic system consisting of a photographic, video, or electronic camera and a means of sensing the presence of a motor vehicle that automatically produces photographs, videotape, or digital images of the vehicle, its operator, or its license plate.
(b) No police officer may utilize a traffic law photo-monitoring device to determine compliance with, or to detect a violation of, a municipal or county ordinance or any provision of this code that governs or regulates the operation of motor vehicles.
(c) A violation of a county ordinance or an ordinance of a class one, two, three, or four municipality, as defined in chapter eight of this code, or any provision of this code that governs or regulates the operation of motor vehicles may not be proved by evidence obtained by the use of a traffic law photo-monitoring device.
(d) The provisions of this section do not prohibit the use of any device designed to measure and indicate the speed of a moving object by means of microwaves to obtain evidence to prove the speed of a motor vehicle including by a class one, two, three, or four municipality, as defined in chapter eight of this code, pursuant to section seven of this article.
(e) The provisions of this section do not prohibit use of a traffic law photo-monitoring device for any other lawful purposes other than violations of municipal or county ordinances or any provision of this code governing moving traffic violations."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment with further amendment as follows:
On page one, section seven- a, line fourteen, by striking the remainder of the amendment and inserting in lieu thereof the following:
"(c) A violation of a municipal or county ordinance or any provision of this code that governs or regulates the operation of motor vehicles may not be proved by evidence obtained by the use of a traffic law photo-monitoring device.
(d) The provisions of this section do not prohibit the use of any device designed to measure and indicate the speed of a moving object by means of microwaves to obtain evidence to prove the speed of a motor vehicle pursuant to section seven of this article.
(e) The provisions of this section do not prohibit use of a traffic law photo-monitoring device for any other lawful purposes other than to obtain evidence to prove violations of municipal or county ordinances or any provision of this code governing or regulating the operation of motor vehicles."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4004 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17C-6-7a, relating to prohibiting the use of a traffic law photo-monitoring device by police officers to detect traffic law violations; defining 'traffic law photo-monitoring device'; providing that evidence obtained by the use of a traffic law photo-monitoring device may not be used to prove a violation of a traffic law; providing that this section does not prohibit the use of microwave devices to prove the speed of a motor vehicle in violation of a traffic law; and providing that evidence obtained by the use of a traffic law photo-monitoring device may be used for other lawful purposes."


The bill, as amended by the Senate was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 616), and there were--yeas 91, nays 7, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Ashley, Azinger, Evans, Hall, Louisos and Trump.
Absent And Not Voting: Ferrell and Susman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4004) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 55, Requesting the Joint Committee on Government and Finance to study how the divorce and custody laws prevent or hinder fathers from being involved in raising their children.
On motion of Delegate Staton, the resolution was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the title and inserting in lieu thereof the following:
"Whereas, The rate of divorce in the state and the nation has substantially increased on an annual basis in recent years; and
Whereas, the Legislature has substantially reformed divorce and custody laws in West Virginia in recent years, which comprehensive changes need to be reviewed to determine which legislative changes have worked, which have not, and which are still in process;
Whereas, Divorce and custody laws in West Virginia either prevent or hinder fathers from being involved in raising their children; and
Whereas, The phenomenon of children not being raised by their fathers has had a negative impact on these children; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to generally study divorce and custody laws in West Virginia; to review the comprehensive legislative changes in divorce and custody laws; and to determine which legislative changes have worked, which have not, and which are still in process; and, be it
Further Resolved, That the Joint Committee on Government and Finance study the impact on children of not being raised with a father as an integral part of their lives; 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."
And,
By amending the title of the resolution to read as follows:
H. C. R. 55 - "Requesting the Joint Committee on Government and Finance study how the divorce and custody laws of West Virginia prevent or hinder fathers from being involved in raising their children and the impact of children being raised without a father as an integral part of their lives."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The resolution, as amended by the Senate, was then adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 84, Requesting the Joint Committee on Government and Finance to study the process of granting and denying well work permits for the drilling of gas wells near active coal mines.
On motion of Delegate Staton, the resolution was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out the fourth Whereas clause and inserting in lieu thereof the following:
"Whereas, A review and study of the granting of permits to mine coal or drill for oil or natural gas will ensure that every interested party's rights throughout the permitting process are being considered and protected; therefore, be it"
And,
By amending the title of the resolution to read as follows:
H. C. R. 84 - "Requesting the Joint Committee on Government and Finance study the process of granting and denying permits for the mining of coal and drilling of oil and natural gas wells."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The resolution, as amended by the Senate, was then adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4283, Providing a preference to West Virginia veterans in the awarding of state contracts in the competitive bidding process.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
"That §5A-3-37 and §5A-3-37a of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-37. Preference for resident vendors; preference for vendors employing state residents; exceptions.
(a) Other provisions of this article notwithstanding, effective the first day of July, one thousand nine hundred ninety, through the thirtieth day of June, one thousand nine hundred ninety-four, in any instance involving the purchase of construction services for the construction, repair or improvement of any buildings or portions thereof, where the total aggregate cost thereof, whether one or a series of contracts are awarded in completing the project, is estimated by the director to exceed the sum of fifty thousand dollars and where the director or any state department is required under the provisions of this article to make the purchase, construction, repair or improvement upon competitive bids, the successful bid shall be determined as provided in this section. Effective beginning the first day of July, one thousand nine hundred ninety-two, in any instance that a purchase of commodities or printing by the director or by a state department is required under the provisions of this article to be made upon competitive bids, the successful bid shall be determined as provided in this section. The Secretary of the Department of Tax and Revenue shall promulgate any rules and regulations necessary to propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to: (I) Determine that vendors have met the residence requirements described in this section; (ii) establish the procedure for vendors to certify the residency requirements at the time of submitting their bids; (iii) set standards to determine when resident West Virginia vendors qualify for veterans status and establish procedures for certifying veterans status at the time of submitting bids; (iii) (iv) establish a procedure to audit bids which make a claim for preference permitted by this section and to reject noncomplying bids; and (iv) (v) otherwise accomplish the objectives of this section. In prescribing the rules, and regulations the secretary shall use a strict construction of the residence requirements set forth in this section. For purposes of this section, a successful bid shall be determined and accepted as follows:
(1) From an individual resident vendor who has resided in West Virginia continuously for the four years immediately preceding the date on which the bid is submitted or from a partnership, association, corporation resident vendor, or from a corporation nonresident vendor which has an affiliate or subsidiary which employs a minimum of one hundred state residents and which has maintained its headquarters or principal place of business within West Virginia continuously for four years immediately preceding the date on which the bid is submitted, if the vendor's bid does not exceed the lowest qualified bid from a nonresident vendor by more than two and one-half percent of the latter bid, and if the vendor has made written claim for the preference at the time the bid was submitted: Provided, That for purposes of this subdivision, any partnership, association or corporation resident vendor of this state, which does not meet the requirements of this subdivision solely because of the continuous four-year residence requirement, shall be considered to meet the requirement if at least eighty percent of the ownership interest of the resident vendor is held by another individual, partnership, association or corporation resident vendor who otherwise meets the requirements of this subdivision, including the continuous four-year residency requirement: Provided, however, That the Secretary of the Department of Tax and Revenue shall promulgate rules and regulations propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code relating to attribution of ownership among several resident vendors for purposes of determining the eighty percent ownership requirement: Provided further, That a resident West Virginia vendor who meets the requirements of this subdivision and who qualifies for veteran status shall receive preference as against a nonveteran resident West Virginia vendor: And provided further, That this preference shall apply to the extent the resident veteran vendor's bid does not exceed the lowest qualified bid from a nonveteran resident vendor by more than two percent of the latter bid, and if the resident veteran vendor has certified his or her veteran status as well as the residency requirements of this subdivision and has, additionally, made written claim for the preference, at the time the bid was submitted: And provided further, That a resident West Virginia vendor who qualifies for veteran status shall receive a preference only as to contracts upon which a bid is to be made does not exceed the total amount of two hundred fifty thousand dollars: And provided further, That for a partnership, association or corporation to qualify as a veteran resident vendor, a veteran who is a resident of this state is required to have at least fifty percent ownership in the partnership, association or corporation: And provided further, That the preference for veteran status shall be applied in addition to all other resident preferences: And provided further, That any individual, partnership, association, or corporation asserting a preference for veteran status shall certify the qualifications for the preference; or
(2) From a resident vendor, if, for purposes of producing or distributing the commodities or completing the project which is the subject of the vendor's bid and continuously over the entire term of the project, on average at least seventy-five percent of the vendor's employees are residents of West Virginia who have resided in the state continuously for the two immediately preceding years and the vendor's bid does not exceed the lowest qualified bid from a nonresident vendor by more than two and one-half percent of the latter bid, and if the vendor has certified the residency requirements of this subdivision and made written claim for the preference, at the time the bid was submitted: Provided, That a resident West Virginia vendor who meets the requirements of this subdivision and who qualifies for veteran status shall receive preference as against a nonveteran resident West Virginia vendor: Provided, however, That this preference shall apply to the extent the resident veteran vendor's bid does not exceed the lowest qualified bid from a nonveteran resident vendor by more than two percent of the latter bid, and if the resident veteran vendor has certified his or her veteran status as well as the residency requirements of this subdivision and has, additionally, made written claim for the preference, at the time the bid was submitted: Provided further, That a resident West Virginia vendor who qualifies for veteran status shall receive a preference only as to contracts upon which a bid is to be made does not exceed the total amount of two hundred fifty thousand dollars: And provided further, That for a partnership, association or corporation to qualify as a veteran resident vendor, a veteran who is a resident of this state is required to have at least fifty percent ownership in the partnership, association or corporation: And provided further, That the preference for veteran status shall be applied in addition to all other resident preferences: And provided further, That any individual, partnership, association, or corporation asserting a preference for veteran status shall certify the qualifications for the preference; or
(3) From a nonresident vendor, which employs a minimum of one hundred state residents or a nonresident vendor which has an affiliate or subsidiary which maintains its headquarters or principle principal place of business within West Virginia and which employs a minimum of one hundred state residents, if, for purposes of producing or distributing the commodities or completing the project which is the subject of the vendor's bid and continuously over the entire term of the project, on average at least seventy-five percent of the vendor's employees or the vendor's affiliate's or subsidiary's employees are residents of West Virginia who have resided in the state continuously for the two immediately preceding years and the vendor's bid does not exceed the lowest qualified bid from a nonresident vendor by more than two and one-half percent of the latter bid, and if the vendor has certified the residency requirements of this subdivision and made written claim for the preference, at the time the bid was submitted; or
(4) From a vendor who meets either the requirements of both subdivisions (1) and (2) of this subsection or subdivisions (1) and (3) of this subsection, if the bid does not exceed the lowest qualified bid from a nonresident vendor by more than five percent of the latter bid, and if the vendor has certified the residency requirements above and made written claim for the preference at the time the bid was submitted: Provided, That a resident West Virginia vendor who meets the requirements of this subdivision and who qualifies for veteran status shall receive preference as against a nonveteran resident West Virginia vendor: Provided, however, That this preference shall apply to the extent the resident veteran vendor's bid does not exceed the lowest qualified bid from a nonveteran resident vendor by more than two percent of the latter bid, and if the resident veteran vendor has certified his or her veteran status as well as the residency requirements of this subdivision and has, additionally, made written claim for the preference, at the time the bid was submitted: Provided further, That a resident West Virginia vendor who qualifies for veteran status shall receive a preference only as to contracts upon which a bid is to be made does not exceed the total amount of two hundred fifty thousand dollars: And provided further, That for a partnership, association or corporation to qualify as a veteran resident vendor, a veteran who is a resident of this state is required to have at least fifty percent ownership in the partnership, association or corporation: And provided further, That the preference for veteran status shall be applied in addition to all other resident preferences: And provided further, That any individual, partnership, association, or corporation asserting a preference for veteran status shall certify the qualifications for the preference; or
(b) If the Secretary of the Department of Tax and Revenue determines under any audit procedure that a vendor who received a preference under this section fails to continue to meet the requirements for the preference at any time during the term of the project for which the preference was received the secretary may: (1) Reject the vendor's bid; or (2) assess a penalty against the vendor of not more than five percent of the vendor's bid on the project.
(c) Political subdivisions of the state including county boards of education may grant the same preferences to any vendor of this state who has made a written claim for the preference at the time a bid is submitted, but for the purposes of this subsection, in determining the lowest bid, any political subdivision shall exclude from the bid the amount of business occupation taxes which must be paid by a resident vendor to any municipality within the county comprising or located within the political subdivision as a result of being awarded the contract which is the object of the bid; in the case of a bid received by a municipality, the municipality shall exclude only the business and occupation taxes as will be paid to the municipality: Provided, That prior to soliciting any competitive bids, any political subdivision may, by majority vote of all its members in a public meeting where all the votes are recorded, elect not to exclude from the bid the amount of business and occupation taxes as provided in this subsection.
(d) If any of the requirements or provisions set forth in this section jeopardize the receipt of federal funds, then the requirement or provisions are void and of no force and effect for that specific project.
(e) If any provision or clause of this section or application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end the provisions of this section are severable.
(f) This section may be cited as the 'Jobs for West Virginians Act of 1990'.
§5A-3-37a. Preference for resident vendors; exceptions; reciprocal preference.
Except where the provisions of section thirty-seven of this article may apply, in any instance where a purchase of commodities or printing by the director or by a state spending unit is required under the provisions of this article to be made upon competitive bids, preference shall be given to vendors resident in West Virginia as against vendors resident in any state that gives or requires a preference for the purchase of commodities or printing produced, manufactured or performed in that state: Provided, That a resident West Virginia vendor who qualifies for veterans status under rules promulgated by the Secretary of the Department of Revenue pursuant to section thirty-seven of this article shall receive preference as against a nonveteran resident West Virginia vendor: Provided, however, That this preference shall apply to the extent the resident veteran vendor's bid does not exceed the lowest qualified bid from a nonveteran resident vendor by more than two percent of the latter bid, and if the resident veteran vendor has certified his or her veteran status as well as the residency requirements of this subdivision and has, additionally, made written claim for the preference, at the time the bid was submitted: Provided further, That a resident West Virginia vendor who qualifies for veteran status shall receive a preference only as to contracts upon which a bid is to be made does not exceed the total amount of two hundred fifty thousand dollars: And provided further, That for a partnership, association or corporation to qualify as a veteran resident vendor, a veteran who is a resident of this state is required to have at least fifty percent ownership in the partnership, association or corporation: And provided further, That the preference for veteran status shall be applied in addition to all other resident preferences: And provided further, That any individual, partnership, association, or corporation asserting a preference for veteran status shall certify the qualifications for the preference. The amount of the preference shall be equal to the amount of the preference applied by the other state.
A vendor shall be deemed to be a resident of this state if such vendor is an individual, partnership, association or corporation in good standing under the laws of the State of West Virginia who: (1) Is a resident of the state or a foreign corporation authorized to transact business in the state; (2) maintains an office in the state; (3) has paid personal property taxes pursuant to article five, chapter eleven of this code on equipment used in the regular course of supplying services of the general type offered; and (4) has paid business taxes pursuant to chapter eleven of this code. In addition, in the case of a vendor selling tangible personal property, a resident vendor is one who has a stock of materials held in West Virginia for sale in the ordinary course of business, which stock is of the general type offered, and which is reasonably sufficient in quantity to meet the ordinary requirements of customers.
If any of the requirements or provisions set forth in this section jeopardize the receipt of federal funds, then such requirements or provision provisions shall be void and of no force and effect."
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendment and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4578, Extending the expiration date of provisions permitting retired teachers to accept employment as substitutes in areas of critical need and shortage for an unlimited number of days without affecting retirement benefits.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §18-7A-38 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §18A-2-3 of said code be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.

ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-38. Maximum number of days a retirant may accept employment; calculating days worked for retirants.

(a) The Legislature finds that:
(1) The Consolidated Public Retirement Board has determined that retired substitute teachers retirants should not perform substitute teaching be reemployed without limit;
(2) The Consolidated Public Retirement Board has established, by rule, a maximum number of days in which a retired teacher retirant may accept employment prior to having his or her retirement benefit reduced; and
(3) There have been inconsistencies in the manner in which county boards calculate the maximum number of days established by rule.
(b) The Consolidated Public Retirement Board may not set forth in rule a maximum number of days in which a retired teacher retirant may accept employment prior to having his or her retirement benefit reduced that is less than one hundred forty eighty days.
(c) For the purpose of calculating whether a retired substitute teacher retirant has exceeded the maximum number of days in which a substitute teacher retirant may accept employment without incurring a reduction in his or her retirement benefit, the number of days worked shall be determined by:
(1) Totaling the number of hours worked; and
(2) Dividing by the standard number of hours that a full-time teacher or service person, as applicable, works per day.
CHAPTER 18A. SCHOOL PERSONNEL.

ARTICLE 2. SCHOOL PERSONNEL.

§18A-2-3. Employment of substitute teachers and retired teachers as substitutes in areas of critical need and shortage; employment of prospective employable professional personnel.

(a) The county superintendent, subject to approval of the county board, may employ and assign substitute teachers to any of the following duties: (1) To fill the temporary absence of any teacher or an unexpired school term made vacant by resignation, death, suspension or dismissal; (2) to fill a teaching position of a regular teacher on leave of absence; and (3) to perform the instructional services of any teacher who is authorized by law to be absent from class without loss of pay, providing the absence is approved by the board of education in accordance with the law. The substitute shall be a duly certified teacher.
(b) Notwithstanding any other provision of this code to the contrary, a substitute teacher who has been assigned as a classroom teacher in the same classroom continuously for more than one half of a grading period and whose assignment remains in effect two weeks prior to the end of the grading period, shall remain in the assignment until the grading period has ended, unless the principal of the school certifies that the regularly employed teacher has communicated with and assisted the substitute with the preparation of lesson plans and monitoring student progress or has been approved to return to work by his or her physician. For the purposes of this section, teacher and substitute teacher, in the singular or plural, mean professional educator as defined in section one, article one of this chapter.
(c) (1) The Legislature hereby finds and declares that due to a shortage of qualified substitute teachers, a compelling state interest exists in expanding the use of retired teachers to provide service as substitute teachers in areas of critical need and shortage. The Legislature further finds that diverse circumstances exist among the counties for the expanded use of retired teachers as substitutes. For the purposes of this subsection, 'area of critical need and shortage' means an area of certification and training in which the number of available substitute teachers in the county who hold certification and training in that area and who are not retired is insufficient to meet the projected need for substitute teachers.
(2) A person receiving retirement benefits under the provisions of article seven-a of this chapter or who is entitled to retirement benefits during the fiscal year in which that person retired may accept employment as a substitute teacher for an unlimited number of days each fiscal year without affecting the monthly retirement benefit to which the retirant is otherwise entitled if the following conditions are satisfied:
(A) The county board adopts a policy recommended by the superintendent to address areas of critical need and shortage;
(B) The policy sets forth the areas of critical need and shortage in the county in accordance with the definition of area of critical need and shortage set forth in subdivision (1) of this subsection;
(C) The policy provides for the employment of retired teachers as substitute teachers during the school year on an expanded basis in areas of critical need and shortage as provided in this subsection;
(D) The policy provides that a retired teacher may be employed as a substitute teacher in an area of critical need and shortage on an expanded basis as provided in this subsection only when no other teacher who holds certification and training in the area and who is not retired is available and accepts the substitute assignment;
(E) The policy is effective for one school year only and is subject to annual renewal by the county board;
(F) The state board approves the policy and the use of retired teachers as substitute teachers on an expanded basis in areas of critical need and shortage as provided in this subsection; and
(G) Prior to employment of a substitute teacher beyond the post-retirement employment limitations established by the Consolidated Public Retirement Board, the superintendent of the affected county submits to the Consolidated Public Retirement Board, in a form approved by the retirement board, an affidavit signed by the superintendent stating the name of the county, the fact that the county has adopted a policy to employ retired teachers as substitutes to address areas of critical need and shortage and the name or names of the person or persons to be employed pursuant to the policy.
(3) Any person who retires and begins work as a substitute teacher within the same employment term shall lose those retirement benefits attributed to the annuity reserve, effective from the first day of employment as a retiree substitute in that employment term and ending with the month following the date the retiree ceases to perform service as a substitute.
(4) Retired teachers employed to perform expanded substitute service pursuant to this subsection are considered day-to-day, temporary, part-time employees. The substitutes are not eligible for additional pension or other benefits paid to regularly employed employees and shall not accrue seniority.
(5) When a retired teacher is employed as a substitute to fill a vacant position, the county board shall continue to post the vacant position until it is filled with a regularly employed teacher.
(6) Until this subsection is expired pursuant to subdivision (7) of this subsection, the state board, annually, shall report to the Joint Committee on Government and Finance prior to the first day of February of each year. Additionally, a copy shall be provided to the Legislative Oversight Commission on Education Accountability. The report shall contain information indicating the effectiveness of the provisions of this subsection on expanding the use of retired substitute teachers to address areas of critical need and shortage.
(7) The provisions of this subsection shall expire on the thirtieth day of June, two thousand six nine.
(d) (1) Notwithstanding any other provision of this code to the contrary, each year a county superintendent may employ prospective employable professional personnel on a reserve list at the county level subject to the following conditions:
(A) The county board adopts a policy to address areas of critical need and shortage as identified by the state board. The policy shall include authorization to employ prospective employable professional personnel;
(B) The county board posts a notice of the areas of critical need and shortage in the county
in a conspicuous place in each school for at least ten working days; and
(C) There are not any potentially qualified applicants available and willing to fill the position.
(2) Prospective employable professional personnel may only be employed from candidates at a job fair who have or will graduate from college in the current school year or whose employment contract with a county board has or will be terminated due to a reduction in force in the current fiscal year.
(3) Prospective employable professional personnel employed are limited to three full-time prospective employable professional personnel per one hundred professional personnel employed in a county or twenty-five full-time prospective employable professional personnel in a county, whichever is less.
(4) Prospective employable professional personnel shall be granted benefits at a cost to the county board and as a condition of the employment contract as approved by the county board.
(5) Regular employment status for prospective employable professional personnel may be obtained only in accordance with the provisions of section seven-a, article four of this chapter.
(e) The state board annually shall review the status of employing personnel under the provisions of subsection (d) of this section and annually shall report to the Legislative Oversight Commission on Education Accountability on or before the first day of November of each year. The report shall include, but not be limited to, the following:
(A) The counties that participated in the program;
(B) The number of personnel hired;
(C) The teaching fields in which personnel were hired;
(D) The venue from which personnel were employed;
(E) The place of residency of the individual hired; and
(F) The state board's recommendations on the prospective employable professional personnel program."
And,
By amending the title of the bill to read as follows:
H. B. 4578 - "A Bill to amend and reenact §18-7A-38 of the Code of West Virginia, 1931, as amended; and to amend and reenact §18A-2-3 of said code, all relating to retirants under the teachers retirement system; the maximum number of days in which a retirant may accept employment prior to having his or her retirement benefit reduced; broadening application of provisions relating to the employment limit and the calculation of the number of days employed to include all retirants; and extending expiration date of provisions permitting retired teachers to accept employment as substitutes in areas of critical need and shortage for an unlimited number of days without affecting retirement benefits."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment with further amendment as follows:
On page one, line eleven, by striking section §18-7A-38 and inserting in lieu thereof a new section §18-7A-38 to read as follows:
"§18-7A-38. Maximum number of days a retirant may accept employment; calculating days
worked for retirants.

(a) The Legislature finds that:
(1) The Consolidated Public Retirement Board has determined that retired substitute teachers retirants should not perform coaching or substitute employment teaching without limit;
(2) The Consolidated Public Retirement Board has established, by rule, a maximum number of days in which a retired teacher retirant may accept employment prior to having his or her retirement benefit reduced; and
(3) There have been inconsistencies in the manner in which county boards calculate the maximum number of days established by rule.
(b) The Consolidated Public Retirement Board may not set forth in rule a maximum number of days in which a retired teacher retirant may accept employment prior to having his or her retirement benefit reduced that is less than one hundred forty days.
(c) For the purpose of calculating whether a retired substitute teacher retirant has exceeded the maximum number of days in which a substitute teacher retirant may accept employment without incurring a reduction in his or her retirement benefit, the number of days worked shall be determined by:
(1) Totaling the number of hours worked; and
(2) Dividing by the standard number of hours that a full-time teacher or service person, as applicable, works per day."
And,
By amending the title of the bill to read as follows:
H. B. 4578 - "A Bill to amend and reenact §18-7A-38 of the Code of West Virginia, 1931, as amended; and to amend and reenact §18A-2-3 of said code, all relating to retirants under the teachers retirement system; broadening application of provisions relating to the employment limit and the calculation of the number of days employed to include all retirants; and extending expiration date of provisions permitting retired teachers to accept employment as substitutes in areas of critical need and shortage for an unlimited number of days without affecting retirement benefits."
Delegates Iaquinta and Poling requested to be excused from voting on the passage of H. B. 4578 under the provisions of House Rule 49.
The Speaker refused to excuse the members from voting, stating that they were members of a class of persons possibly to be affected by the passage of the bill and that they demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
The bill, as amended by the Senate and further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 617), and there were - yes
98, nays none, absent and not voting 1, with the nays and absent and not voting being as follows:
Absent and Not Voting: Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4578) passed.
Delegate Staton moved that the bill take effect July 1, 2006.
On this question, the yeas and nays were taken (Roll No. 618), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4578) takes effect July 1, 2006.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 61, Requesting the Joint Committee on Government and Finance to study the state of emergency medicine in West Virginia.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 70, Requesting the joint committee on government and finance to conduct a study on the need for and the appropriate methodology for providing salary improvements for counselors employed by the Division of Rehabilitation Services.
Special Calendar

Third Reading

Com. Sub. for S. B. 183, Creating certain special license plates; on third reading, having been postponed in earlier proceedings, was taken up for further consideration and read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 619), and there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Carmichael, Ellem and Lane.
Absent And Not Voting: Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 183) passed.
On motion of Delegate Staton, an amendment to the title, recommended by the Committee on Roads and Transportation was withdrawn.
On motion of Delegate Staton, the title of the bill was then amended to read as follows:
Com. Sub. for S. B. 183 - "A Bill to amend and reenact §17A-3-4, §17A-3-14 and §17A-3-23 of the Code of West Virginia, 1931, as amended, relating to motor vehicle registration generally; providing for the issuance of a special plate for recipients of the Armed Forces Air Metal; extending the time to comply with requirements for the issuance of a special plate for members of the Knights of Columbus; providing for the issuance of a special Lions International membership license plate; providing for the issuance of a special plate recognizing organ and tissue donors; providing for the issuance of a special West Virginia Bar Association membership license plate; providing for the issuance of a special plate with the logo 'SHARE THE ROAD'; providing for the issuance of a special plate honoring coal miners; providing for the issuance of special plates for present and former Boy Scouts and Eagle Scouts; providing for the issuance of a special plate memorializing victims of domestic violence; providing for the issuance of a special plate demonstrating association with or support of the University of Charleston; providing for the issuance of a special plate for members of the Sons of the American Revolution; providing for the issuance of a special plate for horse enthusiasts; providing for the issuance of a special plate for the next of kin of a member of the armed forces killed in combat; providing for the issuance of a special plate for retired or former Justices of the Supreme Court of Appeals of West Virginia; assessing a special initial application fee and a special annual fee therefor; revising the criteria before the commissioner may initiate the design and production of a special license plate; encouraging the commissioner to utilize technology in the design, production and issuance of registration plates, including offering internet renewal of vehicle registration; establishing a new license plate issued to a city or municipality for motor vehicles of a city or municipal law enforcement department; specifying the design and a one time fee therefor; providing for the issuance of special license plates for certain vehicles titled in the name of the Division of public transit or a public transit authority to transport persons in the public interest, without charge therefor; providing for the design therefor; exempting certain vehicles titled in the name of an urban mass transit authority and certain nonprofit entities from the tax imposed upon the privilege of certification of title of a vehicle by the division of motor vehicles."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 620), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 183) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 251, Creating Beckley-Raleigh County Building Code Authority; on third reading, with right to amend, having been postponed in earlier proceedings, was taken up for further consideration.
On motion of Mr. Speaker, Mr. Kiss, and Delegates Mahan, Thompson, Susman and Sumner the bill was amended on page two, section two, line eleven, by striking the following sentence, "The authority may also enter into any other agreement with the city of Beckley and the county commission of Raleigh County to provide any other related inspections or services."
On page five, section three, line forty-three, after the word "Appeals" by inserting a comma then the words, "for the initial appeals process,".
On page four, section three, line twenty-six, by striking out the sentence "The fifth member of the authority shall be the President of the Southern West Virginia Homebuilders Association or successor organization." and inserting in lieu thereof the following, "The fifth member of the authority shall be an agreed upon member by Raleigh County Commission and the city of Beckley."
On page five, after section three, after line fifty-eight by inserting a new section, designated section four, to read as follows:
"§4.
Oversight.

The governing body of the city of Beckley and the county commission of Raleigh County shall be empowered to regulate, within their respective geographical jurisdictions, the actions of the Authority including but not limited to:
(1) Regulating fees charged for issuance of permits.
(2) Hearing final appeals.
(3) Removal and appointment of Board Members."
And,
By renumbering the remaining sections accordingly.
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 621), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B 251) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 622), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 251) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Message from the Senate

A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with amendment, and the passage, as amended, of
S. B. 127, Relating to regional education service agencies.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment to the House of Delegates amendment was reported by the Clerk:
On page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §18-2-15a of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §18-9A-8a of said code be amended and reenacted, all to read as follows:
ARTICLE 2. STATE BOARD OF EDUCATION.

§18-2-15a. Comprehensive study of regional education service agencies.
(a) The state superintendent shall conduct a comprehensive study of the programs, governance and administration of the regional education service agencies established pursuant to section twenty- six of this article.
(b) The study shall include, but is not limited to, the following:
(1) The general structure and specific processes for governance and oversight of the Regional Education Service Agencies to ensure efficiency of operations and accountability in the areas of:
(A) Financial integrity, oversight and accountability;
(B) Fiscal oversight of budgeting, salaries, benefits and employment;
(C) Service delivery in priority areas including, but not limited to, (I) the types, cost, convenience and results of in-service training programs and other efforts to assist low performing schools and school systems and (ii) the costs and turnaround time of computer repair services; and
(D) The costs and benefits of other services provided to the respective members counties;
(2) Areas of needed improvements, including any existing limitations or hindrances to improvement;
(3) The powers and duties of state board and state superintendent relating to regional education service agencies;
(4) The qualifications and procedures for selection of agency executive directors;
(5) The selection and supervision of agency staff;
(6) Development of agency budget;
(7) Oversight of agency purchasing and auditing procedures;
(8) Development of programs and delivery of services; and
(9) Procedures to ensure fiscal and programmatic accountability.
(c) The state superintendent shall report findings generated by the study, together with recommendations and any legislation necessary to effectuate the recommendations, to the Legislative Oversight Commission on Education Accountability by the first day of December, two thousand six.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-8a. Foundation allowance for regional education service agencies.
For the fiscal year beginning on the first day of July, one thousand nine hundred ninety-one two thousand seven, and for each fiscal year thereafter, the foundation allowance for regional education service agencies shall be equal to sixty-three one-hundredths percent of the allocation for professional educators as determined in section four of this article, but not more than four million two hundred thousand dollars. Provided, That for the fiscal year beginning on the first day of July, one thousand nine hundred ninety-four only, the foundation allowance for regional educational service agencies shall be at least equal to fifty-five one-hundredths percent of the allocation for professional educators as determined in section four of this article The allowance shall be distributed to the regional education service agencies in accordance with rules adopted by the state board. The allowance for regional education service agencies shall be excluded from the computation of total basic state aid as provided for in section twelve of this article."
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendment to the House amendment and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Still being in possession of the Clerk, H. B. 4578, Extending the expiration date of provisions permitting retired teachers to accept employment as substitutes in areas of critical need and shortage for an unlimited number of days without affecting retirement benefits, was taken up for further consideration.
On motion of Delegate Staton, the House of Delegates then reconsidered the vote whereby it had made the bill effective July 1, 2006.
Delegate Staton then moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 623), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4578) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Conference Committee Reports

Delegate Hatfield, from the committee of conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 4488, Creating a commission to complete a comprehensive study of the state's behavioral health system,
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the Senate amendments to the Com. Sub. for H. B. 4488 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That the House of Delegates agree to the Senate amendment on page two, section one, line seven.
That the House of Delegates agree to the Senate amendment on page two, section one, lines seven and eight.
That the House of Delegates agree to the Senate amendment on page three, section one, lines twenty-six and twenty-seven.
That both houses recede from their respective positions as to the Senate amendments to section three, inserting new language, and agree to the same as follows:
On page four, following line ten, by striking out section three and inserting in lieu thereof the following:
"§16-42-3. Comprehensive Behavioral Health Commission.
(a) There is created within the Department of Health and Human Resources the Comprehensive Behavioral Health Commission to study the current behavioral health system, including substance abuse and domestic violence when those conditions have an effect upon or are impacted by the system.
(b) The commission consists of a representative of the circuit and family court system, as appointed by the Chief Justice of the West Virginia Supreme Court of Appeals, a representative of the Commissioner of the Division of Corrections, the Commissioner of the Bureau of Senior Services, the Secretary of the Department of Health and Human Resources, the Commissioner of the Bureau for Behavioral Health and Health Facilities, the Commissioner of the Bureau for Children and Families; the Executive Director of the West Virginia Chapter of the National Alliance on Mental Illness; the Chancellor for Higher Education and one physician with a speciality in psychiatry appointed by the Governor from a list provided by the West Virginia Medical Association. Each ex officio member may appoint a designee. One member of the House of Delegates, appointed by the Speaker and one member of the Senate, appointed by the President, serve as non-voting members. The Governor shall appoint a chairperson.
(c) The commission shall meet at times and places as it finds necessary and shall be staffed by the Bureau for Behavioral Health and Health Facilities and the Health Care Authority.
(d) An advisory board shall be created to serve in a consulting role to the commission members. The advisory board members shall be appointed by the Governor as follows:
(1) One member from a list provided by the West Virginia Chapter of the National Association of Social Workers;
(2) One member from a list provided by the West Virginia Hospital Association;
(3) One member who is a psychologist from a list provided by the West Virginia Psychological Association;
(4) One citizen member from a list of two nominees from each medical school;
(5) One member from a list of five nominees provided by the Primary Care Association;
(6) One member from a list provided by the West Virginia Behavioral Healthcare Providers Association;
(7) One member from a list provided by the West Virginia Child Care Association; and
(8) One member from a list provided by the Council of Churches.
(e) Each member of the Commission and advisory board is entitled to receive compensation and expense reimbursement for attending official meetings or engaging in official duties not to exceed the amount paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law. A commission member may not receive compensation for travel days that are not on the same day as the official meeting or official duties."
And,
That both houses recede from their positions as to the title of the bill and agree to the same as follows:
Com. Sub. for H. B. 4488 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-42-1, §16-42-2, §16-42-3, §16-42-4, §16-42-5, §16-42-6 and §16-42-7, all relating to a study of the behavioral health system of West Virginia; creating a commission of public and private citizens; creating an advisory board; setting forth findings and the purpose; setting forth the requirements of the study; requiring the commission to submit periodic and final reports; requiring the department of health and human resources to submit periodic reports; providing for compensation of commission and advisory board members; and including a date certain for the conclusion of the commission's work."
Respectfully submitted,
Barbara Hatfield,
Jon Blair Hunter,

Charlene Marshall,
William R. Sharpe,

Bob Ashley,
Jesse O. Gaels,

Conferees on the part of
Conferees on the part of

the House of Delegates.
the Senate.

On motion of Delegate Hatfield, the report of the Committee of Conference was adopted.

The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 624), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4488) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Perdue, from the committee of conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 4021, Relating to a pilot program authorizing participating health care clinics and private medical practitioners to provide primary and preventive health services for a prepaid fee,
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the House of Delegates amendments to the Senate amendment to Com. Sub. for H. B. 4021 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 House of Delegates amendments to the Senate amendment, striking out everything after the enacting clause and inserting new language, and agree to the same as follows:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §5-16B-6d; that §9-2-9 of said code be amended and reenacted; that said code be amended by adding thereto a new article, designated §16-2J-1, §16-2J-2, §16-2J-3, §16-2J-4, §16- 2J-5, §16-2J-6, §16-2J-7, §16-2J-8 and §16-2J-9; that said code be amended by adding thereto a new article, designated §16-29G-1, §16-29G-2, §16-29G-3, §16-29G-4 and §16-29G-5; and that said code be amended by adding thereto a new article, designated §33-15D-1, §33-15D-2, §33-15D-3, §33- 15D-4, §33-15D-5, §33-15D-6, §33-15D-7, §33-15D-8, §33-15D-9, §33-15D-10 and §33-15D-11, 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 16B. WEST VIRGINIA CHILDREN'S HEALTH INSURANCE PROGRAM.
§5-16B-6d. Modified benefit plan implementation.
(a) Upon approval by the Centers for Medicare and Medicaid Services, the board shall implement a program for uninsured children of families with income between two hundred and three hundred percent of the federal poverty level.
(b) The benefit plans offered pursuant to this section shall include services determined to be appropriate for children, but may vary from those currently offered by the board.
(c) The board shall structure the benefit plans for this expansion to include premiums, co- insurance or co-pays and deductibles. The board shall develop the cost sharing features in such a manner as to keep the program fiscally stable without creating a barrier to enrollment. Such features may include different cost-sharing features within this group based upon the percentage of the federal poverty level.
(d) Children covered by an employer sponsored health insurance plan during the previous twelve month period are not eligible for coverage under this expansion, unless that coverage is lost due to the parent's loss of employment.
(e) Provider reimbursement schedules shall be no lower than the reimbursement provided for the same services under the plans offered in article sixteen of this chapter.
(f) All provisions of this article are applicable to this expansion unless expressly addressed in this section.
(g) Nothing in this section may be construed to require any appropriation of state general revenue funds for the payment of any benefit provided pursuant to this section, except for the state appropriation used to match the federal financial participation funds. In the event that federal funds are no longer authorized for participation by individuals eligible at income levels above two hundred percent, the board shall take immediate steps to terminate the expansion provided for in this section and notify all enrollees of such termination. In the event federal appropriations decrease for the programs created pursuant to Title XXI of the Social Security Act of 1997, the board is directed to make those decreases in this expansion program before making changes to the programs created for those children whose family income is less than two hundred percent of the federal poverty level. (h) The board is directed to report no less than quarterly to the Legislative Oversight Commission on Health and Human Resources Accountability on the development, implementation and progress of the expansion authorized in this section.
CHAPTER 9. HUMAN SERVICES.

ARTICLE 2. COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND

RESPONSIBILITIES GENERALLY.

§9-2-9. Secretary to develop medicaid monitoring and case management.
(a) On or before the first day of January, one thousand nine hundred ninety-four the, The secretary of the department of health and human resources shall:
(1) Develop a managed care system to monitor the services provided by the medicaid program to individual clients;
(2) Develop an independent referral service, including the review of individual cases for abuses of the program; and
(3) Develop a schedule for implementation of the managed care and independent referral system. The managed care system shall focus on, but not be limited to, the behavioral health and mental health services.
(b) In addition thereto, and in accordance with applicable federal medicaid laws, the secretary shall prepare recommendations, to be submitted to the joint committee on government and finance. on or before the first day of January, one thousand nine hundred ninety-four. In developing recommendations the secretary shall consider as options the following:
(1) Review of medicaid services which are optional under federal medicaid law and identification of services to be retained, reduced or eliminated;
(2) The elimination, reduction or phase-out of: (I) Services which are not generally available to West Virginia citizens not covered under the state's medicaid program; or (ii) services which are not generally covered under group policies of insurance made available to employees of employers within the state;
(3) The elimination or reduction of services, or reduction of provider reimbursement rates, for identified services of marginal utility;
(4) Higher reimbursement rates for primary and preventive care;
(5) Changes in fee structure, which may include a system of prospective payments, and may include establishment of global fees for identified services or diagnoses including maternity care;
(6) Utilization caps for certain health care procedures;
(7) Restriction of coverage for cosmetic procedures;
(8) Identification of excessive use of certain health care procedures by individuals and a policy to restrict excessive use;
(9) Identification of services which reduce the need for more costly options for necessary care and retention or expansion of those programs;
(10) Identification of services for which preauthorization should be is a requirement for medicaid reimbursement;
(11) Recommendations relating to the development of a demonstration project on long-term care, which demonstration project may be limited to patients with Alzheimer's disease;
(12) A policy concerning the department's procedures for compliance, monitoring and inspection; and
(13) Such other options as may be developed.
(c) The secretary shall utilize in-state health care facilities for inpatient treatment when such facilities are available. Prior authorization, consistent with applicable federal law, shall be required for out-of-state inpatient treatment.
(d) The secretary shall report to the joint committee on government and finance on the development and implementation of medicaid programs that provide incentives to working persons. The secretary shall consider: Subsidies for low income working persons; individual or small employer buy-ins to the state medicaid fund; prospective payment systems for primary care physicians in undeserved areas; and a system to improve monitoring of collections, expenditures, service delivery and utilization.
(e) The secretary shall report quarterly to the joint committee on government and finance regarding provider and facility compliance with federal and state medicaid laws, including, but not limited to, the following: The number of inspections conducted during the previous quarter; description of programs, services and facilities reviewed; findings; and recommendations for corrections.
(f) The secretary shall, upon federal certification of the claims management system, ensure that the claims management system processing medicaid claims provides:
(1) Detailed quarterly financial reports to the Legislative Oversight Commission on Health and Human Resources Accountability;
(2) A management reporting system no later than the first day of July, two thousand six; and
(3) Specific utilization data by provider, member eligibility groups and service no later than the first day of October, two thousand six.
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 2J. PREVENTIVE CARE PILOT PROGRAM.
§16-2J-1. Legislative findings and statement of purpose.
(a) The Legislature finds that a program that would allow health clinics and private medical practitioners to provide primary and preventive health services for a prepaid fee would enable more West Virginians to gain access to affordable health care and to establish a medical home for purposes of receiving primary and preventative healthcare services. By establishing a pilot project for clinic- based health care, the Legislature intends to enable state health and insurance officials to study this method of delivering health services, to encourage all West Virginians to establish a medical home and to determine the success, continued need and feasibility of expanding such a program and allowing similar programs to operate on a statewide basis.
(b) In carrying out this pilot program, it is the intent of the Legislature to eliminate legal, statutory and regulatory barriers to the establishment of pilot programs providing preventive and primary care services for a prepaid fee; to encourage residents of this State to establish and use a medical home; to expand preventive and primary care services for the uninsured; and to exempt health providers participating in the pilot program from regulation as an insurer, the operation of insurance laws of the state and all other laws inconsistent with the purposes of this article.
§16-2J-2. Definitions.
For the purposes of this article, the following definitions apply:
(1) 'Dependent'
has the same meaning set forth in subsection (d), section one-a, article sixteen, chapter thirty-three of this code;
(2) 'Family' means a subscriber and his or her dependents;
(3) 'Medical home' means a team approach to providing health care and care management. Whether involving a primary care provider, specialist or sub-specialist, care management includes the development of a plan of care, the determination of the outcomes desired, facilitation and navigation of the health care system, provision of follow-up and support for achieving the identified outcomes. The medical home maintains a centralized, comprehensive record of all health related services to provide continuity of care.
(4) 'Participating provider' means a provider under this article that has been granted a license under this article to operate as part of the pilot program;
(5) 'Primary care' means basic or general health care which emphasizes the point when the patient first seeks assistance from the medical care system and the care of the simpler and more common illnesses;
(6) 'Provider' has the same meaning as 'ambulatory health care facility' set forth in subsection (b), section two, article two-d of this chapter or 'private office practice' as set forth in subsection (a)(1), section four of said article;
(7) 'Qualifying event' means loss of coverage due to: (I) emancipation and resultant loss of coverage under a parent or guardian's plan; (ii) divorce and loss of coverage under the former spouse's plan; (iii) termination of employment and resultant loss of coverage under an employer group plan: Provided, That any rights of coverage under a COBRA continuation plan as that term is defined in section three-m, article sixteen, chapter thirty-three of this code, shall not be considered coverage under an employer group health plan; (iv) involuntary termination of coverage under a group health benefit plan except for termination due to nonpayment of premiums or fraud by the insured; or (v) exhaustion of COBRA benefits.
(8) 'Subscriber' means any individual who subscribes to a prepaid program approved and operated in accordance with the provisions of this article, including an employee of any employer that has purchased a group enrollment on behalf of its employees;
§16-2J-3. Authorization of preventive care pilot program; number of participants and sites; Health Care Authority considerations in selection of participating providers; funding.

(a) The Health Care Authority shall, in consultation with the Insurance Commissioner, develop and implement during the fiscal year beginning the first day of July, two thousand six, a pilot program that permits no more than eight providers to market and sell prepaid memberships entitling subscribers to obtain preventive and primary health care from the participating providers. Participating providers shall not be allowed to offer their qualifying services at more than three separate sites. The pilot program will be three years in length.
(b) Subject to the provisions of this article, the Health Care Authority is vested with discretion to select providers using diversity in practice organization, geographical diversity and other criteria it deems appropriate. The Health Care Authority also shall give consideration to providers located in rural areas or serving a high percentage or large numbers of uninsured.
(c) In furtherance of the objectives of this article, the Health Care Authority is authorized to accept any and all gifts, grants and matching funds whether in the form of money or services: Provided, That no gifts, grants and matching funds shall be provided to the Health Care Authority by the State of West Virginia to further the objectives of this article.
§16-2J-4. License for preventive care pilot program.
(a) No provider may participate in the pilot program without first obtaining a preventive care pilot program license from the Health Care Authority.
(b) The Health Care Authority shall determine the eligibility of providers to obtain licenses on the basis of applications filed by providers on forms developed by the Health Care Authority.
(c) Upon approval of the application, the participating provider shall be granted a license to market and sell prepaid health services under such terms as may be established in guidelines developed by the Health Care Authority and the Insurance Commissioner.
§16-2J-5. Insurance Commissioner approval of fees, marketing materials and forms and certification of financial condition; statement of services.

(a) The Insurance Commissioner shall develop guidelines for all forms, marketing materials and fees proposed by program applicants and participating providers under the same criteria generally applicable to accident and sickness insurance policies.
(b) All fees, marketing materials and forms proposed to be used by any program applicant or participating provider are subject to prior approval of the Insurance Commissioner, which the Insurance Commissioner shall communicate to the Health Care Authority. Fees may not be excessive, inadequate, or unfairly discriminatory.
(c) The Insurance Commissioner must certify whether a program applicant or, upon the request of the Health Care Authority, an already participating provider is in a sound financial condition and capable of operating in a manner that is not hazardous to its prospective subscribers or the people of West Virginia.
(d) Every subscriber is entitled to evidence of program membership that shall contain a clear, concise and complete statement of the services provided by the participating provider and the benefits, if any, to which the subscriber is entitled; any exclusions or limitations on the service, kind of service, benefits, or kind of benefits, to be provided, including any copayments; and where and in what manner information is available as to how a service may be obtained. (e) Fees paid to participating providers are not subject to premium taxes and surcharges imposed on insurance companies.
(f) Notwithstanding the provisions of chapter thirty-three of this code to the contrary, participation by providers in the preventive care clinic-based pilot program created and authorized pursuant to this article is not to be considered as providing insurance or as offering insurance services. Such providers and services are specifically excluded from the definitions of 'insurer' and 'insurance' as defined in article one, chapter thirty-three of this code, and are not subject to regulation by the Insurance Commissioner except to the extent set forth in this article, nor are participating providers unauthorized insurers pursuant to section four, article forty-four of chapter thirty-three of this code.
§16-2J-6. Rule-making authority.
The Health Care Authority and the Insurance Commissioner shall promulgate joint rules as necessary to implement the provisions of this article, including emergency rules, promulgated pursuant to, chapter twenty-nine-a of this code.
§16-2J-7. Participating provider plan requirements: primary care services; prior coverage restrictions; notice of discontinuance or reduction of benefits.

In addition to the provisions of this article and any guidelines established by the Health Care Authority and Insurance Commissioner, the plans offered pursuant to this article shall be subject to the following:
(1) Each participating provider and site must offer a minimum set of preventive and primary care services as established by the Health Care Authority.
(2) No participating provider may offer: (I) an individual plan to any individual who currently has a health benefit plan or who was covered by a health benefit plan within the preceding twelve months unless said coverage was lost due to a qualifying event; (ii) a family plan to any family that includes an adult to be covered who currently has a health benefit plan or who was covered by a health benefit plan within the preceding twelve months unless said coverage was lost due to a qualifying event; or (iii) an employee group plan to any employer that currently has a group health benefit plan or had a group health benefit plan covering its employees within the preceding twelve months.
(3) The Health Care Authority and the Insurance Commissioner may, by legislative rule, permit participation by an employer with a comprehensive high deductible plan if such employer is able to demonstrate that such participation will not negatively impact the coverage currently offered by such employer.
(4) A participating provider must provide subscribers and, where applicable, subscribers' employers with a minimum of thirty days' notice of discontinuance or reduction of subscriber benefits.
§16-2J-8. Guidelines for evaluation of the pilot program; report to Legislative Oversight Commission on Health and Human Resources Accountability.

(a) The Health Care Authority shall establish by guidelines criteria to evaluate the pilot program and may require participating providers to submit such data and other information related to the pilot program as may be required by the Health Care Authority: Provided, That all personal income tax returns filed pursuant to this article shall be treated as confidential pursuant to the provisions of section five-d, article ten, chapter 11 of this code. For purposes of this article, this information shall be exempt from disclosure under the freedom of information act in article one, chapter twenty-nine-b of this code.
(b) No later than the first day of December, two-thousand seven and annually thereafter during the operation of the pilot program, the Health Care Authority must submit a report to the Legislative Oversight Commission of Health and Human Resources Accountability as established in article twenty-nine-e of this chapter on progress made by the pilot project including suggested legislation, necessary changes to the pilot program and suggested expansion of the pilot program.
§16-2J-9. Grounds for refusal to renew; revocation and suspension of pilot program license; penalties; termination of suspension, reissuance and renewal of license.

(a) The Health Care Authority may after notice and hearing refuse to renew, or may revoke or suspend the license of a participating provider, in addition to other grounds therefor in this article, if the participating provider:
(1) Violates any provision of this article; (2) Fails to comply with any lawful rule or order of the Health Care Authority; (3) Is operating in an illegal, improper or unjust manner; (4) Is found by the Insurance Commissioner to be in an unsound condition or in such condition as to render its further operation in West Virginia hazardous to its subscribers or to the people of West Virginia;(5) Compels subscribers under its contract to accept less service than due them or to bring suit against it to secure full service when it has no substantial defense; (6) Refuses to be examined or to produce its accounts, records and files for examination by the insurance commissioner when requested to do so pursuant to section five of this article; (7) Fails to pay any final judgment rendered against it in West Virginia within thirty days after the judgment became final or time for appeal expired, whichever is later; (8) Fails to pay when due to the state of West Virginia any taxes, fees, charges or penalties.
(b) In addition to or in lieu of refusing to renew, revoking or suspending the license of a participating provider in any case, the Health Care Authority may, by order, require the participating provider to pay to the state of West Virginia a penalty in a sum not exceeding five thousand dollars for each violation. Upon the failure of the provider to pay such penalty within thirty days after notice thereof, the Health Care Authority shall revoke or suspend the license of such participating provider. (c) When any license has been revoked or suspended or renewal thereof refused, the Health Care Authority may reissue, terminate the suspension of or renew such license when it is determined that the conditions causing such revocation, suspension or refusal to renew have ceased to exist and are unlikely to recur.
ARTICLE 29G. Interagency Health Council.
§16-29G-1. Purpose and scope.

The purpose of this article is to establish the standards and criteria for evaluating the unmet health care needs within this state, to evaluate methods to meet those needs and to set forth recommendations related to services provided and services needed, access issues, and related financing proposals.
§16-29G-2. Legislative findings and goals.
(a) The Legislature finds that the general welfare and well-being of the citizens of the state is greatly affected by their health status. The Legislature further finds that many of the citizens have unmet health care needs, which impairs their ability to lead full and productive lives. The Legislature further finds that the current health care system is sufficiently funded to meet those needs, but is not currently structured to adequately and uniformly meet the state-wide needs of the population. The Legislature further finds that reforms to the health care delivery system, including the reimbursement structure, may address the inequities in access, the inequities in funding and result in a modified system that meets the needs of the state and its citizens.
(b) In consideration of the need for health care reform, the Legislature adopts the following goals:
(1) Access. West Virginia policy will reflect that access to health care is a public good. West Virginia shall develop strategies for having an integrated health care system that will attempt to provide all West Virginians, regardless of their age, employment, economic status, or their town of residency, access to affordable, high quality health care that is financed in a fair and equitable manner.
(A) In order to develop an integrated health care delivery system, the state shall consider promoting local or regional collaborative efforts among provider groups that are designed to use available resources in a more equitable and efficient fashion.
(B) To improve access to health care, the state shall consider methods to expand benefits over time after meeting appropriate benchmarks set forth in section four of this article. A process will be developed to define the benefits, taking into consideration scientific evidence, available funds and the values and priorities of West Virginia citizens.
(2) It is of critical importance that health care costs are brought under control. Likewise, it is essential that cost containment initiatives address both the financing of health care and the delivery and quality of health services offered in West Virginia. To ensure financial sustainability of any proposed plan, the state is committed to the extent possible to slow the rate of growth of health care costs by the year two thousand ten. Strategies for containing costs may include consideration of:
(A) A budgeting process for hospitals and other health care providers as determined by the council established pursuant to this article;
(B) Increased consumer access to health care price and quality information;
(C) Promotion of self-care and healthy lifestyles;
(D) Enhanced prescription drug initiatives;
(E) Funding of chronic care initiatives;
(F) Investments in health information technology;
(G) Alignment of health care professional reimbursement with best practices and outcomes rather than utilization; and
(H) Development of a long-term strategy for integrating the health care delivery system as well as a strategy for integrating health care policy, planning, and regulation within government.
(3) Quality. West Virginia's health delivery system should model continuous improvement of health care quality and safety. The tools and resources necessary to make informed use of all health care services should be available to all West Virginians. The state should look to incentives to health care professionals and facilities to provide the best and most appropriate care to West Virginians. The state's role in improving quality and safety should be through coordination of health care policy, planning and regulation.
(4) Equitable Financing. The health care system in West Virginia should be funded fairly and equitably. All residents should have access to health care and all participating residents should contribute to its cost.
(c) No private cause of action, either express or implied, is created by or otherwise arises from the enactment, provisions or implementation of this article.
§16-29G-3. Interagency council created; duties.

(a) There is hereby created the 'Interagency Health Council' consisting of the chairperson of the Health Care Authority, the Insurance Commissioner, the secretary of the Department for Health and Human Resources, the director of the Public Employees Insurance Agency, and the director of the Children's Health Insurance Program, and such other government agency persons as may be deemed necessary by the council. Each ex-officio member of the council may appoint a designee. The council shall be chaired jointly by the chairperson of the Health Care Authority and the Insurance Commissioner until the Governor appoints another chairperson or co-chairpersons. The council shall:
(1) Identify and report emerging trends and behaviors among various participants in the health care system;
(2) Develop incentives to contain costs and methods to assess the effectiveness of cost-containment efforts;
(3) Develop quality of care initiatives;
(4) Direct the studies required to accomplish the goals of this section;
(5) Assess the feasibility of a publicly financed reinsurance program for all health plans doing business in West Virginia;
(6) Recommend alternative reimbursement mechanisms for health services that encourage cost effectiveness, improve the quality of care, increase efficiency, reward primary care practices that prevent chronic illnesses, avoid preventable hospitalizations, and reduce long-term costs to the system;
(7) Assess whether any federal programs including, but not limited to, Medicaid and the Children's Health Insurance Program could be used to expand services if it is determined to be the most cost effective means available;
(8) Receive reports and analysis from the West Virginia Health Information Network established in article twenty nine-g, chapter sixteen of this code and ensure that this information is integrated into health planning;
(9) Collaborate with any entity charged with responsibility for the development of a behavioral health plan to ensure a fully integrated system including both physical and mental health;
(10) Receive input and make recommendations, generally, to the Senate and House committees on Health and Finance, and the Joint Committee on Government and Finance regarding the long-term development of policies and programs designed to ensure that West Virginia is moving towards an integrated system of care that provides all citizens of West Virginia access to affordable, high quality health care that is financed in a fair and equitable manner.
(b) The council shall establish committees and subcommittees to assist in their work.
(c) The council shall propose demonstration or pilot projects designed to contain health care costs and improve the delivery and quality of health care including, but not limited to, a demonstration project to establish a regional system with providers and hospitals working cooperatively to provide and coordinate health care for all residents of the region.
(d) The council shall establish an advisory committee to study a payment and regulatory system that provides incentives to improve patient safety and quality while controlling the rate of growth of health care expenditures below current projected growth rates. The study shall include consideration of such items as hospital services, budgeting processes, efficient and economic operations, performance standards, utilization and inflation benchmarks, estimated cost shifts, uncompensated care, government payors, and the impact of the state health plan. The council shall review the work of the advisory committee and report its findings and recommendations to the Legislature prior to the first day of January, two thousand eight.
(e) The council shall report to the Joint Committee on Government and Finance on an annual basis the estimated cost shift to the private sector created by the federal and state government payors. Government payors include, but are not limited to, the Bureau for Medical Services, the Children's Health Insurance Program, Workers' Compensation and the Public Employees Insurance Agency. (f) The council may request analysis from appropriate state agencies as needed. The agencies shall report this information at such times as determined necessary to fulfill the council's oversight responsibilities.
§16-29G-4. Benchmarks and schedule.
(a) On or before the first day of January, two-thousand seven and each year thereafter, the council shall recommend to the Legislative Commission on Health and Human Resources Accountability those strategies that could move the state toward the goals established in this article.
(b) Prior to making recommendations the council shall find that the appropriate benchmarks for the strategy being recommended have been met:
(1) Financing necessary to support the recommendations is cost-neutral or less expensive with respect to the health care system and will not require more money than is projected to be spent in the existing system by West Virginia employers and individuals through taxes, premiums, and out-of-pocket expenses;
(2) Administrative bureaucracy and costs will decrease as a percentage of total health care spending;
(3) Quality of care will be improved; and
(4) The future costs of health care will be less than the current growth rate, or the resources will be allocated in a manner that is more efficient and cost-effective, based on progress in implementing the following cost containment measures:
(A) Payment system to hospitals;
(B) Increased consumer access to health care price and quality information;
(C) Promotion of self-care and healthy lifestyles;
(D) Enhanced prescription drug initiatives developed in cooperation with the pharmaceutical advocate;
(E) Funding of chronic care initiatives;
(F) Investments in health information technology;
(G) Alignment of health care professional reimbursement with best practices and outcomes rather than utilization; and
(H) The creation of additional federally qualified health centers (FQHC) or FQHC look-alikes if data supports this effort and the federal government so approves.
(c) Recommendations to the Legislature shall include an assessment of the cost savings or the reallocation of resources, increased access, improvements in quality and delivery, administrative simplification, fairness and equity in financing, continuity of coverage, and financial sustainability.
§16-29G-5. Public notice and hearings.
(a) In recognition of the importance of public engagement, the council shall have four public hearings prior to the first day of January, two thousand seven to solicit input from citizens, employers, hospitals, health care professionals, insurers, other stakeholders, and interested parties about health care.
(b) The council shall report no less than quarterly to the Legislative Commission on Health and Human Resource Accountability and the Joint Committee on Government and Finance on the their activities and recommendations in health care reform to date.
CHAPTER 33. INSURANCE.

ARTICLE 15D. INDIVIDUAL LIMITED HEALTH BENEFITS PLANS.
§33-15D-1. Declaration of legislative intent
.
The Legislature recognizes that health insurance is priced beyond the reach of many citizens who could benefit from a basic health plan. One of the ways affordable premiums can be obtained is by some combination of limiting benefits and increasing copays or deductibles. In order to provide greater access to such affordable plans, the Legislature has determined that authorization of the sale of insurance policies with limited benefits that would include physician, inpatient and outpatient care, with an emphasis on preventive and primary care, will serve to bring insurance coverage to many of those West Virginians without any insurance coverage. It is, therefore, the intent of the Legislature to introduce flexibility in the design of health insurance plans to allow insurers to offer basic benefits, including preventive and primary care services, at affordable prices. This article may be known as the Affordable Health Insurance Act.
§33-15D-2. Individual limited health benefits plans; approval by commissioner; eligibility of individuals.

(a) As used in this article, 'individual plan' means any plan approved by the commissioner as an 'individual limited health benefits plan' in accordance with this article. Each such plan constitutes a 'particular type of accident and sickness insurance coverage' for the purposes of subsection (a), section two-e, article fifteen of this chapter.
(b) Notwithstanding any other provision of this code, including provisions mandating the inclusion of certain benefits in individual health insurance plans, upon filing with and approval by the commissioner as an individual plan, any insurer, including a health maintenance organization or health service corporation, may offer the plan and rates associated with the plan to individuals subject to the conditions of this article.
(c) Any plan approved as an individual plan may, notwithstanding any other provisions of this chapter and subject to any other limitations on eligibility in this article or that may be contained in rules proposed by the commissioner for approval of the Legislature in accordance with article three, chapter twenty-nine-a of this code, only be offered to an adult between the ages of eighteen and sixty- four, inclusive, who:
(1) Has not had a health benefit plan covering him or her for at least the prior twelve consecutive months: Provided, That such a plan may not be offered to an employee of an employer that offers a health benefits plan to its employees unless that employee does not qualify for coverage under such employer plan; or
(2) Has lost coverage due to a qualifying event. A qualifying event shall include loss of coverage due to: (I) Emancipation and resultant loss of coverage under a parent's or guardian's plan; (ii) divorce and loss of coverage under the former spouse's plan; (iii) termination of employment and resultant loss of coverage under an employer group plan except for loss of employment for gross misconduct; or (iv) involuntary termination of coverage under a group health benefit plan except for termination due to nonpayment of premiums or fraud by the insured.
(d) Every individual plan offered pursuant to this article may limit eligibility on the basis of health status and an individual who has been treated for a health condition in the prior twelve months may have that condition excluded from coverage for the first twelve months of the policy term.
§33-15D-3. Applicability of certain provisions; commissioner's authority to forbear from applying certain provisions.

(a) Only the following provisions of article fifteen of this chapter apply to insurers offering individual plans pursuant to this article: Sections two-a, two-b, two-d, two-e, three, four, four-e, four- g, five, six, seven, eight, nine, eighteen and nineteen: Provided, That the provisions of subsection (a), section two-b, article fifteen of this chapter do not apply to such plans if the Secretary of the United States Department of Health and Human Services finds that the state is implementing an acceptable alternative mechanism in accordance with the provisions of 42 U. S. C. §300gg-44.
(b) Notwithstanding any other provision of this code, the provisions of article twenty-eight of this chapter and legislative rules regulating individual accident and sickness policies, including the rule contained in series 12, title 114 of the West Virginia Code of State Rules, do not apply to individual plans issued pursuant to this article unless and to the extent specifically incorporated in rules promulgated pursuant to the authority conferred by section seven of this article.
(c) The commissioner may forbear from applying any other statutory or regulatory requirements to an insurer offering an individual plan approved pursuant to this article, including any requirements in articles twenty-four and twenty-five-a, provided that the commissioner first determines that such forbearance serves the principles set forth in section one of this article.
§33-15D-4. Underwriting standards for individual plans.
Insurers shall underwrite individual plans in a comparable manner as they underwrite other individual health insurance plans governed by this chapter.
§33-15D-5. Reimbursement rates for individual plans.
Insurers shall reimburse providers pursuant to reimbursement rates previously negotiated with the providers.
§33-15D-6. Filing and approval of rates.
(a) Premium rate charges for any individual plans shall:
(1) Be reasonable in relation to the benefits available under the policy; and
(2) Notwithstanding the provisions of section one, article sixteen-b of this chapter, be filed with the commissioner for a waiting period of thirty days before the charges become effective. At the expiration of thirty days the premium rate charges filed are deemed approved unless prior thereto the charges have been affirmatively approved or disapproved by the commissioner.
(b) The commissioner shall disapprove premium rates that are not in compliance with the requirements of any rule promulgated pursuant to section seven of this article. The commissioner shall send written notice of the disapproval to the insurer. The commissioner may approve the premium rates before the thirty-day period expires by giving written notice of approval.
§33-15D-7. Certification of creditable coverage. An insurer offering individual plans pursuant to the provisions of this article shall provide certification of creditable coverage in the same manner as provided in section three-m, article sixteen of this chapter.
§33-15D-8. Emergency rules authorized.
The commissioner shall promulgate emergency and legislative rules under the provisions of article three, chapter twenty-nine-a of this code on or before the first day of September, two thousand six, to prescribe requirements regarding ratemaking, which may include rules establishing loss ratio standards for individual plans; to place further limitations on the eligibility of individuals; to determine what medical treatments, procedures and related health services benefits must be included in such individual plans; and to provide for any other matters deemed necessary to further the intent of this article. In determining what medical treatments, procedures and related health services benefits must be included in such plans, the commissioner shall consider their effectiveness in improving the health status of individuals, their impact on maintaining and improving health and on reducing the unnecessary consumption of health care services and their impact on the affordability of health care coverage.
§33-15D-9. Disclaimer.
Each individual plan issued pursuant to this article shall include the following disclaimer printed in boldface type and located in a prominent portion of each policy, subscriber contract and certificate of coverage: 'THIS LIMITED INDIVIDUAL HEALTH BENEFITS PLAN DOES NOT PROVIDE COMPREHENSIVE MEDICAL COVERAGE. IT IS A BASIC OR LIMITED BENEFITS POLICY AND CONTAINS SPECIFIC DOLLAR LIMITS THAT WILL BE PAID FOR MEDICAL SERVICES WHICH MAY NOT BE EXCEEDED. IF THE COST OF SERVICES EXCEEDS THOSE LIMITS, THE BENEFICIARY AND NOT THE INSURER IS RESPONSIBLE FOR PAYMENT OF THE EXCESS AMOUNTS'.
§33-15D-10. Exemption from premium taxes.
Products authorized under this article are exempt from the premium taxes and surcharges assessed under article three of this chapter.
§33-15D-11. Severability; controlling provisions.
(a) If any provision of this act or the application thereof to any person or circumstance is for any reason held to be invalid, the remainder of the act and application of such provision to other persons or circumstances shall not be affected thereby.
(b) To the extent that provisions of this article differ from those contained elsewhere in this chapter, the provisions of this article control."
And,
That both houses recede from their positions as to the title of the bill and agree to the same as follows:
Com. Sub. for H. B. 4021 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-16B-6d; to amend and reenact §9-2-9 of said code; to amend said code by adding thereto a new article, designated §16-2J-1, §16-2J-2, §16-2J-3, §16-2J- 4, §16-2J-5, §16-2J-6, §16-2J-7, §16-2J-8 and §16-2J-9; to amend said code by adding thereto a new article, designated §16-29G-1, §16-29G-2, §16-29G-3, §16-29G-4, and §16-29G-5; and to amend said code by adding thereto a new article, designated §33-15D-1, §33-15D-2, §33-15D-3, §33-15D-4, §33-15D-5, §33-15D-6, §33-15D-7, §33-15D-8, §33-15D-9, §33-15D-10 and §33-15D-11, all relating to health care programs, authorizing an expansion of the children's health insurance program; providing criteria for the expansion; providing limitations based on funding availability; providing for a Medicaid management reporting system; providing for quarterly financial reports from the Medicaid claims management system to the Legislative Oversight Commission on Health and Human Resources Accountability; requiring specific utilization data from the Medicaid claims management system; creating a pilot program authorizing participating health care clinics and private medical practitioners to provide primary and preventive health services for a prepaid fee; declaring legislative intent; authorizing approval of participants based on guidelines by the Health Care Authority and the Insurance Commissioner; requiring licensure by the Health Care Authority; authorizing the Insurance Commissioner to approve fees, marketing materials and forms and to certify financial soundness; authorizing study of the program by the Health Care Authority; providing for legislative rules; mandating a Health Care Authority report to the Legislative Oversight Commission on Health and Human Resources Accountability; setting grounds for revocation, suspension and failure to renew licenses; setting forth goals for health care reform; providing for an Interagency Health Council; providing for membership on the council; requiring council develop appropriate incentives, initiatives and assessments; providing for council to evaluate and recommend alternative reimbursement mechanisms; providing for council to establish an advisory committee; providing for council to measure and report on specific benchmarks; providing for council to make recommendations to the Legislative Oversight Commission on Health and Human Resources Accountability regarding the strategies to be used to meet the state's goals; requiring council to hold public hearings for the purpose of receiving relevant input; authorizing individual limited health benefits insurance plans; including preventive and primary care services; requiring approval of plans by Insurance Commissioner; providing eligibility requirements; setting forth statutory or regulatory provisions that do not apply to such plans; providing underwriting standards; continuing use of existing reimbursement rates; establishing criteria for filing and approval of premium rates; requiring certification of creditable coverage; authorizing Insurance Commissioner to promulgate emergency rules; mandating disclaimer on policies; exempting plans from premium taxes; providing for severability; providing rule of construction; and creating penalties."
Respectfully submitted,


Don Perdue,
Roman W. Prezioso,

Douglas K. Stalnaker,
Joseph M. Minard,

Corey L. Palumbo,
Larry J. Edgell,

John Pino,
Evan H. Jenkins,

Mike Hall,
Don Caruth,

Conferees on the part
Conferees on the part

of the House of Delegates.
of the Senate.

On motion of Delegate Perdue, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 625), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4021) passed.
Delegate Staton moved that the bill take effect from it passage.
On this question, the yeas and nays were taken (Roll No. 626), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4021) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Miscellaneous Business

Delegate Rick Thompson asked and obtained unanimous consent that the remarks of Delegate Perdue regarding Com. Sub. for H. B. 4021 be printed in the Appendix to the Journal.
On motion of Delegate Staton, H. B. 4353, 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, still being in possession of the Clerk, was taken up for further consideration.
On motion of Delegate Staton, the House of Delegates then reconsidered the vote whereby it passed the bill in earlier proceedings.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 627), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Pino.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4353) passed.
On motion of Delegate Staton, the title of the bill was amended to read as follows:
H. B. 4353 - "A Bill to amend and reenact §17C-5-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §17C-5A-1 of said Code, all relating to criminal and administrative procedures related to persons charged with driving under the influence of alcohol, controlled substance or drugs; providing for enhanced criminal penalties for second and subsequent offense of driving under the influence of alcohol, controlled substance or drugs with a minor under the age of sixteen in the vehicle; relating to initiation of administrative procedures; 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; and authorizing notice to Division of Motor Vehicles within forty-eight hours to be sent of complaint issuing."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
S. C. R. 3 - "Requesting the Division of Highways name the bridge on Route 16 at Corrine, Wyoming County, the 'Paul and Roger Harsanyi Memorial Bridge'."
Whereas, Brothers Paul and Roger Harsanyi were born in Wyoming County and lived in Corrine, Wyoming County, for a part of their childhood; and
Whereas, Paul Harsanyi served his nation with pride and distinction in the United States Air Force. Sadly, while home on leave from his military service, Paul Harsanyi was killed in an automobile accident on the bridge at Corrine, Wyoming County, in February, 1963; and
Whereas, Roger Harsanyi served his nation with pride and distinction in the United States Army. Sadly, while serving in Vietnam, Roger Harsanyi was killed in action on April 20, 1966; and
Whereas, It is fitting that a lasting tribute be made in honor of these outstanding young men; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name the bridge on Route 16 at Corrine, Wyoming County, the "Paul and Roger Harsanyi Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "Paul and Roger Harsanyi 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 Secretary of the Department of Transportation.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
Com. Sub. for S. C. R. 7 - "Requesting the State of West Virginia and the federal government recognize the counties of Berkeley and Jefferson as part of the historic Shenandoah Valley."
Whereas, The Shenandoah Valley begins at the Potomac River in the State of West Virginia and continues southwestward to the city of Roanoke in the State of Virginia, and is flanked by the Blue Ridge Mountains to the east and by the Allegheny Mountains to the west; and
Whereas, The Potomac River forms the northern boundary for the counties of Berkeley and Jefferson in the State of West Virginia and the Blue Ridge Mountains are in eastern Jefferson County and the Allegheny Mountains are in western Berkeley County; and
Whereas, The State of West Virginia was originally part of the Commonwealth of Virginia until June 20, 1863; and
Whereas, The counties of Berkeley and Jefferson were not officially annexed by the State of West Virginia until 1872 upon the ruling of the United States Supreme Court; and
Whereas, In 1996, the United States Congress established the Shenandoah Valley Battlefields National Historic District and Commission in the State of Virginia and did not include the counties of Berkeley and Jefferson in the State of West Virginia; and
Whereas, Harpers Ferry, Jefferson County, is recognized as an historical area and the events which transpired there enriched our country's heritage; and
Whereas, The Shenandoah River flows northward and empties into the Potomac River at Harpers Ferry, Jefferson County; and
Whereas, The city of Martinsburg, Berkeley County, is recognized as an historical area and has many historical buildings, including the Roundhouse; and
Whereas, Boydville, Berkeley County, is a historic farm that needs to be nationally recognized; and
Whereas, The counties of Berkeley and Jefferson in the State of West Virginia should be eligible to become part of the Shenandoah Valley Battlefields National Historic District and Commission and be eligible for any other federal programs that are available for the Shenandoah Valley; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the State of West Virginia and the federal government recognize the counties of Berkeley and Jefferson as part of the historic Shenandoah Valley; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the President of the United States, West Virginia's congressional delegation, the Governor of the State of West Virginia, the county commissions of Berkeley and Jefferson counties and the mayors and city councils of Bolivar, Charles Town, Harpers Ferry, Hedgesville, Martinsburg, Ranson and Shepherdstown.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
S. C. R. 86 - "Requesting the State Building Commission officially name the hospital building at the John Manchin Sr. Health Care Center the 'Nick Fantasia Building'."
Whereas, Nicola "Nick" Fantasia, of Marion County, was born January 3, 1923, the son of the late Louis and Rose DiGiancomo Fantasia; and
Whereas, Nick Fantasia was an educator and principal in the Marion County school system for more than 40 years; and
Whereas, Nick Fantasia served the citizens of Marion County with pride and distinction as a member of the West Virginia House of Delegates for 22 years; and
Whereas, Nick Fantasia was the founder of a family-owned radio station and was a familiar voice of the "Italian Hour", which broadcast for nearly 60 years; and
Whereas, Nick Fantasia actively participated in numerous civic organizations and was a beloved member of his church; and
Whereas, Sadly, Nick Fantasia passed away September 12, 2005, leaving behind a host of family and friends; and
Whereas, It is fitting that a tribute be established to honor the memory and public service of Nick Fantasia for his many contributions to his community and the State of West Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the State Building Commission officially name the hospital building at the John Manchin Sr. Health Care Center the "Nick Fantasia Building"; and, be it
Further Resolved, That the Clerk of the Senate is hereby requested to forward a copy of this resolution to the State Building Commission.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, bills of the House of Delegates as follows:
Com Sub. for H. B. 3213, Creating the offenses of malicious assault, unlawful assault, battery and recidivism of battery, assault on a driver, conductor, captain or other person in charge of any vehicle used for public conveyance.
Com. Sub. for H. B. 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,
Com. Sub. for H. B. 4272, Clarifying the language regarding requirements for a Class BG stamp,
H. B. 4295, Establishing a bird dog training permit,
H. B. 4312, Increasing the compensation of child support enforcement attorneys,
H. B. 4355, Providing for the temporary detention of juveniles who are the named respondent in an emergency domestic violence protective order when the juvenile resides with the petitioner,
Com. Sub. for H. B. 4481, Establishing a permissive provision for using ballot-scanning devices for election night tabulations.
H. B. 4487, Allowing an individual, who is at least sixteen years of age, to be in the vehicle to assist the Class Q permittee,
Com. Sub. for H. B. 4498, Relating to fees for licensing of money service businesses,
H. B. 4595, Authorizing the Board of Treasury Investments to retain, rather than require it to retain, one employee with a chartered financial analyst designation,
Com. Sub. for H. B. 4598, Eliminating the requirement for combined oil and gas returns for purposes of property taxes, and to further define the information that may be released,
Com. Sub. for H. B. 4601, Increasing the amount transferred to the Special Operating Fund in the State Treasury for the Auditor's Public Utilities Division and dedicate the increased amount to pay for public utility litigation expenses,
H. B. 4622, Increasing coal bed methane permit fees,
H. B. 4685, Arthritis Prevention Education Act,
H. B. 4847, Relating to group limited health benefits insurance plans,
H. B. 4855, Making a supplementary appropriation to the department of education and the arts, department of environmental protection, department of health and human resources, etc.,
H. B. 4856, Making a supplementary appropriation to the department of commerce - miners' health, safety and training fund,
H. B. 4857, Making a supplementary appropriation to the department of administration - children's health insurance agency, to the department of commerce - division of natural resources, to the department of transportation - public port authority, etc.,
And,
H. B. 4858, Supplementary appropriation, secretary of state - state election fund.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of the following concurrent resolutions of the House of Delegates:
H. C. R. 2, Naming the bridge on Cleveland Avenue in Buckhannon, West Virginia, the "William S. O' Brien Memorial Bridge".
H. C. R. 3, Naming the bridge located 0.01 miles south of County Route 26 and located on Route 85 in the community of Van, West Virginia, the "Thom Cline Memorial Bridge".
H. C. R. 4, Requesting the Division of Highways to name the bridge in Curtin, West Virginia, the "Larry 'Joe' Markle Bridge".
H. C. R. 5, Naming the new Watson Bridge over the West Fork River on U. S. Route 250 in Fairmont, Marion County, West Virginia, the "Watson Senior Citizens Bridge in Honor of Jim Costello".
H. C. R. 6, Naming the section of West Virginia Route 16 from the intersection of West Virginia Route 16 and West Virginia Route 5, North to the Ritchie County line the "Sheriff Park D. Richards Memorial Highway".
H. C. R. 7, Requesting the Division of Highways to name the bridge at McCauley in Hardy County, West Virginia, the "John and Freda Rudy Memorial Bridge".
H. C. R. 8, Requesting the West Virginia Division of Highways to name the bridge located at U. S. Route 2 and Nine Mile Road in Cabell County, West Virginia, the "David Rickey Carson Memorial Bridge".
H. C. R. 9, Honoring the late Leonard R. Valentine by declaring the bridge numbered 54 - 1.60 on State Route 54 in Mullens, West Virginia the "Leonard Valentine 'Coach Val' Memorial Bridge".
H. C. R. 10, Requesting the West Virginia Division of Highways to name the bridge on I-64 at the intersection of Roads and Transportation. 219 in Lewisburg, Greenbrier County, West Virginia the "Gary Wayne Martini Memorial Bridge".
H. C. R. 11, Requesting the Division of Highways name the bridge located on Jakes Run Road off Frame Road in Elkview, West Virginia, the "Private James C. Summers Memorial Bridge".
H. C. R. 12, Requesting the Division of Highways name Bridge 4827 the "Sergeant George F. Eubanks Memorial Bridge".
H. C. R. 14, Requesting the West Virginia Division of Highways to name State Route 25 from Glen Jean to Thurmond in Fayette County the "Jon Dragan Road.".
H. C. R. 15, Requesting the Division of Highways to name the bridge spanning the Gauley River on Route 39 near Summersville, Nicholas County, the "Brock's Bridge".
H. C. R. 16, Honoring the late Roy M. Lilly by declaring the one lane bridge on Route 12/7 entering Corinne Bottom, West Virginia at mile post 0.03 the "Roy M. Lilly Memorial Bridge".
H. C. R. 26, Naming the new bridge spanning the Elk River in Clendenin, West Virginia, the "Hardman Brothers Bridge".
H. C. R. 30, Naming the bridge located on Point Lick Drive in Campbells Creek the "Jimmie D. Bays Bridge".
H. C. R. 31, Requesting the Division of Highways to name a portion of Sago Road in Upshur County the "Coal Miner's Memorial Roadway".
H. C. R. 35, Naming the Melissa #1 bridge in Melissa, Cabell County, the "Curtis E. Pelfrey Memorial Bridge".
H. C. R. 43, Requesting the Division of Highways to name the bridge on State Route 20 that spans the Little Kanawha River the "Jerry Lee Groves and Thomas Paul Anderson Memorial Bridge".
H. C. R. 45, Requesting the Division of Highways to name the new bridge located near Mannington the "William Calvin Sandy Bridge".
H. C. R. 46, Requesting the Division of Highways to name the bridge spanning the Guyandotte River located on County Route 12/4 the "Robert T. (Bob) Carper Vietnam Veteran Bridge".
H. C. R. 49, Requesting the Division of Highways to name the bridge at the junction of Route 65 and Route 49 in Matewan, the "Earl Stafford Memorial Bridge".
H. C. R. 59, Requesting the Division of Highways to name the bridge located on Route 10 in Harts, West Virginia, the "Harts Veterans' Memorial Bridge".
H. C. R. 60, Requesting the United States Congress to include a portion of Highway 10 as a corridor to the Appalachian Highway Development System.
And,
H. C. R. 63, Requesting the Division of Highways to name the bridge located on County Road 8 near Petersburg, Grant County, the "Devin Lee Alt Memorial Bridge".
Special Calendar

Unfinished Business

S. C. R. 76, Requesting Joint Committee on Government and Finance study titling and branding of certain damaged vehicles; coming up in regular order as unfinished business, was reported by the Clerk and adopted.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates proceeded to the Seventh Order of Business for the purpose of introducing resolutions.
Resolutions Introduced

Mr. Speaker, Mr. Kiss, and all other members of the House, offered the following resolution, which was read by the Clerk , as follows:
H. R. 37 - "In appreciation and recognition of the distinguished record of public service and strong leadership of Charles Samuel Trump IV, leader, statesman and gentleman, to the West Virginia House of Delegates."
Whereas, Charles Samuel Trump was born on October 3, 1960, in Winchester, Virginia, and his parents, Mary Lou Trump and the late Charles Samuel Trump III, believed that their young son was destined for public service; and
Whereas, Charles exhibited extraordinary intelligence at an early age, something that would later be questioned by one of his offspring; and
Whereas, As an eighth grader, Charles was presented the Golden Horseshoe Award for outstanding performance in the test measuring students' knowledge of the state's history and culture; and
Whereas, As a participant at Boys State, Charles was presented a certificate by then Secretary of State A. James Manchin proclaiming him to be a Captain of the Ship of State, a rank which was later elevated to Admiral; and
Whereas, In high school, Charles was a member of the varsity wrestling team and participated in the state wrestling tournament; and
Whereas, After graduation from Berkeley Springs High School, Charles went on to Princeton University where he received his B. A. degree in 1982; and
Whereas, He continued his education at the West Virginia University College of Law where he earned not only his Juris Doctor but also the nickname of "Sonar"; and
Whereas, While at Princeton, Charles met the girl of his dreams, Susan Keller Johnston, and in 1987 they became man and wife; and
Whereas, Charles and Susan are the proud parents of three children, Charles Samuel V, Rebecca Loftus, and Michael Johnston; and
Whereas, Following in the footsteps of his politically active parents, Charles entered the political arena in 1988 by running for and being elected to the position of Prosecuting Attorney for Morgan County; and
Whereas, In 1992, when the Legislature created a new House district comprised of Morgan County and a portion of Berkeley County, Charles decided that it was time to retire from prosecuting and to try his hand at resoluting; and
Whereas, The good citizens of the 51st Delegate District rewarded his efforts by electing him to the House of Delegates in 1992 and again in 1994, 1996, 1998, 2000, 2002, and 2004; and
Whereas, Charles quickly earned the respect of his colleagues on both sides of the aisle for his intellectual brilliance and he became the go-to-guy on all matters relating to criminal sentencing; and
Whereas, Charles so impressed his colleagues in the Minority that they elected him as their Leader in 1998 and again in 2000, 2002, and 2004; and
Whereas, During his tenure in the House, Charles has so entertained his colleagues at Judiciary parties and Speaker's dinners with his talents as a poet that he has become known as the Poet Laureate of the House; and
Whereas, The gentleman from the 51st has decided to put his public service career on hold in favor of watching and cheering on his children at sporting events and to devote more time to the practice of law; and
Whereas, Minority Leader Charles S. Trump IV will long be remembered for his contributions to the State of West Virginia which have included pushing for the capping of medical malpractice awards; privatizing workers' compensation, tort reform; and the freeing of Edgar to name a few; and
Whereas, He will unfortunately also be forever known as the author of "one of the worst amendments ever seen in fourteen years in the Legislature"; and
Whereas, A staunch supporter of the Constitution and a champion of the freedom of the press, Charles has been quick to take the floor to question any measure that he believes is unconstitutional; and
Whereas, A believer in the legislative process and the rules that govern it, Charles has never hesitated to take legislative action which he believed was in the best interest of the State of West Virginia and he will be forever immortalized for his demanding of the yeas and nays, even in the face of overwhelming odds; and
Whereas, Ever aware of the important role that Abraham Lincoln played in the history of West Virginia, Charles has become known for his Lincoln Birthday speeches; and
Whereas, Charles has always championed his causes and challenged legislation which he considered improper as a statesman in the truest sense, always treating those with whom he may have disagreed with the upmost courtesy and respect, both on and off the floor of this House; and
Whereas, The Minority Leader Charles S. Trump IV literally and figuratively leaves big shoes to fill and he will be greatly missed by the members of this body; and
Whereas, The members of the House of Delegates recognize that this body in general, and the Minority in particular, have been blessed to have had the services of Charles S. Trump for the past fourteen years; and
Whereas, We regretfully bid our esteemed and distinguished colleague, Minority Leader Charles S. Trump IV, leader, statesman and gentleman, a fond farewell and wish him the best in his future endeavors.
Resolved by the House of Delegates of the 77th Legislature:
That the House of Delegates hereby recognizes the distinguished record of public service and strong leadership of Charles Samuel Trump IV, leader, statesman and gentleman, to the West Virginia House of Delegates, publicly thanks him for his many years of service to the State and to his district, and wishes him all the best in future years.

At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (H. R. 37) to a committee was dispensed with, and it was taken up for immediate consideration.
The question now being on the adoption of the resolution, the yeas and nays were demanded, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 628), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Fragale and Pino.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. R. 37) adopted.
All Members of the House of Delegates offered the following resolution, which was read by the Clerk, as follows:
H. R. 35 - "On the Occasion of Concluding 18 Years of Service as a Member of the House of Delegates and Concluding a Decade of Service as Speaker of the House, the Honorable Robert S. Kiss."
Whereas, When the Session of 2006 comes to its Constitutional end at Midnight today, March 11, 2006, the Gentleman from the 27th District, the Honorable Robert S. Kiss, will have served the people of his chosen County of Raleigh and the people of the State of West Virginia, with as much service as any member of the House heretofore elected to the Office of Speaker.
Bob Kiss came to West Virginia as a young attorney, seeking a rural environment in which to practice his chosen profession. Urged by his innate sense of public service, he ran for and was first elected to the House of Delegates in 1988, and has been reelected every biennium for the last nine terms, making his total legislative career span 18 years, the 69th through the 77th Legislatures.
Upon his matriculation into the legislative arena, the young Bob Kiss soon began work in what would become his most favored legislative area, the Finance Committee. In his second term in the House, he was appointed Vice Chair of the House Finance Committee, and at the beginning of the 71st Legislature in 1993, and again in the 72nd Legislature in 1995, he was appointed Chairman of the House Finance Committee. It was in the Finance Committee structure that he began to develop a keen sense of respect for the legislative process, much due to the tutelage of former Chairman George Farley, whose life and service the House recently commemorated.
The young to-become Speaker served as Vice Chair of House Finance in 1991 and worked arduously on the Budget that year. His first Budget as Chair of Finance in 1993 totaled $5.4 billion. Upon the completion of this term of his service, the Budget will represent approximately $10 billion. At the beginning of his first term, the Governor called an Extraordinary Session to convene at 12:30 P. M., January 29, 1989. This was the first occasion in the history of the State that the Legislature had been called into an Extraordinary Session prior to the convening of the Regular Session after a new Legislature had been constitutionally seated. That was truly an Extraordinary Session, for the Legislature was faced with almost insurmountable State debt and a myriad of other problems. In quick response, the House and Senate took up and passed a comprehensive Governmental Ethics Act, a monumental Fiscal Responsibility Act, an enormous tax package, and an overhaul of the Executive Branch of State Government. Bob Kiss was an active player in the enactment of these statutes, now recorded for posterity in the legislative archives. It is also noteworthy that his last term in the House began with an Extraordinary Session called prior to the Regular Session, the second time in State history such an event has occurred.
Robert S. Kiss, Chair of House Finance, became Robert S. Kiss, Speaker of the House, with his first election as Speaker on January 8, 1997, at the beginning of the 73rd Legislature, and has continued in that position with successive elections on January 13, 1999 (74th Legislature), January 10, 2001 (75th Legislature), January 8, 2003 (76th Legislature) and on January 12, 2005, the beginning of the 77th Legislature. His legislative career as Speaker has included leading the House through 10 Regular Sessions and 23 Extraordinary Sessions, during which a total of 12,310 bills have been introduced in the House and of which a total of 2,649 House and Senate Bills were enacted.
Speaker Kiss has developed, demonstrated and maintained an adherence to the Rules of the House and has continually looked to the precedents to guide the House through difficult and sometimes stormy decisions. He has a keen appreciation for and application of the organic development of parliamentary law, based soundly on a system of principles which have developed over a long period of time as individual questions were determined upon the best reasoning of legislative bodies, their presiding officers and the courts. The Speaker has a deep appreciation for the 'common law' of the House as found in its precedents, and in looking to the precedents to resolve a point of order or other procedural question, he has applied them in a way analogous to that known in the courts as 'stare decisis' or 'let the prior decision stand'.
As Speaker Kiss has made his own decision relative to his legislative career, he has again applied the principle of 'stare decisis' when coaxed by colleagues and friends to stay. He leaves a House which is better than when he came, and he returns to a home which is also better than when he came here, with his wife Melinda and his twin sons Cameron and Carter eagerly awaiting.
It is with gratitude that we bid you Godspeed; therefore, be it
Resolved by the House of Delegates of the 77th Legislature:
That this House of Delegates hereby publicly and formally takes note of the long and productive career of a colleague and friend, public servant, former Finance Chair and able Speaker of the House, the Honorable Robert S. Kiss, acknowledges his innumerable contributions to the betterment of the State and her people, and enrolls this Resolution of Appreciation in the Official Journal of the House.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (H. R. 35) to a committee was dispensed with, and it was taken up for immediate consideration.
The question now being on the adoption of the resolution, the yeas and nays were demanded, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 629), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Canterbury, Ferrell, Fragale and Pino.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. R. 35) adopted.
Delegate Staton asked and obtained unanimous consent that the remarks of Mr. Speaker, Mr. Kiss and Delegate Trump regarding their legislative experience be printed in the Appendix to the Journal.
At 9:13 p.m., on motion of Delegate Staton, the House of Delegates recessed until 10:00 p.m., and reconvened at that time.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports

Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
S. C. R. 72, Requesting Joint Committee on Government and Finance study sunrise and sunset legislation processes.
And reports the same back, with amendment, with the recommendation that it be adopted, as amended.
At the request of Delegate Staton, and by unanimous consent, the resolution (S. C. R. 72) was taken up for immediate consideration.
An amendment, recommended by the Committee on Rules, was reported by the Clerk and adopted, amending the resolution on page one, following the title by string out the remainder of the resolution and inserting in lieu thereof the following:
Whereas, West Virginia does not have an official State professional theater; and
Whereas, Greenbrier Valley Theatre was incorporated as "Greenbrier Repertory Theatre" in 1967; and
Whereas, For the initial three years of operation, Greenbrier Repertory Theatre productions were performed in a tent alongside the Greenbrier River; and
Whereas, The theater name was changed from Greenbrier Repertory Theatre, Inc. to "Greenbrier Valley Theatre" in 1974; and
Whereas, In 2000 the theater was relocated to the renovated downtown Lewisburg Leggett's Department Store, which was converted into a state-of-the-art Black Box Theatre which included multi-purpose space for the local community; and
Whereas, The theater has operated since incorporation as a summer theater, and began operating as a year-round theater upon relocation in 2000; and
Whereas, Greenbrier Valley Theatre presents a mixture of contemporary, classical, musical and original plays and performances; and
Whereas, The theater is involved in all aspects of the arts and humanities; and
Whereas, Greenbrier Valley Theatre offers summer programs for children and an after school program for children during the school year; and
Whereas, The theater has established a production partnership with Greenbrier East High School; and
Whereas, Greenbrier Valley Theatre is an official partner of the Greenbrier County Board of Education; and
Whereas, The theater offers preprofessional intern and apprentice programs for high school and college students; and
Whereas, Greenbrier Valley Theatre maintains a partnership with the West Virginia University Department of Theatre to provide programs in the public schools; and
Whereas, The theater is a member of the Theater Communications Group, which is the National Theater Network; and
Whereas, Greenbrier Valley Theatre is the state's only year-round Equity Theater, which is the national theater union; and
Whereas, Greenbrier Valley Theatre offers a variety of classes, literary readings, special events performances, art appreciation activities, lectures, discussions and workshops; and
Whereas, Since the Greenbrier Valley Theatre began operating year-round, it has received two National Endowment for the Arts grants; and
Whereas, The National Endowment for the Arts grants were Direct Creativity Grants, which were awarded on the basis of newly commissioned and produced plays, both of which were historically significant to West Virginia; and
Whereas, The Greenbrier Valley Theatre is a treasured cultural institution for the citizens of Greenbrier county, which has a historic presence in Lewisburg and provides many valuable programs to the community; and
Whereas, For nearly forty years Greenbrier Valley Theatre has enjoyed the support of a loyal community whose nurturing has developed a vigorous, professional organization with a vision to become as a significant regional performing theater; and
Whereas, The State of West Virginia has yet to designate a State professional theater; therefore, be it
Resolved by the Legislature of West Virginia:
That Greenbrier Valley Theatre is hereby designated and declared the official State year- round professional theater of West Virginia; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Governor.
And,
By amending the title of the resolution to read as follows:
S. C. R. 72 - "Declaring Greenbrier Valley Theatre as the official State year-round professional theater of West Virginia."
The resolution was then adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
S. C. R. 88, Requesting Legislative Oversight Commission on Health and Human Resources study 'money follows the person' concept.
And reports the same back with the recommendation that it be adopted.
At the request of Delegate Staton, and by unanimous consent, the resolution (S. C. R. 88) was taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to
S. B. 516, Finding and declaring claims against state.
On motion of Delegate Staton, the House of Delegates refused to recede from its amendment.
On motion of Delegate Staton, the House of Delegates refused to recede and insisted onits amendments to the bill.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Third Reading

S. B. 792, Merging Fairmont State Community and Technical College with Fairmont State University; renaming Community and Technical College of Shepherd; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §18B-2-9 of the Code of West Virginia, 1931, as amended, be repealed; that §18B-1-2 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-1-7; that §18B-1B-6 of said code be amended and reenacted; that §18B-1C-1 and §18B-1C-2 of said code be amended and reenacted; that §18B-2A-1 and §18-2A-8 of said code be amended and reenacted; that §18B-3-1 of said code be amended and reenacted; that §18B-3C-4 and §18B-3C-8 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-3C-7; that §18B-6-1 and §18B-6-1a of said code be amended and reenacted; and that §18B-10-1 of said code be amended and reenacted, all to read as follows:
CHAPTER 18B. HIGHER EDUCATION.

ARTICLE 1. GOVERNANCE.

§18B-1-2. Definitions.

The following words when used in this chapter and chapter eighteen-c of this code have the meaning hereinafter meanings ascribed to them unless the context clearly indicates a different meaning:
(a) Effective the first day of July, two thousand five 'Regional campus' means West Virginia University at Parkersburg. and West Virginia university institute of technology
(b) 'Governing boards' or 'boards' means the institutional boards of governors created pursuant to section one, article two-a of this chapter;
(c) 'Freestanding community and technical colleges' means Southern West Virginia Community and Technical College, West Virginia Northern Community and Technical College and Eastern West Virginia Community and Technical College which may not be operated as branches or off-campus locations of any other state institution of higher education;
(d) 'Community college' or 'community colleges' means community and technical college or colleges as those terms are defined in this section;
(e) 'Community and technical college,' in the singular or plural, means the freestanding community and technical colleges and other state institutions of higher education which deliver community and technical college education. This definition includes Southern West Virginia Community and Technical College, West Virginia Northern Community and technical College, Eastern West Virginia Community and Technical College, New River Community and Technical College, West Virginia University at Parkersburg, The Community and Technical College at West Virginia University Institute of Technology, The Community and Technical College of Shepherd, Fairmont State Community and Technical College Blue Ridge Community and Technical College, Marshall Community and Technical College and West Virginia State Community and Technical College;
(f) 'Community and technical college education' means the programs, faculty, administration and funding associated with the mission delivery of community and technical colleges as provided in article three-c of this chapter college education programs;
(g) 'Essential conditions' means those conditions which shall be met by community and technical colleges as provided in section three, article three-c of this chapter;
(h) 'Higher education institution' means any institution as defined by Sections 401(f), (g) and (h) of the federal Higher Education Facilities Act of 1963, as amended;
(I) 'Higher Education Policy Commission,' 'Policy Commission' or 'Commission' means the commission created pursuant to section one, article one-b of this chapter;
(j) 'Chancellor for Higher Education' means the chief executive officer of the Higher Education Policy Commission employed pursuant to section five, article one-b of this chapter;
(k) 'Chancellor for Community and Technical College education' means the Chief Executive Officer of the West Virginia Council for Community and Technical College Education employed pursuant to section three, article two-b of this chapter;
(l) 'Chancellor' means the chancellor for Higher Education where the context refers to a function of the Higher Education Policy Commission. 'Chancellor' means chancellor for Community and Technical College Education where the context refers to a function of the West Virginia Council for Community and Technical College Education;
(m) 'Institutional operating budget' or 'operating budget' means for any fiscal year an institution's total unrestricted education and general funding from all sources in the prior fiscal year, including, but not limited to, tuition and fees and legislative appropriation, and any adjustments to that funding as approved by the commission or council based on comparisons with peer institutions or to reflect consistent components of peer operating budgets;
(n) 'Community and technical college education program' means any college-level course or program beyond the high school level provided through a public institution of higher education resulting in or which may result in a two-year associate degree award including an associate of arts, an associate of science and an associate of applied science; certificate programs and skill sets; developmental education; continuing education; collegiate credit and noncredit workforce development programs; and transfer and baccalaureate parallel programs. All such programs are under the jurisdiction of the council. Any reference to 'post-secondary vocational education programs' means community and technical college education programs as defined in this subsection;
(o) 'Rule' or 'rules' means a regulation, standard, policy or interpretation of general application and future effect;
(p) For the purposes of this chapter and chapter eighteen-c of this code 'Senior administrator' means the vice chancellor for administration employed by the commission with the advice and consent of the council in accordance with section two, article four of this chapter;
(q) 'State college' means Bluefield State College, Concord college University, Fairmont State college University, Glenville State College, Shepherd college University, West Liberty State College or West Virginia State college University;
(r) 'State institution of higher education' means any university, college or community and technical college under the jurisdiction of a governing board as that term is defined in this section;
(s) Until the first day of July, two thousand five, 'regional campus' means West Virginia University at Parkersburg Potomac state college of West Virginia University and West Virginia University Institute of Technology;
(t) (s) The advisory board previously appointed for the West Virginia Graduate College is known as the 'Board of Visitors' and shall provide guidance to the Marshall University Graduate College;
(u) (t) 'Institutional compact' means the compact between the commission or council and a state institution of higher education under its jurisdiction, as described in section two, article one-a of this chapter;
(v) (u) 'Peer institutions', 'peer group' or 'peers' means public institutions of higher education used for comparison purposes and selected by the commission pursuant to section three, article one-a of this chapter;
(w) (v) 'Administratively linked community and technical college' means a community and technical college created pursuant to section eight, article three-c of this chapter;
(x) (w) 'Sponsoring institution' means a state institution of higher education that maintains an administrative link to a community and technical college pursuant to section eight, article three-c of this chapter;
(y) (x) 'Collaboration' means entering into an agreement with one or more providers of education services in order to enhance the scope, quality or efficiency of education services;
(z) (y) 'Broker' or 'brokering' means serving as an agent on behalf of students, employers, communities or responsibility areas to obtain education services not offered at that institution. These services include courses, degree programs or other services contracted through an agreement with a provider of education services either in-state or out-of-state; and
(aa) (z) 'Council' means the West Virginia Council for Community and Technical College Education created pursuant to article two-b of this chapter.
§18B-1-7. Fairmont State Community and Technical College merged.

(a) Notwithstanding any other provision of this code to the contrary, by the first day of July, two thousand six, Fairmont State Community and Technical College shall be known as Pierpont Community and Technical College and shall merge and consolidate with Fairmont State University and become a fully integrated division of the university. All administrative and academic units shall be consolidated with primary responsibility for direction and support assigned to Fairmont State University.
(1) Fairmont State Community and Technical College ceases to be an individual higher education institution, as defined by subsection (h), section two of this article.
(2) The advisory board previously appointed for Fairmont State Community and Technical College is continued. The advisory board:
(A) Serves to advise the Fairmont State University Board of Governors and president on issues regarding the delivery of community and technical college education; and
(B) Continues to function pursuant to the provisions of section one, article six of this chapter.
(b) Any reference in this code to Fairmont State Community and Technical College means Pierpont Community and Technical College, a division of Fairmont State University.
(c) In the delivery of community and technical college education and programs, Fairmont State University shall adhere to all provisions set forth in this code and rules promulgated by the council for the delivery of such education and programs, including, but not limited to, council review and approval of academic programs, institutional compacts, master plans, charge-back agreements and tuition and fee rates, including capital fees. The only provision of this code that Fairmont State University is not required to adhere to is the requirement related to independent accreditation of community and technical colleges.
(d) Pierpont Community and Technical College shall continue to exist as an administrative division of Fairmont State University, pursuant to the provisions of article ten, chapter four of this code, until the first day of July, two thousand nine, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.
(e) During the time period Pierpont Community and Technical College exists as an administrative division of Fairmont State University pursuant to subsection (d) of this section, the Council and Commission shall determine if the following conditions are being met:
(1) Pierpont Community and Technical College meets or exceeds all of the benchmarks contained in its approved compact required by section two, article one-a of this chapter;
(2) Pierpont Community and Technical College has established and is meeting or exceeding the goals of its approved consortium compact pursuant to section four, article three-c of this chapter;
(3) Pierpont Community and Technical College meets or exceeds the service needs of its consortium planning district according to its approved consortium compact;
(4) Pierpont Community and Technical College meets or exceeds Council goals as defined in the community and technical college performance indicators and institutional compacts established pursuant to section two, article one-a of this chapter, and national averages for the delivery of comprehensive community and technical college education in the following areas:
(A) Providing access to the following groups of students in the community and technical college's consortium planning district:
(I) Traditional students eighteen to twenty-four years of age;
(ii) Non-traditional students twenty-five to forty-four years of age; and
(iii) High school students seeking college credit through early entrance and earn-a-degree-graduate-early (EDGE) courses;
(B) Serving the state's workforce development goals by:
(I) Increasing the number of graduates with career technical certificates and associate degrees;
(ii) Ensuring that students who earn certificates and degrees are placed in the workforce;
(iii) Providing workforce education and training programs for employers; and
(iv) Maintaining community and technical college student freshman-to-sophomore retention rates and graduation rates that equal or exceed state and national averages;
(5) The costs of operating Pierpont Community and Technical College as an independently-accredited community and technical college administratively-linked to Fairmont State University exceed the benefits of such an arrangement to the achievement of community and technical college system goals;
(6) A consortia arrangement, centralized processing alternative or other cost-saving measure is not available to offset the costs determined to be excessive pursuant to subdivision (5) of this subsection; and
(7) Fairmont State University and Fairmont State Community and Technical College demonstrate that they are required:
(A) By the United States Department of Education to operate separate offices for student financial aid processing; and
(B) By the Higher Learning Commission of the North Central Association of Colleges and Schools to maintain a separate library for each institution.
(f) The council and commission jointly shall report to the Legislative Oversight Commission on Education Accountability concerning their findings and their final recommendations. The report shall be filed by the first day of January, two thousand nine. If it is determined that the merger of Fairmont State University and Pierpont Community and Technical College has not resulted in enabling the community and technical college to meet the conditions established in this section, the Legislature will determine future action to be taken.
ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.
§18B-1B-6. Appointment of institutional presidents; evaluation.
(a) Appointment of institutional presidents. -- Appointment of presidents of the state institutions of higher education shall be made as follows:
(1) Subject to the approval of the commission, the governing board of the institution appoints a president for Bluefield State College, Concord University, Fairmont State University, Glenville State College, Marshall University, Shepherd University, West Liberty State College, West Virginia School of Osteopathic Medicine, West Virginia State University and West Virginia University.
(2) Subject to the approval of the council and to the provisions of article three-c of this chapter, the governing board of West Virginia University appoints the president of the regional campus known as West Virginia University at Parkersburg. The president serves at the will and pleasure of the governing board. When selecting candidates for consideration to fill the office of president, the governing board shall use the search and screening process provided in section one, article six of this chapter.
Subject to the approval of the Commission, the Governing Board of West Virginia University appoints the President of the regional campus known as West Virginia University Institute of Technology. The president of each regional campus serves at the will and pleasure of the appointing governing board.
(3) Subject to the approval of the council, the governing board of the community and technical college appoints a president for Eastern West Virginia Community and Technical College, Southern West Virginia Community and Technical College and West Virginia Northern Community and Technical College.
(4) Subject to the approval of the council, the governing board of the sponsoring institution appoints a president for each administratively linked community and technical college which shares a physical campus location with the sponsoring institution, including Fairmont State Community and Technical College Pierpont Community and Technical College, a division of Fairmont State University, Marshall Community and Technical College, The Community and Technical College at West Virginia University Institute of Technology and West Virginia State Community and Technical College.
(5) Subject to the approval of the council, the governing board of the community and technical college appoints a president for each administratively linked community and technical college which does not share a physical campus location with the sponsoring institution, including New River Community and Technical College and The Community and Technical College of Shepherd Blue Ridge Community and Technical College.
(b) Other appointments. -- The institutional president appoints a provost to be the administrative head of the Potomac campus of West Virginia University and West Virginia University Institute of Technology.
(c) Evaluation of presidents. -- The appointing governing board shall conduct written performance evaluations of each institution's president, including the presidents of administratively linked community and technical colleges. Evaluations shall be done in every fourth year of employment as president, recognizing unique characteristics of the institution and utilizing institutional personnel, institutional boards of advisors as appropriate, staff of the appropriate governing board and persons knowledgeable in higher education matters who are not otherwise employed by a governing board. A part of the evaluation shall be a determination of the success of the institution in meeting the requirements of its institutional compact.
ARTICLE 1C. WEST VIRGINIA UNIVERSITY INSTITUTE OF TECHNOLOGY.

§18B-1C-1. Legislative findings and intent.
(a) The Legislature recognizes that:
(1) West Virginia University Institute of Technology is a vital part of higher education in southern West Virginia;
(2) The engineering program at West Virginia University Institute of Technology plays a significant role in the continued success of the students at the institution and to the state as a whole;
(3) Development and delivery of a baccalaureate degree program at West Virginia University Institute of Technology in educator preparation, environmental science, and integrated science and technology would greatly expand the education opportunities in the service region;
(4) The average salaries of faculty at West Virginia University Institute of Technology are significantly lower than the average salaries of faculty at West Virginia University;
(5) Facilities at West Virginia University Institute of Technology are in greater disrepair and in greater need of overall capital investment than are facilities at West Virginia University; and
(6) A collaborative program between the engineering program of West Virginia University Institute of Technology and the Dow Research Park in South Charleston, West Virginia, would:
(A) Lead to a greater understanding and knowledge of engineering research;
(B) Lead to greater opportunities for students to engage in research that is directly connected to the research park; and
(C) Result in greater opportunities for participating students to find gainful employment in future research or to continue graduate level research and study.
(b) It is the intent of the Legislature to encourage:
(1) The development of a collaborative linkage between West Virginia University Institute of Technology and the Dow Research Park that provides significant educational opportunities to students; and
(2) The West Virginia University Board of Governors to direct financial resources to increase faculty average salary levels and to address capital improvement needs at West Virginia University Institute of Technology, and ultimately to reduce current disparities between West Virginia University and West Virginia University Institute of Technology in these areas.
(c) It is specifically the intent of the Legislature that:
(1) The West Virginia University Institute of Technology develop or maintain as a permanent component of its curriculum a baccalaureate degree program in the following disciplines:
(A) Engineering;
(B) Educator preparation;
(C) Environmental science; and
(D) Integrated science and technology;
(2) A collaborative engineering program be established between West Virginia University Institute of Technology and the Dow Research Park; and
(3) Junior and senior level engineering students at West Virginia University Institute of Technology are offered the opportunity to participate in cooperative programs, internships, stipend assisted research programs, research tutorials and small group research with the Dow Research Park, but that the core engineering program shall remain at West Virginia University Institute of Technology in Montgomery, West Virginia.
§18B-1C-2. West Virginia University Institute of Technology; division of West Virginia University.

(a) Notwithstanding any other provision of this code to the contrary, by the first day of July, two thousand six, West Virginia University Institute of Technology shall merge and consolidate with West Virginia University, and become a fully integrated division of West Virginia University. All administrative and academic units shall be consolidated with primary responsibility for direction and support assigned to West Virginia University. The advisory board previously appointed for West Virginia University Institute of Technology shall be known as the board of visitors and shall provide guidance to the division in fulfilling its mission. The chairperson of the board of visitors serves as an ex-officio, voting member of the West Virginia University Board of Governors. (b) The fully integrated division continues to be named West Virginia University Institute of Technology, and the headquarters shall remain in Montgomery, West Virginia.
(c) The provisions of this section do not affect the independent accreditation, administrative linkage nor continued operation of The Community and Technical College at West Virginia University Institute of Technology under the jurisdiction and authority of the Council.
(d) Auxiliary enterprises shall be incorporated into the West Virginia University auxiliary enterprise system. The West Virginia University Board of Governors shall determine if operations at West Virginia University Institute of Technology can be operated on a self-sufficient basis when establishing rates for auxiliary services and products.
(e) West Virginia University Institute of Technology has a strong reputation in engineering and other scientific disciplines. These programs shall be further cultivated and emphasized as its sustaining mission over the next decade.
(f) The education opportunities in the West Virginia University Institute of Technology service region would be significantly expanded by the delivery of a baccalaureate degree program in the educator preparation, environmental science, and integrated science and technology disciplines. These programs shall be developed and delivered by West Virginia University Institute of Technology by the fall, two thousand seven academic term.
(g) By the first day of August, two thousand six, the West Virginia University Board of Governors shall develop and approve a plan to implement the provisions of this article, including a plan to address faculty salary levels and capital facility needs at West Virginia University Institute of Technology.
(h) Beginning the first day of November, two thousand six, and annually thereafter for a period of four years, West Virginia University shall report to the Commission and Legislative Oversight Commission on Education Accountability on progress being made to implement the provisions of this section, including those regarding faculty salary levels and capital facility needs.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-1. Composition of boards; terms and qualifications of members; vacancies; eligibility for reappointment.

(a) A board of governors is continued at each of the following institutions: Bluefield State College, Blue Ridge Community and Technical College, Concord college University, Eastern West Virginia Community and Technical College, Fairmont State college University, Glenville State College, Marshall University, New River Community and Technical College, Shepherd college University, Southern West Virginia Community and Technical College, West Liberty State College, West Virginia Northern Community and technical College, the West Virginia School of Osteopathic Medicine, West Virginia State college University and West Virginia University.
(b) For The Community and Technical College of Shepherd and New River Community and Technical College the institutional board of advisors remains in place until the institution achieves independent accreditation as provided in section eight, article three-c of this chapter.
(1) As long as the institutional board of advisors remains in place, the chairperson of the board of advisors serves as an ex officio, voting member of the board of governors of the sponsoring institution;
(2) When the community and technical college achieves independent accreditation, the board of advisors is abolished and a board of governors is established with members appointed pursuant to this section;
(3) When a board of governors is established for the community and technical college:
(A) The chairperson of the governing board of the sponsoring institution serves as an ex officio, nonvoting member of the governing board of the community and technical college board of governors; and
(B) The chairperson of the governing board of the community and technical college serves as an ex officio, nonvoting member of the governing board of the sponsoring institution.
(4) In making the initial appointments to these boards of governors, the governor shall appoint those persons who are lay members of the institutional boards of advisors, except in the case of death, resignation or failure to be confirmed by the Senate.
(c) The institutional board of governors for Marshall University consists of sixteen persons, and the institutional board of governors for West Virginia University consists of seventeen eighteen persons. Each other board of governors consists of twelve persons.
(d) (c) Each board of governors includes the following members:
(1) A full-time member of the faculty with the rank of instructor or above duly elected by the faculty of the respective institution;
(2) A member of the student body in good academic standing, enrolled for college credit work and duly elected by the student body of the respective institution;
(3) A member from the institutional classified employees duly elected by the classified employees of the respective institution; and
(4) For the Institutional Board of Governors at Marshall University, twelve lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section and, additionally, the chairperson of the Institutional Board of Advisors of Marshall Community and Technical College serving as an ex officio, voting member.
(5) For the Institutional Board of Governors at West Virginia University, twelve lay members appointed by the Governor by and with the advice and consent of the Senate, pursuant to this section and, additionally, the chairperson of chairpersons of the following boards serving as ex officio, voting members:
(A) The Institutional Board of Advisors of:
(I) The Community and Technical College at West Virginia University Institute of Technology; and
(ii) West Virginia University at Parkersburg; and
(B) The Board of Visitors of West Virginia University Institute of Technology
.
(6) For each institutional board of governors of an institution that does not have an administratively-linked community and technical college under its jurisdiction, nine lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section.
(7) For each institutional board of governors which has an administratively linked community and technical college under its jurisdiction:
(A) Eight lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section and, additionally, the chairperson of the institutional board of advisors of the administratively linked community and technical college; and
(B) Of the eight lay members appointed by the Governor, one shall be the superintendent of a county board of education from the area served by the institution.
(e) (d) Of the eight or nine members appointed by the Governor, no more than five may be of the same political party. Of the twelve members appointed by the Governor to the governing boards of Marshall University and West Virginia University, no more than seven may be of the same political party. Of the eight or nine members appointed by the Governor, at least six shall be residents of the state. Of the twelve members appointed by the Governor to the governing boards of Marshall University and West Virginia University, at least eight shall be residents of the state.
(f) (e) The student member serves for a term of one year. Each term begins on the first day of July.
(g) (f) The faculty member serves for a term of two years. Each term begins on the first day of July. Faculty members are eligible to succeed themselves for three additional terms, not to exceed a total of eight consecutive years.
(h) (g) The member representing classified employees serves for a term of two years. Each term begins on the first day of July. Members representing classified employees are eligible to succeed themselves for three additional terms, not to exceed a total of eight consecutive years.
(I) (h) The appointed lay citizen members serve terms of four years each and are eligible to succeed themselves for no more than one additional term.
(j) (I) A vacancy in an unexpired term of a member shall be filled for the unexpired term within thirty days of the occurrence of the vacancy in the same manner as the original appointment or election. Except in the case of a vacancy, all elections shall be held and all appointments shall be made no later than the thirtieth day of June preceding the commencement of the term. Each board of governors shall elect one of its appointed lay members to be chairperson in June of each year. A member may not serve as chairperson for more than two consecutive years.
(k) (j) The appointed members of the institutional boards of governors serve staggered terms of four years.
(l) (k) A person is ineligible for appointment to membership on a board of governors of a state institution of higher education under the following conditions:
(1) For a baccalaureate institution or university, a person is ineligible for appointment who is an officer, employee or member of any other board of governors, a member of an institutional board of advisors of any public institution of higher education, an employee of any institution of higher education, an officer or member of any political party executive committee, the holder of any other public office or public employment under the government of this state or any of its political subdivisions or a member of the council or commission. This subsection does not prevent the representative from the faculty, classified employees, students or chairpersons of the boards of advisors or the superintendent of a county board of education from being members of the governing boards.
(2) For a community and technical college, a person is ineligible for appointment who is an officer, employee or member of any other board of governors; a member of an institutional board of advisors of any public institution of higher education; an employee of any institution of higher education; an officer or member of any political party executive committee; the holder of any other public office, other than an elected county office, or public employment, other than employment by the county board of education, under the government of this state or any of its political subdivisions; or a member of the council or commission. This subsection does not prevent the representative from the faculty, classified employees, students or chairpersons of the boards of advisors from being members of the governing boards.
(m) (l) Before exercising any authority or performing any duties as a member of a governing board, each member shall qualify as such by taking and subscribing to the oath of office prescribed by section five, article IV of the Constitution of West Virginia and the certificate thereof shall be filed with the secretary of state.
(n) (m) A member of a governing board appointed by the governor may not be removed from office by the governor except for official misconduct, incompetence, neglect of duty or gross immorality and then only in the manner prescribed by law for the removal of the state elective officers by the governor.
(o) (n) The president of the institution shall make available resources of the institution for conducting the business of its board of governors. The members of the board of governors serve without compensation, but are reimbursed for all reasonable and necessary expenses actually incurred in the performance of official duties under this article upon presentation of an itemized sworn statement of expenses. All expenses incurred by the board of governors and the institution under this section are paid from funds allocated to the institution for that purpose.
§18B-2A-8. Additional powers and duties of governing boards.
(a) Except as provided in subdivision (b) of this section, a state institution of higher education is granted the powers, duties and authorities previously granted to the state institutions of higher education known as Marshall University and West Virginia University, subject to the following:
(1) The institutional operating budgets of all institutions to which this section applies have achieved a level of funding comparable with, but not less than ninety percent of, their respective peers, as established pursuant to section three, article one-a of this chapter;
(2) The Commission approves granting the powers, duties and authorities to that institution; and
(3) The powers, duties and authorities may not be granted to any institution prior to the first day of July, two thousand twelve.
(b) The powers, duties and authorities previously granted to the state institutions of higher education known as Marshall University and West Virginia University which are referenced in subdivision (d) of this section are granted to any state institution of higher education that:
(1) Has been designated a university pursuant to the provisions of section six, article two-a of this chapter by the effective date of this section; and
(2) Is not under the jurisdiction of an institutional board of governors that also has under its jurisdiction a community and technical college.
(c) Beginning the October, two thousand six, Legislative Interim Meeting period, the commission shall report quarterly to the Legislative Oversight Commission on Education Accountability regarding implementation of the provisions of subsection (b) of this section.
(d)
The powers, duties and authorities granted pursuant to this section are those provided in:
(1) Section four-a, article six, chapter five of this code;
(2) Section two, article one, chapter five-g of this code;
(3) Section twelve-b twelve-d, article one, chapter twelve of this code;
(4) Sections five, six, seven and eight, article three, chapter twelve of this code;
(5) Sections three and six, article one of this chapter;
(6) Section two, article one-a of this chapter;
(7) Section four, article one-b of this chapter;
(8) Sections three and four of this article;
(9) Sections two and three, article three of this chapter;
(10) Sections five, five-a, six and seven, article four of this chapter;
(11) Sections three, four, seven and nine, article five of this chapter; and
(12) Sections one and six-a, article ten of this chapter.
(c) (d) This section does not apply to any community and technical college.

ARTICLE 3. ADDITIONAL POWERS AND DUTIES OF RESEARCH, DOCTORAL- GRANTING PUBLIC UNIVERSITIES.

§18B-3-1. Legislative findings, purpose and intent; definitions.

(a) The Legislature finds that an effective and efficient system of doctoral-level education is vital to providing for the economic well-being of the citizens of West Virginia and for accomplishing established state goals and objectives. As the only research and doctoral-granting public universities in the state, Marshall University and West Virginia University are major assets to the citizens of West Virginia and must be an integral part of any plan to strengthen and expand the economy.
(b) The Legislature further finds that these two institutions must compete in both a national and global environment that is rapidly changing, while they continue to provide high quality education that is both affordable and accessible and remain accountable to the people of West Virginia for the most efficient and effective use of scarce resources.
(c) The Legislature further finds that Marshall University and West Virginia University, under the direction of their respective governing boards, have sufficient staff and internal expertise to manage operational governance of their institutions in an efficient and accountable manner and can best fulfill their public missions when their governing boards are given flexibility and autonomy sufficient to meet state goals established in this article and in section one-a, article one of this chapter.
(d) Therefore, the purposes of this article include, but are not limited to, the following:
(1) Enhancing the competitive position of Marshall University and West Virginia University in the current environment for research and development;
(2) Providing the governing boards of these institutions with operational flexibility and autonomy, including tools to promote economic development in West Virginia;
(3) Encouraging the development of research expertise in areas directly beneficial to the state; and
(4) Focusing the attention and resources of the governing boards on state goals and priorities to enhance the competitive position of the state and the economic, social and cultural well-being of its citizens.
(e) The following terms wherever used or referred to in this chapter have the following meaning, unless a different meaning plainly appears from the context:
(1) 'State institution of higher education known as Marshall University' means the doctoral-granting research institution and does not include Marshall Community and Technical College; and
(2) 'State institution of higher education known as West Virginia University' means the doctoral-granting research institution and does not include any either of the following:
(A) The regional campus known as West Virginia University Institute of Technology;
(B) The administratively linked institution known as The Community and Technical College at West Virginia University Institute of Technology; and
(C) (B) The regional campus known as West Virginia University at Parkersburg.
(f) The governing boards of Marshall University and West Virginia University each have the power and the obligation to perform functions, tasks and duties as prescribed by law and to exercise their authority and carry out their responsibilities in a manner that is consistent with and not in conflict with the powers and duties assigned by law to the West Virginia council for Community and Technical College Education and the Higher Education Policy Commission.
(g) While the governing boards of Marshall University and West Virginia University, respectively, may choose to delegate powers and duties to the presidents of the state institutions of higher education known as Marshall University and West Virginia University pursuant to subsection (s), section four, article two-a of this chapter, ultimately, it is they who are accountable to the Legislature, the Governor and the citizens of West Virginia for meeting the established state goals set forth in this article and section one-a, article one of this chapter. Therefore, it is the intent of the Legislature that grants of operational flexibility and autonomy be made directly to the governing boards and are not grants of operational flexibility and autonomy to the presidents of these institutions.
ARTICLE 3C. COMMUNITY AND TECHNICAL COLLEGE SYSTEM.

§18B-3C-4. Community and technical college consortia planning districts.

(a) Unless otherwise designated, the president of each community and technical college facilitates the formation of community and technical college consortia in the state, which includes representatives of community and technical colleges, public vocational-technical education centers, and public baccalaureate institutions offering associate degrees. The community and technical college consortium shall:
(1) Complete a comprehensive assessment of the district to determine what education and training programs are necessary to meet the short and long-term workforce development needs of the district;
(2) Coordinate efforts with regional labor market information systems to identify the ongoing needs of business and industry, both current and projected, and to provide information to assist in an informed program of planning and decision making;
(3) Plan and develop a unified effort between the community and technical colleges and public vocational-technical education to meet the documented workforce development needs of the district through individual and cooperative programs, shared facilities, faculty, staff, equipment and other resources and the development and use of distance learning and other education technologies;
(4) Regularly review and revise curricula to ensure that the workforce needs are met, develop new programs and phase out or modify existing programs as appropriate to meet such needs, streamline procedures for designing and implementing customized training programs;
(5) Increase the integration of secondary and post-secondary curriculum and programs that are targeted to meet regional labor market needs, including implementation of seamless curricula project projects in all major career pathways and the West Virginia EDGE, 'Earn a Degree Graduate Early' program;
(6) Plan and implement integrated professional development activities for secondary and post-secondary faculty, staff and administrators;
(7) Ensure that program graduates have attained the competencies required for successful employment through the involvement of business, industry and labor in establishing student credentialing;
(8) Performance assessment of student knowledge and skills which may be gained from multiple sources so that students gain credit toward program completion and advance more rapidly without repeating course work in which they already possess competency;
(9) Cooperate with workforce investment boards in establishing one-stop-shop career centers with integrated employment and training and labor market information systems that enable job seekers to assess their skills, identify and secure needed education training and secure employment and employers to locate available workers;
(10) Increase the integration of adult literacy, adult basic education, federal Work Force Investment Act and community and technical college programs and services to expedite the transition of adults from welfare to gainful employment; and
(11) Establish a single point of contact for employers and potential employers to access education and training programs throughout the district.
(b) The community and technical college education consortium shall cooperate with the regional workforce investment board in the district and shall participate in any development or amendment to the regional workforce investment plan.
(c) To carry out the provisions of this section, community and technical college consortia planning districts are established and defined as follows:
(1) Northern Panhandle Community and Technical College District includes Hancock, Brooke, Ohio, Marshall and Wetzel counties.
(A) The facilitating institution is West Virginia Northern Community and technical College.
(B) Participating institutions include West Virginia Northern Community and technical College; John Marshall High School; Cameron High School; John D. Rockefeller Center; and other public vocational technical schools offering post-secondary programs.
(2) North Central West Virginia Community and Technical College District includes Monongalia, Marion, Preston, Taylor, Barbour, Randolph, Doddridge, Harrison, Braxton, Lewis, Calhoun, Gilmer and Upshur counties.
(A) The facilitating institution is Fairmont state community and technical college Pierpont Community and Technical College, a division of Fairmont State University.
(B) Participating institutions include Fairmont state community and technical college Pierpont Community and Technical College, a division of Fairmont State University; Glenville State College; Randolph County Vocational-Technical Center; Monongalia County Technical Education Center; United Technical Center; Marion County Technical Center; Fred W. Eberly Technical Center; and other public vocational technical schools offering post-secondary programs.
(3) Mid-Ohio Valley Community and Technical College District includes Tyler, Pleasants, Ritchie, Wood, Wirt, Jackson and Roane counties.
(A) The facilitating institution is West Virginia University at Parkersburg.
(B) Participating institutions includes West Virginia University at Parkersburg; West Virginia Northern Community and technical College; Roane-Jackson Technical Center; Gaston Caperton Center; Wood County Technical Center; and other public vocational technical schools offering post-secondary programs.
(4) Potomac Highlands Community and Technical College District includes Tucker, Pendleton, Grant, Hardy, Mineral and Hampshire counties.
(A) The facilitating institution is Eastern West Virginia Community and Technical College.
(B) Participating institutions include Eastern West Virginia Community and Technical College; South Branch Career and Technical Center; Mineral County Technical Center; and other public vocational technical schools offering post-secondary programs.
(5) Shenandoah Valley Community and Technical College District includes Berkeley, Jefferson and Morgan counties.
(A) The facilitating institution is The Community and Technical College of Shepherd Blue Ridge Community and Technical College.
(B) Participating institutions include The Community and Technical College of Shepherd Blue Ridge Community and Technical College; James Rumsey Technical Institute; and other public vocational technical schools offering post-secondary programs.
(6) Advantage Valley Community and Technical College District includes Fayette, Kanawha, Clay, Putnam, Cabell, Mason and Wayne counties.
(A) The facilitating institution is Marshall Community and Technical College.
(B) Every five years the council shall:
(I) Evaluate the progress of the Advantage Valley Consortia toward achieving the goals and benchmarks of its compact;
(ii) Evaluate the progress of each community and technical college in the district toward achieving the goals and benchmarks of its institutional compact;
(iii) Determine which community and technical college in the district would best serve the needs of the district for the following five-year period if serving as the facilitating institution; and
(iv) Designate the community and technical college selected pursuant to subparagraph (iii) of this paragraph to serve as the facilitating institution for the following five-year period.
(C) Participating institutions include Marshall Community and Technical College; The Community and Technical College at West Virginia University Institute of Technology; West Virginia State Community and Technical College; Carver Career Center; Garnet Career Center; Ben Franklin Career Center; Putnam County Vocational-Technical-Occupational Center; Cabell County Career-Technical Center; and other public vocational technical schools offering post-secondary programs.
(7) Southern Mountains Community and Technical College District includes Lincoln, Boone, Logan, Mingo, Wyoming and McDowell counties.
(A) The facilitating institution is Southern West Virginia Community and Technical College.
(B) Participating institutions include Southern West Virginia Community and Technical College; New River Community and Technical College; Boone County Career and Technical Center; Wyoming County Vocational-Technical Center; Ralph R. Willis Career and Technical Center; McDowell County Career and Technology Center; Mingo County Vocation-Technical Center; Charles Yeager Technical Center; and other public vocational technical schools offering post-secondary programs.
(8) Southeastern Community and Technical College District includes Raleigh, Summers, Fayette, Nicholas, Webster, Pocahontas, Greenbrier, Monroe and Mercer counties.
(A) The facilitating institution is New River Community and Technical College.
(B) Participating institutions include New River Community and Technical College; Southern West Virginia Community and Technical College; The Community and Technical College at West Virginia University Institute of Technology; Bluefield State College; Academy of Careers and Technology; Fayette Plateau Vocation-Technology Center; Summers County High School; Monroe County Technical Center; Mercer County Technical Center; and other public vocational technical schools offering post-secondary programs.
(d) In the role of the facilitating institution of the community and technical college district, the college:
(1) Communicates to the council;
(2) Facilitates the delivery of comprehensive community and technical college education in the region, which includes the seven areas of comprehensive community and technical college education delivery as required by section six of this article; and
(3) Facilitates development of statement of commitment signed by all participating institutions in the region as to how community and technical college education will be delivered.
(e) Participating institutions are not subordinate to the facilitating institution but will sign the statement of commitment to participate.
(f) The council shall:
(1) Establish Maintain guidelines for community and technical college consortia development;
(2) Set goals for each consortium based upon legislative goals for the delivery of comprehensive community and technical college education; and
(3) Establish Maintain a format for development of developing and revising a consortium compact outlining plans for achieving stated goals to be submitted to the council annually for approval. on or before the fifteenth day of November, two thousand four
(g) On or before the fifteenth day of November two thousand four annually, each consortium shall submit to the council for approval a compact which outlines plans for obtaining the stated goals. Each compact shall include the implementation of seamless curricula and the West Virginia EDGE, 'Earn a Degree Graduate Early' program and be updated annually.
(h) The council annually shall evaluate the progress made in meeting the compact goals for each community and technical college consortia through the development and collection of performance indicator data.
§18B-3C-7. Blue Ridge Community and Technical College.

The Community and Technical College of Shepherd is hereafter named 'Blue Ridge Community and Technical College'. Any reference in this code to the Community and Technical College of Shepherd means Blue Ridge Community and Technical College.
§18B-3C-8. Statewide network of independently accredited community and technical colleges.

(a) By the first day of July, two thousand five, West Virginia shall have There is continued a statewide network of independently accredited community and technical colleges serving every region of the state. This section does not apply to the freestanding community and technical colleges or West Virginia University at Parkersburg.
(b) To be eligible for funds appropriated to develop independently accredited community and technical colleges, a state institution of higher education shall demonstrate the following:
(1) That it has as a part of its institutional compact approved by the Council a step-by-step plan with measurable benchmarks for developing an independently accredited community and technical college that meets the essential conditions set forth in section three of this article;
(2) That it is able to offer evidence to the satisfaction of the Council that it is making progress toward accomplishing the benchmarks established in its institutional compact for developing an independently accredited community and technical college; and
(3) That it has submitted an expenditure schedule approved by the Council which sets forth a proposed plan of expenditures for funds allocated to it from the fund.
(c) The following are recommended strategies for moving from the current arrangement of 'component' community and technical colleges to the legislatively mandated statewide network of independently accredited community and technical colleges serving every region of the state. The Legislature recognizes that there may be other means to achieve this ultimate objective; however, it is the intent of the Legislature that the move from the current arrangement of 'component' community and technical colleges to the legislatively mandated statewide network of independently accredited community and technical colleges serving every region of the state shall be accomplished. The following recommendations are designed to reflect significant variations among regions and the potential impacts on the sponsoring institutions. The statewide network of independently accredited community and technical colleges is comprised of the freestanding community and technical colleges, West Virginia University at Parkersburg, and the following state institutions of higher education:
(1) New River Community and Technical College. --
(A) There is continued the multicampus entity known as New River Community and Technical College, administratively linked to Bluefield State College. New River Community and Technical College is headquartered in the Beckley Higher Education Center and incorporates the campuses of Greenbrier Community College Center of New River Community and Technical College and Nicholas Community College Center of New River Community and Technical College. New River Community and Technical College shall be is an independently accredited community and technical college. The Council shall appoint an institutional board of advisors, pursuant to section one, article six of this chapter, for New River Community and Technical College which is separate from the institutional board of governors of Bluefield State College. The board of advisors shall become the board of governors pursuant to section one, article two-a of this chapter when the institution achieves independent accreditation.
(B) Bluefield State College may continue associate degree programs in areas of particular institutional strength which are closely articulated to their its baccalaureate programs and missions or which are of a high-cost nature and can best be provided through direct coordination with a baccalaureate institution. Any such program shall be delivered under the authority of the Council and through contract with the community and technical college. The terms of the contract shall be negotiated between the Council and the Bluefield State College Governing Board. of the sponsoring institution The final contract is approved by the Council. Such a program shall be evaluated according to the benchmarks and indicators for community and technical college education developed by the Council. If the Council determines that the program is making insufficient progress toward accomplishing the benchmarks, the program shall thereafter be delivered by the community and technical college.
(C) Bluefield State College may continue the associate of science degree in nursing which is an existing nationally accredited associate degree program in an area of particular institutional strength and which is closely articulated to the baccalaureate program and mission. The program is of a high-cost nature and can best be provided through direct administration by a baccalaureate institution. This program may not be transferred to New River Community and Technical College or any other community and technical college as long as the program maintains national accreditation and is seamlessly coordinated into the baccalaureate program at the institution.
(D) By the first day of July, two thousand five, New River community and technical college shall be independently accredited. The president and the board of governors of Bluefield state college are responsible for obtaining independent accreditation of the community and technical college. If the multicampus entity known as New River community and technical college has not obtained independent accreditation by this date, the council shall choose one of the following options:
(I) Create New River as a freestanding community and technical college; or
(ii) Assign the responsibility for obtaining independent accreditation to another state institution of higher education.
(E) The president and the board of governors of Bluefield state college also are accountable to the council for ensuring that the full range of community and technical college services is available throughout the region and that New River community and technical college adheres to the essential conditions pursuant to section three of this article.
(F) As an independently accredited community and technical college, New River also shall serve serves as a higher education center for its region by brokering with other colleges, universities and other providers, in state and out of state, both public and private, to ensure the coordinated access of students, employers and other clients to needed programs and services.
(G) (E) New River Community and Technical College shall participate participates in the planning and development of a unified effort involving multiple providers to meet the documented education and workforce development needs in the region. Nothing in this subdivision prohibits or limits any existing, or the continuation of any existing, affiliation between Mountain State University, West Virginia University Institute of Technology and West Virginia University. The objective is to assure students and employers in the area that there is coordination and efficient use of resources among the separate programs and facilities, existing and planned, in the Beckley area.
(2) Fairmont state community and technical College. -- Fairmont state community and technical college is an independently accredited community and technical college. The community and technical college is developed on the base of the component community and technical college of Fairmont state college. Subject to the provisions of this section, the president and the governing board of Fairmont state college are responsible, according to a plan approved by the council, for step-by-step implementation of the independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to Fairmont State College. Fairmont State College may continue associate degree programs in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution. Any such program shall be delivered under the authority of the Council and through contract with the community and technical college. The terms of the contract shall be negotiated between the Council and the Governing Board. of the sponsoring institution The final contract is approved by the Council. Such a program shall be evaluated according to the benchmarks and indicators for community and technical college education developed by the Council. If the Council determines that the program is making insufficient progress toward accomplishing the benchmarks, the program shall thereafter be delivered by the community and technical college.
(3) Marshall Community and Technical College. -- Marshall Community and Technical College is an independently accredited community and technical college. The new community and technical college is developed on the base of the component community and technical college of Marshall university. Subject to the provisions of this section, the president and the governing board of Marshall university are responsible, according to a plan approved by the council, for step-by-step implementation of the new independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain remains administratively linked to Marshall University. Marshall University may continue associate degree programs in areas of particular institutional strength which are closely articulated to their its baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution. Any such program shall be delivered under the authority of the Council and through contract with the community and technical college. The terms of the contract shall be negotiated between the Council and the Marshall University Governing Board. of the sponsoring institution The final contract is approved by the Council. Such a program shall be evaluated according to the benchmarks and indicators for community and technical college education developed by the Council. If the Council determines that the program is making insufficient progress toward accomplishing the benchmarks, the program shall thereafter be delivered by the community and technical college.
(4) The Community and Technical College of Shepherd. -- The Community and Technical College of Shepherd shall become
(3) Blue Ridge Community and Technical College. -- Blue Ridge Community and Technical College is an independently accredited community and technical college. The new community and technical college is developed on the base of the component community and technical college of Shepherd college. Subject to the provisions of this section, the president and the governing board of Shepherd college are responsible, according to a plan approved by the council, for step-by-step implementation of the new independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain remains administratively linked to Shepherd college University. Shepherd college University may continue associate degree programs in areas of particular institutional strength which are closely articulated to their its baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution. Any such program shall be delivered under the authority of the Council and through contract with the community and technical college. The terms of the contract shall be negotiated between the Council and the Shepherd University Governing Board. of the sponsoring institution The final contract is approved by the Council. Such a program shall be evaluated according to the benchmarks and indicators for community and technical college education developed by the Council. If the Council determines that the program is making insufficient progress toward accomplishing the benchmarks, the program shall thereafter be delivered by the community and technical college.
(5) (4) West Virginia State Community and Technical College. -- West Virginia State Community and Technical College shall become is an independently accredited community and technical college. The new community and technical college is developed on the base of the component community and technical college of West Virginia state college. Subject to the provisions of this section, the president and the governing board of West Virginia state college are responsible, according to a plan approved by the council, for step-by-step implementation of the new independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain remains administratively linked to West Virginia State college University. West Virginia State College University may continue associate degree programs in areas of particular institutional strength which are closely articulated to their its baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution. Any such program shall be delivered under the authority of the Council and through contract with the community and technical college. The terms of the contract shall be negotiated between the Council and the West Virginia State University Governing Board. of the sponsoring institution The final contract is approved by the Council. Such a program shall be evaluated according to the benchmarks and indicators for community and technical college education developed by the Council. If the Council determines that the program is making insufficient progress toward accomplishing the benchmarks, the program shall thereafter be delivered by the community and technical college.
(6) (5) The Community and Technical College at West Virginia University Institute of Technology. -- The Community and Technical College at West Virginia University Institute of Technology is an independently accredited community and technical college. The new community and technical college is developed on the base of the component community and technical college of West Virginia university institute of technology. Subject to the provisions of this section, the president and the governing board of West Virginia university institute of technology are responsible, according to a plan approved by the commission, for step-by-step implementation of the new independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain remains administratively linked to West Virginia University Institute of Technology. West Virginia University Institute of Technology may continue associate degree programs in areas of particular institutional strength which are closely articulated to their its baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution. Any such program shall be delivered under the authority of the Council and through contract with the community and technical college. The terms of the contract shall be negotiated between the Council and the West Virginia University Governing Board. of the sponsoring institution The final contract is approved by the Council. Such a program shall be evaluated according to the benchmarks and indicators for community and technical college education developed by the Council. If the Council determines that the program is making insufficient progress toward accomplishing the benchmarks, the program shall thereafter be delivered by the community and technical college.
(d) For each administratively linked community and technical college which fails to achieve independent accreditation by the first day of July, two thousand five, the council shall choose one of the following options:
(1) Create the administratively linked institution as a freestanding community and technical college; or
(2) Assign the responsibility for obtaining independent accreditation to another state institution of higher education.
The president and the board of governors of each sponsoring institution is accountable to the Council for ensuring that the community and technical college is able to meet the conditions for independent accreditation and adheres to the essential conditions pursuant to section three of this article.
ARTICLE 6. ADVISORY COUNCILS.
§18B-6-1. Institutional boards of advisors for regional campuses and certain administratively linked community and technical colleges.

(a) There is hereby are continued or established institutional boards of advisors as follows:
(1) For each regional campus. The chairperson of the board of advisors of West Virginia University at Parkersburg serves as an ex officio, voting member of the governing board of West Virginia University;
(2) For administratively linked community and technical colleges which share a physical location with the sponsoring institution. This category includes Fairmont State Community and Technical College Marshall Community and Technical College, West Virginia State Community and Technical College and The Community and Technical College at West Virginia University Institute of Technology. The chairperson of the board of advisors of each administratively linked community and technical college serves as an ex officio, voting member of the sponsoring institution's board of governors, or, in the case of The Community and Technical College at West Virginia University Institute of Technology, the chairperson of the board of advisors serves as an ex officio voting member of the governing board of West Virginia University; and
(3) For Pierpont Community and Technical College. The chairperson of the board of advisors of Pierpont Community and Technical College serves as an ex officio, voting member of the Fairmont State University Board of Governors.
New River community and technical college and the community and technical college of Shepherd, until these institutions achieve independent accreditation. As long as New River community and technical college or the community and technical college of Shepherd retains a board of advisors and remains administratively linked to the baccalaureate institution, the chairperson of that board of advisors serves as an ex officio, voting member of the governing board of Bluefield state college or Shepherd college, respectively
(b) The lay members of the institutional boards of advisors for the regional campuses are appointed by the board of governors.
(c) The lay members of the institutional boards of advisors established for the administratively linked community and technical colleges and Pierpont Community and Technical College are appointed by the West Virginia Council for Community and Technical College Education.
(d) The board of advisors consists of fifteen members, including a full-time member of the faculty with the rank of instructor or above duly elected by the faculty of the respective institution; a member of the student body in good academic standing, enrolled for college credit work and duly elected by the student body of the respective institution; a member from the institutional classified employees duly elected by the classified employees of the respective institution; and twelve lay persons appointed pursuant to this section who have demonstrated a sincere interest in and concern for the welfare of that institution and who are representative of the population of its responsibility district and fields of study. At least eight of the twelve lay persons appointed shall be residents of the state. Of the lay members who are residents of the state, at least two shall be alumni of the respective institution and no more than a simple majority may be of the same political party.
(e) The student member serves for a term of one year beginning upon appointment in July, two thousand four, and ending on the thirtieth day of April, two thousand five. Thereafter the term shall begin on the first day of May. The member from the faculty and the classified employees, respectively, serves for a term of two years beginning upon appointment in July, two thousand four, and ending on the thirtieth day of April, two thousand five. Thereafter the term shall begin on the first day of May. and The twelve lay members serve terms of four years each beginning upon appointment in July, two thousand four. Thereafter, the term shall begin on the first day of May. All members are eligible to succeed themselves for no more than one additional term. A vacancy in an unexpired term of a member shall be filled for the remainder of the unexpired term within thirty days of the occurrence thereof in the same manner as the original appointment or election. Except in the case of a vacancy:
(1) Commencing in two thousand five All elections shall be held and all appointments shall be made no later than the thirtieth day of April preceding the commencement of the term; and
(2) Terms of members begin on the first day of May following election. except for two thousand four only, terms begin upon appointment in July
(f) Each board of advisors shall hold a regular meeting at least quarterly, commencing in May of each year. Additional meetings may be held upon the call of the chairperson, president of the institution or upon the written request of at least five members. A majority of the members constitutes a quorum for conducting the business of the board of advisors.
(g) One of the twelve lay members shall be elected as chairperson by the board of advisors in May of each year. except that the chairperson elected in two thousand four shall be elected in July. No A member may not serve as chairperson for more than two consecutive years.
(h) The president of the institution shall make available resources of the institution for conducting the business of the board of advisors. The members of the board of advisors shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their official duties under this section upon presentation of an itemized sworn statement thereof. All expenses incurred by the boards of advisors and the institutions under this section shall be paid from funds allocated to the institutions for that purpose.
(I) Prior to the submission by the president to its governing board, the board of advisors shall review all proposals of the institution in the areas of mission, academic programs, budget, capital facilities and such other matters as requested by the president of the institution or its governing board or otherwise assigned to it by law. The board of advisors shall comment on each such proposal in writing, with such recommendations for concurrence therein or revision or rejection thereof as it considers proper. The written comments and recommendations shall accompany the proposal to the governing board and the governing board shall include the comments and recommendations in its consideration of and action on the proposal. The governing board shall promptly acknowledge receipt of the comments and recommendations and shall notify the board of advisors in writing of any action taken thereon.
(j) Prior to their implementation by the president, the board of advisors shall review all proposals regarding institution-wide personnel policies. The board of advisors may comment on the proposals in writing.
(k) The board of advisors shall provide advice and assistance to the president and the governing board in areas including, but not limited to, the following:
(1) Establishing closer connections between higher education and business, labor, government and community and economic development organizations to give students greater opportunities to experience the world of work. Examples of such experiences include business and community service internships, apprenticeships and cooperative programs;
(2) Communicating better and serving the current workforce and workforce development needs of their service area, including the needs of nontraditional students for college-level skills upgrading and retraining and the needs of employers for specific programs of limited duration; and
(3) Assessing the performance of the institution's graduates and assisting in job placement.
(l) When a vacancy occurs in the office of president of the institution, the board of advisors shall serve as a search and screening committee for candidates to fill the vacancy under guidelines established by the council. When serving as a search and screening committee, the board of advisors and its governing board are each authorized to appoint up to three additional persons to serve on the committee as long as the search and screening process is in effect. The three additional appointees of the board of advisors shall be faculty members of the institution. For the purposes of the search and screening process only, the additional members shall possess the same powers and rights as the regular members of the board of advisors, including reimbursement for all reasonable and necessary expenses actually incurred. Following the search and screening process, the committee shall submit the names of at least three candidates to the council or to the governing board in the case of West Virginia university institute of technology, for consideration. appropriate governing board. If the council or governing board rejects all candidates submitted, the committee shall submit the names of at least three additional candidates and this process shall be repeated until the council or governing board approves one of the candidates submitted. In all cases, the governing board shall make the appointment with the approval of the council or the commission in the case of West Virginia University Institute of Technology. The governing board or the council shall provide all necessary staff assistance to the board of advisors in its role as a search and screening committee. This subsection does not apply to Fairmont State University. The president of Fairmont State University continues to be appointed pursuant to the provisions of section six, article one-b of this chapter.
(m) The boards of advisors shall develop a master plan for those administratively linked community and technical colleges which retain boards of advisors. The ultimate responsibility for developing and updating the master plans at the institutional level resides with the institutional board of advisors, but the ultimate responsibility for approving the final version of these institutional master plans, including periodic updates, resides with the council. The plan shall include, but not be limited to, the following:
(1) A detailed demonstration of how the master plan will be used to meet the goals and objectives of the institutional compact;
(2) A well-developed set of goals outlining missions, degree offerings, resource requirements, physical plant needs, personnel needs, enrollment levels and other planning determinates and projections necessary in such a plan to assure that the needs of the institution's area of responsibility for a quality system of higher education are addressed;
(3) Documentation of the involvement of the commission, institutional constituency groups, clientele of the institution and the general public in the development of all segments of the institutional master plan.
The plan shall be established for periods of not less than three nor more than six years and shall be revised periodically as necessary, including recommendations on the addition or deletion of degree programs as, in the discretion of the board of advisors, may be necessary.
§18B-6-1a. Definitions.
For the purposes of this article, the following words have the meanings specified unless the context clearly indicates a different meaning:
(a) 'Advisory council of Classified Employees' or 'classified council' means the state advisory organization of classified employees created pursuant to section five of this article.
(b) 'Advisory council of Faculty' or 'faculty council' means the state advisory organization of faculty created pursuant to section two of this article.
(c) 'Advisory Council of Students' or 'student advisory council' means the state advisory organization of students created pursuant to section four of this article.
(d) 'Classified employee', in the singular or plural, means any regular full-time or regular part-time employee of a governing board, the commission, the council or the West Virginia Network for Educational Telecomputing who holds a position that is assigned a particular job title and pay grade in accordance with the personnel classification system established by law.
(e) 'Community and technical college' means Eastern West Virginia Community and Technical College, Fairmont State Community and Technical College Marshall Community and Technical College, New River Community and Technical College, West Virginia Northern Community and technical College, The Community and Technical College of Shepherd Blue Ridge Community and Technical College, Southern West Virginia Community and Technical College, West Virginia State Community and Technical College, The Community and Technical College at West Virginia University Institute of Technology, West Virginia University at Parkersburg and any other community and technical college so designated by the Legislature.
(f) 'Council' means the West Virginia Council for Community and Technical College Education created pursuant to section three, article two-b of this chapter.
(g) 'Institutional Classified Employee Council' or 'staff council' means the advisory group of classified employees formed at a state institution of higher education pursuant to section six of this article.
(h) 'Institutional Faculty Senate', 'faculty senate' or 'faculty assembly' means the advisory group of faculty formed at a state institution of higher education pursuant to section three of this article.
(I) 'State institution of higher education', in the singular or plural, means the institutions as defined in section two, article one of this chapter and, additionally, Fairmont state community and technical college Pierpont Community and Technical College, a division of Fairmont State University, Marshall Community and Technical College, New River Community and Technical College, Potomac State college of West Virginia University Robert C. Byrd Health Sciences Charleston Division of West Virginia University, The Community and Technical College of Shepherd Blue Ridge Community and Technical College, West Virginia State Community and Technical College, West Virginia University at Parkersburg, West Virginia University Institute of Technology The Community and Technical College at West Virginia University Institute of Technology, the Higher Education Policy Commission, the West Virginia Council for Community and Technical College Education, the West Virginia Network for Educational Telecomputing and any other institution so designated by the Legislature.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS OF HIGHER EDUCATION.

§18B-10-1. Enrollment, tuition and other fees at education institutions; refund of fees.

(a) Each governing board shall fix tuition and other fees for each school term for the different classes or categories of students enrolling at each state institution of higher education under its jurisdiction and may include among the tuition and fees any one or more of the following as defined in section one-b of this article:
(1) Tuition and required educational and general fees;
(2) Auxiliary and auxiliary capital fees; and
(3) Required educational and general capital fees.
(b) An institution may establish a single special revenue account for each of the following classifications of fees:
(1) All tuition and required educational and general fees collected;
(2) All auxiliary and auxiliary capital fees collected; and
(3) All required educational and general capital fees collected to support existing systemwide and institutional debt service and future systemwide and institutional debt service, capital projects and campus renewal for educational and general facilities.
(4) Subject to any covenants or restrictions imposed with respect to revenue bonds payable from such accounts, an institution may expend funds from each such special revenue account for any purpose for which funds were collected within that account regardless of the original purpose for which the funds were collected.
(c) The purposes for which tuition and fees may be expended include, but are not limited to, health services, student activities, recreational, athletic and extracurricular activities. Additionally, tuition and fees may be used to finance a student's attorney to perform legal services for students in civil matters at the institutions: Provided, That the legal services are limited only to those types of cases, programs or services approved by the administrative head of the institution where the legal services are to be performed.
(d) The commission and council jointly shall propose a rule for legislative approval in accordance with the provisions of article three-a, chapter twenty-nine-a of this code to govern the fixing, collection and expenditure of tuition and other fees.
(e) The Legislature finds that an emergency exists and, therefore, the commission and council jointly shall file the rule required by subsection (d) of this section as an emergency rule pursuant to the provisions of article three-a, chapter twenty-nine-a of this code, subject to the prior approval of the Legislative Oversight Commission on Education Accountability.
(f) The schedule of all tuition and fees, and any changes therein, shall be entered in the minutes of the meeting of the appropriate governing board and the board shall file with the commission or council, or both, as appropriate, and the Legislative Auditor a certified copy of such schedule and changes.
(g) The boards shall establish the rates to be charged full-time students, as defined in section one-b of this article, who are enrolled during a regular academic term.
(1) Undergraduate students taking fewer than twelve credit hours in a regular term shall have their fees reduced pro rata based upon one twelfth of the full-time rate per credit hour and graduate students taking fewer than nine credit hours in a regular term shall have their fees reduced pro rata based upon one ninth of the full-time rate per credit hour.
(2) Fees for students enrolled in summer terms or other nontraditional time periods shall be prorated based upon the number of credit hours for which the student enrolls in accordance with the above provisions.
(h) All fees are due and payable by the student upon enrollment and registration for classes except as provided in this subsection:
(1) The governing boards shall permit fee payments to be made in installments over the course of the academic term. All fees shall be paid prior to the awarding of course credit at the end of the academic term.
(2) The governing boards also shall authorize the acceptance of credit cards or other payment methods which may be generally available to students for the payment of fees. The governing boards may charge the students for the reasonable and customary charges incurred in accepting credit cards and other methods of payment.
(3) If a governing board determines that a student's finances are affected adversely by a legal work stoppage, it may allow the student an additional six months to pay the fees for any academic term. The governing board shall determine on a case-by-case basis if the finances of a student are affected adversely.
(4) The commission and council jointly shall propose a rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code, defining conditions under which an institution may offer tuition and fee deferred payment plans through the institution or through third parties.
(5) An institution may charge interest or fees for any deferred or installment payment plans.
(I) In addition to the other fees provided in this section, each governing board may impose, collect and distribute a fee to be used to finance a nonprofit, student-controlled public interest research group if the students at the institution demonstrate support for the increased fee in a manner and method established by that institution's elected student government. The fee may not be used to finance litigation against the institution.
(j) Institutions shall retain tuition and fee revenues not pledged for bonded indebtedness or other purposes in accordance with the tuition rule proposed by the commission and council jointly pursuant to this section. The tuition rule shall:
(1) Provide a basis for establishing nonresident tuition and fees;
(2) Allow institutions to charge different tuition and fees for different programs;
(3) Provide that a board of governors may propose to the commission, council or both, as appropriate, a mandatory auxiliary fee under the following conditions:
(A) The fee shall be approved by the commission, council or both, as appropriate, and either the students below the senior level at the institution or the Legislature before becoming effective;
(B) Increases may not exceed previous state subsidies by more than ten percent;
(C) The fee may be used only to replace existing state funds subsidizing auxiliary services such as athletics or bookstores;
(D) If the fee is approved, the amount of the state subsidy shall be reduced annually by the amount of money generated for the institution by the fees. All state subsidies for the auxiliary services shall cease five years from the date the mandatory auxiliary fee is implemented;
(E) The commission, council or both, as appropriate, shall certify to the Legislature by the first day of October in the fiscal year following implementation of the fee, and annually thereafter, the amount of fees collected for each of the five years;
(4) Establish methodology, where applicable, to ensure that, within the appropriate time period under the compact, community and technical college tuition rates for community and technical college students in all independently accredited community and technical colleges will be commensurate with the tuition and fees charged by their peer institutions.
(k) A penalty may not be imposed by the commission or council upon any institution based upon the number of nonresidents who attend the institution unless the commission or council determines that admission of nonresidents to any institution or program of study within the institution is impeding unreasonably the ability of resident students to attend the institution or participate in the programs of the institution. The institutions shall report annually to the commission or council on the numbers of nonresidents and such other enrollment information as the commission or council may request.
(l) Tuition and fee increases of the governing boards, except for the governing boards of the state institutions of higher education known as Marshall University and West Virginia University, are subject to rules adopted by the commission and council jointly pursuant to this section and in accordance with the provisions of article three-a, chapter twenty-nine-a of this code.
(1) Subject to the provisions of subdivision (4) of this subsection, a governing board of an institution under the jurisdiction of the commission may propose tuition and fee increases of up to nine and one-half percent for undergraduate resident students for any fiscal year. The nine and one-half percent total includes the amount of increase over existing tuition and fees, combined with the amount of any newly established, specialized fee which may be proposed by a governing board: Provided, That capital fees dedicated to debt service for a specific project or projects may be raised beyond the statutory cap established in this subsection.
(2) A governing board of an institution under the jurisdiction of the council may propose tuition and fee increases of up to four and three quarters percent for undergraduate resident students for any fiscal year. The four and three-quarters percent total includes the amount of increase over existing tuition and fees, combined with the amount of any newly established, specialized fee which may be proposed by a governing board.
(3) The commission or council, as appropriate, shall examine individually each request from a governing board for an increase.
(4) The governing boards of Marshall University and West Virginia University, as these provisions relate to the state institutions of higher education known as Marshall University and West Virginia University, each may annually:
(A) Increase tuition and fees for undergraduate resident students to the maximum allowed by this section without seeking approval from the commission; and
(B) Set tuition and fee rates for post-baccalaureate resident students and for all nonresident students, including establishing regional tuition and fee rates, reciprocity agreements or both.
(C) The provisions of this subdivision do not apply to tuition and fee rates of the administratively linked institution known as Marshall Community and Technical College, the administratively linked institution known as The Community and Technical College at West Virginia University Institute of Technology and the regional campuses campus known as West Virginia University Institute of Technology and West Virginia University at Parkersburg.
(5) Any proposed tuition and fee increase for state institutions of higher education other than the state institutions of higher education known as Marshall University and West Virginia University requires the approval of the commission or council, as appropriate. In determining whether to approve or deny the governing board's request, the commission or council shall determine the progress the institution has made toward meeting the conditions outlined in this subdivision and shall make this determination the predominate factor in its decision. The commission or council shall consider the degree to which each institution has met the following conditions:
(A) Has maximized resources available through nonresident tuition and fee charges to the satisfaction of the commission or council;
(B) Is consistently achieving the benchmarks established in the compact of the institution pursuant to the provisions of article one-a of this chapter;
(C) Is continuously pursuing the statewide goals for post-secondary education and the statewide compact established in articles one and one-a of this chapter;
(D) Has demonstrated to the satisfaction of the commission or council that an increase will be used to maintain high-quality programs at the institution;
(E) Has demonstrated to the satisfaction of the commission or council that the institution is making adequate progress toward achieving the goals for education established by the southern regional education board; and
(F) To the extent authorized, will increase by up to five percent the available tuition and fee waivers provided by the institution. The increased waivers may not be used for athletics.
(6) This section does not require equal increases among institutions or require any level of increase at an institution.
(7) The commission and council shall report to the Legislative Oversight commission on Education Accountability regarding the basis for each approval or denial as determined using the criteria established in subdivision (5) of this subsection."
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 630), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 792) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 792 - "A Bill to repeal 18B-2-9 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §18B-1-7; to amend and reenact §18B- 1B-6 of said code; to amend and reenact §18B-2A-1 and §18B-2A-8 of said code: to amend and reenact §18B-3-1 of said code; to amend and reenact §18B-3C-4 and §18B-3C-8 of said code; to amend said code by adding thereto a new section, designated §18B-3C-7; and to amend and reenact §18B-6-1 and §18B-6-1a of said code; and to amend and reenact §18B-10-1 of said code, all relating to making Fairmont State Community and Technical College, a division of Fairmont State University, and changing its name to Pierpont Community and Technical College, clarifying definitions; dissolving certain advisory board; clarifying process for delivery of community and technical college education in certain location; providing exception to process for achieving independently accredited community and technical colleges; designating Community and Technical College of Shepherd as Blue Ridge Community and Technical College; retaining the name of West Virginia University Institute of Technology; establishing legislative findings and intent regarding minimizing the disparity between West Virginia University and West Virginia University Institute of Technology faculty salary levels and capitol improvement needs, requiring West Virginia University Institute of Technology to develop baccalaureate degree programs to educator preparation, environmental science, and integrated science and technology; adding the Chair of West Virginia University Institute of Technology Board of visitors as an ex officio, voting member of West Virginia University Governing Board, establishing the responsibilities of Pierpont Community and Technical College; maintaining a board of advisors for the delivery of community and technical college education at Fairmont State University; eliminating the requirement that the governing board chairs of Shepherd University and the community and technical college of Shepherd, whose name is changed to Blue Ridge Community and Technical College, and Bluefield State College and New River Community and Technical college, serve on each others board of governors; establishing an evaluation process for the relationship between Fairmont State University and Pierpont Community and Technical College; establishing a sunset date of the first day of July, two thousand nine; establishing that capital fees for institutions under the Higher Education Policy Commission can be above the cap established for payment of a debt service for a specific project or projects; allowing certain university status schools not under the jurisdiction of a governing board that also has a community and technical college to have flexibility granted to Marshall and West Virginia University; making technical corrections; and repealing obsolete provisions."
Delegate Staton moved that the bill take effect July 1, 2006.
On this question, the yeas and nays were taken (Roll No. 631), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 792) takes effect July 1, 2006.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to
Com. Sub. for S. B. 357, Authorizing Department of Revenue promulgate legislate rules.
On motion of Delegate Staton, the bill was taken up for immediate consideration and the House of Delegates receded from its amendment thereto.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 632), and there were--yeas 82, nays 16, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Blair, Border, Brown, Caputo, Eldridge, Frich, Hatfield, Lane, Longstreth, Louisos, Manchin, Sobonya, Spencer, Walters and Webster.
Absent And Not Voting: Ferrell and Leggett.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 357) passed.
Delegate Staton moved that the bill take effect from it passage.
On this question, the yeas and nays were taken (Roll No. 633), and there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Louisos and Sobonya.
Absent And Not Voting: Ferrell.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 357) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to
Com. Sub. for S. B. 173, Relating to public employees preretirement death benefits.
On motion of Delegate Staton, the House of Delegates refused to recede and insisited on its amendment to the bill.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Committee Reports

Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
S. C. R. 1, Requesting Division of Highways name bridge at Allen Junction, Wyoming County, "Staff Sergeant Grover Robert Taylor Memorial Bridge",
S. C. R. 3, Requesting Division of Highways name bridge at Corrine, Wyoming County, "Paul and Roger Harsanyi Memorial Bridge",
S. C. R. 15, Requesting Department of Transportation name Division of Motor Vehicles' facility in Williamson, Mingo County, "Tom C. Chafin Division of Motor Vehicles Memorial Facility",
S. C. R. 19, Requesting Division of Highways name bridge at Miller's Creek, Mingo County, "Arnold J. Starr Memorial Bridge",
S. C. R. 23, Requesting Division of Highways name bridge at Delbarton, Mingo County, "Dr. J. R. 'Bob' Farley Memorial Bridge",
S. C. R. 27, Requesting Division of Highways name bridge at Pinch, Kanawha County, "Cross Brothers' Bridge",
S. C. R. 28, Requesting Division of Highways name bridge at Keyser, Mineral County, "Jonah E. Kelley, World War II Congressional Medal of Honor Recipient, Memorial Bridge",
S. C. R. 31, Requesting Division of Highways rename Watson Bridge in Fairmont, Marion County, "Jim Costello Memorial Bridge",
S. C. R. 33, Requesting Division of Highways name bridge in Wellsburg, Brooke County, "John G. Chernenko Bridge",
S. C. R. 45, Requesting Division of Highways name bridge at Panther, McDowell County, "Green B. and Margie Blankenship Memorial Bridge",
S. C. R. 51, Requesting Division of Highways name bridge between Huntington, Cabell County, and Proctorville, Ohio, "Frank 'Gunner' Gatski Memorial Bridge",
S. C. R. 56, Requesting Division of Highways name bridge in Nolan, Mingo County, "William Shayde Chapman Bridge",
S. C. R. 64, Requesting Division of Highways name bridge in Sharples, Logan County, "Sharples Stags Memorial Bridge",
S. C. R. 67, Requesting Division of Highways rename Centennial Park between Parsons and Thomas, Tucker County, "Fred Long Centennial Park",
S. C. R. 79, Requesting Division of Highways rename Warriormine Road in War, McDowell County, "Glenn Hatcher Way",
S. C. R. 80, Requesting Joint Committee on Government and Finance study all-terrain vehicle safety regulations,
S. C. R. 86, Requesting Building Commission name hospital building at John Manchin Sr. Health Care Center "Nick Fantasia Building",
And,
S. C. R. 93, Requesting Division of Highways name section of Route 9 from Berkeley County to Morgan County, "Senator Clarence E. Martin, Jr., Memorial Highway".
And reports the same back with the recommendation that they each be adopted.
At the request of Delegate Staton, and by unanimous consent, the resolutions (S. C. R. 1, S. C. R. 3, S. C. R. 15, S. C. R. 19, S. C. R. 23, S. C. R. 27, S. C. R. 28, S. C. R. 31, S. C. R. 33, S. C. R. 45, S. C. R. 51, S. C. R. 56, S. C. R. 64, S. C. R. 67, S. C. R. 79, S. C. R. 80, S. C. R. 80, S. C. R. 86 and S. C. R. 93) were taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4048,Placing limitations on the use of eminent domain.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §54-1-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §54-1-2a, to read as follows:
ARTICLE 1. RIGHT OF EMINENT DOMAIN.
§54-1-2. Public uses for which private property may be taken or damaged.

The public uses for which private property may be taken or damaged are as follows:
(a) For the construction, maintenance and operation of railroad and traction lines (including extension, lateral and branch lines, spurs, switches and sidetracks), canals, public landings, wharves, bridges, public roads, streets, alleys, parks and other works of internal improvement, for the public use;
(b) For the construction and maintenance of telegraph, telephone, electric light, heat and power plants, systems, lines, transmission lines, conduits, stations (including branch, spur and service lines), when for public use;
(c) For constructing, maintaining and operating pipelines, plants, systems and storage facilities for manufacturing gas and for transporting petroleum oil, natural gas, manufactured gas, and all mixtures and combinations thereof, by means of pipes, pressure stations or otherwise, (including the construction and operation of telephone and telegraph lines for the service of such systems and plants), and for underground storage areas and facilities, and the operation and maintenance thereof, for the injection, storage and removal of natural gas in subterranean oil and/or gas bearing stratum, which, as shown by previous exploration of the stratum sought to be condemned and within the limits of the reservoir proposed to be utilized for such purposes, has ceased to produce or has been proved to be nonproductive of oil and/or gas in substantial quantities, when for public use, the extent of the area to be acquired for such purpose to be determined by the court on the basis of reasonable need therefor. Nothing in this subsection shall be construed to interfere with the power of the state and its political subdivisions to enact and enforce ordinances and regulations deemed necessary to protect the lives and property of citizens from the effects of explosions of oil or gas;
(d) For constructing, maintaining and operating, water plants and systems, including lines for transporting water by any corporate body politic, or private corporation, for supplying water to the inhabitants of any city, town, village or community, for public use, including lands for pump stations, reservoirs, cisterns, storage dams, and other means of storing, purifying and transporting water, and the right to take and damage lands which may be flooded by the impounded waters, and to appropriate any spring, stream and the surrounding property necessary to protect, preserve and maintain the purity of any such spring, stream, reservoir, cistern and water impounded by means of any storage dam;
(e) For the purpose of constructing, maintaining and operating sewer systems, lines and sewage disposal plants, to collect, transport and dispose of sewage. When in the interest of the public welfare and the preservation of the public health, the construction of a sewer line to serve a single building or institution shall be deemed a public use, and, for such purpose, the right of eminent domain, if within a municipal corporation, may be exercised in the name of a municipal corporation, and if not within a municipal corporation, in the name of the county court commission of the county in which the property is located;
(f) For the reasonable use by an incorporated company engaged in a public enterprise of which the state or any county or municipality is the sole or a part owner;
(g) For courthouses and municipal buildings, parks, public playgrounds, the location of public monuments, and all other public buildings;
(h) For cemeteries, and the extension and enlargement of existing cemeteries: Provided, That no lands shall be taken for cemetery purposes which lie within four hundred feet of a dwelling house, unless to extend the boundaries of an existing cemetery, and then only in such manner that the limits of the existing cemetery shall not be extended nearer than four hundred feet of any dwelling house distant four hundred feet or more from such cemetery, or nearer than it was to any dwelling house which is within four hundred feet thereof;
(I) For public schools, public libraries and public hospitals;
(j) For the construction and operation of booms (including approaches, landings and ways necessary for such objects), when for a public use;
(k) By the State of West Virginia for any and every other public use, object and purpose not herein specifically mentioned, but in no event may 'public use', for the purposes of this subdivision, be construed to mean the exercise of eminent domain primarily for private economic development.
For purposes of this subdivision, no private property may be taken by the State of West Virginia or its political subdivisions without the owner's consent when the primary purpose of the taking is economic development that will ultimately result in ownership or control of the property transferring to another private entity, other than one having the power of eminent domain, whether by purchase agreement, long-term lease agreement or any other mechanism whereby ownership or control is effectively transferred:
Provided, That a municipal urban renewal authority may exercise a right of eminent domain as to property only within an area designated a slum area or blighted area under the provisions of article eighteen, chapter sixteen of this code.
In this subdivision, 'unblighted property' means a tract or parcel of land that is not blighted, and 'blighted property' means a tract or parcel of land that, by reason of abandonment, dilapidation, deterioration, age or obsolescence, inadequate provisions for ventilation, light, air or sanitation, high density of population and overcrowding, deterioration of site or other improvements, or the existence of conditions that endanger life or property by fire or other causes, or any combination of such factors, is detrimental to the public health, safety, or welfare.
When any area has been declared to be slum and blighted, pursuant to the provisions provided in this code, a private property owner may demonstrate to the municipal authority proposing the condemnation that the property in itself is not a slum or blighted property. Should the private property owner succeed in such demonstration, in order to proceed with condemnation, the municipal authority must then demonstrate that the project or program requiring the clearance of the slum and blighted area:
(1) Cannot proceed without the condemnation of the private property at issue;
(2) That the private property shown not to be blighted cannot be integrated into the proposed project or program once the slum and blighted area surrounding such property is taken and cleared;
(3) That the condemnation of the unblighted property is necessary for the clearance of an area deemed to be slum or blighted;
(4) That other alternatives to the condemnation of the unblighted property are not reasonably practical;
(5) That every reasonable effort has been taken to ensure that the unblighted property and its owners have been given a reasonable opportunity to be included in the redevelopment project or plan without the use of eminent domain;
(6) That no alternative site within the slum and blighted area is available for purchase by negotiation that might substitute as a sight for the unblighted property;
(7) That the redevelopment project or plan could not be restructured to avoid the taking of the unblighted property;
(8) That the redevelopment project or plan could not be carried out by private developers without the use of eminent domain; and
(9) That there is specific use for the unblighted property to be taken and a plan to redevelop and convert the unblighted property from its current use to the stated specific use basically exists.
In each case where the private property owner has demonstrated the property is not blighted or the municipal authority has demonstrated the proposed program or project can not co-exist with the private property remaining, either party shall have the right to seek review in the circuit court within the county wherein the property lies to demonstrate that there is a reasonable basis for the decisions made and a need for the condemnation of the property.
All of the rights and remedies contained in article three, chapter fifty-four of this code, concerning relocation assistance are available to the private property owner whose unblighted property is being condemned, and if the property to be condemned contains a business owned by the property owner, the property owner is entitled to the amount, if any, which when added to the acquisition cost of the property acquired by the condemning authority, equals the reasonable cost of obtaining a comparable building or property having substantially the same characteristics of the property sought to be taken.
In this subdivision, a municipal urban renewal authority's, as well as the private property owner's burden of proof is by non-arbitrary and non-capricious evidence and based upon fact of record.
By the United States of America for each and every legitimate public use, need and purpose of the government of the United States, within the purview, and subject to the provisions of chapter one of this code.
(l) For constructing, maintaining and operating pipelines, plants, systems and storage facilities, for the transportation by common carrier as a public utility of coal and its derivatives and all mixtures and combinations thereof with any substance by means of pipes, pressure stations or otherwise (including the construction and operation of telephone and telegraph lines for the service of such systems and plants), for public use: Provided, That the common carrier engages in some intrastate activity in this state, if there is any reasonable demand therefor: Provided, however, That in addition to all other requisites by federal or state constitutions, statute or common law required for the taking of private property for public use, a further prerequisite and condition precedent to the exercise of such taking of or damage to private property for public use as in this subsection hereinabove provided, is that the Public Service Commission of this state, in an appropriate hearing and proceeding on due notice to all interested persons, firms or corporations, in accordance with the procedure now or hereafter established by statute and the regulations thereunder, shall have found that such pipeline transportation of coal and its derivatives and all mixtures and combinations thereof is required for the public convenience and necessity, and that the Public Service Commission of this state shall not extend a certificate of convenience and necessity or make such finding of public convenience and necessity unless, in addition to the other facts required to support such findings, it shall have been established by the applicant therefor that the patents and other similar rights under which the applicant proposes to construct, maintain or operate such pipeline, plants, systems and storage facilities shall be and shall remain equally available, insofar as said subsequent applicant may determine such availability, upon fair and reasonable terms, to other bona fide applicants seeking a certificate of convenience and necessity and finding of fact for any other pipeline in West Virginia; for the purpose of making the findings hereinbefore set forth the Public Service Commission shall have and exercise jurisdiction, and that the aforesaid findings in this proviso above set forth shall be subject to judicial review as in other Public Service Commission proceedings.
It is the intention of the Legislature in amending this section by the addition of subdivision (1) as set forth above to extend the right of eminent domain to coal pipelines for public use; to provide for regulation of such coal pipelines by the Public Service Commission of this state or the Interstate Commerce Commission of the United States of America, or both; to assure that such rights shall be extended only to public utilities or common carriers as distinguished from private carriers or contract carriers; to make patents covering the same equally available to others on fair and reasonable terms; and to prevent monopolistic use of coal pipelines by any users thereof which would result in any appreciable economic detriment to others similarly situated by reasons of any such monopoly.
§54-1-2a. Notice; good faith purchase.
Prior to initiation of any condemnation proceeding pursuant to slum and blight, the applicant must make a reasonable attempt to notify all parties subject to a petition for condemnation provided in section two of this article, and attempt to enter into negotiations for purchase of the property with the owners. The applicant shall make an offer in good faith for the purchase of the property subject to the condemnation prior to initiation of the condemnation proceeding."
And,
By amending the title of the bill to read as follows:
H. B. 4048 - "A Bill to amend and reenact §54-1-2 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §54-1-2a, all relating to eminent domain; clarifying the term public use for eminent domain purposes; establishing a procedure for municipal urban renewal authorities to use eminent domain for blighted and unblighted property; requiring notice of condemnation to property owners; and requiring a good faith offer prior to condemnation."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with further amendments:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §16-18-3, §16-18-6 and §16-18-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §16-18-6a, and that §54-1-2 be amended and reenacted; and that said code be amended by adding thereto a new section, designated §54-1-2a, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 18. SLUM CLEARANCE.
§16-18-3. Definitions.

The following terms, wherever used or referred to in this article, shall have the following meanings, unless a different meaning is clearly indicated by the context:
(I) (a) 'Area of operation' shall mean means in the case of a municipality, the area within such municipality and the area within five miles of the territorial boundaries thereof, except that the area of operation of a municipality under this article shall not include any area which lies within the territorial boundaries of another municipality unless a resolution shall have been adopted by the governing body of such other municipality declaring a need therefor; and in the case of a county, the area within the county, except that the area of operation in such case shall not include any area which lies within the territorial boundaries of a municipality unless a resolution shall have been adopted by the governing body of such municipality declaring a need therefor; and in the case of a regional authority, shall mean the area within the communities for which such regional authority is created: Provided, That a regional authority shall not undertake a redevelopment project within the territorial boundaries of any municipality unless a resolution shall have been adopted by the governing body of such municipality declaring that there is a need for the regional authority to undertake such development project within such municipality. No authority shall operate in any area of operation in which another authority already established is undertaking or carrying out a redevelopment project without the consent, by resolution, of such other authority.
(a) (b) 'Authority', or 'slum clearance and redevelopment authority' or 'urban renewal authority' shall mean means a public body, corporate and politic, created by or pursuant to section four of this article or any other public body exercising the powers, rights and duties of such an authority as hereinafter provided.
(k) (c) 'Blighted area' shall mean means an area, other than a slum area, which by reason of the predominance of defective or inadequate street layout, faulty lot layout in relation to size, adequacy, accessibility or usefulness, insanitary or unsafe conditions, deterioration of site improvement, diversity of ownership, tax or special assessment delinquency exceeding the fair value of the land, defective or unusual conditions of title, improper subdivision or obsolete platting, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, substantially impairs or arrests the sound growth of the community, retards the provision of housing accommodations or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare in its present condition and use.
(d) 'Blighted property' means a tract or parcel of land that, by reason of abandonment, dilapidation, deterioration, age or obsolescence, inadequate provisions for ventilation, light, air or sanitation, high density of population and overcrowding, deterioration of site or other improvements, or the existence of conditions that endanger life or property by fire or other causes, or any combination of such factors, is detrimental to the public health, safety or welfare.
(q) (e) 'Bonds' shall mean means any bonds, including refunding bonds, notes, interim certificates, debentures, or other obligations issued by an authority pursuant to this article.
(c) (f) 'Community' shall mean means any municipality or county in the state.
(g) 'Clerk' shall mean means the clerk or other official of the municipality or county who is the custodian of the official records of such municipality or county.
(h) 'Federal government' shall include is the United States of America or any agency or instrumentality, corporate or otherwise, of the United States of America.
(e) (I) 'Governing body' shall mean means the council or other legislative body charged with governing the municipality or the county court or other legislative body charged with governing the county.
(f) (j) 'Mayor' shall mean means the officer having the duties customarily imposed upon the executive head of a municipality.
(b) (k) 'Municipality' shall mean means any incorporated city, town or village in the state.
(r) (l) 'Obligee' shall include means any bondholder, agents or trustees for any bondholders, or lessor demising to the authority property used in connection with a redevelopment project, or any assignee or assignees of such lessor's interest or any part thereof, and the federal government when it is a party to any contract with the authority.
(s) (m) 'Person' shall mean means any individual, firm, partnership, corporation, company, association, joint stock association, or body politic; and shall include any trustee, receiver, assignee, or other similar representative thereof.
(d) (n) 'Public body' shall mean means the state or any municipality, county, township, board, commission, authority, district, or any other subdivision or public body of the state.
(p) (o) 'Real property' shall include includes all lands, including improvements and fixtures thereon, and property of any nature appurtenant thereto, or used in connection therewith, and every estate, interest and right, legal or equitable, therein, including terms for years and liens by way of judgment, mortgage or otherwise and the indebtedness secured by such liens.
(n) (p) 'Redeveloper' shall mean means any person, partnership, or public or private corporation or agency which shall enter or propose to enter into a redevelopment contract.
(o) (q) 'Redevelopment contract' shall mean means a contract entered into between an authority and a redeveloper for the redevelopment of an area in conformity with a redevelopment plan.
(m) (r) 'Redevelopment plan' shall mean means a plan for the acquisition, clearance, reconstruction, rehabilitation, or future use of a redevelopment project area.
(l) (s) 'Redevelopment project' shall mean means any work or undertaking:
(1) To acquire pursuant to the limitations contained in subdivision (11), section two, article one, chapter fifty-four slum areas or blighted areas or portions thereof, including lands, structures, or improvements the acquisition of which is necessary or incidental to the proper clearance, development or redevelopment of such slum or blighted areas or to the prevention of the spread or recurrence of slum conditions or conditions of blight;
(2) To clear any such areas by demolition or removal of existing buildings, structures, streets, utilities or other improvements thereon and to install, construct, or reconstruct streets, utilities, and site improvements essential to the preparation of sites for uses in accordance with a redevelopment plan;
(3) To sell, lease or otherwise make available land in such areas for residential, recreational, commercial, industrial or other use or for public use or to retain such land for public use, in accordance with a redevelopment plan; and
The term 'redevelopment project' may also include the
(4) Preparation
of a redevelopment plan, the planning, survey and other work incident to a redevelopment project and the preparation of all plans and arrangements for carrying out a redevelopment project.
(j) (t) 'Slum area' shall mean means an area in which there is a predominance of buildings or improvements or which is predominantly residential in character, and which, by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency and crime, and is detrimental to the public health, safety, morals or welfare.
(u) 'Unblighted property' means a property that is not a blighted property.
§16-18-6. Preparation and approval of redevelopment plans.

(a) An authority shall not acquire real property for a redevelopment project unless the governing body of the community in which the redevelopment project area is located has approved the redevelopment plans, as prescribed in subsection (I) below.
(b) An authority shall not prepare a redevelopment plan for a redevelopment project area unless the governing body of the community in which such area is located has, by resolution, declared such area to be a slum or blighted area in need of redevelopment.
(c) An authority shall not recommend a redevelopment plan to the governing body of the community in which the redevelopment project area is located until a general plan for the development of the community has been prepared.
(d) The authority may itself prepare or cause to be prepared a redevelopment plan or any person or agency, public or private, may submit such a plan to an authority. A redevelopment plan shall be sufficiently complete to indicate its relationship to definite local objectives as to appropriate land uses, improved traffic, public transportation, public utilities, recreational and community facilities and other public improvements and the proposed land uses and building requirements in the redevelopment project area, and shall include without being limited to:
(1) The boundaries of the redevelopment project area, with a map showing the existing uses and conditions of the real property therein;
(2) A land use plan showing proposed uses of the area;
(3) Information showing the standards of population densities, land coverage and building intensities in the area after redevelopment;
(4) A statement of the proposed changes, if any, in zoning ordinances or maps, street layouts, street levels or grades, building codes and ordinances;
(5) A site plan of the area; and
(6) A statement as to the kind and number of additional public facilities or utilities which will be required to support the new land uses in the area after redevelopment.
(e) Prior to recommending a redevelopment plan to the governing body for approval, an authority shall submit such plan to the planning commission of the community in which the redevelopment project area is located for review and recommendations as to its conformity with the general plan for the development of the community as a whole. The planning commission shall submit its written recommendations with respect to the proposed redevelopment plan to the authority within thirty days after receipt of the plan for review. Upon receipt of the recommendations of the planning commission or, if no recommendations are received within said thirty days, then without such recommendations, an authority may recommend the redevelopment plan to the governing body of the community for approval.
(f) Prior to recommending a redevelopment plan to the governing body for approval, an authority shall consider whether the proposed land uses and building requirements in the redevelopment project area are designed with the general purpose of accomplishing, in conformance with the general plan, a coordinated, adjusted and harmonious development of the community and its environs which will, in accordance with present and future needs, promote health, safety, morals, order, convenience, prosperity and the general welfare, as well as efficiency and economy in the process of development; including, among other things, adequate provision for traffic, vehicular parking, the promotion of safety from fire, panic and other dangers, adequate provision for light and air, the promotion of the healthful and convenient distribution of population, the provision of adequate transportation, water, sewerage and other public utilities, schools, parks, recreational and community facilities and other public requirements, the promotion of sound design and arrangement, the wise and efficient expenditure of public funds, the prevention of the recurrence of insanitary or unsafe dwelling accommodations, slums, or conditions of blight, and the provision of adequate, safe and sanitary dwelling accommodations.
(g) The recommendation of a redevelopment plan by an authority to the governing body shall be accompanied by the recommendations, if any, of the planning commission concerning the redevelopment plan; a statement of the proposed method and estimated cost of the acquisition and preparation for redevelopment of the redevelopment project area and the estimated proceeds or revenues from its disposal to redevelopers; a statement of the proposed method of financing the redevelopment project; and a statement of a feasible method proposed for the relocation of families to be displaced from the redevelopment project area.
(h) The governing body of the community shall hold a public hearing on any redevelopment plan or substantial modification thereof recommended by the authority, after public notice thereof by publication 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 community. Public notice shall also include notice by certified letter, return receipt requested to each property owner of record of all affected properties of the proposed project. The notice shall include:
(1) Notice of the public hearing time, date and location;
(2) The right to have an inspection by the municipal authority to determine if the property is blighted or unblighted;
(3) The inspection procedures; and
(4) The rights the property owner has pursuant to section six-a of this article relating to unblighted properties in blighted or slum areas.

The last publication shall be at least ten days prior to the date set for the hearing. The notice shall describe the time, date, place and purpose of the hearing and shall also generally identify the area to be redeveloped under the plan. All interested parties shall be afforded at such public hearing a reasonable opportunity to express their views respecting the proposed redevelopment plan. The municipal authority shall consider reasonable alternatives for the redevelopment project that will minimize the use of eminent domain against any properties that are not blighted.
(i) Following such hearing, the governing body may approve a redevelopment plan if it finds that said plan is feasible and in conformity with the general plan for the development of the community as a whole: Provided, That if the redevelopment project area is a blighted area, the governing body must also find that a shortage of housing of sound standards and designs, adequate for family life, exists in the community; the need for housing accommodations has been or will be increased as a result of the clearance of slums in other areas under redevelopment; the conditions of blight in the redevelopment project area and the shortage of decent, safe and sanitary housing cause or contribute to an increase in and spread of disease and crime and constitute a menace to the public health, safety, morals or welfare; and that the development of the blighted area for predominantly residential uses is an integral part of and essential to the program of the community for the elimination of slum areas. A redevelopment plan which has not been approved by the governing body when recommended by the authority may again be recommended to it with any modifications deemed advisable.
(j) A redevelopment plan may be modified at any time by the authority: Provided, That if modified after the lease or sale of real property in the redevelopment project area, the modification must be consented to by the redeveloper or redevelopers of such real property or his successor, or their successors in interest affected by the proposed modification. Where the proposed modification will substantially change the redevelopment plan as previously approved by the governing body the modification must similarly be approved by the governing body.
§16-18-6a. Municipal non-blighted property in slum or blight areas.
(a) The municipal authority shall have the burden to show that a property is blighted. If the property owner does not allow the authority to conduct and inspection of the property to determine whether it is appropriate to deem the property blighted or unblighted, then it is a rebuttable presumption that the property is blighted.
(b) When any area has been declared to be slum and blighted, pursuant to the provisions of this article, if a private property within that area is found to not be a blighted property, then to condemn the property pursuant to article two, chapter fifty four of the code, the municipal authority must demonstrate, in addition to all other lawful condemnation requirements, that the project or program requiring the clearance of the slum and blighted area:
(1) Cannot proceed without the condemnation of the private property at issue;
(2) That the private property shown not to be blighted cannot be integrated into the proposed project or program once the slum and blighted area surrounding such property is taken and cleared;
(3) That the condemnation of the unblighted property is necessary for the clearance of an area deemed to be slum or blighted;
(4) That other alternatives to the condemnation of the unblighted property are not reasonably practical;
(5) That every reasonable effort has been taken to ensure that the unblighted property and its owners have been given a reasonable opportunity to be included in the redevelopment project or plan without the use of eminent domain;
(6) That no alternative site within the slum and blighted area is available for purchase by negotiation that might substitute as a site for the unblighted property;
(7) That the redevelopment project or plan could not be restructured to avoid the taking of the unblighted property;
(8) That the redevelopment project or plan could not be carried out without the use of eminent domain; and
(9) That there is specific use for the unblighted property to be taken and a plan to redevelop and convert the unblighted property from its current use to the stated specific use basically exists.
(c) In any case when the municipal authority has decided to pursue condemnation, the property owner shall have the right to seek review in the circuit court within the county wherein the property lies. Prior to authorizing condemnation as provided pursuant to article two, chapter fifty- four of the code, the court must find that the property is blighted, or if unblighted, that the authority has met the requirements of subsection (b) of this section.
(d) All of the rights and remedies contained in article three, chapter fifty-four of this code concerning relocation assistance are available to the private property owner whose unblighted property is being condemned, and if the property to be condemned contains a business owned by the property owner, the property owner is entitled to the amount, if any, which when added to the acquisition cost of the property acquired by the condemning authority, equals the reasonable cost of obtaining a comparable building or property having substantially the same characteristics of the property sought to be taken.
§16-18-8. Eminent domain.

(a) An authority shall have the right to acquire by the exercise of the power of eminent domain, pursuant to the limitations contained in subdivision (11), section two, article one, chapter fifty-four, any real property which it may deem necessary for a redevelopment project or for its purposes under this article after the adoption by it of a resolution declaring that the acquisition of the real property described therein is necessary for such purposes. An authority may exercise the power of eminent domain in the manner provided for condemnation proceedings, in chapter fifty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, or it may exercise the power of eminent domain in the manner now or which may be hereafter provided by any other statutory provisions for the exercise of the power of eminent domain. Property already devoted to a public use may be acquired in like manner: Provided, That no real property belonging to the municipality, the county or the state may be acquired without its consent.
(b) When an authority has found and determined by resolution that certain real property described therein is necessary for a redevelopment project or for its purposes under this article, the resolution shall be conclusive evidence that the acquisition of such real property is necessary for the purposes described therein.
CHAPTER 54. EMINENT DOMAIN

ARTICLE 1. RIGHT OF EMINENT DOMAIN.
§54-1-2. Public uses for which private property may be taken or damaged.

(a) The public uses for which private property may be taken or damaged are as follows:
(a) (1) For the construction, maintenance and operation of railroad and traction lines (including extension, lateral and branch lines, spurs, switches and sidetracks), canals, public landings, wharves, bridges, public roads, streets, alleys, parks and other works of internal improvement, for the public use;
(b) (2) For the construction and maintenance of telegraph, telephone, electric light, heat and power plants, systems, lines, transmission lines, conduits, stations (including branch, spur and service lines), when for public use;
(c) (3) For constructing, maintaining and operating pipelines, plants, systems and storage facilities for manufacturing gas and for transporting petroleum oil, natural gas, manufactured gas, and all mixtures and combinations thereof, by means of pipes, pressure stations or otherwise, (including the construction and operation of telephone and telegraph lines for the service of such systems and plants), and for underground storage areas and facilities, and the operation and maintenance thereof, for the injection, storage and removal of natural gas in subterranean oil and/or gas bearing stratum, which, as shown by previous exploration of the stratum sought to be condemned and within the limits of the reservoir proposed to be utilized for such purposes, has ceased to produce or has been proved to be nonproductive of oil and/or gas in substantial quantities, when for public use, the extent of the area to be acquired for such purpose to be determined by the court on the basis of reasonable need therefor. Nothing in this subsection shall be construed to interfere with the power of the state and its political subdivisions to enact and enforce ordinances and regulations deemed necessary to protect the lives and property of citizens from the effects of explosions of oil or gas;
(d) (4) For constructing, maintaining and operating, water plants and systems, including lines for transporting water by any corporate body politic, or private corporation, for supplying water to the inhabitants of any city, town, village or community, for public use, including lands for pump stations, reservoirs, cisterns, storage dams, and other means of storing, purifying and transporting water, and the right to take and damage lands which may be flooded by the impounded waters, and to appropriate any spring, stream and the surrounding property necessary to protect, preserve and maintain the purity of any such spring, stream, reservoir, cistern and water impounded by means of any storage dam;
(e) (5) For the purpose of constructing, maintaining and operating sewer systems, lines and sewage disposal plants, to collect, transport and dispose of sewage. When in the interest of the public welfare and the preservation of the public health, the construction of a sewer line to serve a single building or institution shall be deemed a public use, and, for such purpose, the right of eminent domain, if within a municipal corporation, may be exercised in the name of a municipal corporation, and if not within a municipal corporation, in the name of the county court commission of the county in which the property is located;
(f) (6) For the reasonable use by an incorporated company engaged in a public enterprise of which the state or any county or municipality is the sole or a part owner;
(g) (7) For courthouses and municipal buildings, parks, public playgrounds, the location of public monuments, and all other public buildings;
(h) (8) For cemeteries, and the extension and enlargement of existing cemeteries: Provided, That no lands shall be taken for cemetery purposes which lie within four hundred feet of a dwelling house, unless to extend the boundaries of an existing cemetery, and then only in such manner that the limits of the existing cemetery shall not be extended nearer than four hundred feet of any dwelling house distant four hundred feet or more from such cemetery, or nearer than it was to any dwelling house which is within four hundred feet thereof;
(i) (9) For public schools, public libraries and public hospitals;
(j) (10) For the construction and operation of booms (including approaches, landings and ways necessary for such objects), when for a public use;
(k) (11) By the State of West Virginia for any and every other public use, object and purpose not herein specifically mentioned, but in no event may 'public use', for the purposes of this subdivision, be construed to mean the exercise of eminent domain primarily for private economic development.
For purposes of this subdivision, no private property may be taken by the State of West Virginia or its political subdivisions without the owner's consent when the primary purpose of the taking is economic development that will ultimately result in ownership or control of the property transferring to another private entity, other than one having the power of eminent domain, whether by purchase agreement, long-term lease agreement or any other mechanism whereby ownership or control is effectively transferred:
Provided, That a municipal urban renewal authority may exercise a right of eminent domain as to property only within an area designated a slum area or blighted area under the provisions of article eighteen, chapter sixteen of this code.
By the United States of America for each and every legitimate public use, need and purpose of the government of the United States, within the purview, and subject to the provisions of chapter one of this code.
(l) (12) For constructing, maintaining and operating pipelines, plants, systems and storage facilities, for the transportation by common carrier as a public utility of coal and its derivatives and all mixtures and combinations thereof with any substance by means of pipes, pressure stations or otherwise (including the construction and operation of telephone and telegraph lines for the service of such systems and plants), for public use: Provided, That the common carrier engages in some intrastate activity in this state, if there is any reasonable demand therefor: Provided, however, That in addition to all other requisites by federal or state constitutions, statute or common law required for the taking of private property for public use, a further prerequisite and condition precedent to the exercise of such taking of or damage to private property for public use as in this subsection hereinabove provided, is that the Public Service Commission of this state, in an appropriate hearing and proceeding on due notice to all interested persons, firms or corporations, in accordance with the procedure now or hereafter established by statute and the regulations thereunder, shall have found that such pipeline transportation of coal and its derivatives and all mixtures and combinations thereof is required for the public convenience and necessity, and that the Public Service Commission of this state shall not extend a certificate of convenience and necessity or make such finding of public convenience and necessity unless, in addition to the other facts required to support such findings, it shall have been established by the applicant therefor that the patents and other similar rights under which the applicant proposes to construct, maintain or operate such pipeline, plants, systems and storage facilities shall be and shall remain equally available, insofar as said subsequent applicant may determine such availability, upon fair and reasonable terms, to other bona fide applicants seeking a certificate of convenience and necessity and finding of fact for any other pipeline in West Virginia; for the purpose of making the findings hereinbefore set forth the Public Service Commission shall have and exercise jurisdiction, and that the aforesaid findings in this proviso above set forth shall be subject to judicial review as in other Public Service Commission proceedings.
It is the intention of the Legislature in amending this section by the addition of subdivision (1) (12) to extend the right of eminent domain to coal pipelines for public use; to provide for regulation of such coal pipelines by the Public Service Commission of this state or the Interstate Commerce Commission of the United States of America, or both; to assure that such rights shall be extended only to public utilities or common carriers as distinguished from private carriers or contract carriers; to make patents covering the same equally available to others on fair and reasonable terms; and to prevent monopolistic use of coal pipelines by any users thereof which would result in any appreciable economic detriment to others similarly situated by reasons of any such monopoly.
§54-1-2a. Notice; good faith purchase.
Prior to initiation of any condemnation proceeding pursuant to slum and blight, the applicant must make a reasonable attempt to notify all parties subject to a petition for condemnation provided in section two of this article, and attempt to enter into negotiations for purchase of the property with the owners. The applicant shall make an offer in good faith for the purchase of the property subject to the condemnation prior to initiation of the condemnation proceeding."
The bill, as amended by the Senate and further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 634), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4048) passed.
On motion of Delegate Staton, the title of the bill was amended to read as follows:
H. B. 4048 - "A Bill to amend and reenact §16-18-3, §16-18-6 and §16-18-8 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §16-18-6a; and to amend and reenact §54-1-2 of said code; and to further amend said code by adding thereto an new section designated §54-1-2a, all relating to limiting the use of eminent domain; creating definitions for certain terms; prohibiting use of eminent domain for economic development and providing for limited exceptions; establishing a procedure for municipal urban renewal authorities to use eminent domain for properties only in blighted areas; requiring notice of public hearing and rights of property owners related to proposed condemnation of property; requiring municipal urban renewal authority to consider other alternatives to condemnation; requiring municipal urban renewal authority to show property is blighted or necessary for the redevelopment plan; requiring municipal urban renewal authority meet additional requirements before proceeding with condemnation of nonblighted property; creating right for property owner to appeal the condemnation; requiring municipal authority to prove all statutory criteria have been met; protecting property owners right to relocation assistance; prohibiting use of eminent domain for economic development that would result in private economic gain; and requiring a good faith offer prior to condemnation."
Still being in possession of the Clerk, S. B. 127, Relating to regional education service agencies, was taken up for further consideration.
On motion of Delegate Staton, the House of Delegates reconsidered its action as to refusing to concur in the Senate amendment to the House amendment.
On further motion of the same Gentleman, the House of Delegates then concurred in the Senate amendment to the House amendment..
The question now being on the passage of the bill, the yeas and nays were taken (Roll No. 635), and there were--yeas 95, nays 4, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Caputo, Longstreth, Louisos and Manchin.
Absent And Not Voting: Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 127) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with amendment, and the passage, as amended, of
S. B. 461, Clarifying water supply replacement requirements for surface mine operators.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment to the House of Delegates amendment was reported by the Clerk:
On page four, section twenty-four, subsection (h) after the period by adding the following:
"Notwithstanding the provisions of subsection (g), on and after the effective date of the amendment and reenactment of this section during the regular legislative session of 2006, the provisions of this section shall apply to all mining operations, for water replacement claims resulting from mining operations regardless of when the claim arose."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 636), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 461) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with amendment, and the passage, as amended, of
Com. Sub. for S. B. 511, Relating to municipal policemen's and firemen's pension funds.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment to the House of Delegates amendment was reported by the Clerk:
On page eight, section nineteen, subsection (b), subdivision (4) by striking out the words "up to" and inserting in lieu thereof the words "no more than".
On page eight, section nineteen, subsection (b), subdivision (4) by striking out the word "such" and inserting in lieu thereof the word "the".
On page thirteen, section twenty, subdivision (c), paragraph (1), by striking out the words "municipalities using the alternative contribution method may exclude a contribution made in any one year in excess of the minimum required by this section: And provided further, That any board of trustees for any pension and relief fund may require a contribution of one hundred eight percent: And provided further, That if any board of trustees decides to require a contribution of one hundred eight percent, then that board of trustees may not make a contribution less than one hundred eight percent until the respective pension and relief fund no longer has any actuarial deficiency: And provided further, That any board of trustees decision and any contribution payment is not the liability of the State of West Virginia:" and inserting in lieu thereof the words "municipalities using the alternative contribution method may exclude a one-time additional contribution made in any one year in excess of the minimum required by this section: And provided further, That the governing body of any municipality may elect to provide an employer continuing contribution of one percent more than the municipality's required minimum under the alternative contribution plan authorized in this subsection: And provided further, That if any municipality decides to contribute an additional one percent, then that municipality may not reduce the additional contribution until the respective pension and relief fund no longer has any actuarial deficiency: And provided further, That any decision and any contribution payment by the municipality is not the liability of the State of West Virginia: And provided further, That if any municipality or any pension fund board of trustees makes a voluntary election and thereafter fails to contribute the voluntarily increase as provided in this section and in section nineteen, subsection (b), subdivision (4) of this article, then the board of trustees is not eligible to receive funds allocated under section fourteen-d, article three, chapter thirty-three of this code."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment to the House amendment with further amendment.
[Clerk's Note: The amendment offered at this stage, being an amendment to the third degree, was subsequently reconsidered and withdrawn and, therefore, has been omitted from the record.]
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 637), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 511) passed.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with amendments, and the passage, as amended, of
S. B. 783, Relating to National Board for Professional Teaching Standards certification
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment to the House of Delegates amendment was reported by the Clerk:
On page eight, section nineteen, subsection (b), subdivision (4) by striking out the words "up to" and inserting in lieu thereof the words "no more than".
On page eight, section nineteen, subsection (b), subdivision (4) by striking out the word "such" and inserting in lieu thereof the word "the".
On page thirteen, section twenty, subdivision (c), paragraph (1), by striking out the words "municipalities using the alternative contribution method may exclude a contribution made in any one year in excess of the minimum required by this section: And provided further, That any board of trustees for any pension and relief fund may require a contribution of one hundred eight percent: And provided further, That if any board of trustees decides to require a contribution of one hundred eight percent, then that board of trustees may not make a contribution less than one hundred eight percent until the respective pension and relief fund no longer has any actuarial deficiency: And provided further, That any board of trustees decision and any contribution payment is not the liability of the State of West Virginia:" and inserting in lieu thereof the words "municipalities using the alternative contribution method may exclude a one-time additional contribution made in any one year in excess of the minimum required by this section: And provided further, That the governing body of any municipality may elect to provide an employer continuing contribution of one percent more than the municipality's required minimum under the alternative contribution plan authorized in this subsection: And provided further, That if any municipality decides to contribute an additional one percent, then that municipality may not reduce the additional contribution until the respective pension and relief fund no longer has any actuarial deficiency: And provided further, That any decision and any contribution payment by the municipality is not the liability of the State of West Virginia: And provided further, That if any municipality or any pension fund board of trustees makes a voluntary election and thereafter fails to contribute the voluntarily increase as provided in this section and in section nineteen, subsection (b), subdivision (4) of this article, then the board of trustees is not eligible to receive funds allocated under section fourteen-d, article three, chapter thirty-three of this code."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment to the House amendment.
The bill, as amended by the House, and further amended by the Senate, was then put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 638), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Ferrell.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 783) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4049, Relating to state funded student financial aid.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §18B-14-9 of the Code of West Virginia, 1931, as amended, be repealed; that §18C-5-8 of said code be repealed; that §18C-7-9 of said code be repealed; that §18C-8-1, §18C-8-2 and §18C-8-3 of said code be repealed; that §18-30-6 of said code be amended and reenacted; that §18B- 1B-2 of said code be amended and reenacted; that §18B-4-1 of said code be amended and reenacted; that §18B-10-1 of said code be amended and reenacted; that §18C-1-1, §18C-1-3, §18C-1-4 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18C-1-5; that §18C-5-1,