sdj-60th day

WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-EIGHTH LEGISLATURE
REGULAR SESSION, 2008
SIXTIETH DAY
____________

Charleston, W. Va., Saturday, March 8, 2008

The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Lee McDermott, First Presbyterian Church, Logan, West Virginia.
Pending the reading of the Journal of Friday, March 7, 2008,
On motion of Senator Boley, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
At the request of Senator Stollings, unanimous consent being granted, Senator Stollings addressed the Senate regarding Daniel Hager, a Judith A. Herndon Fellowship Program intern.
On motion of Senator Chafin, the Senate recessed for five minutes to permit Daniel Hager to address the Senate on behalf of the Judith A. Herndon Fellowship Program, Adam McChesney on behalf of the Walter Rollins Scholars and Jessica Wintz on behalf of the Legislative Information Journalism Internship Program.
Upon expiration of the recess, the Senate reconvened.
Thereafter, at the request of Senator Prezioso, and by unanimous consent, the remarks by Daniel Hager, Adam McChesney and Jessica Wintz were ordered printed in the Appendix to the Journal.
At the request of Senator Chafin, unanimous consent being granted, the Senate proceeded to the sixth order of business.
Senators Tomblin (Mr. President), Prezioso, McCabe, Edgell, Unger, Jenkins and Foster offered the following resolution:
Senate Resolution No. 38--Congratulating Patrick Anthony Reale on winning the West Virginia Golf Association's 88th State Amateur Golf Championship.
Whereas, Patrick Anthony Reale, a native of Glenville, West Virginia, grew up playing golf at the Glenville Golf Club, a community owned nine-hole public golf course; and
Whereas, Patrick Anthony Reale won his first of two West Virginia Junior Amateur Golf titles in 1997 at age 12; and
Whereas, Patrick Anthony Reale is the only West Virginia Junior Grand Slam winner (2003-2004) who won the West Virginia High School Golf Championship followed by the West Virginia Junior Match Play Championship and West Virginia Junior Amateur Championship; and
Whereas, Patrick Anthony Reale plays collegiate golf at East Carolina University, where he is a second semester senior and has maintained a perfect 4.0 grade point average; and
Whereas, He and his brother, Philip Reale II, share the East Carolina school record for lowest single round of play; and
Whereas, Patrick Anthony Reale holds the modern competitive course record at the refurbished Old White Course at The Greenbrier, where he shot 66 in the first competitive round played on the redesigned course in the first round of the 2006 West Virginia Amateur Golf Championship; and
Whereas, On August 9, 2007, at the end of 72 holes and a three-hole playoff, Patrick Anthony Reale won the West Virginia Golf Association's 88th State Amateur Golf Championship at The Greenbrier Resort in White Sulphur Springs, West Virginia; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates Patrick Anthony Reale on winning the West Virginia Golf Association's 88th State Amateur Golf Championship; and, be it
Further Resolved, That the Senate hereby extends its congratulations to Patrick Anthony Reale for all of his accomplishments on and off the golf course; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to Patrick Anthony Reale and his family.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
Senators Tomblin (Mr. President), McCabe, Foster, Wells, Sprouse, Unger, Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sharpe, Stollings, Sypolt, White and Yoder offered the following resolution:
Senate Resolution No. 39--Memorializing the life of Linda V. Pennington, devoted employee of the West Virginia Senate and dedicated West Virginian.
Whereas, Linda V. Pennington was born August 16, 1960, the daughter of Floyd and Virginia Pennington of Belle, Kanawha County, West Virginia; and
Whereas, Linda V. Pennington was a graduate of DuPont High School; and
Whereas, Linda V. Pennington was the loving mother of her beloved son, Everette Daniel Pennington; and
Whereas, Linda V. Pennington joined the staff of the West Virginia Senate on June 16, 1990. Her dedication to duty and responsibility, her qualities and strengths, and especially her vibrant personality and ringing laughter endeared her to us. We know that her life touched us all and we each have memories of her that we will treasure; and
Whereas, Sadly, and suddenly, the life Linda V. Pennington came to an end on December 29, 2007, leaving behind her loving son Everette, and life partner Joe Green, mother, Virginia Compton and brother Danny, along with a host of family and friends; therefore, be it
Resolved by the Senate:
That the Senate hereby memorializes the life of Linda V. Pennington, devoted employee of the West Virginia Senate and dedicated West Virginian; and, be it
Further Resolved, That the Senate hereby extends its sincere sympathy at the passing of Linda V. Pennington; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the family of Linda V. Pennington.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and, at the request of Senator Prezioso, and by unanimous consent, returned to the second order of business and the introduction of guests.
On motion of Senator Love, the special order of business set for this position on the calendar (consideration of executive nominations) was postponed and made a special order of business at 8 p.m. tonight.
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 72, Expanding Route 2 and Interstate 68 Authority territory.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page three, section two, line seven, after the word "eight" by changing the period to a colon and inserting the following: Provided, That the six members from the three additional counties may only be added to the authority upon a majority vote of the current membership of the authority: Provided, however, That this majority vote may also occur at any time on or after the first day of July, two thousand eight.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 72--A Bill to amend and reenact sections 1, 2 and 3, chapter 232, Acts of the Legislature, regular session, 1997, all relating to expanding the counties covered by West Virginia Route 2 and Interstate 68 Authority to include Cabell, Mason and Jackson counties; increasing the number of members; and requiring prior authority approval for additional members.
On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendments to the bill (Eng. S. B. No. 72) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 150, Budget bill.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the provisions of Engrossed Committee Substitute for House Bill No. 4014.
On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendment to the bill (Eng. Com. Sub. for S. B. No. 150) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Boley, unanimous consent being granted, the Senate proceeded to the thirteenth order of business.
Senator Boley called attention to today being the birthday of the senator from Wood and on behalf of the Senate extended felicitations and good wishes to Senator Deem, with Senator Love leading the members in singing "Happy Birthday".
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate recessed until 1:30 p.m. today.
Upon expiration of the recess, the Senate reconvened and, without objection, returned to the third order of business.
A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of five from each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for House Bill No. 3215, Removing the administrative link between Shepherd University and Blue Ridge Community and Technical College.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates M. Poling, Paxton, Williams, Doyle and Ireland.
A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
Eng. House Bill No. 4471, Making certain changes to the West Virginia State Police Retirement System.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Stalnaker, Craig and Evans.
A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
Eng. House Bill No. 4482, Allowing payments from the Parkways Authority to the Hatfield-McCoy Regional Recreational Authority to continue past the nine-year limitation.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Browning, Barker and Walters.
A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
Eng. House Bill No. 4557, Relating to continuing education for insurance producers.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Kominar, Perry and Ashley.
A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 4022, Relating to compensation and expenses of panel attorneys providing public defender services.
On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Minard, Green and Yoder.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4715--A Bill supplementing, amending and increasing items of the existing appropriations from the State Road Fund to the Department of Transportation, Division of Highways, fund 9017, fiscal year 2008, organization 0803, by supplementing and amending the appropriations for the fiscal year ending the thirtieth day of June, two thousand eight.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 680, Relating to corporate net income tax and business franchise tax.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page fifteen, after section four, by inserting a new article, designated article thirteen-y, to read as follows:

ARTICLE 13Y. THE WEST VIRGINIA MANUFACTURING PROPERTY TAX ADJUSTMENT ACT.

§11-13Y-1. Short title.
This article shall be known and cited as the West Virginia Manufacturing Property Tax Adjustment Act.
§11-13Y-2. Definitions.
(a) General. -- When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section unless a different meaning is clearly required by the context in which the term is used.
(b) Terms defined. --
(1) "Affiliate" means and includes all persons, as defined in this section, which are affiliates of each other when either directly or indirectly:
(A) One person controls or has the power to control the other, or
(B) A third party or third parties control or have the power to control two persons, the two thus being affiliates. In determining whether concerns are independently owned and operated and whether or not an affiliation exists, consideration shall be given to all appropriate factors, including common ownership, common management and contractual relationships.
(2) "Commissioner" or "Tax Commissioner" means the Tax Commissioner of the State of West Virginia or the Tax Commissioner's delegate.
(3) "Corporation" means any corporation, joint-stock company or association and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certificate of interest or ownership or similar written instrument.
(4) "Delegate", when used in reference to the Tax Commissioner, means any officer or employee of the Tax Division of the Department of Revenue duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.
(5) "Eligible taxpayer" means any manufacturing business that is subject to the tax imposed under article twenty-three or twenty- four of this chapter, or both: Provided, That taxpayers owning property assessed by the Board of Public Works are not eligible taxpayers for purposes of this article. "Eligible taxpayer" also means and includes those members of an affiliated group of taxpayers engaged in a unitary business, in which one or more members of the affiliated group is a person subject to the tax imposed under article twenty-three or twenty-four of this chapter, or both. Affiliates not engaged in the unitary business do not qualify as eligible taxpayers.
(6) "Manufacturing business" means any business primarily engaged in business activity classified as having a sector identifier, consisting of the first two digits of the six-digit North American Industry Classification System code number, of thirty-one, thirty-two or thirty-three that also paid ad valorem property tax on manufacturing inventory to one or more West Virginia counties during the taxable year.
(7) "Manufacturing inventory" means and is limited to raw materials, goods in process and finished goods of a business primarily engaged in business activity classified as having a sector identifier, consisting of the first two digits of the six- digit North American Industry Classification System code number, of thirty-one, thirty-two or thirty-three.
(8) "Natural person" or "individual" means a human being.
(9) "Partnership" and "partner" means and includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on and which is not a trust or estate, a corporation or a sole proprietorship. The term "partner" includes a member in a syndicate, group, pool, joint venture or organization.
(10) "Person" means and includes any natural person, corporation, limited liability company or partnership.
(11) "Related entity", "related person", "entity related to" or "person related to" means:
(A) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by the taxpayer;
(B) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer;
(C) An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by an individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or
(D) A member of the same controlled group as the taxpayer.
For purposes of this article, "control", with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of the corporation which entitles its owner to vote. "Control", with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust shall be determined in accordance with the rules for constructive ownership of stock provided in Section 267(c) of the United States Internal Revenue Code, as amended: Provided, That paragraph (3), Section 267(c) of the United States Internal Revenue Code shall not apply.
(12) "Tax year" or "taxable year" means the tax year of the taxpayer for federal income tax purposes.
(13) "Taxpayer" means any person subject to the tax imposed under article twenty-three or twenty-four of this chapter, or both.
(14) "Unitary business" means a unitary business as defined in section three-a, article twenty-four of this chapter.
§11-13Y-3. Eligibility for tax credits; creation of the credit.
There shall be allowed to every eligible taxpayer a credit against the taxes imposed under articles twenty-three and twenty- four of this chapter, as determined under this article.
§11-13Y-4. Amount of credit allowed.
(a) Credit allowed. -- Eligible taxpayers shall be allowed a credit against the tax imposed under article twenty-three or twenty-four of this chapter, the application of which and the amount of which shall be determined as provided in this article.
(b) Amount of credit. -- The amount of credit allowed to the eligible taxpayer is the amount of West Virginia ad valorem property tax paid on the value of manufacturing inventory of the eligible taxpayer during the corporate net income tax year and business franchise tax year.
§11-13Y-5. Application of annual credit allowance.
(a) Application of credit against business franchise tax. -- The amount of credit allowed shall first be taken against the tax liabilities of the eligible taxpayer for the current taxable year imposed by article twenty-three of this chapter.
(b) Application of credit against corporate net income tax. -- Any credit remaining after application of the credit against the tax liabilities of the eligible taxpayer for the current taxable year imposed by article twenty-three of this chapter shall next be taken against the tax liabilities of the eligible taxpayer for the current taxable year imposed by article twenty-four of this chapter.
(c) Carryover credit disallowed. -- Any credit remaining after application of the credit against the tax liabilities specified in subsections (a) and (b) of this section for the current taxable year is forfeited and shall not carry back to any prior taxable year and shall not carry forward to any subsequent taxable year. The credit allowed under this article shall be applied after application of all other applicable tax credits allowed for the taxable year against the taxes imposed by article twenty-three of this chapter and after application of all other applicable tax credits allowed for the taxable year against the taxes imposed by article twenty-four of this chapter.
(d) Annual schedule. -- For purposes of asserting the credit against tax, the taxpayer shall prepare and file an annual schedule showing the amount of tax paid for the taxable year and the amount of credit allowed under this article. The annual schedule shall set forth the information and be in the form prescribed by the Tax Commissioner.
§11-13Y-6. Availability of credit to successors.
(a) Transfer or sale of assets. --
(1) Where there has been a transfer or sale of the business assets of an eligible taxpayer to a successor which subsequent to the transfer constitutes an eligible taxpayer as defined in this article, which continues to operate the manufacturing business in this state, and which remains subject to the taxes prescribed under article twenty-three or twenty-four of this chapter, or both, the successor eligible taxpayer is entitled to the credit allowed under this article: Provided, That the successor taxpayer otherwise remains in compliance with the requirements of this article for entitlement to the credit.
(2) For any taxable year during which a transfer, or sale of the business assets of an eligible taxpayer to a successor eligible taxpayer under this section occurs, or a merger occurs pursuant to which credit is allowed under this article, the credit allowed under this article shall be apportioned between the predecessor eligible taxpayer and the successor eligible taxpayer based on the number of days during the taxable year that each taxpayer based and the number of days during the taxable year that each taxpayer owned the business assets transferred.
(b) Stock purchases. -- Where a corporation which is an eligible taxpayer entitled to the credit allowed under this article is purchased through a stock purchase by a new owner and remains a legal entity so as to retain its corporate identity, the entitlement of that corporation to the credit allowed under this article will not be affected by the ownership change: Provided, That the corporation otherwise remains in compliance with the requirements of this article for entitlement to the credit.
(c) Mergers. --
(1) Where a corporation or other entity which is an eligible taxpayer entitled to the credit allowed under this article is merged with another corporation or entity, the surviving corporation or entity shall be entitled to the credit to which the predecessor eligible taxpayer was originally entitled: Provided, That the surviving corporation or entity otherwise complies with the provisions of this article.
(2) The amount of credit available in any taxable year during which a merger occurs shall be apportioned between the predecessor eligible taxpayer and the successor eligible taxpayer based on the number of days during the taxable year that each owned the transferred business assets.
(d) No provision of this section or of this article shall be construed to allow sales or other transfers of the tax credit allowed under this article. The credit allowed under this article can be transferred only in circumstances where there is a valid successorship as described under this section.

§11-13Y-7. Credit recapture; interest; penalties; additions to tax; statute of limitations.

(a) If it appears upon audit or otherwise that any person or entity has taken the credit against tax allowed under this article and was not entitled to take the credit, then the credit improperly taken under this article shall be recaptured. Amended returns shall be filed for any tax year for which the credit was improperly taken. Any additional taxes due under this chapter shall be remitted with the amended return or returns filed with the Tax Commissioner, along with interest, as provided in section seventeen, article ten of this chapter and such other penalties and additions to tax as may be applicable pursuant to the provisions of article ten of this chapter.
(b) Notwithstanding the provisions of article ten of this chapter, penalties and additions to tax imposed under article ten of this chapter may be waived at the discretion of the Tax commissioner: Provided, That interest is not subject to waiver.
(c) Notwithstanding the provisions of article ten of this chapter, the statute of limitations for the issuance of an assessment of tax by the Tax Commissioner shall be five years from the date of filing of any tax return on which this credit was taken or five years from the date of payment of any tax liability calculated pursuant to the assertion of the credit allowed under this article, whichever is later.
§11-13Y-8. Report on credit.
(a) The Tax Commissioner shall provide to the Joint Committee on Government and Finance by the first day of July, two thousand eleven, and on the first day of July of each year thereafter, a report detailing the amount of credit claimed pursuant to this article. The report is to include the amount of credit claimed against the business franchise tax and the amount of credit claimed against the corporate net income tax.
(b) Taxpayers claiming the credit shall provide the information as the Tax Commissioner may require to prepare the report: Provided, That the information is subject to the confidentiality and disclosure provisions of sections five-d and five-s, article ten of this chapter.
§11-13Y-9. Effective date.
This article shall be effective for corporate net income tax years and business franchise tax years beginning on or after the first day of January, two thousand nine.;
On page twenty-eight, section five-a, after line two hundred sixty-five, by inserting a new subsection, designated subsection (g), to read as follows:
(g) Limited tax credit for certain financial organizations for certain periods. -- A credit shall be allowed against the tax imposed by this article on a financial organization with its commercial domicile in this state that acquires a financial organization that does not have its commercial domicile in this state: Provided, That the goodwill associated with the acquisition is first added to the net equity of the financial organization with its commercial domicile in this state on or after the first day of January two thousand eight: Provided, however, that the prior recordation of the goodwill associated with the acquisition on the balance sheet of a financial organization that does not have its commercial domicile in this state shall not affect, limit or reduce the availability of the credit authorized by this subsection. The credit shall equal fifty percent of the goodwill associated with the acquisition in the amount first recorded on the balance sheet of the financial organization with its commercial domicile in this state, multiplied by the tax rate applicable to the financial organization under this article for the taxable year. For purposes of this subsection, the term "goodwill" shall have the meaning set forth in the capital adequacy guidelines for bank holding companies established by the Federal Reserve Board in 12 C. F. R. 225, Appendix A, as the same may be revised from time to time.;
And relettering the remaining subsection;
On page twenty-nine, section five-a, line two hundred seventy- eight, after the word "eight" by changing the period to a colon and inserting the following proviso: Provided, That the amendments to subsection (g) of this section, enacted in the year two thousand eight, shall apply to taxable years beginning after the thirty- first day of December, two thousand seven.;
On page twenty-nine, after section five-a, by inserting a new section, designated section six, to read as follows:
§11-23-6. Imposition of tax; change in rate of tax.
(a) General. -- An annual business franchise tax is hereby imposed on the privilege of doing business in this state and in respect of the benefits and protection conferred. Such tax shall be collected from every domestic corporation, every corporation having its commercial domicile in this state, every foreign or domestic corporation owning or leasing real or tangible personal property located in this state or doing business in this state and from every partnership owning or leasing real or tangible personal property located in this state or doing business in this state effective on and after the first day of July, one thousand nine hundred eighty-seven.
(b) Amount of tax and rate; effective date. --
(1) On and after the first day of July, one thousand nine hundred eighty-seven, the amount of tax shall be the greater of fifty dollars or fifty-five one hundredths of one percent of the value of the tax base, as determined under this article: Provided, That when the taxpayer's first taxable year under this article is a short taxable year, the taxpayer's liability shall be prorated based upon the ratio which the number of months in which such short taxable year bears to twelve: Provided, however, That this subdivision shall not apply to taxable years beginning on or after the first day of January, one thousand nine hundred eighty-nine.
(2) Taxable years after the thirty-first day of December, one thousand nine hundred eighty-eight. -- For taxable years beginning on or after the first day of January, one thousand nine hundred eighty-nine, the amount of tax due under this article shall be the greater of fifty dollars or seventy-five one hundredths of one percent of the value of the tax base as determined under this article.
(3) Taxable years after the thirtieth day of June, one thousand nine hundred ninety-seven. -- For taxable years beginning on or after the first day of July, one thousand nine hundred ninety-seven, the amount of tax due under this article shall be the greater of fifty dollars or seventy hundredths of one percent of the value of the tax base as determined under this article.
(4) Taxable years after the thirty-first day of December, two thousand six. -- For taxable years beginning on or after the first day of January, two thousand seven, the amount of tax due under this article shall be the greater of fifty dollars or fifty-five one hundredths of one percent of the value of the tax base as determined under this article.
(5) Taxable years after the thirty-first day of December, two thousand eight. -- For taxable years beginning on or after the first day of January, two thousand nine, the amount of tax due under this article shall be the greater of fifty dollars or forty-eight one hundredths of one percent of the value of the tax base as determined under this article.
(6) Taxable years after the thirty-first day of December, two thousand nine. -- For taxable years beginning on or after the first day of January, two thousand ten, the amount of tax due under this article shall be the greater of fifty dollars or forty-one one hundredths of one percent of the value of the tax base as determined under this article.
(7) Taxable years after the thirty-first day of December, two thousand ten. -- For taxable years beginning on or after the first day of January, two thousand eleven, the amount of tax due under this article shall be the greater of fifty dollars or thirty-four one hundredths of one percent of the value of the tax base as determined under this article.
(8) Taxable years after the thirty-first day of December, two thousand eleven. -- For taxable years beginning on or after the first day of January, two thousand twelve, the amount of tax due under this article shall be the greater of fifty dollars or twenty-seven one hundredths of one percent of the value of the tax base as determined under this article.
(9) Taxable years after the thirty-first day of December, two thousand twelve. -- For taxable years beginning on or after the first day of January, two thousand thirteen, the amount of tax due under this article shall be the greater of fifty dollars or twenty one hundredths of one percent of the value of the tax base as determined under this article.
(10) Taxable years after the thirty-first day of December, two thousand thirteen. -- For taxable years beginning on or after the first day of January, two thousand fourteen, the amount of tax due under this article shall be the greater of fifty dollars or ten one hundredths of one percent of the value of the tax base as determined under this article.
(11) Taxable years after the thirty-first day of December, two thousand fourteen. -- For taxable years beginning on or after the first day of January, two thousand fifteen, there shall be no tax due under the provisions of this article.
(c) Short taxable years. -- When the taxpayer's taxable year for federal income tax purposes is a short taxable year, the tax determined by application of the tax rate to the taxpayer's tax base shall be prorated based upon the ratio which the number of months in such short taxable year bears to twelve: Provided, That when the taxpayer's first taxable year under this article is less than twelve months, the taxpayer's liability shall be prorated based upon the ratio which the number of months the taxpayer was doing business in this state bears to twelve, but in no event shall the tax due be less than fifty dollars.;
On page forty-eight, section four, after line fifty-one, by striking out the remainder of the section and inserting in lieu thereof the following:
(5) In the case of taxable periods beginning on or after the first day of January, two thousand nine, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of eight and one-half percent.
(6) In the case of taxable periods beginning on or after the first day of January, two thousand twelve, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of seven and three-quarters percent: Provided, That the reduction in tax authorized by this subsection shall be suspended if the combined balance of funds as of the thirtieth day of June two thousand eleven in the Revenue Fund Shortfall Reserve Fund and the Revenue Fund Shortfall Reserve Fund - Part B established in section twenty, article two, chapter eleven-b of this code does not equal or exceed ten percent of the general revenue fund budgeted for the fiscal year commencing the first day of July, two thousand eleven: Provided, however, That the rate reduction schedule will resume in the calendar year immediately following any subsequent fiscal year when the combined balance of funds as of the thirtieth day of June of that fiscal year in the Revenue Fund Shortfall Reserve Fund and the Revenue Fund Shortfall Reserve Fund - Part B next equals or exceeds ten percent of the general revenue fund budgeted for the immediately succeeding fiscal year.
(7) In the case of taxable periods beginning on or after the first day of January, two thousand thirteen, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of seven percent: Provided, That the reduction in tax authorized by this subsection shall be suspended for one calendar year subsequent to the occurrence of the suspension of the reduction in tax authorized by subdivision (6) of this section: Provided, however, That the reduction in tax on the first day of any calendar year authorized by this subsection shall be suspended if the combined balance of funds as of the thirtieth day of June of the preceding year in the Revenue Fund Shortfall Reserve Fund and the Revenue Fund Shortfall Reserve Fund - Part B established in section twenty, article two, chapter eleven-b of this code does not equal or exceed ten percent of the general revenue fund budgeted for the fiscal year commencing the first day of July of the preceding year.
(8) In the case of taxable periods beginning on or after the first day of January, two thousand fourteen, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of six and one-half percent: Provided, That the reduction in tax authorized by this subsection shall be suspended for one calendar year subsequent to the occurrence of the suspension of the reduction in tax authorized by subdivision (7) of this section: Provided, however, That the reduction in tax on the first day of any calendar year authorized by this subsection shall be suspended if the combined balance of funds as of the thirtieth day of June of the preceding year in the Revenue Fund Shortfall Reserve Fund and the Revenue Fund Shortfall Reserve Fund - Part B established in section twenty, article two, chapter eleven-b of this code does not equal or exceed ten percent of the general revenue fund budgeted for the fiscal year commencing the first day of July of the preceding year.;
On page one hundred, section thirteen-a, line two hundred, after the word "contrary" by striking out the comma and inserting the words "except the last sentence of this subsection";
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §11-23-5b of the Code of West Virginia, 1931, as amended, be repealed; that §11-13S-4 of said code be amended and reenacted; that said code be amended by adding thereto a new article, designated §11-13Y-1, §11-13Y-2, §11-13Y-3, §11-13Y-4, §11-13Y-5, §11-13Y-6, §11-13Y-7, §11-13Y-8 and §11-13Y-9; that §11-23-5a and §11-23-6 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §11-23-17b; that §11-24-3a, §11-24-4, §11-24-7, §11-24-7b, §11-24-13a, §11-24- 13c, §11-24-13d, §11-24-13f and §11-24-42 of said code be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §11-24-3b and 11-24-9b, all to read as follows:;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 680--A Bill to repeal §11- 23-5b of the Code of West Virginia, 1931, as amended; to amend and reenact §11-13S-4 of said code; to amend said code by adding thereto a new article, designated §11-13Y-1, §11-13Y-2, §11-13Y-3, §11-13Y-4, §11-13Y-5, §11-13Y-6, §11-13Y-7, §11-13Y-8 and §11-13Y- 9; to amend and reenact §11-23-5a and §11-23-6 of said code; to amend said code by adding thereto a new section, designated §11-23- 17b; to amend and reenact §11-24-3a, §11-24-4, §11-24-7, §11-24-7b, §11-24-13a, §11-24-13c, §11-24-13d, §11-24-13f and §11-24-42 of said code; and to amend said code by adding thereto two new sections, designated §11-24-3b and 11-24-9b, all relating to business taxes generally; specifying percentage of taxes subject to offset by manufacturing investment tax credit; creating credit for the value of certain ad valorem taxes paid; requiring report on the application of the credit; providing definitions relating to business franchise tax; providing for eligibility of financial organizations for tax credits; specifying amount of credit allowed; providing for treatment of goodwill associated with certain acquisitions; specifying reductions of business franchise tax rate; defining terms relating to corporate net income tax; specifying general meaning relating to the term "tax haven"; specifying imposition of tax and rates; specifying reductions of corporation net income tax rate and suspension of reductions in certain circumstances; specifying nullity for designated provisions; specifying removal of nullity for designated provisions; specifying apportionment rules for financial organizations; specifying treatment of insurance companies; specifying method of filing; specifying application of designated net operating losses; specifying treatment of designated dividends; mandating reporting on water's-edge unitary basis; specifying election to report based on worldwide unitary basis; specifying authority of Tax Commissioner to prescribe reporting basis; and establishing effective dates.
Senator Chafin moved that the Senate concur in the House of Delegates amendments to the bill.
Following extended discussion,
The question being on the adoption of Senator Chafin's aforestated motion, and on this question, Senator Caruth demanded the yeas and nays.
The roll being taken, the yeas were: Bailey, Bowman, Chafin, Edgell, Facemyer, Fanning, Foster, Green, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Unger, Wells, White and Tomblin (Mr. President)--24.
The nays were: Barnes, Boley, Caruth, Deem, Guills, Hall, Sprouse, Sypolt and Yoder--9.
Absent: Sharpe--1.
So, a majority of those present and voting having voted in the affirmative, the President declared Senator Chafin's motion to concur in the House of Delegates amendments to the bill had prevailed.
Thereafter, at the request of Senator Hunter, and by unanimous consent, the remarks by Senators Yoder, White, Sprouse and McCabe regarding the adoption of Senator Chafin's aforestated motion were ordered printed in the Appendix to the Journal.
Engrossed Committee Substitute for Senate Bill No. 680, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Unger, Wells, White and Tomblin (Mr. President)--29.
The nays were: Barnes, Sprouse, Sypolt and Yoder--4.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 680) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Love, unanimous consent being granted, the Senate returned to the second order of business and the introduction of guests.
The Senate again proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
Eng. House Bill No. 4022, Relating to compensation and expenses of panel attorneys providing public defender services.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates M. Poling, Shook and Ellem.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 201, Providing terms for certain retirement benefits disqualification.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page twelve, section five, line fifteen, after the word "article" by changing the period to a colon and inserting the following proviso: Provided, That this article does not authorize the termination of benefits received by a beneficiary that are received as a result of the beneficiary's own membership in a plan or the beneficiary's status as a beneficiary of a member other than the participant or former participant.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 201, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 201) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 207, Relating to Deputy Sheriff Retirement System Act.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page twenty-five, section thirty, line ten, by striking out the word "ten" and inserting in lieu thereof the word "ten-d".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 207, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 207) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 208, Clarifying all Consolidated Public Retirement Board systems are included in employer pick-up provisions.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 227, Relating to State Teachers Retirement System.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page three, section three, line twenty-eight, after the word "an" by inserting the word "inadvertent".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 227, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 227) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 253, Defining "survey foot".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 292, Allowing Commissioner of Banking issue bond claims to collect certain unpaid penalties and invoices.
A message from The Clerk of the House of Delegates announced the amendment by that body to the title of the bill, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 340, Requiring consumers' notification of information security breach.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the title of the bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 340--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §46A-2A-101, §46A-2A-102, §46A-2A-103, §46A-2A-104 and §46A-2A-105, all relating to the unauthorized access or acquisition of certain computerized data which compromises the security, confidentiality or integrity of personal information; requiring notification of a breach of the security of a system compromising personal information; permitting internal notification procedures; noncompliance; enforcement by the Attorney General; civil penalties; violations by a licensed financial institutions; and applicability.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 340, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 340) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 349, Authorizing Miscellaneous Boards and Agencies promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS TO PROMULGATE LEGISLATIVE RULES.

§64-9-1. Board of Acupuncturists.
(a) The legislative rule filed in the State Register on the seventeenth day of July, two thousand seven, authorized under the authority of section seven, article thirty-six, chapter thirty of this code, modified by the Board of Acupuncture to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the sixth day of November, two thousand seven, relating to the Board of Acupuncture (disciplinary and complaint procedures for acupuncturists, 32 CSR 7), is authorized with the following amendment:
On page one, by striking out subsection 3.7. and renumbering the remaining subsection;
And,
On page seven, section five, by striking out the section caption and inserting in lieu thereof a new section caption, to read as follows:
'32-7-5. Complaint Disposition.'
(b) The legislative rule filed in the State Register on the seventeenth day of July, two thousand seven, authorized under the authority of section seven, article thirty-six, chapter thirty of this code, modified by the Board of Acupuncture to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the sixth day of November, two thousand seven, relating to the Board of Acupuncture (continuing education requirements, 32 CSR 9), is authorized with the following amendment:
On page two, subsection 5.2., after the word 'shall' by inserting the word 'assign';
And,
On page three, subsection 7.1., by striking out the word "fourty-eight" and inserting in lieu thereof the word "forty- eight".
§64-9-2. Commissioner of Agriculture.
(a) The legislative rule filed in the State Register on the twenty-fourth day of July, two thousand seven, authorized under the authority of section four, article sixteen-a, chapter nineteen of this code, relating to the Commissioner of Agriculture (fee structure for the Pesticide Control Act of 1990, 61 CSR 12), is authorized.
(b) The legislative rule filed in the State Register on the twenty-ninth day of June, two thousand seven, authorized under the authority of section five, article two-c, chapter nineteen of this code, modified by the Commissioner of Agriculture to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-eighth day of August, two thousand seven, relating to the Commissioner of Agriculture (auctioneers, 61 CSR 11B), is authorized with the following amendment:
On page one, subsection 3.1., by striking out the word 'applicant's' and inserting in lieu thereof the word 'applicant'.
(c) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section three, article twelve, chapter nineteen of this code, modified by the Commissioner of Agriculture to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-seventh day of August, two thousand seven, relating to the Commissioner of Agriculture (West Virginia Plant Pest Act, 61 CSR 14), is authorized.
(d) The legislative rule filed in the State Register on the twenty-sixth day of June, two thousand seven, authorized under the authority of section three, article two-b, chapter nineteen of this code, relating to the Commissioner of Agriculture (inspection of meat and poultry, 61 CSR 16), is authorized.
(e) The legislative rule filed in the State Register on the twenty-fourth day of July, two thousand seven, authorized under the authority of section ten, article eleven-b, chapter nineteen of this code, relating to the Commissioner of Agriculture (frozen desserts and imitation frozen desserts, 61 CSR 4B), is authorized.
§64-9-3. State Auditor.
(a) The legislative rule filed in the State Register on the twenty-fifth day of July, two thousand seven, authorized under the authority of section ten, article three, chapter twelve of this code, modified by the State Auditor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the eighteenth day of October, two thousand seven, relating to the State Auditor (standards for requisitions for payment issued to state officers on the auditor, 155 CSR 1), is authorized.
(b) The legislative rule filed in the State Register on the twenty-fifth day of July, two thousand seven, authorized under the authority of section ten-a, article three, chapter twelve of this code, modified by the State Auditor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the eighteenth day of October, two thousand seven, relating to the State Auditor (State Purchasing Card Program, 155 CSR 7), is authorized.
§64-9-4. Board of Dental Examiners.
The legislative rule filed in the State Register on the nineteenth day of July, two thousand seven, 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 seventeenth day of October, two thousand seven, relating to the Board of Dental Examiners (rule for the West Virginia Board of Dental Examiners, 5 CSR 1), is authorized.
§64-9-5. State Election Commission.
(a) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section eight, article eight, chapter three of this code, modified by the State Election Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the State Election Commission (corporate political activity, 146 CSR 1), is authorized with the following amendment:
On page one, subsection 2.2., by striking out the words "'Contribution or Expenditure'" and inserting in lieu thereof the words "'Contribution' or 'Expenditure'";
On page one, subdivision 2.2.e., by striking out "WV" and inserting in lieu thereof "W. Va.";
On page three, subsection 3.1., line two, by striking out the word "series" and inserting in lieu thereof the word "rule";
On page four, subdivision 3.3.a., by striking out "WV" and inserting in lieu thereof "W. Va.";
On page four, paragraph 3.3.c.1., by striking out "WV" and inserting in lieu thereof "W. Va.";
On page four, paragraph 3.3.d.1., by striking out "WV" and inserting in lieu thereof "W. Va.";
On page five, paragraph 3.3.f.5., lines four and seven, by striking out the word "Paragraph" and inserting in lieu thereof the word "paragraph";
On page five, paragraph 3.3.f.5., lines five and seven, by striking out the word "subsection" and inserting in lieu thereof the word "subdivision";
On page five, paragraph 3.3.f.6., by striking out the words "the above regulations" and inserting in lieu thereof the words "this rule";
On page five, paragraph 3.3.f.7., by changing the colon to a comma and by striking out the words "Provided, that such" and inserting in lieu thereof the words "provided that the";
On page six, subsection 4.3., by striking out the words "The establishment, administration and solicitation of contributions to a Corporate Political Action Committee, by means and in amounts as herein specified:
4.3.a.";
On page seven, subdivision 4.4.a., by striking out the word "Section" and inserting in lieu thereof the word "subsection";
On page seven, subdivision 4.4.b., line five, by striking out the word "Section" and inserting in lieu thereof the word "subsection";
On page eight, subsection 5.1., by striking out "WV" and inserting in lieu thereof "W. Va.";
On page eight, subdivision 5.1.a., by striking out "5.1.a." and by adding the subsequent sentence to the end of subsection 5.1.;
On page eight, subdivision 5.2.b., by striking out "WV" and inserting in lieu thereof "W. Va.";
And,
On page nine, section seven, by striking out "7.1.".
(b) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section five, article one-a, chapter three of this code, modified by the State Election Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the State Election Commission (regulation of campaign finance, 146 CSR 3), is authorized with the following amendment:
On page thirteen, by striking out section 14 in its entirety.
(c) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section five, article one-a, chapter three of this code, modified by the State Election Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the State Election Commission (election expenditures, 146 CSR 4), is authorized with the following amendment:
On page four, by striking out sections 12 and 13 in their entirety.
§64-9-7. Board of Funeral Service Examiners.
The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section six, article six, chapter thirty of this code, modified by the Board of Funeral Service Examiners to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Board of Funeral Service Examiners (funeral director, embalmer, apprentice, courtesy card holder and funeral establishment requirements, 6 CSR 1), is authorized with the following amendment:
On page two, section two, by striking subdivision 2.8.6 in its entirety;
On page fifteen, section sixteen, subdivision 16.11.3, by striking the words and numbers 'two hundred dollars ($200)' and inserting in lieu thereof the words and numbers 'one hundred sixty dollars ($160.00)';
And,
On page sixteen, section sixteen, by striking subdivisions 16.11.15 and 16.11.16 in their entirety."
§64-9-8. Board of Hearing Aid Dealers.
The legislative rule filed in the State Register on the twenty-fifth day of July, two thousand seven, authorized under the authority of section three, article twenty-six, chapter thirty of this code, modified by the Board of Hearing Aid Dealers to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the third day of January, two thousand eight, relating to the Board of Hearing Aid Dealers (rules governing the West Virginia Board of Hearing Aid Dealers, 8 CSR 1), is authorized with the following amendment:
On page two, subsection 4.1., by striking out 'fifty dollars ($50.00)' and inserting in lieu thereof 'one hundred dollars ($100.00)';
On page two, subsection 4.3., by striking out 'forty dollars ($40.00)' and the remaining sentence and inserting in lieu thereof 'one hundred dollars ($100.00)';
On page two, subsection 4.5., by striking out 'one dollar ($1.00)' and inserting in lieu thereof 'ten dollars ($10.00)';
On page two, subsection 4.6., by striking out 'twenty-five dollars ($25.00)' and inserting in lieu thereof 'one hundred dollars ($100.00)';
On page three, subsection 4.7., by striking out 'fifty dollars ($50.00)' and inserting in lieu thereof 'one hundred dollars ($100.00)';
On page four, subsection 7.1., after the words 'the prospective customer:' by striking out the remainder of the subsection and inserting in lieu thereof the following: The purchaser has been advised at the outset of his relationship with the hearing aid dealer that any examination of representation made by a licensed hearing aid dealer in connection with the practice of fitting this hearing aid is not an examination, diagnosis or prescription by a person licensed to practice medicine in this state and therefore must not be regarded as medical opinion.;
On page four, subdivision 7.5.d., by striking out the words 'be required to advise in writing' and inserting in lieu thereof the word 'determine';
On page four, by striking out all of subsection 7.6. and renumbering the remaining subsections;
On page five, subsection 8.2., by striking out all of subdivisions (i) and (j) and re-lettering the remaining subdivision;
On page five, by striking out all of subsection 8.5;
On page six, subsection 9.4., by striking out the words 'terms 'Certified Member' or 'Certified Hearing Aid Audiologist'' and inserting in lieu thereof the words 'term 'Certified Member';
On page six, after subsection 9.6., by adding thereto a new subsection, to read as follows:
'9.7. The hearing aid dealer must prominently display the following advisement: 'Consumers may contact the West Virginia Board of Hearing Aid Dealers at 167 11th Avenue, South Charleston, WV 25303, if the consumer believes that the hearing aid dealer has not satisfied the terms of the contract.';
On page seven, subsection 12.2., after the words 'body of the purchase agreement:' by striking out the remainder of the subsection and inserting in lieu thereof the following: 'You have the right to return the hearing aid to the dealer from whom it was purchased at anytime within thirty (30) days after receipt of the aid and rescind the purchase agreement except for reasonable fitting and examination charges ($125.00 maximum fitting charge), if the aid does not function properly or cannot be adjusted to correct the deficiency in your hearing or is otherwise unsatisfactory. The aid so returned must be without damage.';
And,
On page seven, by striking out all of subsection 12.4. and renumbering the remaining subsections.
§64-9-9. Massage Therapy Licensure Board.
The legislative rule filed in the State Register on the sixteenth day of July, two thousand seven, authorized under the authority of section six, article thirty-seven, chapter thirty of this code, relating to the Massage Therapy Licensure Board (general provisions, 194 CSR 1), is authorized.

§64-9-10. Medical Imaging and Radiation Therapy Technology Board of Examiners.

(a) The legislative rule filed in the State Register on the eighteenth day of July, two thousand seven, authorized under the authority of section seven, article twenty-three, chapter thirty of this code, modified by the Medical Imaging and Radiation Therapy Technology Board of Examiners to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the sixteenth day of October, two thousand seven, relating to the Medical Imaging and Radiation Therapy Technology Board of Examiners (rule of the Medical Imaging and Radiation Therapy Technology Board of Examiners, 18 CSR 1), is authorized.
(b) The legislative rule filed in the State Register on the eighteenth day of July, two thousand seven, authorized under the authority of section seven, article twenty-three, chapter thirty of this code, modified by the Medical Imaging and Radiation Therapy Technology Board of Examiners to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the sixteenth day of October, two thousand seven, relating to the Medical Imaging and Radiation Therapy Technology Board of Examiners (continuing education, 18 CSR 2), is authorized with the following amendment:
On page one, subsection 1.2., by striking out '30-7A-5 &64-9- 17(h)' and inserting in lieu thereof '30-23-7';
And,
On page five, subdivision 3.4.1., by striking out the words 'Grand fathered' and inserting in lieu thereof the word 'grandfathered'.
(c) The legislative rule filed in the State Register on the eighteenth day of July, two thousand seven, authorized under the authority of section seven, article twenty-three, chapter thirty of this code, modified by the Medical Imaging and Radiation Therapy Technology Board of Examiners to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the sixteenth day of October, two thousand seven, relating to the Medical Imaging and Radiation Therapy Technology Board of Examiners (standard of ethics, 18 CSR 5), is authorized.
§64-9-11. Board of Medicine.
(a) The legislative rule filed in the State Register on the tenth day of July, two thousand seven, authorized under the authority of section seven, article three, chapter thirty of this code, relating to the Board of Medicine (continuing education for physicians and podiatrists, 11 CSR 6), is authorized with the following amendment:
On page on, subsection 2.1., by striking out the number '1993' and inserting in lieu thereof the number '2008';
On page one, subsection 2.1., by striking out the words 'At least thirty (30) hours of the hours must be related to the physician's area or areas of specialty.' and inserting in lieu thereof the following: 'Beginning July 1, 2008, at least thirty (30) hours of the continuing medical education hours must be related to the physician's area or areas of specialty.';
And,
On page two, subsection 2.3., by striking out the words 'At least thirty (30) hours of the hours must be related to the podiatrist's area or areas of specialty.' and inserting in lieu thereof the following: 'Beginning July 1, 2008, at least thirty (30) hours of the continuing podiatric education hours must be related to the podiatrist's area or areas of specialty.'.
(b) The legislative rule filed in the State Register on the sixteenth day of November, two thousand six, authorized under the authority of section twenty-eight, article five, chapter thirty of this code, modified by the Board of Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the tenth day of October, two thousand seven, relating to the Board of Medicine (collaborative pharmacy practice, 11 CSR 8), is authorized.
(c) The legislative rule filed in the State Register on the nineteenth day of July, two thousand seven, authorized under the authority of section seven-a, article three, chapter thirty of this code, modified by the Board of Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-ninth day of November, two thousand seven, relating to the Board of Medicine (certification, disciplinary and complaint procedures, continuing education and radiologist assistants, 11 CSR 9), is authorized.
§64-9-12. Nursing Home Administrators Licensing Board.
The legislative rule filed in the State Register on the thirteenth day of June, two thousand seven, authorized under the authority of section seven, article twenty-five, chapter thirty of this code, modified by the Nursing Home Administrators Licensing Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-eighth day of August, two thousand seven, relating to the Nursing Home Administrators Licensing Board (nursing home administrators, 21 CSR 1), is authorized with the following amendment:
On page six, subdivision 4.2.1.a., after the words 'Emeritus State Administrators' by striking out the remainder of the subdivision and inserting in lieu thereof the words 'shall obtain annually at least ten (10) clock hours of continuing education approved as provided in subsection 4.2.1. of this rule.'.
§64-9-13. Pharmaceutical Cost Management Council.
The legislative rule filed in the State Register on the ninth day of July, two thousand seven, authorized under the authority of section fifteen, article three-c, chapter five-a of this code, modified by the Pharmaceutical Cost Management Council to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the fourteenth day of January, two thousand eight, relating to the Pharmaceutical Cost Management Council(prescription drug advertising expense reporting, 206 CSR 1), is authorized.
§64-9-14. Board of Professional Surveyors.
(a) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section six, article thirteen-a, chapter thirty of this code, modified by the Board of Professional Surveyors to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the nineteenth day of December, two thousand seven, relating to the Board of Professional Surveyors (examination and licensing of professional surveyors in West Virginia, 23 CSR 1), is authorized with the following amendment:
On page one, subsection 1.2., by striking out '30-13A-5(13)' and inserting in lieu thereof '30-13A-6';
On page two, subsection 2.10., after the word 'Board', by inserting a period and striking out the remainder of that subsection.
On page four, subdivision 3.1.d., after the word 'data' by striking out the words 'education and employment history';
On page five, subdivision 3.4.a.3., after the words 'of the examination', by striking out the word 'for' and inserting in lieu thereof the word 'after';
On page eight, subdivision 5.2.c. after the word 'certificate' by striking out the word 'shall' and inserting in lieu thereof the word 'may';
On page nine, subdivision 5.2.f.3. after the word 'examination' by striking the word 'for' and inserting in lieu thereof the word 'after';
On page nine, subdivision 5.3.c. after the underlined word 'shall' by adding the word 'conspicuously';
On page ten, after subdivision 5.3.e. by adding a new subdivision, designated 5.3.f., to read as follows: 'A wallet card shall be issued simultaneously to be kept on the licensee's person.';
And,
On page ten, subdivision 5.5.c, in the second sentence, after the word 'months' by striking the word 'shall' and inserting in lieu thereof the word 'may'.
(b) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section five, article thirteen-a, chapter thirty of this code and section six of said article, modified by the Board of Professional Surveyors to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the nineteenth day of December, two thousand seven, relating to the Board of Professional Surveyors (fees for surveyors and surveying firms, 23 CSR 4), is authorized with the following amendment:
On page one, subsection 1.2., after "30-13A-5(13)" by inserting "and §30-13A-6;";
On page three, section 4, after the words "PS License (Active or Inactive)", by striking out "$150.00" and inserting in lieu thereof "$100.00";
On page three, section 4, by striking out the colon and the following:
"Less than ten (10) employees

$150.00"

"Ten (10) employees to less than fifty (50)

$250.00"

"Fifty (50) employees or more

$500.00"

and inserting in lieu thereof "$100.00";
And,
On page four, subdivision 4.5.i. after the words 'Returned Check Fee' by striking the figure '$40.00' and inserting in lieu thereof the following 'Maximum allowable by WV Code'.
(c) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section six, article thirteen-a, chapter thirty of this code, modified by the Board of Professional Surveyors to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the nineteenth day of December, two thousand seven, relating to the Board of Professional Surveyors (standards for practice of surveying in West Virginia, 23 CSR 5), is authorized with the following amendment:
On page one, subsection 1.2., by striking out '5' and inserting in lieu thereof '6'.
§64-9-15. Public Service Commission.
The legislative rule filed in the State Register on the twenty-sixth day of September, two thousand six, authorized under the authority of section six-b, article six, chapter twenty-four of this code, relating to the Public Service Commission (emergency telephone service, 150 CSR 25), is authorized with the following amendment:
On page one, subsection 2.1., line one, by striking out 'these rules' and inserting in lieu thereof 'this rule';
On page one, subsection 2.1., line six, by striking out 'these rules' and inserting in lieu thereof 'this rule';
On page four, subsection 2.27., following the words 'the Speaker of the House of Delegates or that person's designee' by adding a comma and the words 'as a non-voting member';
On page four, subsection 2.27., following the words 'the Senate President or that person's designee' by adding a comma and the words 'as a non-voting member';
On page eight, subsection 5.1., by striking out '5.1.a.' and inserting in lieu thereof '5.2.' and by renumbering the remaining subsections accordingly;
On page ten, section seven, by striking out '7.1.';
On page twelve, section twelve, by striking out '12.1.';
On page sixteen, subdivision 13.5.d, at the end of the second line, following the word 'least', by striking the word 'five' and inserting in lieu thereof the words 'four voting';
And,
On page sixteen, by striking subsection 13.6. in its entirety.
§64-9-16. Secretary of State.
The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, 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 ninth day of October, two thousand seven, relating to the Secretary of State (use of digital signatures, state certificate authority and state repository, 153 CSR 30), is authorized with the following amendment:
On page two, subsection 3.3., by striking out the words 'and approved by';
On page two, subsection 3.3., after the word 'Technology', by changing the comma to a period, striking out the words 'through its chief technology officer or his or her designee,' and inserting in lieu thereof the words 'The specifications must be approved by the Office of Technology';
On page four, subsection 6.2., after the word 'Technology', by striking out the comma and the words 'through its chief technology officer or his or her designee';
On page four, subdivision 7.1.h., after the word 'The' by inserting the words 'Secretary of State may ask or enter into an agreement with the';
On page four, subdivision 7.1.h., after the word 'Technology', by striking out the comma and the words 'through its chief technology officer or his or her designee, shall' and inserting in lieu thereof the word 'to';
On page four, subdivision 7.1.h., after the word 'and' by inserting the word 'to';
On page five, subsection 7.3., by striking out the words 'Office of Technology, through its chief technology officer or his or her designee,' and by inserting the words 'Secretary of State';
On page five subsection 7.3., by striking out the words 'for a term no less that one year';
On page five subsection 7.3., after the period, by inserting the words 'The Secretary of State may defer to the Office of Technology his or her authority to initiate the procurement process.';
On page five, subsection 7.4., after the word 'The', by inserting the words 'Secretary of State may ask or enter into an agreement with the';
On page five, subsection 7.4., by striking out the word 'shall' and inserting in lieu thereof the word 'to';
On page five, subsection 7.4., by striking out the words 'Secretary of State' and inserting in lieu thereof the words 'him or her';
And,
On page five, subdivision 7.5.a., by striking out the words 'The Office of Technology, through its chief technology officer or his or her designee, shall inform the Secretary of State' and insert in lieu thereof the words 'The Secretary of State may ask or enter into an agreement with the Office of Technology to inform him or her'.

§64-9-17. Board of Examiners for Speech-Language Pathology and Audiology.

(a) The legislative rule filed in the State Register on the twenty-seventh day of June, two thousand seven, authorized under the authority of section ten, article thirty-two, chapter thirty of this code, modified by the Board of Examiners for Speech-Language Pathology and Audiology to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the fifth day of December, two thousand seven, relating to the Board of Examiners for Speech-Language Pathology and Audiology (licensure of speech-pathology and audiology, 29 CSR 1), is authorized with the following amendment:
On page two, section 6.1.b., by striking the word 'five' and reinserting in lieu thereof the word, 'ten';
And,
On page twenty, section 13.11., after the word 'licensure' and the period, by striking out the remainder of the rule.
(b) The legislative rule relating to the Board of Examiners for Speech-Language Pathology and Audiology (Code of Ethics, 29 CSR 5), is authorized as follows:
'29 CSR 5
West Virginia Board of Examiners for Speech-Language Pathology and Audiology Code of Ethics
§29-5-1. General.
1.1. Scope. - This legislative rule establishes standards of conduct speech-language pathologist or audiologist in the State of West Virginia.
1.2. Authority. -- W.Va. Code §30-32-10
1.3. Filing Date. --
1.4. Effective Date. --
1.5. Preamble: The preservation of the highest standards of integrity and ethical principles is vital to the responsible discharge of obligations in the professions of Speech-Language Pathology and Audiology. This code of Ethics sets forth the fundamental principles and rules considered essential to this purpose. Every individual who is licensed by this Board as a Professional, Provisional or a Speech or Audiology Assistant.

§29.5.2. Licensed by this Board as a Professional, Provisional or a Speech or Audiology Assistant.

2.1. Any action that violates the spirit and purpose of this Code shall be considered unethical. Failure to specify any particular responsibility or practice in this Code of Ethics shall not be construed as denial of the existence of such responsibilities or practices.
2.2. The fundamentals of ethical conduct are described by Principles of Ethics and Rules of Ethics as they relate to responsibility to persons served, to the public, and to the professions of speech-language pathology and audiology.
2.3. Principles of Ethics, aspirational and inspirational in nature, form the underlying moral basis for the Code of Ethics. Licensees shall observe these principles as affirmative obligations under all conditions of professional activity. Rules of Ethics are specific statements of minimally acceptable professional conduct or of prohibitions and are applicable to all licensees.
2.4. Principle of Ethics I
2.4.a. Licensees shall honor their responsibility to hold paramount the welfare of persons they serve professionally.
2.4.b. Rules of Ethics
2.4.b.1. Licensees shall provide all services competently.
2.4.b.2. Licensees shall use every resource, including referral when appropriate, to ensure that high-quality service is provided.
2.4.b.3. Licensees shall not discriminate in the delivery of professional services on the basis of race ethnicity, gender, age, religion, national origin, sexual orientation, or disability.
2.4.b.4. Licensees shall fully inform the persons they serve of the nature and possible effects of services rendered and products dispensed.
2.4.b.5. Licensees shall evaluate the effectiveness of services rendered and of products dispensed and shall provide services or dispense products only when benefit can be reasonably expected.
2.4.b.6. Licensees shall not guarantee the results of any treatment or procedure, directly or by implication; however, they may make a reasonable statement of prognosis.
2.4.b.7. Licensees shall not evaluate or treat speech, language, or hearing disorders solely by correspondence.
2.4.b.8. Licensees shall maintain adequate records of professional services rendered and products dispensed and shall allow access to these records when appropriately authorized.
2.4.b.9. Licensees shall not reveal, without authorization, any professional or personal information about the person served professionally, unless required by law to do so, or unless doing so is necessary to protect the welfare of the person or of the community.
2.4.b.10. Licensees shall not charge for services not rendered, nor shall they misrepresent, in any fashion, services rendered or products dispensed.
2.4.b.11. Licensees shall use persons in research or as subjects of teaching demonstrations only with their informed consent.
2.4.b.12. Licensees whose professional services are adversely affected by substance abuse or other health-related conditions shall seek professional assistance and, where appropriate, withdraw from the affected areas of practice.
2.5. Principles of Ethics II
2.5.a. Licensees shall honor their responsibility to achieve and maintain the highest level of professional competence.
2.5.b. Rules of Ethics
2.5.b.1. Licensees shall engage in the provision of clinical services only when they hold the appropriate license or when they are in the licensure process and are supervised by an individual who holds the appropriate license.
2.5.b.2. Licensees shall engage in only those aspects of the professions that are within the scope of their competence, considering their level of education, training, and experience.
2.5.b.3. Licensees shall continue their professional development throughout their careers.
2.5.b.4. Licensees shall delegate the provision of clinical services only to persons who are licensed or to persons in the education or licensure process who are appropriately supervised. The provision of support services may be delegated to persons who are neither licensed nor in the licensure process only when a license holder provides appropriate supervision.
2.5.b.5. Licensees shall prohibit any of their professional staff from providing services that exceed the staff member's competence, considering the staff member's level of education, training, and experience.
2.5.b.6. Licensees shall ensure that all equipment used in the provision of services is in proper working order and is properly calibrated.
2.6. Principle of Ethics III
2.6.a. Licensees shall honor their responsibility to the public by promoting public understanding of the professions, by supporting the development of services designed to fulfill the unmet needs of the public, and by providing accurate information in all communications involving any aspect of the professions.
2.6.b. Rules of Ethics
2.6.b.1. Licensees shall not misrepresent their credentials, competence, education, training, or experience.
2.6.b.2. Licensees shall not participate in professional activities that constitute a conflict of interest.
2.6.b.3. Licensees shall not misrepresent diagnostic information, services rendered, or products dispensed or engage in any scheme or artifice to defraud in connection with obtaining payment or reimbursement for such services or products.
2.6.b.4. Licensees' statements to the public shall provide accurate information about the nature and management of communication disorders, about the professions, and about professional services.
2.6.b.5. Licensees' statements to the public -- advertising, announcing, and marketing their professional services, reporting research results, and promoting products -- shall adhere to prevailing professional standards and shall not contain misrepresentations.
2.7. Principle of Ethics IV
2.7.a. Licensees shall honor their responsibilities to the professions and their relationships with colleagues, students, and members of allied professions. Licensees shall uphold the dignity and autonomy of the professions, maintain harmonious interprofessional and intraprofessional relationships, and accept the professions' self-imposed standards.
2.7.b. Rules of Ethics
2.7.b.1. Licensees shall prohibit anyone under their supervision from engaging in any practice that violates the Code of Ethics.
2.7.b.2. Licensees shall not engage in dishonesty, fraud, deceit, misrepresentation, or any form of conduct that adversely reflects on the professions or on the licensee's fitness to serve persons professionally.
2.7.b.3. Licensees shall assign credit to only those licensees who have contributed to a publication, presentation, or product. Credit shall be assigned in proportion to the contribution and only with the contributor's consent.
2.7.6.4. Licensee's statements to colleagues about professional services, research results, and products shall adhere to prevailing professional standards and shall contain no misrepresentations.
2.7.b.5. Licensees shall not provide professional services without exercising independent professional judgment, regardless of referral source or prescription.
2.7.b.6. Licensees shall not discriminate in their relationships with colleagues, students, and members of allied professions on the basis of race or ethnicity, gender, age, religion, national origin, sexual orientation, or disability.
2.7.b.7. Licensees who have reason to believe that the Code of Ethics has been violated shall inform the West Virginia Board of Examiners.
2.7.b.8. Licensees shall cooperate fully with the West Virginia Board of Examiners in its investigation and adjudication of matters related to this Code of Ethics.'.
§64-9-18. Board of Veterinary Medicine.
The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, 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 fourth day of January, two thousand eight, relating to the Board of Veterinary Medicine (the registration of veterinary technicians, 26 CSR 3), is authorized.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 349, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 349) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 349) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 466, Authorizing Water Development Authority to administer Dam Safety Rehabilitation Revolving Fund Loan Program.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 476, Creating State Employee Sick Leave Fund.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §5-5-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that the said code be amended by adding thereto a new section, designated §5-5-6, all to read as follows:
ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-1. Definitions.
For the purposes of this article:
(a) "Eligible employee" means:
(1) Any regular full-time employee of the state or any spending unit of the state who is eligible for membership in any state retirement system of the State of West Virginia or other retirement plan authorized by the state: Provided, That the mandatory salary increase required by this article does not apply to any employee of the state whose compensation is fixed by statute or by statutory schedule other than employees described in this section. Clerks, deputy clerks and magistrate assistants of magistrate courts are eligible for the incremental salary increases provided in this article with the increases to be allowable in addition to the maximum salaries and compensation for the employee offices under the magistrate court system statutes of article one, chapter fifty of this code. Members of the Board of Parole are eligible for the incremental salary increases provided in this article with the increases to be allowable in addition to the salaries and compensation provided in section two-a, article seven, chapter six of this code. This article may not be construed to mandate an increase in the salary of any elected or appointed officer of the state;
(2) Any classified employee as defined in section two, article nine, chapter eighteen-b of this code who is an employee of a state institution of higher education, the Higher Education Policy Commission or the Council for Community and Technical College Education; or
(3) Any full-time faculty member as defined in section one, article eight, chapter eighteen-b of this code who is an employee of a state institution of higher education, the Higher Education Policy Commission or the West Virginia Council for Community and Technical College Education.
(b) "Years of service" means full years of totaled service as an employee of the State of West Virginia. For full-time faculty as defined in this section, each nine or more months of contracted employment during a fiscal year equals one full year of service; and
(c) "Spending unit" means any state office, department, agency, board, commission, institution, bureau or other designated body authorized to hire employees.
§5-5-6. Payment for unused sick leave.
(a) Every eligible employee, as defined in section one of this article, who was hired prior to the first day of July, two thousand one, and who has accumulated at least sixty-five days of unused sick leave may be paid, at his or her option, for unused sick leave in an amount of days as designated by the employee not to exceed the number of sick leave days that would reduce an employee's sick leave balance to less than fifty days. The employee shall be paid at a rate equal to one quarter of their usual rate of daily pay during that calendar year. The "daily rate of pay" of an employee paid a monthly salary is calculated by multiplying the monthly salary by twelve and dividing that number into the number of workdays for that calendar year. As used in this section, "workday" does not include weekends. Any payment for unused sick leave may not be a part of final average salary computation.
(b) Payment for unused sick leave may be made only once per fiscal year on either the pay day immediately following the first full pay period in July or the first full pay period in December. Payments shall be made out of the fund established in subsection (d) of this section.
(c) Any eligible employee opting to receive payment in exchange for unused sick leave must contract, in a form to be prescribed by the Department of Administration, agreeing to reimburse the fund for the amount exchanged plus twelve percent annum if the employee elects to separate from employment within sixty months of the date of the exchange pursuant to subsection (a) of this section. The Department of Administration shall pursue collection of the obligation, either by itself, or by contracting with a collection agency. For purposes of this section, "separation" does not include separation from employment by death or retirement, but does refer to any other manner in which employment may be terminated.
(d) Payments shall be made in the order that eligible employees apply for the payments so long as funds are available. In the event the fund is insufficient to pay all employees who have applied for payment in a fiscal year, employees who do not receive payment are eligible for payment in the next fiscal year, are not required to reapply and shall receive payment in the order in which they first applied, unless the employee chooses to withdraw the application prior to the next fiscal year.
(e) Effective the first day of July, two thousand nine, there is created a special revenue account within the State Treasury to be known as the State Employee Sick Leave Fund which shall consist of moneys appropriated by the Legislature and shall be administrated by the Secretary of the Department of Administration.
(f) The secretary shall adopt procedural rules pursuant to article three, chapter twenty-nine-a of this code to implement the provisions of this section. The rules shall include, but not be limited to, provisions for the application and the application process.
(g) Each spending unit, as defined in section one of this article, shall verify to the secretary an employee is eligible for payment under this section and shall verify the number of unused sick leave days for all employees at least once per year. The secretary shall maintain sick leave records for all spending units. All sick leave days that an employee is paid for as provided in this section shall be deducted from the employee's sick leave balance by the secretary, and the secretary shall verify to each spending unit the amount of days that have been deducted from an employee's sick leave balance. An employee shall not be permitted to reacquire any sick leave days that he or she received payment for under the provisions of this section.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 476--A Bill to amend and reenact §5-5-1 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §5- 5-6, all relating to public employee benefits generally; providing that members of the parole board are eligible for incremental salary increases; state eligible employees hired prior to the first day of July, two thousand one, to be paid for unused sick leave days in excess of fifty days once per year; creating the State Employee Sick Leave Fund; naming the Secretary of the Department of Administration as administrator of the fund; and authorizing rulemaking to implement the provisions of this section.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 476, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 476) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 476) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2008, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 492, Eliminating part-time prosecutors.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
ARTICLE 7. COMPENSATION OF ELECTED COUNTY OFFICIALS.
§7-7-4a. Authorizing the option of full-time status for part-time prosecuting attorneys.

(a) Notwithstanding the provisions of section four of this article to the contrary, on or before the first day of January, two thousand nine, a county may not have a part-time prosecutor. The county commissions of counties in Class VI through X shall then compensate all prosecuting attorneys that have changed to full-time by virtue of this section at the same rate of compensation established for a prosecuting attorney in a Class V county: Provided, That, upon mutual agreement of the prosecuting attorney and the county commission, the prosecuting attorney may choose to remain a part-time prosecuting attorney.
(b) If, after the first day of January, two thousand nine, during the course of a term of office, pursuant to subsection (a) of this section, any prosecutor who becomes full-time or chooses to remain part-time who believes that the responsibilities of his or her office either no longer requires a full-time position or believes that the duties of the part-time position have become full-time, may, by mutual agreement with the county commission, either return to part-time status or change to full-time status: Provided, That, if the decision to change to full-time or part-time status is made during an election year, the decision must be by mutual agreement between the county commission and the prosecutor- elect: Provided, however, That any prosecutor who returns to part- time status shall, thereafter, be compensated at the rate of compensation set forth in section four of this article for a prosecuting attorney of his or her class county and any prosecutor that changes to full-time status shall, thereafter, be compensated at the same rate of compensation established for a prosecuting attorney in a Class V county.
(c) If, after the first day of January, two thousand nine, any prosecutor or prosecutor elect desires to change to full-time status and the county commission objects to such change due to an alleged financial condition of the county, then either party may request the state auditor's office to examine the county's financial condition and certify whether or not there are sufficient funds to support a full-time position. The state auditor shall then, within ninety days of such request, certify whether or not there are sufficient funds available to support a full-time prosecutor in the county. If the state auditor certifies that there are sufficient funds available, then the prosecutor or prosecutor elect must be changed to full-time status and be compensated at the same rate of pay as a prosecutor in a Class V county.
(d) Nothing in this section may be construed to prohibit a part-time prosecuting attorney from remaining part-time with the mutual agreement of the county commission.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 492--A Bill to amend and reenact §7-7-4a of the Code of West Virginia, 1931, as amended, relating to prosecuting attorneys; eliminating part-time prosecutors; allowing prosecutors to remain as part-time prosecutors, upon mutual agreement of county commissions and prosecutors; authorizing an increase in salary for a part-time prosecutor who becomes a full-time prosecutor; allowing prosecutors and counties to mutually agree to a change in part-time or full- time status; providing for a readjustment in salary if full-time prosecutor returns to part-time status; providing a mechanism for review of county finances by the state auditor to confirm the availability of county funds to support a full-time prosecutor; exceptions; and effective dates.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 492, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Sypolt--1.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 492) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Sypolt--1.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 492) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 553, Creating Permitting and Licensing Information Act.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5A-6A-1, §5A-6A-2, §5A-6A-3, §5A-6A-4, §5A-6A-5, §5A-6A-6, §5A-6A-7, §5A-6A-8 and §5A- 6A-9, all to read as follows:
ARTICLE 6A. PERMITTING AND LICENSING INFORMATION ACT.
§5A-6A-1. Short title.
Short title. -- This article may be known and cited as the Permitting and Licensing Information Act.
§5A-6A-2. Legislative findings.
(a) The Legislature finds that:
(1) Persons conducting business activities in this state are required to obtain permits and licenses from various agencies that regulate those activities;
(2) The efficiency of the permitting and licensing process is an integral component of effective government, business development and public participation; and
(3) It is in the public interest that the permitting and licensing process for business activities should be efficient and streamlined.
(b) Therefore, the Legislature declares that the permitting and licensing process for business activities be facilitated and coordinated by the Governor's Office of Technology.
§5A-6A-3. Definitions.
For the purposes of this article, the following words have the meaning assigned unless the context indicates otherwise:
(1) "Agency" means any board, department, division, authority, commission or other public entity that requires a permit or license to be obtained from the entity to conduct a business activity in this state.
(2) "Office" means the Governor's Office of Technology.
(3) "Permit" means any permit, license, authorization, certification, registration or other approval required to perform a business activity.

§5A-6A-4. Permit and license information authority.

(a) The Legislature hereby authorizes the Governor's Office of Technology to facilitate and coordinate the permitting and licensing process for business activities in this state.
(b) The office has the following authority to:
(1) Establish a central permit and license information repository;
(2) Determine the type of information that each agency must submit in order to provide adequate information to the public regarding the permits and licenses needed for a particular business activity;
(3) Require state agencies and local agencies to provide their permit and license information, including the type and purpose of all permits and licenses the agency issues;
(4) Create an online permitting and licensing program monitored through the state web page; and
(5) Make recommendations to the Governor and the Legislature concerning the functionality of the central permit and license information repository to ensure its accessibility and reliability for use by agencies and the public.
§5A-6A-5. Duty of agencies to provide permitting and licensing information; development of permitting and licensing information repository.

(a) On or before the first day of October, two thousand eight, the office shall provide notice to all agencies that beginning on the first day of February, two thousand nine, that the agency shall submit licensing and permitting information to the office.
(b) On or before the first day of December, two thousand eight, the office shall establish, and provide to agencies that issue permits and licenses, the procedures and methods for submission of required permitting and licensing information for the permitting and licensing information repository.
(c) On or before the first day of February, two thousand nine, an agency that issues permits and licenses shall submit the required permitting and licensing information to the office in accordance with the procedures and methods established in this article.
(d) On or before the first day of July, two thousand nine, the office will create an internet-based, publicly accessible permitting and licensing information repository, in coordination with the state's e-government initiatives, that contains the following:
(1) A comprehensive detailed listing of the types of permits and licenses required for specific business activities;
(2) The purposes of the permits and licenses; and
(3) The agencies responsible for issuance of the permits and licenses, including the agency contact information.
(e) The permitting and licensing information repository shall allow individuals to obtain a listing of the types of permits and licenses required for specific business activities.
§5A-6A-6. Requirements for adopted, revised or terminated permitting or licensing information.

No later than thirty days prior to the effective date of the implementation, revision or termination of any permitting or licensing requirement, an agency, subject to the provisions of this article, is required to provide to the office the current information relating to a permit or license.

§5A-6A-7. Reporting requirements.

Annually, by the thirtieth day of December, the office shall report to the Joint Committee on Government and Finance and the Governor the status of the permitting and licensing information repository and identify any agency that has failed to comply with the requirements of this article.
§5A-6A-8. Rule-making authority.
The office may propose rules for legislative approval pursuant to the provisions of article three, chapter twenty-nine-a of this code to effectuate the purpose and provisions of this article.
§5A-6A-9. Limitation.
Although this article creates a central permitting and licensing information repository, each agency shall continue to administer its own permitting and licensing procedures and charge and collect the appropriate fees.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 553--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5A-6A-1, §5A-6A-2, §5A-6A-3, §5A-6A-4, §5A-6A- 5, §5A-6A-6, §5A-6A-7, §5A-6A-8 and §5A-6A-9, all relating to establishing the Permitting and Licensing Information Act; authorizing the Governor's Office of Technology to establish a permitting and licensing information system; providing legislative findings; definitions; establishing authority and duties of the office; creating duty for agencies to provide permitting and licensing information; reporting requirements; granting rule-making authority; and providing for limitations of the article.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 553, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 553) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 593, Clarifying library funding obligation from local share.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §18-9A-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.

§18-9A-11. Computation of local share; appraisal and assessment of property; public library support.

(a) On the basis of each county's certificates of valuation as to all classes of property as determined and published by the assessors pursuant to section six, article three, chapter eleven of this code for the next ensuing fiscal year in reliance upon the assessed values annually developed by each county assessor pursuant to the provisions of articles one-c and three of said chapter, the state board shall for each county compute by application of the levies for general current expense purposes, as defined in section two of this article, the amount of revenue which the levies would produce if levied upon one hundred percent of the assessed value of each of the several classes of property contained in the report or revised report of the value, made to it by the Tax Commissioner as follows:
(1) The state board shall first take ninety-five percent of the amount ascertained by applying these rates to the total assessed public utility valuation in each classification of property in the county; and
(2) The state board shall then apply these rates to the assessed taxable value of other property in each classification in the county as determined by the Tax Commissioner and shall deduct therefrom five percent as an allowance for the usual losses in collections due to discounts, exonerations, delinquencies and the like. All of the amount so determined shall be added to the ninety-five percent of public utility taxes computed as provided in subdivision (1) of this subsection and this total shall be further reduced by the amount due each county assessor's office pursuant to the provisions of section eight, article one-c, chapter eleven of this code and this amount shall be the local share of the particular county.
As to any estimations or preliminary computations of local share required prior to the report to the Legislature by the Tax Commissioner, the state shall use the most recent projections or estimations that may be available from the tax department for that purpose.
(b) ~~Commencing with the two thousand thirteen fiscal year and each fiscal year thereafter~~ Effective the first day of July, two thousand thirteen, subsection (a) of this section is void and local share shall be calculated in accordance with the following:
(1) The state board shall for each county compute by application of the levies for general current expense purposes, as defined in sections two and two-a of this article, the amount of revenue which the levies would produce if levied upon one hundred percent of the assessed value calculated pursuant to section five-b, article one-c, chapter eleven of this code;
(2) Five percent shall be deducted from the revenue calculated pursuant to subdivision (1) of this subsection as an allowance for the usual losses in collections due to discounts, exonerations, delinquencies and the like; and
(3) The amount calculated in subdivision (2) of this subsection shall further be reduced by the sum of money due each assessor's office pursuant to the provisions of section eight, article one-c, chapter eleven of this code and this reduced amount shall be the local share of the particular county.
(c) Whenever in any year a county assessor or a county commission ~~shall fail or refuse~~ fails or refuses to comply with the provisions of this section in setting the valuations of property for assessment purposes in any class or classes of property in the county, the State Tax Commissioner shall review the valuations for assessment purposes made by the county assessor and the county commission and shall direct the county assessor and the county commission to make corrections in the valuations as necessary so that they ~~shall~~ comply with the requirements of chapter eleven of this code and this section and the Tax Commissioner shall enter the county and fix the assessments at the required ratios. Refusal of the assessor or the county commission to make the corrections constitutes grounds for removal from office.
(d) For the purposes of any computation made in accordance with the provisions of this section, in any taxing unit in which tax increment financing is in effect pursuant to the provisions of article eleven-b, chapter seven of this code, the assessed value of a related private project shall be the base-assessed value as defined in section two of said article.
(e) For purposes of any computation made in accordance with the provisions of this section, in any county where the county board of education has adopted a resolution choosing to use the provisions of the Growth County School Facilities Act set forth in section six-f, article eight, chapter eleven of this code, estimated school board revenues generated from application of the regular school board levy rate to new property values, as that term is designated in said section, may not be considered local share funds and shall be subtracted before the computations in subdivisions (1) and (2), subsection (a) of this section or in subdivisions (2) and (3), subsection (b) of this section, as applicable, are made.
(f) The Legislature finds that public school systems throughout the state provide support in varying degrees to public libraries through a variety of means including budgeted allocations, excess levy funds and portions of their regular school board levies as may be provided by special act. A number of public libraries are situated on the campuses of public schools and several are within public school buildings serving both the students and public patrons. To the extent that public schools recognize and choose to avail the resources of public libraries toward developing within their students such legally recognized elements of a thorough and efficient education as literacy, interests in literature, knowledge of government and the world around them and preparation for advanced academic training, work and citizenship, public libraries serve a legitimate school purpose and may do so economically. For the purposes of any computation made in accordance with the provisions of this section, the library funding obligation on the regular school board levies which is created by a special act and is due and payable from the levy revenues to a library shall be paid from ~~that portion of~~ the county school board's discretionary retainage, which is hereby defined as the amount by which the regular school board levies ~~which~~ exceeds the ~~proportion determined to be~~ local share as determined hereunder. If the library funding obligation which is created by a special act and is due and payable to a library is greater than the ~~amount available in excess of the county's local share~~ county school board's discretionary retainage, the library funding obligation created by the special act is amended and is reduced to the amount ~~which is available,~~ of the discretionary retainage, notwithstanding any provisions of the special act to the contrary. Any excess of the discretionary retainage over the library funding obligation shall be available for expenditure by the county board in its discretion for its properly budgeted purposes.
(g) It is the intent of the Legislature that whenever a provision of subsection (f) of this section is contrary to any special act of the Legislature which has been or may in the future be enacted by the Legislature that creates a library funding obligation on the regular school board levy of a county, subsection (f) of this section controls over the special act. Specifically, the special acts which are subject to said subsection upon the enactment of this section during the two thousand seven regular session of the Legislature include:
(1) Enrolled Senate Bill No. 11, passed on the twelfth day of February, one thousand nine hundred seventy, applicable to the Berkeley County Board of Education;
(2) Enrolled House Bill No. 1352, passed on the seventh day of April, one thousand nine hundred eighty-one, applicable to the Hardy County Board of Education;
(3) Enrolled Committee Substitute for House Bill No. 2833, passed on the fourteenth day of March, one thousand nine hundred eighty-seven, applicable to the Harrison County Board of Education;
(4) Enrolled House Bill No. 161, passed on the sixth day of March, one thousand nine hundred fifty-seven, applicable to the Kanawha County Board of Education;
(5) Enrolled Senate Bill No. 313, passed on the twelfth day of March, one thousand nine hundred thirty-seven, as amended by Enrolled House Bill No. 1074, passed on the eighth day of March, one thousand nine hundred sixty-seven, and as amended by Enrolled House Bill No. 1195, passed on the eighteenth day of January, one thousand nine hundred eighty-two, applicable to the Ohio County Board of Education;
(6) Enrolled House Bill No. 938, passed on the twenty-eighth day of February, one thousand nine hundred sixty-nine, applicable to the Raleigh County Board of Education;
(7) Enrolled House Bill No. 398, passed on the first day of March, one thousand nine hundred thirty-five, applicable to the Tyler County Board of Education;
(8) Enrolled Committee Substitute for Senate Bill No. 450, passed on the eleventh day of March, one thousand nine hundred ninety-four, applicable to the Upshur County Board of Education; and
(9) Enrolled House Bill No. 2994, passed on the thirteenth day of March, one thousand nine hundred eighty-seven, applicable to the Wood County Board of Education.
(h) Notwithstanding any provision of any special act set forth in subsection (g) of this section to the contrary, the county board of any county with a special act creating a library obligation out of the county's regular school levy revenues may transfer that library obligation so that it becomes an a continuing obligation of its excess levy revenues instead of an obligation of its regular school levy revenues, subject to the following:
(1) If a county board chooses to transfer the library obligation pursuant to this subsection, the library funding obligation shall remain an obligation of the regular school levy revenues until ~~after~~ the fiscal year in which ~~a vote on an~~ the excess levy ~~occurs~~ is effective or would have been effective if it had been passed by the voters;
(2) If a county board chooses to transfer the library obligation pursuant to this subsection, the county board shall include the funding of the public library obligation in the same amount as its library funding obligation which exists or had existed on its regular levy revenues as ~~the purpose or~~ one of the purposes for the excess levy to be voted on as a specifically described line item of the excess levy: Provided, That if the county board has transferred the library obligation to the excess levy and the excess levy fails to be passed by the voters or the excess levy passes and thereafter expires upon the time limit for continuation as set forth in section sixteen, article eight, chapter eleven of this code, then in any subsequent excess levy which the county board thereafter submits to the voters the library funding obligation again shall be included as one of the purposes of the subsequent excess levy as a specifically described line item of the excess levy;
(3) If a county board chooses to transfer the library obligation pursuant to this subsection, regardless of whether or not the excess levy passes, effective the fiscal year ~~after the fiscal year~~ in which ~~a vote on~~ the excess levy ~~occurs,~~ is effective or would have been effective if it had been passed by the voters, a county's library obligation on its regular levy revenues is void notwithstanding any provision of the special acts set forth in subsection (g) of this section to the contrary; and
(4) Nothing in subdivision (3) of this subsection prohibits a county board from funding its public library obligation voluntarily.;
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 593, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 593) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 593) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 595, Establishing education goals and objectives for 2020.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §18B-1-1, §18B-1-1b and §18B-1-1c of the Code of West Virginia, 1931, as amended, be repealed; that §18B-1A-1 and §18B-1A-2 of said code be repealed; that §18B-1B-8 and §18B-1B-9 of said code be repealed; that §18B-3B-1 and §18B-3B-2 of said code be repealed; that §18B-11-5 of said code be repealed; that §18-1-4 of said code be amended and reenacted; that §18-2E-5c of said code be amended and reenacted; that §18B-1-1a of said code be amended and reenacted; that said code be amended by adding thereto a new article, designated §18B-1D-1, §18B-1D-2, §18B-1D-3, §18B-1D-4, §18B-1D-5, §18B-1D-6, §18B-1D-7 and §18B-1D-8; and that said code be amended by adding thereto a new section, designated §18B-14-9, all to read as follows:
CHAPTER 18. EDUCATION.

ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS FOR EDUCATION.

§18-1-4. Vision 2020: An Education Blueprint for Two Thousand Twenty.

(a) The Governor, the Legislature, the state board and the people of West Virginia agree that the education of their children is of utmost importance to the future well-being of the state and that the purpose of enacting education laws and providing funding to support a system of free schools is to assure that all of our children have every opportunity to secure an education which is thorough and is provided in an efficient manner. The Governor, the Legislature, the state board and the people of West Virginia further agree that improvements are needed in the education system of West Virginia if these objectives are to be met.
(b) Therefore, the Governor, the Legislature, the state board and the people of West Virginia have established goals for themselves which are measurable and achievable through the combined efforts of the government, the school system and the people through an increased focus on the needs of children. These goals are:
(a) This section, together with section one-a, article one, chapter eighteen-b of this code and article one-d of said chapter, shall be known as and may be cited as Vision 2020: An Education Blueprint for Two Thousand Twenty.
(b) For the purposes of this section:
(1) "Goals" means those long-term public purposes which are the desired end result and only may include those items listed in subsection (e) of this section;
(2) "Objectives" means the ends to be accomplished or attained within a specified period of time for the purpose of meeting the established goals; and
(3) "Strategies" means specific activities carried out by the public education system which are directed toward accomplishing specific objectives.
(c) The Legislature finds that:
(1) The measure of a thorough and efficient system of education is whether students graduate prepared to meet the challenges of the future as contributing members of society and that these challenges change, becoming ever more complex and involving a global context more than at any other time in the history of our nation;
(2) The state recently has embraced and is implementing the Partnership for 21st Century Skills model for teaching and learning including six key elements (core subjects, 21st Century content, learning and thinking skills, information and communications technology literacy, life skills and 21st Century assessments) to help better prepare students for the challenges of the 21st Century;
(3) Published national studies by several organizations routinely examine various elements of state education systems and selected underlying socioeconomic variables and rate and rank West Virginia and the other states, the District of Columbia and the territories based on the measurement systems and priorities established by the organizations, and these measurement systems and priorities change;
(4) While the state should take pride in studies that show West Virginia is among the leaders in several of its efforts and is making progress, its students often outperforming expectations based on typical indicators of the likelihood for student success, such as the income and education levels of their parents, it should also recognize that the state must do even more to ensure that high school graduates are fully prepared for post-secondary education or gainful employment;
(5) Therefore, the purpose of this section is to provide for the establishment of a clear plan that includes goals, objectives, strategies, indicators and benchmarks to help guide the state's policymakers on the continuous development of the state's education system for the 21st Century.
(d) As part of Vision 2020: An Education Blueprint for Two Thousand Twenty, the state board shall establish a plan in accordance with the provisions of this section for submission to and consideration by the Process for Improving Education Council pursuant to section five-c, article two-e of this chapter. The plan shall include only the goals, objectives, strategies, indicators and benchmarks for public education set forth in this section and that meet the requirements of this section. To add clarity and avoid confusion, the goals for public education set forth in the plan pursuant to this section are the exclusive goals for public education. The plan shall include:
(1) The goals set forth in this section and no other goals;
(2) At least the objectives set forth in this section and specified periods of time for achieving those objectives and any other objectives that may be included in the plan;
(3) Strategies for achieving the specific objectives;
(4) Indicators for measuring progress toward the goals and objectives established in this section; and
(5) Benchmarks for determining when the goals and objectives have been achieved.
(e) The plan shall include the following list of exclusive goals for the public education system in West Virginia:
(1) Academic achievement according to national and international measures will exceed national and international averages. These national and international measures should include scores on assessments such as the National Assessment of Educational Progress (NAEP), the ACT, the SAT and the Programme for International Assessment (PISA);
(2) The public education system will prepare fully all students for post-secondary education or gainful employment;
(3) All working-age adults will be functionally literate;
(4) The public education system will maintain and promote the health and safety of all students and will develop and promote responsibility, citizenship and strong character in all students; and
(5) The public education system will provide equitable education opportunity to all students.
(f) The plan also shall include at least the following policy- oriented objectives:
(1) Rigorous 21st Century curriculum and engaging instruction for all students. -- All students in West Virginia public schools should have access to and benefit from a rigorous 21st Century curriculum that develops proficiency in core subjects, 21st Century content, learning skills and technology tools. These students also should have that curriculum delivered through engaging, research-based instructional strategies that develop deep understanding and the ability to apply content to real-world situations;
(2) A 21st Century accountability and accreditation system. -- The prekindergarten through twelve education system should have a public accrediting system that: (i) Holds local school districts accountable for the student outcomes the state values; and (ii) provides the public with understandable accountability data for judging the quality of local schools. The outcomes on which the system is based should be rigorous and should align with national and international standards such as the National Assessment of Educational Progress (NAEP), the ACT, the SAT and the Programme for International Assessment (PISA). The broad standards established for these outcomes should include a focus on: (A) Mastery of basic skills by all students; (B) closing the achievement gap among student subgroups; and (C) high levels of proficiency in a wide range of desired 21st Century measures and processes. The system for determining school and district accreditation should include school and district self-analysis and generate appropriate research-based strategies for improvement. It also should allow opportunities to create innovative approaches to instructional delivery and design. Thus, the system will incorporate processes for encouraging innovation, including streamlined applications for waivers to state board policy, financial support for successful initiatives and recognition of those practices that can be brought to a district or statewide scale. The primary goal of the accreditation system is to drive school improvement. This 21st Century accountability and accreditation system also should include the methods of addressing capacity set forth in section five, article two-e of this chapter;
(3) A statewide balanced assessment process. -- State, district, school and classroom decisionmaking should be grounded in 21st Century balanced assessment processes that reflect national and international rigorous performance standards and examine student proficiency in 21st Century content, skills and technology tools. A balanced assessment system includes statewide summative assessments, local benchmark assessments and classroom assessments for learning;
(4) A personnel allocation, licensure and funding process that aligns with the needs of 21st Century school systems and is supported by a quality coordinated professional development delivery system. -- Increased accountability demands, as well as the focus on 21st Century learning, require a reexamination of traditional approaches to personnel allocation, licensure and funding. Creating schools of the 21st Century requires new staffing roles and staffing patterns. It also requires ongoing professional development activities focused on enhancing student achievement and achieving specific goals of the school and district strategic plans. Thus, schools should have the ability to access, organize and deliver high quality embedded professional development that provides staff with in-depth sustained and supported learning. Effective school improvement should allow opportunity for staff to collectively learn, plan and implement curricular and instructional improvements on behalf of the students they serve;
(5) School environments that promote safe, healthy and responsible behavior and provide an integrated system of student support services. -- Each school should create an environment focused on student learning and one where students know they are valued, respected and safe. Furthermore, the school should incorporate programs and processes that instill healthy, safe and responsible behaviors and prepare students for interactions with individuals of diverse racial, ethnic and social backgrounds. School and district processes should include a focus on developing ethical and responsible character, personal dispositions that promote personal wellness through planned daily physical activity and healthy eating habits consistent with high nutritional guidelines and multicultural experiences that develop an appreciation of and respect for diversity;
(6) A leadership recruitment, development and support continuum. -- Quality schools and school systems of the 21st Century cannot be created without high quality leaders. Thus, West Virginia should have an aligned leadership professional development continuum that attracts, develops and supports educational leadership at the classroom, school and district level. This leadership development continuum should focus on creating: (i) Learning-centered schools and school systems; (ii) collaborative processes for staff learning and continuous improvement; and (iii) accountability measures for student achievement;
(7) Equitable access to 21st Century technology and education resources and school facilities conducive to 21st Century teaching and learning. -- A quality educational system of the 21st Century should have access to technology tools and processes that enhance effective and efficient operation. Administrators should have the digital resources to monitor student performance, manage a variety of data and communicate effectively. In the classroom, every teacher in every school should be provided with the instructional resources and educational technology necessary to deliver the West Virginia content standards and objectives. Schools of the 21st Century require facilities that accommodate changing technologies, 21st Century instructional processes and 21st Century staffing needs and patterns. These school facilities should mirror the best in green construction and be environmentally and educationally responsive to the communities in which they are located;
(8) Aligned public school with post-secondary and workplace readiness programs and standards. -- An educational system in the 21st Century should be seen as a continuum from the public school (prekindergarten through twelve) program through post-secondary education. In order to be successful in a global competitive marketplace, learning should be an ongoing, life-long experience. Thus, the public schools and the institutions of post-secondary education in West Virginia should create a system of common standards, expectations and accountability. Creating such an aligned system will enhance opportunities for success and assure a seamless educational process for West Virginia students; and
(9) A universal prekindergarten system. - A high quality, universal prekindergarten system should be readily available to every eligible student. The system should promote oral language and preliteracy skills and reduce the deficit of these foundational skills through proactive, early intervention. Research indicates that universal prekindergarten systems improve graduation rates, reduce grade level retentions and reduce the number of special education placements. Therefore, local school systems should create the supports and provide the resources to assure a quality prekindergarten foundation is available to all eligible students.
(g) In addition to the policy-oriented objectives set forth in subsection (f) of this section, the plan established pursuant to this section also shall include at least the following performance- oriented objectives:
(1) All children entering the first grade will be ready for the first grade;
~~(2) All students will have equal education opportunity;~~
~~(3) Student performance on national measures of student performance will equal or exceed national averages and~~
(2) The performance of students falling in the lowest quartile on national and international measures of student performance will improve by fifty percent;
~~(4)~~ (3) Ninety percent of ninth graders will graduate from high school;
(5) High school graduates will be fully prepared for college, other post-secondary education or gainful employment. The number of high school graduates entering post-secondary education will increase by fifty percent. and
~~(6) All working age adults will be functionally literate.~~
The intent of the Governor, the Legislature and the state board is to pursue the accomplishment of these goals through strategies which focus on: (i) Early childhood development; (ii) improving the quality of teaching; (iii) technology and learning; (iv) helping at-risk students; (v) work force preparation; and (vi) restructuring and accountability in the education system.
(c) The state board shall report progress toward meeting and achieving the goals, as set forth in subsection (b) of this section, to the Governor and the Legislature at the beginning of the legislative session in each of the next four years, beginning in the year one thousand nine hundred ninety-seven, and shall include in such report how the legislative priorities of the board address attainment of the goals.
(4) By two thousand twelve, the gap between the county with the lowest college-going rate and the state average as of the effective date of this act will decrease by fifty percent and the college-going rate of the state will equal the college-going rate of the member states of the Southern Regional Education Board; and
(5) By two thousand twenty, the gap between the county with the lowest college-going rate and the state average for school year two thousand twelve will decrease by fifty percent and the college- going rate of the state will exceed the college-going rate of the member states of the Southern Regional Education Board by five percentage points.
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.

§18-2E-5c. Process for Improving Education Council established; membership; expenses; meetings; powers.

(a) Process for Improving Education Council. -- There is hereby established the Process for Improving Education Council for the purpose of providing opportunities for consultation among state policy leaders on the process for improving education, including, but not limited to, determination of the things that students should know and be able to do as the result of a thorough and efficient education, the performance and progress of students toward meeting the high quality standards established by the state board, adopting goals, objectives, strategies, indicators and benchmarks for public education and any further improvements necessary to increase the capacity of schools and school systems to deliver a thorough and efficient education.
(b) Council membership. -- The Legislative Oversight Commission on Education Accountability, together with the Governor, ex officio, or the Governor's designee, ~~and~~ the Chancellor of the Higher Education Policy Commission, ex officio, or the chancellor's designee, the Chancellor for Community and Technical College Education, ex officio, or the chancellor's designee and the state superintendent comprise the Process for Improving Education Council. Ex officio members are entitled to vote. The Governor or the Governor's designee shall convene the council, as appropriate, and shall serve as chair. The council may meet at any time at the call of the Governor or the Governor's designee.
(c) Compensation. -- Members of the council shall serve without compensation, but shall be reimbursed as provided by law by their respective agencies 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 of their expenses.
(d) Powers of the council. --
The council has the following powers:
(1) To meet and consult with the state board, or its designees, and make recommendations on issues related to student, school and school system performance. The following steps are part of the consultation process:
(A) The state board shall notify each member of the council whenever the state board proposes to amend its rules on any of the following issues:
(i) High quality education standards and efficiency standards established pursuant to section five of this article;
(ii) Indicators of efficiency established pursuant to section five of this article; and
(iii) Assessment and accountability of school and school system performance and processes established pursuant to section five of this article.
(B) The notice to be given pursuant to paragraph (A) of this subdivision shall contain a summary and explanation of the proposed changes, including a draft of the proposal when available, and shall be sent at least fifteen days prior to filing the proposal with the Secretary of State for public comment.
(C) If the Governor, or the Governor's designee, believes it is necessary for the council to meet and consult with the state board, or its designees, on changes proposed to any of the issues outlined in subdivision (1) of this subsection, he or she may convene a meeting of the council.
(D) If both the President of the Senate and the Speaker of the House of Delegates believe it is necessary for the council to meet and consult with the state board, or its designees, they shall notify the Governor who shall convene a meeting of the council.
(E) If the chancellor, or the chancellor's designee believes that it is necessary for the council to meet and consult with the state board, or its designees, he or she may request the Governor to convene a meeting of the council.
(2) To require the state board, or its designees, to meet with the council to consult on issues that lie within the scope of the council's jurisdiction;
(3) To participate as observers in any on-site review of a school or school system conducted by the Office of Education Performance Audits; and
(4) To authorize any employee of the agencies represented by council members to participate as observers in any on-site review of a school or school system conducted by the Office of Education Performance Audits.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1. GOVERNANCE.

§18B-1-1a. Legislative intent; findings; establishment of state goals for higher education and education; creation of partnership to achieve state goals and objectives.

(a) It is the intent of the Legislature in enacting this section to establish state goals for public higher education which benefit the citizens of the State of West Virginia.
(b) It is further the intent of the Legislature that this section be read and implemented in conjunction with the accountability system established in article one-d of this chapter and that any reference to this section in this code includes the provisions of that article.
(c) Findings. -- The Legislature finds that post-secondary education is vital to the future of West Virginia. For the state to realize its considerable potential in the 21st Century, it must have a system for the delivery of post-secondary education which is competitive in the changing national and global environment, is affordable for the state and its citizenry and has the capacity to deliver the programs and services necessary to meet regional and statewide needs.
The Legislature further finds that it is vitally important for young people entering the workforce to have the education and skills to succeed in today's high-technology, knowledge-based economy. It is equally important for working-age adults who are the majority of the current and potential workforce also to possess the requisite education and skills to compete successfully in the workplace and to have the opportunity to continue learning throughout their lives. The future of the state rests not only on how well its youth are educated, but also on how well it educates its entire population of any age.
The Legislature further finds that providing access to a high-quality and affordable post-secondary education is a state responsibility and, while states spent more than seventy billion dollars on public higher education in two thousand six, they are not maximizing that investment. The Legislature recognizes the efforts of the National Conference of State Legislatures' Blue Ribbon Commission on Higher Education in producing a report to assist the states in higher education policymaking. According to the commission report, "Transforming Higher Education: National Imperative -- State Responsibility", the United States is losing its competitive advantage in a new, high-tech, highly mobile global economy. This lack of competitiveness is a matter of the highest urgency for federal and state policymakers and higher education is at the center of this discussion. The report further states that "higher education is both the problem and the solution" because the nation has failed to focus on how higher education energizes American competitiveness and revitalizes the states. Pursuant to these findings, the commission made some specific recommendations addressed to the states which include the following:
(1) Define clear state goals;
(2) Identify your state's strengths and weaknesses;
(3) Know your state demographic trends for the next ten to thirty years;
(4) Identify a place or structure to sustain the public policy agenda;
(5) Hold institutions accountable for their performance;
(6) Rethink funding formulas and student aid;
(7) Make a commitment to access, success and innovation;
(8) Encourage partnerships;
(9) Give special attention to adult learners; and
(10) Focus on productivity.
All of these recommendations are useful in providing policy guidance and have been given careful consideration in the development of this section and article one-d of this chapter.
(d) Establishment of state goals. -- In recognition of its importance to the citizens of West Virginia, the Legislature hereby establishes the following goals for public higher education in the state:
(1) The ultimate goal of public education is to enhance the quality of life for citizens of the State of West Virginia.
(2) The overall focus of public education is on developing and maintaining a process of lifelong learning which is as seamless as possible at all levels, encourages citizens of all ages to increase their knowledge and skills and provides ample opportunities for them to participate in public higher education.
(3) Higher education collaborates with public education and other providers to offer education opportunities:
(A) To individuals of all ages and socioeconomic backgrounds in all areas of the state; and
(B) To overcome financial barriers to participation for both traditional and nontraditional students.
(4) Higher education seeks to enhance state efforts to diversify and expand the economy by focusing available resources on programs and courses which best serve students, provide the greatest opportunity for job creation and retention and are most supportive of emerging high-technology and knowledge-based businesses and industries.
(5) Higher education creates a learning environment that is student-friendly and that encourages and assists students in the completion of degree requirements, certifications or skill sets within a reasonable period of time.
(6) The learning environment expands participation for the increasingly diverse student population and responds to the needs of the current workforce and other nontraditional students.
(7) Through the establishment of innovative curricula and assessment efforts, state institutions of higher education ensure that students graduate from nationally recognized and accredited programs and meet or exceed national and international standards for performance in their chosen fields as evidenced through placement and professional licensure examinations.
(8) Higher education promotes academic research and innovation to achieve measurable growth in West Virginia's knowledge-based economic sector.
(9) State institutions of higher education emphasize productivity and strive to exceed the performance and productivity levels of peer institutions. In return, and within the constraints of fiscal responsibility, the state seeks to invest in institutions so that they may adequately compensate faculty, classified employees and other employees at a competitive level to attract and retain high quality personnel.
(10) State institutions of higher education are committed to a shared responsibility with faculty, staff, students and their communities to provide access to the knowledge and to promote acquisition of the skills and abilities necessary to establish and maintain physical fitness and wellness.
(A) Programs that encourage healthy lifestyles are essential for the vibrancy of the institutions of higher education, for the well-being of the communities they serve and for the state as a whole.
(B) Increasing the fitness levels of adults on college and university campuses is critically important for the people of West Virginia, not only for disease prevention, but also, and perhaps most importantly, to enhance the overall quality of life.
(C) While individuals must bear the primary responsibility for their own health, it is imperative that the institutions provide appropriate education and support focused on enriching and expanding the short- and long-term views and attitudes towards physical activity, understanding the principles of wellness and their application to a healthy lifestyle, understanding what components are a necessary part of an all-around healthy lifestyle and learning how to set and achieve realistic goals aimed at establishing healthy habits for the benefit of long-term health and well-being.
(e) Education partnership to achieve state goals and objectives. -- If public institutions of higher education are to provide services that meet the needs of state citizens as outlined in this section and article one-d of this chapter, then West Virginia must create and participate in a partnership across various education organizations that recognizes the valuable contributions each member of the group can make. In addition to public education as outlined in section four, article one, chapter eighteen of this code and in addition to the State of West Virginia, key members of this partnership include the state institutions of higher education, the Council for Community and Technical College Education and the Higher Education Policy Commission.
(1) State institutions of higher education. -- The institutions are the cornerstone of efforts to provide higher education services that meet the needs of state citizens. To varying degrees, and depending upon their missions, these institutions serve the state in three major ways:
(A) Instruction. -- By providing direct instruction to students along with the student services necessary to support the instructional mission. These services have two primary goals:
(i) To produce college graduates who have the knowledge, skills and desire to make valuable contributions to society; and
(ii) To provide opportunities for citizens to engage in life- long learning to enhance their employability and their overall quality of life.
(B) Public service. -- By providing an occupational home for experts in a variety of fields and by serving as the educational home for students. In these capacities, institutions create a large and varied pool of high quality human resources capable of making valuable contributions to business and industry, local and state governments and communities. The following are examples of the types of public service that higher education institutions have to offer:
(i) Workforce development, primarily through community and technical colleges, to meet the immediate and long-term needs of employers and employees;
(ii) Technical assistance to state and local policymakers as they work to address challenges as diverse as ensuring that West Virginia's citizens receive quality health care, assisting in the development of a solid transportation infrastructure and ensuring that public school teachers have enriching professional development opportunities; and
(iii) Opportunities to learn and serve in local communities, to teach civic responsibility and to encourage civic engagement.
(C) Research. -- By conducting research at state institutions of higher education, particularly Marshall University and West Virginia University, to enhance the quality of life in West Virginia in the following ways:
(i) Targeting cutting-edge research toward solving pressing societal problems;
(ii) Promoting economic development by raising the level of education and specialization among the population; and
(iii) Creating jobs through development of new products and services.
(2) The Council for Community and Technical College Education and the Higher Education Policy Commission. -- In their role as state-level coordinating boards, the council and commission function as important partners with state policy leaders in providing higher education that meets state needs. The council and commission provide service to the state in the following ways:
(A) By developing a public policy agenda for various aspects of higher education that is aligned with state goals and objectives and the role and responsibilities of each coordinating board;
(B) By ensuring that institutional missions and goals are aligned with relevant parts of the public policy agenda and that institutions maximize the resources available to them to fulfill their missions and make reasonable progress toward meeting established state goals;
(C) By evaluating and reporting on progress in implementing the public policy agenda;
(D) By promoting system efficiencies through collaboration and cooperation across institutions and through focusing institutional missions as appropriate; and
(E) By conducting research, collecting data and providing objective recommendations to aid elected state officials in making policy decisions.
(3) State of West Virginia. -- Elected state officials represent the citizens of West Virginia and are critical partners in providing quality higher education. In this context, these state-level policymakers serve the state in the following ways:
(A) By establishing goals, objectives and priorities for higher education based on a thoughtful, systematic determination of state needs;
(B) By providing resources necessary to address state goals, objectives and priorities for higher education; and
(C) By providing incentives for and removing barriers to the achievement of state goals, objectives and priorities.
ARTICLE 1D. HIGHER EDUCATION ACCOUNTABILITY.

§18B-1D-1. Legislative intent and purpose; short title; rules required.

(a) The intent of the Legislature in the enactment of this article is to outline and organize the elements of accountability for public higher education into an effective, coherent system to provide guidance to the state institutions of higher education, the commission and the council and to clarify the roles, relationships and responsibilities between and among these entities, the citizens of West Virginia and elected state officials. The main purposes of the accountability system are as follows:
(1) To develop agreement on higher education goals, objectives and priorities through negotiation and consensus-building between elected officials acting on behalf of the citizens of the state and the commission and the council and institutions which receive public funds and provide education services;
(2) To create a seamless education system and hold boards and institutions accountable for meeting state goals and objectives.
(3) To provide a data-driven, step-by-step process to determine the progress of public higher education in addressing established goals, objectives and priorities;
(4) To promote cooperation and collaboration among all entities which are involved in the delivery of public education in West Virginia; and
(5) To provide for generation, collection and dissemination of data on which sound state-level policy decisions can be based. Possible uses of this data include the following:
(A) Identifying institutions and systems that increase quality and productivity; and
(B) Creating a mechanism to target a portion of state appropriations to institutions and systems based on performance in meeting established state goals and objectives.
(b) This article, together with section one-a, article one of this chapter and section four, article one, chapter eighteen of this code, shall be known as and may be cited as Vision 2020: An Education Blueprint for Two Thousand Twenty.
(c) By the first day of October, two thousand eight, the commission and the council shall propose rules for legislative approval in accordance with the provisions of section six, article one of this chapter and article three-a, chapter twenty-nine-a of this code concerning the accountability system for higher education outlined in this article.
(1) The commission and the council may propose rules jointly or separately and may choose to address all of the accountability system in a single rule or may propose additional rules to cover specific elements.
(2) At a minimum, the rules shall address the respective responsibilities of the various parties, the development of statewide master plans, the process of entering into institutional and state compacts, performance indicators and institution and state-level reporting to ensure that higher education is accountable to the citizens of West Virginia.
§18B-1D-2. Definitions.
(a) General. -- For the purposes of this article and section one-a, article one of this chapter, terms have the meaning ascribed to them in section two, article one of this chapter, unless the context in which the term is used clearly requires a different meaning or a specific definition is provided in this section.
(b) Definitions. --
(1) "Accountability system for public higher education" or "accountability system" means all research, reports, documents, data and any other materials, the collection, analysis and dissemination of which are necessary or expedient to accomplish the purposes of this article or section one-a, article one of this chapter. The system includes legislative goals, objectives and priorities; public policy agendas; statewide master plans; state and institutional compacts; implementation plans; institutional mission statements and master plans; and the statewide report card.
(2) "Education partnership to achieve state goals and objectives" or "education partnership" means the formal and informal working relationships established between and among the State of West Virginia, the commission, the council, the State Board of Education and State Department of Education and the state institutions of higher education for the purpose of achieving state goals and objectives.
(3) "Functional literacy rate" means the percentage of adults over the age of seventeen who are able to read beyond a fourth grade level and interpret basic information from sources such as road signs, job applications, newspaper articles and food and medicine labels.
(4) "Goals" means those long-term public purposes which are the desired and expected end result for which public higher education is established.
(5) "Implementation plan" means a document developed within the higher education community that identifies a series of objectives, sets forth performance indicators that can be used to determine if objectives are being achieved, outlines strategies for accomplishing the objectives and identifies benchmarks for evaluating progress in accomplishing the objectives over the life cycle of the plan.
(6) "Institutional compact" means a formal, written contract between either the commission or council and a state institution of higher education under its jurisdiction expressing intent to accomplish state and system goals and objectives.
(7) "Institutions under the jurisdiction of the commission" relative to the accountability system established by this article and section one-a, article one of this chapter means Bluefield State College, Concord University, Fairmont State University, Glenville State College, Marshall University, Shepherd University, West Liberty State College, the West Virginia School of Osteopathic Medicine, West Virginia State University and West Virginia University, including Potomac State College of West Virginia University and the West Virginia University Institute of Technology.
(8) "Institutions under the jurisdiction of the council" relative to the accountability system established by this article and section one-a, article one of this chapter means Blue Ridge Community and Technical College, the Community and Technical College at West Virginia University Institute of Technology, Eastern West Virginia Community and Technical College, Marshall Community and Technical College, New River Community and Technical College, Pierpont Community and Technical College, Southern West Virginia Community and Technical College, West Virginia Northern Community and Technical College, West Virginia State Community and Technical College and West Virginia University at Parkersburg.
(9) "Net college costs" means the total cost of tuition, room and board minus the amount of financial aid a student receives.
(10) "Objectives" means the ends to be accomplished or attained within a specified period of time for the purpose of meeting the established goals.
(11) "Priority" or "priorities" means the order in which objectives are to be addressed for the purpose of achieving state goals.
(12) "Strategy" or "strategies" means specific activities carried out by public higher education which are directed toward accomplishing specific objectives.
(13) "Statewide master plan" or "system master plan" means a document developed by the council or commission that sets forth system goals, objectives and strategies and is aligned with, but not limited to, meeting state goals, objectives and priorities.
(14) "STEM courses and programs" means curricula leading to a degree or other recognized credential in the science, technology, engineering and mathematics fields of study or specialization.
(15) "State compact" means a formal, written agreement between the council and/or the commission and at least one other member of the education partnership to achieve state goals and objectives where significant collaboration and commitment of resources between the parties to the agreement is required in order to achieve the desired results.

§18B-1D-3. State vision for public higher education; findings; establishment of objectives.

(a) The Legislature finds that availability of high-quality post-secondary education is so important to the well-being of the citizens of West Virginia that it is in the best interests of the state to focus attention on areas of particular concern and within those areas to specify objectives and priorities that must be addressed by two thousand twenty. The purpose of these objectives and priorities is to achieve the broad-based goals for public higher education established in section one-a, article one of this chapter. Areas of special concern to the Legislature include economic and workforce development; education access and affordability; innovation; student preparation; degree and/or program completion; intra- and inter-system cooperation and collaboration; research; and teaching and learning.
(1) Economic and workforce development. --
(A) Diversifying and strengthening the economy of the state;
(B) Providing incentives to systems and institutions to focus attention on those courses and programs which create and retain jobs in the state, especially among the emerging high-technology, knowledge-based businesses and industries.
(2) Access and affordability. --
(A) Maintaining geographic access while eliminating unnecessary duplication;
(B) Enhancing education opportunities for the widest range of state citizens:
(i) By establishing tuition and fee levels for in-state students that do not inhibit access to public education nor cause students to incur excessive debt. This is particularly important in West Virginia where about two-thirds of all students attending college are enrolled in public higher education institutions and where families devote a very large share of their incomes to pay the cost of education. The share of costs paid by families remains very high even after adjusting for the impact of financial aid; and
(ii) By establishing tuition and fee rates for out-of-state students at levels which, at a minimum, cover the full cost of instruction unless doing so is inconsistent with a clearly delineated public policy goal established by the Legislature, the commission or the council.
(iii) Innovation. -- Devise innovative programs, delivery modes, partnerships, research initiatives, curricula and pedagogy to achieve the needs of the state and its citizens and carry out the mission and objectives of the state institutions of higher education. Methods include aligning entrepreneurial efforts, research and partnerships with established state goals.
(iv) Student preparation. -- Ensure that potential students are academically prepared for college and that graduates are adequately prepared for careers or further education.
(V) Degree and/or program completion. -- Despite significant improvement over the past decade, fewer than twenty percent of state residents hold a bachelor's degree. This shortage of highly educated, highly qualified workers substantially limits the state's ability to compete in the knowledge-based economy.
(vi) Collaboration and cooperation. -- Deliver education services to the extent possible through collaboration, coordination and brokering, with particular emphasis on the need for a seamless relationship between public and post-secondary education.
(vii) Research. -- Develop a greater research capacity within public higher education to enhance West Virginia in the eyes of the larger economic and education community, develop greater specialized expertise in high technology and policy fields, create more employment opportunities within the state and provide a basis for improved capacity to compete in the new economy through research focused on meeting state needs.
(viii) Teaching and learning. -- Develop admission and exit standards for students and emphasize professional staff development, program assessment and evaluation and other incentives to improve teaching and learning. Ensure access to stable and continuing graduate-level programs in every region of the state, particularly in STEM subject areas and teacher education related to teaching within a subject area to improve teacher quality.
(b) Vision 2020: Objectives for public higher education. -- In view of the findings outlined in subsection (a) of this section, the Legislature hereby establishes the following objectives to be addressed as highest priorities beginning on the effective date of this article through development of compacts and/or implementation plans between and among members of the education partnership as provided in subsection (e), section one-a, article one of this chapter. The following is the legislative vision for the years two thousand eight through two thousand twenty:
(1) Objective. -- Develop a state-level facilities plan and funding mechanism to reduce the obligation of students and parents to bear the cost of higher education capital projects and facilities maintenance.
(A) Problem statement. --
(i) West Virginia is one of the very few states in the nation which does not address higher education capital project and facilities maintenance needs through a statewide plan.
(ii) The burden of paying for capital projects and deferred maintenance is placed on students and their families through collection of capital fees at the institution level and contributes significantly to the poor grade West Virginia receives each year in the category of "Affordability" on "Measuring Up: The National Report Card on Higher Education".
(iii) Net college costs for low- and lower middle-income students to attend state community and technical colleges and four-year colleges and universities average approximately forty-five percent of their annual family income.
(iv) The high cost of capital fees contributes directly to the amount of debt incurred by students during their college years and the necessity to repay student loans severely limits career choices and areas of residence after graduation.
(B) Expected outcomes. -- Success in meeting this goal can be measured in part by benchmarks which include the following:
(i) Development by the council and commission of a compact with elected state officials to fund a significant portion of higher education capital project needs from dedicated state revenues;
(ii) Development by the council and commission of a system to establish priorities for institution capital projects in a manner that is consistent with state public policy goals for higher education;
(iii) Implementation of facilities maintenance plans by institutions to ensure that maintenance needs are not deferred inappropriately;
(iv) Efficient use of existing classroom and other space by institutions:
(I) New capital funding is applied effectively to projects at institutions that have a demonstrated need for new facilities and major renovations; and
(II) The cost of operating and maintaining the facilities and physical plants of institutions are appropriate for the size and mission of the institution; and
(v) Capital and facilities maintenance planning that gives careful consideration to the recommendations arising from the study mandated by section nine, article fourteen of this chapter.
(2) Objective. -- Increase academic rigor and improve learning at higher education institutions.
(A) Problem statement. -- West Virginia has made significant progress on certain indicators within the category of student learning, but lags far behind national and regional averages on others.
(i) The state compares very well in workforce preparation as reflected in professional licensure examinations, ranking among the top five states in the country. More West Virginia graduates take these examinations than is typical nationally and the passage rate is at the national average.
(ii) The state also ranks well above the national average passage rate on the state teacher's examination when compared to other states; however, there is serious cause for concern when the state is compared to the national benchmark in preparing students for graduate study.
(I) West Virginia ranks more than fifty percentage points below the national average in preparing students to take and pass graduate admissions examinations.
(II) Fewer West Virginia graduates take these examinations than is typical nationally and the proportion earning competitive scores is only about seventy-five percent of the national average.
(B) Expected outcomes. -- Success in meeting this goal can be measured in part by benchmarks which include the following:
(i) State institutions of higher education develop or use existing nationally normed assessments of student learning outcomes. Data generated through these assessments are analyzed and the results applied by the institutions to improve the quality of undergraduate general education programs; and
(ii) Implementation plans at the system and institution levels are developed to improve student preparation for graduate study and to expand graduate and professional education, where appropriate.
(3) Objective. -- Increase the percentage of entering students who persist to receive a degree, a certificate or an industry-recognized credential.
(A) Problem statement. --
(i) This goal is particularly important to West Virginia where only about one person in five holds an associate degree or higher.
(ii) The lack of a well-trained workforce is reflected in the most recent score of forty-one received by the state on the nationally recognized New Economy Index which measures the extent to which a state is prepared to participate in knowledge-based industries. This low score places the state well below the national benchmark of sixty on the index.
(iii) State institutions of higher education have placed a greater emphasis on student recruitment than on student retention and completion. This strategy alone cannot be successful in meeting state needs for the following reasons:
(I) The number of state high school graduates is expected to decline over the next several years; therefore, institutions must improve their performance in retaining the students who enroll.
(II) West Virginia is among the leading states in the percentage of first-year students at community colleges who return for their second year and large percentages of freshmen at four-year colleges and universities return for their sophomore year; however, when compared with other states, only a small percentage of these students actually persist to earn a bachelor's degree or associate degree within six years.
(III) The state performs poorly on international comparisons of enrolled students who complete certificates or degrees, trailing behind other industrialized and even some third world nations.
(IV) While the state college-going rate has improved, most state institutions have made only marginal progress over the past decade in increasing the percentage of students who persist to obtain a degree or certificate.
(B) Expected outcomes. --
(i) Enhanced quality of life for West Virginians, including increased level of per capita income; and
(ii) Increased economic development opportunities by expanding existing high-technology and knowledge-based businesses and industries and attracting new ones which demand highly qualified professionals.
(4) Objective. -- State institutions of higher education, particularly community and technical colleges, make maximum effort to recruit and retain adults twenty-five years old or over.
(A) Problem statement. --
(i) The percentage of West Virginia's working-age adults enrolled part-time in college-level education or training is very low and the state has experienced one of the largest declines in the nation on this measure over the past twelve years.
(ii) A large part of preparing workers for the 21st Century and for a high-quality style of life hinges upon providing opportunity for adults to acquire a series of skill sets in addition to obtaining a degree or other credential.
(iii) A major focus for community and technical colleges is upon providing programs to upgrade employee skills through obtaining industry credentials. Currently, however, only certificate program degrees (one-year) and associate degrees (two-year) are counted for funding purposes even though other types of credentials often are as important in meeting workforce development goals as providing degree programs.
(B) Expected outcomes. --
(i) Provide programs of interest to nontraditional students, including those that afford them the opportunity to obtain certificates and credentials, enhance career development and acquire new skill sets;
(ii) Develop a high-visibility marketing program which makes adults aware of the opportunities available to them and assists them in entering or reentering the learning environment;
(iii) Provide for lower cost tuition and fee rates, particularly at the community and technical colleges, and/or greater access to financial aid for adult full- and part-time students.
(iv) Develop open admissions policies which provide opportunities for adults to participate in public post-secondary education beginning at any level of preparedness. Most working-age adults cannot or will not "go back to high school" in order to prepare themselves to participate in higher education.
(v) Tailor institutional policies to meet the needs of adults, recognizing that these individuals have responsibilities that are different from those of traditional-aged college students. High on this list of needs are flexible class schedules to accommodate work obligations and waiving dorm residency requirements.
(5) Objective. -- Provide incentives to state institutions of higher education to encourage emphasis on STEM courses and programs leading to degrees in the high-demand fields of science, technology, engineering and mathematics and to encourage collaboration with public education to stimulate interest and prepare students to succeed in these fields.
(A) Problem statement. --
(i) STEM courses often are more expensive to deliver than traditional programs; therefore, institutions may be reluctant to start or expand programs in these areas because of anticipated cost;
(ii) Institutions have difficulty recruiting and retaining faculty members in STEM areas because of competition from surrounding states and other market forces;
(iii) There is insufficient communication between STEM teachers in public education, STEM faculty in higher education and professionals employed in STEM-related careers such as engineering;
(iv) Many students have not taken sufficiently rigorous high school courses to allow them to succeed in post-secondary STEM courses and programs. A large percentage of students enrolled in higher education STEM programs either withdraw from the institution or change majors within the first year; and
(v) The transition from high school to college is difficult for many high school students who lack a family role model to provide guidance relevant to the higher education experience.
(B) Expected outcomes. --
(i) Increased capacity for high quality instruction across public higher education;
(ii) Increased student access to high quality undergraduate and graduate research opportunities in science, technology, engineering and mathematics;
(iii) Enhanced economic development opportunities through increased numbers of highly-qualified professionals available to business and industry;
(iv) Development of a consistent and effective forum for communication among STEM faculty in public and higher education and relevant professional communities to address the continuing needs of students, educators and industry;
(v) Increased percentage of high school students who have access to and take advantage of rigorous STEM courses;
(vi) Alignment of STEM curricula between public and higher education;
(vii) Development of a finance formula that gives greater weight to courses taken in high-cost disciplines and/or those that are critical to the state economy; and
(viii) Creation of a STEM coordinator position within the faculty of each state institution of higher education to provide outreach to secondary schools, to mentor freshman students and to collaborate with coordinators at other institutions. Because of the size of the student body, the two research universities may need to create coordinator positions specific to certain high-demand STEM disciplines such as engineering and computer science.
(6) Objective. -- Develop a stable funding stream for state institutions of higher education to pay for essential programs which are expensive to deliver, are in high demand and/or are critical to the state's capacity to replace an aging workforce as employees retire. This objective has a particular impact on community and technical colleges which deliver high-cost technical programs.
(A) Problem statement. --
(i) An educated and technically skilled workforce is vital to the state's ability to be competitive in the global marketplace. Currently, West Virginia's employers must struggle to find a sufficient number of highly qualified workers to fill the jobs they have available; and
(ii) The majority of technical occupations require the delivery of equipment-intensive, high-cost programs that state institutions of higher education, especially community and technical colleges, lack the capacity to provide.
(B) Expected outcomes. --
(i) State institutions delivering community and technical college education focus on expanding and/or implementing technical programs to meet the needs of high-demand, high-wage occupations;
(ii) Funding priorities for community and technical colleges focus on developing and maintaining high-cost technical programs;
(iii) Creation of a strategy to fund the replacement, upgrading and purchase of equipment to implement and/or maintain technical education programs; and
(iv) Support critical, noncredit programming by incorporating the number of contact hours delivered into a formula to distribute funding to community and technical colleges.
(7) Objective. -- Develop a mechanism to assure uniform delivery of community and technical college education for all regions of the state.
(A) Problem statement. -- The average education attainment rate in West Virginia lags eleven percent behind the national average in part because delivering education programs to the state's adult, place-bound and rural populations presents significant challenges.
(B) Expected outcomes. --
(i) All state citizens have access to a minimum of two years of college education regardless of their place of residence within the state.
(ii) The state institutions increase the innovative use of technology and distance education to provide general and technical education access in sparsely populated rural areas.
(iii) Creation of a seamless education system and uniform transfer of credits with special attention to transfers between community and technical colleges and four-year institutions;
(iv) Appropriate use of adjunct faculty; and
(v) Where feasible, use of facilities in public schools, technical centers and other public facilities as classroom space.
(8) Objective. -- Develop greater research capacity throughout public higher education, with a special focus on the state's two doctoral degree-granting universities.
(A) Problem statement. --
(i) West Virginia ranks near the bottom among all states in the amount of federal and privately funded sponsored research it receives. Historically, only the National Science Foundation's Experimental Program to Stimulate Competitive Research (EPSCoR) has focused on building research capacity in the state, but if West Virginia is to benefit from the increased economic opportunity, better jobs and higher standard of living associated with more STEM professionals in the population, the state must invest more to build its research capacity; and
(ii) Low research capacity results in low levels of intellectual property creation, patenting and licensing of commercial property.
(B) Expected outcomes. --
(i) Partnering between and among higher education institutions in West Virginia and between state institutions and larger, resource-rich higher education institutions outside the state;
(ii) Developing an institutional and/or statewide research niche and focusing resources on research that contributes most to meeting state needs;
(iii) Leveraging scarce resources to make steady, targeted investments in research in niche areas where the state can be a real player at a competitive level;
(iv) Developing specific research expertise within the two state doctoral degree-granting universities to generate and analyze data to provide policy recommendations. The areas of focus include funding strategies for higher education, demographic trends and methods to determine and meet workforce development needs by anticipating job creation and credential requirements;
(v) Improving communication among the research branches of higher education institutions, including identification of mutually complementary areas of interest to increase funding opportunities and collaboration on intellectual property issues; and
(vi) Focusing on economic development through commercial applications of research and recruitment of new research faculty members for this purpose.
(9) Objective. -- Increase the percentage of functionally literate adults in each region of the state.
(A) Problem statement. --
(i) The literacy attainment of a population is defined at its most basic level as the percentage of those individuals over the age of fifteen who can read and write, but such a definition does not address the realities of the 21st Century. The National Literacy Act of 1991 and the National Workforce Investment Act of 1998 both define literacy more broadly as "an individual's ability to read, write, speak in English, compute and solve problems at levels of proficiency necessary to function on the job, in the family of the individual and in society".
Approximately twenty percent of the adult population in West Virginia cannot meet this definition of functional literacy. One adult out of every five in the state lacks the basic literacy skills needed to succeed at work, to enter the learning environment of post-secondary education, to acquire advanced occupational training or to participate in preparing his or her own children to learn.
(ii) The high rate of illiteracy in West Virginia not only handicaps adults in seeking employment and achieving their goals for their own quality of life, but also has serious implications for the future of their children and for the state.
There is a direct, positive correlation between the reading scores of children and the education level of their parents. The National Assessment of Education Progress (NAEP) has concluded that youngsters whose parents are functionally illiterate are twice as likely to become functionally illiterate adults.
(iii) When the level of functional illiteracy in West Virginia is compared to the requirements for high-demand occupations, the negative consequences for the economy of the state become obvious. The International Adult Literacy Survey (IALS) established a scale of five levels which is used extensively to measure the literacy attainment of adults. When this scale was used to compare the literacy requirements of projected high-growth occupations with those in declining occupations such as certain types of manufacturing, researchers found that level three literacy is required for the new jobs, while level two is sufficient for the jobs in the declining occupations. Therefore, workers displaced from jobs in declining occupations as well as those seeking to enter or reenter the work place must possess literacy skills a full level higher than those required for workers only a few years ago. Documents such as manuals outlining standard operating procedures, health and safety manuals, leave forms and retirement options that they encounter daily require a level of literacy well above level two.
(iv) A highly skilled and literate work force is essential to the success of state businesses and industry. A ten percent increase in the average education of all workers, equivalent to approximately one additional year of schooling, is associated with an increase of about nine percent in the productivity of that labor force. Additionally, workers who lack literacy skills cannot provide the data and feedback that companies need to make informed business decisions. A company whose employees cannot record reliable production data cannot assess its performance from year to year or determine how well it is meeting its long range goals and objectives.
(v) The rate of functional illiteracy in West Virginia also has a direct impact on the health of state citizens. Residents with low literacy skills have difficulty in many health areas including the following:
(I) Understanding the correct way to take medication, interpret test results or perform simple self-testing such as taking temperatures or checking blood glucose levels;
(II) Understanding and following directions given by physicians or the written instructions provided with prescription or over-the-counter medication for themselves or for their children;
(III) Reading and understanding information on food labels and other nutrition information to make sound decisions necessary to establish and maintain healthy lifestyles; and
(IV) Furnishing correct information in emergencies to medical providers about illnesses, surgeries and medications or understanding how to fill out insurance forms and other health-related documents.
(B) Expected outcomes. --
(i) Develop greater access and capacity to deliver literacy and remedial education, workforce development training and other higher education services to place-bound adults primarily through the community and technical colleges;
(ii) Increase the percentage of the working age population who participate in higher education, either full or part time;
(iii) Establish a statewide mechanism to collect data to provide a baseline for measuring progress toward meeting the goal of functional literacy for all working-age adults and to serve as a framework for setting priorities, identifying gaps in service and targeting services to key populations, industries, economic sectors and geographic areas;
(iv) Develop programs that include, at a minimum, the following:
(I) Learning opportunities within a real-life context, such as workplace and family literacy programs;
(II) Recognition of the diversity of individual abilities, skill levels, circumstances and life goals; and
(III) Strategies to access, promote and accommodate a variety of instructional methods and learning styles.
(v) Develop a culture committed to life-long learning by creating literacy-rich environments wherever people live and work that are capable of influencing changes in individual behavior; and
(vi) Create partnerships among schools, employers, workers, governments and communities to achieve these objectives and mechanisms to collect, interpret and disseminate data to assist policymakers in determining the appropriate level of resources essential to support lifelong learning systems.
§18B-1D-4. Responsibilities of Higher Education Policy Commission and Council for Community and Technical College Education; development of public policy agendas; reports; institutional responsibilities.

(a) It is the responsibility of the commission, in cooperation with the council, to develop, oversee and advance the public policy agenda mandated by section four, article one-b of this chapter to address the goals and objectives established pursuant to this article and section one-a, article one of this chapter, including, but not limited to, aligning state and institutional compacts, master plans, implementation plans and institutional missions with state goals and objectives to accomplish the purposes of this article.
(b) It is the responsibility of the council, in cooperation with the commission when applicable, to develop, oversee and advance the public policy agenda mandated by section six, article two-b of this chapter to address the goals and objectives established pursuant to this article and section one-a, article one of this chapter, including, but not limited to, aligning state and institutional compacts, master plans, implementation plans and institutional missions with state goals and objectives to accomplish the purposes of this article.
(c) It is further the responsibility of the commission and council to collect the data, assemble it in the appropriate format and transmit all reports and any other essential documents as needed to fulfill the purposes of this article. Each report shall contain a brief, concise executive summary and shall include trends and recommendations in text format. Recommendations shall be ranked by order of importance and shall be supported by objective data available elsewhere in the report. In addition to those specifically mandated by this chapter or chapter eighteen-c of this code, reporting responsibilities include, but are not limited to, the following:
(1) Ensuring that data systems collect the essential information state-level policymakers need to answer key policy questions to fulfill the purposes of the accountability system established pursuant to this article and section one-a, article one of this chapter;
(2) Collaborating with public education to establish policies to link existing pre-K, K-12, higher education and teacher data systems to enable tracking of student progress and teacher performance over time; and
(3) Ensuring that reports provide data analyses to determine if students entering the public higher education systems are prepared for post-secondary education and if students obtaining degrees, certificates or other credentials are prepared to pursue careers or to continue their education.
(d) It is the responsibility of public institutions of higher education to report to the commission or the council, as appropriate, on plans, accomplishments and recommendations to implement the goals and objectives contained in the institutional and state compacts.
§18B-1D-5. Master plans; reports; approval process.
(a) The commission and the council each shall develop a master plan for public higher education that is closely aligned with the goals and objectives of this article and section one-a, article one of this chapter as they relate to the missions of institutions under their respective jurisdictions.
(b) The authority of the commission and the council, respectively, related to developing and implementing statewide master plans is subject to the following conditions:
(1) The master plans shall be established for periods of not more than five years.
(2) The master plans in place on the effective date of this article continue in effect until the end of the five-year planning cycle unless amended or rescinded by the commission or council, respectively, pursuant to this article.
(3) Any new master plan proposed by the commission or council shall be communicated to the Legislative Oversight Commission on Education Accountability and may not be adopted or implemented without the approval of that body;
(4) The commission and council each shall perform a comprehensive review of its master plan at least annually and shall revise it periodically as appropriate to meet state goals and objectives.
(5) The commission and the council each shall review the progress of its higher education system in meeting the goals and objectives of the master plan and report to the Legislative Oversight Commission on Education Accountability, with detailed recommendations for amending the plan, by the first day of January, two thousand nine, and annually thereafter.
(6) At the end of each five-year planning cycle and as an integral part of the preparation of a new master plan, the commission and the council, respectively, shall prepare and submit to the Legislative Oversight Commission on Education Accountability a comprehensive report containing at least the following:
(A) A detailed, data-based analysis of the progress of the system and the institutions within the system toward meeting each goal and objective included in the current plan; and
(B) A strategy for using this data as a basis for developing the master plan for the next planning cycle.
(c) The master plan shall include a detailed set of system objectives designed to meet the state goals and objectives outlined in this article and section one-a, article one of this chapter, including, but not limited to, the following:
(A) A well-developed analysis of missions, degree offerings, resource requirements, physical plant needs, personnel needs, enrollment levels and other planning determinants and projections for public higher education and other matters necessary in such a plan to assure that the needs of the state for a quality system of higher education are addressed; and
(B) A strategy for cooperation and collaboration with the State Board of Education and State Department of Education, state institutions of higher education, the counterpart state coordinating board and other relevant education providers to assure that a comprehensive and seamless system of education is developed and implemented for West Virginia.
§18B-1D-6. State compacts; legislative intent; rule required; implementation plans authorized.

(a) It is the intent of the Legislature that members of the education partnership to achieve state goals and objectives engage in developing state compacts between and among themselves for the purpose of enhancing the well-being of the citizens of West Virginia. Such a compact constitutes a formal contract and focuses on the goals and objectives established pursuant to this article and section one-a, article one of this chapter. A compact is called for when achievement of specific goals or objectives requires significant collaboration and commitment of resources by more than one member of the partnership.
(b) The rules to be proposed relating to state compacts pursuant to subsection (c), section one of this article shall include, but are not limited to, the following components:
(1) A procedure to determine when a state compact is necessary or desirable;
(2) A procedure for determining the identity of parties to the compact and for establishing compact terms:
(A) Parties to the compact may be any two or more members of the education partnership to achieve state goals and objectives who are positioned to make significant contributions to meeting compact objectives; and
(B) The terms of the compact shall focus on achievement of objectives. The expected outcomes shall be stated in concrete terms that are measurable.
(3) A mechanism for negotiating agreement on compact objectives. The mechanism shall provide for negotiation and development of consensus among the parties and must be reasonable in its operation and outcomes expectations;
(4) A procedure for creating and consolidating commitment between and among parties to the compact. Most state compacts will extend over multiple years and will require that negotiation between education partners and elected state officials take into account the constraints of the political process and the limits on available resources; and
(5) A process for periodic review, assessment and reporting of progress toward meeting the compact objectives. The rule shall provide for objective analysis and reporting to the compact partners and to the elected officials of the state.
(c) In addition to authorizing the commission and the council to enter into state compacts pursuant to subsections (a) and (b) of this section, it is the intent of the Legislature to encourage them strongly to develop implementation plans together with other members of the public higher education community to achieve system and institutional goals and objectives which are consistent with and supportive of the goals and objectives established in this article and section one-a, article one of this chapter.
(1) At a minimum, each implementation plan shall contain the following elements:
(A) Identification of the goal and the objectives to be achieved;
(B) Identification of the parties to the implementation plan and a process for developing consensus among the parties;
(C) A needs assessment or other mechanism to determine current status of the proposed objectives, including a survey of available resources and other data relevant to achieving the objectives;
(D) Identification of challenges or barriers to meeting objectives;
(E) Delineation of tasks to be performed;
(F) A specific time line for meeting objectives;
(G) An evaluation process administered periodically to determine progress in meeting the objectives during the life span of the plan; and
(H) A method for determining success in achieving the objectives following the closing date established by the time line.
(2) Implementation plans are internal documents developed among members of the public higher education community and are not subject to an external approval process.

§18B-1D-7. Findings; establishment of institutional compacts; compact elements; submission date; review and approval process; rule required.

(a) The Legislature finds that West Virginia long has recognized the value of education and, on a per capita income basis, ranks very high among the states in its investment to support public education. The Legislature further finds that a combination of state and national demographic and economic factors as well as significant changes in methods of course and program delivery compel both the state and public higher education to create a process that will strengthen institutional capacity to provide the services so valued by the citizens of the state and so essential to promoting economic vitality.
(b) Therefore, each state college and university shall prepare an institutional compact for submission to the commission and each community and technical college shall prepare an institutional compact for submission to the council. When the process herein provided is completed, the resulting institutional compact constitutes a negotiated contract between the state institution of higher education and the commission or council, respectively, containing at a minimum the following basic components:
(1) Institutional strategies for focusing resources on meeting the goals and objectives set forth in this article and section one-a, article one of this chapter; and
(2) Commission or council strategies for promoting and supporting the institution in fulfilling its mission and objectives, to make it more competitive with its peers and to ensure the continuity of academic programs and services to its students.
(c) In addition to the basic contract components described in subsection (b) of this section, each compact shall contain at least the following elements:
(1) A determination of the mission of the institution which specifically addresses changes necessary or expedient to accomplish the goals and objectives articulated by the state and the appropriate statewide master plan;
(2) A detailed statement of how the compact is aligned with and will be implemented in conjunction with the master plan of the institution;
(3) A comprehensive assessment of education needs within the institution's geographic area of responsibility;
(4) A strategy to ensure access to comprehensive community and technical college and workforce development services within each respective region of the state consistent with the mission of the institution;
(5) Provision for collaboration and brokering of education services as necessary or expedient to carry out the institutional mission and meet its objectives;
(6) Provision of student services at the optimum level to support the institutional mission and to achieve state goals and objectives;
(7) Strategies for using existing infrastructure and resources within each region, where feasible, to increase student access while controlling costs and maintaining academic quality; and
(8) Other public policy objectives or initiatives adopted by the commission or council pursuant to the intent and purposes of this article and section one-a, article one of this chapter.
(d) Each institutional compact shall be updated annually and shall follow the same general guidelines contained in this section.
(e) Development and updating of the institutional compacts is subject to the following conditions:
(1) The ultimate responsibility for developing and updating the compacts at the institutional level resides with the board of advisors or the board of governors, as appropriate. It is the responsibility of the commission or council to provide technical assistance as requested and to negotiate with the institution development of the strategies to promote and support the institution pursuant to subsection (b) of this section;
(2) The commission and the council each shall establish a date by which institutions under their respective jurisdictions shall submit their compacts to the commission or council pursuant to the provisions of this article. The date established by each state-level coordinating board shall apply uniformly to all institutions under the jurisdiction of that coordinating board and shall meet the following additional conditions:
(A) Allow sufficient time for careful analysis of the compacts by the central office staff and for review by members of the commission or the council, as appropriate; and
(B) Allow sufficient time for the institutions to make necessary revisions to the compacts as provided in this section.
(3) The commission and council shall review each compact from the institutions under their respective jurisdictions and either adopt the compact or return it with specific comments for change or improvement. The commission and council, respectively, shall continue this process as long as each considers advisable;
(4) By the first day of May annually, if the institutional compact of any institution as presented by that institution is not adopted by the respective commission or council, then the commission or council is empowered and directed to develop and adopt the institutional compact for the institution and the institution is bound by the compact so adopted; and
(5) As far as practicable, the commission and council each shall establish uniform processes and forms for the development and submission of the institutional compacts by the institutions under their respective jurisdictions, taking into consideration the differences in institutional missions and objectives. As a part of this function, the commission and council each shall organize the statements of legislative goals and objectives contained in this article and section one-a, article one of this chapter in a manner that facilitates the purposes therein.
(f) Assignment of geographic areas of responsibility. --
(1) The commission shall assign geographic areas of responsibility to the state institutions of higher education under its jurisdiction, except for the state institutions of higher education known as West Virginia School of Osteopathic Medicine, Marshall University and West Virginia University. For institutions other than the state institutions of higher education known as West Virginia School of Osteopathic Medicine, Marshall University and West Virginia University, the geographic areas of responsibility are made a part of their institutional compacts to ensure that all areas of the state are provided necessary programs and services to achieve state goals and objectives. The commission and the council each shall develop data-based measures to determine the extent to which institutions under their respective jurisdictions are providing higher education services aligned with state goals and objectives and institutional missions within their geographic areas of responsibility. This information shall be reported in the statewide report card established pursuant to section eight of this article.
(2) The council shall assign geographic areas of responsibility to the state institutions of higher education under its jurisdiction, including 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 campus known as West Virginia University at Parkersburg.
(3) The geographic areas of responsibility for the state institutions of higher education known as West Virginia School of Osteopathic Medicine, Marshall University and West Virginia University are assigned by the Legislature.
(4) The benchmarks established in the institutional compacts include measures of programs and services by geographic area throughout the assigned geographic area of responsibility.
(g) The compacts shall contain benchmarks to be used to determine progress toward meeting the objectives established in the compacts. The benchmarks shall meet the following criteria:
(1) They shall be objective;
(2) They shall be directly linked to the objectives in the compacts;
(3) They shall be measured by the indicators described in subsection (h) of this section; and
(4) Where applicable, they shall be used to measure progress in geographic areas of responsibility.
(h) The rules required by subsection (c), section one of this article shall include indicators which measure the degree to which the goals and objectives set forth in this article and section one-a, article one of this chapter are being met by the institutions under the jurisdiction of the commission and the council, respectively.
(1) The rules pertaining to benchmarks and indicators in effect for the commission and the council on the effective date of this section remain in effect for the institutions under their respective jurisdictions until amended, modified, repealed or replaced by the commission or the council, respectively, pursuant to the provisions of this article, section six, article one of this chapter and article three-a, chapter twenty-nine-a of this code.
(2) The rules shall set forth at least the following as pertains to all state institutions of higher education:
(A) The indicators used to measure the degree to which the goals and objectives are being met;
(B) Uniform definitions for the various data elements to be used in establishing the indicators;
(C) Guidelines for the collection and reporting of data; and
(D) Sufficient detail within the benchmarks and indicators to provide the following information:
(i) Measurable evidence that the pursuits of the institution are focused on the education needs of the citizens of the state and are aligned with the objectives of the institutional compacts and statewide master plans;
(ii) Delineation of the objectives and benchmarks for an institution so that the commission or council can precisely measure the degree to which progress is being made toward achieving the goals and objectives provided in this article and section one-a, article one of this chapter; and
(iii) Identification of specific objectives within the master plan or compact of an institution that are not being met or toward which sufficient progress is not being made.
(3) In addition to any other requirement, the rule established by the council shall set forth at least the following as pertains to community and technical college education:
(A) Benchmarks and indicators which are targeted to identify the following:
(i) The degree to which progress is being made by institutions toward meeting state goals and objectives and the essential conditions for community and technical college education pursuant to section three, article three-c of this chapter;
(ii) Information and data necessary to be considered by the council in making the determination required by section three, article two-c of this chapter; and
(B) Sufficient detail within the benchmarks and indicators to provide clear evidence to support an objective determination by the council that an institution's progress toward achieving state goals and objectives and the essential conditions for community and technical college education is so deficient that implementation of the provisions of section four, article two-c of this chapter is warranted and necessary.
(i) The commission and the council, respectively, shall approve the compacts developed for the institutions under their respective jurisdictions by the boards of governors or the boards of advisors pursuant to this section and consistent with the powers and duties prescribed in section four, article two-a of this chapter and section one, article six of this chapter.
§18B-1D-8. Institutional and system report cards.
(a) The purpose of the institutional and statewide report cards is to make information available to parents, students, faculty, staff, state policymakers and the general public on the quality and performance of public higher education. The focus of the report cards is to determine annual progress of the commission, the council and institutions under their respective jurisdictions toward achieving state goals and objectives identified in this article and section one-a, article one of this chapter and system goals and objective contained in the statewide master plans of the commission and council created pursuant to section five of this article.
(b) The information contained in the report cards shall be consistent and comparable between and among state institutions of higher education. If applicable, the information shall allow for easy comparison with higher education-related data collected and disseminated by the Southern Regional Education Board, the United States Department of Education and other education data-gathering and data-disseminating organizations upon which state policymakers frequently rely in setting policy.
(c) The rules required by subsection (c), section one of this article shall provide for the collection, analysis and dissemination of information on the performance of the state institutions of higher education, including health sciences education, in relation to the findings, goals and objectives set forth in this article and section one-a, article one of this chapter and those contained in the statewide master plans of the commission and council developed pursuant to section five of this article.
(1) The objective of this portion of the rule is to ensure that the Legislative Oversight Commission on Education Accountability and others identified in subsection (a) of this section are provided with full and accurate information while minimizing the institutional burden of recordkeeping and reporting.
(2) This portion of the rule shall identify various indicators of student and institutional performance that, at a minimum, must be reported annually, set forth general guidelines for the collection and reporting of data and provide for the preparation, printing and distribution of report cards under this section.
(d) The report cards shall be analysis-driven, rather than simply data-driven, and shall present information in a format that can inform education policymaking. They shall include an executive summary which outlines significant trends, identifies major areas of concern and discusses progress toward meeting state and system goals and objectives. They shall be brief and concise, reporting required information in nontechnical language. Any technical or supporting material to be included shall be contained in a separate appendix.
(e) The statewide report card shall include the data for each separately listed, applicable indicator identified in the rule promulgated pursuant to subsection (c) of this section and the aggregate of the data for all public institutions of higher education.
(f) The statewide report card shall be prepared using actual institutional, state, regional and national data, as applicable and available, indicating the present performance of the individual institutions, the governing boards and the state systems of higher education. Statewide report cards shall be based upon information for the current school year or for the most recent school year for which the information is available, in which case the year shall be clearly noted.
(g) The president or chief executive officer of each state institution of higher education shall prepare and submit annually all requested data to the commission at the times established by the commission.
(h) The higher education central office staff, under the direction of the Vice Chancellor for Administration, shall provide technical assistance to each institution and governing board in data collection and reporting and is responsible for assembling the statewide report card from information submitted by each governing board.
(i) The statewide report card shall be completed and disseminated with copies to the Legislative Oversight Commission on Education Accountability prior to the first day of January of each year and the staff of the commission and the council shall prepare a report highlighting specifically the trends, progress toward meeting goals and objectives and major areas of concern for public higher education, including medical education, for presentation to the Legislative Oversight Commission on Education Accountability at the interim meetings in January, two thousand nine, and annually thereafter.
(j) Notwithstanding any other provisions of this code to the contrary, the following statutorily mandated reports are not required to be prepared and submitted annually unless a member of the Legislature makes a specific request for a particular report:
(1) An annual report, pursuant to subsection (a), section forty-eight, article three, chapter five-a of this code, on vehicle fleets;
(2) An annual report, pursuant to subsection (e), section ten, article one of this chapter, on plans, accomplishments and recommendations in implementing a cooperative relationship between Potomac State College and Eastern West Virginia Community and Technical College;
(3) An annual report, pursuant to paragraphs (A) and (B), subdivision (10), subsection (a), section four, article one-b of this chapter, concerning higher education performance and enrollment data;
(4) An annual report, pursuant to paragraph (A), subdivision (11), subsection (b), section six, article two-b of this chapter, concerning community and technical college performance;
(5) An annual report, pursuant to subsection (b), section seven, article five of this chapter, on all sales of obsolete, unusable or surplus commodities;
(6) An annual report, pursuant to section eight, article five of this chapter, on purchases from West Virginia businesses;
(7) An annual report, pursuant to subsection (j), section one, article ten of this chapter, on the amount of auxiliary fees collected to replace state funds subsidizing auxiliary services;
(8) An annual report, pursuant to subsection (c), section five, article thirteen of this chapter, on technical assistance provided to qualified businesses within approved research parks, research zones or technology centers;
(9) An annual report, pursuant to subsection (e), section six, article eighteen of this chapter, on the status of the Eminent Scholars Endowment Trust Fund; and
(10) An annual report, pursuant to subsection (e), section one, article three, chapter eighteen-c of this code, relevant to the health education loan program.
(k) For a reasonable fee, the Vice Chancellor for Administration shall make copies of the report cards, including any appendices of supporting material, available to any individual requesting them.

ARTICLE 14. MISCELLANEOUS.

§18B-14-9. Legislative findings; establishment of study committee; membership; recommendations on higher education facilities.

(a) The Legislature finds that it is in the best interest of the state to have an effective and comprehensive system for the delivery of public higher education programs. West Virginia is one of the very few states in the nation which does not address higher education capital project and facilities maintenance needs through a statewide plan. State institutions of higher education vary widely in their ability to incur debt for capital projects and the conditions of their facilities infrastructure. Some institutions have incurred substantial amounts of debt to address capital needs, while other institutions have not.
The Legislature further finds that average tuition and fees for current and former administratively linked community and technical colleges rank well above the national average primarily because of the capital fees that students at those institutions have to pay. The large amount of capital fees that students must pay at the institution level contributes significantly to the poor grade the state receives each year in the category of "Affordability" on "Measuring Up: The National Report Card on Higher Education". Net college costs for state students who come from families in the lowest forty percent of the population in terms of income to attend community and technical colleges and four-year colleges and universities in West Virginia represent about forty-five percent of their family's annual income and there are few low-cost college opportunities.
The Legislature further finds that the high cost of capital fees contributes directly to the amount of debt incurred by students during their college years. The debt load, in turn, severely limits students' career choices and often dictates their place of residence after graduation.
(b) It is the responsibility of the Legislature to determine how to make the best use of available resources and how best to address the problems outlined in subsection (a) of this section. Therefore, the Joint Committee on Government and Finance shall create a committee for the purposes of making a specific and detailed analysis of higher education capital project and facilities maintenance needs and providing recommendations to the Legislature.
(c) The committee consists of the following members:
(1) The President of the Senate or designee;
(2) The Speaker of the House of Delegates or designee;
(3) The chairs of the Senate and House of Delegates Committees on Education, who shall cochair the committee;
(4) The vice chairs of the Senate and House of Delegates Committees on Education;
(5) The chairs of the Senate and House of Delegates Committees on Finance or their designees;
(6) The cochairs of the Joint Commission on Economic Development or their designees;
(7) Two members each from the Senate Committees on Finance and Education appointed by the President of the Senate; and
(8) Two members each from the House Committees on Finance and Education appointed by the Speaker of the House.
(d) The committee shall develop and recommend a state-level facilities plan which includes, but is not limited to, the following:
(1) A review of capital project and facilities maintenance needs of all state institutions of higher education and recommendations for addressing those needs;
(2) Recommendations concerning the appropriate capital debt load that reasonably should be maintained by the commission, council and state institutions of higher education;
(3) Recommendations for a funding mechanism to reduce the obligation of students and parents to bear the cost of higher education capital projects and facilities maintenance;
(4) Recommendations for maximizing changes in bonding capacity that will occur in two thousand twelve;
(5) Development of a uniform definition of deferred maintenance;
(6) Recommendations for an appropriate mechanism to target a percentage of state capital contributions to address deferred maintenance needs; and
(7) Recommendations for a transparent methodology to set priorities for funding capital projects.
(e) The committee shall commence its work on or before the fifteenth day of May, two thousand eight, and shall deliver its recommendations, together with draft legislation to implement the recommendations, to the Legislative Oversight Commission on Education Accountability and the Joint Committee on Government and Finance by the first day of December, two thousand eight.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 595--A Bill to repeal §18B-1-1, §18B-1-1b and §18B-1-1c of the Code of West Virginia, 1931, as amended; to repeal §18B-1A-1 and §18B-1A-2 of said code; to repeal §18B-1B-8 and §18B-1B-9 of said code; to repeal §18B-3B-1 and §18B-3B-2 of said code; to repeal §18B-11-5 of said code; to amend and reenact §18-1-4 of said code; to amend and reenact §18-2E-5c of said code; to amend and reenact §18B-1-1a of said code; to amend said code by adding thereto a new article, designated §18B-1D-1, §18B-1D-2, §18B-1D-3, §18B-1D-4, §18B-1D-5, §18B-1D-6, §18B-1D-7 and §18B-1D-8; and to amend said code by adding thereto a new section, designated §18B-14-9, all relating to education generally; establishing Vision 2020: An Education Blueprint for Two Thousand Twenty; requiring State Board of Education plan that includes goals, objectives, strategies, indicators and benchmarks; specifying certain public education goals and objectives to be included in plan; submission of plan to Process for Improving Education Council; purposes and membership of council; providing legislative findings, intent and purposes; establishing goals for public higher education; creating education partnership to achieve state goals and objectives; establishing elements of higher education accountability system; requiring Higher Education Policy Commission and Council for Community and Technical College Education to propose rules by certain date; defining terms; specifying objectives and priorities; establishing date to achieve certain objectives and priorities; defining responsibilities of Higher Education Policy Commission, Council for Community and Technical College Education and state institutions of higher education relative to accountability system; requiring system master plans, state compacts, institutional compacts and institutional and system report cards; establishing submission, approval, review and reporting requirements; authorizing implementation plans; assigning geographic areas of responsibility; specifying that certain reports are no longer required to be prepared annually except under certain conditions; providing for committee to examine higher education facility needs; specifying membership; and requiring recommendations to Legislative Oversight Commission on Education Accountability by certain date.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 595, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 595) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 595) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 596, Relating to Streamlined Sales and Use Tax Agreement.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page thirty-two, section two, line five hundred ninety-one, following the paragraph designation (A), by striking out the word "Lay" and inserting in lieu thereof the word "Clay";
On pages thirty-seven and thirty-eight, section two, lines six hundred eighty-eight through seven hundred seven, by striking out all of subdivision (57);
And renumbering the remaining subdivisions;
On page forty-four, section two-b, line twenty-four, after the word "service'" by inserting the words "or 'telecommunication service'".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 596, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 596) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 596) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 641, Creating Water Resources Protection and Management Act.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
22-26-1. Short title; legislative findings.
(a) Short title. -- This article may be known and cited as the Water Resources Protection and Management Act.
(b) Legislative findings. --
(1) The West Virginia Legislature finds that it is the public policy of the State of West Virginia to protect and conserve the water resources for the state and to provide for the public welfare. The state's water resources are vital natural resources of the state that are essential to maintain, preserve and promote quality of life and economic vitality of the state.
(2) The West Virginia Legislature further finds that it is the public policy of the state that the water resources of the state be available for the benefit of the citizens of West Virginia, consistent with and preserving all other existing rights and remedies recognized in common law or by statute, while also preserving the resources within its sovereign powers for the common good.
(3) The West Virginia Legislature further finds that the water use survey conducted by the Department of Environmental Protection is a valuable tool for water resources assessment, protection and management.
(4) The West Virginia Legislature further finds that the water resources of this state have not been fully measured or assessed and that a program to accurately measure and assess the state's water resources is necessary to protect, conserve and better utilize the water resources of this state.
(5) The West Virginia Legislature further finds that the survey information collected and analyzed by the Department of Environmental Protection has identified the need for a statewide water resources management plan.
(6) The West Virginia Legislature further finds that the development of a state water resources management plan is in the best interest of the state and its citizens and will promote the protection of this valuable natural resource; promote its use for the public good; and enhance its use and development for tourism, industry and other economic development for the benefit of the state and its citizens.
(7) The West Virginia Legislature further finds that incomplete data collection from an inadequate groundwater monitoring system continues to hamper efforts to study, develop and protect the state's water resources and will be a major obstacle in the development of a water resources management plan.
§22-26-2.

Definitions.

For purposes of this article, the following words have the meanings assigned unless the context indicates otherwise:
(a) "Baseline average" means the average amount of water withdrawn by a large quantity user over a representative historical time period as defined by the secretary.
~~(a)~~ (b) "Beneficial use" means uses that include, but are not limited to, public or private water supplies, agriculture, tourism, commercial, industrial, coal, oil and gas and other mineral extraction, preservation of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation and preservation of cultural values.
(c) "Commercial well" means a well that serves small businesses and facilities in which water is the prime ingredient of the service rendered.
(d) Community water system" means a public water system that pipes water for human consumption to at least fifteen service connections used by year-round residents or one that regularly serves at least twenty-five residents.
~~(b)~~ (e) "Consumptive withdrawal" means any withdrawal of water which returns less water to the water body than is withdrawn.
~~(c)~~ (f) "Farm use" means irrigation of any land used for general farming, forage, aquaculture, pasture, orchards, nurseries, the provision of water supply for farm animals, poultry farming or any other activity conducted in the course of a farming operation.
(g) "Industrial well" means a well used in industrial processing, fire protection, washing, packing or manufacturing of a product excluding food and beverages, or similar nonpotable uses.
~~(d)~~ (h) "Interbasin transfer" means the permanent removal of water from the watershed from which it is withdrawn.
(i) "Large quantity user" means any person who withdraws over seven hundred fifty thousand gallons of water in a calendar month from the state's waters and any person who bottles water for resale regardless of quantity withdrawn.
~~(e)~~ (j) "Maximum potential" means the maximum designed capacity of a facility to withdraw water under its physical and operational design.
(k) "Noncommunity nontransient water system" means a public water system that serves at least twenty-five of the same persons over six months per year.
~~(g)~~ (l) "Nonconsumptive withdrawal" means any withdrawal of water which is not a consumptive withdrawal as defined in this section.
~~(f)~~ (m) "Person", "persons" or "people" means an individual, public and private business or industry, public or private water service and governmental entity.
~~(h)~~ (n) "Secretary" means the Secretary of the Department of Environmental Protection or his or her designee.
(o) "Transient water system" means a public water system that serves at least twenty-five transient people at least sixty days a year.
(p) "Test well" means a well that is used to obtain information on groundwater quantity, quality, aquifer characteristics and availability of production water supply for manufacturing, commercial, and industrial facilities.
~~(i)~~ (q) "Water resources", "water" or "waters" means any and all water on or beneath the surface of the ground, whether percolating, standing, diffused or flowing, wholly or partially within this state, or bordering this state and within its jurisdiction, and includes, without limiting the generality of the foregoing, natural or artificial lakes, rivers, streams, creeks, branches, brooks, ponds, impounding reservoirs, springs, wells, watercourses and wetlands: Provided, That farm ponds, industrial settling basins and ponds and waste treatment facilities are excluded from the waters of the state.
~~(j)~~ (r) "Watershed" means a hydrologic unit utilized by the United States Department of Interior's geological survey, adopted in one thousand nine hundred seventy-four, as a framework for detailed water and related land-resources planning ~~, denoted by an eight digit hydrologic unit code, and by which West Virginia is, as of the effective date of the act, divided into thirty-two separate hydrologic units~~.
~~(k)~~ (s) "Withdrawal" means the removal or capture of water from a water resources of the state regardless of whether it is consumptive or nonconsumptive: Provided, That water encountered during coal, oil, gas, water well drilling and initial testing of water wells, or other mineral extraction and diverted, but not used for any purpose and not a factor in low-flow conditions for any surface water or groundwater, is not deemed a withdrawal.

§22-26-3. Waters claimed by state; water resources protection survey; registration requirements; agency cooperation; information gathering.

(a) The waters of the State of West Virginia are hereby claimed as valuable public natural resources held by the state for the use and benefit of its citizens. The state shall manage the quantity of its waters effectively for present and future use and enjoyment and for the protection of the environment. Therefore, it is necessary for the state to determine the nature and extent of its water resources, the quantity of water being withdrawn or otherwise used and the nature of the withdrawals or other uses: Provided, That no provisions of this article may be construed to amend or limit any other rights and remedies created by statute or common law in existence on the date of the enactment of this article.
(b) The secretary shall conduct a an ongoing water resources survey of consumptive and nonconsumptive surface water and groundwater withdrawals by large quantity users in this state. The secretary shall determine the form and format of the information submitted, including the use of electronic submissions. ~~The survey shall collect information covering the years two thousand three, two thousand four and two thousand five.~~ The secretary shall establish and maintain a statewide registration program to monitor large quantity users of water resources of this state beginning in two thousand six.
(c) ~~Beginning in the year two thousand three, every person utilizing the state's water resources whose withdrawal from a water resources during any month exceeds seven hundred fifty thousand gallons~~ Large quantity users, except those who purchase water from a public or private water utility or other service that is reporting its total withdrawal, shall register with the Department of Environmental Protection and provide all requested survey information regarding withdrawals of the water resources. Multiple withdrawals ~~of water~~ from ~~a particular~~ state water resources that are made or controlled by a single person and used at one facility or location shall be considered a single withdrawal of water. Water withdrawals for self-supplied farm use and private households will be estimated. Water utilities regulated by the Public Service Commission pursuant to article two, chapter twenty-four of this code are exempted from providing information on interbasin transfers to the extent those transfers are necessary to provide water utility services within the state.
(d) Except as provided in subsection (f) of this section, large quantity users who withdraw water from a West Virginia water resource shall comply with the survey and registration requirements of this article. Registration shall be maintained by every large quantity user by certifying, on forms and in a manner prescribed by the secretary, that the amount withdrawn in the previous calendar year varies by no more than ten percent from the users' baseline average or by certifying the change in usage.
(e) The secretary shall maintain a listing of all large quantity users and each such user's baseline average water withdrawal.
~~(d)~~ (f) The secretary shall make a good faith effort to obtain survey and registration information from persons who are withdrawing water from an in-state water resources but who are located outside the state borders.
~~(e)~~ (g) All state agencies and local governmental entities that have a regulatory, research, planning or other function relating to water resources, including, but not limited to, the State Geological and Economic Survey, the Division of Natural Resources, the Public Service Commission, the Bureau for Public Health, the Commissioner of the Department of Agriculture, the ~~Office of Emergency Services~~ Division of Homeland Security and Emergency Management, Marshall University, ~~and~~ West Virginia University and regional, county and municipal planning authorities may enter into interagency agreements with the secretary and shall cooperate by: (i) Providing information relating to the water resources of the state; ~~and~~ (ii) providing any necessary assistance to the secretary in effectuating the purposes of this article; and (iii) assisting in the development of a state water resources management plan. The secretary shall determine the form and format of the information submitted by these agencies.
~~(f)~~ (h) Persons required to participate in the survey and registration shall provide any reasonably available information on stream flow conditions that impact withdrawal rates.
~~(g)~~ (i) Persons required to participate in the survey and registration shall provide the most accurate information available on water withdrawal during seasonal conditions and future potential maximum withdrawals or other information that the secretary determines is necessary for the completion of the survey or registration: Provided, That a coal-fired electric generating facility shall also report the nominal design capacity of the facility, which is the quantity of water withdrawn by the facility's intake pumps necessary to operate the facility during a calendar day.
~~(h)~~ (j) The secretary shall, to the extent reliable water withdrawal data is reasonably available from sources other than persons required to provide data and participate in the survey and registration, utilize that data to fulfill the requirements of this section. If the data is not reasonably available to the secretary, persons required to participate in the survey and registration are required to provide the data. Registered persons that report withdrawals on an annual basis for a period of three consecutive years are not required to register further withdrawals unless the amount withdrawn annually varies by more than ten percent from the three-year average. Altering locations of intakes and discharge points that result in an impact to the withdrawal of the water resources by an amount of ten percent or more from the consecutive ~~three-year~~ baseline average shall also be reported.
(i) The secretary shall report regularly to the joint legislative oversight commission on state water resources to advise the commission of the progress of the survey as well as any problems that may be encountered in conducting the survey and to make recommendations on policy and statutory changes that may be needed.
(j) Upon completion of the survey, the secretary shall file a final report with the joint committee on government and finance no later than the thirty-first day of December, two thousand six. In preparing the final report the secretary shall consult with the Commissioner of the Department of Agriculture, the Bureau for Public Health, the Division of Natural Resources and the Public Service Commission. The final report shall include the following:
~~(1) To the extent the information is available, the location and quantity of all surface water and groundwater resources in this state;~~
~~(2) A discussion of the consumptive and nonconsumptive withdrawals of surface water and groundwater in this state;~~
(3) A listing of each person whose consumptive or nonconsumptive withdrawal during any single month during the calender year exceeds seven hundred fifty thousand gallons, including the amount of water used, location of the water resources, the nature of the use, location of each intake and discharge point by longitude and latitude where available and, if the use involves more than one watershed or basin, the watersheds or basins involved and the amount transferred;
(4) A discussion of any area of concern regarding historical or current conditions that indicate a low-flow condition or where a drought or flood has occurred or is likely to occur that threatens the beneficial use of the surface water or groundwater in the area;
~~(5) Current or potential in-stream or off-stream uses that contribute to or are likely to exacerbate natural low-flow conditions to the detriment of the water resources;~~
~~(6) Discussion of a potential groundwater well network that provides indicators that groundwater levels in an area are declining or are expected to decline excessively;~~
~~(7) Potential growth areas where competition for water resources may be expected;~~
~~(8) Any occurrence of two or more withdrawals that are interfering or may reasonably be expected to interfere with one another;~~
~~(9) Discussion of practices or methods persons have implemented to reduce water withdrawals; and~~
(10) Any other information that may be beneficial in providing adequate and accurate survey information, adequately assessing water availability and withdrawal and in determining the need for and the preparation of water resources plans.
(k) The secretary shall report annually to the Joint Legislative Oversight Commission on State Water Resources on the survey results. The secretary shall make a progress report every three years on the development of the state water resources management plan and any significant changes that may have occurred since the survey report was submitted in two thousand six.
~~(k)~~ (l) In addition to any requirements for completion of the survey established by the secretary, the survey must accurately reflect both actual and maximum potential water withdrawal. Actual withdrawal shall be established through metering, measuring or alternative accepted scientific methods to obtain a reasonable estimate or indirect calculation of actual use.
~~(l)~~ (m) ~~Upon completion of the survey, the~~ The secretary shall make recommendations to the joint legislative oversight commission created in section five of this article relating to the ~~need to~~ ~~implement~~ implementation of a water quantity management strategy for the state or regions of the state where the quantity of water resources are found to be currently stressed or likely to be stressed due to emerging beneficial or other uses, ecological conditions or other factors requiring the development of a strategy for management of these water resources. ~~The report shall include an analysis of the costs and benefits upon persons potentially impacted by the implementation of a water quantity management strategy.~~
~~(m)~~ (n) The secretary may propose rules pursuant to article three, chapter twenty-nine-a of this code as necessary to implement the survey ~~and~~ registration or plan requirements of this article.
~~(n)~~ (o) The secretary is authorized to enter into cooperative agreements with the ~~United States Geological Survey~~ local, state and federal agencies and private policy or research groups to obtain federal matching funds, conduct research and analyze survey and registration data and other agreements as may be necessary to carry out his or her duties under this article.

§22-26-5. Joint Legislative Oversight Commission on State Water Resources.

(a) The President of the Senate and the Speaker of the House of Delegates shall each designate five members of their respective houses, at least one of whom shall be a member of the minority party, to serve on a joint legislative oversight commission charged with immediate and ongoing oversight of the water resources survey, ~~and~~ registration and development of a state water resources management plan. This commission shall be known as the Joint Legislative Oversight Commission on State Water Resources and shall regularly investigate and monitor all matters relating to the water resources survey and ~~the need for a water Resources strategy and policy~~ plan.
(b) The expenses of the commission, including the cost of conducting the survey and monitoring any subsequent strategy and those incurred in the employment of legal, technical, investigative, clerical, stenographic, advisory and other personnel are to be approved by the Joint Committee on Government and Finance and paid from legislative appropriations.
(c) The secretary shall report, at a minimum of quarterly, in sufficient detail for the commission to monitor the water Resources survey and to develop recommendations resulting from the survey. The secretary shall submit an annual report to the commission by the thirty-first day of December each year. The secretary shall also file a final report on the water Resources survey no later than the thirty-first day of December, two thousand six.
§22-26-6. Mandatory survey and registration compliance.
(a) The water resources survey and subsequent registry will provide critical information for protection of the state's water resources and, thus, mandatory compliance with the survey and registry is necessary.
(b) All large quantity users who withdraw water from a West Virginia water resource shall complete the survey and register such use with the Department of Environmental Protection. Any person who fails to complete the survey or register, provides false or misleading information on the survey or registration, or fails to provide other information as required by this article may be subject to a civil administrative penalty not to exceed five thousand dollars to be collected by the secretary consistent with the secretary's authority pursuant to this chapter. Every thirty days after the initial imposition of the civil administrative penalty, another penalty may be assessed if the information is not provided. The secretary shall provide written notice of failure to comply with this section thirty days prior to assessing the first administrative penalty.

§22-26-7. Secretary authorized to log wells; collect data.

In order to obtain important information about the state's surface and groundwater, the secretary is authorized to collect scientific data on surface and groundwater and to enter into agreements with local and state agencies, the federal government and private entities to obtain this information.
(1) Any person who installs ~~water extraction~~ a community water system, noncommunity nontransient water system, transient water system, commercial well, industrial or test well, ~~except those wells used for a residential, single family water supply~~, shall notify the secretary of his or her intent to drill a water well no less than ~~thirty~~ ten days prior to commencement of drilling. The ten-day notice is the responsibility of the owner, but may be given by the drilling contractor.
(2) The secretary has the authority to gather data, including driller and geologist logs, run electric and other remote-sensing logs and devices and perform physical characteristics tests on nonresidential and multifamily water wells.
(3) The drilling contractor shall submit to the secretary a copy of the well completion forms submitted to the Department of Health for a community water system, noncommunity nontransient water system, transient water system, commercial well, industrial or test well. The drilling contractor shall provide the well GPS location on the well report.
~~(3)~~ (4) Any person who fails to notify the secretary prior to drilling a well or impedes collection of information by the secretary under this section is in violation of the Water Resources Protection and Management Act and is subject to the civil administrative penalty authorized by section six of this article.
(5) Any well contracted for construction by the secretary for groundwater or geological testing must be constructed at a minimum to well design standards as promulgated by the Division of Health. Any wells contracted for construction by the secretary for groundwater or geological testing that would at a later date be converted to a public use water well must be constructed to comport to state public water design standards.

§22-26-8. State water resources management plan; powers and duty of secretary.

(a) The Secretary of the Department of Environmental Protection shall oversee the development of a State Water Resources Management Plan to be completed no later than the thirtieth day of November, two thousand thirteen. The plan shall be reviewed and revised as needed after its initial adoption. The plan shall be developed with the cooperation and involvement of local and state agencies with regulatory, research or other functions relating to water resources including, but not limited to, those agencies and institutions of higher education set forth in section three of this article and a representative of large quantity users. The State Water Resources Management Plan shall be developed utilizing the information obtained pursuant to said section and any other relevant information available to the secretary.
(b) The secretary shall develop definitions for use in the State Water Resources Management Plan for terms that are defined differently by various state and federal governmental entities as well as other terms necessary for implementation of this article.
(c) The secretary shall continue to develop and obtain the following:
(1) An inventory of the surface water resources of each region of this state, including an identification of the boundaries of significant watersheds and an estimate of the safe yield of such sources for consumptive and nonconsumptive uses during periods of normal conditions and drought.
(2) A listing of each consumptive or nonconsumptive withdrawal by a large quantity user, including the amount of water used, location of the water resources, the nature of the use, location of each intake and discharge point by longitude and latitude where available and, if the use involves more than one watershed or basin, the watersheds or basins involved and the amount transferred.
(3) A plan for the development of the infrastructure necessary to identify the groundwater resources of each region of this state, including an identification of aquifers and groundwater basins and an assessment of their safe yield, prime recharge areas, recharge capacity, consumptive limits and relationship to stream base flows.
(4) After consulting with the appropriate state and federal agencies, assess and project the existing and future nonconsumptive use needs of the water resources required to serve areas with important or unique natural, scenic, environmental or recreational values of national, regional, local or statewide significance, including national and state parks; designated wild, scenic and recreational rivers; national and state wildlife refuges; and the habitats of federal and state endangered or threatened species.
(5) Assessment and projection of existing and future consumptive use demands.
(6) Identification of potential problems with water availability or conflicts among water uses and users including, but not limited to, the following:
(A) A discussion of any area of concern regarding historical or current conditions that indicate a low-flow condition or where a drought or flood has occurred or is likely to occur that threatens the beneficial use of the surface water or groundwater in the area; and
(B) Current or potential in-stream or off-stream uses that contribute to or are likely to exacerbate natural low-flow conditions to the detriment of the water resources.
(7) Establish criteria for designation of critical water planning areas comprising any significant hydrologic unit where existing or future demands exceed or threaten to exceed the safe yield of available water resources.
(8) An assessment of the current and future capabilities of public water supply agencies and private water supply companies to provide an adequate quantity and quality of water to their service areas.
(9) An assessment of flood plain and stormwater management problems.
(10) Efforts to improve data collection, reporting and water monitoring where prior reports have found deficiencies.
(11) A process for identifying projects and practices that are being, or have been, implemented by water users that reduce the amount of consumptive use, improve efficiency in water use, provide for reuse and recycling of water, increase the supply or storage of water or preserve or increase groundwater recharge and a recommended process for providing appropriate positive recognition of such projects or practices in actions, programs, policies, projects or management activities.
(12) An assessment of both structural and nonstructural alternatives to address identified water availability problems, adverse impacts on water uses or conflicts between water users, including potential actions to develop additional or alternative supplies, conservation measures and management techniques.
(13) A review and evaluation of statutes, rules, policies and institutional arrangements for the development, conservation, distribution and emergency management of water resources.
(14) A review and evaluation of water resources management alternatives and recommended programs, policies, institutional arrangements, projects and other provisions to meet the water resources needs of each region and of this state.
(15) Proposed methods of implementing various recommended actions, programs, policies, projects or management activities.
(d) The state water resources management plan shall consider:
(1) The interconnections and relationships between groundwater and surface water as components of a single hydrologic resource.
(2) Regional or watershed water resources needs, objectives and priorities.
(3) Federal, state and interstate water resource policies, plans, objectives and priorities, including those identified in statutes, rules, regulations, compacts, interstate agreements or comprehensive plans adopted by federal and state agencies and compact basin commissions.
(4) The needs and priorities reflected in comprehensive plans and zoning ordinances adopted by a county or municipal government.
(5) The water quantity and quality necessary to support reasonable and beneficial uses.
(6) A balancing and encouragement of multiple uses of water resources, recognizing that all water resources of this state are capable of serving multiple uses and human needs, including multiple uses of water resources for reasonable and beneficial uses.
(7) The distinctions between short-term and long-term conditions, impacts, needs and solutions to ensure appropriate and cost-effective responses to water resources issues.
(8) Application of the principle of equal and uniform treatment of all water users that are similarly situated without regard to established political boundaries.
(e) In November of each year, the secretary shall report to the Joint Legislative Oversight Commission on State Water Resources on the state water resources management plan. The report on the water resources plan shall include benchmarks for achieving the plan's goals and time frames for meeting them.
(f) Upon adoption of the state water resources management plan by the Legislature, the report requirements of this article shall be superceded by the plan and subsequent reports shall be on the survey results and the water resources plan. If the plan is not adopted a detailed report discussing the provisions of this section as well as progress reports on the development of the plan shall be submitted every three years.

§22-26-9. Regional water resources management plans; critical planning areas.

(a) As part of the state water resources management plan, the secretary may designate areas of the state as regional or critical water planning areas for the development of regional or critical area water resources management plans.
(b) The secretary shall establish a timetable for completion of regional and critical area plans which may be developed.
(c) The secretary shall identify all federal and state agencies, county commissions, municipal governments and watershed associations that should be involved in the planning process and any compacts or interstate agreements that may be applicable to the development of a regional or critical area water resource management plan.
(d) The secretary shall establish the minimum requirements for any issues to be addressed by regional and critical area plans within twelve months of the amendment and reenactment of this article during the two thousand eight regular session of the Legislature. The plan requirements and issues to be addressed by regional and critical area plans shall be consistent with the state plan requirements of this article.
(e) The secretary shall establish timetables for the completion of tasks or phases in the development of regional and critical area plans. County commissions and municipal governments may recommend changes in the order in which the tasks and phases must be completed. The secretary shall have final authority to determine the schedule for development of a plan.
(f) Any county or municipal government may enter into an agreement with the secretary to designate a local planning area and develop a local plan which may include all or part of a region. The secretary shall assist in development of any such plan to the extent practicable with existing staff and funding.
(g) Plans developed by a county or municipal government shall comply with the secretary's requirements and shall be filed as part of the state water resources management plan.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 641, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 641) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2008, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 657, Creating Alcohol and Drug-Free Workplace Act.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §21-1D-1, §21-1D-2, §21-1D-3, §21-1D-4, §21-1D-5, §21-1D-6, §21-1D-7, §21-1D-7a, §21- 1D-8 and §21-1D-9, all to read as follows:
ARTICLE 1D. WEST VIRGINIA ALCOHOL AND DRUG-FREE WORKPLACE ACT.
§21-1D-1. Short title.
This article shall be called the West Virginia Alcohol and Drug-Free Workplace Act.
§21-1D-2. Definitions.
(a) The term "alcohol test" means a procedure conducted to determine if an individual is under the influence of alcohol.
(b) The term "construction", as used in this article, means any construction, reconstruction, improvement, enlargement, painting, decorating or repair of any public improvement let to contract. The term "construction" does not include temporary or emergency repairs.
(c) The term "contractor" means any employer working on a public improvement without regard to whether they are serving as the prime or subcontractor to another.
(d) The term "drug test" means a procedure using a nine-panel drug screen in urine specimens that are collected from individuals for the purpose of scientifically analyzing the specimens to determine if the individual ingested, was injected or otherwise exposed to a drug of abuse.
(e) The term "drug of abuse" means any substance listed under subsection (h) of this section.
(f) The term "employee" means a laborer, mechanic or other worker. For the purposes of this article, employee does not include such persons as are employed or hired directly by a public authority on a regular or temporary basis engaged exclusively in making temporary or emergency repairs. Furthermore, employee does not include such persons employed by a contractor who does not work in public improvement construction.
(g) The term "medical review officer" means a physician who holds a certificate authorizing them to practice medicine and surgery or osteopathic medicine and surgery, has knowledge of substance abuse disorders, has the appropriate medical training to interpret and evaluate positive drug and alcohol test results together with a person's medical history and other relevant biomedical information, has successfully completed qualification training as outlined in the Code of Federal Regulations at 49 C. F. R. Part 40 §121 (c) and has passed an exam administered by a nationally recognized medical review officer certification board or subspecialty board for medical practitioners in the field of medical review of federally mandated drug testing.
(h) The term "nine-panel drug screen" means a drug-testing program that tests for marijuana, cocaine, opiates including hydromorphone, oxycodone, hydrocodone, phencyclidine, amphetamines, barbiturates, benzodiazepines, methadone and propoxyphene at the substance screening and confirmation limits where provided under federally mandated drug and alcohol testing programs or otherwise accepted as the industry standard.
(i) The term "public authority", as used in this article, means any officer, board or commission or other agency of the State of West Virginia authorized by law to enter into a contract for the construction of a public improvement, including any institution supported, in whole or in part, by public funds of the State of West Virginia and this article applies to expenditures of these institutions made, in whole or in part, from public funds.
(j) The term "public improvement", as used in this article, includes all buildings, roads, highways, bridges, streets, alleys, sewers, ditches, sewage disposal plants, waterworks, airports and all other structures upon which construction may be let to contract by the State of West Virginia.
(k) The term "random drug testing" means a procedure in which employees who perform safety-sensitive tasks are selected to undergo a drug test by a statistically valid random selection method without prearrangement or planning.
(l) The term "reasonable cause" means a belief based on facts and inferences based primarily upon, but not limited to: (1) Observable phenomena, such as direct observation of use, possession or distribution of alcohol or a controlled substance, or of the physical symptoms of being under the influence of alcohol or a controlled substance, such as, but not limited to, slurred speech, dilated pupils, odor of an alcoholic beverage or a controlled substance, changes in affect or dynamic mood swings; (2) a pattern of abnormal conduct, erratic or aberrant behavior or deteriorating work performance such as frequent absenteeism, excessive tardiness or recurrent accidents, that appears to be related to the use of alcohol or a controlled substance and does not appear to be attributable to other factors; (3) the identification of an employee as the focus of a criminal investigation into unauthorized possession, use or trafficking of a controlled substance; (4) a report of use of alcohol or a controlled substance provided by a reliable and credible source; and (5) repeated or flagrant violations of the safety or work rules of the employee's employer, that are determined by the employee's supervisor to pose a substantial risk of physical injury or property damage and that appears to be related to the use of alcohol or a controlled substance and that does not appear attributable to other factors.
(m) The term "safety-sensitive duty" means any task or duty fraught with such risks of injury to the employee or others that even a momentary lapse of attention or judgment, or both, can lead to serious bodily harm or death.
(n) The term "under the influence of alcohol" means a concentration of eight hundredths of one percent or more by weight of alcohol in an individual's blood or a concentration of eight hundredths of one gram or more by weight of alcohol per two hundred ten liters of an individual's breath.
§21-1D-3. Statement of policy.
It is hereby declared to be the policy of the State of West Virginia to require public improvement contractors to have and implement a drug-free workplace policy that requires drug and alcohol testing.
§21-1D-4. Drug-free workplace policy required for public improvement construction.

Except as provided in section eight of this article, no public authority may award a public improvement contract which is to be let to bid to a contractor unless the terms of the contract require the contractor and its subcontractors to implement and maintain a written drug-free workplace policy in compliance with this article and the contractor and its subcontractors provide a sworn statement in writing, under the penalties of perjury, that they maintain a valid drug-free workplace policy in compliance with this article. The public improvement contract shall provide for the following:
(1) That the contractor implements its drug-free workplace policy;
(2) Cancellation of the contract by the awarding public authority if the contractor:
(A) Fails to implement its drug-free workplace policy;
(B) Fails to provide information regarding implementation of the contractor's drug-free workplace policy at the request of the public authority; or
(C) Provides to the public authority false information regarding the contractor's drug-free workplace policy.
§21-1D-5. Employee drug-free workplace policy required to bid fora public improvement contract.

After the first day of July, two thousand eight, any solicitation for a public improvement contract shall require each contractor that submits a bid for the work to submit at the same time an affidavit that the contractor has a written plan for a drug-free workplace policy. A public improvement contract may not be awarded to a contractor who does not have a written plan for a drug-free workplace policy, and who has not submitted that plan to the appropriate contracting authority in timely fashion.
For subcontractors, compliance with this section may take place before their work on the public improvement is begun.
A drug-free workplace policy shall include the following:
(1) Establish drug testing and alcohol testing protocols that at a minimum require a contractor to:
(A) Conduct preemployment drug tests of all employees;
(B) Conduct random drug testing that annually tests at least ten percent of the contractor's employees who perform safety- sensitive duties;
(C) Conduct a drug test or alcohol test of any employee who may have caused or contributed to an accident while conducting job duties where reasonable cause exists to suspect that the employee may be intoxicated or under the influence of a controlled substance not prescribed by the employee's physician when, but not limited to, the employer has evidence that an employee is or was using alcohol or a controlled substance drawn from specific documented, objective facts and reasonable inferences drawn from these facts in light of experience and training.
The drug or alcohol test shall be conducted as soon as possible after the accident occurred and after any necessary medical attention has been administered to the employee.
(D) Conduct a drug test or alcohol test of any employee when a trained supervisor has reasonable cause to believe that the employee has reported to work or is working under the influence of a drug of abuse or alcohol. Written documentation as to the nature of a supervisor's reasonable cause shall be created ~~prior to the release of the test findings~~.
In order to ascertain and justify implementation of a reasonable cause test, all supervisors will be trained to recognize drug and alcohol related signs and symptoms.
(2) Require that all drug tests performed pursuant to this section be conducted by a laboratory certified by the United States Department of Health and Human Services or its successor;
(3) Establish standards governing the performance of drug tests by such a laboratory that include, but are not limited to, the following:
(A) The collection of urine specimens of individuals in a scientifically or medically approved manner and under reasonable and sanitary conditions;
(B) The collection and testing of urine specimens with due regard for the privacy of the individual being tested and in a manner reasonably calculated to prevent substitutions or interference with the collection and testing of specimens;
(C) The documentation of urine specimens through procedures that reasonably preclude the possibility of erroneous identification of test results and that provide the individual being tested a reasonable opportunity to furnish information identifying any prescription or nonprescription drugs used by the individual in connection with a medical condition to the medical review officer;
(D) The collection, maintenance, storage and transportation of urine specimens in a manner that reasonably precludes the possibility of contamination or adulteration of the specimens;
(E) The testing of a urine specimen of an individual to determine if the individual ingested, was injected or otherwise introduced with a drug of abuse in a manner that conforms to scientifically accepted analytical methods and procedures that ~~may~~ include verification or and confirmation of any positive test result by gas chromatography or mass spectrometry.
(4) Establish standards and procedures governing the performance of alcohol tests;
(5) Require that a medical review officer review all drug tests that yield a positive result;
(6) Establish procedures by which an individual who undergoes a drug test or alcohol test may contest a positive test result;
(7) Require that when an employee of a contractor tests positive for a drug of abuse or alcohol, or if an employee is caught adulterating a drug or alcohol test, as defined in section four hundred twelve, article four, chapter sixty-a of this code, the employee shall be subject to appropriate disciplinary measures up to and including termination from employment, in accordance with the contractor's written drug-free workplace policy. If not terminated, the employee shall be subject to random drug or alcohol tests at any time for one year after the positive test;
(8) Require that when a supervisor has reasonable cause to believe an employee is under the influence of a drug of abuse or alcohol at work and requires the employee to take a drug or alcohol test, the employee shall immediately be suspended from performing safety-sensitive tasks by the contractor until such time as a drug or alcohol test is performed and results of that test are available;
(9) Require a contractor to provide to any employee testing positive for a drug of abuse or alcohol the ~~opportunity to be evaluated by a licensed substance abuse professional who can assist the employee in seeking treatment if needed~~ list of community resources where employees may seek assistance for themselves or their families as identified in paragraph (D), subsection (12) of this section;
(10) Require that a contractor assist an employee who voluntarily acknowledges that the employee may have a substance abuse problem ~~in locating a suitable substance abuse rehabilitation program for treatment~~ by providing the list of community resources where employees may seek assistance for themselves or their families as identified in paragraph (D), subsection (12) of this section;
(11) Require that a contractor establish a written drug-free workplace policy regarding substance abuse and provide a copy of the written policy to each of its employees and to each applicant for employment. The written policy shall contain, at a minimum, all of the following:
(A) A summary of all the elements of the drug-free workplace policy established in accordance with this article;
(B) A statement that it is the contractor's intention to create a drug-free workplace environment;
(C) Identification of an employee who has been designated the contractor's drug-free workplace representative;
(D) Shall list the types of tests an employee may be subject to, which may include, but are not limited to, the following:
(i) Preemployment;
(ii) Post-accident;
(iii) Random; and
(iv) Reasonable cause.
(12) Require that a contractor provide within six weeks of new employment at least two hours of drug-free workplace employee education for all employees ~~and annually thereafter~~ unless that employee has already received such training anytime within a prior two year period. The employee shall participate in drug-free workplace employee education at least biannually thereafter. The employee education shall include all of the following:
(A) Detailed information about the content of the contractor's specific drug-free workplace policy and an opportunity for employees to ask questions regarding the policy;
(B) The distribution of a hard copy of the written drug-free workplace policy, including collecting an employee-signed acknowledgment receipt from each employee;
(C) Specific explanation of the basics of drugs and alcohol abuse, including, but not limited to, the disease model, signs and symptoms associated with substance abuse, and the effects and dangers of drugs or alcohol in the workplace; and
(D) A list of community resources where employees may seek assistance for themselves or their families.
(13) Require that a contractor provide at least two hours of drug-free workplace supervisor training for all supervisory employees and annually thereafter. The supervisor training shall include all of the following:
(A) How to recognize a possible drug or alcohol problem;
(B) How to document behaviors that demonstrate a drug or alcohol problem;
(C) How to confront employees with the problem from observed behaviors;
(D) How to initiate reasonable suspicion and post-accident testing;
(E) How to handle the procedures associated with random testing;
(F) How to make an appropriate referral for assessment and assistance;
(G) How to follow up with employees returning to work after a positive test; and
(H) How to handle drug-free workplace responsibilities in a manner that is consistent with the applicable sections of any pertinent collective bargaining agreements.
§21-1D-6. Drug-free workplace written policy to be kept posted.
A clearly legible copy of the contractor's written drug-free workplace policy shall be kept posted in a prominent and easily accessible place at the public improvement construction site thereof by each contractor subject to the provisions of this article.

§21-1D-7. Drug-free workplace records and contents open for inspection.

Every contractor shall keep an accurate record showing the names, occupation and safety-sensitive status of all employees, in connection with the construction on the public improvement, and showing any drug tests or alcohol tests performed and employee education and supervisor training received, which record shall be open at all reasonable hours ~~to the~~ for inspection ~~of and~~ by the public authority which let the contract and its officers and agents. It is not necessary to preserve the record for a period longer than three years after the termination of the contract.

§21-1D-7a. Confidentiality; test results not to be used in criminal and administrative proceedings.

All drug testing information specifically related to individual employees is confidential and should be treated as such by anyone authorized to review or compile program records. Drug test results may not be used in a criminal proceeding without the employee's consent.
§21-1D-8. Penalties for violation of this article.
(a) Any contractor who violates any provision of this article is, for the first offense, guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars; for the second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than five thousand dollars; for the third or any subsequent offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than twenty-five thousand dollars and the contractor shall be excluded from bidding any additional new public improvement projects for a period of one year.
(b) Any person who directly or indirectly aids, requests or authorizes any other person to violate any of the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor more than two hundred fifty dollars.
§21-1D-9. Existing contracts.
This article applies only to contracts for construction on public improvements awarded after the effective date of this article.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 657--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §21-1D-1, §21-1D-2, §21-1D-3, §21-1D-4, §21-1D- 5, §21-1D-6, §21-1D-7, §21-1D-7a, §21-1D-8 and §21-1D-9, all relating to the West Virginia Alcohol and Drug-Free Workplace Act; providing definitions; providing a statement of policy; requiring public improvement contractors to have and implement a drug-free workplace program that requires drug and alcohol testing; provides standards and protocols for testing; provides for assistance for employees; requiring a drug-free workplace policy to be posted at a public improvement construction site; requiring drug-free workplace records and contents be open for inspection; providing penalties; providing for confidentiality; and providing that this article shall only apply to contracts awarded after this article takes effect.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 657, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 657) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 657) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2008, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 671, Increasing presiding Court of Claims' judge compensation.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page two, section eight, lines one and two, by striking out the words "one hundred sixty" and inserting in lieu thereof the words "two hundred ten";
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 671--A Bill to amend and reenact §14-2-8 of the Code of West Virginia, 1931, as amended, relating to increasing the compensation of the judges of the Court of Claims.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 671, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 671) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 671) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 722, Granting regulatory power to certain Board of Pharmacy facilities.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page two, section one-b, line thirteen, after the word "patients." by striking out the remainder of the subdivision and inserting in lieu thereof the following: The Board of Pharmacy shall promulgate rules regarding the minimum standards for a charitable clinic pharmacy and rules regarding the applicable definition of a pharmacist-in-charge, who may be a volunteer, at charitable clinic pharmacies: Provided, That, the charitable clinic pharmacies shall be exempt from licensure by the board until rules are in effect for a charitable clinic pharmacy. A charitable clinic pharmacy may not be charged any applicable licensing fees and such clinics may receive donated drugs.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 722, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White and Tomblin (Mr. President)--31.
The nays were: Hunter and Yoder--2.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 722) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the passage by that body, without amendment, to take effect July 1, 2008, and requested the concurrence of the Senate in the changed effective date, of
Eng. Com. Sub. for Senate Bill No. 751, Relating to Surface Coal Mining and Reclamation Act.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
On further motion of Senator Chafin, the Senate concurred in the changed effective date of the bill, that being to take effect July 1, 2008, instead of from passage.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 751) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 778, Relating to veterans' benefits.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 3056, Authorizing pharmacists to administer immunizations.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 3065, Relating to making false reports of child abuse, sexual abuse and domestic violence.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amended title, passage as amended, of
Eng. House Bill No. 4019, Relating to civil actions filed in the courts of the state.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. House Bill No. 4072, Clarifying that the Board of Registration for Professional Engineers is subject to a regulatory board review.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. House Bill No. 4073, Clarifying that the Board of Examinations in Counseling is subject to a regulatory board review.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. House Bill No. 4085, Relating to regulatory review of the West Virginia Acupuncture Board.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 4144, Relating to physician assistants and updating language to conform to national changes.
A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 4209, Authorizing the Department of Administration to promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
On further motion of Senator Chafin, the Senate acceded to the request of the House of Delegates and receded from its amendments to the bill.
Engrossed Committee Substitute for House Bill No. 4209, as amended by deletion, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4209) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4209) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4244, Authorizing the Department of Transportation to promulgate legislative rules.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4255, Authorizing the Department of Commerce to promulgate legislative rules.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 4368, Reducing acts of student violence and disruptive behavior and increasing penalties for chronically disruptive students.
A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. House Bill No. 4388, Authorizing the West Virginia Supreme Court of Appeals to maintain a domestic violence database.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
On further motion of Senator Chafin, the Senate acceded to the request of the House of Delegates and receded from its amendments to the bill.
Engrossed House Bill No. 4388, as amended by deletion, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4388) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4388) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced that that body had agreed to the changed effective date to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4421, Repealing the corporate license tax, and creating corporate license tax replacement fees.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4423, Ensuring that beer kegs are not considered scrap metal unless received directly from a beer manufacturer.
A message from The Clerk of the House of Delegates announced that that body had agreed to the changed effective date to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4570, Authorizing regional jail employees to carry a firearm after receiving appropriate certification.
A message from The Clerk of the House of Delegates announced that that body had agreed to the changed effective date to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4613, Increasing protection to beneficiaries of structured settlements as they relate to settlement transfers.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, to take effect July 1, 2008, of
Eng. House Bill No. 4628, Providing a tax credit for new job creation by certain taxpayers.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 56--Encouraging assistance from private employers in an effort to increase poll workers participants in West Virginia.
Whereas, West Virginia poll workers are an integral part of the election process in state, county and municipal elections; and
Whereas, West Virginia has an aging population and the average age of poll workers in this state is 72 years old; and
Whereas, It is becoming increasingly difficult for the political parties to find a sufficient number of eligible poll workers to work the polls on Election Day; and
Whereas, In order to accommodate the increasing demands of technology and address the new and complicated federal laws that mandate certain voting procedures in every polling place, it is important to have an adequate number of qualified workers; and
Whereas, There are many citizens in the State who are willing to work the polls during an election, but they are unable to do so due to their employment obligations; and
Whereas, West Virginia businesses have a skilled workforce which would be an invaluable asset to polling places across this State; and
Whereas, West Virginia employers have an opportunity to greatly support their communities by allowing their employees time off with pay on Election Day to participate in civic duty as poll worker; therefore, be it
Resolved by the Legislature of West Virginia:
That West Virginia employers are encouraged to allow their employees time off with pay on Election Day to be a poll worker in West Virginia; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a copy of this resolution to the Chamber of Commerce.
At the request of Senator Chafin, and by unanimous consent, the message was taken up for immediate consideration and reference of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 84--Requesting that the Joint Committee on Government and Finance authorize the study to improve the state's efforts to better promote the availability of safe drinking water projects funding; expedite the time line between inception of a project and its completion; establish clearer communication regarding the application process and implementation stages of such projects; and in general, more efficiently improve its efforts to ensure safe drinking water for all West Virginia Citizens.
Whereas, The Legislature recognizes the importance of the basic right of clean, suitable, drinking water by annually providing the necessary funding for such projects; and
Whereas, That although funding is appropriated, it remains a sad reality that many of West Virginia's families do not enjoy that which so many other parts of the country take for granted, that being safe, suitable, drinking water; and
Whereas, Safe drinking water is a fundamental necessity to life itself; and
Whereas, Safe drinking water should be among one of the primary goals of a government to insure to its people; and
Whereas, Communities that have safe drinking water for its citizens and businesses have a better chance at improving its business and development goals; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a study to improve the state's efforts to better promote the availability of safe drinking water projects funding; expedite the time line between inception of a project and its completion; establish clearer communication regarding the application process and implementation stages of such projects; and in general, more efficiently improve its efforts to ensure safe drinking water for all West Virginia Citizens; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the Regular Session of the Legislature, 2009, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the Legislative expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Referred to the Committee on Finance; and then to the Committee on Rules.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 99--Requesting the joint committee on government and finance to make a study on a funding mechanism to increase the salaries of teachers and school service personnel.
Whereas, The Rankings & Estimates - Rankings of the States 2006 and Estimates of School Statistics 2007, National Education Association, NEA Research, December 2007, shows that West Virginia ranks 48th among the states in the average salaries of instructional staff in public schools with an average salary of $39,856 in 2005-06; and
Whereas, The Rankings & Estimates show that the percentage change in average instructional staff salaries in West Virginia in constant dollars declined by 6.9% from 1995-06 to 2005-06, a larger decline than in 46 other states; and
Whereas, The quality of a state's education system is directly related to the quality of personnel it can attract and retain through competitive salaries and benefits; and
Whereas, Quality teaching produces a more well educated citizenry and results opportunities for economic prosperity; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to make a study on a funding mechanism to increase the salaries of teachers and school service personnel; and, be it
Further Resolved, That the goal of the funding mechanism is to provide salary increases sufficient to increase the ranking of West Virginia's teacher salaries to 40th in the nation during 2009, 35th in the nation during 2010, and 30th in the nation during 2011 and increase the salaries of service personnel to similar levels of market competitiveness based on the Rankings & Estimates of the National Education Association, the Survey and Analysis of Teacher Salary Trends of the American Federation of Teachers, The AFT PSRP Compensation Survey, and any other established national comparative ranking of the salaries of school personnel; and, be it
Further Resolved, That the said Joint Committee on Government and Finance is requested conduct the study and prepare a report of its findings, conclusions and recommendations together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the Joint Committee on Government and Finance is requested to report to the regular session of the Legislature, 2009, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and draft necessary legislation are requested to be paid from legislative appropriations to the Joint Committee on Government and Finance.
Referred to the Committee on Education; and then to the Committee on Rules.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, submitting the annual probation and parole report, which was received:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON

March 7, 2008

Senate Executive Message No. 6
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear Mr. President:
As empowered by Section 11, Article VII of the Constitution of West Virginia and section sixteen, article one, chapter five of the Code of West Virginia, I extended clemency to the persons named on the attached report. I submit this report in accordance with the above-cited provisions for the period March 10, 2007, through March 7, 2008.
Very truly yours,
Joe Manchin III,
Governor.
PARDONS AND MEDICAL RESPITES GRANTED
BY GOVERNOR JOE MANCHIN III
FOR THE PERIOD
MARCH 10, 2007, THROUGH MARCH 7, 2008
Bowers, Charles Roderick, Jr.
Decided November 15, 2007
In 1960, Mr. Bowers pleaded guilty to one count of Grand Larceny. On December 7, 1960, he was sentenced by the Circuit Court of Kanawha County to a term of one-to-ten years of imprisonment. In July of 1962, Mr. Bowers was granted parole and successfully completed his term of parole in July of 1963. Since that time, Mr. Bowers has maintained himself as a responsible, law- abiding citizen and has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his history and record, unanimously recommended that Mr. Bowers be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Charles Roderick Bowers, Jr., for the offense of Grand Larceny.
Jarvis, Robert Mark
Decided November 15, 2007
In 1970, Mr. Jarvis pleaded guilty to one count of Possession of Marijuana. On December 28, 1970, he was sentenced by the Circuit Court of Fayette County to a term of two-to-five years of imprisonment, which sentence was reduced on May 10, 1971, to a two- year term of probation. Mr. Jarvis successfully completed his term of probation on May 10, 1973. Since that time, Mr. Jarvis has maintained himself as a responsible, law-abiding citizen and has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his history and record, unanimously recommended that Mr. Jarvis be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Robert Mark Jarvis for the offense of Possession of Marijuana.
Kallai, George Lucien III
Decided November 15, 2007
In 1991, Mr. Kallai pleaded guilty to one count of Petit Larceny. On June 3, 1991, he was sentenced by the Magistrate Court of Nicholas County to pay a fine. Mr. Kallai successfully fulfilled all requirements placed upon him by the court. Since that time, Mr. Kallai has maintained himself as a responsible, law- abiding citizen and has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his history and record, unanimously recommended that Mr. Kallai be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to George Lucien Kallai III for the offense of Possession of Marijuana.
Kyle, Roger Lee
Decided November 15, 2007
In 1968, Mr. Kyle pleaded guilty to one count of Grand Larceny. On February 29, 1968, he was sentenced by the Circuit Court of Monongalia County to a term of one-to-ten years of imprisonment, which sentence was reduced to a term of three years of probation. Mr. Kyle was released from probation in February of 1970. Since that time, Mr. Kyle has maintained himself as a responsible, law-abiding citizen and has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his record, unanimously recommended that Mr. Kyle be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Roger Lee Kyle for the offense of Grand Larceny.
Painter, Charles Franklin
Decided November 15, 2007
In 1966, Mr. Painter pleaded guilty to one count of Breaking and Entering. On August 5, 1966, he was sentenced by the Circuit Court of Brooke County to a term of one-to-ten years of imprisonment. Mr. Painter was granted parole on September 3, 1968, and successfully completed his term of parole on August 21, 1969. Since that time, Mr. Painter has maintained himself as a responsible, law-abiding citizen and has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his record, unanimously recommended that Mr. Painter be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Charles Franklin Painter for the offense of Breaking and Entering.
Rakes, Darrell Gene
Decided November 15, 2007
In 1980, Mr. Rakes pleaded guilty to one count of Possession with Intent to Deliver a Controlled Substance (Marijuana). On August 13, 1980, he was sentenced by the Circuit Court of Fayette County to a term of one-to-five years of imprisonment, which sentence was reduced to a term of three years of probation and payment of court costs. Mr. Rakes successfully completed all requirements of the court and was released from probation on August 10, 1983. Since that time, Mr. Rakes has maintained himself as a responsible, law-abiding citizen and has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his record, unanimously recommended that Mr. Rakes be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Darrell Eugene Rakes for the offense of Possession with Intent to Deliver a Controlled Substance (Marijuana).
Robertson, Glenn Douglas
Decided November 15, 2007
In 1968, Mr. Robertson pleaded guilty to one count of Petit Larceny and one count of Deface and Destroy Property. On November 1, 1968, he was sentenced by a Mineral County Justice of the Peace to pay restitution, fines and court costs on each charge. Mr. Robertson successfully fulfilled all requirements placed upon him by the Mineral County Justice of the Peace. Since that time, Mr. Robertson has maintained himself as a responsible and law-abiding citizen and has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his record, unanimously recommended that Mr. Robertson be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Glenn Douglas Robertson for the offenses of Petit Larceny and Deface and Destroy Property.
Shackelford, William Forrest
Decided November 15, 2007
In 1958, Mr. Shackelford pleaded guilty to one count of Grand Larceny. On May 16, 1958, he was sentenced by the Circuit Court of Jefferson County to a term of one-to-ten years of imprisonment, which sentence was reduced to a term of three years of probation. Mr. Shackelford successfully completed his term of probation in September of 1960. Since that time, he has maintained himself as a responsible, law-abiding citizen and has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his record, recommended that Mr. Shackelford be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to William Forrest Shackelford for the offense of Grand Larceny.
Vincent, Robert William
Decided November 15, 2007
In 1970, Mr. Vincent pleaded guilty to one count of Breaking and Entering. On July 3, 1970, he was sentenced by the Circuit Court of Brooke County to a term of one-to-ten years of imprisonment, which sentence was reduced to a term of two years of probation. Mr. Vincent successfully completed his term of probation on July 3, 1972. Since that time, he has maintained himself as a responsible, law-abiding citizen and has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his record, recommended that Mr. Shackelford be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Robert William Vincent for the offense of Breaking and Entering.
NO MEDICAL RESPITES WERE GRANTED
DURING THIS PERIOD

A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 4402, Relating to compulsive gambling.
On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Kessler, Oliverio and McKenzie.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced that that body had refused to recede from its amendments, and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
Eng. Senate Bill No. 72, Expanding Route 2 and Interstate 68 Authority territory.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Martin, Hutchins and Sobonya.
On motion of Senator Chafin, the Senate agreed to the appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Jenkins, Plymale and Yoder.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Love, and by unanimous consent, the Senate returned to the second order of business and the introduction of guests.
On motion of Senator Chafin, the recessed until 5:30 p.m. today.
Upon expiration of the recess, the Senate reconvened and again proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 398, Authorizing Department of Health and Human Resources promulgate legislative rules.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 536, Exempting Supreme Court probation officers' vehicles from certain registration requirements.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of the committee of conference report, passage as amended by the conference report, with its conference amended title, as to
Eng. Com. Sub. for Senate Bill No. 571, Relating to certain firefighters' workers' compensation benefits.
A message from The Clerk of the House of Delegates announced that that body had receded from its amendments to, and the passage as amended by deletion, of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 573, Increasing public school teachers' and service personnel annual salaries.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 645, Exempting city and county hospitals from certain audit requirements.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect July 1, 2008, of
Eng. Senate Bill No. 659, Increasing certain crime victims' benefits.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Senate Bill No. 673, Making supplementary appropriation to Department of Health and Human Resources.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Senate Bill No. 674, Making supplementary appropriation to Department of Administration and Department of Military Affairs and Public Safety.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 18, Requesting Division of Highways name bridge in Martinsburg, Berkeley County, "Dr. C. Vincent Townsend, Sr., Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 30, Requesting Division of Highways name section of Interstate 70 in Wheeling, Ohio County, "Doc and Chickie Williams Country Music Royal Couple Highway".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 37, Requesting Division of Highways name bridge in Diana, Webster County, "David Daniel Hamrick Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 38, Requesting Division of Highways name bridge in Trace Fork, Kanawha County, "Private Clinton Griffith and Staff Sergeant Jack Griffith Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 39, Requesting Division of Highways name bridge in Hemphill, McDowell County, "Charles Spencer Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 47, Requesting Division of Natural Resources rename Wallback Lake in Clay County "Sampson Lake".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 49, Requesting Division of Highways name bridge in Mingo County "Private Lawrence Ooten Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 52, Requesting Division of Highways name bridge in Marion County "Seaman 1st Class Clyde Richard Wilson Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 53, Requesting Joint Committee on Government and Finance study convention and visitors bureaus.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 63, Requesting Division of Highways name bridge near Belo, Mingo County, "R3C Fred Mahon Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 64, Commending Consortium for Internationalizing Higher Education in West Virginia.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 76, Requesting Division of Highways place sign at Fayetteville, Fayette County, "Coolest Small Town".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. House Bill No. 4078, Relating to the termination of the Blennerhassett Island Historical State Park Commission.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 4139, Relating to licensing persons using bioptic telescopic devices to operate a motor vehicle.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4156, Permitting a governing body of a municipality to place a lien on property in an amount equal to the demolition and removal of a hazardous structure.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4157, Allowing insurers who have been suspended from writing new policies to continue to service existing policies.
A message from The Clerk of the House of Delegates announced that that body had agreed to the changed effective date to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4381, Relating to an assigned risk plan and guaranty association account for workers' compensation insurance.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4383, Awarding service revolver upon retirement to state fire marshal.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4386, Authorizing municipalities to create an annual vacant property registration.
A message from The Clerk of the House of Delegates announced that that body had agreed to the changed effective date to take effect from passage, of
Eng. House Bill No. 4394, Restoring the licensure exemption for certain contractors of manufactured housing installation.
A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for House Bill No. 4402, Relating to compulsive gambling.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Palumbo, Miley and Hamilton.
A message from The Clerk of the House of Delegates announced that that body had agreed to the changed effective date to take effect January 1, 2009, of
Eng. Com. Sub. for House Bill No. 4420, Imposing corporate net income tax on certain regulated investment companies and real estate investment trusts used as tax sheltering vehicles.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 4494, Relating to the regulation of the practice of accountancy.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4511, Relating to zoning ordinance adoption by election or otherwise.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4607, Relating to special district excise tax authorization.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4624, Providing per diem pay for volunteers who drive veterans to hospitals.
A message from The Clerk of the House of Delegates announced that that body had agreed to the changed effective date to take effect from passage, of
Eng. House Bill No. 4644, Relating to the forfeiture of bail.
The Senate proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report had been filed at 6:03 p.m. today:
Eng. Com. Sub. for House Bill No. 4471, Making certain changes to the West Virginia State Police Retirement System.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 91, Urging West Virginia National Guard return from Iraq.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Military.
Senate Resolution No. 35, Designating March 9-16, 2008, "National Problem Gambling Awareness Week".
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on the Judiciary.
Senator Chafin announced that in the meeting of the Committee on Rules previously held, the committee, in accordance with rule number seventeen of the Rules of the Senate, had removed from the Senate third reading calendar, Eng. Com. Sub. for House Bill No. 4333.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2967, Creating the "West Virginia Remembers Program".
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2967) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 4016, Updating meaning of federal adjusted gross income and certain other terms used in West Virginia Personal Income Tax Act.
On third reading, coming up in regular order, with the right having been granted on Thursday, March 6, 2008, for amendments to be received on third reading, was reported by the Clerk.
On motion of Senator Helmick, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
O n page two, section nine, line sixteen, by striking out the words "first day of January" and inserting in lieu thereof the words "fourteenth day of February";
And,
On page four, section nine, lines thirty-seven and thirty- eight, by striking out the words "first day of January" and inserting in lieu thereof the words "fourteenth day of February".
Having been engrossed, the bill (Eng. H. B. No. 4016) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4016) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4016) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 4017, Updating meaning of federal taxable income and certain other terms used in West Virginia Corporation Net Income Tax Act.
On third reading, coming up in regular order, with the right having been granted on Thursday, March 6, 2008, for amendments to be received on third reading, was reported by the Clerk.
On motion of Senator Helmick, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
O n page two, section three, line seventeen, by striking out the words "first day of January" and inserting in lieu thereof the words "fourteenth day of February";
And,
On page three, section three, lines thirty-six and thirty- seven, by striking out the words "first day of January" and inserting in lieu thereof the words "fourteenth day of February".
Having been engrossed, the bill (Eng. H. B. No. 4017) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4017) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4017) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fourth order of business.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 75, Requesting Division of Highways name bridge in Summers County "Vaughn Ray York Memorial Bridge".
And has amended same.
And,
House Concurrent Resolution No. 55, The "Brian Keith Paul Cable Barriers".
And has amended same.
And reports the same back with the recommendation that they each be adopted, as amended.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being granted, Senate Concurrent Resolution No. 75 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:
B y striking out everything after the title and inserting in lieu thereof the following:
Whereas, Vaughn Ray York, Jr. was an avid photographer using his talents to capture wonderful pictures of the West Virginia wildlife, environment and mountains as well as having those photographs of his home state published in the book Shades of Tomorrow; and
Whereas, An exhibit of Vaughn York, Jr.'s photography is scheduled to be displayed at Tamarack this spring; and
Whereas, Vaughn York, Jr. worked as a heavy equipment operator for Magnum Coal Company; and
Whereas,Vaughn York, Jr. was an avid outdoorsman, enjoying hunting, fishing and photographing game; and
Whereas,Vaughn York, Jr. was a kind person, selfless in his desire to help those less fortunate than he, often giving most of his own salary to help those who were in need; and
Whereas, On September 23, 2006, after listening to his beloved West Virginia University Mountaineer football team and taking photographs of an intense storm, Vaughn York, Jr. was returning home when he was tragically killed at the age of thirty-five; and
Whereas, Vaughn York, Jr. is dearly missed by his family, friends, and those in the community and the breadth of his graciousness was not discovered until his funeral; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 45-64-143.17 (2790) at the Green Sulphur Springs Interchange on Interstate 64 in Summers County near exit 143 the "Vaughn Ray York, Jr. Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways have made and be placed signs identifying the bridge as the "Vaughn Ray York, Jr. 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 Transportation and the family of Vaughn Ray York, Jr.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Senate Concurrent Resolution No. 75--Requesting the Division of Highways name bridge number 45-64-143.17 (2790) located at the Green Sulphur Springs Interchange on Interstate 64 in Summers County near exit 143 the "Vaughn Ray York, Jr. Memorial Bridge".
The question being on the adoption of the resolution (S. C. R. No. 75), as amended, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 55 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:
B y striking out everything after the title and inserting in lieu thereof the following:
Whereas, Brian Keith Paul, born May 18, 1963 to Homer and Ina Paul of Barboursville, West Virginia, brother to Theresa Paul Vithalani, father to Megan, Lenza and Bryce Paul, and husband to Cathy Paul, passed away November 25, 2006, after a courageous battle with colon cancer; and
Whereas, Brian Keith Paul was a model citizen and a good father, active in the lives of his children, often volunteering to coach their various sports teams and determined to teach young people the value of dedication on and off the field. Indeed, Brian's motto was "Never Say Can't"; a motto, by which he lived, and a virtue that guided him in his pursuit to make I-64 safer for all travelers; and
Whereas, Brian Keith Paul was a third generation mechanic and vice president of Paul's Garage. As part of his occupation, he remediated often fatal car wrecks and, when necessary, preserved persons' belongings for collection by loved ones. His experience cleaning up car accident sites allowed him to witness the devastating effects car crashes have on people in our community; and
Whereas, Brian, in light of his unique perspective regarding vehicular accidents, formed the opinion that too many serious crossover collisions were occurring on I-64, particularly for lack of a median barrier; and
Whereas, Brian, in his efforts to better his community, doggedly pursued the Division of Highways, lobbying them to construct a barrier in the median between the eastbound and westbound lanes of a portion of I-64; and
Whereas, His pursuit took hours of research and countless phone calls, often resulting in dead ends; and
Whereas, Brian persevered through this difficulty by staying true to his motto "Never Say Can't" and was successful in convincing local and state government officials to construct a median barrier which now spans from mile marker six to mile marker twenty-seven on I-64 and where this barrier has saved many lives; and
Whereas, The Legislature hereby acknowledges that Brian Keith Paul was instrumental in initiating the construction of said cable barrier project and finds that it is right and just to perpetuate and honor his memory by formally naming a bridge on I-64 the "Brian Keith Paul Memorial Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name the bridge located on I-64 at mile marker 19.25, number (2104) in Cabell County the "Brian Keith Paul 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 follows:
"BRIAN KEITH PAUL MEMORIAL BRIDGE
SAFETY ADVOCATE FOR
LIFE-SAVING HIGHWAY CABLE BARRIERS"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward certified copies of this resolution to the Commissioner of the Division of Highways and to the family members of the late Brian Keith Paul.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
House Concurrent Resolution No. 55--Requesting the Division of Highways to name the bridge located on I-64 at mile marker 19.25, number (2104) in Cabell County, the "Brian Keith Paul Memorial Bridge".
The question being on the adoption of the resolution (H. C. R. No. 55), as amended, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 83, Requesting Division of Highways name bridge in Kanawha County "Captain Benjamin D. Tiffner Memorial Bridge".
Senate Concurrent Resolution No. 84, Requesting Division of Highways name bridge in Kanawha County "Master Sergeant William L. 'Buster' Hackney Memorial Bridge".
And,
Senate Concurrent Resolution No. 88, Requesting Division of Highways name bridge in Delbarton, Mingo County, "Thomas Elbert Muncy, Jr., Memorial Bridge".
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being granted, Senate Concurrent Resolution No. 83 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Unger, unanimous consent being granted, Senate Concurrent Resolution No. 84 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Unger, unanimous consent being granted, Senate Concurrent Resolution No. 88 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
House Concurrent Resolution No. 5, The "Oscar Robert England Bridge".
House Concurrent Resolution No. 10, The "Captain Larry F. Lucas Memorial Bridge".
House Concurrent Resolution No. 19, Requesting the Division of Highways to rename Heritage Road, specifically Lincoln County Route 13/7, to "Guy Gillenwater Hollow".
House Concurrent Resolution No. 23, Requesting the Division of Highways to name the Yates Avenue bridge, spanning Berkeley Run in Grafton, West Virginia, the "Bearcat Bridge".
House Concurrent Resolution No. 25, Requesting that bridge number 46-119-7.93 located in the City of Grafton be named the "Memorial City Bridge".
House Concurrent Resolution No. 26, Requesting the Division of Highways to name a portion of U. S. Route 52 the "Vietnam Veterans Highway".
House Concurrent Resolution No. 42, Providing for the renaming of Fairgrounds Road located in Cabell County "Bill Blenko Drive".
House Concurrent Resolution No. 54, The "PFC Michael J. Slater Memorial Bridge".
House Concurrent Resolution No. 57, The "Denver Ray Gandee Sr. Bridge".
House Concurrent Resolution No. 62, The "Lt. Charles O. Hardman and Sgt. Gale Franklin Keen Bridge".
And,
House Concurrent Resolution No. 68, The "Bill Queen, Jr. Memorial Bridge".
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 5 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 10 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 19 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 23 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 25 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 26 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 42 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 54 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 57 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 62 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 68 contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate again proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 4018, Renewing the West Virginia Small Business Linked Deposit Program.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4018) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4018) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 4038, Allowing the Division of Labor to promulgate Rules to license elevator workers.
On third reading, coming up in regular order, was read a third time and put upon its passage.
Pending discussion,
Senator Caruth requested unanimous consent that further consideration of the bill be deferred until the conclusion of bills on today's third reading calendar.
Which consent was not granted, Senator Bowman objecting.
Senator Caruth then moved that further consideration of the bill be deferred until the conclusion of bills on today's third reading calendar.
The question being on the adoption of Senator Caruth's aforestated motion, the same was put and did not prevail.
The question now being "Shall Engrossed House Bill No. 4038 pass?"
On the passage of the bill, the yeas were: Bailey, Bowman, Chafin, Edgell, Facemyer, Fanning, Foster, Green, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Unger, Wells, White and Tomblin (Mr. President)--24.
The nays were: Barnes, Boley, Caruth, Deem, Guills, Hall, Sprouse, Sypolt and Yoder--9.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4038) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4041, Relating to the regulation and treatment of the production of natural gas and coalbed methane.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Deem--1.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4041) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4088, Allowing farm equipment dealers to calculate their inventory based on an average of their yearly sales.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4088) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4117, Expanding eligibility for state minimum salary supplements for classroom teachers achieving certain national certification.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4117) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4117) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4290, Relating to electronic commerce.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4290) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4307, Relating to bona fide residents wholly or solely owning greyhounds.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Boley--1.
Absent: Sharpe--1.
Excused from voting: Green--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4307) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4307--A Bill to amend and reenact §19-23-10 of the Code of West Virginia, 1931, as amended, relating to greyhound racing generally; Greyhound breeding development fund limited to greyhounds wholly or solely owned by bona fide residents of state track facilities; increasing the amount from the Breeder Development Fund that can be used for construction of two training track facilities; increasing the number of possible greyhound training tracks to two; authorizing maintenance costs for training tracks to be paid as fund distributions; not requiring anyone to be a member of an association in order to participate in the Breeder Development Fund; providing for distribution of one half points to West Virginia whelped greyhounds finishing in places fifth through eighth; providing for distribution of one half points to kennels required to race West Virginia whelped greyhounds on their active lists when the dogs finish in fifth, sixth, seventh or eighth place; requiring up to three races featuring West Virginia bred dogs per race card; and codifying the requirement that the Greyhound Owners and Breeders Association shall submit an updated registry each month.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4333, Relating to requiring an insurance company to withhold a specified amount from insurance proceeds to cover costs of fire cleanup of a structure.
Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 4357, Extending the Neighborhood Investment Program Act and eligibility for tax credits under the act.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4357) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4407, Requiring automatic tire chains as standard equipment on all new school buses.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4407) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4433, Increasing the maximum amount of a medical student loan that may be cancelled.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4433) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4434, Establishing a higher education energy and water savings revolving loan fund.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4434) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4434) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 4449, Allowing the Higher Education Policy Commission and WV Council for Community and Technical College Education to enter into lease-purchase agreements.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4449) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4472, Requiring a board of education to wait ten days before posting a new job opening following the death of an employee.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4472) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4474, Relating to registered nurses required in operating rooms.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4474) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4476, Public-Private Transportation Facilities Act.
On third reading, coming up in regular order, was read a third time and put upon its passage.
Pending discussion,
At the request of Senator Helmick, unanimous consent being granted, further consideration of the bill was deferred until the conclusion of bills on today's third reading calendar.
Thereafter, at the request of Senator Caruth, and by unanimous consent, the remarks by Senator Yoder regarding the passage of Engrossed Committee Substitute for House Bill No. 4476 were ordered printed in the Appendix to the Journal.
Eng. House Bill No. 4477, Relating to payment of GED exam fees.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4477) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4477) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4495, Limiting the use of the titles "registered nurse", "nurse practitioner", and "nurse" to certain qualified individuals.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4495) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4524, Relating generally to the ethical standards of public officers, employees and lobbyists.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4524) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4524) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence in the changed effective date.
Eng. Com. Sub. for House Bill No. 4554, Testing school bus operators every other year.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4554) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4554) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 4623, Relating to establishing minimum deductions.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4623) passed.
The following amendment to the title of the bill, from the Committee on Education, was reported by the Clerk and adopted:
Eng. House Bill No. 4623--A Bill to amend and reenact §18-23- 4a of the Code of West Virginia, 1931, as amended, relating to the Higher Education Policy Commission; the Council for Community and Technical College Education; governing boards of state institutions of higher education; establishing minimum employer contributions; and allowing contributions to employee retirement plans by certain higher education employers to exceed the percentage contributions of employees.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 4670, Authorizing the Public Employees Insurance Agency to charge interest to employers on amounts not paid on time.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Guills and Sypolt--2.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4670) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 4684, Amending the West Virginia Film Industry Investment Act.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4684) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4684) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Sypolt, and by unanimous consent, the Senate returned to the second order of business and the introduction of guests.
Pending announcement of a meeting of a standing committee of the Senate,
On motion of Senator Chafin, the Senate recessed until 8 p.m. tonight.
Night Session
Upon expiration of the recess, the Senate reconvened and again proceeded to the fourth order of business.
Senator Love, from the Committee on Confirmations, submitted the following report, which was received:
Your Committee on Confirmations has had under consideration
Senate Executive Message No. 2, dated February 7, 2008, requesting confirmation by the Senate of the nominations mentioned therein. The following list of names from Executive Message No. 2 is submitted:
1.For Member, Property Valuation and Training Procedures Commission, Dana Lynch, Webster Springs, Webster County, for the term ending June 30, 2010.
2.For Member, Mine Safety Technology Task Force, Menis Ketchum, Huntington, Cabell County, to serve at the will and pleasure of the Governor.
3.For Member, West Liberty State College Board of Governors, John Larch, Weirton, Hancock County, for the term ending June 30, 2010.
4.For Member, West Liberty State College Board of Governors, Brian Joseph, Wheeling, Ohio County, for the term ending June 30, 2010.
5.For Member, West Liberty State College Board of Governors, Michael Stolarczyk, Columbus, Ohio, for the term ending June 30, 2009.
6.For Member, Real Estate Appraiser Licensing and Certification Board, Glenn Summers, Clendenin, Kanawha County, for the term ending June 30, 2010.
7.For Member, Southern West Virginia Community and Technical College, Wilma J. Zigmond, Logan, Logan County, for the term ending June 30, 2010.
8.For Member, Southern West Virginia Community and Technical College, Glenn Yost, Chapmanville, Logan County, for the term ending June 30, 2008.
9.For Member, Southern West Virginia Community and Technical College, Terry Sammons, Gilbert, Mingo County, for the term ending June 30, 2011.
10.For Member, Board of Respiratory Care, Carol Colasessano, Fairmont, Marion County, for the term ending June 30, 2009.
11.For Member, Board of Respiratory Care, Jack Wilson, Beckley, Raleigh County, for the term ending June 30, 2010.
12.For Member, Board of Respiratory Care, Dr. John Parker, Morgantown, Monongalia County, for the term ending June 30, 2009.
13.For Member, Board of Respiratory Care, William Boring, Wheeling, Ohio County, for the term ending June 30, 2010.
14.For Member, Council on Aging, Kathy Pauley, Pinch, Kanawha County, for the term ending June 30, 2011.
15.For Member, Real Estate Commission, John Reed, Hurricane, Putnam County, for the term ending June 30, 2011.
16.For Member, West Virginia School of Osteopathic Medicine Board of Governors, C. Sue Holvey, Flatwoods, Braxton County, for the term ending June 30, 2011.
17.For Member, West Virginia School of Osteopathic Medicine Board of Governors, Judith Seifer, Lewisburg, Greenbrier County, for the term ending June 30, 2011.
18.For Member, Capitol Building Commission, Gregory R. Barton, Ellenboro, Ritchie County, for the term ending June 30, 2010.
19.For Member, Public Employees Grievance Board, David Roberts, Fairmont, Marion County, for the term ending June 30, 2008.
20.For Member, Archives and History Commission, Bill Richardson, Delbarton, Mingo County, for the term ending June 30, 2008.
21.For Member, Archives and History Commission, Victor Greco, Wheeling, Ohio County, for the term ending June 30, 2009.
22.For Member, Archives and History Commission, Dr. Helene Jacobs, Huntington, Cabell County, for the term ending June 30, 2009.
23.For Member, Archives and History Commission, Becky Frye, Martinsburg, Berkeley County, for the term ending June 30, 2008.
24.For Member, Archives and History Commission, Dr. Charles Ledbetter, Nitro, Kanawha County, for the term ending June 30, 2009.
25.For Member, Archives and History Commission, Robert S. Conte, Union, Monroe County, for the term ending June 30, 2008.
26.For Member, Archives and History Commission, Dr. Joan Walker, Hedgesville, Berkeley County, for the term ending June 30, 2008.
27.For Member, Archives and History Commission, Harold M. Forbes, Morgantown, Monongalia County, for the term ending June 30, 2010.
28.For Member, Archives and History Commission, Noel Tenney, Buckhannon, Upshur County, for the term ending June 30, 2010.
29.For Member, Council for Community and Technical College Education, James J. Cava, Jr., Ridgeley, Mineral County, for the term ending June 30, 2011.
30.For Member, Women's Commission, Shida Jamie, Charleston, Kanawha County, for the term ending June 30, 2010.
31.For Member, Women's Commission, Kathie Williams, Huntington, Cabell County, for the term ending June 30, 2008.
32.For Member, Women's Commission, April Pennell-Hendershot, Cross Lanes, Kanawha County, for the term ending June 30, 2010.
33.For Member, Women's Commission, Gina Martino Dahlia, Fairmont, Marion County, for the term ending June 30, 2010.
34.For Member, Women's Commission, Heather Johnson, Beaver, Raleigh County, for the term ending June 30, 2010.
35.For Member, Board of Barbers and Cosmetologists, Kenneth A. Coston, Charleston, Kanawha County, for the term ending June 30, 2011.
36.For Member, Board of Miner Training, Education and Certification, Carl Egnor, Yawkey, Lincoln County, for the term ending June 30, 2010.
37.For Member, Statewide Independent Living Council, Donald Carson, Beckley, Raleigh County, for the term ending June 30, 2010.
38.For Member, Statewide Independent Living Council, Cindy Spinks, Summersville, Nicholas County, for the term ending June 30, 2010.
39.For Member, Statewide Independent Living Council, Brenda Lamkin, Buckhannon, Upshur County, for the term ending June 30, 2008.
40.For Member, Statewide Independent Living Council, LuAnn Decker, New Cumberland, Hancock County, for the term ending June 30, 2010.
41.For Member, Statewide Independent Living Council, Vanessa VanGilder, Charleston, Kanawha County, for the term ending June 30, 2010.
42.For Member, Statewide Independent Living Council, Mark Derry, Morgantown, Monongalia County, for the term ending June 30, 2010.
43.For Member, Statewide Independent Living Council, Karen Davis, Charleston, Kanawha County, for the term ending June 30, 2010.
44.For Member, Athletic Commission, Douglas E. Pauley, Charleston, Kanawha County, for the term ending June 30, 2011.
45.For Commissioner, Tax Division, Christopher G. Morris, Charleston, Kanawha County, to serve at the will and pleasure of the Governor.
46.For Secretary, Department of Revenue, Virgil T. Helton, St. Albans, Kanawha County, to serve at the will and pleasure of the Governor.
47.For Member, Natural Resources Commission, David F. Truban, Morgantown, Monongalia County, for the term ending June 30, 2014.
48.For Member, Women's Commission, Sherry Breeden, Charleston, Kanawha County, for the term ending June 30, 2008.
49.For Member, Board of Medicine, Dr. Carlos C. Jimenez, Glen Dale, Marshall County, for the term ending September 30, 2011.
50.For Member, Board of Medicine, Dr. R. Curtis Arnold, Hamlin, Lincoln County, for the term ending September 30, 2011.
51.For Member, Board of Medicine, Joseph E. Miller, Hurricane, Putnam County, for the term ending September 30, 2012.
52.For Member, Board of Chiropractic Examiners, Dr. Scott Romesburg, Bridgeport, Harrison County, for the term ending June 30, 2010.
53.For Member, Shepherd University Board of Governors, Mary Clare Eros, Shepherdstown, Jefferson County, for the term ending June 30, 2011.
54.For Member, Shepherd University Board of Governors, W. Mark Rudolph, Winchester, Virginia, for the term ending June 30, 2011.
55.For Member, West Virginia Northern Community and Technical College Board of Governors, John Clarke, Wheeling, Ohio County, for the term ending June 30, 2011.
56.For Member, West Virginia Northern Community and Technical College Board of Governors, Mary K. Hervey Degarmo, Wellsburg, Brooke County, for the term ending June 30, 2008.
57.For Member, West Virginia Northern Community and Technical College Board of Governors, Anne Dieckmann-Harman, Wheeling, Ohio County, for the term ending June 30, 2011.
58.For Member, West Virginia Northern Community and Technical College Board of Governors, Conner Boyd, Wheeling, Ohio County, for the term ending June 30, 2010.
59.For Member, Board of Dental Examiners, Dr. Diane Paletta, Charleston, Kanawha County, for the term ending June 30, 2012.
60.For Member, Board of Dental Examiners, Michelle Klenk, Fayetteville, Fayette County, for the term ending June 30, 2012.
61.For Member, Board of Education, Jenny N. Phillips, Elkins, Randolph County, for the term ending November 4, 2016.
62.For Member, Eastern West Virginia Community and Technical College, Robert Q. Hott, Augusta, Hampshire County, for the term ending June 30, 2008.
63.For Member, Eastern West Virginia Community and Technical College, Dixie Bean, Moorefield, Hardy County, for the term ending June 30, 2011.
64.For Member, Council on Aging, Earl F. Jarvis, Logan, Logan County, for the term ending June 30, 2011.
65.For Member, Bluefield State College Board of Governors, Sylvester Myers, Bramwell, Mercer County, for the term ending June 30, 2010.
67.For Member, Housing Development Fund, The Honorable Gino Colombo, Clarksburg, Harrison County, for the term ending October 30, 2011.
68.For Member, Center for Professional Development, Reverend D. D. Meighen, Fairmont, Marion County, for the term ending June 30, 2009.
69.For Member, Center for Professional Development, B. Keith Fulton, Hurricane, Putnam County, for the term ending June 30, 2009.
70.For Member, Property Valuation and Training Procedures Commission, Mickey Brown, Madison, Boone County, for the term ending June 30, 2010.
71.For Member, Regional Jail and Correctional Facility Authority, Tony Veltri, Grafton, Taylor County, for the term ending June 30, 2011.
72.For Member, Catastrophic Illness Board, Dr. Victoria Shuman, Burton, Wetzel County, for the term ending August 31, 2012.
73.For Member, Medical Imaging and Radiation Therapy Technology Board of Examiners, Nancy Godby, Chapmanville, Logan County, for the term ending June 30, 2009.
74.For Member, Medical Imaging and Radiation Therapy Technology Board of Examiners, Dr. I. Elaine Moore, St. Albans, Kanawha County, for the term ending June 30, 2009.
75.For Member, Medical Imaging and Radiation Therapy Technology Board of Examiners, James Wilson, Charleston, Kanawha County, for the term ending June 30, 2010.
76.For Member, Medical Imaging and Radiation Therapy Technology Board of Examiners, Nancy Oughton, Morgantown, Monongalia County, for the term ending June 30, 2010.
77.For Member, Medical Imaging and Radiation Therapy Technology Board of Examiners, Jamie Browning, Logan, Logan County, for the term ending June 30, 2010.
78.For Member, Medical Imaging and Radiation Therapy Technology Board of Examiners, Melissa Haye, Princeton, Mercer County, for the term ending June 30, 2010.
79.For Member, Medical Imaging and Radiation Therapy Technology Board of Examiners, Dr. Robert Smith, Charleston, Kanawha County, for the term ending June 30, 2010.
80.For Executive Director, Water Development Authority, Christopher E. Jarrett, Charleston, Kanawha County, to serve at the will and pleasure of the Governor.
81.For Member, Medical Imaging and Radiation Technology Therapy Board of Examiners, Dr. John Leon, Fairmont, Marion County, for the term ending June 30, 2008.
82.For Member, Board of Registration for Sanitarians, Steven R. Bayer, Washington, Wood County, for the term ending June 30, 2012.
83.For Member, Marshall University Board of Governors, Michael G. Sellards, Huntington, Cabell County, for the term ending June 30, 2010.
84.For Member, West Virginia Northern Community and Technical College Board of Governors, William C. Haught, Wheeling, Ohio County, for the term ending June 30, 2011.
85.For Member, Oil and Gas Inspectors Examining Board, Robert L. Radabaugh, Sand Fork, Gilmer County, for the term ending June 30, 2012.
86.For Member, Aeronautics Commission, Richard S. Wachtel, Martinsburg, Berkeley County, for the term ending June 30, 2011.
87.For Member, Board of Registration for Sanitarians, William C. Harvey, Madison, Boone County, for the term ending June 30, 2009.
88.For Member, Lottery Commission, Don Lucci, Charleston, Kanawha County, for the term ending June 30, 2009.
89.For Member, Concord University Board of Governors, Wilma Anderson, Hinton, Summers County, for the term ending June 30, 2011.
90.For Member, Concord University Board of Governors, Frank L. Blackwell, Mullens, Wyoming County, for the term ending June 30, 2008.
91.For Member, Concord University Board of Governors, John Mendez, Princeton, Mercer County, for the term ending June 30, 2010.
92.For Member, Board of Examiners of Psychologists, Robert G. Martin, Hamlin, Lincoln County, for the term ending June 30, 2010.
93.For Member, Fairmont State University Board of Governors, Rocco Muriale, Fairmont, Marion County, for the term ending June 30, 2011.
94.For Member, Board of Registration for Professional Engineers, Richard E. Plymale, Charleston, Kanawha County, for the term ending June 30, 2012.
Senate Executive Message No. 4, dated February 14, 2008, requesting confirmation by the Senate of the nominations mentioned therein. The following list of names from Executive Message No. 4 is submitted:
1.For Director, Division of Personnel, Otis Cox, Webster Springs, Webster County, to serve at the will and pleasure of the Governor.
2.For Member, Board of Pharmacy, Rebekah Cookman, Romney, Hampshire County, for the term ending June 30, 2012.
And,
A letter from the Regional Jail and Correctional Facility Authority, dated February 12, 2008, requesting confirmation by the Senate of the nomination mentioned therein. The following name is submitted:
1. For Executive Director, Regional Jail and Correctional Facility Authority, Terry Miller, Charleston, Kanawha County, for the term ending December 10, 2012.
And reports the same back with the recommendation that the Senate do advise and consent to all of the nominations listed above.
Respectfully submitted,
Shirley Love,
Chair.
__________
The time having arrived for the special order of business to consider the list of nominees for public office submitted by His Excellency, the Governor, and a nomination submitted by the Regional Jail and Correctional Facility Authority, the special order thereon was called by the President.
Thereupon, Senator Tomblin (Mr. President) laid before the Senate the following executive messages and a letter from the Regional Jail and Correctional Facility Authority:
Senate Executive Message No. 2, dated February 7, 2008 (shown in the Senate Journal of February 11, 2008, pages 17 through 26, inclusive).
Senate Executive Message No. 4, dated February 14, 2008 (shown in the Senate Journal of February 18, 2008, pages 2 and 3).
And,
A letter from the Regional Jail and Correctional Facility Authority, dated February 12, 2008 (shown in the Senate Journal of February 13, 2008, page 2).
Senator Love then moved that the Senate advise and consent to all of the executive nominations referred to in the foregoing report from the Committee on Confirmations and that the nomination of Terry Miller, as Executive Director, Regional Jail and Correctional Facility Authority, be confirmed.
The question being on the adoption of Senator Love's aforestated motion,
The roll was then taken; and
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Sharpe and Sprouse--2.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared Senator Love's motion had prevailed.
__________
Consideration of the special order of business having been concluded,
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4406, Relating to state board standards for the recommended duration of school bus transportation times for students to and from school.
And has amended same.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 4, 2008;
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. H. B. No. 4406) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
The following amendments to the bill, from the Committee on Finance, were reported by the Clerk, considered simultaneously, and adopted:
On page five, section two, lines eight and nine, by striking out the words "five hundred thousand" and inserting in lieu thereof the words "one million";
On page nine, section two, line seventy-eight, by striking out the word "and";
On page nine, section two, line eighty, after the word "article" by inserting the following: "and
(G) Deposited in the Excess Lottery School Building Debt Services Fund pursuant to section eighteen-a, article twenty-two, chapter twenty-nine of this code.";
And,
On page ten, section two, line one hundred four, by striking out the words "five hundred thousand" and inserting in lieu thereof the words "one million".
The bill (Eng. H. B. No. 4406), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Barnes--1.
Absent: Sharpe--1.
Having been engrossed, the bill (Eng. H. B. No. 4406) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Barnes and Prezioso--2.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4406) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. House Bill No. 4406--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated section §18-2E-5d; and to amend and reenact §18-9D-2 and §18-9D-16 of said code, all relating generally to the School Building Authority and to state board standards for the recommended duration of school bus transportation times for students to and from school; modifying definitions and qualifications for construction projects and major improvement projects; limiting county board authority to establish new routes for certain students to certain schools unless certain requirements met; providing for state board to permit new routes in excess of limit up to certain limit; requiring state board to provide certain technical assistance; requiring countywide comprehensive facilities plans required by School Building Authority to address providing facility infrastructure that avoids excessive transportation times; requiring guidelines for update of transportation times in approved facilities plans; prohibiting project approval by authority when transportation route times for certain students exceed limits unless state board permission is granted.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Barnes and Prezioso--2.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4406) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4715, Making a supplementary appropriation to the Department of Transportation.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. H. B. No. 4715) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 4715) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4715) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4715) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee reports had been filed at 8:34 p.m. tonight:
Eng. Senate Bill No. 72, Expanding Route 2 and Interstate 68 Authority territory.
Eng. Com. Sub. for Senate Bill No. 571, Relating to certain firefighters' workers' compensation benefits.
And,
Eng. Com. Sub. for House Bill No. 3215, Removing the administrative link between Shepherd University and Blue Ridge Community and Technical College.
At the request of Senator Minard, unanimous consent being granted, Senator Minard addressed the Senate regarding the legislative service of the Honorable William R. Sharpe, Jr., a senator from the twelfth district.
Thereafter, at the request of Senator Chafin, and by unanimous consent, the remarks by Senator Minard were ordered extended in the Journal as follows:
SENATOR MINARD: With the close of the Seventy-Eighth Legislature at hand, I am compelled to salute one of my dearest and oldest friends and a close business associate.
When I was 19 years old, my father came home one evening and asked me if I knew a young man named Billy Sharpe. It appeared that a young, 150-pound man had challenged a disorderly and aggressive 250-pound patron of a local establishment who was causing a disturbance. My father said he couldn't believe that with the disadvantages of size and weight that this little kid, "Billy Sharpe", did not back down.
Well, that was 58 years ago. And throughout the years, the Senator from Lewis has never backed down. He never backed down from any man or any challenge. As I look around this body, I can see a lot of those traits in this chamber right now.
I stand here today to recognize the friendship, support, strength of character and humor offered to us through the years by our colleague from the twelfth senatorial district. He has served his friends and neighbors in his district, covering the counties of Harrison, Lewis, Gilmer and Braxton for 44 years--nearly half a century. I am amazed at the number of people this one individual has affected throughout the course of his Legislative service.
Since his election to the Senate in 1960, he has worked with nine governors: Cecil H. Underwood in 1961, William "Wally" Barron, Hulett Smith, Arch Moore--both terms, John D. Rockefeller IV, Gaston Caperton, Cecil H. Underwood in his second term in 1997, Bob Wise and today's Chief Executive, Governor Joe Manchin III.
Within this chamber, he has served nine Senate Presidents: Howard W. Carson, Lloyd G. Jackson, E. Hans McCourt, William T. Brotherton, Jr., Warren McGraw, Dan R. Tonkovich, Larry A. Tucker, Keith Burdette and the Honorable Senator from the seventh senatorial district, who has held that position longer than any of his predecessors.
I actually hoped for an "easy button" which would allow me to calculate how many times the Senator from Lewis County has voted "yea" or "nay" in the last 44 years. The only answer I could retrieve was thousands. So, I estimated it to be approximately 96,000 "yea" or "nay" votes in this chamber, not counting committee votes. And those thousands of votes cast by the twelfth senatorial district Senator have defined the history and growth of our great state.
Throughout the last 44 years, laws have changed our court systems, protected our environment, enhanced our business climate, managed our natural resources, created retirement and health care programs, upgraded our public schools and supported our higher education institutions. He built highways, created and preserved our state parks, provided our citizens with police protection, put away dangerous criminals and protected families and children with the passage of thousands of bills.
While taking on statewide problems, the Senator from Lewis did not neglect his district. Travel up I-79 and check out Stonewall Dam and Stonewall Lake. Right smack dab in the middle of the state is a tourism destination. The jobs in construction, and now maintenance, keep many people employed in his community.
In addition, he was one of the best backroom politicians I have ever known. He knew how to get things done. In 1994, my good friend was honored by his colleagues with the passage of Enrolled Senate Bill No. 111. Unanimously approved, the bill created the William R. Sharpe, Jr. Hospital at Weston. This state-of-the-art facility serves to protect those individuals least likely to care for themselves; it specializes in mental health care. Not many people realize the many acts of generosity practiced by this caring statesman.
Most of us remember his beautiful wife of 55 years, Pauline. While their marriage was not blessed with children, both of these extraordinary people became parents to many, many children throughout the state. The twelfth senatorial district Senator was not one to withhold his help from anyone in dire straits. And Pauline loved him all the more for his concerted efforts to assist the less fortunate.
In one particular case, a business was struggling under a number of mechanic liens. The owner contacted all of the people to whom he owed money. The CEO gathered the creditors in a room and fed them--both good food and an honest explanation of the business's economic standing. He asked for patience and faith in his ability to repay any and all debt. The very first person to stand up from his table was the twelfth senatorial district Senator, who said, "I'll reduce your payment by $10,000 and buy $10,000 in stock." Before the end of the evening, the company was back in business and thrived for the next 20 years.
This example shows how the Senator from Lewis trusts everyone- -only seeing the good in people. This character trait flows over into his legislative duties. He sees us as his family. This chamber is his living room. "Junior Rules" is his den. His call to service was as if his participation was a spiritual mission. His love for this institution is without parallel. If you showed any disrespect for the West Virginia Senate, you had to deal with the wrath of the senator from the twelfth senatorial district. I will truly miss the presence of this spectacular man in this chamber. He is like a brother to me, as well as to so many of you. His lust for life was catching. I missed him the other day when the Mountaineers were recognized in this chamber for their victory in the Fiesta Bowl. I could almost hear his vibrant, talented voice leading us into the chorus of the Mountaineer fight song. Although that was a wonderful day, the Lewis County lawmaker would have made it a memorable occasion.
It has been said that lawmaking is like making sausage--a person may not know all that goes into it. But, I, for one, can guarantee you that the Senator from Lewis was in charge of adding the spice. I will miss his presence in this law-making body. He is truly the salt of the earth and the heart of the Senate.
Thank you for your attention.

Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2008, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 573, Increasing public school teachers' and service personnel annual salaries.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On pages ten through twenty-two, by striking out all of section eight-a and inserting in lieu thereof the following:

§18A-4-8. Employment term and class titles of service personnel; definitions.

(a) The purpose of this section is to establish an employment term and class titles for service personnel. The employment term for service personnel may be no less than ten months. A month is defined as twenty employment days: Provided, That the county board may contract with all or part of these service personnel for a longer term. The beginning and closing dates of the ten-month employment term may not exceed forty-three weeks.
(b) Service personnel employed on a yearly or twelve-month basis may be employed by calendar months. Whenever there is a change in job assignment during the school year, the minimum pay scale and any county supplement are applicable.
(c) Service personnel employed in the same classification for more than the two hundred day minimum employment term shall be paid for additional employment at a daily rate of not less than the daily rate paid for the two hundred day minimum employment term.
(d) No service employee, without his or her agreement, may be required to report for work more than five days per week and no part of any working day may be accumulated by the employer for future work assignments, unless the employee agrees thereto.
(e) If an employee whose regular work week is scheduled from Monday through Friday agrees to perform any work assignments on a Saturday or Sunday, the employee shall be paid for at least one-half day of work for each day he or she reports for work, and if the employee works more than three and one-half hours on any Saturday or Sunday, he or she shall be paid for at least a full day of work for each day.
(f) Custodians, aides, maintenance, office and school lunch employees required to work a daily work schedule that is interrupted, that is, who do not work a continuous period in one day, shall be paid additional compensation equal to at least one eighth of their total salary as provided by their state minimum salary and any county pay supplement, and payable entirely from county funds: Provided, That when engaged in duties of transporting students exclusively, aides shall not be regarded as working an interrupted schedule. Maintenance personnel are defined as personnel who hold a classification title other than in a custodial, aide, school lunch, office or transportation category as provided in section one, article one of this chapter.
(g) Upon the change in classification or upon meeting the requirements of an advanced classification of or by any employee, the employee's salary shall be made to comply with the requirements of this article, and to any county salary schedule in excess of the minimum requirements of this article, based upon the employee's advanced classification and allowable years of employment.
(h) An employee's contract as provided in section five, article two of this chapter shall state the appropriate monthly salary the employee is to be paid, based on the class title as provided in this article and any county salary schedule in excess of the minimum requirements of this article.
(i) The column heads of the state minimum pay scale and class titles, set forth in section eight-a of this article, are defined as follows:
(1) "Pay grade" means the monthly salary applicable to class titles of service personnel;
(2) "Years of employment" means the number of years which an employee classified as service personnel has been employed by a board in any position prior to or subsequent to the effective date of this section and including service in the armed forces of the United States, if the employee were employed at the time of his or her induction. For the purpose of section eight-a of this article, years of employment shall be limited to the number of years shown and allowed under the state minimum pay scale as set forth in section eight-a of this article;
(3) "Class title" means the name of the position or job held by service personnel;
(4) "Accountant I" means personnel employed to maintain payroll records and reports and perform one or more operations relating to a phase of the total payroll;
(5) "Accountant II" means personnel employed to maintain accounting records and to be responsible for the accounting process associated with billing, budgets, purchasing and related operations;
(6) "Accountant III" means personnel who are employed in the county board office to manage and supervise accounts payable and/or payroll procedures;
(7) "Accounts payable supervisor" means personnel who are employed in the county board office who have primary responsibility for the accounts payable function, which may include the supervision of other personnel, and who have either completed twelve college hours of accounting courses from an accredited institution of higher education or have at least eight years of experience performing progressively difficult accounting tasks;
(8) "Aide I" means those personnel selected and trained for teacher-aide classifications such as monitor aide, clerical aide, classroom aide or general aide;
(9) "Aide II" means those personnel referred to in the "Aide I" classification who have completed a training program approved by the state board, or who hold a high school diploma or have received a general educational development certificate. Only personnel classified in an Aide II class title may be employed as an aide in any special education program;
(10) "Aide III" means those personnel referred to in the "Aide I" classification who hold a high school diploma or a general educational development certificate and have completed six semester hours of college credit at an institution of higher education or are employed as an aide in a special education program and have one year's experience as an aide in special education;
(11) "Aide IV" means personnel referred to in the "Aide I" classification who hold a high school diploma or a general educational development certificate and who have completed eighteen hours of state board-approved college credit at a regionally accredited institution of higher education, or who have completed fifteen hours of state board-approved college credit at a regionally accredited institution of higher education and successfully completed an in-service training program determined by the state board to be the equivalent of three hours of college credit;
(12) "Audiovisual technician" means personnel employed to perform minor maintenance on audiovisual equipment, films, supplies and the filling of requests for equipment;
(13) "Auditor" means personnel employed to examine and verify accounts of individual schools and to assist schools and school personnel in maintaining complete and accurate records of their accounts;
(14) "Autism mentor" means personnel who work with autistic students and who meet standards and experience to be determined by the state board: Provided, That if any employee has held or holds an aide title and becomes employed as an autism mentor, the employee shall hold a multiclassification status that includes aide and autism mentor titles, in accordance with section eight-b of this article;
(15) "Braille or sign language specialist" means personnel employed to provide braille and/or sign language assistance to students: Provided, That if any employee has held or holds an aide title and becomes employed as a braille or sign language specialist, the employee shall hold a multiclassification status that includes aide and braille or sign language specialist title, in accordance with section eight-b of this article;
(16) "Bus operator I" means personnel employed to operate school buses and other school transportation vehicles as provided by the state board;
(17) "Bus operator II" means personnel employed to operate school buses and other school transportation vehicles as provided by the state board that have accumulated at least twenty years' service as a bus operator;
~~(17)~~ (18) "Buyer" means personnel employed to review and write specifications, negotiate purchase bids and recommend purchase agreements for materials and services that meet predetermined specifications at the lowest available costs;
~~(18)~~ (19) "Cabinetmaker" means personnel employed to construct cabinets, tables, bookcases and other furniture;
~~(19)~~ (20) "Cafeteria manager" means personnel employed to direct the operation of a food services program in a school, including assigning duties to employees, approving requisitions for supplies and repairs, keeping inventories, inspecting areas to maintain high standards of sanitation, preparing financial reports and keeping records pertinent to food services of a school;
~~(20)~~ (21) "Carpenter I" means personnel classified as a carpenter's helper;
~~(21)~~ (22) "Carpenter II" means personnel classified as a journeyman carpenter;
~~(22)~~ (23) "Chief mechanic" means personnel employed to be responsible for directing activities which ensure that student transportation or other board-owned vehicles are properly and safely maintained;
~~(23)~~ (24) "Clerk I" means personnel employed to perform clerical tasks;
~~(24)~~ (25) "Clerk II" means personnel employed to perform general clerical tasks, prepare reports and tabulations and operate office machines;
~~(25)~~ (26) "Computer operator" means qualified personnel employed to operate computers;
~~(26)~~ (27) "Cook I" means personnel employed as a cook's helper;
~~(27)~~ (28) "Cook II" means personnel employed to interpret menus, to prepare and serve meals in a food service program of a school and shall include personnel who have been employed as a "Cook I" for a period of four years, if the personnel have not been elevated to this classification within that period of time;
~~(28)~~ (29) "Cook III" means personnel employed to prepare and serve meals, make reports, prepare requisitions for supplies, order equipment and repairs for a food service program of a school system;
~~(29)~~ (30) "Crew leader" means personnel employed to organize the work for a crew of maintenance employees to carry out assigned projects;
~~(30)~~ (31) "Custodian I" means personnel employed to keep buildings clean and free of refuse;
~~(31)~~ (32) "Custodian II" means personnel employed as a watchman or groundsman;
~~(32)~~ (33) "Custodian III" means personnel employed to keep buildings clean and free of refuse, to operate the heating or cooling systems and to make minor repairs;
~~(33)~~ (34) "Custodian IV" means personnel employed as head custodians. In addition to providing services as defined in "custodian III", their duties may include supervising other custodian personnel;
~~(34)~~ (35) "Director or coordinator of services" means personnel who are assigned to direct a department or division. Nothing in this subdivision may prohibit professional personnel or professional educators as defined in section one, article one of this chapter, from holding this class title, but professional personnel may not be defined or classified as service personnel unless the professional personnel held a service personnel title under this section prior to holding class title of "director or coordinator of services". Directors or coordinators of service positions shall be classified as either a professional personnel or service personnel position for state aid formula funding purposes and funding for directors or coordinators of service positions shall be based upon the employment status of the director or coordinator either as a professional personnel or service personnel;
~~(35)~~ (36) "Draftsman" means personnel employed to plan, design and produce detailed architectural/engineering drawings;
~~(36)~~ (37) "Electrician I" means personnel employed as an apprentice electrician helper or who holds an electrician helper license issued by the State Fire Marshal;
~~(37)~~ (38) "Electrician II" means personnel employed as an electrician journeyman or who holds a journeyman electrician license issued by the state fire marshal;
~~(38)~~ (39) "Electronic technician I" means personnel employed at the apprentice level to repair and maintain electronic equipment;
~~(39)~~ (40) "Electronic technician II" means personnel employed at the journeyman level to repair and maintain electronic equipment;
~~(40)~~ (41) "Executive secretary" means personnel employed as the county school superintendent's secretary or as a secretary who is assigned to a position characterized by significant administrative duties;
~~(41)~~ (42) "Food services supervisor" means qualified personnel not defined as professional personnel or professional educators in section one, article one of this chapter, employed to manage and supervise a county school system's food service program. The duties would include preparing in-service training programs for cooks and food service employees, instructing personnel in the areas of quantity cooking with economy and efficiency and keeping aggregate records and reports;
~~(42)~~ (43) "Foremen" means skilled persons employed for supervision of personnel who work in the areas of repair and maintenance of school property and equipment;
~~(43)~~ (44) "General maintenance" means personnel employed as helpers to skilled maintenance employees and to perform minor repairs to equipment and buildings of a county school system;
~~(44)~~ (45) "Glazier" means personnel employed to replace glass or other materials in windows and doors and to do minor carpentry tasks;
~~(45)~~ (46) "Graphic artist" means personnel employed to prepare graphic illustrations;
~~(46)~~ (47) "Groundsmen" means personnel employed to perform duties that relate to the appearance, repair and general care of school grounds in a county school system. Additional assignments may include the operation of a small heating plant and routine cleaning duties in buildings;
~~(47)~~ (48) "Handyman" means personnel employed to perform routine manual tasks in any operation of the county school system;
~~(48)~~ (49) "Heating and air conditioning mechanic I" means personnel employed at the apprentice level to install, repair and maintain heating and air conditioning plants and related electrical equipment;
~~(49)~~ (50) "Heating and air conditioning mechanic II" means personnel employed at the journeyman level to install, repair and maintain heating and air conditioning plants and related electrical equipment;
~~(50)~~ (51) "Heavy equipment operator" means personnel employed to operate heavy equipment;
~~(51)~~ (52) "Inventory supervisor" means personnel who are employed to supervise or maintain operations in the receipt, storage, inventory and issuance of materials and supplies;
~~(52)~~ (53) "Key punch operator" means qualified personnel employed to operate key punch machines or verifying machines;
~~(53)~~ (54) "Locksmith" means personnel employed to repair and maintain locks and safes;
~~(54)~~ (55) "Lubrication man" means personnel employed to lubricate and service gasoline or diesel-powered equipment of a county school system;
~~(55)~~ (56) "Machinist" means personnel employed to perform machinist tasks which include the ability to operate a lathe, planer, shaper, threading machine and wheel press. These personnel should also have, the ability to work from blueprints and drawings;
~~(56)~~ (57) "Mail clerk" means personnel employed to receive, sort, dispatch, deliver or otherwise handle letters, parcels and other mail;
~~(57)~~ (58) "Maintenance clerk" means personnel employed to maintain and control a stocking facility to keep adequate tools and supplies on hand for daily withdrawal for all school maintenance crafts;
~~(58)~~ (59) "Mason" means personnel employed to perform tasks connected with brick and block laying and carpentry tasks related to such laying;
~~(59)~~ (60) "Mechanic" means personnel employed who can independently perform skilled duties in the maintenance and repair of automobiles, school buses and other mechanical and mobile equipment to use in a county school system;
~~(60)~~ (61) "Mechanic assistant" means personnel employed as a mechanic apprentice and helper;
~~(61)~~ (62) "Multiclassification" means personnel employed to perform tasks that involve the combination of two or more class titles in this section. In these instances the minimum salary scale shall be the higher pay grade of the class titles involved;
~~(62)~~ (63) "Office equipment repairman I" means personnel employed as an office equipment repairman apprentice or helper;
~~(63)~~ (64) "Office equipment repairman II" means personnel responsible for servicing and repairing all office machines and equipment. Personnel are responsible for parts being purchased necessary for the proper operation of a program of continuous maintenance and repair;
~~(64)~~ (65) "Painter" means personnel employed to perform duties of painting, finishing and decorating of wood, metal and concrete surfaces of buildings, other structures, equipment, machinery and furnishings of a county school system;
~~(65)~~ (66) "Paraprofessional" means a person certified pursuant to section two-a, article three of this chapter to perform duties in a support capacity including, but not limited to, facilitating in the instruction and direct or indirect supervision of pupils under the direction of a principal, a teacher or another designated professional educator: Provided, That no person employed on the effective date of this section in the position of an aide may be reduced in force or transferred to create a vacancy for the employment of a paraprofessional: Provided, however, That if any employee has held or holds an aide title and becomes employed as a paraprofessional, the employee shall hold a multiclassification status that includes aide and paraprofessional titles in accordance with section eight-b of this article: Provided further, That once an employee who holds an aide title becomes certified as a paraprofessional and is required to perform duties that may not be performed by an aide without paraprofessional certification, he or she shall receive the paraprofessional title pay grade;
~~(66)~~ (67) "Payroll supervisor" means personnel who are employed in the county board office who have primary responsibility for the payroll function, which may include the supervision of other personnel, and who have either completed twelve college hours of accounting from an accredited institution of higher education or have at least eight years of experience performing progressively difficult accounting tasks;
~~(67)~~ (68) "Plumber I" means personnel employed as an apprentice plumber and helper;
~~(68)~~ (69) "Plumber II" means personnel employed as a journeyman plumber;
~~(69)~~ (70) "Printing operator" means personnel employed to operate duplication equipment, and as required, to cut, collate, staple, bind and shelve materials;
~~(70)~~ (71) "Printing supervisor" means personnel employed to supervise the operation of a print shop;
~~(71)~~ (72) "Programmer" means personnel employed to design and prepare programs for computer operation;
~~(72)~~ (73) "Roofing/sheet metal mechanic" means personnel employed to install, repair, fabricate and maintain roofs, gutters, flashing and duct work for heating and ventilation;
~~(73)~~ (74) "Sanitation plant operator" means personnel employed to operate and maintain a water or sewage treatment plant to ensure the safety of the plant's effluent for human consumption or environmental protection;
~~(74)~~ (75) "School bus supervisor" means qualified personnel employed to assist in selecting school bus operators and routing and scheduling of school buses, operate a bus when needed, relay instructions to bus operators, plan emergency routing of buses and promoting good relationships with parents, pupils, bus operators and other employees;
~~(75)~~ (76) "Secretary I" means personnel employed to transcribe from notes or mechanical equipment, receive callers, perform clerical tasks, prepare reports and operate office machines;
~~(76)~~ (77) "Secretary II" means personnel employed in any elementary, secondary, kindergarten, nursery, special education, vocational or any other school as a secretary. The duties may include performing general clerical tasks, transcribing from notes or stenotype or mechanical equipment or a sound-producing machine, preparing reports, receiving callers and referring them to proper persons, operating office machines, keeping records and handling routine correspondence. There is nothing implied in this subdivision that would prevent the employees from holding or being elevated to a higher classification;
~~(77)~~ (78) "Secretary III" means personnel assigned to the county board office administrators in charge of various instructional, maintenance, transportation, food services, operations and health departments, federal programs or departments with particular responsibilities of purchasing and financial control or any personnel who have served in a position which meets the definition of "secretary II" or "secretary III" in this section for eight years;
~~(78)~~ (79) "Supervisor of maintenance" means skilled personnel not defined as professional personnel or professional educators as in section one, article one of this chapter. The responsibilities would include directing the upkeep of buildings and shops, issuing instructions to subordinates relating to cleaning, repairs and maintenance of all structures and mechanical and electrical equipment of a board;
~~(79)~~ (80) "Supervisor of transportation" means qualified personnel employed to direct school transportation activities, properly and safely, and to supervise the maintenance and repair of vehicles, buses and other mechanical and mobile equipment used by the county school system;
~~(80)~~ (81) "Switchboard operator-receptionist" means personnel employed to refer incoming calls, to assume contact with the public, to direct and to give instructions as necessary, to operate switchboard equipment and to provide clerical assistance;
(82) "Technology system specialist" means personnel who has expertise in technology fields and meets the education and certification requirements determined by the state board and is employed to support and maintain local area networks, servers, computer workstations and other computer-related systems and technologies;
~~(81)~~ (83) "Truck driver" means personnel employed to operate light or heavy duty gasoline and diesel-powered vehicles;
~~(82)~~ (84) "Warehouse clerk" means personnel employed to be responsible for receiving, storing, packing and shipping goods;
~~(83)~~ (85) "Watchman" means personnel employed to protect school property against damage or theft. Additional assignments may include operation of a small heating plant and routine cleaning duties;
~~(84)~~ (86) "Welder" means personnel employed to provide acetylene or electric welding services for a school system; and
~~(85)~~ (87) "WVEIS data entry and administrative clerk" means personnel employed to work under the direction of a school principal to assist the school counselor or counselors in the performance of administrative duties, to perform data entry tasks on the West Virginia education information system, and to perform other administrative duties assigned by the principal.
(j) In addition to the compensation provided for in section eight-a of this article, for service personnel, each service employee is, notwithstanding any provisions in this code to the contrary, entitled to all service personnel employee rights, privileges and benefits provided under this or any other chapter of this code without regard to the employee's hours of employment or the methods or sources of compensation.
(k) Service personnel whose years of employment exceed the number of years shown and provided for under the state minimum pay scale set forth in section eight-a of this article may not be paid less than the amount shown for the maximum years of employment shown and provided for in the classification in which he or she is employed.
(l) The county boards shall review each service personnel employee job classification annually and shall reclassify all service employees as required by the job classifications. The state superintendent of schools may withhold state funds appropriated pursuant to this article for salaries for service personnel who are improperly classified by the county boards. Further, the state superintendent shall order county boards to correct immediately any improper classification matter and with the assistance of the attorney general shall take any legal action necessary against any county board to enforce the order.
(m) No service employee, without his or her written consent, may be reclassified by class title, nor may a service employee, without his or her written consent, be relegated to any condition of employment which would result in a reduction of his or her salary, rate of pay, compensation or benefits earned during the current fiscal year or which would result in a reduction of his or her salary, rate of pay, compensation or benefits for which he or she would qualify by continuing in the same job position and classification held during that fiscal year and subsequent years.
(n) Any board failing to comply with the provisions of this article may be compelled to do so by mandamus, and is liable to any party prevailing against the board for court costs and the prevailing party's reasonable attorney fee, as determined and established by the court.
(o) Notwithstanding any provisions in this code to the contrary, service personnel who hold a continuing contract in a specific job classification and who are physically unable to perform the job's duties as confirmed by a physician chosen by the employee shall be given priority status over any employee not holding a continuing contract in filling other service personnel job vacancies if qualified as provided in section eight-e of this article.
§18A-4-8a. Service personnel minimum monthly salaries.
(a) The minimum monthly pay for each service employee whose employment is for a period of more than three and one-half hours a day shall be at least the amounts indicated in the "state minimum pay scale pay grade" and the minimum monthly pay for each service employee whose employment is for a period of three and one-half hours or less a day shall be at least one-half the amount indicated in the "state minimum pay scale pay grade" set forth in this section.

STATE MINIMUM PAY SCALE PAY GRADE
Years Exp .	PAY GRADE
	A	B	C	D	E	F	G	H
0	1,577	1,598	1,639	1,691	1,743	1,805	1,836	1,908
1	1,609	1,630	1,671	1,723	1,775	1,837	1,868	1,940
2	1,641	1,662	1,703	1,755	1,807	1,869	1,900	1,972
3	1,673	1,694	1,735	1,787	1,839	1,901	1,932	2,004
4	1,705	1,726	1,767	1,819	1,871	1,933	1,964	2,037
5	1,737	1,758	1,799	1,851	1,903	1,965	1,996	2,069
6	1,769	1,790	1,832	1,883	1,935	1,997	2,028	2,101
7	1,802	1,822	1,864	1,915	1,967	2,029	2,060	2,133
8	1,834	1,854	1,896	1,947	1,999	2,061	2,092	2,165
9	1,866	1,886	1,928	1,980	2,031	2,093	2,124	2,197
10	1,898	1,919	1,960	2,012	2,063	2,126	2,157	2,229
11	1,930	1,951	1,992	2,044	2,095	2,158	2,189	2,261
12	1,962	1,983	2,024	2,076	2,128	2,190	2,221	2,293
13	1,994	2,015	2,056	2,108	2,160	2,222	2,253	2,325
14	2,026	2,047	2,088	2,140	2,192	2,254	2,285	2,357
15	2,058	2,079	2,120	2,172	2,224	2,286	2,317	2,389
16	2,090	2,111	2,152	2,204	2,256	2,318	2,349	2,422
17	2,122	2,143	2,185	2,236	2,288	2,350	2,381	2,454
18	2,154	2,175	2,217	2,268	2,320	2,382	2,413	2,486
19	2,187	2,207	2,249	2,300	2,352	2,414	2,445	2,518
20	2,219	2,239	2,281	2,333	2,384	2,446	2,477	2,550
21	2,251	2,271	2,313	2,365	2,416	2,478	2,509	2,582
22	2,283	2,304	2,345	2,397	2,448	2,511	2,542	2,614
23	2,315	2,336	2,377	2,429	2,481	2,543	2,574	2,646
24	2,347	2,368	2,409	2,461	2,513	2,575	2,606	2,678
25	2,379	2,400	2,441	2,493	2,545	2,607	2,638	2,710
26	2,411	2,432	2,473	2,525	2,577	2,639	2,670	2,742
27	2,443	2,464	2,505	2,557	2,609	2,671	2,702	2,774
28	2,475	2,496	2,537	2,589	2,641	2,703	2,734	2,807
29	2,507	2,528	2,570	2,621	2,673	2,735	2,766	2,839
30	2,540	2,560	2,602	2,653	2,705	2,767	2,798	2,871
31	2,572	2,592	2,634	2,685	2,737	2,799	2,830	2,903
32	2,604	2,624	2,666	2,718	2,769	2,831	2,862	2,935
33	2,636	2,656	2,698	2,750	2,801	2,863	2,895	2,967
34	2,668	2,689	2,730	2,782	2,833	2,896	2,927	2,999
35	2,700	2,721	2,762	2,814	2,866	2,928	2,959	3,031
36	2,732	2,753	2,794	2,846	2,898	2,960	2,991	3,063
37	2,764	2,785	2,826	2,878	2,930	2,992	3,023	3,095
38	2,796	2,817	2,858	2,910	2,962	3,024	3,055	3,127
39	2,828	2,849	2,890	2,942	2,994	3,056	3,087	3,159
40	2,860	2,881	2,922	2,974	3,026	3,088	3,119	3,192

CLASS TITLE

PAY GRADE

Accountant ID
Accountant IIE
Accountant IIIF
Accounts Payable SupervisorG
Aide IA
Aide IIB
Aide IIIC
Aide IVD
Audiovisual TechnicianC
AuditorG
Autism MentorF
Braille or Sign Language SpecialistE
Bus OperatorD
Bus Operator IIE
BuyerF
CabinetmakerG
Cafeteria ManagerE
Carpenter IE
Carpenter IIF
Chief MechanicG
Clerk IB
Clerk IIC
Computer OperatorE
Cook IA
Cook IIB
Cook IIIC
Crew LeaderF
Custodian IA
Custodian IIB
Custodian IIIC
Custodian IVD
Director or Coordinator of ServicesH
DraftsmanD
Electrician IF
Electrician IIG
Electronic Technician IF
Electronic Technician IIG
Executive SecretaryG
Food Services SupervisorG
ForemanG
General MaintenanceC
GlazierD
Graphic ArtistD
GroundsmanB
HandymanB
Heating and Air Conditioning Mechanic IE
Heating and Air Conditioning Mechanic IIG
Heavy Equipment OperatorE
Inventory SupervisorD
Key Punch OperatorB
Licensed Practical NurseF
LocksmithG
Lubrication ManC
MachinistF
Mail ClerkD
Maintenance ClerkC
MasonG
MechanicF
Mechanic AssistantE
Office Equipment Repairman IF
Office Equipment Repairman IIG
PainterE
ParaprofessionalF
Payroll SupervisorG
Plumber IE
Plumber IIG
Printing OperatorB
Printing SupervisorD
ProgrammerH
Roofing/Sheet Metal MechanicF
Sanitation Plant OperatorG
School Bus SupervisorE
Secretary ID
Secretary IIE
Secretary IIIF
Supervisor of MaintenanceH
Supervisor of TransportationH
Switchboard Operator-ReceptionistD
Technology System SpecialistF
Truck DriverD
Warehouse ClerkC
WatchmanB
WelderF
WVEIS Data Entry and Administrative Clerk B
(b) An additional twelve dollars per month shall be added to the minimum monthly pay of each service employee who holds a high school diploma or its equivalent.
(c) An additional eleven dollars per month also shall be added to the minimum monthly pay of each service employee for each of the following:
(1) A service employee who holds twelve college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(2) A service employee who holds twenty-four college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(3) A service employee who holds thirty-six college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(4) A service employee who holds forty-eight college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(5) A service employee who holds sixty college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(6) A service employee who holds seventy-two college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(7) A service employee who holds eighty-four college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(8) A service employee who holds ninety-six college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(9) A service employee who holds one hundred eight college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(10) A service employee who holds one hundred twenty college hours or comparable credit obtained in a trade or vocational school as approved by the state board.
(d) An additional forty dollars per month also shall be added to the minimum monthly pay of each service employee for each of the following:
(1) A service employee who holds an associate's degree;
(2) A service employee who holds a bachelor's degree;
(3) A service employee who holds a master's degree;
(4) A service employee who holds a doctorate degree.
(e) An additional eleven dollars per month shall be added to the minimum monthly pay of each service employee for each of the following:
(1) A service employee who holds a bachelor's degree plus fifteen college hours;
(2) A service employee who holds a master's degree plus fifteen college hours;
(3) A service employee who holds a master's degree plus thirty college hours;
(4) A service employee who holds a master's degree plus forty-five college hours; and
(5) A service employee who holds a master's degree plus sixty college hours.
(f) When any part of a school service employee's daily shift of work is performed between the hours of six o'clock p.m. and five o'clock a.m. the following day, the employee shall be paid no less than an additional ten dollars per month and one half of the pay shall be paid with local funds.
(g) Any service employee required to work on any legal school holiday shall be paid at a rate one and one-half times the employee's usual hourly rate.
(h) Any full-time service personnel required to work in excess of their normal working day during any week which contains a school holiday for which they are paid shall be paid for the additional hours or fraction of the additional hours at a rate of one and one-half times their usual hourly rate and paid entirely from county board funds.
(i) No service employee may have his or her daily work schedule changed during the school year without the employee's written consent and the employee's required daily work hours may not be changed to prevent the payment of time and one-half wages or the employment of another employee.
(j) The minimum hourly rate of pay for extra duty assignments as defined in section eight-b of this article shall be no less than one seventh of the employee's daily total salary for each hour the employee is involved in performing the assignment and paid entirely from local funds: Provided, That an alternative minimum hourly rate of pay for performing extra duty assignments within a particular category of employment may be used if the alternate hourly rate of pay is approved both by the county board and by the affirmative vote of a two-thirds majority of the regular full-time employees within that classification category of employment within that county: Provided, however, That the vote shall be by secret ballot if requested by a service personnel employee within that classification category within that county. The salary for any fraction of an hour the employee is involved in performing the assignment shall be prorated accordingly. When performing extra duty assignments, employees who are regularly employed on a one-half day salary basis shall receive the same hourly extra duty assignment pay computed as though the employee were employed on a full-day salary basis.
(k) The minimum pay for any service personnel employees engaged in the removal of asbestos material or related duties required for asbestos removal shall be their regular total daily rate of pay and no less than an additional three dollars per hour or no less than five dollars per hour for service personnel supervising asbestos removal responsibilities for each hour these employees are involved in asbestos related duties. Related duties required for asbestos removal include, but are not limited to, travel, preparation of the work site, removal of asbestos decontamination of the work site, placing and removal of equipment and removal of structures from the site. If any member of an asbestos crew is engaged in asbestos related duties outside of the employee's regular employment county, the daily rate of pay shall be no less than the minimum amount as established in the employee's regular employment county for asbestos removal and an additional thirty dollars per each day the employee is engaged in asbestos removal and related duties. The additional pay for asbestos removal and related duties shall be payable entirely from county funds. Before service personnel employees may be used in the removal of asbestos material or related duties, they shall have completed a federal Environmental Protection Act approved training program and be licensed. The employer shall provide all necessary protective equipment and maintain all records required by the Environmental Protection Act.
(l) For the purpose of qualifying for additional pay as provided in section eight, article five of this chapter, an aide shall be considered to be exercising the authority of a supervisory aide and control over pupils if the aide is required to supervise, control, direct, monitor, escort or render service to a child or children when not under the direct supervision of certified professional personnel within the classroom, library, hallway, lunchroom, gymnasium, school building, school grounds or wherever supervision is required. For purposes of this section, "under the direct supervision of certified professional personnel" means that certified professional personnel is present, with and accompanying the aide.;
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §18A-4-2, §18A-4-3, §18A-4-8 and §18A-4-8a of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 573--A Bill to amend and reenact §18A-4-2, §18A-4-3, §18A-4-8 and §18A-4-8a of the Code of West Virginia, 1931, as amended, all relating to school personnel salary increases; increasing minimum salaries of public school teachers; increasing salary increment for principals and assistant principals; providing for certain class titles and pay grades; and increasing minimum salaries of school service personnel.
On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 573) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report had been filed at 8:49 p.m. tonight:
Eng. Com. Sub. for House Bill No. 4022, Relating to compensation and expenses of panel attorneys providing public defender services.
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 9, Mandating hunter safety program in public schools.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-8a. Hunter safety orientation program.
(a) The Legislature finds that:
(1) Firearms and hunting are important parts of West Virginia's history, culture and economy;
(2) Unfortunately, the use of firearms while hunting or at any other time can be dangerous when the firearms are not handled in a careful and safe manner; and
(3) Therefore, the opportunity of participating in a hunter safety orientation program should be offered to students in certain grades.
(b) The State Board of Education ~~may~~ shall, with the advice of the State Superintendent of Schools and the Director of the Division of Natural Resources, ~~prescribe an~~ promulgate a rule in accordance with the provisions of article three-b, chapter twenty- nine-a of this code for the implementation of a hunter safety orientation program for use in the public schools of this state. ~~in the safety of firearms.~~ The rule shall include at least the following provisions:
(1) The hunter safety orientation program ~~shall deal with~~ may be offered to students in any of the grade levels sixth through twelfth grades over a two-week period during the school year as part of physical education classes, or as part of the general curriculum offered to students in any of these grade levels, or at the end of the school day;
(2) The hunter safety orientation program is voluntary to students and any student may choose not to participate in the program. If a student chooses not to participate in the program, he or she shall participate in another education activity;
(3) The hunter safety orientation program shall include instruction relating to:
(A) The protection of lives and property against loss or damage as a result of the improper use of firearms.; and
(B) The ~~orientation program shall also include instruction about the~~ proper use of firearms in hunting, sport competition and the care and safety of firearms in the home; ~~and~~
(4) The hunter safety orientation program may ~~utilize~~ use materials prepared by any national nonprofit membership organization which has as one of its purposes the training of people in marksmanship and the safe handling and use of firearms; and
(5) The hunter safety orientation program shall be conducted by an instructor certified by the Division of Natural Resources or who has other training necessary to conduct the program as determined by the state board.
(c) The county superintendent may ~~arrange for such~~ implement the hunter safety orientation program in ~~the safety of firearms and its use~~ accordance with the rule required by this section in each school in the county that includes any of grades six through twelve at which, in the sole judgement of the superintendent, sufficient student interest in program enrollment justifies the program offering and an appropriately certified instructor is available.
(d) The Division of Natural Resources shall issue a certificate of training, required by section thirty-a, article two, chapter twenty of this code, to any student who completes the hunter safety orientation program.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 9--A Bill to amend and reenact §18-2-8a of the Code of West Virginia, 1931, as amended, relating to hunter safety orientation programs in the public schools; providing for state board rule; minimum requirements; permissive implementation; and certification of program completers.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 9, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 9) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 142, Relating to limited expungement of certain criminal records.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §5-1-16a 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 §61-11-26, 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 1. THE GOVERNOR.

§5-1-16a. Expungement of criminal record upon full and unconditional pardon.

(a) Any person who has received a full and unconditional pardon from the Governor, pursuant to the provisions of section eleven, article VII of the Constitution of West Virginia and section sixteen of this article, may petition the circuit court in the county where the conviction was had to have the record of such conviction expunged. The petition shall be served upon the prosecuting attorney of the county where the petition was filed. Any person petitioning the court for an order of expungement shall publish a notice of the time and place that such petition will be made, which notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the county where the petition is filed. The circuit court, upon verification of the act of pardon and after a hearing to determine that good cause exists, may enter an order directing that all public record of the petitioner's conviction be expunged.
(b) The record expunged pursuant to the provisions of this section may not be considered in an application to any educational institution in this state or an application for any licensure required by any professional organization in this state.
(c) No person shall be eligible for expungement pursuant to this section until ~~two years~~ one year after having been pardoned.
(d) No person shall be eligible for expungement pursuant to this section until ~~twenty~~ five years after the discharge of his or her sentence upon the conviction for which he or she was pardoned.
(e) No person shall be eligible for expungement of a record of conviction of first degree murder, as defined in section one, article two, chapter sixty-one of this code; treason, as defined in section one, article one of said chapter; kidnapping, as defined in section fourteen-a, article two of said chapter; or any felony defined in article eight-b of said chapter.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.

§61-11-26. Expungement of certain criminal convictions; procedures; effect.

(a) Any person convicted of a misdemeanor offense or offenses arising from the same transaction committed while he or she was between the ages of eighteen and twenty-six may, pursuant to the provisions of this section, petition the circuit court in which the conviction or convictions occurred for expungement of the conviction or convictions and the records associated therewith. The clerk of the circuit court shall charge and collect in advance the same fee as is charged for instituting a civil action pursuant to subdivision (1), subsection (a), section eleven, article one, chapter fifty-nine of this code for a petition for expungement.
(b) Expungement shall not be available for any conviction of an offense listed in subsection (j) of this section. The relief afforded by this subsection is only available to persons having no other prior or subsequent convictions other than minor traffic violations at the time the petition is filed: Provided, That at the time the petition is filed and during the time the petition is pending, petitioner may not be the subject of an arrest or any other pending criminal proceeding. No person shall be eligible for expungement pursuant to the provisions of subsection (a) of this section until one year after the conviction, completion of any sentence of incarceration or probation, whichever is later in time.
(c) Each petition to expunge a conviction or convictions pursuant to this section shall be verified under oath and include the following information:
(1) Petitioner's current name and all other legal names or aliases by which petitioner has been known at any time;
(2) All of petitioner's addresses from the date of the offense or alleged offense in connection with which an expungement order is sought to date of the petition;
(3) Petitioner's date of birth and social security number;
(4) Petitioner's date of arrest, the court of jurisdiction and criminal complaint, indictment, summons or case number;
(5) The statute or statutes and offense or offenses for which petitioner was charged and of which petitioner was convicted;
(6) The names of any victim or victims, or that there were no identifiable victims;
(7) Whether there is any current order for restitution, protection, restraining order or other no contact order prohibiting the petitioner from contacting the victims or whether there has ever been a prior order for restitution, protection or restraining order prohibiting the petitioner from contacting the victim. If there is such a current order, petitioner shall attach a copy of that order to his or her petition;
(8) The court's disposition of the matter and punishment imposed, if any;
(9) Why expungement is sought, such as, but not limited to, employment or licensure purposes, and why it should be granted;
(10) The steps the petitioner has taken since the time of the offenses toward personal rehabilitation, including treatment, work or other personal history that demonstrates rehabilitation;
(11) Whether petitioner has ever been granted expungement or similar relief regarding a criminal conviction by any court in this state, any other state or by any federal court;
(12) Documentation of the notice publication required by subsection (d) of this section; and
(13) Any other supporting documents, sworn statements, affidavits or other information supporting the petition to expunge.
(d) Any person petitioning the court for an order of expungement pursuant to the provisions of subsection (a) of this section shall publish a notice that such petition is being made, which notice shall include the petitioner's name; the time and identification of the conviction or convictions for which petitioner seeks expungement; that expungement is sought pursuant to section twenty-six, article eleven, chapter sixty-one of this code; the court in which the petition will be filed; and the right of any individual to file a notice of opposition to the petition in the circuit court within ten days of the publication of notice. The notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the county where the petition is filed.
(e) A copy of the petition, with any supporting documentation, shall be served by petitioner pursuant to the rules of the trial court upon the Superintendent of the State Police; the prosecuting attorney of the county of conviction; the chief of police or other executive head of the municipal police department wherein the offense was committed; the chief law-enforcement officer of any other law-enforcement agency which participated in the arrest of the petitioner; the superintendent or warden of any institution in which the petitioner was confined; the magistrate court or municipal court which disposed of the petitioner's criminal charge; and all other state and local government agencies whose records would be affected by the proposed expungement. The prosecutorial office that had jurisdiction over the offense or offenses for which expungement is sought shall serve by first class mail the petition for expungement, accompanying documentation and any proposed expungement order to any identified victims.
(f) Upon receipt of a petition for expungement, or notice pursuant to subsection (d) of this section, the Superintendent of the State Police; the prosecuting attorney of the county of conviction; the chief of police or other executive head of the municipal police department wherein the offense was committed; the chief law-enforcement officer of any other law-enforcement agency which participated in the arrest of the petitioner; the superintendent or warden of any institution in which the petitioner was confined; the magistrate court or municipal court which disposed of the petitioner's criminal charge; all other state and local government agencies whose records would be affected by the proposed expungement and any other interested individual or agency that desires to oppose the expungement shall, within thirty days of receipt of the petition or notice of the petition pursuant to subsection (d) of this section, file a notice of opposition with the court with supporting documentation and sworn statements setting forth the reasons for resisting the petition for expungement. A copy of any notice of opposition with supporting documentation and sworn statements shall be served upon the petitioner in accordance with trial court rules. The petitioner may file a reply no later than ten days after service of any notice of opposition to the petition for expungement.
(g) The burden of proof shall be on the petitioner to prove by clear and convincing evidence that: (1) The conviction or convictions for which expungement is sought are the only convictions against petitioner and that the conviction or convictions are not excluded from expungement by subsection (j) of this section; (2) that the requisite time period has passed since the conviction or convictions or end of the completion of any sentence of incarceration or probation; (3) petitioner has no criminal charges pending against him or her; (4) the expungement is consistent with the public welfare; (5) petitioner has, by his or her behavior since the conviction or convictions, evidenced that he or she has been rehabilitated and is law-abiding; and (6) any other matter deemed appropriate or necessary by the court to make a determination regarding the petition for expungement.
(h) Within sixty days of the filing of a petition for expungement the circuit court shall:
(1) Summarily grant the petition;
(2) Set the matter for hearing; or
(3) Summarily deny the petition if the court determines that the petition is insufficient or, based upon supporting documentation and sworn statements filed in opposition to the petition, the court determines that the petitioner, as a matter of law, is not entitled to expungement.
(i) If the court sets the matter for hearing, all interested parties who have filed a notice of opposition shall be notified. At the hearing, the court may inquire into the background of the petitioner and shall have access to any reports or records relating to the petitioner that are on file with any law-enforcement authority, the institution of confinement, if any, and parole authority or other agency which was in any way involved with the petitioner's arrest, conviction, sentence and post-conviction supervision, including any record of arrest or conviction in any other state or federal court. The court may hear testimony of witnesses and any other matter the court deems proper and relevant to its determination regarding the petition. The court shall enter an order reflecting its ruling on the petition for expungement with appropriate findings of fact and conclusions of law.
(j) No person shall be eligible for expungement of a conviction and the records associated therewith pursuant to the provisions of subsection (a) of this section for any violation involving the infliction of serious physical injury; involving the provisions of article eight-b of this chapter where the petitioner was eighteen years old, or older, at the time the violation occurred and the victim was twelve years of age, or younger, at the time the violation occurred; involving the use or exhibition of a deadly weapon or dangerous instrument; of the provisions of subsection (b) or (c), section nine, article two of this chapter where the victim was a spouse, a person with whom the person seeking expungement had a child in common or with whom the person seeking expungement ever cohabitated prior to the offense; any violation of the provisions of section twenty-eight of said article; a conviction for driving under the influence of alcohol, controlled substances or a conviction for a violation of section three, article four, chapter seventeen-b of this code or section nineteen, article eight of this chapter.
(k) If the court grants the petition for expungement, it shall order the sealing of all records in the custody of the court and expungement of any records in the custody of any other agency or official, including law-enforcement records. Every agency with records relating to the arrest, charge or other matters arising out of the arrest or conviction that is ordered to expunge records shall certify to the court within sixty days of the entry of the expungement order that the required expungement has been completed. All orders enforcing the expungement procedure shall also be sealed.
(l) Upon expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit or other type of application.
(m) Inspection of the sealed records in the court's possession may thereafter be permitted by the court only upon a motion by the person who is the subject of the records or upon a petition filed by a prosecuting attorney that inspection and possible use of the records in question are necessary to the investigation or prosecution of a crime in this state or another jurisdiction. If the court finds that the interests of justice will be served by granting a petition to inspect the sealed record, it may be granted.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 142--A Bill to amend and reenact §5-1-16a of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §61-11-26, all relating to expungement of certain criminal records generally; changing time frames for petitions for expungement after gubernatorial pardons; authorizing expungement of certain criminal convictions committed between the ages of eighteen and twenty-six; petition for expungement fee; time frame for eligibility for expungement; contents of the petition for expungement; service, notice and publication requirements for the petition for expungement; prosecutor and state agency opposition to the petition for expungement; burden of proof; court procedure for hearing and ruling upon the petition; crimes which are not eligible for expungement; and establishing procedures for sealing and later use of expunged records.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 142, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 142) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body to the title of the bill, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 224, Creating Joint Emergency Services Act of 2008.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the title of the bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 224--A Bill to authorize the county commission of Jefferson County to create a joint emergency services agency; legislative findings; and management by a joint emergency services board.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 224, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 224) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 287, Establishing West Virginia Research Trust Fund.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page nine, section two, line fifty-nine, by striking out the word "and";
On page nine, section two, line sixty-two, after the word "chapter" by changing the period to a semicolon and inserting the following: and
(10) "State college" means the West Virginia School of Osteopathic Medicine, Bluefield State College, Concord University, Fairmont State University, Glenville State College, Shepherd University, West Liberty State College or West Virginia State University.;
On page ten, section three, lines twenty-five through thirty- five, by striking out the remainder of the subsection and inserting in lieu thereof the words "to provide matching research funds to state colleges in accordance with the provisions of section ten of this article.";
On page sixteen, section six, line sixteen, by striking out the word "or";
On page sixteen, section six, after line eighteen, by inserting a new paragraph, designated paragraph (F), to read as follows:
"(F) Gerontology; or";
On page twenty-three, section ten, line eight, after the word "two" by striking out the comma and the words "article one of this chapter" and inserting in lieu thereof the words "of this article";
And,
On page twenty-six, section eleven, line twenty-four, by striking out the words "from the research endowments" and inserting in lieu thereof the words "of the research endowment proceeds".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 287, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 287) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 287) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report had been filed at 8:55 p.m. tonight:
Eng. Com. Sub. for House Bill No. 4402, Relating to compulsive gambling.
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 699, Establishing OxyContin Asset Forfeiture Fund.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page six, after section two, by inserting a new section, designated section two-a, to read as follows:
§4-11B-2a. Grant program.
West Virginia's Partnership to Promote Community Well-Being, created by Executive Order No. 8-04, to be a planning body for substance abuse prevention and intervention, shall be responsible for establishing a long-term strategic plan that incorporates elements of prevention, substance abuse treatment and enforcement. In addition, the partnership shall provide oversight as determined by the West Virginia State Police, establish a grant application process and determine the recipients of Drug-Free West Virginia grants supported by asset forfeiture funds to be used to support successful models of drug prevention, substance abuse treatment and enforcement strategies that are working in West Virginia and to fund replication grants of successful programs. Four million dollars shall be directed to the Drug-Free West Virginia grant program and one hundred thousand dollars shall be directed to the Partnership To Promote Community Well-being upon approval of the U. S. Department of Justice in compliance with their Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies.;
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §4-11B-1, §4-11B-2, §4- 11B-2a, §4-11B-3 and §4-11B-4, all to read as follows:;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 699--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §4-11B-1, §4-11B-2,§4-11B-2a, §4-11B-3 and §4- 11B-4, all relating to the establishment of the OxyContin Asset Forfeiture Fund; making legislative findings; providing that moneys in the fund be appropriated by the Legislature; providing that the Partnership to Promote Community Well-Being will develop an application process and distribute Drug-Free West Virginia grants; limiting expenditures; and requiring annual reports.
On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for S. B. No. 699) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect July 1, 2008, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 309, Increasing Secretary of Transportation and Commissioner of Highways salary when one person serves as both.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page three, section two-a, line thirty-four, by striking out the words "Director, Division of Personnel, seventy thousand dollars;";
And,
One page five, section two-a, line eighty-four, after the word "dollars;" by inserting the words "Director, Division of Personnel, seventy thousand dollars;".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 309, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Barnes, Hunter and Unger--3.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 309) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Barnes, Hunter and Unger--3.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 309) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 417, Authorizing Department of Revenue promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF REVENUE TO PROMULGATE LEGISLATIVE RULES.

§64-7-1. Alcohol Beverage Control Commission.
(a) The legislative rule filed in the State Register on the twenty-sixth day of July, two thousand seven, authorized under the authority of section six, article three-a, chapter sixty of this code, modified by the Alcohol Beverage Control Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of January, two thousand eight, relating to the Alcohol Beverage Control Commission (retail licensee operations, 175 CSR 1), is authorized.
(b) The legislative rule filed in the State Register on the twenty-sixth day of July, two thousand seven, authorized under the authority of section twenty-three, article eight, chapter sixty of this code, modified by the Alcohol Beverage Control Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of January, two thousand eight, relating to the Alcohol Beverage Control Commission (farm wineries, 175 CSR 3), is authorized.
(c) The legislative rule filed in the State Register on the twenty-sixth day of July, two thousand seven, authorized under the authority of section six, article three-a, chapter sixty of this code, modified by the Alcohol Beverage Control Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of January, two thousand eight, relating to the Alcohol Beverage Control Commission (sale of wine, 175 CSR 4), is authorized.
§64-7-2. Insurance Commissioner.
(a) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (guaranteed loss ratios as applied to individual sickness and accident insurance policies, 114 CSR 31), is authorized.
(b) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the Insurance Commissioner (mental health parity, 114 CSR 64), is authorized.
(c) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (recognition of preferred mortality tables for use in determining minimum reserve liabilities, 114 CSR 69A), is authorized.
(d) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (replacement of life insurance policies and annuity contracts, 114 CSR 8), is authorized.
(e) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (military sales practices, 114 CSR 82), is authorized.
(f) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (suitability in annuity transactions, 114 CSR 11B), is authorized.
(g) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (life insurance disclosures, 114 CSR 11A), is authorized.
(h) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (life insurance illustrations, 114 CSR 11C), with the following amendment:
On page 17, section 11, by striking section 11 in its entirety and inserting in lieu thereof the following:
§114-11C-11. Failure to comply.
A violation of paragraphs 5.2 or 5.3, section 5 of this rule by an insurer constitutes a statement or omission which misrepresents the benefits, advantages, conditions or terms of a life insurance policy.
(i) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the Insurance Commissioner (examiners and examinations, 114 CSR 15), is authorized.
(j) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the Insurance Commissioner (licensing and conduct of insurance producers, agencies and solicitors, 114 CSR 2), is authorized.
(k) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (fingerprinting requirements for applications for insurance producer license, 114 CSR 2A), is authorized.
(l) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventh day of December, two thousand seven, relating to the Insurance Commissioner (advertisement of life insurance and annuities, 114 CSR 11), is authorized.
§64-7-3. Lottery Commission.
The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section four, article twenty-two-c, chapter twenty-nine of this code, modified by the Lottery Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-sixth day of December, two thousand seven, relating to the Lottery Commission (racetrack table games, 179 CSR 8), is authorized with the following amendments:
On page twelve, by striking out subsection 2.65 in its entirety;
On page fifteen, by striking subsection 3.11 in its entirety and renumbering the subsequent subsections accordingly;
On page seventeen, by striking out section 179-8-9 in its entirety and renumbering the subsequent sections accordingly;
And,
On page ninety-four, section one hundred ten, by striking out the words "section eleven" and inserting in lieu thereof the words "sections one hundred fourteen through one hundred twenty-six".
§64-7-4. State Tax Department.
The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand seven, authorized under the authority of section five-s, article ten, chapter eleven of this code, modified by the State Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-ninth day of December, two thousand seven, relating to the State Tax Department (exchange of information agreement between the Commissioner of the Tax Division of the Department of Revenue and the Commissioner of the Division of Labor of the Department of Commerce, the Commissioner of the Insurance Commission of the Department of Revenue, the Commissioner of the Division of Motor Vehicles of the Department of Transportation, the Commissioner of the Bureau of Employment Programs and the Office of the Governor, 110 CSR 50D), is authorized.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 417, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Facemyer, Fanning, Foster, Green, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Edgell and Guills--2.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 417) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Facemyer, Fanning, Foster, Green, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Edgell and Guills--2.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 417) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 467, Reauthorizing Dam Safety Rehabilitation Revolving Fund.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page eleven, section fifteen, line fifty-four, by striking out the word "seventeen" and inserting the word "eighteen";
On page fourteen, section nineteen, lines one through three, by striking out the words "Under the direction of the department, the authority shall establish, administer and manage" and inserting in lieu thereof the words "There is created in the State Treasury";
On page sixteen, section nineteen, line thirty-three, by striking out the word "may" and inserting in lieu thereof the word "shall";
On page seventeen, section nineteen, line forty-eight, by striking out the word "may" and inserting in lieu thereof the word "shall";
And,
On page seventeen, section nineteen, lines fifty-two through sixty-six, by striking out all of subsection (f) and inserting in lieu thereof a new subsection (f), to read as follows:
(f) Disbursements from the fund shall be authorized for payment in writing by the director of the authority or the director's designee. Moneys in the fund shall not be commingled with other money of the authority.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 467, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 467) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 481, Authorizing physician assistants to conduct mental health hygiene process examinations.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page five, section two, line sixty-seven, after the word "worker" by inserting a comma and the words "physician assistant".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 481, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 481) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 535, Modifying certain penalties for DUI.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §17B-4-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §17C-5-2 and §17C-5-7 of said code be amended and reenacted; and that §17C-5A-1, §17C-5A-2, §17C-5A-3 and §17C-5A-3a of said code be amended and reenacted, all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 4. VIOLATION OF LICENSE PROVISIONS.

§17B-4-3. Driving while license suspended or revoked; driving while license revoked for driving under the influence of alcohol, controlled substances or drugs, or while having alcoholic concentration in the blood of eight hundredths of one percent or more, by weight, or for refusing to take secondary chemical test of blood alcohol contents.

(a) Except as otherwise provided in subsection (b) or (d) of this section, any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully suspended or revoked by this state or any other jurisdiction is, for the first offense, guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars; for the second offense, the person is guilty of a misdemeanor and, upon conviction thereof, ~~shall be confined in a county or regional jail for a period of ten days and, in addition to the mandatory jail sentence,~~ shall be fined not less than one hundred dollars nor more than five hundred dollars; for the third or any subsequent offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in ~~a county or regional~~ jail for ~~six months~~ a period of not less than thirty days nor more than ninety days and ~~in addition to the mandatory jail sentence,~~ shall be fined not less than one hundred fifty dollars nor more than five hundred dollars.
(b) Any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully revoked for driving under the influence of alcohol, controlled substances or other drugs, or any combination thereof, or for driving while having an alcoholic concentration in his or her blood of eight hundredths of one percent or more, by weight, or for refusing to take a secondary chemical test of blood alcohol content, is, for the first offense, guilty of a misdemeanor and, upon conviction thereof, shall be confined in ~~a county or regional~~ jail for a period of not less than thirty days nor more than six months and ~~in addition to the mandatory jail sentence,~~ shall be fined not less than one hundred dollars nor more than five hundred dollars; for the second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in ~~a county or regional~~ jail for a period of not less than six months nor more than one year and ~~in addition to the mandatory jail sentence,~~ shall be fined not less than one thousand dollars nor more than three thousand dollars; for the third or any subsequent offense, the person 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 three years and, in addition to the mandatory prison sentence, shall be fined not less than three thousand dollars nor more than five thousand dollars.
(c) Upon receiving a record of the first or subsequent conviction of any person under subsection (b) of this section upon a charge of driving a vehicle while the license of ~~such~~ that person was lawfully suspended or revoked, the division shall extend the period of ~~such~~ the suspension or revocation for an additional period of ~~one year from and after the date such person would otherwise have been entitled to apply for a new license.~~ six months which may be served concurrently with any other suspension or revocation. Upon receiving a record of the second or subsequent conviction of any person under subsection (a) of this section upon a charge of driving a vehicle while the license of ~~such~~ that person was lawfully suspended or revoked, the division shall extend the period of ~~such~~ the suspension or revocation for an additional period of ~~one year from and after the date such person would otherwise have been entitled to apply for a new license.~~ ninety days which may be served concurrently with any other suspension or revocation.
(d) Any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully suspended for driving 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, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a ~~county or regional~~ jail for twenty-four hours or shall be fined not less than fifty dollars nor more than five hundred dollars, or both.
Upon receiving a record of a first or subsequent conviction under this subsection for a charge of driving a vehicle while the license of that person was lawfully suspended or revoked, the division shall extend the period of the suspension or revocation for an additional period of six months which may be served concurrently with any other suspension or revocation.
(e) An order for home detention by the court pursuant to the provisions of article eleven-b, chapter sixty-two of this code may be used as an alternative sentence to any period of incarceration required by this section.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
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~~ While 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 two years 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~~ While 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 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~~ While 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 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, but less than fifteen hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for ~~not less than one day nor more than~~ up to 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. A person sentenced pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(e) Any person who drives a vehicle in this state while he or she has an alcohol concentration in his or her blood of fifteen hundredths of one percent or more, by weight, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than two days 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 two hundred dollars nor more than one thousand dollars. A person sentenced pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
~~(e)~~ (f) 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 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. A person sentenced pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
~~(f)~~ (g) 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 jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
~~(g)~~ (h) 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 jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
~~(h)~~ (i) 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 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 Motor Vehicle Alcohol Test and Lock Program as provided 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 this subsection or subsection (a), (b), (c), (d), (e), (f), (g) or (h) of this section may not also be charged with an offense under this subsection arising out of the same transaction or occurrence.
~~(i)~~ (j) 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~~ while 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 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)~~ (k) 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 jail for not less than six months nor more than one year and the court may, in its discretion, impose a fine of not less than one thousand dollars nor more than three thousand dollars.
~~(k)~~ (l) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the third or any subsequent offense under this section, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than three years and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.
~~(l)~~ (m) For purposes of subsections ~~(j) and~~ (k) and (l) 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) or (g) 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) or (h) of this section, which offense occurred within the ten-year period immediately preceding the date of arrest in the current proceeding.
~~(m)~~ (n) 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)~~ (o) The fact that any person charged with a violation of subsection (a), (b), (c), (d), or (e) or (f) of this section, or any person permitted to drive as described under subsection ~~(f) or~~ (g) or (h) 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) or (h) of this section.
~~(o)~~ (p) For purposes of this section, the term "controlled substance" has the meaning ascribed to it in chapter sixty-a of this code.
~~(p)~~ (q) The sentences provided ~~herein~~ in this section upon conviction for a violation of this article are mandatory and ~~may not be~~ are not 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.

§17C-5-7. Refusal to submit to tests; revocation of license or privilege; consent not withdrawn if person arrested is incapable of refusal; hearing.

(a) If any person under arrest as specified in section four of this article refuses to submit to any secondary chemical test, the tests shall not be given: Provided, That prior to ~~such~~ the refusal, the person is given an oral warning and a written statement advising him or her that his or her refusal to submit to the secondary test finally designated will result in the revocation of his or her license to operate a motor vehicle in this state for a period of at least forty-five days and up to life; If a person initially refuses to submit to the designated secondary chemical test after being informed in writing of the consequences of such refusal, he shall be informed orally and in writing that after fifteen minutes said and that after fifteen minutes following the warnings the refusal ~~shall be deemed to be~~ is considered final. ~~and the~~ The arresting officer ~~shall~~ after ~~said~~ that period of time expires ~~have~~ has no further duty to provide the person with an opportunity to take the secondary test. The officer shall, within forty-eight hours of ~~such~~ the refusal, sign and submit to the Commissioner of Motor Vehicles a written statement of the officer that: (1) He or she had reasonable grounds to believe ~~such~~ the person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) ~~such~~ the person was lawfully placed under arrest for an offense relating to driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (3) ~~such~~ the person refused to submit to the secondary chemical test finally designated in the manner provided in section four of this article; and (4) ~~such~~ the person was given a written statement advising him or her that his or her license to operate a motor vehicle in this state would be revoked for a period of at least ~~one year~~ forty-five days and up to life if he or she refused to submit to the secondary test finally designated in the manner provided in section four of this article. The signing of the statement required to be signed by this section ~~shall constitute~~ constitutes an oath or affirmation by the person signing ~~such~~ the statement that the statements contained ~~therein~~ in the statement are true and that any copy filed is a true copy. ~~Such~~ 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. Upon receiving the statement the commissioner shall make and enter an order revoking ~~such~~ the person's license to operate a motor vehicle in this state for the period prescribed by this section.
For the first refusal to submit to the designated secondary chemical test, the commissioner shall make and enter an order revoking ~~such~~ the person's license to operate a motor vehicle in this state for a period of one year or forty-five days, with an additional one year of participation in the Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions of section three-a, article five-a of this chapter: Provided, That a person revoked for driving while under the influence of drugs is not eligible to participate in the Motor Vehicle Alcohol Test and Lock Program. The application for participation in the Motor Vehicle Alcohol Test and Lock Program shall be considered to be a waiver of the hearing provided in section two of said article. If the commissioner has previously revoked the person's license under the provisions of this section, the commissioner shall, for the refusal to submit to the designated secondary chemical test, make and enter an order revoking ~~such~~ the person's license to operate a motor vehicle in this state for a period of ten years: Provided, That the license may be reissued in five years in accordance with the provisions of section three, article five-a of this chapter. If the commissioner has previously revoked the person's license more than once under the provisions of this section, the commissioner shall, for the refusal to submit to the designated secondary chemical test, make and enter an order revoking ~~such~~ the person's license to operate a motor vehicle in this state for a period of life: ~~Provided,~~ ~~That the license may be reissued in ten years in accordance with the provisions of section three, article five-a of this chapter~~. A copy of each ~~such~~ order shall be forwarded to ~~such~~ the person by registered or certified mail, return receipt requested, and shall contain the reasons for the revocation and shall specify the revocation period imposed pursuant to this section. ~~No such~~ A revocation shall not become effective until ten days after receipt of the copy of ~~such~~ the order. Any person who is unconscious or who is otherwise in a condition rendering him or her incapable of refusal shall be ~~deemed~~ considered not to have withdrawn his or her consent for a test of his or her blood, breath or urine as provided in section four of this article and the test may be administered although ~~such~~ the person is not informed that his or her failure to submit to the test will result in the revocation of his or her license to operate a motor vehicle in this state for the period provided for in this section.
A revocation ~~hereunder~~ under this section shall run concurrently with the period of any suspension or revocation imposed in accordance with other provisions of this code and growing out of the same incident which gave rise to the arrest for driving a motor vehicle while under the influence of alcohol, controlled substances or drugs and the subsequent refusal to undergo the test finally designated in accordance with the provisions of section four of this article.
(b) For the purposes of this section, where reference is made to previous suspensions or revocations under this section, the following types of suspensions or revocations shall also be regarded as suspensions or revocations under this section:
(1) Any suspension or revocation on the basis of a conviction under a municipal ordinance of another 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 section two of this article for conduct which occurred on or after the tenth day of June ~~tenth~~, one thousand nine hundred eighty-three; and
(2) Any revocation under the provisions of section one or two, article five-a of this chapter for conduct which occurred on or after the tenth day of June ~~tenth~~, one thousand nine hundred eighty-three.
(c) A person whose license to operate a motor vehicle in this state has been revoked shall be afforded an opportunity to be heard, in accordance with the provisions of section two, article five-a of this chapter.

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 required under the provisions of article five of this chapter 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~~ investigating 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 of the ~~arrest~~ conclusion of the investigation the name and address of the person ~~so arrested~~ believed to have committed the offense. 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~~ constitutes an oath or affirmation by the person signing the statement that the statements contained ~~therein~~ in the statement 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~~ determines that a person ~~was arrested for~~ committed 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~~ committed the offense he or she was under the influence of alcohol, controlled substances or drugs, the commissioner shall make and enter an order revoking or suspending 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 A revocation or suspension shall not 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 br signed by this subsection ~~shall constitute~~ constitutes an oath or affirmation by the person signing ~~such~~ the statement that the statements contained ~~therein~~ in the statement are true and that any copy filed is a true copy. ~~Such~~ 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.
(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 test 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) or (h), 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) or (h), 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~~ the 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 A suspension or revocation shall not become effective until ten days after receipt of a copy of ~~such~~ the order.
§17C-5A-2. Hearing; revocation; review.
(a) Upon the written request of a person whose license to operate a motor vehicle in this state has been revoked or suspended under the provisions of section one of this article or section seven, article five of this chapter, the Commissioner of the Division of Motor Vehicles shall stay the imposition of the period of revocation or suspension and afford the person an opportunity to be heard. The written request must be filed with the commissioner in person or by registered or certified mail, return receipt requested, within thirty calendar days after receipt of a copy of the order of revocation or suspension or no hearing will be granted. The hearing shall be before the commissioner or a hearing examiner retained by the commissioner who shall rule on evidentiary issues and submit proposed findings of fact and conclusions of law for the consideration of the commissioner and all of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply. The commissioner may reject or modify the hearing examiner's proposed findings of fact and conclusions of law, in writing, and only if:
(1) There is an error of law;
(2) They are clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(3) They are arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(b) The hearing shall be held at an office of the division located in or near the county ~~wherein~~ in which the arrest was made in this state or at some other suitable place in the county ~~wherein~~ in which the arrest was made if an office of the division is not available.
~~(b)~~ (c) Any ~~such~~ hearing shall be held within one hundred eighty days after the date upon which the commissioner received the timely written request ~~therefor~~ for a hearing unless there is a postponement or continuance. The commissioner may postpone or continue any hearing on the commissioner's own motion or upon application for each person for good cause shown. The commissioner shall adopt and implement by a procedural rule written policies governing the postponement or continuance of any ~~such~~ hearing on the commissioner's own motion or for the benefit of any law- enforcement officer or any person requesting the hearing and ~~such~~ the policies shall be enforced and applied to all parties equally. For the purpose of conducting the hearing, the commissioner ~~shall have the power and authority to~~ may issue subpoenas and subpoenas duces tecum in accordance with the provisions of section one, article five, chapter twenty-nine-a of this code: Provided, That the notice of hearing to the appropriate law-enforcement officers by registered or certified mail, return receipt requested, ~~shall constitute~~ constitutes a subpoena to appear at the hearing without the necessity of payment of fees by the Division of Motor Vehicles.
~~(c)~~ (d) Any investigating officer who submits a statement pursuant to section one of this article that results in a hearing pursuant to this section shall not attend the hearing on the subject of that affidavit unless requested to do so by the party whose license is at issue in that hearing or by the commissioner. The hearing request form shall clearly and concisely inform a person seeking a hearing of the fact that the investigating officer will only attend the hearing if requested to do so and provide for a box to be checked requesting the investigating officer's attendance. The language shall appear prominently on the hearing request form. The Division of Motor Vehicles is solely responsible for causing the attendance of the investigating officers. Law- enforcement officers shall be compensated for the time expended in their travel and appearance before the commissioner by the law- enforcement agency by whom they are employed at their regular rate if they are scheduled to be on duty during said time or at their regular overtime rate if they are scheduled to be off duty during said time. If the party whose license is at issue does not request the investigating officer to attend the hearing, the commissioner shall consider the written statement, test results and any other information submitted by the investigating officer pursuant to section one of this article in that officer's absence.
~~(d)~~ (e) The principal question at the hearing shall be whether the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or did refuse to submit to the 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.
The commissioner may propose a legislative rule in compliance with the provisions of article three, chapter twenty-nine-a of this code which ~~rule~~ may provide that if a person accused of driving a motor vehicle while under the influence of alcohol, controlled substances or drugs, or accused of driving a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or accused 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, intends to challenge the results of any secondary chemical test of blood, breath or urine under section seven, article five of this chapter, or intends to cross-examine the individual or individuals who administered the test or performed the chemical analysis, the person shall, within an appropriate period of time prior to the hearing, notify the commissioner in writing of ~~such~~ his or her intention. The rule may provide that when there is a failure to comply with the notice requirement, the results of the secondary test, if any, shall be admissible as though the person and the commissioner had stipulated the admissibility of ~~such~~ the evidence. Any ~~such~~ rule shall provide that the rule shall not be invoked in the case of a person who is not represented by counsel unless the communication from the commissioner to the person establishing a time and place for the hearing also informed the person of the consequences of the person's failure to timely notify the commissioner of the person's intention to challenge the results of the secondary chemical test or cross-examine the individual or individuals who administered the test or performed the chemical analysis.
~~(e)~~ (f) In the case of a hearing ~~wherein~~ in which a person is accused of driving a motor vehicle while under the influence of alcohol, controlled substances or drugs, or accused of driving a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or accused 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 specific findings as to: (1) Whether the ~~arresting~~ investigating law-enforcement officer had reasonable grounds to believe the person to have been driving while under the influence of alcohol, controlled substances or drugs, or while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or to have been 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; (2) whether the person ~~was lawfully placed under arrest for~~ committed an offense involving driving under the influence of alcohol, controlled substances or drugs, or was lawfully taken into custody for the purpose of administering a secondary test; and (3) whether the tests, if any, were administered in accordance with the provisions of this article and article five of this chapter.
~~(f)~~ (g) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's 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, the commissioner also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person and was committed in reckless disregard of the safety of others and if the commissioner further finds that the influence of alcohol, controlled substances or drugs or the alcohol concentration in the blood was a contributing cause to the death, the commissioner shall revoke the person's license for a period of ten years: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
~~(g)~~ (h) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the commissioner also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person, the commissioner shall revoke the person's license for a period of five years: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
~~(h)~~ (i) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the commissioner also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused bodily injury to a person other than himself or herself, the commissioner shall revoke the person's license for a period of two years: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
~~(i)~~ (j) If the commissioner finds by a preponderance of the evidence that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, ~~or finds that the person, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, did drive a motor vehicle,~~ but less than fifteen hundredths of one percent or more, by weight, or finds that the person knowingly permitted the person's vehicle to be driven by another person who was under the influence of alcohol, controlled substances or drugs, or knowingly permitted the person's vehicle to be driven by another person who had an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight the commissioner shall revoke the person's license for a period of six months or a period of fifteen days with an additional one hundred twenty days of participation in the Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions of section three-a of this article: Provided, That a person whose license is revoked for driving while under the influence of drugs is not eligible to participate in the Motor Vehicle Alcohol Test and Lock Program: Provided, however, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided~~, however~~ further, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(k) (1) If in addition to finding by a preponderance of the evidence that the person did drive a motor vehicle while under the influence of alcohol, controlled substance or drugs, the commissioner also finds by a preponderance of the evidence that the person did drive a motor vehicle while having an alcohol concentration in the person's blood of fifteen hundredths of one percent or more, by weight, the commissioner shall revoke the person's license for a period of forty-five days with an additional two hundred seventy days of participation in the Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions of section three-a of this article: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(2) If a person whose license is revoked pursuant to subdivision (1) of this subsection proves by clear and convincing evidence that they do not own a motor vehicle upon which the alcohol test and lock device may be installed or is otherwise incapable of participating in the Motor Vehicle Alcohol Test and Lock Program, the period of revocation shall be one hundred eighty days: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
~~(j)~~ (l) If, in addition to a finding that the person 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, the commissioner also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person, and if the commissioner further finds that the alcohol concentration in the blood was a contributing cause to the death, the commissioner shall revoke the person's license for a period of five years: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
~~(k)~~ (m) If, in addition to a finding that the person 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, the commissioner also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused bodily injury to a person other than himself or herself, and if the commissioner further finds that the alcohol concentration in the blood was a contributing cause to the bodily injury, the commissioner shall revoke the person's license for a period of two years: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
~~(l)~~ (n) If the commissioner finds by a preponderance of the evidence that the person 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, the commissioner shall suspend the person's license for a period of sixty days: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article, the period of revocation shall be for one year, or until the person's twenty-first birthday, whichever period is longer.
~~(m)~~ (o) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the commissioner also finds by a preponderance of the evidence that the person when so driving did have on or within the motor vehicle another person who has not reached his or her sixteenth birthday, the commissioner shall revoke the person's license for a period of one year: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
~~(n)~~ (p) For purposes of this section, where reference is made to previous suspensions or revocations under this section, the following types of criminal convictions or administrative suspensions or revocations shall also be regarded as suspensions or revocations under this section or section one of this article:
(1) Any administrative revocation under the provisions of the prior enactment of this section for conduct which occurred within the ten years immediately preceding the date of arrest;
(2) Any suspension or revocation on the basis of a conviction under a municipal ordinance of another 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 section two, article five of this chapter for conduct which occurred within the ten years immediately preceding the date of arrest; or
(3) Any revocation under the provisions of section seven, article five of this chapter for conduct which occurred within the ten years immediately preceding the date of arrest.
~~(o)~~ (q) In the case of a hearing ~~wherein~~ in which a person is accused of refusing to submit to a designated secondary test, the commissioner shall make specific findings as to: (1) Whether the arresting law-enforcement officer had reasonable grounds to believe the person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) whether the person ~~was lawfully placed under arrest for~~ committed an offense relating to driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (3) whether the person refused to submit to the secondary test finally designated in the manner provided in section four, article five of this chapter; and (4) whether the person had been given a written statement advising the person that the person's license to operate a motor vehicle in this state would be revoked for at least ~~one year~~ forty-five days and up to life if the person refused to submit to the test finally designated in the manner provided in said section.
~~(p)~~ (r) If the commissioner finds by a preponderance of the evidence that: (1) The ~~arresting law-enforcement~~ investigating officer had reasonable grounds to believe the person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) the person ~~was lawfully placed under arrest for~~ committed an offense relating to driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (3) the person refused to submit to the secondary chemical test finally designated; and (4) the person had been given a written statement advising the person that the person's license to operate a motor vehicle in this state would be revoked for a period of at least ~~one year~~ forty-five days and up to life if the person refused to submit to the test finally designated, the commissioner shall revoke the person's license to operate a motor vehicle in this state for the periods specified in section seven, article five of this chapter. The revocation period prescribed in this subsection shall run concurrently with any other revocation period ordered under this section or section one of this article arising out of the same occurrence.
~~(q)~~ (s) If the commissioner finds to the contrary with respect to the above issues the commissioner shall rescind his or her earlier order of revocation or shall reduce the order of revocation to the appropriate period of revocation under this section or section seven, article five of this chapter. A copy of the commissioner's order made and entered following the hearing shall be served upon the person by registered or certified mail, return receipt requested. During the pendency of any ~~such~~ hearing, the revocation of the person's license to operate a motor vehicle in this state shall be stayed.
If the commissioner shall after hearing make and enter an order affirming the commissioner's earlier order of revocation, the person shall be entitled to judicial review as set forth in chapter twenty-nine-a of this code. The commissioner may not stay enforcement of the order. The court may grant a stay or supersede as of the order only upon motion and hearing, and a finding by the court upon the evidence presented, that there is a substantial probability that the appellant shall prevail upon the merits and the appellant will suffer irreparable harm if the order is not stayed: Provided, That in no event shall the stay or supersede as of the order exceed one hundred fifty days. Notwithstanding the provisions of section four, article five of said chapter, the commissioner may not be compelled to transmit a certified copy of the file or the transcript of the hearing to the circuit court in less than sixty days.
~~(r)~~ (t) In any revocation or suspension pursuant to this section, if the driver whose license is revoked or suspended had not reached the driver's eighteenth birthday at the time of the conduct for which the license is revoked or suspended, the driver's license shall be revoked or suspended until the driver's eighteenth birthday or the applicable statutory period of revocation or suspension prescribed by this section, whichever is longer.
~~(s)~~ (u) Funds for this section's hearing and appeal process may be provided from the Drunk Driving Prevention Fund, as created by section forty-one, article two, chapter fifteen of this code, upon application for ~~such~~ the funds to the Commission on Drunk Driving Prevention.
§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~~ also 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~~ Department of Health and Human Resources, Division of Alcoholism and Drug Abuse, 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.
(b) 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)~~ (c) (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) the 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 Alcoholism 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: ~~Provided,~~ That on and after the first day of July, two thousand seven, any unexpended balance remaining in the driver's rehabilitation fund shall be transferred to the Motor Vehicle Fees Fund created under the provisions of section twenty-one, article two, chapter seventeen-a of this code and all further fees collected shall be deposited in that fund.
(2) The Department of Health and Human Resources shall establish a fee by legislative rule proposed pursuant to article three, chapter twenty-nine-a of this code to be collected from each offender enrolled in the safety and treatment program. The program provider shall collect the established fee from each participant upon enrollment unless the department has determined that the participant is an indigent based upon criteria established pursuant to subdivision (3) of this subsection. The Department of Health and Human Resources shall reimburse enrollment fees to program providers for each eligible indigent offenders.
(3) The Department of Health and Human Resources shall establish by legislative rule, proposed pursuant to article three, chapter twenty-nine-a of this code, criteria to determine the eligibility for the payment of safety and treatment services for indigent offenders. The rule shall include, but is not limited to, the development of a criteria for determining eligibility; promulgation of application forms; establishment of procedures for the review of applications; and the establishment of a mechanism for the payment for safety and training services for eligible offenders.
(4) On or before the fifteenth day of January of each year, the Secretary of the Department of Health and Human Resources shall report to the Legislature on:
(A) The total number of offenders participating in the safety and treatment program during the prior year;
(B) The total number of indigent offenders participating in the safety and treatment program during the prior year;
(C) The total number of program providers during the prior year; and
(D) The total amount of reimbursements paid to program provider during the prior year.
~~(2)~~ (5) 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~~ one year or for more than a year, the license to operate a motor vehicle in this state shall not be reissued until: (i) At least one half of ~~such~~ the 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. Notwithstanding any provision in this code, a person whose license is revoked for refusing to take a chemical test as required by section seven, article five of this chapter for a first offense is not eligible to reduce the revocation period by completing the safety and treatment program.
(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~~ the person has successfully completed the program.
~~(c)~~ (d) (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)~~ (n), 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)~~ (e) 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~~ Department of Health and Human Resources, Division of Alcoholism and Drug Abuse, shall propose ~~legislative rules for promulgation in accordance with the provisions of chapter twenty- nine-a of this code to~~ and implement a plan for 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~~ the 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~~ the offenses on victims and offenders. The ~~legislative rules proposed for promulgation by the commissioner~~ plan 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~~ The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse, shall ensure that any meetings between victims and offenders shall be nonconfrontational and ensure the physical safety of the persons involved.

§17C-5A-3a. Establishment of and participation in the Motor Vehicle Alcohol Test and Lock Program.

(a) (1) The Division of Motor Vehicles shall control and regulate a Motor Vehicle Alcohol Test and Lock Program for persons whose licenses have been revoked pursuant to this article or the provisions of article five of this chapter or have been convicted under section two, article five of this chapter.
(2) The program shall include the establishment of a users fee for persons participating in the program which shall be paid in advance and deposited into the Driver's Rehabilitation Fund: Provided, That on and after the first day of July, two thousand seven, any unexpended balance remaining in the Driver's Rehabilitation Fund shall be transferred to the Motor Vehicle Fees Fund created under the provisions of section twenty-one, article two, chapter seventeen-a of this code and all further fees collected shall be deposited in that fund.
(3) Except where specified otherwise, the use of the term "program" in this section refers to the Motor Vehicle Alcohol Test and Lock Program. The Commissioner of the Division of Motor Vehicles shall propose legislative rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code for the purpose of implementing the provisions of this section. The rules shall also prescribe those requirements which, in addition to the requirements specified by this section for eligibility to participate in the program, the commissioner determines must be met to obtain the commissioner's approval to operate a motor vehicle equipped with a motor vehicle alcohol test and lock system.
(4) For purposes of this section, a "motor vehicle alcohol test and lock system" means a mechanical or computerized system which, in the opinion of the commissioner, prevents the operation of a motor vehicle when, through the system's assessment of the blood alcohol content of the person operating or attempting to operate the vehicle, the person is determined to be under the influence of alcohol.
(5) The commissioner shall establish by legislative rule, proposed pursuant to article three, chapter twenty-nine-a of this code, criteria to determine the eligibility for the payment of the installation of ignition interlock devices in the vehicles of indigent offenders. The rule shall include, but is not limited to, the development of a criteria for determining eligibility; promulgation of application forms; establishment of procedures for the review of applications; and the establishment of a mechanism for the payment of installations for eligible offenders.
(6) On or before the fifteenth day of January of each year, the Commissioner of the Division of Motor Vehicles shall report to the Legislature on:
(A) The total number of offenders participating in the program during the prior year;
(B) The total number of indigent offenders participating in the program during the prior year;
(C) The terms of any contracts with the providers of ignition interlock devices; and
(D) The total cost of the program to the state during the prior year.
(b) (1) Any person whose license is revoked for the first time pursuant to this article or the provisions of article five of this chapter is eligible to participate in the program when the person's minimum revocation period as specified by subsection (c) of this section has expired and the person is enrolled in or has successfully completed the safety and treatment program or presents proof to the commissioner within sixty days of receiving approval to participate by the commissioner that he or she is enrolled in a safety and treatment program: Provided, That anyone whose license is revoked for the first time pursuant to subsection (k), section two of this article must participate in the program when the person's minimum revocation period as specified by subsection (c) of this section has expired and the person is enrolled in or has successfully completed the safety and treatment program or presents proof to the commissioner within sixty days of receiving approval to participate by the commissioner that he or she is enrolled in a safety and treatment program.
(2) Any person whose license has been suspended pursuant to the provisions of subsection ~~(l)~~ (n), section two of this article for driving a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, is eligible to participate in the program after thirty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect: Provided, That in the case of a person under the age of eighteen, the person is eligible to participate in the program after thirty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect or after the person's eighteenth birthday, whichever is later. Before the commissioner approves a person to operate a motor vehicle equipped with a motor vehicle alcohol test and lock system, the person must agree to comply with the following conditions:
(A) If not already enrolled, the person ~~will~~ shall enroll in and complete the educational program provided ~~for~~ in subsection ~~(c)~~ (d), section three of this article at the earliest time that placement in the educational program is available, unless good cause is demonstrated to the commissioner as to why placement should be postponed;
(B) The person ~~will~~ shall pay all costs of the educational program, any administrative costs and all costs assessed for any suspension hearing.
(3) Notwithstanding the provisions of this section to the contrary, no a person eligible to participate in the program under this subsection may not operate a motor vehicle unless approved to do so by the commissioner.
(c) A person who participates in the program under subdivision (1), subsection (b) of this section is subject to a minimum revocation period and minimum period for the use of the ignition interlock device as follows:
(1) For a person whose license has been revoked for a first offense for six months pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (d) or ~~(f)~~ (g), section two, article five of this chapter or pursuant to subsection ~~(i)~~ (j), section two of this article, the minimum period of revocation for participation in the test and lock program is ~~thirty~~ fifteen days and the minimum period for the use of the ignition interlock device is ~~five months~~ one hundred twenty- five days;
(2) For a person whose license has been revoked for a first offense pursuant to section seven, article five of this chapter ~~refusal to submit to a designated secondary chemical test~~, the minimum period of revocation for participation in the test and lock program is ~~thirty~~ forty-five days and the minimum period for the use of the ignition interlock device is ~~nine months~~ one year;
(3) For a person whose license has been revoked for a first offense pursuant to section one-a of this article for conviction of an offense defined in subsection (e), section two, article five of this chapter or pursuant to subsection (j), section two of this article, the minimum period of revocation for participation in the test and lock program is forty-five days and the minimum period for the use of the ignition interlock device is two hundred seventy days;
~~(3)~~ (4) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (a), section two, article five of this chapter or pursuant to subsection (f), section two of this article, the minimum period of revocation before the person is eligible for participation in the test and lock program is twelve months and the minimum period for the use of the ignition interlock device is two years;
~~(4)~~ (5) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (b), section two, article five of this chapter or pursuant to subsection (g), section two of this article, the minimum period of revocation is six months and the minimum period for the use of the ignition interlock device is two years;
~~(5)~~ (6) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (c), section two, article five of this chapter or pursuant to subsection (h), section two of this article, the minimum period of revocation for participation in the program is two months and the minimum period for the use of the ignition interlock device is one year;
~~(6)~~ (7) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection ~~(i)~~ (j), section two, article five of this chapter or pursuant to subsection (m), section two of this article, the minimum period of revocation for participation in the program is two months and the minimum period for the use of the ignition interlock device is ten months;
(d) Notwithstanding any provision of the code to the contrary, a person shall participate in the program if the person is convicted under section two, article five of this chapter or the person's license is revoked under section two of this article or section seven, article five of this chapter and the person was previously either convicted or his or her license was revoked under any provision cited in this subsection within the past ten years. The minimum revocation period for a person required to participate in the program under this subsection is one year and the minimum period for the use of the ignition interlock device is two years, except that the minimum revocation period for a person required to participate because of a violation of subsection ~~(l)~~ (n), section two of this article or subsection ~~(h)~~ (i), section two, article five of this chapter is two months and the minimum period of participation is one year. The division shall add an additional two months to the minimum period for the use of the ignition interlock device if the offense was committed while a minor was in the vehicle. The division shall add an additional six months to the minimum period for the use of the ignition interlock device if a person other than the driver received injuries. The division shall add an additional two years to the minimum period for the use of the ignition interlock device if a person other than the driver is injured and the injuries result in that person's death. The division ~~will~~ shall add one year to the minimum period for the use of the ignition interlock device for each additional previous conviction or revocation within the past ten years. Any person required to participate under this subsection must have an ignition interlock device installed on every vehicle he or she owns or operates.
(e) Notwithstanding any other provision in this code, a person whose license is revoked for driving under the influence of drugs is not eligible to participate in the Motor Vehicle Alcohol Test and Lock Program.
~~(e)~~ (f) An applicant for the test and lock program may not have been convicted of any violation of section three, article four, chapter seventeen-b of this code for driving while the applicant's driver's license was suspended or revoked within the six-month period preceding the date of application for admission to the test and lock program unless such is necessary for employment purposes.
~~(f)~~ (g) Upon permitting an eligible person to participate in the program, the commissioner shall issue to the person, and the person is required to exhibit on demand, a driver's license which shall reflect that the person is restricted to the operation of a motor vehicle which is equipped with an approved motor vehicle alcohol test and lock system.
~~(g)~~ (h) The commissioner may extend the minimum period of revocation and the minimum period of participation in the program for a person who violates the terms and conditions of participation in the program as found in this section, or legislative rule, or any agreement or contract between the participant and the division or program service provider.
~~(h)~~ (i) A person whose license has been suspended pursuant to the provisions of subsection ~~(l)~~ (n), section two of this article who has completed the educational program and who has not violated the terms required by the commissioner of the person's participation in the program is entitled to the reinstatement of his or her driver's license six months from the date the person is permitted to operate a motor vehicle by the commissioner. When a license has been reinstated pursuant to this subsection, the records ordering the suspension, records of any administrative hearing, records of any blood alcohol test results and all other records pertaining to the suspension shall be expunged by operation of law: Provided, That a person is entitled to expungement under the provisions of this subsection only once. The expungement shall be accomplished by physically marking the records to show that the records have been expunged and by securely sealing and filing the records. Expungement has the legal effect as if the suspension never occurred. The records may not be disclosed or made available for inspection and in response to a request for record information, the commissioner shall reply that no information is available. Information from the file may be used by the commissioner for research and statistical purposes so long as the use of the information does not divulge the identity of the person.
~~(i)~~ (j) In addition to any other penalty imposed by this code, any person who operates a motor vehicle not equipped with an approved motor vehicle alcohol test and lock system during ~~such~~ that person's participation in the Motor Vehicle Alcohol Test and Lock Program is guilty of a misdemeanor and, upon conviction thereof, shall be confined in ~~the county or regional~~ jail for a period not less than one month nor more than six months and fined not less than one hundred dollars nor more than five hundred dollars. Any person who attempts to bypass the alcohol test and lock system is guilty of a misdemeanor and, upon conviction thereof, shall be confined in ~~the county or regional~~ jail not more than six months and fined not less than one hundred dollars nor more than one thousand dollars: Provided, That notwithstanding any provision of this code to the contrary, a person enrolled and participating in the test and lock program may operate a motor vehicle solely at his or her job site if ~~such~~ the operation is a condition of his or her employment. For the purpose of this section, job site does not include any street or highway open to the use of the public for purposes of vehicular traffic.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 535--A Bill to amend and reenact §17B-4-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §17C-5-2 and §17C-5-7 of said code; and to amend and reenact §17C-5A-1, §17C-5A-2, §17C-5A-3 and §17C-5A-3a of said code, all relating to modifications to administrative and criminal penalties for driving a motor vehicle under the influence of alcohol and/or drugs; reducing the criminal and administrative sanctions for driving a vehicle with a lawfully suspended or revoked license; providing for concurrent sentences for driving a vehicle with a lawfully suspended or revoked license; removing the mandatory 24-hour incarceration for first offense driving under the influence; creating an aggravated offense of driving with a blood alcohol concentration of fifteen hundredths of one percent or more, by weight; permitting participation in the Motor Vehicle Alcohol Test and Lock Program for first offense driving under the influence; process for rejecting or modifying hearing examiner's proposed findings; law-enforcement officers excused from hearings unless presence is requested by party whose license is at issue; adoption of law-enforcement affidavit if officer does not attend hearing; mandating participation in the Motor Vehicle Alcohol Test and Lock Program for first offense driving under the influence; providing enhanced administrative sanctions for persons operating a motor vehicle with a blood alcohol concentration of fifteen hundredths of one percent or more, by weight; making certain technical changes to administrative procedures; transferring primary authority of the Safety and Treatment Program to the Department of Health and Human Resources; providing for removal of the Driver's Rehabilitation Fund from the jurisdiction of the Division of Motor Vehicles and placing it under the jurisdiction of the Secretary of the Department of Health and Human Resources; requiring Department of Health and Human Resources to propose legislative rules; providing that a person whose driver's license is revoked for refusing to take a secondary chemical test is not eligible to reduce the revocation period by completing the Safety and Treatment Program; removing requirement that victim impact panels be implemented pursuant to legislative rules; requiring the Commissioner of the Department of Motor Vehicles to propose legislative rules; reducing the minimum period of revocation for participation in the test and lock program; increasing minimum periods of participation in the ignition interlock device for aggravating offenses; and denying participation in the Motor Vehicle Alcohol Test and Lock Program for persons whose driver's license is revoked for driving under the influence of drugs.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 535, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 535) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2008, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 564, Relating to higher education tuition and fee waivers.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §18-19-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §18B-10-1, §18B-10-5, §18B-10-6 and §18B-10-7 of said code be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 19. EDUCATIONAL OPPORTUNITIES FOR SPOUSES AND CHILDREN OF DECEASED SOLDIERS, SAILORS, MARINES AND AIRMEN.

§18-19-2. Eligibility of applicant for benefits; application forms; preference.

(a) To be eligible for the benefits of this article, a child or spouse set forth in section one of this article shall be meet the following conditions:
(1) At In the case of a child, is at least sixteen and not more than twenty-five years of age;
(2) ~~Enrolled~~ Is enrolled in a post-secondary education or training institution in this state; and
(3) ~~The~~ Is the child or spouse of an enlistee who designated West Virginia as his or her state of record.
(b) The application shall be made to, and upon forms provided by, the West Virginia Division of Veterans' Affairs. The division shall determine the eligibility of those who apply and the yearly amount to be allotted each applicant. The amount, in the discretion of the division, may vary from year to year, but may not exceed the sum of 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 the educational opportunities.
CHAPTER 18B. HIGHER EDUCATION.

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~~ the 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)~~ (e) The schedule of all tuition and fees, and any changes ~~therein~~ in the schedule, 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~~ the schedule and changes.
~~(g)~~ (f) 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 of this subsection.
~~(h)~~ (g) 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)~~ (h) 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)~~ (i) 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 annually 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)~~ (j) 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)~~ (k) 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 subdivisions (4) and (8) 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.
(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 except a governing board may propose increases in excess of four and three-quarters percent if existing tuition and fee rates at the institution are below the state average for tuition and fees at institutions under the jurisdiction of the council. 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) Subject to the provisions of subdivision (8) of this subsection 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, the regional campus known as West Virginia University at Parkersburg and, until the first day of July, two thousand seven, the regional campus known as West Virginia University Institute of Technology.
(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.
(8) Notwithstanding the provisions of subdivisions (1) and (4) of this subsection, tuition and fee increases at state institutions of higher education which are under the jurisdiction of the commission, including the state institutions of higher education known as Marshall University and West Virginia University, are subject to the following conditions:
(A) Institutions may increase tuition and fees for resident, undergraduate students by no more than an average of seven and one-half percent per year during any period covering four consecutive fiscal years, with the first fiscal year of the first four-fiscal year cycle beginning on the first day of July, two thousand seven;
(B) The seven and one-half percent average cap does not apply to an institution for any fiscal year in which the total state base operating budget appropriations to that institution are less than the total state base operating budget appropriations in the fiscal year immediately preceding;
(C) A new capital fee or an increase in an existing capital fee is excluded from the tuition and fee increase calculation in this subdivision:
(i) If the new fee or fee increase is approved by an institutional governing board or by a referendum of an institution's undergraduate students, or both, on or before the first day of February, two thousand six; or
(ii) If the following conditions are met:
(I) The new fee or fee increase was approved by an institutional governing board or by a referendum of an institution's undergraduate students, or both, on or before the first day of July, two thousand six;
(II) The institution for which the capital fee is approved 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
(III) The institutional board of governors previously oversaw a community and technical college that achieved independent accreditation and consequently acquired its own board of governors;
(D) Institutions shall provide, in a timely manner, any data on tuition and fee increases requested by the staff of the commission. The commission ~~has the power and the duty to~~ shall:
(i) Collect ~~such~~ the data from any institution under its jurisdiction; and
(ii) Annually by the first day of July, provide a detailed analysis of the institutions' compliance with the provisions of this subdivision to the Legislative Oversight Commission on Education Accountability.
§18B-10-5. Fee waivers -- Undergraduate schools.
Each governing board periodically may establish fee waivers for students in undergraduate studies at institutions under its jurisdiction entitling recipients to waiver of tuition, capital and other fees subject to the following conditions and limitations:
(a) Undergraduate fee waivers established by the governing boards of Marshall University and West Virginia University, respectively, for the state institutions of higher education known as Marshall University and West Virginia University, are subject to the provisions of section six-a of this article;
(b) For the governing boards of state institutions of higher education other than the state institutions of higher education known as Marshall University and West Virginia University, the following conditions apply:
(1) An institution may not have in effect at any time ~~a number of~~ undergraduate fee waivers ~~which exceeds five percent of the number of~~ totaling more in value than five percent of the tuition and required fees assessed for all full-time equivalent undergraduate students registered during the fall semester of the immediately preceding academic year.
(2) Each undergraduate fee waiver entitles the recipient ~~thereof~~ of the waiver to attend a designated state institution of higher education without payment of the tuition, capital and other fees as may be prescribed by the governing board and is for a period of time not to exceed eight semesters of undergraduate study.
(3) The governing board shall make rules pursuant to the provisions of section six, article one of this chapter governing the award of undergraduate fee waivers; the issuance and cancellation of certificates entitling the recipients to the benefits ~~thereof~~ of the waiver; the use of the fee waivers by the recipients; and the rights and duties of the recipients with respect to the fee waivers. These rules may not be inconsistent with the provisions of this section.
(4) The awarding of undergraduate fee waivers shall be entered in the minutes of the meetings of the governing board.
(5) Students enrolled in an administratively linked community and technical college shall be awarded a proportionate share of the total number of undergraduate fee waivers awarded by a governing board. The number to be awarded to students of the community and technical college is based upon the full-time equivalent enrollment of that institution.
(6) An institution may grant fee waivers to its employees, their spouses and dependents, and these waivers are not counted when determining the maximum percentage of waivers permitted by this section.
(7) Any fee waivers mandated by this article or by section three, article nineteen, chapter eighteen of this code are not counted when determining the maximum percentage of waivers permitted by this section.
§18B-10-6. Fee waivers -- Professional and graduate schools.
In addition to the fee waivers authorized for undergraduate study by the provisions of section five of this article, each governing board periodically may establish fee waivers for study in graduate and professional schools under its jurisdiction, including medicine and dentistry, entitling the recipients to waiver of tuition, capital and other fees, subject to the following conditions and limitations:
(a) Graduate and professional fee waivers established by the governing boards of Marshall University and West Virginia University, respectively, are subject to the provisions of section six-a of this article;
(b) For the governing boards of state institutions of higher education other than the state institutions of higher education known as Marshall University and West Virginia University, the following conditions apply:
(1) An institution may not have in effect at any time ~~a number of~~ graduate and professional school fee waivers ~~which exceeds five percent of the number of~~ totaling more in value than five percent of the tuition and required fees assessed for all full-time equivalent graduate and professional students registered during the corresponding fall semester, spring semester and summer term of the immediately preceding academic year. In addition to the ~~above~~ five percent in this subdivision, all graduate assistants employed by these institutions shall be granted a fee waiver.
(2) Each graduate or professional school fee waiver entitles the recipient to waiver of the tuition, capital and other fees as may be prescribed by the governing boards and is for a period of time not to exceed the number of semesters normally required in the recipient's academic discipline.
(3) The governing boards shall make rules pursuant to the provisions of section six, article one of this chapter governing the award of graduate and professional school fee waivers; the issuance and cancellation of certificates entitling the recipients to the benefits ~~thereof~~ of the waivers; the use of the fee waivers by the recipients; and the rights and duties of the recipients with respect to the fee waivers. These rules may not be inconsistent with the provisions of this section.
(4) The awarding of graduate and professional school fee waivers shall be entered in the minutes of the meeting of each governing board.
(5) An institution may grant fee waivers to its employees, their spouses and dependents, and these waivers are not counted when determining the maximum percentage of waivers permitted by this section.
(6) Any fee waivers mandated by this article or by section three, article nineteen, chapter eighteen of this code are not counted when determining the maximum percentage of waivers permitted by this section.

§18B-10-7. Tuition and fee waivers for children and spouses of officers, firefighters, National Guard personnel, reserve personnel and active military duty personnel killed in the line of duty.

(a) Each state institution of higher education shall ~~permit any person to attend its undergraduate courses and classes if classroom space is available without charging the person any tuition or any fees, if (1) the person~~ waive tuition and fees for any person who is the child or spouse of an individual who ~~was~~:
(1) Was employed or serving as:
(A) A law-enforcement officer as defined in section one, article twenty-nine, chapter thirty of this code;
(B) A correctional officer at a state penal institution;
(C) A parole officer;
(D) A probation officer;
(E) A conservation officer; or
(F) A registered firefighter; and
(2) ~~Killed~~ Was killed in the line of duty while:
(A) Employed by the state or any political subdivision of the state; or
(B) A member of a volunteer fire department serving a political subdivision of this state.
(b) Each state institution of higher education shall waive tuition and fees for any person who is the child or spouse of:
(1) A National Guard member or a member of a reserve component of the armed forces of the United States killed in the line of duty. The member is considered to have been killed in the line of duty if death resulted from performing a duty required by his or her orders or commander while in an official duty status, other than on federal active duty, authorized under federal or state law; or
(2) A person on federal or state active military duty who is a resident of this state and is killed in the line of duty. The person is considered to have been killed in the line of duty if death resulted from performance of a duty required by his or her orders or commander while in an official duty status.
(c) Any waiver granted pursuant to this section is subject to the following:
(1) The recipient may attend any undergraduate course if classroom space is available;
(2) The recipient has applied and been admitted to the institution;
(3) The recipient has applied for and submitted the Free Application for Federal Student Aid;
(4) The recipient has exhausted all other sources of student financial assistance dedicated solely to tuition and fees that exceed other grant assistance that are available to him or her, excluding student loans;
(5) Waiver renewal is contingent upon the recipient continuing to meet the academic progress standards established by the institution.
(d) The state institution of higher education may require the person to pay:
(1) Special fees, including any laboratory fees, if the fees are required of all other students taking a single course or that particular course; and
(2) Parking fees.
~~(c)~~ (e) The governing boards may promulgate rules:
(1) For determining the availability of classroom space;
(2) As it considers necessary to implement this section; and
(3) Regarding requirements for attendance, which may not exceed ~~such~~ the requirements for other persons.
~~(d)~~ (f) The governing boards may extend to persons attending courses and classes under this section any rights, privileges or benefits extended to other students which it considers appropriate.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 564--A Bill to amend and reenact §18-19-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §18B-10-1, §18B-10-5, §18B-10-6 and §18B-10-7 of said code, all relating to higher education tuition and fees; clarifying eligibility requirements for tuition and fee waivers for certain applicants; allowing increases in existing tuition and fees at institutions that are below the state average; changing method of calculating limits on waivers of tuition and fees; exempting tuition and fee waivers granted to higher education employees, spouses and dependents and all tuition and fee waivers authorized by statute from calculation of limits on percentage of tuition and fee waivers granted by state institutions of higher education; and requiring waivers of tuition and fees for certain individuals.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 564, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 564) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 564) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body to the title of the bill, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 590, Protecting health care workers.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the title of the bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 590--A Bill to amend and reenact §61-2-10b of the Code of West Virginia, 1931, as amended, relating to the protection of health care workers and protective services workers; establishing enhanced criminal penalties for crimes of violence against listed persons when they are engaged in official duties; and defining "health care worker" and "protective services worker".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 590, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 590) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 622, Creating Voluntary Rural and Outdoor Heritage Conservation Act.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page twenty-two, section ten, line thirteen, by striking out the word "twenty" and inserting in lieu thereof the word "fifteen";
On page twenty-two, section ten, line twenty-two, by striking out the word "five" and inserting in lieu thereof the word "ten";
And,
On page twenty-three, section ten, lines thirty-one through forty-two, by striking out all of subdivision (7) and inserting in lieu thereof a new subdivision (7), to read as follows:
(7) Eleven dollars of each recording fee received pursuant to subdivision (1) of this subsection shall be retained by the county clerk for the operation of that office and four dollars of each of the aforesaid recording fees together with five dollars of the recording fee collected pursuant to subdivision (5) of this section, shall be paid by the county clerk into the State Treasurer and deposited in equal amounts for deposit into the Farmland Protection Fund created in article twelve, chapter eight-a of this code for the benefit of the West Virginia Agricultural Land Protection Authority and into the Outdoor Heritage Conservation Fund created in article two-g, chapter five-b of this code: Provided, That the funds deposited pursuant to this subdivision may only be used for costs, excluding personnel costs, associated with purpose of land conservation, as defined in subsection (f), section seven, article two-g, chapter five-b of this code.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 622, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Fanning, Foster, Green, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Facemyer, Hall and Sypolt--3.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 622) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 638, Requiring information collection from catalytic converter purchasers.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page five, section fifty-nine, after line seventy-one, by adding a new subsection, designated subsection (h), to read as follows:
(h) Nothing in this section is intended to apply to a consumer purchasing a vehicle which contains a catalytic converter, nor is it intended to apply to a consumer who purchases a replacement catalytic converter for a vehicle.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 638, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 638) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 650, Relating to Emergency Medical Services Retirement System.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On pages thirty-five through thirty-seven, by striking out section ten in its entirety;
On page three, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §16-5V-2, §16-5V-6, §16-5V-8, §16-5V-9, §16-5V-14, §16-5V-18, §16-5V-19, §16-5V-25 and §16-5V-32 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 650--A Bill to amend and reenact §16-5V-2, §16-5V-6, §16-5V-8, §16-5V-9, §16-5V-14, §16-5V-18, §16-5V-19, §16-5V-25 and §16-5V-32 of the Code of West Virginia, 1931, as amended, all relating to the Emergency Medical Services Retirement System; adding and modifying definitions; specifying that members hired after the effective date of this plan are members of the plan as a condition of employment; clarifying language relating to the participation of public employers in this plan; clarifying language relating to the transfer of Public Employees Retirement System service credit and reinstatement of service as an emergency medical services officer; specifying the date on which contributions are due the fund and providing for delinquency fees for late payments; clarifying language relating to purchase of prior service and providing for delinquency fees for late payments; eliminating minimum required eligible direct rollover distributions paid directly to an eligible retirement plan; allowing distributions totaling less than two hundred dollars within the definition of eligible rollover distribution; clarifying the language relating to the benefit awarded for a duty disability; adding provisions for the payment of additional death benefits; clarifying language relating to the effective date for receipt of a duty disability benefit; and making a correction to the time period for which the Joint Committee on Government and Finance shall conduct an interim study on the potential effects of the implementation of this plan.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 650, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 650) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2008, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 715, Defining certain Public Employees Insurance Agency eligibility.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page nine, after section two, by adding the following:
§5-16-15. Optional dental, optical, disability and prepaid retirement plan, and audiology and hearing-aid service plan.

(a) On and after the first day of July, one thousand nine hundred eighty-nine, the director shall make available to participants in the public employees insurance system: (1) A dental insurance plan; (2) an optical insurance plan; (3) a disability insurance plan; (4) a prepaid retirement insurance plan; and (5) an audiology and hearing-aid services insurance plan. Public employees insurance participants may elect to participate in any one of these plans separately or in combination. ~~Notwithstanding anything in this article to the contrary, all~~ All actuarial and administrative costs of each plan shall be totally borne by the premium payments of the participants or local governing bodies electing to participate in that plan. The director is authorized to employ such administrative practices and procedures with respect to these optional plans as are authorized for the administration of other plans under this article. The director shall establish separate funds: (1) For deposit of dental insurance premiums and payment of dental insurance claims; (2) for deposit of optical insurance premium payments and payment of optical insurance claims; (3) for deposit of disability insurance premium payments and payment of disability insurance claims; and (4) for deposit of audiology and hearing-aid service insurance premiums and payment of audiology and hearing-aid insurance claims. Such funds shall not be supplemented by nor be used to supplement any other funds.
(b) The finance board shall study the feasibility of an oral health benefit for children of participants.;
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §5-16-2 and §5-16-15 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:;
And,
By striking out the title and substituting therefor a new title, to read as follows
Eng. Com. Sub. for Senate Bill No. 715--A Bill to amend and reenact §5-16-2 and §5-16-15 of the Code of West Virginia, 1931, as amended, all relating to the participation in the Public Employees Insurance Agency of certain retired employees; mandatory participation in Retiree Health Benefit Trust Fund; requiring written certification from nonstate employers who opt out of the other post-employment benefits plan of the fund; providing that agency is not liable to provide benefit where employer opted out; and directing the finance board to study an oral health benefit to children of covered employees.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 715, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 715) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 715) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 736, Relating to real property sales of persons under legal disability.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page nine, section eight, line one hundred twenty-five, by striking out the words "six hundred" and inserting in lieu thereof the words "two thousand".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 736, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 736) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 746, Establishing recycling recovery program for electronics.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page three, section two, line eight, after the word "barriers" by inserting the words "and other civil engineering applications";
On page three, section two, line thirteen, after the word "barriers" by inserting a comma and the words "recapping, alternative daily cover";
On page seventeen, section twenty-five, line sixteen, by striking out the word "or" and inserting in lieu thereof the word "and";
On page seventeen, section twenty-five, line thirty-two, after the word "year" by inserting a comma and the words "either by actual count or by using average product weights";
On page twenty-one, section twenty-six, line ten, after the word "separate" by inserting the word "recycling";
And,
On page twenty-two, section twenty-six, line twenty-three, by striking out the word "are" and inserting in lieu thereof the word "or".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 746, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 746) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 780, Relating to Public Employees Grievance Procedure.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On pages four and five, section two, line twenty-five, by striking out all of subsection (d) and inserting in lieu thereof a new subsection (d), to read as follows:
(d) "Discrimination" means any differences in the treatment of similarly situated employees, unless the differences are related to the actual job responsibilities of the employees or are agreed to in writing by the employees.;
And,
On page six, section two, line sixty-three, after the word "employee" by striking out the comma and the words "is agreed to in writing by the employee or is based upon a legitimate reason related to the employment relationship" and inserting in lieu thereof the words "or is agreed to in writing by the employee."
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 780, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 780) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, adoption as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Senate Concurrent Resolution No. 28, Designating timber rattlesnake as state reptile.
On motion of Senator Chafin, the message on the resolution was taken up for immediate consideration.
The following House of Delegates amendments to the resolution were reported by the Clerk:
On page one, in the fifth Whereas, by striking out the words "therefore, be it" and inserting in lieu thereof the following: and
Whereas, No fossil has been designated as the official state fossil for the State of West Virginia; and
Whereas, Interest in fossils and paleontology has become increasingly widespread throughout the citizenry of this state, there currently being fossil, rock and gem clubs already organized in the counties of Cabell, Harrison, Kanawha and Wood; and
Whereas, In 1797, President Thomas Jefferson obtained and described fossil bones from a limestone cave in what is now Monroe County; and
Whereas, These bones were again described by Casper Wistar in 1799 as the bones of a giant extinct ground sloth; and
Whereas, Wistar named the bones as a new species, Megalonyx Jeffersonnii, in honor of President Jefferson; and
Whereas, The bones are from the Ice Age or Pleistocene Epoch which lasted from 10,000 to 1.8 million years ago; and
Whereas, The designation of a state fossil would aid in the promotion of interest in geology, paleontology and history; and
Whereas, The bones afford an opportunity for special studies in American, State, and natural history for the students of the state; and
Whereas, Thirty-nine of the fifty states have an official state fossil; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby designates the timber rattlesnake as West Virginia's state reptile and the fossil Megalonyx Jeffersonnii as the state fossil; and, be it
Further Resolved, That the Clerk of the Senate is hereby requested to forward official copies of this resolution to the citizens and schools in the state.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Senate Concurrent Resolution No. 28--Designating the timber rattlesnake as West Virginia's state reptile and designating Megalonyx Jeffersonnii as West Virginia's state fossil.
Senator Chafin moved that the Senate refuse to concur in the foregoing House amendments to the resolution (S. C. R. No. 28) and request the House of Delegates to recede therefrom.
The question being on the adoption of Senator Chafin's aforestated motion, the same was put.
The result of the voice vote being inconclusive, Senator Chafin demanded a division of the vote.
A standing vote being taken, there were seventeen "yeas" and thirteen "nays".
Whereupon, Senator Tomblin (Mr. President) declared Senator Chafin's aforestated motion had prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the amendment by that body, adoption as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Senate Concurrent Resolution No. 48, Requesting Division of Highways name bridge in Puritan Mines, Mingo County, "Rev. Glen and Gladys Merritt Bridge".
On motion of Senator Chafin, the message on the resolution was taken up for immediate consideration.
The following House of Delegates amendments to the resolution were reported by the Clerk:
On page two, in the seventh Whereas clause, by striking out "30-65/5-1.47 (10525)" and inserting in lieu thereof "30-65/5- 1.08(10523)";
On page two, after the Resolved clause, by striking out "30-65/5-1.47 (10525)" and inserting in lieu thereof "30-65/5- 1.08(10523)";
And,
By striking out the title and substituting therefor a new title, to read as follows:
Senate Concurrent Resolution No. 48-- Requesting the Division of Highways name bridge number 30-65/5-1.08 (10523) in Puritan Mines, Mingo County, the "Rev. Glen and Gladys Merritt Bridge".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the resolution.
The question being on the adoption of the resolution (S. C. R. No. 48), as amended, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from the Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, to take effect April 1, 2008, and requested the concurrence of the Senate in the changed effective date, as to
Eng. Com. Sub. for House Bill No. 4021, Revising mining safety equipment requirements and enhancing penalties for crimes against mining property.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
On further motion of Senator Chafin, the Senate concurred in the changed effective date of the bill, that being to take effect April 1, 2008, instead of ninety days from passage.
Senator Chafin moved that the bill take effect April 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4021) takes effect April 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4032, Relating to payment of wages through a direct deposit system.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4129, Revising licensing requirements for professional licensing boards, including authorizing a special volunteer license for health care professionals.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 4331, Eliminating the requirement to send surrendered driver's licenses back to the original state of licensure.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 4404, Discount Medical Plan Organizations and Discount Prescription Drug Plan Organizations Act.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. House Bill No. 4513, Relating to the reimbursement of costs for newborn screenings.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4617, Allowing e-notification by using e-certified cards for verification of certified mail acceptance to the court of origin for service of process.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4619, Collaborative Family Law Proceedings.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 280, Modifying Downtown Redevelopment Act.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §8-38-3, §8-38-5, §8-38-7, §8-38-12 and §8-38-16 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 38. MUNICIPAL ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§8-38-3. Definitions.
For purposes of this article, the term:
(1) "Development expenditures" means payments for governmental functions, programs, activities, facility construction, improvements and other goods and services which a district board is authorized to perform or provide under section five of this article;
(2) "District" means an economic opportunity development district created pursuant to this article;
(3) "District board" means a district board created pursuant to section ten of this article;
(4) "Eligible property" means any taxable or exempt real property located in a district established pursuant to this article; ~~and~~
(5) "Municipality" is a word of art and shall mean, for the purposes of this article, only Class I and Class II cities as classified in section three, article one of this chapter;
(6) "Remediation" means measures undertaken to bring about the reconditioning or restoration of property located within the boundaries of an economic opportunity development district project that has been affected by exploration, industrial operations or solid waste disposal and which measures, when undertaken, will eliminate or ameliorate the existing state of the property and enable the property to be commercially developed.
§8-38-5. Development expenditures.
Any municipality that has established an economic opportunity development district under this article may make, or authorize to be made by a district board and other public or private parties, development expenditures as will promote the economic vitality of the district and the general welfare of the municipality, including, but not limited to, expenditures for the following purposes:
(1) Beautification of the district by means such as landscaping and construction and erection of fountains, shelters, benches, sculptures, signs, lighting, decorations and similar amenities;
(2) Provision of special or additional public services such as sanitation, security for persons and property and the construction and maintenance of public facilities, including, but not limited to, sidewalks, parking lots, parking garages and other public areas;
(3) Making payments for principal, interest, issuance costs, any of the costs described in section twenty of this article and appropriate reserves for bonds and other instruments and arrangements issued or entered into by the municipality for financing the expenditures of the district described in this section and to otherwise implement the purposes of this article;
(4) Providing financial support for public transportation and vehicle parking facilities open to the general public, whether physically situate within the district's boundaries or on adjacent land;
(5) Acquiring, building, demolishing, razing, constructing, repairing, reconstructing, refurbishing, renovating, rehabilitating, expanding, altering, otherwise developing, operating and maintaining real property generally, parking facilities, commercial structures and other capital improvements to real property, fixtures and tangible personal property, whether or not physically situate within the district's boundaries: Provided, That the expenditure directly benefits the district;
(6) Developing plans for the architectural design of the district and portions thereof and developing plans and programs for the future development of the district;
(7) Developing, promoting and supporting community events and activities open to the general public that benefit the district;
(8) Providing the administrative costs for a district management program;
(9) Providing for the usual and customary maintenance and upkeep of all improvements and amenities in the district as are commercially reasonable and necessary to sustain its economic viability on a permanent basis;
(10) Providing any other services that the municipality or district board is authorized to perform and which the municipality does not also perform to the same extent on a countywide basis;
(11) Making grants to the owners or tenants of economic opportunity development district for the purposes described in this section;
(12) Acquiring an interest in any entity or entities that own any portion of the real property situate in the district and contributing capital to any entity or entities; ~~and~~
(13) Remediation of publicly or privately owned landfills, solid waste facilities or hazardous waste sites to facilitate commercial development which would not otherwise be economically feasible; and
~~(13)~~ (14) To do any and all things necessary, desirable or appropriate to carry out and accomplish the purposes of this article notwithstanding any provision of this code to the contrary.

§8-38-7. Application to Development Office for community and economic development for approval of an economic opportunity development district project.

(a) General. -- The Development Office shall receive and act on applications filed with it by municipalities pursuant to section six of this article. Each application must include:
(1) A true copy of the notice described in section six of this article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to complete the project;
(4) A general description of the capital improvements, additional or extended services and other proposed development expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the development expenditures, together with a description of the reserves to be established for financing ongoing development or redevelopment expenditures necessary to permanently maintain the optimum economic viability of the district following its inception: Provided, That the amounts of the reserves shall not exceed the amounts that would be required by ordinary commercial capital market considerations;
(6) A description of the sources and anticipated amounts of all financing, including, but not limited to, proceeds from the issuance of any bonds or other instruments, revenues from the special district excise tax and enhanced revenues from property taxes and fees;
(7) A description of the financial contribution of the municipality to the funding of development expenditures;
(8) Identification of any businesses that the municipality expects to relocate their business locations from the district to another place in the state in connection with the establishment of the district or from another place in this state to the district: Provided, That for purposes of this article, any entities shall be designated "relocated entities";
(9) Identification of any businesses currently conducting business in the proposed economic opportunity development district that the municipality expects to continue doing business there after the district is created;
(10) A good faith estimate of the aggregate amount of consumers sales and service tax that was actually remitted to the Tax Commissioner by all business locations identified as provided in subdivisions (8) and (9) of this subsection with respect to their sales made and services rendered from their then current business locations that will be relocated from, or to, or remain in the district, for the twelve full calendar months next preceding the date of the application: Provided, That for purposes of this article, the aggregate amount is designated as "the base tax revenue amount";
(11) A good faith estimate of the gross annual district tax revenue amount;
(12) The proposed application of any surplus from all funding sources to further the objectives of this article;
(13) The Tax Commissioner's certification of: (i) The amount of consumers sales and service taxes collected from businesses located in the economic opportunity district during the twelve calendar months preceding the calendar quarter during which the application will be submitted to the Development Office; (ii) the estimated amount of economic opportunity district excise tax that will be collected during the first twelve months after the month in which the Tax Commissioner would first begin to collect that tax; and (iii) the estimated amount of economic opportunity district excise tax that will be collected during the first thirty-six months after the month in which the Tax Commissioner would first begin to collect that tax; and
(14) Any additional information the Development Office may require.
(b) Review of applications. -- The Development Office shall review all project proposals for conformance to statutory and regulatory requirements, the reasonableness of the project's budget and timetable for completion and the following criteria:
(1) The quality of the proposed project and how it addresses economic problems in the area in which the project will be located;
(2) The merits of the project determined by a cost-benefit analysis that incorporates all costs and benefits, both public and private;
(3) Whether the project is supported by significant private sector investment and substantial credible evidence that, but for the existence of sales tax increment financing, the project would not be feasible;
(4) Whether the economic opportunity development district excise tax dollars will leverage or be the catalyst for the effective use of private, other local government, state or federal funding that is available;
(5) Whether there is substantial and credible evidence that the project is likely to be started and completed in a timely fashion;
(6) Whether the project will, directly or indirectly, improve the opportunities in the area where the project will be located for the successful establishment or expansion of other industrial or commercial businesses;
(7) Whether the project will, directly or indirectly, assist in the creation of additional long-term employment opportunities in the area and the quality of jobs created in all phases of the project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the area, or part of the area, in which the economic opportunity district is located;
(9) Whether the municipality has a strategy for economic development in the municipality and whether the project is consistent with that strategy;
(10) Whether the project helps to diversify the local economy;
(11) Whether the project is consistent with the goals of this article;
(12) Whether the project is economically and fiscally sound using recognized business standards of finance and accounting; and
(13) (A) The ability of the municipality and the project developer or project team to carry out the project: Provided, That no project may be approved by the Development Office unless the amount of all development expenditures proposed to be made in the first twenty-four months following the creation of the district results in capital investment of more than fifty million dollars in the district and the municipality submits clear and convincing information, to the satisfaction of the Development Office, that such investment will be made if the Development Office approves the project and the Legislature authorizes the municipality to levy an excise tax on sales of goods and services made within the economic opportunity development district as provided in this article.
(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, no project involving remediation may be approved by the Development Office unless the amount of all development expenditures proposed to be made in the first forty- eight months following the creation of the district results in capital investment of more than fifty million dollars in the district. In addition to the remaining provisions of paragraph (A) of this subdivision, the Development Office may not approve a project involving remediation authorized under section five of this article unless the municipality submits clear and convincing information, to the satisfaction of the Development Office, that the proposed remediation expenditures to be financed by the issuance of bonds or notes pursuant to section sixteen of this article do not constitute more than twenty-five percent of the total redevelopment expenditures associated with the project.
(c) Additional criteria. -- The Development Office may establish other criteria for consideration when approving the applications.
(d) Action on the application. -- The Executive Director of the Development Office shall act to approve or not approve any application within thirty days following the receipt of the application or the receipt of any additional information requested by the Development Office, whichever is the later.
(e) Certification of project. -- If the Executive Director of the Development Office approves a municipality's economic opportunity district project application, he or she shall issue to the municipality a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue amount, the gross annual district tax revenue amount and the estimated net annual district tax revenue amount which, for purposes of this article, is the difference between the gross annual district tax revenue amount and the base tax revenue amount, all of which the Development Office has determined with respect to the district's application based on any investigation it considers reasonable and necessary, including, but not limited to, any relevant information the Development Office requests from the Tax Commissioner and the Tax Commissioner provides to the Development Office: Provided, That in determining the net annual district tax revenue amount, the Development Office may not use a base tax revenue amount less than that amount certified by the Tax Commissioner but, in lieu of confirmation from the Tax Commissioner of the gross annual district tax revenue amount, the Development Office may use the estimate of the gross annual district tax revenue amount provided by the municipality pursuant to subsection (a) of this section.
(f) Certification of enlargement of geographic boundaries of previously certified district. -- If the Executive Director of the Development Office approves a municipality's economic opportunity district project application to expand the geographic boundaries of a previously certified district, he or she shall issue to the municipality a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue amount, the gross annual district tax revenue amount and the estimated net annual district tax revenue amount which, for purposes of this article, is the difference between the gross annual district tax revenue amount and the base tax revenue amount, all of which the Development Office has determined with respect to the district's application based on any investigation it considers reasonable and necessary, including, but not limited to, any relevant information the Development Office requests from the Tax Commissioner and the Tax Commissioner provides to the Development Office: Provided, That in determining the net annual district tax revenue amount, the Development Office may not use a base tax revenue amount less than that amount certified by the Tax Commissioner but, in lieu of confirmation from the Tax Commissioner of the gross annual district tax revenue amount, the Development Office may use the estimate of the gross annual district tax revenue amount provided by the municipality pursuant to subsection (a) of this section.
(g) Promulgation of rules. -- The Executive Director of the Development Office may promulgate rules to implement the economic opportunity development district project application approval process and to describe the criteria and procedures it has established in connection therewith. These rules are not subject to the provisions of chapter twenty-nine-a of this code but shall be filed with the Secretary of State.
§8-38-12. Special district excise tax authorized.
(a) General. -- The council of a municipality, authorized by the Legislature to levy a special district excise tax for the benefit of an economic opportunity development district, may, by ordinance, impose that tax on the privilege of selling tangible personal property and rendering select services in the district in accordance with this section.
(b) Tax base. -- The base of a special district excise tax imposed pursuant to this section shall be identical to the base of the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of the district. ~~Provided,~~ ~~That~~ Sales of gasoline and special fuel are not subject to special district excise tax but remain subject to the tax levied by article fifteen, chapter eleven of this code. Except for the exemption provided in section nine-f of said article, all exemptions and exceptions from the consumers sales and service tax shall also apply to the special district excise tax. ~~and sales of gasoline and special fuel shall not be subject to special district excise tax but shall remain subject to the tax levied by said article.~~
(c) Tax rate. -- The rate or rates of a special district excise tax levied pursuant to this section shall be stated in an ordinance enacted by the municipality and ~~equal~~ identical to the ~~general~~ rate or rates of the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on ~~each dollar of gross proceeds from~~ sales of tangible personal property and services subject to the tax levied by section three, article fifteen, chapter eleven of this code. The tax on fractional parts of a dollar shall be levied and collected in conformity with the provision of said section. rendered within the boundaries of the district authorized by this section.
(d) Collection by Tax Commissioner. -- The ordinance of the municipality imposing a special district excise tax shall provide for the tax to be collected by the Tax Commissioner in the same manner as the tax levied by section three, article fifteen, chapter eleven of this code is administered, assessed, collected and enforced.
(1) The State Tax Commissioner may require the electronic filing of returns related to the special district excise tax imposed pursuant to this section, and may require the electronic payment of the special district excise tax imposed pursuant to this section. The State Tax Commissioner may prescribe by rules promulgated pursuant to article three, chapter twenty-nine-a of this code administrative notices, and forms and instructions, the procedures and criteria to be followed to electronically file such returns and to electronically pay the special district excise tax imposed pursuant to this section.
(2) Any rules filed by the State Tax Commissioner relating to the special district excise tax imposed pursuant to this section shall set forth the following:
(A) Acceptable indicia of timely payment;
(B) Which type of electronic filing method or methods a particular type of taxpayer may or may not use;
(C) What type of electronic payment method or methods a particular type of taxpayer may or may not use;
(D) What, if any, exceptions are allowable and alternative methods of payment that may be used for any exceptions;
(E) Procedures for making voluntary or mandatory electronic payments or both;
(F) Any other provisions necessary to ensure the timely electronic filing of returns related to the special district excise tax and the making of payments electronically of the special district excise tax imposed pursuant to this section.
(3) (A) Notwithstanding the provisions of section five-d, article ten, chapter eleven of this code: (i) So long as bonds are outstanding pursuant to this article, the Tax Commissioner shall provide on a monthly basis to the trustee for bonds issued pursuant to this article information on returns submitted pursuant to this article; and (ii) the trustee may share the information so obtained with the county commission that established the economic opportunity development district that issued the bonds pursuant to this article and with the bondholders and with bond counsel for bonds issued pursuant to this article. The Tax Commissioner and the trustee may enter into a written agreement in order to accomplish such exchange of information.
(B) Any confidential information provided pursuant to this subdivision shall be used solely for the protection and enforcement of the rights and remedies of the bondholders of bonds issued pursuant to this article. Any person or entity that is in possession of information disclosed by the Tax Commissioner or shared by the trustee pursuant to subdivision (a) of this subsection is subject to the provisions of section five-d, article ten, chapter eleven of this code as if such person or entity that is in possession of such tax information is an officer, employee, agent or representative of this state or of a local or municipal governmental entity or other governmental subdivision.
(e) Deposit of net tax collected. --
(1) The ordinance of the municipality imposing a special district excise tax shall provide that the Tax Commissioner deposit the net amount of tax collected in the special Economic Opportunity Development District Fund to the credit of the municipality's subaccount therein for the economic opportunity development district and that the money in the subaccount may only be used to pay for development expenditures as provided in this article except as provided in subsection (f) of this section.
(2) (A) The State Treasurer shall withhold from the municipality's subaccount in the Economic Opportunity Development District Fund and shall deposit in the General Revenue Fund of this state, on or before the twentieth day of each calendar month next following the effective date of a special district excise tax, a sum equal to one twelfth of the base tax revenue amount last certified by the Development Office pursuant to section seven of this article.
(B) In addition to the amounts described in paragraph (A) of this subdivision, the Tax Commissioner shall deposit in the General Revenue Fund of this state on the dates specified in said paragraph not less than twenty percent nor more than fifty percent of the excess of the special district excise taxes collected during the preceding month above one twelfth of the base tax revenue, said percentage to be fixed by the Development Office in conjunction with its approval of an application in accordance with section seven of this article based on the amount of state funds, if any, to be expended in conjunction with the respective economic opportunity development district project for items including, but not limited to, the acquisition, construction, reconstruction, improvement, enlargement or extension of roadways, rights-of-way, sidewalks, traffic signals, water or sewer lines and other public infrastructure and such other expenditures of state funds identified by the Development Office.
(f) Effective date of special district excise tax. -- Any taxes imposed pursuant to the authority of this section shall be effective on the first day of the calendar month that begins at least sixty days after the date of enactment of the ordinance imposing the tax or at any later date expressly designated in the ordinance that begins on the first day of a calendar month.
(g) Copies of ordinance. -- Upon enactment of an ordinance levying a special district excise tax, a certified copy of the ordinance shall be mailed to the State Auditor, as ex officio the chief inspector and supervisor of public offices, the State Treasurer and the Tax Commissioner.

§8-38-16. Bonds issued to finance economic opportunity development district projects.

(a) General. -- The municipality that established the economic opportunity development district may issue bonds or notes for the purpose of financing development expenditures, as described in section five of this article, with respect to one or more projects within the economic opportunity development district.
(b) Limited obligations. -- All bonds and notes issued by a municipality under the authority of this article are limited obligations of the municipality.
(c) Term of obligations. -- No municipality may issue notes, bonds or other instruments for funding district projects or improvements that exceed a repayment schedule of thirty years: Provided, That the maximum repayment schedule of bonds issued to finance remediation authorized under section five of this article may not exceed twenty years.
(d) Debt service. -- The principal and interest on the bonds shall be payable out of the funds on deposit in the subaccount established for the economic opportunity development district pursuant to section eight of this article, including, without limitation, any funds derived from the special district excise tax imposed by section twelve of this article or other revenues derived from the economic opportunity development district to the extent pledged for the purpose by the municipality in the resolution authorizing the bonds.
(e) Surplus funds. -- To the extent that the average daily amount on deposit in the subaccount established for a district pursuant to section eight of this article exceeds, for more than six consecutive calendar months, the sum of: (1) One hundred thousand dollars; plus (2) the amount required to be kept on deposit pursuant to the documents authorizing, securing or otherwise relating to the bonds or notes issued under this section, then the excess shall be used by the district either to redeem the bonds or notes previously issued or remitted to the general fund of this state.
(f) Debt not general obligation of municipality. -- Neither the notes or bonds and any interest coupons issued under the authority of this article shall ever constitute an indebtedness of the municipality issuing the notes or bonds within the meaning of any constitutional provision or statutory limitation and shall never constitute or give rise to a pecuniary liability of the municipality issuing the notes or bonds.
(g) Debt not a charge general credit or taxing powers of municipality. -- Neither the bonds or notes, nor interest thereon, is a charge against the general credit or taxing powers of the municipality and that fact shall be plainly stated on the face of each bond or note.
(h) Issuance of bonds or notes. --
(1) Bonds or notes allowed under this section may be executed, issued and delivered at any time, and from time to time, may be in a form and denomination, may be of a tenor, must be negotiable but may be registered as to the principal thereof or as to the principal and interest thereof, may be payable in any amounts and at any time or times, may be payable at any place or places, may bear interest at any rate or rates payable at any place or places and evidenced in any manner and may contain any provisions therein not inconsistent herewith, all as provided in the ordinance of the municipality whereunder the bonds or notes are authorized to be issued.
(2) The bonds may be sold by the municipality at public or private sale at, above or below par as the municipality authorizes.
(3) Bonds and notes issued pursuant to this article shall be signed by the authorized representative of the municipality and attested by the municipal recorder and be under the seal of the municipality.
(4) Any coupons attached to the bonds shall bear the facsimile signature of the authorized representative of the municipality. In case any of the officials whose signatures appear on the bonds, notes or coupons cease to be officers before the delivery of the bonds or notes, their signatures shall, nevertheless, be valid and sufficient for all purposes to the same extent as if they had remained in office until the delivery.
(i) Additional bonds or notes. -- If the proceeds of the bonds or notes, by error of calculation or otherwise, are less than the cost of the economic opportunity development district project, or if additional real or personal property is to be added to the district project or if it is determined that financing is needed for additional development or redevelopment expenditures, additional bonds or notes may, in like manner, be issued to provide the amount of the deficiency or to defray the cost of acquiring or financing any additional real or personal property or development or redevelopment expenditures and, unless otherwise provided in the trust agreement, mortgage or deed of trust, are considered to be of the same issue and shall be entitled to payment from the same fund, without preference or priority, and shall be of equal priority as to any security.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 280--A Bill to amend and reenact §8-38-3, §8-38-5, §8-38-7, §8-38-12 and §8-38-16 of the Code of West Virginia, 1931, as amended, all relating to the Municipal Economic Opportunity Development District Act generally; adding certain remediation projects to those for which special district excise taxes may be authorized upon meeting certain requirements; clarifying the rates of the tax; authorizing the Tax Commissioner to require the electronic filing of returns and electronic payment of the tax; providing for the sharing of tax information and confidentiality of such information; and requiring additional deposits of the tax into the General Revenue Fund in certain circumstances.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 280, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 280) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 323, Relating to stormwater systems generally.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 20. COMBINED SYSTEMS.

§8-20-10. Power and authority of municipality to enact ordinances and make rules and fix rates, fees or charges; deposit required for new customers; change in rates, fees or charges; failure to cure delinquency; delinquent rates, discontinuance of service; reconnecting deposit; return of deposit; fees or charges as liens; civil action for recovery thereof; deferral of filing fees and costs in magistrate court action; limitations with respect to foreclosure.

(a) (1) The governing body of a municipality availing itself of the provisions of this article shall have plenary power and authority to make, enact and enforce all ~~needful~~ necessary rules for the repair, maintenance, ~~and~~ operation and management of the combined system of ~~such~~ the municipality and for the use thereof. ~~and shall also have~~ The governing body of a municipality also has the plenary power and authority to make, enact and enforce all ~~needful~~ necessary rules and ordinances for the care and protection of any such system, ~~which may be conducive to the preservation of the public~~ for the health, comfort and convenience ~~and to rendering the~~ of the public; to provide a clean water supply, ~~of such municipality pure, the sewerage harmless insofar as it is reasonably possible so to do, and~~ to provide properly treated sewage insofar as it is reasonably possible to do and, if applicable, to properly collecting and controlling the stormwater as is reasonably possible so to do: Provided, That no municipality may make, enact or enforce any rule, regulation or ordinance regulating any highways, road or drainage easements or storm water facilities constructed, owned or operated by the West Virginia Division of Highways. ~~except in accordance with chapter twenty-nine-a of this code.~~
(2) ~~Any~~ A municipality ~~shall have~~ has the plenary power and authority to charge the users for the use and service of a combined system and to establish required deposits, rates, fees or charges for such purpose. Separate deposits, rates, fees or charges may be fixed for the water and sewer services respectively and, if applicable, the stormwater services, or combined rates, fees or for the combined water and sewer services, and, if applicable, the stormwater services. Such deposits, rates, fees or charges, whether separate or combined, shall be sufficient at all times to pay the cost of repair, maintenance and operation of the combined system, provide an adequate reserve fund, ~~and~~ an adequate depreciation fund and pay the principal of and interest upon all revenue bonds issued under this article. Deposits, rates, fees or charges shall be established, revised and maintained by ordinance and become payable as the governing body may determine by ordinance. ~~and such~~ The rates, fees or charges shall be changed, from time to time, as ~~needful~~ necessary, consistent with the provisions of this article.
(3) All new applicants for service shall indicate to the municipality or governing body whether they are an owner or tenant with respect to the service location. An entity providing stormwater service shall provide a tenant a report of the stormwater fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the tenant.
(4) The municipality or governing body, but only one of them, may collect from all new applicants for service a deposit of one hundred dollars or two twelfths of the average annual usage of the applicant?s specific customer class, whichever is greater, to secure the payment of water and sewage service rates, fees and charges in the event they become delinquent as provided in this section. In any case where a deposit is forfeited to pay service rates, fees and charges which were delinquent and the user?s service is disconnected or terminated, ~~no reconnecting or reinstatement of~~ service may not be ~~made~~ reconnected or reinstated by the municipality or governing body until another deposit equal to one hundred dollars or a sum equal to two twelfths of the average usage for the applicant?s specific customer class, whichever is greater, is remitted to the municipality or governing body. After twelve months of prompt payment history, the municipality or governing body shall return the deposit to the customer or credit the customer?s account with interest at a rate as to be set by the Public Service Commission ~~may prescribe~~: Provided, That where the customer is a tenant, the municipality or governing body is not required to return the deposit until the time the tenant discontinues service with the municipality or governing body. Whenever any rates, fees, rentals or charges for services or facilities furnished remain unpaid for a period of twenty days after ~~the same~~ they become due ~~and payable~~, the user of the services and facilities provided is delinquent and the user is liable at law until all rates, fees and charges are fully paid. The municipality or governing body may ~~under reasonable rules promulgated by the Public Service Commission, shut off and discontinue~~ terminate water services to a delinquent user of either water or sewage facilities, or both, ten days after the water or sewage services become delinquent regardless of whether the governing body utilizes the security deposit to satisfy any delinquent payments: Provided, That any termination of water service must comply with all rules and orders of the Public Service Commission .
(b) Whenever any rates, fees or charges for services or facilities furnished remain unpaid for a period of twenty days after ~~the same~~ they become due ~~and payable~~, the user of the services and facilities provided shall be delinquent and the municipality or governing body may apply any deposit against any delinquent fee. ~~and the~~ The user ~~shall be held~~ is liable ~~at law~~ until such time as all rates, fees and charges are fully paid.
(c) All rates, fees or charges for water service, sewer service and, if applicable, stormwater service, whenever delinquent, as provided by ordinance of the municipality, shall be liens of equal dignity, rank and priority with the lien on such premises of state, county, school and municipal taxes for the amount thereof upon the real property served. ~~and the~~ The municipality ~~shall have~~ has the plenary power and authority ~~from time to time~~ to enforce such lien in a civil action to recover the money due for services rendered plus court fees and costs and a reasonable attorney?s ~~fee~~ fees: Provided, That an owner of real property may not be held liable for the delinquent rates, fees or charges for services or facilities of a tenant, nor shall any lien attach to real property for the reason of delinquent rates, fees or charges for services or facilities of a tenant of the real property, unless the owner has contracted directly with the municipality to purchase such services or facilities.
(d) Municipalities are hereby granted a deferral of filing fees or other fees and costs incidental to ~~the bringing and maintenance of~~ filing an action in magistrate court for ~~the~~ collection of the delinquent rates and charges. If the municipality collects the delinquent account, plus fees and costs, from its customer or other responsible party, the municipality shall pay to the magistrate court the filing fees or other fees and costs which were previously deferred.
(e) No municipality may foreclose upon the premises served by it for delinquent rates, fees or charges for which a lien is authorized by this section except through ~~the bringing and maintenance of~~ a civil action ~~for the purpose brought~~ in the circuit court of the county wherein the municipality lies. In every such action, the court shall be required to make a finding based upon the evidence and facts presented that the municipality ~~had~~ has exhausted all other remedies for ~~the~~ collection of debts with respect to such delinquencies prior to ~~the~~ bringing of the action. In no event shall foreclosure procedures be instituted by any municipality or on its behalf unless the delinquency ~~had~~ has been in existence or continued for a period of two years from the date of the first delinquency for which foreclosure is being sought.
(f) Notwithstanding any other provision contained in this article, a municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community, as defined in 40 C. F. R. §122.26, has the authority to enact ordinances or regulations which allow for the issuance of orders, the right to enter properties and the right to impose reasonable fines and penalties regarding correction of violations of municipal stormwater ordinances or regulations within the municipal watershed served by the municipal stormwater system, as long as such rules, regulations, fines or acts are not contrary to any rules or orders of the Public Service Commission.
(g) Notice of a violation of a municipal stormwater ordinance or regulation shall be served in person to the alleged violator or by certified mail, return receipt requested. The notice shall state the nature of the violation, the potential penalty, the action required to correct the violation and the time limit for making the correction. Should a person, after receipt of proper notice, fail to correct violation of the municipal stormwater ordinance or regulation, the municipality may correct or have the corrections of the violation made and bring the party into compliance with the applicable stormwater ordinance or regulation. The municipality may collect the costs of correcting the violation from the person by instituting a civil action, as long as such actions are not contrary to any rules or orders of the Public Service Commission.
(h) A municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community shall prepare an annual report detailing the collection and expenditure of rates, fees or charges and make it available for public review at the place of business of the governing body and the stormwater utility main office.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13. SEWAGE WORKS AND STORMWATER WORKS.
§16-13-16. Rates for service; deposit required for new customers; forfeiture of deposit; reconnecting deposit; tenant's deposit; change or readjustment; hearing; lien and recovery; discontinuance of services.

~~The governing body shall have power, and it shall be its~~ A governing body has the power and duty, by ordinance, to establish and maintain just and equitable rates, fees or charges for the use of and the service rendered by:
(a) Sewerage works, to be paid by the owner of each and every lot, parcel of real estate or building that is connected with and uses such works by or through any part of the sewerage system of the municipality or that in any way uses or is served by such works; and
(b) Stormwater works, to be paid by the owner of each and every lot, parcel of real estate or building that in any way uses or is served by such stormwater works or whose property is improved or protected by the stormwater works or any user of such stormwater works.
(c) The governing body may change and readjust such rates, fees or charges from time to time. However, no rates, fees or charges for stormwater services may be assessed against highways, road and drainage easements ~~and/or~~ or stormwater facilities constructed, owned ~~and/or~~ or operated by the West Virginia Division of Highways.
(d) All new applicants for service shall indicate to the governing body whether they are an owner or tenant with respect to the service location. An entity providing stormwater service shall provide a tenant a report of the stormwater fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the tenant.
(e) The governing body may collect from all new applicants for service a deposit of fifty dollars or two twelfths of the average annual usage of the applicant's specific customer class, whichever is greater, to secure the payment of service rates, fees and charges in the event they become delinquent as provided in this section. In any case where a deposit is forfeited to pay service rates, fees and charges which were delinquent at the time of disconnection or termination of service, ~~no reconnecting or reinstatement of~~ service may not be ~~made~~ reconnected or reinstated by the governing body until another deposit equal to fifty dollars or a sum equal to two twelfths of the average usage for the applicant's specific customer class, whichever is greater, is remitted to the governing body. After twelve months of prompt payment history, the governing body shall return the deposit to the customer or credit the customer's account with interest at a rate as the Public Service Commission may prescribe: Provided, That where the customer is a tenant, the governing body is not required to return the deposit until the time the tenant discontinues service with the governing body. Whenever any rates, fees, rentals or charges for services or facilities furnished remain unpaid for a period of twenty days after ~~the same~~ they become due ~~and payable~~, the user of the services and facilities provided is delinquent. ~~and the~~ The user is liable ~~at law~~ until all rates, fees and charges are fully paid. The governing body may, under reasonable rules promulgated by the Public Service Commission, shut off and discontinue water services to a delinquent user of sewer facilities ten days after the sewer services become delinquent regardless of whether the governing body utilizes the security deposit to satisfy any delinquent payments.
(f) Such rates, fees or charges shall be sufficient in each year for the payment of the proper and reasonable expense of operation, repair, replacements and maintenance of the works and for the payment of the sums herein required to be paid into the sinking fund. Revenues collected pursuant to this section shall be considered the revenues of the works.
(g) No such rates, fees or charges shall be established until after a public hearing, at which all the users of the works and owners of property served or to be served thereby and others interested shall have an opportunity to be heard concerning the proposed rates, fees or charges.
(h) After introduction of the ordinance fixing such rates, fees or charges, and before the same is finally enacted, notice of such hearing, setting forth the proposed schedule of ~~such~~ rates, fees or charges, shall be given by publication as a Class II-0 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 municipality. The first publication shall be made at least ten days before the date fixed in ~~such~~ the notice for the hearing.
(i) After ~~such~~ the hearing, which may be adjourned, from time to time, the ordinance establishing rates, fees or charges, either as originally introduced or as modified and amended, shall be passed and put into effect. A copy of the schedule of ~~such~~ the rates, fees and charges ~~so established~~ shall be kept on file in the office of the board having charge of the operation of such works, and also in the office of the clerk of the municipality, and shall be open to inspection by all parties interested. The rates, fees or charges so established for any class of users or property served shall be extended to cover any additional premises thereafter served which fall within the same class, without the necessity of any hearing or notice.
(j) Any change or readjustment of such rates, fees or charges may be made in the same manner as ~~such~~ the rates, fees or charges were originally established as hereinbefore provided: Provided, That if ~~such~~ a change or readjustment be made substantially pro rata, as to all classes of service, no hearing or notice shall be required. The aggregate of the rates, fees or charges shall always be sufficient for ~~such~~ the expense of operation, repair and maintenance and for ~~such~~ the sinking fund payments.
(k) All rates, fees or charges, if not paid when due, shall constitute a lien upon the premises served by such works. If any service rate, fees or charge ~~so established~~ is not paid within twenty days after ~~the same~~ it is due, the amount thereof, together with a penalty of ten percent, and a reasonable attorney's fee, may be recovered by the board in a civil action in the name of the municipality. ~~and in connection with such action said~~ The lien may be foreclosed against such lot, parcel of land or building, in accordance with the laws relating thereto. ~~Provided,~~ ~~That where~~ Where both water and sewer services are furnished by any municipality to any premises the schedule of charges may be billed as a single amount or individually itemized and billed for the aggregate thereof.
(l) Whenever any rates, rentals, fees or charges for services or facilities furnished shall remain unpaid for a period of twenty days after ~~the same shall~~ they become due ~~and payable~~, the property and the owner thereof, as well as the user of the services and facilities shall be delinquent until such time as all rates, fees and charges are fully paid. When any payment for rates, rentals, fees or charges becomes delinquent, the governing body may use the security deposit to satisfy the delinquent payment.
(m) The board collecting ~~such~~ the rates, fees or charges shall be obligated under reasonable rules to shut off and discontinue both water and sewer services to all delinquent users of ~~either~~ water, ~~facilities, or~~ sewer ~~facilities~~ or ~~both~~ stormwater facilities and shall not restore either water facilities or sewer facilities to any delinquent user of any such facilities until all delinquent rates, fees or charges for ~~both~~ water ~~facilities~~, ~~and~~ sewer and stormwater facilities, including reasonable interest and penalty charges, have been paid in full, as long as such actions are not contrary to any rules or orders of the Public Service Commission.

§16-13-23a. Additional powers of municipality to cease pollution.

(a) Notwithstanding any other provision contained in this article, and in addition thereto, the governing body of any ~~municipal corporation~~ municipality which has received or which hereafter receives an order issued by the ~~Director of the Division of~~ Secretary of the Department of Environmental Protection or the Environmental Quality Board requiring ~~such municipal corporation~~ the municipality to cease the pollution of any stream or waters, is hereby authorized ~~and empowered~~ to ~~fix,~~ establish and maintain, by ordinance, just and equitable rates, fees or charges for the use of the services and facilities of the existing municipal sewer system ~~and/or~~ and/or stormwater system ~~of such municipal corporation~~, ~~and/or~~ or for the use of the services and facilities to be rendered upon completion of any works and system necessary by virtue of said order, to be paid by the owner, tenant or occupant of each and every lot or parcel of real estate or building that is connected with and uses any part of such sewer system or stormwater system, or that in any way uses or is served thereby, and may change and readjust such rates, fees or charges from time to time.
(b) ~~Such~~ The rates, fees or charges shall be sufficient ~~for the payment of~~ to all the proper and reasonable costs and expenses of the acquisition and construction of plants, machinery and works for the collection, ~~and/or~~ treatment, purification and disposal of sewage or stormwater and the repair, alteration and extension of existing sewer facilities or stormwater facilities, as may be necessary to comply with such order of the ~~Director of the Division~~ Secretary of the Department of Environmental Protection or the Environmental Quality Board, and for the operation, maintenance and repair of the entire works and system.
(c) The governing body shall create, by ordinance, a sinking fund to accumulate and hold any part or all of the proceeds derived from rates or charges until completion of the construction, to be remitted to and administered by the Municipal Bond Commission by expending and paying the costs and expenses of construction and operation in the manner as provided by said ordinance.
(d) After the completion of the construction ~~such~~ the rates, fees or charges shall be sufficient in each year for the payment of the proper and reasonable costs and expenses of operation, maintenance, repair, replacement and extension, from time to time, of the entire sewer and works or entire stormwater works.
(e) No such rates, fees or charges shall be established until after a public hearing, at which all the potential users of the works and owners of property served or to be served thereby and others shall have had an opportunity to be heard concerning the proposed rates or charges.
(f) After introduction of the ordinance fixing rates, fees or charges, and before the same is finally enacted, notice of such hearing, setting forth the proposed schedule of rates, fees or charges, shall be given by publication of notice as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. ~~and the~~ The publication area for such publication is the municipality. The first publication shall be made at least ten days before the date fixed therein for the hearing.
(g) After such hearing, which may be adjourned from time to time, the ordinance establishing the rates, fees or charges, either as originally introduced or as modified and amended, may be passed and put into effect. A copy of the schedule of the rates, fees and charges so established shall be kept on file in the office of the sanitary board having charge of the construction and operation of such works and ~~also~~ in the office of the clerk of the municipality. ~~and~~ The schedule of rates, fees and charges shall be open to inspection by all parties interested. The rates, fees or charges so established for any class of users or property served shall be extended to cover any additional premises thereafter served which fall within the same class, without the necessity of any hearing or notice.
(h) Any change or readjustment of rates, fees or charges may be made in the same manner as rates, fees or charges were originally established as hereinbefore provided: Provided, That if such change or readjustment be made substantially pro rata, as to all classes of service, no hearing or notice is required.
(i) If any rate, fee or charge ~~so established~~ is not paid within thirty days after ~~the same~~ it is due, the amount thereof, together with a penalty of ten percent, and a reasonable attorney's fee, may be recovered by the sanitary board of ~~such municipal corporation~~ the municipality in a civil action in the name of the municipality.
(j) Any ~~municipal corporation~~ municipality exercising the powers given herein has the authority to construct, acquire, improve, equip, operate, repair and maintain any plants, machinery or works necessary to comply with the order of the ~~Director of the Division~~ Secretary of the Department of Environmental Protection or the Environmental Quality Board and the authority provided herein to establish, maintain and collect rates, fees or charges is an additional and alternative method of financing such works and matters, and is independent of any other provision of this article insofar as the article provides for or requires the issuance of revenue bonds or the imposition of rates, fees and charges in connection with the bonds: Provided, That except for the method of financing such works and matters, the construction, acquisition, improvement, equipment, custody, operation, repair and maintenance of any plants, machinery or works in compliance with an order of the ~~Director of the Division~~ Secretary of the Department of Environmental Protection or the Environmental Quality Board and the rights, powers and duties of the ~~municipal corporation~~ municipality and the respective officers and departments thereof, including the sanitary board, are governed by the provisions of this article. ~~Provided, however,~~ ~~That the~~
(k) The jurisdiction and authority provided by this section does not extend to highways, road and drainage easements ~~and/or~~ and stormwater facilities constructed, owned ~~and/or~~ or operated by the West Virginia Division of Highways and no rates, fees or charges for stormwater services or costs of compliance may be assessed against highways, road and drainage easements and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways.
(l) A municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community, as defined in 40 C. F. R. §122.26, has the authority to enact ordinances or regulations which allow for the issuance of orders, the right to enter properties and the right to impose reasonable fines and penalties regarding correction of violations of municipal stormwater ordinances or regulations within the municipal watershed served by the municipal stormwater system, as long as such rules, regulations, fines or actions are not contrary to any rules or orders of the Public Service Commission.
(m) Notice of a violation of a municipal stormwater ordinance or regulation shall be served in person to the alleged violator or by certified mail, return receipt requested. The notice shall state the nature of the violation, the potential penalty, the action required to correct the violation and the time limit for making the correction. Should a person, after receipt of proper notice, fail to correct the violation of the municipal stormwater ordinance or regulation, the municipality may make or have made the corrections of the violation and bring the party into compliance with the applicable stormwater ordinance or regulation. The municipality may collect the costs of correcting the violation from the person by instituting a civil action, as long as such actions are not contrary to any rules or orders of the Public Service Commission.
(n) A municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community shall prepare an annual report detailing the collection and expenditure of rates, fees or charges and make it available for public review at the place of business of the governing body and the stormwater utility main office.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS.

§16-13A-9. Rules; service rates and charges; discontinuance of service; required water and sewer connections; lien for delinquent fees.

(a) (1) The board may make, enact and enforce all needful rules in connection with the acquisition, construction, improvement, extension, management, maintenance, operation, care, protection and the use of any public service properties owned or controlled by the district. The board shall establish rates, fees and charges for the services and facilities it furnishes, which shall be sufficient at all times, notwithstanding the provisions of any other law or laws, to pay the cost of maintenance, operation and depreciation of the public service properties and principal of and interest on all bonds issued, other obligations incurred under the provisions of this article and all reserve or other payments provided for in the proceedings which authorized the issuance of any bonds under this article. The schedule of the rates, fees and charges may be based upon:
(A) The consumption of water or gas on premises connected with the facilities, taking into consideration domestic, commercial, industrial and public use of water and gas;
(B) The number and kind of fixtures connected with the facilities located on the various premises;
(C) The number of persons served by the facilities;
(D) Any combination of paragraphs (A), (B) and (C) of this subdivision; or
(E) May be determined on any other basis or classification which the board may determine to be fair and reasonable, taking into consideration the location of the premises served and the nature and extent of the services and facilities furnished. However, no rates, fees or charges for stormwater services may be assessed against highways, road and drainage easements or stormwater facilities constructed, owned or operated by the West Virginia Division of Highways.
(2) Where water, sewer, stormwater or gas services, or any combination thereof, are all furnished to any premises, the schedule of charges may be billed as a single amount for the aggregate of the charges. The board shall require all users of services and facilities furnished by the district to designate on every application for service whether the applicant is a tenant or an owner of the premises to be served. If the applicant is a tenant, he or she shall state the name and address of the owner or owners of the premises to be served by the district. Notwithstanding the provisions of section eight, article three, chapter twenty-four of this code to the contrary, all new applicants for service shall deposit the greater of a sum equal to two twelfths of the average annual usage of the applicant's specific customer class or fifty dollars, with the district to secure the payment of service rates, fees and charges in the event they become delinquent as provided in this section. If a district provides both water and sewer service, all new applicants for service shall deposit the greater of a sum equal to two twelfths of the average annual usage for water service or fifty dollars and the greater of a sum equal to two twelfths of the average annual usage for wastewater service of the applicant's specific customer class or fifty dollars. In any case where a deposit is forfeited to pay service rates, fees and charges which were delinquent at the time of disconnection or termination of service, no reconnection or reinstatement of service may be made by the district until another deposit equal to the greater of a sum equal to two twelfths of the average usage for the applicant's specific customer class or fifty dollars has been remitted to the district. After twelve months of prompt payment history, the district shall return the deposit to the customer or credit the customer's account at a rate as the Public Service Commission may prescribe: Provided, That where the customer is a tenant, the district is not required to return the deposit until the time the tenant discontinues service with the district. Whenever any rates, fees, rentals or charges for services or facilities furnished remain unpaid for a period of twenty days after the same become due and payable, the user of the services and facilities provided is delinquent and the user is liable at law until all rates, fees and charges are fully paid. The board may, under reasonable rules promulgated by the Public Service Commission, shut off and discontinue water or gas services to all delinquent users of either water or gas facilities, or both, ten days after the water or gas services become delinquent.
(b) In the event that any publicly or privately owned utility, city, incorporated town, other municipal corporation or other public service district included within the district owns and operates separately ~~either~~ water facilities, or sewer facilities or stormwater facilities and the district owns and operates ~~the other~~ another kind of ~~facilities~~ facility either water or sewer, or both, as the case may be, then the district and the publicly or privately owned utility, city, incorporated town or other municipal corporation or other public service district shall covenant and contract with each other to shut off and discontinue the supplying of water service for the nonpayment of sewer or stormwater service fees and charges: Provided, That any contracts entered into by a public service district pursuant to this section shall be submitted to the Public Service Commission for approval. Any public service district ~~providing~~ which provides water and sewer service, ~~to its customers~~ water and stormwater service or water, sewer and stormwater service has the right to terminate water service for delinquency in payment of ~~either~~ water, or sewer or stormwater bills. Where one public service district is providing sewer service and another public service district or a municipality included within the boundaries of the sewer or stormwater district is providing water service and the district providing sewer or stormwater service experiences a delinquency in payment, the district or the municipality included within the boundaries of the sewer or stormwater district that is providing water service, upon the request of the district providing sewer or stormwater service to the delinquent account, shall terminate its water service to the customer having the delinquent sewer or stormwater account: Provided, however, That any termination of water service must comply with all rules and orders of the Public Service Commission.
(c) Any district furnishing sewer facilities within the district may require, or may by petition to the circuit court of the county in which the property is located, compel or may require the Division of Health to compel all owners, tenants or occupants of any houses, dwellings and buildings located near any sewer facilities where sewage will flow by gravity or be transported by other methods approved by the Division of Health, including, but not limited to, vacuum and pressure systems, approved under the provisions of section nine, article one, chapter sixteen of this code, from the houses, dwellings or buildings into the sewer facilities, to connect with and use the sewer facilities and to cease the use of all other means for the collection, treatment and disposal of sewage and waste matters from the houses, dwellings and buildings where there is gravity flow or transportation by any other methods approved by the Division of Health, including, but not limited to, vacuum and pressure systems, approved under the provisions of section nine, article one, chapter sixteen of this code and the houses, dwellings and buildings can be adequately served by the sewer facilities of the district and it is declared that the mandatory use of the sewer facilities provided for in this paragraph is necessary and essential for the health and welfare of the inhabitants and residents of the districts and of the state. If the public service district requires the property owner to connect with the sewer facilities even when sewage from dwellings may not flow to the main line by gravity and the property owner incurs costs for any changes in the existing dwellings' exterior plumbing in order to connect to the main sewer line, the Public Service District Board shall authorize the district to pay all reasonable costs for the changes in the exterior plumbing, including, but not limited to, installation, operation, maintenance and purchase of a pump or any other method approved by the Division of Health. Maintenance and operation costs for the extra installation should be reflected in the users charge for approval of the Public Service Commission. The circuit court shall adjudicate the merits of the petition by summary hearing to be held not later than thirty days after service of petition to the appropriate owners, tenants or occupants.
(d) Whenever any district has made available sewer facilities to any owner, tenant or occupant of any house, dwelling or building located near the sewer facility and the engineer for the district has certified that the sewer facilities are available to and are adequate to serve the owner, tenant or occupant and sewage will flow by gravity or be transported by other methods approved by the Division of Health from the house, dwelling or building into the sewer facilities, the district may charge, and the owner, tenant or occupant shall pay, the rates and charges for services established under this article only after thirty-day notice of the availability of the facilities has been received by the owner, tenant or occupant. Rates and charges for sewage services shall be based upon actual water consumption or the average monthly water consumption based upon the owner's, tenant's or occupant's specific customer class.
(e) Whenever any district has made available a stormwater system to any owner, tenant or occupant of any real property located near the stormwater system and where stormwater from real property affects or drains into the stormwater system, it is hereby found, determined and declared that the owner, tenant or occupant is being served by the stormwater system and it The owner, tenant or occupant of any real property may be determined and declared to be served by a stormwater system only after each of the following conditions is met: (1) The district has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community, as defined in 40 C. F. R. §122.26; (2) the district's authority has been properly expanded to operate and maintain a stormwater system; (3) the district has made available a stormwater system where stormwater from the real property affects or drains into the stormwater system; and (4) the real property is located in the Municipal Separate Storm Sewer System's designated service area. It is further hereby found, determined and declared that the mandatory use of the stormwater system is necessary and essential for the health and welfare of the inhabitants and residents of the district and of the state. The district may charge, and the owner, tenant or occupant shall pay the rates, fees and charges for stormwater services established under this article only after thirty-day notice of the availability of the stormwater system has been received by the owner. An entity providing stormwater service shall provide a tenant a report of the stormwater fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the tenant.
(f) All delinquent fees, rates and charges of the district for either water facilities, sewer facilities, gas facilities or stormwater systems or stormwater management programs are liens on the premises served of equal dignity, rank and priority with the lien on the premises of state, county, school and municipal taxes. In addition to the other remedies provided in this section, public service districts are granted a deferral of filing fees or other fees and costs incidental to the bringing and maintenance of an action in magistrate court for the collection of delinquent water, sewer, stormwater or gas bills. If the district collects the delinquent account, plus reasonable costs, from its customer or other responsible party, the district shall pay to the magistrate the normal filing fee and reasonable costs which were previously deferred. In addition, each public service district may exchange with other public service districts a list of delinquent accounts: Provided, That an owner of real property may not be held liable for the delinquent rates or charges for services or facilities of a tenant, nor may any lien attach to real property for the reason of delinquent rates or charges for services or facilities of a tenant of the real property, unless the owner has contracted directly with the public service district to purchase the services or facilities.
(g) Anything in this section to the contrary notwithstanding, any establishment, as defined in section three, article eleven, chapter twenty-two of this code, now or hereafter operating its own sewage disposal system pursuant to a permit issued by the Department of Environmental Protection, as prescribed by section eleven, article eleven, chapter twenty-two of this code, is exempt from the provisions of this section.
(h) A public service district which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community shall prepare an annual report detailing the collection and expenditure of rates, fees or charges and make it available for public review at the place of business of the governing body and the stormwater utility main office.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 323, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Bowman, Caruth, Chafin, Deem, Edgell, Fanning, Foster, Green, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Unger, Wells, White and Tomblin (Mr. President)--26.
The nays were: Barnes, Boley, Facemyer, Hall, Sprouse, Sypolt and Yoder--7.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 323) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 503, Requiring solid waste facility permit applicants furnish fingerprints for criminal background checks.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
§22-1-6. Secretary of the Department of Environmental Protection.
(a) The secretary is the chief executive officer of the ~~division~~ department. Subject to section seven of this article and other provisions of law, the secretary shall organize the department into such offices, sections, agencies and other units of activity as may be found by the secretary to be desirable for the orderly, efficient and economical administration of the department and for the accomplishment of its objects and purposes. The secretary may appoint a deputy secretary, chief of staff, assistants, hearing officers, clerks, stenographers and other officers, technical personnel and employees needed for the operation of the department and may prescribe their powers and duties and fix their compensation within amounts appropriated.
(b) The secretary has the power to and may designate supervisory officers or other officers or employees of the department to substitute for him or her on any board or commission established under this code or to sit in his or her place in any hearings, appeals, meetings or other activities with such substitute having the same powers, duties, authority and responsibility as the secretary. The secretary has the power to delegate, as he or she considers appropriate, to supervisory officers or other officers or employees of the department his or her powers, duties, authority and responsibility relating to issuing permits, hiring and training inspectors and other employees of the department, conducting hearings and appeals and such other duties and functions set forth in this chapter or elsewhere in this code.
(c) The secretary has responsibility for the conduct of the intergovernmental relations of the department, including assuring:
(1) That the department carries out its functions in a manner which supplements and complements the environmental policies, programs and procedures of the federal government, other state governments and other instrumentalities of this state; and
(2) That appropriate officers and employees of the ~~division~~ department consult with individuals responsible for making policy relating to environmental issues in the federal government, other state governments and other instrumentalities of this state concerning differences over environmental policies, programs and procedures and concerning the impact of statutory law and rules upon the environment of this state.
(d) In addition to other powers, duties and responsibilities granted and assigned to the secretary by this chapter, the secretary is ~~hereby~~ authorized and empowered to:
(1) Sign and execute in the name of the state by the Department of Environmental Protection any contract or agreement with the federal government or its departments or agencies, subdivisions of the state, corporations, associations, partnerships or individuals: Provided, That the powers granted to the secretary to enter into agreements or contracts and to make expenditures and obligations of public funds under this subdivision may not exceed or be interpreted as authority to exceed the powers granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department pursuant to the provisions of chapter five-f of this code;
(2) Conduct research in improved environmental protection methods and disseminate information to the citizens of this state;
(3) Enter private lands to make surveys and inspections for environmental protection purposes; to investigate for violations of statutes or rules which the ~~division~~ department is charged with enforcing; to serve and execute warrants and processes; to make arrests; issue orders, which for the purposes of this chapter include consent agreements; and to otherwise enforce the statutes or rules which the ~~division~~ department is charged with enforcing;
(4) Require any applicant or holder of a permit to install, establish, modify, operate or close a solid waste facility to furnish the fingerprints of the applicant or permittee; any officer, director or manager of the applicant or permittee; any person owning a five percent or more interest, beneficial or otherwise, in the applicant's or permittee's business; or any other person conducting or managing the affairs of the applicant or permittee or of the proposed licensed premises, in whole or in part. These fingerprints may be used to obtain and review any police record for the purposes that may be relevant pursuant to section five, article fifteen of this chapter, and to use the fingerprints furnished to conduct a criminal records check through the Criminal Identification Bureau of the West Virginia State Police and a national criminal history check through the Federal Bureau of Investigation. The results of the checks shall be provided to the secretary.
~~(4)~~ (5) Acquire for the state in the name of the Department of Environmental Protection by purchase, condemnation, lease or agreement, or accept or reject for the state, in the name of the Department of Environmental Protection, gifts, donations, contributions, bequests or devises of money, security or property, both real and personal, and any interest in property;
~~(5)~~ (6) Provide for workshops, training programs and other educational programs, apart from or in cooperation with other governmental agencies, necessary to ensure adequate standards of public service in the department. The secretary may provide for technical training and specialized instruction of any employee. Approved educational programs, training and instruction time may be compensated for as a part of regular employment. The secretary is authorized to pay out of federal or state funds, or both, as such funds are available, fees and expenses incidental to ~~such~~ the educational programs, training and instruction. Eligibility for participation by employees ~~will~~ shall be in accordance with guidelines established by the secretary;
~~(6)~~ (7) Issue certifications required under 33 U. S. C. §1341 of the federal Clean Water Act and enter into agreements in accordance with the provisions of section seven-a, article eleven of this chapter. Prior to issuing any certification the secretary shall solicit from the Division of Natural Resources reports and comments concerning the possible certification. The Division of Natural Resources shall direct the reports and comments to the secretary for consideration; and
~~(7)~~ (8) Notwithstanding any provisions of this code to the contrary, employ in-house counsel to perform all legal services for the secretary and the department, including, but not limited to, representing the secretary, any chief, the department or any office thereof in any administrative proceeding or in any proceeding in any state or federal court. Additionally, the secretary may call upon the Attorney General for legal assistance and representation as provided by law.
(e) The secretary shall be appointed by the Governor, by and with the advice and consent of the Senate, and serves at the will and pleasure of the Governor.
(f) At the time of his or her initial appointment, the secretary must be at least thirty years old and ~~must~~ shall be selected with special reference and consideration given to his or her administrative experience and ability, to his or her demonstrated interest in the effective and responsible regulation of the energy industry and the conservation and wise use of natural resources. The secretary must have at least a bachelor's degree in a related field and at least three years of experience in a position of responsible charge in at least one discipline relating to the duties and responsibilities for which the secretary will be responsible upon assumption of the office. The secretary may not be a candidate for or hold any other public office, may not be a member of any political party committee and shall immediately forfeit and vacate his or her office as secretary in the event he or she becomes a candidate for or accepts appointment to any other public office or political party committee.
(g) The secretary shall receive an annual salary as provided in section two-a, article seven, chapter six of this code and ~~will be~~ is allowed and shall be paid necessary expenses incident to the performance of his or her official duties. Prior to the assumption of the duties of his or her office, the secretary shall take and subscribe to the oath required of public officers prescribed by section five, article IV of the Constitution of West Virginia and shall execute a bond, with surety approved by the Governor, in the penal sum of ten thousand dollars, which executed oath and bond will be filed in the Office of the Secretary of State. Premiums on the bond ~~will~~ shall be paid from the department funds.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 503, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 503) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 504, Relating to child support enforcement.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §38-3-18 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §48-1-205, §48-1-225, §48-1-230 and §48-1-302 of said code be amended and reenacted; that §48-11-103 and §48-11-105 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §48-13- 804; that §48-14-102, §48-14-106, §48-14-203, §48-14-302, §48-14- 404, §48-14-407, §48-14-408, §48-14-502, §48-14-503, §48-14-701 and §48-14-801 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §48-14-108; that §48-15-201 of said code be amended and reenacted; that §48-17- 101, §48-17-102, §48-17-103, §48-17-105, §48-17-106, §48-17-107 and §48-17-109 of said code be amended and reenacted; that §48-18-102, §48-18-118, §48-18-120, §48-18-202, §48-18-205 and §48-18-206 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §48-18-118a, all to read as follows:
CHAPTER 38. LIENS.

ARTICLE 3. JUDGMENT LIENS.

§38-3-18. Limitations on enforcement of judgments.
(a) On a judgment, execution may be issued within ten years after the date thereof. Where execution issues within ten years as aforesaid, other executions may be issued on such judgment within ten years from the return day of the last execution issued thereon, on which there is no return by an officer, or which has been returned unsatisfied.
(b) For any order for child support in an action filed on and after the amendment and reenactment of this section during the legislative session of two thousand eight, an execution may be issued upon a judgment for child support, as those terms are defined in chapter forty-eight of this code, within ten years after the emancipation of the child: Provided, That in cases where the support order is for more than one child, the limitations set forth in subsection (a) of this section commence when the youngest child who is the subject of the order on which the execution is based reaches the age of eighteen or is otherwise legally emancipated.
(c)An action, suit or scire facias may be brought upon a judgment where there has been a change of parties by death or otherwise at any time within ten years next after the date of the judgment; or within ten years from the return day of the last execution issued thereon on which there is no return by an officer or which has been returned unsatisfied. But if such action, suit or scire facias be against the personal representative of a decedent, it shall be brought within five years from the qualification of such representative.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-205. Attributed income defined.
(a) "Attributed income" means income not actually earned by a parent but which may be attributed to the parent because he or she is unemployed, is not working full time or is working below full earning capacity or has nonperforming or underperforming assets. Income may be attributed to a parent if the court evaluates the parent's earning capacity in the local economy (giving consideration to relevant evidence that pertains to the parent's work history, qualifications, education and physical or mental condition) and determines that the parent is unemployed, is not working full time or is working below full earning capacity. Income may also be attributed to a parent if the court finds that the obligor has nonperforming or underperforming assets.
(b) If an obligor: (1) Voluntarily leaves employment or voluntarily alters his or her pattern of employment so as to be unemployed, underemployed or employed below full earning capacity; (2) is able to work and is available for full-time work for which he or she is fitted by prior training or experience; and (3) is not seeking employment in the manner that a reasonably prudent person in his or her circumstances would do, then an alternative method for the court to determine gross income is to attribute to the person an earning capacity based on his or her previous income. If the obligor's work history, qualifications, education or physical or mental condition cannot be determined, or if there is an inadequate record of the obligor's previous income, the court may, as a minimum, base attributed income on full-time employment (at forty hours per week) at the federal minimum wage in effect at the time the support obligation is established. In order for the court to consider attribution of income, it is not necessary for the court to find that the obligor's termination or alteration of employment was for the purpose of evading a support obligation.
(c) Income shall not be attributed to an obligor who is unemployed or underemployed or is otherwise working below full earning capacity if any of the following conditions exist:
(1) The parent is providing care required by the children to whom both of the parties owe a ~~joint~~ legal responsibility for support and such children are of preschool age or are handicapped or otherwise in a situation requiring particular care by the parent;
(2) The parent is pursing a plan of economic self-improvement which will result, within a reasonable time, in an economic benefit to the children to whom the support obligation is owed, including, but not limited to, self-employment or education: Provided, That if the parent is involved in an educational program, the court shall ascertain that the person is making substantial progress toward completion of the program;
(3) The parent is, for valid medical reasons, earning an income in an amount less than previously earned; or
(4) The court makes a written finding that other circumstances exist which would make the attribution of income inequitable: Provided, That in such case the court may decrease the amount of attributed income to an extent required to remove such inequity.
(d) The court may attribute income to a parent's nonperforming or underperforming assets, other than the parent's primary residence. Assets may be considered to be nonperforming or underperforming to the extent that they do not produce income at a rate equivalent to the current six-month certificate of deposit rate or such other rate that the court determines is reasonable.
§48-1-225. Extraordinary medical expenses defined.
"Extraordinary medical expenses" means uninsured medical expenses in excess of two hundred fifty dollars per year per child which are recurring and can reasonably be predicted by the court at the time of establishment or modification of a child support order. Such expenses shall include, but not be limited to, insurance copayments and deductibles, reasonable costs for necessary orthodontia, dental treatment, asthma treatments, physical therapy, prescription pharmaceuticals, vision therapy and eye care and any uninsured chronic health problem.
§48-1-230. Income defined.
"Income" includes, but is not limited to, the following:
(1) Commissions, earnings, salaries, wages and other income due or to be due in the future to an individual from his or her employer and successor employers;
(2) Any payment due or to be due in the future to an individual from a profit-sharing plan, a pension plan, an insurance contract, an annuity, Social Security, unemployment compensation, supplemental employment benefits, workers' compensation benefits, state lottery winnings and prizes and overtime pay;
(3) Any amount of money which is owing to an individual as a debt from an individual, partnership, association, public or private corporation, the United States or any federal agency, this state or any political subdivision of this state, any other state or a political subdivision of another state or any other legal entity which is indebted to the obligor;
(4) Any amount of money which is held by the Regional Jail Authority for an inmate in an inmate's concession account.
§48-1-302. Calculation of interest.
(a) Notwithstanding any other provisions of the code, if an obligation to pay interest arises under this chapter, the rate of interest is ~~ten~~ five percent per annum and proportionate thereto for a greater or lesser sum, or for a longer or shorter time. Interest awarded shall only be simple interest and nothing in this section may be construed to permit awarding of compound interest. Interest accrues only upon the outstanding principal of such obligation.
(b) Notwithstanding any other provision of law, no court may award or approve prejudgment interest in a domestic relations action against a party unless the court finds, in writing, that the party engaged in conduct that would violate subsection (b), Rule 11 of the West Virginia Rules of Civil Procedure. If prejudgment interest is awarded, the court shall calculate prejudgment interest from the date the offending representation was presented to the court pursuant to subsection (a) of this section.
(c) Upon written agreement by both parties, an obligor may petition the court to enter an order conditionally suspending the collection of all or part of the interest that has accrued on past-due child support prior to the date of the agreement: Provided, That said agreement shall also establish a reasonable payment plan which is calculated to fully discharge all arrearages within twenty-four months. Upon successful completion of the payment plan, the court shall enter an order which permanently relieves the obligor of the obligation to pay the accrued interest. If the obligor fails to comply with the terms of the written agreement, then the court shall enter an order which reinstates the accrued interest.
(d) Amendments to this section enacted by the Legislature during the two thousand six regular session shall become effective the first day of January, two thousand seven.
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-103. Child support beyond age eighteen.
(a) ~~Upon a specific finding of good cause shown and upon findings of fact and conclusions of law in support thereof, a~~ An order for child support ~~may~~ shall provide that payments of such support continue beyond the date when the child reaches the age of eighteen, so long as the child is unmarried and residing with a parent, guardian or custodian and is enrolled as a full-time student in a secondary educational or vocational program and making substantial progress towards a diploma: Provided, That such payments may not extend past the date that the child reaches the age of twenty.
(b) Nothing herein shall be construed to abrogate or modify existing case law regarding the eligibility of handicapped or disabled children to receive child support beyond the age of eighteen.
(c) The reenactment of this section during the regular session of the Legislature in the year one thousand nine hundred ninety-four shall not, by operation of law, have any effect upon or vacate any order or portion thereof entered under the prior enactment of this section which awarded educational and related expenses for an adult child accepted or enrolled and making satisfactory progress in an educational program at a certified or accredited college. Any such order or portion thereof shall continue in full force and effect until the court, upon motion of a party, modifies or vacates the order upon a finding that:
(1) The facts and circumstances which supported the entry of the original order have changed, in which case the order may be modified;
(2) The facts and circumstances which supported the entry of the original order no longer exist because the child has not been accepted or is not enrolled in and making satisfactory progress in an educational program at a certified or accredited college or the parent ordered to pay such educational and related expenses is no longer able to make such payments, in which case the order shall be vacated;
(3) The child, at the time the order was entered, was under the age of sixteen years, in which case the order shall be vacated;
(4) The amount ordered to be paid was determined by an application of child support guidelines in accordance with the provisions of article 13-101, et seq., of this chapter, or legislative rules promulgated thereunder, in which case the order may be modified or vacated; or
(5) The order was entered after the fourteenth day of March, one thousand nine hundred ninety-four, in which case the order shall be vacated.
§48-11-105. Modification of child support order.
(a) The court may modify a child support order, for the benefit of the child, when a motion is made that alleges a change in the circumstances of a parent or another proper person or persons. A motion for modification of a child support order may be brought by a custodial parent or any other lawful custodian or guardian of the child, by a parent or other person obligated to pay child support for the child or by the Bureau for Child Support Enforcement of the Department of Health and Human Resources of this state.
(b) The provisions of the order may be modified if there is a substantial change in circumstances. If application of the guideline would result in a new order that is more than fifteen percent different, then the circumstances are considered a substantial change.
(c) An order that modifies the amount of child support to be paid shall conform to the support guidelines set forth in article 13-101, et seq., of this chapter unless the court disregards the guidelines or adjusts the award as provided ~~for~~ in section 13-702.
(d) The Supreme Court of Appeals shall make available to the courts a standard form for a petition for modification of an order for support, which form will allege that the existing order should be altered or revised because of a loss or change of employment or other substantial change affecting income or that the amount of support required to be aid is not within fifteen percent of the child support guidelines. The clerk of the circuit court and the secretary-clerk of the family court shall make the forms available to persons desiring to represent themselves in filing a motion for modification of the support award.
(e) Upon entry of an order modifying a child support amount the court shall, no later than five days from entry of the order, provide a copy of the modified order to the Bureau for Child Support Enforcement. If an overpayment to one of the parties occurs as a result of the modified terms of the order, funds properly withheld by the Bureau for Child Support Enforcement pursuant the terms of the original order shall not be returned until such time as the Bureau for Child Support Enforcement receives repayment from the party in possession of the overpayment.
ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48-13-804. Default orders.
(a) In any proceeding in which support is to be established, if a party has been served with proper pleadings and notified of the date, time and place of a hearing before a family court judge and does not enter an appearance or file a response, the family court judge shall prepare a default order for entry establishing the defaulting party's child support obligation consistent with the child support guidelines contained in this article.
(1) When applying the child support guidelines, the court may accept financial information from the other party as accurate, pursuant to Rule 13(b) of the Rules of Practice and Procedure for Family Court; or
(2) If financial information is not available, the court may attribute income to the party based upon either:
(i) The party's work history;
(ii) Minimum wage, if appropriate; or
(iii) At a minimum, enter a child support order in a nominal amount unless, in the court's discretion, a zero support order should be entered.
(b) All orders shall provide for automatic withholding from income of the obligor pursuant to Part 4, article fourteen of this chapter.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-102. Who may bring action for child support order.
An action may be brought under the provisions of section 14-101 by:
(1)A custodial parent of a child when the divorce order or other order which granted custody did not make provision for the support of the child by the obligor;
(2)A primary caretaker of a child;
(3)A guardian of the property of a child or the committee for a child; or
(4)The Bureau for Child Support Enforcement, on behalf of the state, when the Department of Health and Human Resources is providing assistance on behalf of the child or the person to whom a duty of support is owed, in the form of temporary assistance to needy families or medical assistance, and any right to support has been assigned to the department or in any other case wherein a party has applied for child support enforcement services from the Bureau for Child Support Enforcement.
§48-14-106. Modification of support order.
(a)At any time after the entry of an order for support, the court may, upon the verified petition of an obligee or the obligor, revise or alter such order and make a new order as the altered circumstances or needs of a child, an obligee or the obligor may render necessary to meet the ends of justice.
(b) The Supreme Court of Appeals shall make available to the family courts a standard form for a petition for modification of an order for support, which form will allege that the existing order should be altered or revised because of a loss or change of employment or other substantial change affecting income or that the amount of support required to be paid is not within fifteen percent of the child support guidelines. The clerk of the circuit court and the secretary-clerk of the family court shall make such forms available to persons desiring to petition the court pro se for a modification of the support award.
(c) Upon entry of an order modifying a child support amount the court shall, no later than five days from entry of the order, provide a copy of the modified order to the Bureau for Child Support Enforcement. If an overpayment to one of the parties occurs as a result of the modified terms of the order, funds properly withheld by the Bureau for Child Support Enforcement pursuant the terms of the original order shall not be returned until such time as the Bureau for Child Support Enforcement receives repayment from the party in possession of the overpayment.
§48-14-108. Deceased parties in support cases.
(a) In the event of the death of any party to a domestic relations support action, support payments or a refund of support payments due to the party by the obligee, obligor or the Bureau for Child Support Enforcement, not in excess of one thousand dollars, may, upon proper demand, be paid, in the absence of actual notice of the pendency of probate proceedings, without requiring letters testamentary or of administration in the following order of preference to decedent's:
(1) Surviving spouse;

(2) Children eighteen years of age and over in equal shares; (3) Father and mother, or survivor; and

(4) Sisters and brothers.
(b) Payments under this section shall release and discharge the obligee, obligor or the Bureau for Child Support Enforcement to the amount of such payment.
§48-14-203. Affidavit of accrued support.
(a) The affidavit of accrued support may be filed with the clerk of the circuit court in the county in which the obligee or the obligor resides, in the county where the order originated or where the obligor's source of income is located.
The affidavit may be filed when a payment required by such order has been delinquent, in whole or in part, for a period of fourteen days.
(c) The affidavit shall:
(1) Identify the obligee and obligor by name and address, and shall list the last four digits of the obligor's Social Security number or numbers, if known;
(2) Name the court which entered the support order and set forth the date of such entry;
(3) State the total amount of accrued support which has not been paid by the obligor; and
~~(4) List the date or dates when support payments should have been paid but were not, and the amount of each such delinquent payment; and~~
~~(5)~~ (4) State the name and address of the obligor's source of income, if known.
§48-14-302. Affidavit of accrued support.
The affidavit and abstract as provided in section four, article three, chapter thirty-eight of this code shall be filed with the clerk of the county commission in which the real property is located or in the county where the order originated. The affidavit shall:
(1) Identify the obligee and obligor by name and address, and shall list the last four digits of the obligor's Social Security number or numbers, if known;
(2) Name the court which entered the support order and set forth the date of such entry;
(3) Allege that the support obligor is at least thirty days in arrears in the payment of child support; and
(4) State the total amount of accrued support which has not been paid by the obligor. ~~and~~
~~(5) List the date or dates when support payments should have been paid but were not, and the amount of each such delinquent payment.~~

§48-14-404. Enforcement of withholding by Bureau for Child Support Enforcement.

The withholding from an obligor's income of amounts payable as spousal or child support or fees awarded by a court of competent jurisdiction to the state in connection with the establishment of paternity and support or the enforcement of a support order shall be enforced by the Bureau for Child Support Enforcement in accordance with the provisions of part 4 of this article. If an overpayment of spousal or child support occurs and an arrearage exists, the Bureau for Child Support Enforcement shall first offset the overpayment of spousal or child support against the arrearage. If no arrearage exists with which to offset the overpayment or the arrearage is not sufficient to offset the overpayment and the obligee does not enter into a repayment agreement with the Bureau for Child Support Enforcement, the Bureau for Child Support Enforcement may issue an income withholding to the obligee's employer to recoup the amount of the overpayment. The income withholding shall be in the same manner as provided in this article: Provided, That in no circumstances may the amount withheld exceed thirty-five percent of the disposable earnings for the period, regardless of the length of time that the overpayment has been owed.
§48-14-407. Contents of notice to source of income.
(a) The source of income of any obligor who is subject to withholding, upon being given notice of withholding, shall withhold from such obligor's income the amount specified by the notice and pay such amount to the Bureau for Child Support Enforcement for distribution. The notice given to the source of income shall contain only such information as may be necessary for the source of income to comply with the withholding order and no source of income may require additional information or documentation. Such notice to the source of income shall include, at a minimum, the following:
(1) The amount to be withheld from the obligor's disposable earnings and a statement that the amount to be withheld for support and other purposes, including the fee specified under subdivision (3) of this subsection, may not be in excess of the maximum amounts permitted under Section 303(b) of the federal Consumer Credit Protection Act or limitations imposed under the provisions of this code;
(2) That the source of income shall send the amount to be withheld from the obligor's income to the Bureau for Child Support Enforcement, along with such identifying information as may be required by the bureau, the same day that the obligor is paid;
(3) That, in addition to the amount withheld under the provisions of subdivision (1) of this subsection, the source of income may deduct a fee, not to exceed one dollar, for administrative costs incurred by the source of income for each withholding;
(4) That withholding is binding on the source of income until further notice by the Bureau for Child Support Enforcement or until the source of income notifies the Bureau for Child Support Enforcement of a termination of the obligor's employment in accordance with the provisions of section four hundred twelve of this article;
(5) That the source of income is subject to a fine for discharging an obligor from employment, refusing to employ or taking disciplinary action against any obligor because of the withholding;
(6) That when the source of income fails to withhold income in accordance with the provisions of the notice, the source of income is liable for the accumulated amount the source of income should have withheld from the obligor's income;
(7) That the withholding under the provisions of this part shall have priority over any other legal process under the laws of this state against the same income and shall be effective despite any exemption that might otherwise be applicable to the same income;
(8) That when an employer has more than one employee who is an obligor who is subject to wage withholding from income under the provisions of this code, the employer may combine all withheld payments to the Bureau for Child Support Enforcement when the employer properly identifies each payment with the information listed in this part. A source of income is liable to an obligee, including the State of West Virginia or the Department of Health and Human Resources where appropriate, for any amount which the source of income fails to identify with the information required by this part and is therefore not received by the obligee;
(9) That the source of income shall implement withholding no later than the first pay period or first date for payment of income that occurs after fourteen days following the date the notice to the source of income was mailed; and
(10) That the source of income shall notify the Bureau for Child Support Enforcement promptly when the obligor terminates his or her employment or otherwise ceases receiving income from the source of income and shall provide the obligor's last known address and the name and address of the obligor's new source of income, if known.
(b) The ~~commission~~ Bureau for Child Support Enforcement shall, by administrative rule, establish procedures for promptly refunding to obligors amounts which have been improperly withheld under the provisions of this part. When a court reduces an order of support, the Bureau for Child Support Enforcement is not liable for refunding amounts which have been withheld pursuant to a court order enforceable at the time that the bureau received the funds unless the funds were kept by the state. The obligee or obligor who received the benefit of the withheld amounts shall be liable for promptly refunding any amounts which would constitute an overpayment of the support obligation.
§48-14-408. Determination of amounts to be withheld.
Notwithstanding any other provision of this code to the contrary which provides for a limitation upon the amount which may be withheld from earnings through legal process, the amount of an obligor's aggregate disposable earnings for any given workweek which may be withheld as support payments is to be determined in accordance with the provisions of this subsection, as follows:
(1) After ascertaining the status of the payment record of the obligor under the terms of the support order, the payment record shall be examined to determine whether any arrearage is due for amounts which should have been paid prior to a twelve-week period which ends with the workweek for which withholding is sought to be enforced.
(2) Prior to the first day of January, two thousand one, when none of the withholding is for amounts which came due prior to such twelve-week period, then:
(A) When the obligor is supporting another spouse or dependent child other than the spouse or child for whom the proposed withholding is being sought, the amount withheld may not exceed fifty percent of the obligor's disposable earnings for that week; and
(B) When the obligor is not supporting another spouse or dependent child as described in paragraph (A) of this subdivision, the amount withheld may not exceed sixty percent of the obligor's disposable earnings for that week.
(3) Prior to the first day of January, two thousand one, when a part of the withholding is for amounts which came due prior to such twelve-week period, then:
(A) Where the obligor is supporting another spouse or dependent child other than the spouse or child for whom the proposed withholding is being sought, the amount withheld may not exceed fifty-five percent of the obligor's disposable earnings for that week; and
(B) Where the obligor is not supporting another spouse or dependent child as described in paragraph (A) of this subdivision, the amount withheld may not exceed sixty-five percent of the obligor's disposable earnings for that week.
(4) Beginning the first day of January, two thousand one, when none of the withholding is for amounts which came due prior to such twelve-week period, then:
(A) When the obligor is supporting another spouse or dependent child other than the spouse or child for whom the proposed withholding is being sought, the amount withheld may not exceed forty percent of the obligor's disposable earnings for that week; and
(B) When the obligor is not supporting another spouse or dependent child as described in paragraph (A) of this subdivision, the amount withheld may not exceed fifty percent of the obligor's disposable earnings for that week.
(5) Beginning the first day of January, two thousand one, when a part of the withholding is for amounts which came due prior to such twelve-week period, then:
(A) When the obligor is supporting another spouse or dependent child other than the spouse or child for whom the proposed withholding is being sought, the amount withheld may not exceed forty-five percent of the obligor's disposable earnings for that week; and
(B) Where the obligor is not supporting another spouse or dependent child as described in paragraph (A) of this subdivision, the amount withheld may not exceed fifty-five percent of the obligor's disposable earnings for that week.
(6) In addition to the percentage limitations set forth in subdivisions (2) and (3) of this section, it shall be a further limitation that when the current month's obligation plus arrearages are being withheld from salaries or wages in no case shall the total amounts withheld for the current month's obligation plus arrearage exceed the amounts withheld for the current obligation by an amount greater than twenty-five percent of the current monthly support obligation.
(7) The provisions of this section shall apply directly to the withholding of disposable earnings of an obligor regardless of whether the obligor is paid on a weekly, biweekly, monthly or other basis.
(8) The Bureau for Child Support Enforcement has the authority to prorate the current support obligation in accordance with the pay cycle of the source of income. This prorated current support obligation shall be known as the "adjusted support obligation". The current support obligation or the adjusted support obligation is the amount, if unpaid, on which interest will be charged.
(9) When an obligor acts so as to purposefully minimize his or her income and to thereby circumvent the provisions of part 4 of this article which provide for withholding from income of amounts payable as support, the amount to be withheld as support payments may be based upon the obligor's potential earnings rather than his or her actual earnings, and such obligor may not rely upon the percentage limitations set forth in this subsection which limit the amount to be withheld from disposable earnings.
(10) Notwithstanding any other provision of this section, the Bureau for Child Support Enforcement may withhold not more than fifty percent of any earnings denominated as an employment-related bonus to satisfy an outstanding child support arrearage.

§48-14-502. Willful failure or refusal to comply with order to pay support.

If the court finds that the obligor willfully failed or refused to comply with an order requiring the payment of support, the court shall find the obligor in contempt and may do one or more of the following:
(1) Require additional terms and conditions consistent with the court's support order.
(2) After notice to both parties and a hearing, if requested by a party, on any proposed modification of the order, modify the order in the same manner and under the same requirements as an order requiring the payment of support may be modified under the provisions of Part 5-701, et seq. A modification sought by an obligor, if otherwise justified, shall not be denied solely because the obligor is found to be in contempt.
(3) Order that all accrued support and interest thereon be paid under such terms and conditions as the court, in its discretion, may deem proper.
(4) Order the contemnor to pay support in accordance with a plan approved by the Bureau for Child Support Enforcement or to participate in such work activities as the court deems appropriate.
(5) If appropriate under the provisions of section 1-304:
(A) Commit the contemnor to the ~~county or~~ regional jail; or
(B) Commit the contemnor to the ~~county or~~ regional jail with the privilege of leaving the jail, during such hours as the court determines and under such supervision as the court considers necessary, for the purpose of allowing the contemnor to go to and return from his or her place of employment.
§48-14-503. Limitation on length of commitment.
(a) A In a commitment under subdivision (5) of section 14-502, ~~shall not exceed forty-five days for the first adjudication of contempt or ninety days for any subsequent adjudication of contempt~~ the court shall confine the contemnor for an indeterminate period not to exceed six months or until such time as the contemnor has purged himself or herself, whichever shall first occur.
(b) An obligor committed under subdivision (5) of section 14-502 shall be released by court order if the court has reasonable cause to believe that the obligor will comply with the court's order.
§48-14-701. Posting of bonds or giving security to guarantee payment of overdue support.

~~(a)~~ An obligor with a pattern of overdue support may be required by order of the court to post bond, give security or some other guarantee to secure payment of overdue support. The guarantee may include an order requiring that stocks, bonds or other assets of the obligor be held in escrow by the court until the obligor pays the support.
(b) No less than fifteen days before such an order may be entered, the Bureau for Child Support enforcement attorney shall cause the mailing of a notice by first class mail to the obligor informing the obligor of the impending action, his or her right to contest it, and setting forth a date, time and place for a meeting with the Bureau for Child Support enforcement attorney and the date, time and place of a hearing before the family court if the impending action is contested.

§48-14-801. When monthly payments may be increased to satisfy overdue support.

(a) For the purpose of securing overdue support, the Bureau for Child Support Enforcement has the authority to increase the monthly support payments of an obligor by as much as one hundred dollars per month to satisfy the arrearage when:
(1) An obligor has failed to make payments as required by a support order and arrears are equal to an amount of support payable for six months if the order requires support to be paid in monthly installments; or
(2) An obligor has failed to make payments as required by a support order and arrears are equal to an amount of support payable for twenty-seven weeks if the order requires support to be paid in weekly or biweekly installments.
(b) For the purpose of securing overdue support, the Bureau for Child Support Enforcement has the authority to increase the monthly support payments of an obligor by as much as two hundred dollars per month to satisfy the arrearage when:
(1) An obligor's gross income equals or exceeds sixty-five thousand dollars; and
(2) An obligor has failed to make payments as required by a support order and arrears are equal to an amount of support payable for twelve months if the order requires support to be paid in monthly installments; or
(3) An obligor has failed to make payments as required by a support order and arrears are equal to an amount of support payable for fifty-four weeks if the order requires support to be paid in weekly or biweekly installments.
~~(b)~~ (c) An increase in monthly support under this section will be in addition to any amounts withheld from income pursuant to this article.
~~(c)~~ (d) This increase in monthly support may be enforced through the withholding process.
ARTICLE 15. Enforcement of support order through action against license.

Part 2. Action Against License.
§48-15-201. Licenses subject to action.
The following licenses are subject to an action against a license as provided for in this article:
(1) A business registration certificate issued under article twelve, chapter eleven of this code authorizing a person to transact business in the State of West Virginia;
~~(1)~~ (2) A permit or license issued under chapter seventeen-b of this code authorizing a person to drive a motor vehicle;
~~(2)~~ (3) A commercial driver's license issued under chapter seventeen-e of this code authorizing a person to drive a class of commercial vehicle;
~~(3)~~ (4) A permit, license or stamp issued under article two or two-b, chapter twenty of this code regulating a person's activities for wildlife management purposes, authorizing a person to serve as an outfitter or guide or authorizing a person to hunt or fish;
~~(4)~~ (5) A license or registration issued under chapter thirty of this code authorizing a person to practice or engage in a profession or occupation;
~~(5)~~ (6) A license issued under article twelve, chapter forty-seven of this code authorizing a person to transact business as a real estate broker or real estate salesperson;
~~(6)~~ (7) A license or certification issued under article fourteen, chapter thirty-seven of this code authorizing a person to transact business as a real estate appraiser;
~~(7)~~ (8) A license issued under article twelve, chapter thirty-three of this code authorizing a person to transact insurance business as an agent, broker or solicitor;
~~(8)~~ (9) A registration made under article two, chapter thirty-two of this code authorizing a person to transact securities business as a broker-dealer, agent or investment advisor;
~~(9)~~ (10) A license issued under article twenty-two, chapter twenty-nine of this code authorizing a person to transact business as a lottery sales agent;
~~(10)~~ (11) A license issued under article thirty-two or thirty-four, chapter sixteen of this code authorizing persons to pursue a trade or vocation in asbestos abatement or radon mitigation;
~~(11)~~ (12) A license issued under article eleven, chapter twenty-one of this code authorizing a person to act as a contractor;
~~(12)~~ (13) A license issued under article two-c, chapter nineteen of this code authorizing a person to act as an auctioneer; and
~~(13)~~ (14) A license, permit or certificate issued under chapter nineteen of this code authorizing a person to sell, market or distribute agricultural products or livestock.
ARTICLE 17. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION.

§48-17-101. Creation of Support Enforcement Commission; number of members.

The West Virginia Support Enforcement Commission, consisting of ~~eight~~ nine members, is hereby created in the Department of Health and Human Resources and may use the administrative support and services of that department. The commission is not subject to control, supervision or direction by the Department of Health and Human Resources, but is an independent, self-sustaining commission that shall have the powers and duties specified in this chapter.
The commission is a part-time commission whose members perform such duties as specified in this chapter. The ministerial duties of the commission shall be administered and carried out by the Commissioner of the Bureau for Child Support Enforcement, with the assistance of such staff of the Department of Health and Human Resources as the Secretary may assign.
Each member of the commission shall devote the time necessary to carry out the duties and obligations of the office and the seven members appointed by the Governor may pursue and engage in another business, occupation or gainful employment that is not in conflict with the duties of the commission.
While the commission is self-sustaining and independent, it, its members, its employees and the commissioner are subject to article nine-a, chapter six of this code, chapter six-b of this code, chapter twenty-nine-a of this code and chapter twenty-nine-b of this code.

§48-17-102. Appointment of members of Support Enforcement Commission; qualifications and eligibility.

(a) Of the ~~eight~~ nine members of the commission, seven members are to be appointed by the Governor: Provided, That no more than five members of the commission may belong to the same political party.
(1) One member is to be a lawyer licensed by, and in good standing with, the West Virginia State Bar, with at least five years of professional experience in domestic relations law and the establishment and enforcement of support obligations;
(2) One member is to be a person experienced as a public administrator in the supervision and regulation of a governmental agency;
(3) One member is to be an employer experienced in withholding support payments from the earnings of obligors;
(4) One member is to be a practicing family court judge, as an ex officio member, who will serve in an advisory capacity, without compensation or voting rights; and
(5) Three members are to be representatives of the public at large, with at least one being an obligor and one being an obligee.
(b) One member is to be the Commissioner of the Bureau for Children and Families, Department of Health and Human Resources or his or her designee.
(c) The Commissioner of the Bureau for Child Support Enforcement, or his or her designee, is an ex officio nonvoting member of the commission.
~~(c)~~ (d) Each member of the commission is to be a citizen of the United States, a resident of the State of West Virginia and at least twenty-one years of age.
§48-17-103. Terms of commission members; conditions of membership.
(a) Beginning the first day of June, two thousand eight, and every four years thereafter, the Governor shall convene the commission to review the child support guidelines, in accordance with the Code of Federal Regulations, Part 45, Section 302.56(C)(3)(e).
(b) The Governor shall make appointments by the first day of June, two thousand eight, and on the first day of June every four years thereafter.
(c) The Commissioner shall report the commission's findings and recommendations to the Legislative Oversight Commission on Health and Human Resources Accountability by the first day of July, two thousand nine, and by the first day of July every four years thereafter.
(d) The commissioners' terms shall expire on the first day of July in the year in which they submit the required report to the Legislature as set forth in subsection (c) of this section.
§48-17-105. Commission chairman.
The Commissioner of the Bureau for Child Support Enforcement shall serve as the chair of the commission.
§48-17-106. Compensation of members; reimbursement for expenses.
(a) Each voting member of the commission shall receive one hundred dollars for each day or portion thereof spent in the discharge of his or her official duties.
(b) Each member of the commission shall be reimbursed for all actual and necessary expenses and disbursements involved in the execution of official duties.
§48-17-107. Meeting requirements.
(a) The commission shall meet within the state at least twice per calendar year and at such other times as the chairman may decide. The commission shall also meet upon a call of four or more members upon seventy-two hours written notice to each member. at least twice during the one-year term for the sole purpose of reviewing the child support guidelines set forth in article thirteen of this chapter. The commission may determine if it needs to convene more frequently to effectively study the guidelines, but shall not meet more than eight times during the one-year term.
(b) Four voting members of the commission are a quorum for the transaction of any business and for the performance of any duty.
(c) A majority vote of the voting members present is required for any final determination by the commission.
(d) The commission may elect to meet in executive session after an affirmative vote of a majority of its members present according to section four, article nine-a, chapter six of this code.
(e) The commission shall keep a complete and accurate record of all its meetings according to section five, article nine-a, chapter six of this code.
§48-17-109. General duties of support enforcement commission.
(a) Federal law requires that each state periodically review the formula used to set child support obligations to determine appropriate awards for the support of children. States are required to consider current research and data on the costs of and expenditures necessary for rearing children. A process for review of the guidelines should be established to ensure the integrity of the formula and reviews undertaken to comply with federal law.
(b) The commission shall review and analyze:
(1) The current child support guidelines;
(2) Relevant research and data regarding the cost of child rearing;
(3) Research and data on the application of, and deviations from, the child support guidelines;
(4) Current law, administrative rules and practices regarding child support; and
(5) Any other data the commission deems relevant to the review of the current child support guidelines.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-102. Appointment of commissioner; duties; compensation.
(a) There is hereby created the position of commissioner. ~~whose duties include the ministerial management and administration of the office of the support enforcement commission.~~ The commissioner shall:
(1) Be appointed by the secretary;
(2) Serve at the will and pleasure of the secretary;
(3) Serve on a full-time basis and shall not engage in any other profession or occupation, including the holding of a political office in the state either by election or appointment, while serving as commissioner;
(4) Be a lawyer licensed by, and in good standing with, the West Virginia State Bar; and
(5) Have responsible administrative experience, possess management skills and have knowledge of the law as it relates to domestic relations and the establishment and enforcement of support obligations.
Before entering upon the discharge of the duties as commissioner, the commissioner shall take and subscribe to the oath of office prescribed in section five, article IV of the Constitution of West Virginia.
(b) The duties of the commissioner shall include the following:
(1) To direct and administer the daily operations of the ~~commission~~ Bureau for Child Support Enforcement;
(2) To administer the Child Support Enforcement Fund created pursuant to section 18-107 of this article;
(3) To chair the commission set forth in article seventeen of this chapter for the purpose of conducting the federally required review of the child support formula every four years and make a report to the Legislative Oversight Commission on Health and Human Resources Accountability of the commission's findings;
~~(3)~~ (4) To keep the records and papers of the commission, including a record of each proceeding; and
~~(4)~~ (5) To prepare, issue and submit reports of the commission. ~~and~~
~~(5) To perform any other duty that the commission directs.~~
(c) All payments to the commissioner as compensation shall be made from the Child Support Enforcement Fund. The commissioner is entitled to:
(1) A reasonable and competitive compensation package to be established by the secretary; and
(2) Reimbursement for expenses under the standard state travel regulations.
§48-18-118. Obtaining support from state income tax refunds.
(a) The Tax Commissioner shall establish procedures necessary for the Bureau for Child Support Enforcement to obtain payment of past-due support from state income tax refunds from overpayment made to the Tax Commissioner pursuant to the provisions of article twenty-one, chapter eleven of this code.
(b) The Commissioner for the Bureau for Child Support Enforcement shall establish procedures necessary ~~for the Bureau for Child Support Enforcement~~ to enforce a support order through a notice to the Tax Commissioner which will cause any refund of state income tax which would otherwise be payable to an obligor to be reduced by the amount of overdue support owed by such obligor.
(1) ~~Such legislative rule~~ The procedures shall, at a minimum, prescribe:
(A) The time or times at which the Bureau for Child Support Enforcement shall serve on the obligor or submit to the Tax Commissioner notices of past-due support;
(B) The manner in which such notices shall be served on the obligor or submitted to the Tax Commissioner;
(C) The necessary information which shall be contained in or accompany the notices;
(D) The amount of the fee to be paid to the Tax Commissioner for the full cost of applying the procedure whereby past-due support is obtained from state income tax refunds; and
(E) Circumstances when the Bureau for Child Support Enforcement may deduct a twenty-five dollar fee from the obligor's state income tax refund. This procedure may not require a deduction from the state income tax refund of an applicant who is a recipient of assistance from the Bureau for Children and Families in the form of temporary assistance for needy families.
(2) Withholding from state income tax refunds may not be pursued unless the Bureau for Child Support Enforcement has examined the obligor's pattern of payment of support and the obligee's likelihood of successfully pursuing other enforcement actions, and has determined that the amount of past-due support which will be owed, at the time the withholding is to be made, will be one hundred dollars or more. In determining whether the amount of past-due support will be one hundred dollars or more, the Bureau for Child Support Enforcement shall consider the amount of all unpaid past-due support, including that which may have accrued prior to the time that the Bureau for Child Support Enforcement first agreed to enforce the support order.
(c) The Commissioner of the Bureau for Child Support Enforcement shall enter into agreements with the Secretary of the Treasury and the Tax Commissioner, and other appropriate governmental agencies, to secure information relating to the Social Security number or numbers and the address or addresses of any obligor, and the name or names and address or addresses of any employer or employers, in order to provide notice between such agencies to aid the Bureau for Child Support Enforcement in requesting state income tax deductions and to aid the Tax Commissioner in enforcing such deductions. In each such case, the Tax Commissioner, in processing the state income tax deduction, shall notify the Bureau for Child Support Enforcement of the obligor's home address and Social Security number or numbers. The Bureau for Child Support Enforcement shall provide this information to any other state involved in processing the support order;
(d) For the purposes of this section, "past-due support" means the amount of unpaid past-due support owed under the terms of a support order to or on behalf of a child, or to or on behalf of a minor child and the parent with whom the child is living; regardless of whether the amount has been reduced to a judgment or not.
(e) The Bureau for Child Support Enforcement may, under the provisions of this section, enforce the collection of past-due support on behalf of a child who has reached the age of majority.
(f) The procedure shall, at a minimum, provide that prior to notifying the Tax Commissioner of past-due support, a notice to the obligor as prescribed under subsection (a) of this section shall:
(1) Notify the obligor that a withholding will be made from any refund otherwise payable to such obligor;
(2) Instruct the obligor of the steps which may be taken to contest the determination of the Bureau for Child Support Enforcement that past-due support is owed or the amount of the past-due support; and
(3) Provide information with respect to the procedures to be followed, in the case of a joint return, to protect the share of the refund which may be payable to another person.
(g) If the Bureau for Child Support Enforcement is notified by the Tax Commissioner that the refund from which withholding is proposed to be made is based upon a joint return, and if the past- due support which is involved has not been assigned to the Department of Health and Human Resources, the Bureau for Child Support Enforcement may delay distribution of the amount withheld until such time as the Tax Commissioner notifies the Bureau for Child Support Enforcement that the other person filing the joint return has received his or her proper share of the refund, but such delay shall not exceed six months.
(h) In any case in which an amount is withheld by the Tax Commissioner under the provisions of this section and paid to the Bureau for Child Support Enforcement, if the Bureau for Child Support Enforcement subsequently determines that the amount certified as past due was in excess of the amount actually owed at the time the amount withheld is to be distributed, the agency shall pay the excess amount withheld to the obligor thought to have owed the past due support or, in the case of amounts withheld on the basis of a joint return, jointly to the parties filing the return.
(i) The amounts received by the Bureau for Child Support Enforcement shall be distributed in accordance with the provisions for distribution set forth in 42 U. S. C. §657.

§48-18-118a. Obtaining refunds of overpaid support from state income tax refunds.

(a) Definitions. --
(1) "Obligee" means the same as that term is defined in section two hundred thirty-four, article one of this chapter.
(2) "Obligor" means the same as that term is defined in section two hundred thirty-five, article one of this chapter.
(3) "Overpaid support" means the same as that term is defined in section two hundred thirty-five, article one of this chapter.
(b) The Tax Commissioner shall cooperate with the Commissioner of the Bureau for Child Support Enforcement in establishing and implementing procedures for the collection of overpaid child support from state income tax refunds that are payable to obligees. The Tax Commissioner shall collect the refunds and send the amounts to the Bureau for Child Support Enforcement for distribution to obligors who made the overpayment.
§48-18-120. Statements of account.
The Bureau for Child Support enforcement shall provide ~~annual~~ monthly statements of their account to each obligor and obligee without charge. Additional statements of account shall be provided at a fee of five dollars, unless such fee is waived pursuant to a rule promulgated by the commission. Statements provided under this subsection are in addition to statements provided for judicial hearings. The commissioner shall establish procedures whereby an obligor or obligee can contest or correct a statement of account.
§48-18-202. Request for assistance by party.
(a) To make a request for assistance under this article, a party shall submit the request in writing to the Bureau for Child Support Enforcement on a form provided by the bureau. The written request form shall include all of the requesting party's information known to the party that is relevant to determine the child support amount. The request shall be accompanied by:
(1) A copy of the order being modified or, in the discretion of the bureau, information sufficient to permit the bureau to retrieve or identify the order;
(2) A form containing a statement of all of the requesting party's information known to the party that is relevant to determining the amount of child support, including a general statement or argument advancing the reason the request is being made;
(3) Copies of documentation reasonably available to the requesting party setting forth all of the requesting party's information that is relevant to determine the amount of child support;
(4) A statement setting forth the relevant information pertaining to the responding party's earnings and child support that is known or believed to be true by the requesting party;
(5) Copies of any relevant documentation which the requesting party may have in its possession which would be relevant to determining the responding party's child support obligations; and
(6) A statement of all other known proceedings pending court proceedings or other pending requests for assistance involving the parties or related to the child or children whose support is being reevaluated.
(b) Upon receipt of notification that an obligor is incarcerated in a regional jail or a state or federal correctional facility, the Bureau for Child Support Enforcement shall determine whether the expected incarceration will exceed six months. If the incarceration will exceed six months, the bureau shall file a petition to modify child support.

§48-18-205. Bureau action on request of recalculation and presentation of proposed order.

(a) If the bureau determines that no credible information exists to establish finding of a substantial change in circumstances as required by section one hundred five, article eleven of this chapter or section one hundred six, article fourteen of this chapter, the Bureau for Child Support Enforcement shall notify the parties of that fact and notify the parties that the Bureau for Child Support Enforcement will not be preparing a petition of proposed order seeking modification of the parties' child support obligation. Under those circumstances, if the parties disagree with the Bureau for Child Support Enforcement's assessment and wish to independently file a petition for modification, the parties may still seek modification of child support by filing a petition for modification of an order for support with the family court under the provisions of section one hundred five or one hundred six, article eleven of this chapter or under the provisions of section one hundred six, article fourteen of this chapter.
(b) If the Bureau for Child Support Enforcement determines that there has been a substantial change of circumstances as required by section one hundred five, article eleven of this chapter or by section one hundred six, article fourteen of this chapter, then the Bureau for Child Support Enforcement shall prepare a petition and proposed order modifying the child support order to be filed with the clerk of the family court.
(c) Any such petition filed by the Bureau for Child Support Enforcement filed pursuant to this article shall include the following:
(1) A copy of the proposed order;
(2) A print-out of the child support guidelines calculations;
(3) A notice of the bureau's action;
(4) The documents and statements relied upon;
(5) Any statement of findings or justification the bureau is required or determines to include; and
(6) A form and instructions for filing an objection to the proposed order, should a party wish to do so, which form shall require a statement of the ground or grounds for filing the objection.
(d) The Bureau for Child Support Enforcement's proposed order shall be based on the child support guidelines: Provided, That the bureau may disregard the child support guidelines or adjust the amount as allowed by section seven hundred two, article thirteen of this chapter in the following instances:
(1) When the previous child support order disregarded the child support guidelines, the grounds for the disregarding or adjusting the guidelines are stated in the worksheet or previous order or are agreed upon by the parties, or are otherwise clear, and those grounds continue to exist and can be applied to the current circumstances; or
(2) If new grounds for the disregard or adjustment are fully explained in the proposed order.
(e) Within six months of the time that a child support obligation becomes one thousand dollars in arrears, the Bureau for Child Support Enforcement shall notify the obligor that he or she may be in violation of section twenty-nine, article five, chapter sixty-one of this code, felony nonsupport, should the arrearage increase to eight thousand dollars. The notice shall also advise the obligor of the availability of child support modification, the amnesty program established in section three hundred two, article one of this chapter and the possibility of establishing a payment plan with the bureau: Provided, That where the monthly child support obligation is greater than one thousand dollars, the notice shall be sent when the arrearage equals to or greater than three months child support obligation.
(1) If the obligor fails to respond within thirty days, the Bureau for Child Support Enforcement shall file a petition for contempt pursuant to section five hundred three, article fourteen of this chapter.
(2) If the obligor responds within thirty days, the Bureau for Child Support Enforcement shall review the response and file appropriate pleadings which may include a motion for modification of child support.
(3) The Bureau for Child Support Enforcement will have one year from the amendment and reenactment of this section during the two thousand eight legislative session to notify obligors who currently owe one thousand dollars or more in child support arrearages or, where the monthly child support obligation is greater than one thousand dollars, the arrearage is equal to or greater than three months child support obligation, of the child support modification options available to them.
§48-18-206. Family court action on petition and proposed order prepared by Bureau for Child Support Enforcement.

(a) Upon receipt of petition for modification and proposed order prepared by the Bureau for Child Support Enforcement in accordance with the provisions of this article, the circuit clerk shall serve a copy of the petition and the proposed order upon all parties to the proceeding by personal service or by United States certified mail, return receipt requested, and direct the parties to file any objections to the proposed modified child support order within twenty days of the date of receiving such notice.
(b) Within five days of the filing of a petition for modification and proposed order, the circuit clerk shall notify the family court.
(c) If no party files timely objection to the proposed order or timely requests a hearing on the petition after receiving such notice, then the family court ~~may~~ shall proceed to review the petition and proposed order sua sponte, and ~~may~~ shall issue the proposed order. If the family court receives no objection, but the family court concludes that the proposed order should not be entered or should be changed, it shall set the matter for hearing.
(d) If the family court receives an objection to the petition or proposed order, the family court shall set a date and time for hearing.
(e) At any hearing on the proposed order, the family court shall treat the proposed order as a motion for modification made by the party requesting the bureau to initiate the modification. The actions of the family court at a hearing shall be de novo and shall not be an appeal from the bureau's recommended order. The family court shall notify the parties of the hearing and of the parties' rights and the procedures to be followed.
(f) The fees to be assessed for filing and service of the petition and the disbursement of the fee for petitions filed pursuant to this section shall be the same as the fee charged by the clerk for petitioning for an expedited modification of a child support order, as set forth in section eleven, article one, chapter fifty-nine of this code.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 504--A Bill to amend and reenact §38-3-18 of the Code of West Virginia, 1931, as amended; to amend and reenact §48-1-205, §48-1-225, §48-1-230 and §48-1-302 of said code; to amend and reenact §48-11-103 and §48-11-105 of said code; to amend said code by adding thereto a new section, designated §48-13-804; to amend and reenact §48-14-102, §48-14-106, §48-14-108, §48-14-203, §48-14-302, §48-14-404, §48-14- 407, §48-14-408, §48-14-502, §48-14-503, §48-14-701 and §48-14-801 of said code; to amend and reenact §48-15-201 of said code; to amend and reenact §48-17-101, §48-17-102, §48-17-103, §48-17-105, §48-17-106, §48-17-107 and §48-17-109 of said code; to amend and reenact §48-18-102, §48-18-118, §48-18-120, §48-18-202, §48-18-205 and §48-18-206 of said code; and to amend said code by adding thereto a new section, designated §48-18-118a, all relating generally to child support enforcement; providing for extension of statute of limitations for child support in certain instances; clarifying findings of fact in court orders when income is attributed for purposes of setting child support; clarifying that prescription drugs are included in medical support; providing that inmate concession accounts are income for withholding purposes; reducing the interest rate on unpaid child support from ten percent per annum to five percent per annum; providing for support to continue past age eighteen by operation of law under certain circumstances; establishing a procedure for refunding of properly withheld amounts when a support order is modified; requiring copy of modification order be sent to Bureau for Child Support Enforcement within five days; requiring family court judges enter default orders setting child support; allowing the Bureau for Child Support Enforcement to bring an action for medical support; providing refund procedures when a party to a support order is deceased; clarifying that an affidavit of accrued support may be filed in the court where the original order was entered; allowing the collection through income withholding of court-ordered fees; clarifying that withholding limitations do not apply to bonuses; creating consistency among civil contempt penalties; authorizing the Bureau for Child Support Enforcement to collect an additional two hundred dollars when arrearage triggers are met; eliminating the requirement that the Bureau for Child Support Enforcement attorney meet with the parties prior to the posting of a bond; authorizing the Tax Commissioner to deny issuance or reissuance of a business license; reconstituting the Child Support Enforcement Commission to allow for review of the child support formula by the commission; clarifying the duties of the Bureau for Child Support Enforcement Commissioner with respect to review of the child support formula; requiring report to the Legislative Oversight Commission on Health and Human Resources Accountability; allowing the Tax Commissioner to supply names and addresses of an obligor's employer to the Bureau for Child Support Enforcement for enforcement of support obligations; allowing collection of overpayments to support obligees from state tax refunds; requiring that parties receive monthly statements of child support accounts; requiring Bureau for Child Support Enforcement determine when person owing child support will be incarcerated more than six months and modify child support; requiring Bureau for Child Support Enforcement send notice to obligors in arrears one thousand dollars or more of modification options; requiring petition for contempt in certain cases; requiring motion for modification in certain cases; providing Bureau for Child Support Enforcement one year to send notification of modification options to obligors currently in arrears one thousand dollars or more; clarifying that when attorneys for the Bureau for Child Support Enforcement enter a proposed order to modify a child support obligation without objection, a modification order will be entered; and making technical corrections.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 504, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 504) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 545, Relating to tax administration efficiency.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page six, section seven-d, line twenty-nine, by striking out the word "on" and inserting in lieu thereof the word "one";
And,
On page thirteen, section five, line one hundred thirty-seven, after the word "canceled" by inserting a comma and the word "revoked".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 545, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 545) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 784, Relating to reforming, altering or modifying county government.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page three, section one, line twenty-seven, after the word "created" by inserting the words "on or after the first day of July, two thousand eight,";
And,
On page eleven, section one-a, line one hundred thirty-three, by striking out the word "acceptable" and inserting in lieu thereof the words "guidelines for".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 784, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 784) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate again proceeded to the sixth order of business, which agenda includes the making of main motions.
On motion of Senator Hunter, the Senate requested the return from the House of Delegates of
Senate Concurrent Resolution No. 28, Designating timber rattlesnake as state reptile.
Having been received as a House message in earlier proceedings tonight; for the purpose of subsequently moving reconsideration of the vote on Senator Chafin's motion to refuse to concur in the House of Delegates amendments to the resolution.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence as to the recall of Senate Concurrent Resolution No. 28.
On motion of Senator Chafin, the Senate recessed until 10 p.m. tonight.
Upon expiration of the recess, the Senate reconvened and, without objection, returned to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2008, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 239, Creating Senior Citizen Property Tax Payment Deferment Act.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §11-6H-1, §11-6H-2, §11-6H-3, §11-6H-4, §11-6H-5, §11-6H-6, §11-6H-7, §11-6H-8, §11-6H-9, §11-6H-10 and §11-6H-11; and that said code be amended by adding thereto a new section, designated §11-21-24, all to read as follows:
ARTICLE 6H. SENIOR CITIZEN PROPERTY TAX PAYMENT DEFERMENT ACT.

§11-6H-1. Short title.
This article shall be known as the Senior Citizen Property Tax Payment Deferment Act.
§11-6H-2. Definitions.
As used in this article, the following terms shall have the meaning ascribed to them in this section, unless the context in which the term is used clearly requires a different meaning or a specific different definition is provided:
(1) "Assessed value" means the value of property as determined under article three of this chapter.
(2) "Deferment" means a delay or postponement.
(3) "Homestead" means a homestead qualified for the homestead property tax exemption authorized in article six-b of this chapter, but limited to a single family residential house, including a mobile or manufactured or modular home, and the land, not exceeding one acre, surrounding such structure that is owned by the owner of the single family residential house, including a mobile or manufactured or modular home; or a mobile or manufactured or modular home regardless of whether the land upon which such mobile or manufactured or modular home is situated is owned by another.
(4) "Owner" means the person who is possessed of the homestead, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust shall be considered the owner. A person who has an equitable estate of freehold, or is a purchaser of a freehold estate who is in possession before transfer of legal title shall also be considered the owner. Personal property mortgaged or pledged shall, for the purpose of taxation, be considered the property of the party in possession.
(5) "Sixty-five years of age or older" includes a person who attains the age of sixty-five on or before the thirtieth day of June following the July first assessment day.
(6) "Tax increment" means the increase of ad valorem taxes assessed on the homestead, determined as the difference between the ad valorem taxes assessed on the homestead for the current tax year and the ad valorem taxes assessed on the homestead for the tax year immediately preceding the tax year for which the taxpayer's application for property tax deferment specified in this article is approved by the assessor, or otherwise finally approved in accordance with the provisions of this article.
(7) "Used and occupied exclusively for residential purposes" means that the property is used as an abode, dwelling or habitat for more than six consecutive months of the calendar year prior to the date of application by the owner thereof; and that subsequent to making application for deferment, the property is used only as an abode, dwelling or habitat to the exclusion of any commercial use.
(8) "Tax year" means the calendar year following the July first assessment day.
§11-6H-3. Property tax payment deferment.
(a) The following homesteads shall qualify for the deferment provided in subsection (b) of this section:
(1) Any homestead owned by an owner sixty-five years of age or older and used and occupied exclusively for residential purposes by such owner; and
(2) Any homestead that:
(A) Is owned by an owner sixty-five years of age or older who, as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility;
(B) Was most recently used and occupied exclusively for residential purposes by the owner or the owner's spouse; and
(C) Has been retained by the owner for noncommercial purposes.
(b) (1) For tax years commencing on or after the first day of January, two thousand nine, the owner of a homestead meeting the qualifications set forth in subsection (a) of this section may apply for a deferment in the payment of the tax increment of ad valorem taxes assessed under the authority of article three of this chapter on the homestead: Provided, That the deferment may be authorized only when the tax increment is the greater of three hundred dollars or ten percent or more: Provided, however, That all deferred taxes are not subject to any rate of interest.
(2) In lieu of the deferment of the tax increment authorized pursuant to this article, a taxpayer entitled to such deferment may elect to instead apply the senior citizen property tax relief credit authorized under section twenty-four, article twenty-one of this chapter. Any taxpayer making such election shall be fully subject to the terms and limitations set forth in section twenty- four, article twenty-one of this chapter.
§11-6H-4. Application for deferment; renewals; waiver of deferment.

(a) General. -- No deferment may be allowed under this article unless an application for deferment is filed with the assessor of the county in which the homestead is located, on or before the first day of November following mailing of the tax ticket in which the tax increment that is the subject of the application is contained, such tax ticket being mailed pursuant to section eight, article one, chapter eleven-a of this code. In the case of sickness, absence or other disability of the owner, the application may be filed by the owner or his or her duly authorized agent.
(b) Renewals. -- After the owner has filed an application for deferment with his or her assessor, there shall be no need for that owner to refile an application for the taxes so deferred.
(c) Waiver of deferment. -- Any person otherwise qualified who does not apply for deferment from payment of a tax increment on or before the first day of November as specified in this article is considered to have waived his or her right to apply for deferment from such payment for that tax year.
§11-6H-5. Determination; notice of denial of application for deferment.

(a) The assessor shall, as soon as practicable after an application for deferment is filed, review that application and either approve or deny it. The assessor shall approve or disapprove an application for deferment within thirty days of receipt. Any application not approved or denied within thirty days is deemed approved. If the application is denied, the assessor shall promptly, but not later than the first day of January, serve the owner with written notice explaining why the application was denied and furnish a form for filing with the county commission, should the owner desire to take an appeal. The notice required or authorized by this section shall be served on the owner or his or her authorized representative either by personal service or by certified mail.
(b) In the event that the assessor has information sufficient to form a reasonable belief that an owner, after having been originally granted a deferment, is no longer eligible for the deferment, he or she shall, within thirty days after forming this reasonable belief, revoke the deferment and serve the owner with written notice explaining the reasons for the revocation and furnish a form for filing with the county commission should the owner desire to take an appeal.
§11-6H-6. Appeals procedure.
(a) Notice of appeal; thirty days. -- Any owner aggrieved by the denial of his or her claim for application for deferment or the revocation of a previously approved deferment may appeal to the county commission of the county within which the property is situated. All such appeals shall be filed within thirty days after the owner's receipt of written notice of the denial of an application or the revocation of a previously approved deferment, as applicable, pursuant to section five of this article.
(b) Review; determination; appeal. -- The county commission shall complete its review and issue its determination as soon as practicable after receipt of the notice of appeal, but in no event later than the twenty-eighth day of February following the tax year for which the deferment was sought. In conducting its review, the county commission may hold a hearing on the application. The assessor or the owner may apply to the circuit court of the county for review of the determination of the county commission in the same manner as is provided for appeals from the county commission in section twenty-five, article three of this chapter.
§11-6H-7. Termination of deferment.
Any deferment approved in accordance with the provisions of section five of this article shall terminate immediately when any of the following events occur:
(1) The death of the owner of the property for which the deferment was authorized;
(2) The sale of the property for which the deferment was approved;
(3) A determination by the assessor that the property for which the deferment was approved no longer qualifies for the deferment in accordance with the provisions of this article;
(4) The owner of the property for which the deferment was approved fails to maintain a fire insurance policy on the property that, if the property is destroyed, is sufficient to pay all debts for which the property is used as collateral and all tax increments that have been deferred and other charges provided by law;
(5) The owner of the property for which the deferment was approved fails to maintain a flood insurance policy that, if the property is destroyed, is sufficient to pay all debts for which the property is used as collateral and all tax increments that have been deferred and other charges provided by law: Provided, That the provisions of this subdivision shall apply only to the following property: (A) Property within a flood elevation that has a one percent chance of being equaled or exceeded each year, as determined by the Federal Emergency Management Agency; (B) property within a one hundred year floodplain as designated by the Federal Emergency Management Agency; or (C) property within a special flood hazard area as determined by the Federal Emergency Management Agency or as shown on the most current National Flood Insurance Program flood hazard boundary map, flood insurance rate map, or flood boundary and floodway map; or
(6) The tax increments deferred from payment and other charges provided by law, are paid in full.
§11-6H-8. Property tax books; lien on property.
(a) Property book entry. -- The amount deferred from payment of the tax increment shall be shown and continued on the property books until paid.
(b) Lien; statement to homestead owner. -- The amount of the tax increment deferred from payment, and other charges as provided by law, shall be a lien on the real property for which the tax was assessed that continues until paid in full, and is not subject to the requirements for the collection of taxes provided in chapter eleven-a of this code. For purposes of this article [CLERK'S NOTE: Text shown as submitted at Clerk's desk.]
(c) When lien is to be paid. -- The lien required by this section shall be paid no later than ninety days following the occurrence of any one of the events set forth in section seven of this article.
(d) Limitation on execution on lien and limitation on transfer of lien. -- No county or levying body nor any official, agent or representative thereof, shall execute upon, or collect upon any lien created pursuant to this article, until one of the conditions for termination of deferment set forth in section seven of this article has occurred. No county or levying body nor any official, agent or representative thereof, shall assign or transfer any right to execute upon or collect upon any such lien to any other person or entity until one of the conditions for termination of deferment set forth in section seven of this article has occurred.
§11-6H-9. Forms, instructions and regulations.
The Tax Commissioner shall prescribe and supply all necessary instructions and forms for administration of this article. Additionally, the Tax Commissioner may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, as the Tax Commissioner considers necessary for the implementation of this article.
§11-6H-10. Criminal penalties; restitution.
(a) False or fraudulent claim for deferment. -- Any owner who willfully files a fraudulent application for deferment, and any person who knowingly assisted in the preparation or filing of such fraudulent application for deferment or who knowingly supplied information upon which the fraudulent application for deferment was prepared or allowed, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty nor more than five hundred dollars, or imprisoned in jail for not more than one year, or both fined and imprisoned.
(b) Failure to notify assessor. -- Any owner who knowingly, prior to the next first day of July, fails to notify the assessor of the county wherein property subject to the tax increment deferment is located, that title to that property or a portion thereof was transferred by deed, grant, sale, gift, will or by the laws of this state regulating descent and distribution, or that the property is no longer used and occupied for residential purposes exclusively by the owner, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or imprisoned in jail for not more than one year, or both fined and imprisoned.
(c) In addition to the criminal penalties provided above, upon conviction of any of the above offenses, the court shall order that the defendant make restitution unto the county for all taxes not paid due to an improper deferment, or continuation of a deferment, for the owner.
§11-6H-11. Severability.
If any provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity does not affect, impair or invalidate other provisions or applications of the article, and to this end the provisions of this article are declared to be severable.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-24. Senior citizen property tax relief credit.
(a) Definitions. -- As used in this section, the following terms shall have the meaning ascribed to them in this subsection, unless the context in which the term is used clearly requires a different meaning or a specific different definition is provided:
(1) "Assessed value" means the value of property as determined under article three of this chapter.
(2) "Real property taxes paid" means, for the tax years beginning on or after the first day January, two thousand nine, the aggregate of regular levies, excess levies and bond levies extended against the homestead that are paid during the calendar year and determined after any application of any discount for early payment of taxes but before application of any penalty or interest for late payment of property taxes.
(3) "Senior citizen property tax relief tax credit" means the tax credit authorized under this section.
(4) "Gross household income" means gross household income as defined in section twenty-three of this article.
(5) "Homestead" means a homestead qualified for the homestead property tax exemption authorized in article six-b of this chapter, but limited to a single family residential house, including a mobile or manufactured or modular home, and the land, not exceeding one acre, surrounding such structure that is owned by the owner of the single family residential house, including a mobile or manufactured or modular home; or a mobile or manufactured or modular home regardless of whether the land upon which such mobile or manufactured or modular home is situated is owned by another.
(6) "Owner" or "homeowner" means the person who is possessed of the homestead, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust shall be considered the owner. A person who has an equitable estate of freehold, or is a purchaser of a freehold estate who is in possession before transfer of legal title shall also be considered the owner. Personal property mortgaged or pledged shall, for the purpose of taxation, be considered the property of the party in possession.
(7) "Sixty-five years of age or older" includes a person who attains the age of sixty-five on or before the thirtieth day of June following the July first assessment day.
(8) "Tax increment" means the increase of ad valorem taxes assessed on the homestead, determined as the difference between the ad valorem taxes assessed on the homestead for the current tax year and the ad valorem taxes assessed on the homestead for the tax year immediately preceding the tax year for which the taxpayer's application for tax credit specified in this section is approved by the assessor, or otherwise finally approved in accordance with the provisions of this article.
(9) "Tax year" means the property tax calendar year following the July first assessment day.
(10) "Used and occupied exclusively for residential purposes" means that the property is used as an abode, dwelling or habitat for more than six consecutive months of the calendar year prior to the date of application by the owner thereof; and that subsequent to making application for tax credit, the property is used only as an abode, dwelling or habitat to the exclusion of any commercial use.
(b) Refundable credit. -- Subject to the requirements and limitations of this section, for the tax years beginning on or after the first day of January, two thousand nine, any homeowner having a gross household income equal to or less than twenty-five thousand dollars for the tax year, living in his or her homestead shall be allowed a refundable credit against the taxes imposed by this article equal to the amount of real property taxes paid that are attributable to the tax increment of ad valorem taxes assessed under the authority of article three of this chapter on the homestead: Provided, That the gross household income shall be adjusted annually in accordance with the consumer price index. The credit shall be applied against the personal income tax in the personal income tax year of the taxpayer when the property tax increment was actually paid.
(1) Due to the administrative cost of processing, the refundable credit authorized by this section may not be refunded if less than ten dollars.
(2) The credit for each property tax year shall be claimed by filing a claim for refund within twelve months after the real property taxes are paid on the homestead.
(3) Notwithstanding the provisions of section twenty-one or twenty-three of this article, for property tax years that begin on or after the first day of January, two thousand nine, a homeowner is eligible to benefit from this section, section twenty-one or twenty-three of this article, whichever section provides the most benefit as determined by the homeowner. No homeowner may receive benefits under this section, section twenty-one or twenty-three of this article, during the same taxable year. Nothing in this section shall be interpreted to deny any lawfully entitled taxpayer of the homestead exemption provided in section three, article six-b of this chapter.
(c) Qualification for credit. --
(1) The following homesteads shall qualify for the tax credit provided in this section:
(A) Any homestead owned by an owner sixty-five years of age or older and used and occupied exclusively for residential purposes by such owner; and
(B) Any homestead that:
(i) Is owned by an owner sixty-five years of age or older who, as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility;
(ii) Was most recently used and occupied exclusively for residential purposes by the owner or the owner's spouse; and
(iii) Has been retained by the owner for noncommercial purposes.
(2) (A) For tax years commencing on or after the first day of January, two thousand nine, the owner of a homestead meeting the qualifications set forth in subdivision (1) of this subsection may apply for a tax credit in the amount of the tax increment of ad valorem taxes assessed under the authority of article three of this chapter on the homestead, subject to the limitations set forth in this section: Provided, That the tax credit may be authorized only when the tax increment is the greater of three hundred dollars or ten percent or more.
(B) In lieu of the tax credit authorized under this section, a taxpayer entitled to such credit may elect to instead apply the deferment of the tax increment authorized pursuant to article six-h of this chapter. Any taxpayer making such election shall be fully subject to the terms and limitations set forth in article six-h of this chapter.
(d) Application for tax credit; renewals; waiver of tax credit. --
(1) General. -- No tax credit may be allowed under this section unless an application for tax credit is filed with the assessor of the county in which the homestead is located, on or before the first day of November following mailing of the tax ticket in which the tax increment that is the subject of the application is contained, such tax ticket being mailed pursuant to section eight, article one, chapter eleven-a of this code. In the case of sickness, absence or other disability of the owner, the application may be filed by the owner or his or her duly authorized agent.
(2) Renewals. -- After the owner has filed an application for tax credit with his or her assessor, there shall be no need for that owner to refile an application for the tax credit. However, the taxpayer shall in all cases be required to file a personal income tax return in order to claim the credit in any tax year.
(e) Determination; notice of denial of application for tax credit. --
(1) The assessor shall, as soon as practicable after an application for tax credit is filed, review that application and either approve or deny it. If the application is denied, the assessor shall promptly, but not later than the first day of January, serve the owner with written notice explaining why the application was denied and furnish a form for filing with the county commission, should the owner desire to take an appeal. The notice required or authorized by this section shall be served on the owner or his or her authorized representative either by personal service or by certified mail. The assessor shall approve or disapprove an application for tax credit within thirty days of receipt. Any application not approved or denied within thirty days is deemed approved.
(2) In the event that the assessor has information sufficient to form a reasonable belief that an owner, after having been originally granted a tax credit, is no longer eligible for the tax credit, he or she shall, within thirty days after forming this reasonable belief, revoke the tax credit and serve the owner with written notice explaining the reasons for the revocation and furnish a form for filing with the county commission should the owner desire to take an appeal.
(f) Appeals procedure. --
(1) Notice of appeal; thirty days. -- Any owner aggrieved by the denial of his or her claim for application for tax credit or the revocation of a previously approved tax credit may appeal to the county commission of the county within which the property is situated. All such appeals shall be filed within thirty days after the owner's receipt of written notice of the denial of an application or the revocation of a previously approved tax credit, as applicable, pursuant to subsection (e) of this section.
(2) Review; determination; appeal. -- The county commission shall complete its review and issue its determination as soon as practicable after receipt of the notice of appeal, but in no event later than the twenty-eighth day of February following the tax year for which the tax credit was sought. In conducting its review, the county commission may hold a hearing on the application. The assessor or the owner may apply to the circuit court of the county for review of the determination of the county commission in the same manner as is provided for appeals from the county commission in section twenty-five, article three of this chapter.
(g) Termination of tax credit. --
(1) Any tax credit approved in accordance with the provisions of this section shall terminate immediately when any of the following events occur:
(A) The death of the owner of the property for which the tax credit was authorized;
(B) The sale of the property for which the tax credit was approved; or
(C) A determination by the assessor that the property for which the tax credit was approved no longer qualifies for the tax credit in accordance with the provisions of this section.
(h) Forms, instructions and regulations. -- The Tax Commissioner shall prescribe and supply all necessary instructions and forms for administration of this section. Additionally, the Tax Commissioner may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty- nine-a of this code, as the Tax Commissioner considers necessary for the implementation of this section.
(i) Criminal penalties; restitution. --
(1) False or fraudulent claim for tax credit. -- Any owner who willfully files a fraudulent application for tax credit, and any person who knowingly assisted in the preparation or filing of such fraudulent application for tax credit or who knowingly supplied information upon which the fraudulent application for tax credit was prepared or allowed, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty nor more than five hundred dollars, or imprisoned in jail for not more than one year, or both fined and imprisoned.
(2) In addition to the criminal penalties provided above, upon conviction of any of the above offenses, the court shall order that the defendant make restitution unto this state for all taxes not paid due to an improper tax credit, or continuation of a tax credit, for the owner and interest thereon at the legal rate until paid.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 239--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11-6H-1, §11-6H-2, §11-6H-3, §11-6H-4, §11-6H- 5, §11-6H-6, §11-6H-7, §11-6H-8, §11-6H-9, §11-6H-10 and §11-6H-11; and to amend said code by adding thereto a new section, designated §11-21-24, all relating to the taxation of real property owned by senior citizens; providing definitions; providing deferment for payment of property tax increment; specifying that the senior citizen property tax relief tax credit may be applied in lieu of such deferment; authorizing rules; requiring application for the deferment; providing for deferment renewal and waiver of deferment; providing procedures for the review and approval of application by the assessor; providing an appeals procedure; authorizing creation of a lien on property for which deferment is approved; specifying conditions for liens and lien payment and termination; requiring the Tax Commissioner to prescribe necessary forms and instructions; authorizing the Tax Commissioner to propose legislative rules; establishing criminal penalties; authorizing severability of provisions of the article; creating the Senior Citizen Property Tax Relief Credit Act; providing definitions; providing tax credit against personal income tax for payment of a specified property tax increment under certain circumstances; specifying that the Senior Citizen Property Tax Payment Deferment may be applied in lieu of such credit; requiring application for the tax credit; providing for tax credit renewal; providing procedures for the review and approval of application by the assessor; providing an appeals procedure; requiring the Tax Commissioner to prescribe necessary forms and instructions; and establishing criminal penalties.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 239, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 239) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 239) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 474, Creating limited sales tax holiday for certain Energy Star appliance purchases.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On pages two and three, section nine-j, by striking out all of subsection (a) and inserting in lieu thereof a new subsection (a), to read as follows:
(a) There is established an annual sales tax holiday on the sale of specified Energy Star qualified products from the taxes imposed by this article if:
(1) (A) The sales price of the specified Energy Star qualified product is two thousand five hundred dollars or less per purchase for noncommercial home or personal use; and
(B) The sale takes place in two thousand eight during a period beginning at 12:01 a.m. eastern daylight time on the first day of September and ending at 11:59 p.m. eastern daylight time on the seventh day of September; or
(2) (A) The sales price of the specified Energy Star qualified product is five thousand dollars or less per purchase for noncommercial home or personal use; and
(B) The sale takes place:
(i) In two thousand nine during a period beginning at 12:01 a.m. eastern daylight time on the first day of September and ending at 11:59 p.m. eastern daylight time on the thirtieth day of November; or
(C) In two thousand ten during a period beginning at 12:01 a.m. eastern daylight time on the first day of September and ending at 11:59 p.m. eastern daylight time on the thirtieth day of November.;
And,
On pages three and four, section nine-j, by striking out all of subsection (c) and inserting in lieu thereof a new subsection (c), to read as follows:
(c) Definition. -- As used in this section, the term "Energy Star qualified product" means a product that meets the energy efficient guidelines set by the United States Environmental Protection Agency and the United States Department of Energy that are authorized to carry the Energy Star label. Covered products are those listed at www.energystar.gov or successor address.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 474, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 474) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments, as amended by the House of Delegates, passage as amended, with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment to the Senate amendments, as to
Eng. House Bill No. 3201, Authorizing the tax commissioner to refuse, revoke, suspend or refuse to renew a business registration certificate for a business that is the alter ego, nominee or instrumentality of a business in certain situations.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the Senate amendments to the bill was reported by the Clerk:
By striking out the title and substituting therefor a new title, to read as follows:
Eng. House Bill No. 3201--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §11-10-5z and §11-10-7d; to amend and reenact §11-12-5 of said code; to amend said code by adding thereto a new section, designated §11-15-9j; to amend and reenact §11-15-16 of said code; and to amend and reenact §11-21-74 of said code, all relating to the procedure, assessment, collection, efficient administration and technical advancements for certain taxes; requiring electronic filing of tax returns when the taxpayer meets a certain threshold amount of taxes due; authorizing combined tax assessments; authorizing promulgation of rules to determine the application of partial payments of taxes; authorizing the limitation on assessments to apply separately to each tax in a combined assessment; authorizing the recordation of one lien for all taxes in a combined assessment; prohibiting filing incomplete business registration certificate; specifying the time period for which the business registration certificate is granted; specifying authority of the Tax Commissioner to suspend or cancel certificate; eliminating the periodic biennial business registration certificate renewal requirement; specifying a penalty applied upon issuance, renewal or reinstatement of the business registration certificate pursuant to involuntary cancellation, revocation or suspension of the business registration certificate; prohibiting filing incomplete returns for consumers sales and service tax and use tax; authorizing the Tax Commissioner to refuse, revoke, suspend or refuse to renew a business registration certificate for a business that is the alter ego, nominee or instrumentality of a business in certain situations; defining alter ego; allowing assertion of the consumers sales and use tax exemptions authorized under section nine-i, article fifteen, chapter eleven of the Code of West Virginia to be asserted by use of a direct pay permit; requiring the Tax Commissioner to design a combined reporting form; requiring taxpayers to use the form specified by the Tax Commissioner; authorizing the Tax Commissioner to promulgate necessary rules; and prohibiting filing incomplete filing of withholding tax returns.
On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendment to the Senate amendments to the bill.
Engrossed House Bill No. 3201, as amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 3201) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment, as amended by the House of Delegates, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments to the Senate amendment, as to
Eng. Com. Sub. for House Bill No. 4484, Relating to the criminal offense of stalking.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the Senate amendment to the bill were reported by the Clerk:
On page two, section nine-a, subsection (c), by striking out the words "law master" and inserting in lieu thereof the words "court judge";
On page three, section nine-a, subsection (e), after the words "protective order" by inserting the words "for injunctive relief";
On page three, section nine-a, subsection (e), by striking out "§48-27-403" and inserting in lieu thereof the words "section five hundred one, article twenty-seven, chapter forty-eight";
On page three, section nine-a, subsection (e), by striking out the words "a final order protection entered pursuant to the provisions of §48-5-601" and inserting in lieu thereof the words "section six hundred eight, article five, chapter forty-eight";
On page three, section nine-a, after subsection (e), by inserting the following:
"(f) For the purposes of this section:";
On page four, section nine-a, subsection (f), subdivision (2), after the words "carried out" by striking out the word "and";
On page four, section nine-a, subsection (f), after the words "resided in the household" by changing the period to a semicolon and inserting the word "and";
On page four, section nine-a, after subsection (f), subdivision (5), by inserting "(g)" before the word "Nothing";
And relettering the remaining subsections;
On pages five and six, section nine-a, by striking out all of subsection (k) and inserting in lieu thereof a new subsection, designated subsection (l), to read as follows:
(l) The Governor's Committee on Crime, Delinquency and Correction, after consultation with representatives of labor, licensed domestic violence programs and rape crisis centers which meet the standards of the West Virginia Foundation for Rape Information and Services, is authorized to promulgate legislative rules and emergency rules pursuant to article three, chapter twenty-nine-a of this code, establishing appropriate standards for the enforcement of this section by state, county and municipal law- enforcement officers and agencies.
On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendments to the Senate amendment to the bill.
Engrossed Committee Substitute for House Bill No. 4484, as amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4484) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the adoption by that body of the committee of conference report, passage as amended by the conference report with its Senate amended title, and requested the concurrence of the Senate in the adoption thereof, as to
Eng. House Bill No. 4557, Relating to continuing education for insurance producers.
Whereupon, Senator Minard, from the committee of conference on matters of disagreement between the two houses, as to
Eng. House Bill No. 4557, Relating to continuing education for insurance producers.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendments of the Senate to Engrossed House Bill No. 4557 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the Senate on page six, section eight, line seventy-nine, and that the Senate and House agree to the same as follows:
On page six, section eight, after line seventy-nine, by inserting the following:
(f) Subject to the approval by the commissioner, the active annual membership by an individual insurance producer in an organization or association recognized and approved by the commissioner as a state, regional or national professional insurance organization or association may be approved by the commissioner for up to two hours of continuing insurance education: Provided, That not more than two hours of continuing insurance education may be awarded to an individual insurance producer for membership in a professional insurance organization during a biennnial reporting period. Credit for continuing insurance education pursuant to this subdivision may only be awarded to individual insurance producers who are required to complete more than six hours of continuing education biennially.;
And relettering the remaining subsections;
And,
That the House of Delegates agree to the amendment of the Senate to the title of the bill.
Respectfully submitted,
K. Steven Kominar, Chair, David G. Perry, Bob Ashley, Conferees on the part of the House of Delegates.
Joseph M. Minard, Chair, Michael A. Oliverio II, Andy McKenzie, Conferees on the part of the Senate.
Senator Minard, Senate cochair of the committee of conference, was recognized to explain the report.
Thereafter, on motion of Senator Minard, the report was taken up for immediate consideration and adopted.
Engrossed House Bill No. 4557, as amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4557) passed with its Senate amended title.
Ordered, That The Clerk of the Senate communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the adoption by that body of the committee of conference report, passage as amended by the conference report with its conference amended title, and requested the concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 4364, Amending various requirements for motor vehicle dealers.
Whereupon, Senator Chafin , from the committee of conference on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 4364, Amending various requirements for motor vehicle dealers.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendments of the Senate to Engrossed Committee Substitute for House Bill No. 4364 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the Senate, striking out everything after the enacting clause, and agree to the same as follows:
That §17A-6-1b, §17A-6-2a, §17A-6-4, §17A-6-7, §17A-6-15 and §17A-6-18a of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §17A-6E-2 of said code be amended and reenacted; and that § 46A-3-109 of said code be amended and reenacted, all to read as follows:
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION, CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS.

ARTICLE 6. LICENSING OF DEALERS AND WRECKERS OR DISMANTLERS; SPECIAL PLATES; TEMPORARY PLATES OR MARKERS.

§17A-6-1b. Dealers authorized to issue motor vehicle registration.
(a) Notwithstanding any other provision in this chapter, the division may allow a licensed motor vehicle dealer as defined in section one of this article, authority to issue or transfer motor vehicle registrations for vehicles sold by the dealer. The authority to issue and transfer motor vehicle registrations shall be contingent upon the dealer collecting all fees and taxes required for the titling and registration of vehicles, receiving proof of insurance as described in subsection (e), section three, article three of this chapter, and if applicable receiving the receipt showing full payment of personal property taxes in accordance with section three-a, article three of this chapter.
(b) Authorization to issue and transfer motor vehicle registrations shall be contingent on the dealer completing an application provided by the division and meeting all criteria established by the division. The authority shall also be contingent upon the dealer agreeing to participate fully in a computerized system of electronic submission of registration, titling and lien information and all fees and taxes required under the provisions of this chapter, either directly to the division or through an authorized service provider selected and approved by the division. Any transaction conducted under the provisions of this section shall be conditional pending the determination by the division that the application for title, registration and lien recordation is complete, accurate and in accordance with the provisions of this chapter.
(c) The authority to participate in the electronic transmission of title, registration and lien information shall be immediately revoked upon revocation or cancellation of a dealer's license issued under the provisions of this chapter: Provided, That the authority to issue and transfer motor vehicle registrations may be revoked by the division immediately and separately from any other action against the dealer's license if the division determines that the terms of the agreement or agreements authorizing issuance, transfer or renewal of a vehicle registration or the electronic transmission of information have been violated.
(d) A fee established by the Motor Vehicle Dealers Advisory Board may be charged by a motor vehicle dealer for its services required under this section.
(e) Only motor vehicle registrations of a type specified by the division may be issued, transferred or renewed by the authorized dealer.
(f) All fees and taxes collected by an authorized dealer under the provisions of this section shall be deposited in a financial institution designated by the division or the service provider in the manner prescribed by the division.
(g) The division may authorize a service provider to supply an authorized dealer with the necessary forms, supplies, registration plates and registration renewal decals necessary to enable the authorized dealer to perform the duties and functions specified in this section.
(1) Any service provider authorized to perform services under the provisions of this section shall post a bond of the applicant in the penal sum of one million dollars, in the form prescribed by the commissioner, conditioned that the applicant will not in the conduct of business practice any fraud which, or make any fraudulent representation which, shall cause a financial loss to any dealer, financial institution or agency, or the State of West Virginia, with a corporate surety thereon authorized to do business in this state, which bond shall be effective as of the date on which the authorization to provide services commences.
(2) The service provider is solely responsible for the inventory, tracking, safety and reconciliation of all supplies, registration plates, registration decals or other motor vehicle credentialing items in accordance with procedures established by the division and subject to audits by the division.
(3) The division may rescind without notice the authority of a service provider to perform services when the division has cause to believe that any state or federal law has been violated or that the service provider is not adhering to the terms and conditions of the authorization agreement.
(h) The service provider and the authorized dealer assume full responsibility for the care, custody, control, disclosure and use of any information provided by the division in order to execute the duties and responsibilities required by this section. Each service provider and each authorized dealer agrees to ensure that the disclosure of information to it and its handling of information received from the division complies with all federal and state statutes and division directives governing the disclosure and protection of such information.
(i) The commissioner may enter into agreements with other states and jurisdictions granting licensed dealers regulated by other states and jurisdictions the authority to issue or transfer motor vehicle registrations for vehicles sold by the dealer in the same manner as dealers licensed by this state.
§17A-6-2a. Dealer Recovery Fund created.
(a) There is hereby created a special fund in the State Treasury which is to be designated the Dealer Recovery Fund. The fund shall consist of certain moneys received from persons engaged in the business of selling new or used motor vehicles, new or used motorcycles, trailers, semi-trailers or recreational vehicles or from grants, gifts, bequests or awards arising out of the settlement or adjudication of a claim. The fund is not to be treated by the Auditor and Treasurer as part of the general revenue of the state. The fund is to be a special revolving fund paid out upon order of the Commissioner of Motor Vehicles based on the recommendation of the Dealer Recovery Fund Control Board created in this section, solely for the purposes specified in this section. The commissioner may use up to one percent of funds from the Dealer Recovery Fund for the administrative expenses of operating the Dealer Recovery Fund program.
(b) The Dealer Recovery Fund Control Board shall consist of the Commissioner of Motor Vehicles or his or her designee, the Attorney General's designee representing the Office of Consumer Protection and one representative selected by the Motor Vehicle Dealers Advisory Board. The Commissioner of Motor Vehicles or his or her designee shall serve as chair and the board shall meet at least once a year during the month of July, and as required by the commissioner. The commissioner may propose rules for promulgation in accordance with article three, chapter twenty-nine-a of this code that are necessary to effectuate the provisions of this section. The commissioner may employ the necessary staff needed to operate the program. The board may prorate the amount paid on claims when the amount of valid claims submitted would exceed thirty-three percent of the fund. However, claims presented by the Division of Motor Vehicles for taxes and fees shall be paid in full. The board may purchase insurance at a cost not to exceed one percent of the fund to cover extraordinary or excess claims from the fund.
(c) Every applicant for either an original dealer license or renewal of an existing dealer license of the type enumerated in subsection (a) of this section shall pay, in addition to any other license fee, an annual Dealer Recovery Fund fee of one hundred fifty dollars. All dealers shall continue to maintain a surety bond as required by this article and the Dealer Recovery Fund payment unless exempt by one of the following requirements:
(1) Any dealer who, for the three years immediately preceding assessment of the fees, has not had a claim paid against their bond or against the Dealer Recovery Fund, whose license has not been suspended or revoked and who has not been assessed any civil penalties is not required to continue to keep the bond required by this article. However, no dealer can submit a claim against the fund unless it has contributed to the fund for at least three years.
(2) If the Dealer Recovery Fund reaches or exceeds the amount of three million dollars as of the first day of July of any year, a dealer who meets the requirements of subdivision (1) of this subsection, is exempt from payment of the annual Dealer Recovery Fund Fee. However, if the fund should, as of the first day of April of any year, drop below three million dollars, all dealers, regardless of any previous exemption shall pay the annual dealer recovery fee of one hundred fifty dollars. The exemption prescribed in subdivision (1) of this subsection remains in effect regardless of the status of the fund.
(d) The Dealer Recovery Fund control board may consider payment only after any dealer surety bond required pursuant to the provisions of section four of this article has been exhausted.
(e) When the fund reaches two hundred fifty thousand dollars, the board shall consider claims for payment.
(f) Claims against the fund are not to be made for any act or omission which occurred prior to the first day of July, two thousand two.
(g) Claims for payment shall be submitted within six months of the date of sale or the date the division is made aware of the claim.
(h) The board shall pay claims in the following order:
(1) Claims submitted by the Division of Motor Vehicles for unpaid taxes and fees;
(2) Claims submitted by a retail purchaser of a vehicle from a dealer covered by the fund with an undisclosed lien or a retail purchaser of a vehicle from a dealer covered by the fund who finds that the lien on the vehicle traded in has not been satisfied by the selling dealer if the lien satisfaction was a condition of the purchase agreement;
(3) Claims submitted by a motor vehicle dealer contributing to the fund, which has purchased a vehicle or vehicles from another dealer covered by the fund with an undisclosed lien; or
(4) Claims submitted by a retail purchaser of third-party goods or services from a dealer covered by the fund for the unpaid charges when the dealer fails to pay the third party for the goods or services; or
(5) Claims submitted by the Division of Motor Vehicles, a retail purchaser or a motor vehicle dealer contributing to the fund, not authorized by subdivisions (1) through (4), inclusive, of this subsection, but otherwise payable under the bond described in section four of this article, may be considered for payment by the board up to the amount of fifty thousand dollars for each licensing year the West Virginia dealer that is the subject of the complaint did not maintain the bond : Provided, That the board may not consider claims submitted by or on behalf of a financial institution for money owed by a dealer upon a loan to a dealer or credit extended to a dealer that is secured by a lien upon the inventory of the dealer, commonly referred to as a floor planner.
(i) The maximum claim against the fund for any unpaid lien of a used vehicle is the unpaid balance of the lien up to the loan value of the vehicle as of the date of the sale or other transaction as shown by a generally accepted motor vehicle value guide. The maximum claim against the fund for any new or unused vehicle is the amount of the invoice less any amounts rebated or to be rebated to the dealer from the manufacturer. Payment is only to be made to a secured party who agrees to accept payment from the Dealer Recovery Fund and who accepts the payment in full settlement of any claims, and who releases the lien and the title, if applicable, prior to receiving payment. Any dealer who agrees to accept payment from the Dealer Recovery Fund shall release the title prior to receiving payment.
(j) On payment by the board to a claimant from the fund, the board shall immediately notify the licensee against whom a claim was paid and request full reimbursement within thirty days of notification. If a dealer fails to fully reimburse the board within the specified period of time, the commissioner shall immediately and without prior hearing revoke the dealer license of dealer against whom the claim was paid. No applicant with an unpaid claim is eligible for renewal or relicensure until the full amount of the reimbursement plus interest as determined by the board is paid to the fund. Nothing in this section shall limit the authority of the commissioner to suspend, revoke or levy civil penalties against a dealer, nor shall full repayment of the amount owed to the fund necessarily nullify or modify the effect of any action by the commissioner.
(k) Nothing in this section shall limit the right for any person to seek relief though civil action against any other person.
(l) The provisions of this section do not apply to those class DTR dealers in the business of selling manufactured housing and covered by the state manufactured housing recovery fund established by the Division of Labor pursuant to a legislative rule.

§17A-6-4. Application for license certificate; insurance; bonds; investigation; information confidential.

(a) Application for any license certificate required by section three of this article shall be made on a form prescribed by the commissioner. There shall be attached to the application a certificate of insurance certifying that the applicant has in force an insurance policy issued by an insurance company authorized to do business in this state insuring the applicant and any other person, as insured, using any vehicle or vehicles owned by the applicant with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the ownership, operation, maintenance or use of the vehicle or vehicles, subject to minimum limits, exclusive of interest and costs, with respect to each vehicle, as follows: Twenty thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, forty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and ten thousand dollars because of injury to or destruction of property of others in any one accident.
(b) In the case of an application for a license certificate to engage in the business of new motor vehicle dealer, used motor vehicle dealer or house trailer dealer, the application shall disclose, but not be limited to, the following:
(1) The type of business for which a license certificate is sought;
(2) If the applicant is an individual, the full name and address of the applicant and any trade name under which he or she will engage in the business;
(3) If the applicant is a copartnership, the full name and address of each partner in the copartnership, the name of the copartnership, its post office address and any trade name under which it will engage in the business;
(4) If the applicant is a corporation, its name, the state of its incorporation, its post office address and the full name and address of each officer and director of the corporation;
(5) The location of each place in this state at which the applicant will engage in the business and whether the business is owned or leased by the applicant;
(6) Whether the applicant, any partner, officer or director of the business has previously engaged in the business or any other business required to be licensed under the provisions of this article and if so, with or for whom, at what location and for what periods of time;
(7) Whether the applicant, any partner, officer, director or employer of the business has previously applied for a license certificate under the provisions of this article or a similar license certificate in this or any other state, and if so, whether the license certificate was issued or refused and, if issued, whether it was ever suspended or revoked;
(8) A statement of previous general business experience and the past history of the applicant; and
(9) Any other information that the commissioner may reasonably require which may include information relating to any contracts, agreements or understandings between the applicant and other persons respecting the transaction of the business, and any criminal record of the applicant if an individual, or of each partner if a copartnership, or of each officer and director, if a corporation.
(c) In the case of an application for a license certificate to engage in the business of new motor vehicle dealer, the application shall, in addition to the matters outlined in subsection (b) of this section disclose:
(1) The make or makes of new motor vehicles which the applicant will offer for sale in this state during the ensuing fiscal year; and
(2) The exact number of new and used motor vehicles, if any, sold at retail and wholesale by the applicant or his or her predecessor, if any, during the preceding fiscal year, and if no new and used motor vehicles were sold at retail and wholesale by the applicant or his or her predecessor, if any, during the preceding fiscal year, the number of new and used motor vehicles the applicant reasonably expects to sell at retail and wholesale during the ensuing fiscal year.
(d) In the case of an application for a license certificate to engage in the business of used motor vehicle dealer, the application shall in addition to the matters outlined in subsection (b) of this section, disclose the exact number of used motor vehicles, if any, sold at retail and wholesale by the applicant or his or her predecessor, if any, during the preceding fiscal year, and if no used motor vehicles were sold at retail and wholesale by the applicant or his or her predecessor, if any, during the preceding fiscal year, the number of used motor vehicles the applicant reasonably expects to sell at retail and wholesale during the ensuing fiscal year.
(e) In the case of an application for a license certificate to engage in the business of trailer dealer, recreational vehicle dealer, motorcycle dealer, used parts dealer or wrecker/ dismantler/rebuilder, the application shall disclose any information that the commissioner may reasonably require.
(f) The application shall be verified by the oath or affirmation of the applicant, if an individual, or if the applicant is a copartnership or corporation, by a partner or officer thereof, as the case may be. Except as provided in section two-a of this article, the application shall be accompanied by a bond of the applicant in the penal sum of ~~ten~~ twenty-five thousand dollars, in the form prescribed by the commissioner, conditioned that the applicant will not in the conduct of his or her business practice any fraud which, or make any fraudulent representation which, shall cause a financial loss to any purchaser, seller or financial institution or agency, or the State of West Virginia, with a corporate surety thereon authorized to do business in this state. The bond shall be effective as of the date on which the license certificate sought is issued.
(g) Upon receipt of any fully completed application, together with any bond required under subsection (f) of this section, the certificate of insurance as required in subsection (a) of this section and the appropriate fee provided ~~for~~ in section ten of this article, the commissioner may conduct any investigation he or she considers necessary to determine the accuracy of any statements contained in the application and the existence of any other facts which he or she considers relevant in considering the application. To facilitate the investigation, the commissioner may withhold issuance or refusal of the license certificate for a period not to exceed twenty days.
(h) Any application for a license certificate under the provisions of this article and any information submitted with the application is confidential for the use of the division. No person shall divulge any information contained in any application or any information submitted with the application except in response to a valid subpoena or subpoena duces tecum issued pursuant to law.
§17A-6-7. When application to be made; expiration of license certificate; renewal.
(a) Every license certificate issued in accordance with the provisions of this article shall, unless sooner suspended or revoked, expire on the thirtieth day of June next following the issuance thereof.
(b) A license certificate may be renewed each year in the same manner, for the same fee as prescribed in section ten of this article and upon the same basis as an original license certificate is issued under section six of this article: Provided, That the commissioner may not renew the license of any new or used motor vehicle dealer who has sold less than eighteen vehicles during the preceding year subject to the following:
(1) This proviso does not apply to a dealer in the business of selling commercial motor vehicles of a gross vehicle weight of twenty-six thousand one pounds or more;
(2) The commissioner may approve the renewal of a dealer selling less than eighteen vehicles based on a finding of extenuating circumstances including, but not limited to, the illness of the dealer, adverse business conditions or sales credited to other types of dealer licenses held by the dealer; and
(3) Any dealer may appeal the commissioner's refusal to the Motor Vehicle Dealers Advisory Board which may consider extenuating circumstances and approve the renewal.
All applications for the renewal of any license certificate shall be filed with the commissioner at least thirty days before the expiration thereof. Any application for renewal of any license certificate not filed at least thirty days before the expiration may not be renewed except upon payment of the same fee as an original license certificate as prescribed in subsection (a), section ten of this article. The commissioner may allow the delinquent applicant to complete an abbreviated application for renewal in lieu of an original application.
§17A-6-15. Temporary registration plates or markers.
(a) In order to permit a vehicle which is sold to a purchaser by a dealer to be operated on the streets and highways pending receipt of the annual registration plate from the division for such vehicle, the commissioner may, subject to the limitations and conditions hereinafter set forth, deliver temporary vehicle registration plates or markers to dealers who in turn may, subject to the limitations and conditions hereinafter set forth, issue the same to purchasers of vehicles, but such purchasers must comply with the pertinent provisions of this section.
(b) Application by a dealer to the commissioner for ~~such~~ temporary registration plates or markers shall be made on the form and in the manner prescribed and furnished by the commissioner for such purpose and shall be accompanied by a fee of three dollars for each such temporary registration plate or marker. The commissioner may require the fee to be remitted to the division in an electronic format. No refund or credit of fees paid by dealers to the commissioner for temporary registration plates or markers shall be allowed, except that in the event the commissioner discontinues the issuance of such temporary plates or markers, dealers returning temporary registration plates or markers to the commissioner may petition for and be entitled to a refund or a credit thereof. No temporary registration plates or markers shall be delivered by the commissioner to any dealer in house trailers only, and no such temporary plates or markers shall be issued for or used on any house trailer for any purpose.
(c) Every dealer who has made application for and received temporary registration plates or markers shall maintain in ~~permanent form a record of all temporary registration plates or markers delivered to him~~ a manner prescribed by the commissioner, a record of all temporary registration plates or markers issued by him or her, and a record of any other information pertaining to the receipt or the issuance of temporary registration plates or markers which the commissioner may require. ~~Each such record shall be kept for a period of at least three years from the date of the making thereof.~~ Every dealer who issues a temporary registration plate or marker shall, within five working days after he issues such plate or marker, send to the division a copy of the temporary registration plate or marker certificate properly executed by such dealer and the purchaser notify the division in the manner prescribed by the commissioner. No temporary registration plates or markers may be delivered to any dealer until such dealer has fully accounted to the commissioner for the temporary registration plates or markers last delivered to such dealer, by showing the number issued to purchasers by such dealer and any on hand.
(d) A dealer ~~shall~~ may not issue, assign, transfer or deliver a temporary registration plate or marker to anyone other than the bona fide purchaser of the vehicle to be registered; nor ~~shall~~ may a dealer issue a temporary registration plate or marker to anyone possessed of an annual registration plate for a vehicle which has been sold or exchanged, except a dealer may issue a temporary registration plate or marker to the bona fide purchaser of a vehicle to be registered who possesses an annual registration plate of a different class and makes application to the division to exchange such annual registration plate of a different class in accordance with the provisions of section one, article four of this chapter; nor ~~shall~~ may a dealer lend to anyone, or use on any vehicle which he or she may own, a temporary registration plate or marker. It ~~shall be~~ is unlawful for any dealer to issue any temporary registration plate or marker knowingly containing any misstatement of fact, or knowingly to insert any false information upon the face thereof.
(e) Every dealer who issues temporary registration plates or markers shall affix or insert clearly and indelibly on the face of each temporary registration plate or marker in the manner prescribed by the commissioner, the date of issuance and expiration thereof, and the make and motor or serial number of the vehicle for which issued.
(f) If the commissioner finds that the provisions of this section or his or her directions are not being complied with by a dealer, he or she may suspend the right of such dealer to issue temporary registration plates or markers.
(g) Every person to whom a temporary registration plate or marker has been issued shall permanently destroy such temporary registration plate or marker immediately upon receiving the annual registration plate for such vehicle from the division: Provided, That if the annual registration plate is not received within sixty days of the issuance of the temporary registration plate or marker, the owner shall, notwithstanding the fact that the annual registration plate has not been received, immediately and permanently destroy the temporary registration plate or marker: Provided, however, That not more than one temporary registration plate or marker shall be issued to the same bona fide purchaser for the same vehicle.
(h) A temporary registration plate or marker shall expire and become void upon the receipt of the annual registration plate from the division or upon the rescission of the contract to purchase the vehicle in question, or upon the expiration of sixty days from the date of issuance, depending upon whichever event shall first occur.
(i) For the purpose of this section, the term "dealer" includes a wrecker/dismantler/rebuilder and in the context of issuing temporary registration plates, any other business licensed by the division in accordance with the provisions of this chapter and authorized to issue temporary registration plates or markers.
(j) The commissioner may require participation in an electronic temporary plate issuance system by all dealers as a precondition for authority for a dealer to issue temporary license plates or markers.
§17A-6-18a. Motor Vehicle Dealers Advisory Board.
(a) There is continued a Motor Vehicle Dealers Advisory Board to assist and to advise the commissioner on the administration of laws regulating the motor vehicle industry; to work with the commissioner in developing new laws, rules or policies regarding the motor vehicle industry; to advise the commissioner on setting documentary charges or similar charges motor vehicle dealers may charge consumers for documentary services in relation to securing a title, which such charges the commissioner is hereby granted authority to set; and to give the commissioner any further advice and assistance as he or she may, from time to time, require.
The board shall consist of nine members and the Commissioner of Motor Vehicles, or his or her representative, who shall be an ex officio member. Two members shall represent new motor vehicle dealers, with one of these two members representing dealers that sell less than one hundred new vehicles per year; one member shall represent used motor vehicle dealers; one member shall represent wrecker/dismantler/rebuilders; one member shall represent automobile auctions; one member shall represent recreational dealers; one member shall represent the West Virginia Attorney General's office; and two members shall represent consumers. All of the representatives, except the Attorney General representative who shall be designated by the Attorney General, shall be appointed by the Governor with the advice and consent of the Senate, with no more than five representatives being from the same political party.
The terms of the board members shall be for three years. The attorney general representative shall serve continuously.
The board shall meet at least four times annually and at the call of the commissioner.
(b) The commissioner shall consult with the board before he or she takes any disciplinary action against a dealer, an automobile auction or a license service to revoke or suspend a license, place the licensee on probation or levy a civil penalty, unless the commissioner determines that the consultation would endanger a criminal investigation.
(c) The commissioner may consult with the board by mail, by facsimile, by telephone or at a meeting of the board, but the commissioner is not bound by the recommendations of the board. The commissioner shall give members seven days from the date of a mailing or other notification to respond to proposed actions, except in those instances when the commissioner determines that the delay in acting creates a serious danger to the public's health or safety or would unduly compromise the effectiveness of the action.
(d) No action taken by the commissioner is subject to challenge or rendered invalid on account of his or her failure to consult with the board.
(e) The appointed members shall serve without compensation, however, members are entitled to reimbursement of travel and other necessary expenses actually incurred while engaged in legitimate board activities in accordance with the guidelines of the Travel Management Office of the Department of Administration or its successor agency.
ARTICLE 6E. MOTOR VEHICLE SALESPERSON LICENSE.
§17A-6E-2. Definitions.
The following words as used in this article, unless the context otherwise requires, have the following meanings:
(1) "Applicant" means any person making application for an original or renewal of a salesperson license;
(2) "Dealer" means any motor vehicle or auction business regulated under the provisions of article six or six-c of this chapter;
(3) "Licensee" means any person holding a license issued under the provisions of this article;
(4) "Motor vehicle salesperson" or "salesperson" means any person employed by a dealer to sell, buy, display and offer for sale or deal in motor vehicles, recreational vehicles or trailers, as those terms are defined in section one, article one of this chapter, for a commission or other valuable consideration, but does not mean any public officer performing his or her official duties or the dealer licensee. A person employed by a dealer as a finance and insurance representative is for the purposes of this article a salesperson. For the purposes of this article, the term "motor vehicle salesperson" does not apply to persons employed by a dealer in the business of selling commercial motor vehicles with a gross vehicle weight of twenty-six thousand one pounds or more, employees of financial institutions or to businesses licensed as auctions.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT
AND PROTECTION ACT.
ARTICLE 3. FINANCE CHARGES AND RELATED PROVISIONS.
§46A-3-109. Additional charges; credit life or health insurance; notice of cancellation; when refund required; obligations of creditor and insurer; civil penalty; rules relating to insurance.
(a) In addition to the sales finance charge or loan finance charge permitted by this chapter, a creditor may contract for and receive the following additional charges in connection with a consumer credit sale or a consumer loan:
(1) Official fees and taxes;
(2) Charges for insurance as described in subsection (b) of this section: Provided, That nothing contained in this section with respect to insurance in any way limits the power and jurisdiction of the Insurance Commissioner of this state in the premises;
(3) Annual charges, payable in advance, for the privilege of using a lender credit card or similar arrangement which entitles the user to purchase goods or services from at least one hundred persons not related to the issuer of the lender credit card or similar arrangement, under an arrangement pursuant to which the debts resulting from the purchases are payable to the issuer;
(4) Charges for other benefits, including insurance, conferred on the consumer, if the benefits are of value to him or her and if the charges are reasonable in relation to the benefits, are of a type which is not for credit and are excluded as permissible additional charges from the sales finance charge or loan finance charge by rule adopted by the commissioner: Provided, That as to insurance, the policy as distinguished from a certificate of coverage thereunder may only be issued by an individual licensed under the laws of this state to sell the insurance and the determination of whether the charges therefor are reasonable in relation to the benefits shall be determined by the Insurance Commissioner of this state;
(5) Reasonable closing costs with respect to a debt secured by an interest in land; and
(6) Documentary charge or any other similar charge for documentary services in relation to securing a title, so long as said charge is applied equally to cash customers and credit customers ~~alike and so long as such documentary charge does not exceed fifty dollars.~~ and there is a reasonable relationship between said charge and the benefit conferred on the customer.
(b) A creditor may take, obtain or provide reasonable insurance on the life and earning capacity of any consumer obligated on the consumer credit sale or consumer loan, reasonable insurance on any real or personal property offered as security subject to the provisions of this subsection and section one hundred nine-a of this article and vendor's or creditor's single interest insurance with respect to which the insurer has no right of subrogation. Only one policy of life insurance and/or one policy of health and accident insurance and/or one policy of accident insurance and/or one policy of loss of income insurance on any one consumer may be in force with respect to any one contract or agreement at any one time, but one policy may cover both a consumer and his or her spouse:
(1) The amount, terms and conditions of property insurance shall have a reasonable relation to the existing hazards or risk of loss, damage or destruction and be reasonable in relation to the character and value of the property insured or to be insured; and the term of the insurance shall be reasonable in relation to the terms of credit: Provided, That nothing may prohibit the consumer from obtaining, at his or her option, greater coverages for longer periods of time if he or she so desires;
(2) Life insurance shall be in an initial amount not to exceed the total amount repayable under the consumer credit agreement, and where a consumer credit sale or consumer loan is repayable in installments, such insurance may at no time exceed the scheduled or actual amount of unpaid indebtedness, whichever is greater. Life insurance authorized by this subdivision shall provide that the benefits be paid to the creditor to reduce or extinguish the unpaid indebtedness: Provided, That if a separate charge is made for the insurance and the amount of insurance exceeds the unpaid indebtedness, where not prohibited, then the excess is payable to the estate of the consumer. The initial term of the life insurance in connection with a consumer credit sale, other than a sale pursuant to a revolving charge account, or in connection with a consumer loan, other than a loan pursuant to a revolving loan account, may not exceed the scheduled term of the consumer credit agreement by more than fifteen days. The aggregate amount of periodic benefits payable by credit accident and health insurance in the event of disability, as defined in the policy, and loss of income insurance in the event of involuntary loss of employment, as defined in the policy, may not exceed the unpaid amount of such indebtedness; periodic benefits payable in connection with a consumer credit sale pursuant to a revolving charge account or of a consumer loan pursuant to a revolving loan account may be based upon the authorized credit limit;
(3) When the insurance is obtained or provided by or through a creditor, the creditor may collect from the consumer or include as part of the cash price of a consumer credit sale or as part of the principal of a consumer loan or deduct from the proceeds of any consumer loan the premium or, in the case of group insurance, the identifiable charge. The premium or identifiable charge for the insurance required or obtained by a creditor may equal, but may not exceed the premium rate filed by the insurer with the insurance commissioner. In any case when the creditor collects the entire premium for such insurance in advance, the premium shall be remitted by the creditor to the insurer or the insurance agent, as specified by the insurer, within ten days from or after the end of the month in which the collection was made;
(4) With respect to insurance against loss of or damage to property or against liability, the creditor shall furnish a clear and specific statement in writing to the debtor setting forth the cost of the insurance if obtained from or through the creditor and stating that the debtor may choose the person through whom the insurance is to be obtained;
(5) With respect to consumer credit insurance providing life, accident, health or loss of income coverage, no creditor may require a consumer to purchase the insurance or to purchase the insurance from the creditor or any particular agent, broker or insurance company as a condition precedent to extending credit to or on behalf of such consumer;
(6) When a consumer credit sale or consumer loan, refinancing or consolidation is paid in full, the creditor receiving the payment shall inform the debtor of the cancellation of any consumer credit insurance providing life, accident, health or loss of income coverage and advise the debtor of the application of any unearned premiums to the loan balance. Notices required by this subdivision shall be made in the following manner:
(A) If the insurance was not sold or provided by the creditor, the creditor receiving the payment shall notify the debtor that he or she may have the right to receive a refund of unearned premiums from any other seller or provider of the insurance and advise the debtor of his or her obligation to notify any other insurer of the payment of the loan balance and the cancellation of the consumer credit insurance and request a refund or credit of unearned premiums, if applicable. Such notice shall be sent on a form as prescribed by the insurance commissioner as provided in chapter twenty-nine-a of this code and shall contain the name and address of the seller and the insurer; or
(B) If the creditor was the seller or provider of the consumer credit insurance, the creditor shall:
(i) Notify the insurer or shall cause the insurer to be notified of the cancellation of such insurance; and
(ii) Notify the debtor of the cancellation of the insurance and of the application of any unearned premiums to the loan balance, which notice may be on a form consistent with the general course of business of the creditor;
(7) Upon receipt by the insurer of notification of the cancellation of consumer credit insurance, the insurer shall cancel the insurance effective no later than thirty days from the date of receipt of the notice. Within forty-five days following the date of notification of cancellation of the insurance, the insurer shall pay any refund of unearned premiums to the debtor-insurer or such other person as directed by the debtor-insurer; and
(8) An insurer, seller or creditor who fails to refund any unused insurance premium or provide the proper notification of payoff is liable for civil damages up to three times the amount of the unused premium as well as other remedies as provided by section one hundred nine, article seven of this chapter.
(c) The Insurance Commissioner of this state shall promulgate legislative rules in accordance with the provisions of chapter twenty-nine-a of this code to implement the provisions of this article relating to insurance and the authority of the Insurance Commissioner to promulgate the rules is exclusive notwithstanding any other provisions of this code to the contrary.;
And,
That both houses recede from their respective positions as to the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 4364--A Bill to amend and reenact §17A-6-1b, §17A-6-2a, §17A-6-4, §17A-6-7, §17A-6-15 and §17A-6-18a of the Code of West Virginia, 1931, as amended; to amend and reenact §17A-6E-2 of said code; and to amend and reenact § 46A- 3-109 of said code, all relating to motor vehicle dealers generally; allowing the Commissioner of the Division of Motor Vehicles to enter into agreements with other states to allow out-of-state dealers to issue vehicle registrations; expanding authority of Dealer Recovery Fund Control Board to consider claims against the fund; increasing minimum bond requirement for certain dealers from ten thousand dollars to twenty-five thousand dollars; establishing minimum number of sales by a dealer prior to renewal of a dealer's license and opportunity for appeal; exempting salespersons employed by dealers selling commercial vehicles, financial institutions and auctions from the requirement to obtain a salesperson license; requirements for issuing temporary registration plates; authorizing the commissioner to require participation in an electronic temporary plates or markers program as a precondition for issuance of temporary plates; and transferring to commissioner authority to set documentary or similar charges motor vehicle dealers may charge consumers for documentary services in relation to securing a title, with the advice of the Motor Vehicle Dealers Advisory Board .
Respectfully submitted,
Lidella Wilson Hrutkay, Chair, Robert C. Tabb, Robert A. Schadler, Conferees on the part of the House of Delegates.
H. Truman Chafin, Chair, Ron Stollings, J. Frank Deem, Conferees on the part of the Senate.
Senator Chafin, Senate cochair of the committee of conference, was recognized to explain the report.
Thereafter, on motion of Senator Chafin, the report was taken up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 4364, as amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4364) passed with its conference amended title.
Ordered, That The Clerk of the Senate communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment, as amended by the House of Delegates, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments to the Senate amendment, as to
Eng. Com. Sub. for House Bill No. 4438, Relating to air pollution control.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the Senate amendment to the bill were reported by the Clerk:
On page eight, section eleven-a, subsection (a), subdivision (11), after the word "publication." by inserting the following: The applicant shall post a visible and accessible sign, at a minimum two feet square, at the entrance to the source or proposed site. The sign must be clearly marked indicating that an air quality permit has been applied for and include the West Virginia Division of Air Quality permitting section telephone number and web site for additional information. The applicant must post the sign for the duration of the public notice period.;
And,
On page nine, section eleven-a, subsection (d), after the words "is complete," by inserting the words "unless the secretary for good cause shown, extends the fifteen-day time period for up to an additional fifteen calendar days,".
On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendments to the Senate amendment to the bill.
Engrossed Committee Substitute for House Bill No. 4438, as amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, Yoder and Tomblin (Mr. President)--32.
The nays were: White--1.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4438) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate again proceeded to the eighth order of business.
The end of today's third reading calendar having been reached, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 4476, Public-Private Transportation Facilities Act.
Having been read a third time in earlier proceedings today, and now coming up in deferred order, was again reported by the Clerk.
On motion of Senator Chafin, the Senate reconsidered its action by which on yesterday, Friday, March 7, 2008, it adopted the Finance committee amendment to the bill, as amended (shown in the Senate Journal of that day, pages 223 to 243, inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of the Finance committee amendment to the bill, as amended.
On motion of Senator Chafin, the following amendments to the Finance committee amendment to the bill (Eng, Com. Sub. for H. b. No. 4476), as amended, were reported by the Clerk, considered simultaneously, and adopted:
On page nineteen, section nine, after line two, by inserting a new subsection, designated subsection (f), to read as follows:
(f) Any changes in the terms of the comprehensive agreement, agreed upon by the parties and subject to the requirements of subsection (h) of this section, shall be added to the comprehensive agreement by written amendment.;
On page nineteen, section nine, line three, by striking out "(f)" and inserting in lieu thereof "(g);
On page nineteen, section nine, lines seven through eleven, by striking out all of subsection (g) and inserting in lieu thereof the following:
(h) Notwithstanding any provision of this article to the contrary, the division may not enter into any comprehensive agreements with a developer after the thirtieth day of June, two thousand thirteen.
(i) Notwithstanding any provision of this article to the contrary, the division may not enter into a comprehensive agreement until the comprehensive agreement has been approved by the Legislature by the adoption of a concurrent resolution: Provided, That all voting on the floor of both houses on the question of the adoption of any concurrent resolution approving a comprehensive agreement shall be by yeas and nays to be entered on the Journals. If the Legislature approves the comprehensive agreement, the division shall submit the comprehensive agreement to the Governor for his or her approval or disapproval.;
And,
On page twenty-five, section seventeen, by striking out all of subsections (b) and (c).
The question now being on the adoption of the Finance committee amendment to the bill, as amended, the same was put and prevailed.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4476), as just amended, was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Wells, White and Tomblin (Mr. President)--30.
The nays were: Barnes, Unger and Yoder--3.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4476) passed.
At the request of Senator Unger, as chair of the Committee on Transportation and Infrastructure, unanimous consent being granted, the unreported Transportation and Infrastructure committee amendment to the title of the bill was withdrawn.
At the request of Senator Helmick, as chair of the Committee on Finance, and by unanimous consent, the unreported Finance committee amendment to the title of the bill was withdrawn.
On motion of Senator Chafin, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4476--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §17-27-1, §17-27-2, §17-27-3, §17-27-4, §17-27-5, §17-27-6, §17-27-7, §17-27-8, §17-27-9, §17-27-10, §17-27-11, §17-27-12, §17-27-13, §17-27-14, §17-27-15, §17-27-16, §17-27-17 and §17-27-18, all relating to establishment of the Public-Private Transportation Facilities Act; setting forth legislative findings and purposes; defining terms; providing prerequisites for acquiring, constructing or improving of a transportation facility; creating public-private transportation oversight within the Division of Highways; creating the powers and duties of the division and any other agencies that are part of the department; providing for the submission of proposals and approval by the division; providing for service contracts; providing for the dedication of public property; setting forth the powers and duties of a developer; requiring a comprehensive agreement; requiring that comprehensive agreement be adopted by the Legislature by concurrent resolution; requiring yeas and nays to be entered in Journal; providing for federal, state and local assistance; addressing the issues of material default and remedies; prohibiting governmental entities from pledging full faith and credit; providing for the exercise of condemnation; addressing utility crossings and relocations; addressing dedication of assets; qualifying transportation facilities as public improvements; providing for an exemption of qualifying transportation facilities from taxation; and addressing liberal construction and application of article.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced the adoption by that body of the committee of conference report, passage as amended by the conference report with its Senate amended title, to take effect July 1, 2008, and requested the concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 3215, Removing the administrative link between Shepherd University and Blue Ridge Community and Technical College.
Whereupon, Senator Plymale, from the committee of conference on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 3215, Removing the administrative link between Shepherd University and Blue Ridge Community and Technical College.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendments of the Senate to Engrossed Committee Substitute for House Bill No. 3215 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That the House agree to the amendments of the Senate to the bill and its title.
Respectfully submitted,
Mary M. Poling, Chair, Brady Paxton, Larry A. Williams, John Doyle, Lynwood Ireland (Did not sign), Conferees of the part of the House of Delegates.
Robert H. Plymale, Chair, Larry J. Edgell, Roman W. Prezioso, Jr., Erik P. Wells, Karen L. Facemyer, Conferees on the part of the Senate.
Senator Plymale, Senate cochair of the committee of conference, was recognized to explain the report.
Thereafter, on motion of Senator Plymale, the report was taken up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 3215, as amended by the conference report, was then put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for House Bill No. 3215 pass?"
On the passage of the bill, as amended, the yeas were: Bailey, Barnes, Bowman, Chafin, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Plymale, Prezioso, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--27.
The nays were: Boley, Caruth, Deem, Oliverio, Sprouse and Sypolt--6.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3215) passed with its Senate amended title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Bowman, Chafin, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Plymale, Prezioso, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--27.
The nays were: Boley, Caruth, Deem, Oliverio, Sprouse and Sypolt--6.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3215) takes effect July 1, 2008.
Ordered, That The Clerk of the Senate communicate to the House of Delegates the action of the Senate.
The Senate again proceeded to the fifth order of business.
Senator Jenkins, from the committee of conference on matters of disagreement between the two houses, as to
Eng. Senate Bill No. 72, Expanding Route 2 and Interstate 68 Authority territory.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendments of the House to Engrossed Senate Bill No. 72 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the House of Delegates on page three, section two, and that the Senate and House agree to the same as follows:
On page three, section two, line six, by striking out the word "before" and inserting in lieu thereof the words "on or after";
And,
On page three, section two, line seven, by striking out the word "eight" and inserting in lieu thereof the word "nine";
And,
That the House recede from its amendment to the title of the bill.
Respectfully submitted,
Evan H. Jenkins, Chair, Robert H. Plymale, John Yoder, Conferees on the part of the Senate.
Dale Martin, Chair, Tal Hutchins, Kelli Sobonya, Conferees on the part of the House of Delegates.
On motions of Senator Jenkins, severally made, the report of the committee of conference was taken up for immediate consideration and adopted.
Engrossed Senate Bill No. 72, as amended by the conference report, was then put upon its passage.
Pending discussion and a point of inquiry to the President, with resultant response thereto,
The question being "Shall Engrossed Senate Bill No. 72 pass?" On this question, the yeas were: Bowman, Chafin, Facemyer, Foster, Hall, Helmick, Jenkins, Minard, Plymale, Stollings, Unger and Tomblin (Mr. President)--12.
The nays were: Bailey, Barnes, Boley, Caruth, Deem, Edgell, Fanning, Green, Guills, Hunter, Kessler, Love, McCabe, McKenzie, Oliverio, Prezioso, Sprouse, Sypolt, Wells, White and Yoder--21.
Absent: Sharpe--1.
So, a majority of all the members present and voting not having voted in the affirmative, the President declared the bill (Eng. S. B. No. 72) rejected.
Senator Jenkins, from the committee of conference on matters of disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 571, Relating to certain firefighters' workers' compensation benefits.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendment of the House to Engrossed Committee Substitute for Senate Bill No. 571 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That the Senate agree to the amendment of the House of Delegates, striking out everything after the enacting section, excepting on pages seven and eight, that both houses recede from their respective positions as to the amendment of the House of Delegates on pages seven and eight, section one, subsection (h), and that the Senate and House of Delegates agree to the same as follows:
On page seven, section one, line fifteen, after "(h)" by inserting "(1)";
On page seven, section one, line sixteen, after the word "professional" by striking out the words "or volunteers";
On page seven, section one, line twenty-one, after the words "professional firefighter" by striking out the words "or as a volunteer firefighter";
On page eight, section one, line nine, after the word "professional" by striking out the words "and volunteer";
And,
On page eight, section one, after line five, by adding the following:
(2) The Insurance Commissioner shall study the effects of the rebuttable presumptions created in this subsection on the premiums charged for workers' compensation for professional municipal firefighters; the probable effects of extending these presumptions to volunteer firefighters, and the overall impact of the risk management programs, wage replacement, premium calculation, the number of hours worked per volunteer, treatment of nonactive or "social" members of a volunteer crew, and the feasibility of combining various volunteer departments under a single policy on the availability and cost of providing workers compensation coverage to volunteer firefighters. The Insurance Commissioner shall file the report with the Joint Committee on Government and Finance no later than the first day of December, two thousand eight.;
And,
That both houses recede from their respective positions as to the title of the bill and agree to a new title to read as follows:
Eng. Com. Sub. for Senate Bill No. 571-- A Bill to amend and reenact §23-4-1 of the Code of West Virginia, 1931, as amended, relating to creating a rebuttable presumption that cardiovascular injury, disease or death or pulmonary disease or death of a professional firefighter is an occupational injury if certain criteria are met; providing that sufficient notice of occupational injury, disease or death has been provided under such circumstances; establishing presumption that death or injury was not self inflicted ; and requiring the Insurance Commissioner conduct a study and report back to the Joint Committee on Government and Finance.
Respectfully submitted,
Evan H. Jenkins, Chair, Joseph M. Minard, Andy McKenzie, Conferees on the part of the Senate.
Barbara Evans Fleischauer, Chair, Nancy Peoples Guthrie, John N. Ellem (Did not sign), Conferees on the part of the House of Delegates.
On motions of Senator Jenkins, severally made, the report of the committee of conference was taken up for immediate consideration and adopted.
Engrossed Committee Substitute for Senate Bill No. 571, as amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 571) passed with its conference amended title.
Ordered, That The Clerk of the Senate communicate to the House of Delegates the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced the adoption by that body of the committee of conference report, passage as amended by the conference report with its conference amended title, and requested the concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 4471, Making certain changes to the West Virginia State Police Retirement System.
Whereupon, Senator Foster, from the committee of conference on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 4471, Making certain changes to the West Virginia State Police Retirement System.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendment of the Senate to Engrossed Committee Substitute for House Bill No. 4471 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 amendment of the Senate to the bill, striking out everything after the enacting clause, excepting on page twenty, section nine, that both houses recede from their respective positions as to the amendment of the Senate, and that the Senate and House of Delegates agree to the same as follows:
On page twenty, section nine, line eighteen, following the word "lifetime" by inserting a comma and the words "or until the retirant attains the age of fifty-five;
That both houses recede from their positions as to the amendment of the Senate to the enacting section 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 §15-2-24b; and that §15-2A-2, §15-2A-3, §15-2A-4, §15-2A-5, §15-2A-6, §15-2A-6a, §15-2A-6c, §15-2A-6d, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10, §15-2A-11, §15-2A-11a, §15-2A-11b, §15-2A-12, §15-2A-13, §15-2A-14, §15-2A-15, §15-2A-17 and §15-2A-19 of said code be amended and reenacted, all to read as follows:;
And,
That both houses recede from their positions as to the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 4471-- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-2-24b; and to amend and reenact §15-2A-2, §15-2A-3, §15-2A-4, §15-2A-5, §15-2A-6, §15-2A-6a, §15-2A-6c, §15-2A-6d, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10, §15-2A-11, §15-2A-11a, §15-2A-11b, §15-2A-12, §15-2A-13, §15-2A-14, §15-2A-15, §15-2A-17 and §15-2A-19 of said code, all relating to the West Virginia State Police Retirement Fund; requiring the State Police to collect a fee for certain fingerprinting services and deposit the fees into the retirement system; adding, deleting and modifying definitions; specifying the title of West Virginia State Police Retirement System; clarifying the usage of the terms "employee", "member" and "retirant or retiree" as defined; clarifying the usage of the terms "fund", "plan", "system" or "retirement system" as defined; clarifying the usage of the term "base salary" as defined; clarifying the usage of the term "agency" as defined; authorizing the board to increase or decrease the employee's contribution rate under specified circumstances; reducing the normal retirement age for members; eliminating minimum required eligible direct rollover distributions paid directly to an eligible retirement plan; allowing distributions totaling less than two hundred dollars within the definition of "eligible rollover distribution"; clarifying the usage of the term "surviving spouse" as defined; clarifying surviving spouse payments when calculating the pro rata share of annuity adjustments; specifying the time frame that a retirant may receive deferred annuity payments; clarifying the age requirement for a retirant receiving a duty disability annuity; requiring the base salary of a member receiving a duty disability annuity to be annualized until the member has worked twelve months; specifying the title of the West Virginia Insurance Commission; clarifying the time frame for which a duty disability retirant receives a retirement benefit; specifying that disability petitions certify the job description of an employee applying for a disability retirement; specifying the time frame for receipt of awards and benefits to dependents of deceased employees; clarifying that death awards and benefits be calculated for the last full twelve-month employment period; requiring that death awards and benefits be paid to a named beneficiary or to the estate of the deceased member if there is no surviving spouse or dependents; eliminating duplicate language referring to a single receipt of state retirement benefits; and adding provisions specifying the time frame for receipt of beneficiary payments.
Respectfully submitted,
Doug Stalnaker, Chair, Kevin J. Craig, Allen V. Evans, Conferees on the part of the House of Delegates.
Dan Foster, Chair, Brooks F. McCabe, Jr., Karen L. Facemyer, Conferees on the part of the Senate.
Senator Foster, Senate cochair of the committee of conference, was recognized to explain the report.
Thereafter, on motion of Senator Foster, the report was taken up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 4471, as amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4471) passed with its conference amended title.
Ordered, That The Clerk of the Senate communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the adoption by that body of the committee of conference report, passage as amended by the conference report with its conference amended title, to take effect July 1, 2008, and requested the concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 4022, Relating to compensation and expenses of panel attorneys providing public defender services.
Whereupon, Senator Minard, from the committee of conference on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 4022, Relating to compensation and expenses of panel attorneys providing public defender services.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendment of the Senate to Engrossed Committee Substitute for House Bill No. 4022 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 amendment of the Senate, striking out everything after the enacting section, and agree to the same as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.

§29-21-3b. Indigent Defense Commission.

(a) There is hereby established the Indigent Defense Commission to provide assistance to Public Defender Services with regard to the general policies and procedures of the agency, including, but not limited to, the opening, closing or merging of public defender offices throughout the state and the establishment of performance measures for the qualitative review of indigent defense.
(b) In order to demonstrate a collaborative approach to solving criminal justice problems, the commission shall consist of the Executive Director of Public Defender Services, who shall serve as chair, and the following members appointed by the Governor:
(1) One former or retired circuit judge;
(2) Three lawyers, one from each congressional district, who have significant experience in the defense of criminal cases or have demonstrated a strong commitment to quality representation of indigent defendants;
(3) One current chief public defender; and
(4) One nonlawyer with a demonstrated commitment to providing legal services to the indigent;
(5) One person who is a member of an organization that advocates on behalf of people with mental illness and developmental disabilities; and
(6) One attorney with significant experience in the defense of juvenile delinquency and abuse and neglect cases.
(c) The commission shall meet at the times and places specified by the call of the chair: Provided, That the commission shall meet no less than four times each year. Members shall serve without compensation but may receive reimbursement of actual and necessary expenses for each day or portion thereof engaged in this discharge of official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.
(d) Of the initial appointments made to the commission, two shall be for a term ending one year after the effective date of this section, two for a term ending two years after the effective date of this section, two for a term ending three years after the effective date of this section. Thereafter, terms of office shall be for four years, each term ending on the same day of the same month of the year as did the term which it succeeds. Each member shall hold office from the date of his or her appointment until the end of the term for which he or she was appointed or until his or her successor qualifies for office. When a vacancy occurs as a result of death, resignation or removal in the membership of this commission, it shall be filled by appointment within thirty days of the vacancy for the unexpired portion of the term in the same manner as original appointments. No member shall serve more than two consecutive full or partial terms and no person may be reappointed to the commission until at least two years have elapsed after the completion of a second successive term;
(e) The appointed members of the commission serve four-year terms that shall coincide with the term of the Governor.
(f) The commission has the following powers and duties:
(1) To develop standards regarding the qualifications and training for public defenders, assistant public defenders and staff;
(2) To explore opportunities related to the training of appointed panel attorneys;
(3) To evaluate, on an annual basis, the compensation and caseloads of public defenders and appointed panel attorneys;
(4) To develop standards for providing and compensating expert witnesses, investigators and other persons who provide services related to legal representation under this article;
(5) To study, monitor and evaluate existing standards for determining eligibility for legal representation under section sixteen of this article;
(6) To study the feasibility and need of creating additional public defender corporations, the activation of public defender corporations and the formation of multicircuit or regional public defender corporations in accordance with the provisions of section eight of this article;
(7) To study the potential for the dissolution of public defender corporations;
(8) To study, monitor, evaluate and make recommendations regarding the training, experience and background necessary for a public defender or panel attorney to competently represent indigent defendants in capital cases; and
(9) To monitor and make recommendations regarding the following activities of the board of directors of each public defender corporation receiving funding pursuant to this article:
(A) The appointment of the public defender and any assistant public defenders pursuant to subdivision (1), subsection (c), section fifteen of this article;
(B) The fixing of professional and clerical salaries pursuant to subdivision (2), subsection (c), section fifteen of this article; and
(C) The removal of any public defender, assistant public defender or other employee for misfeasance, malfeasance or nonfeasance pursuant to subdivision (3), subsection (c), section fifteen of this article.
(g) On or before the fifteenth day of January, two thousand nine, the commission shall report to the Legislature its findings and recommendations on the feasibility and need for the creation of additional public defender corporations; the activation of public defender corporations; the formation of multicircuit or regional public defender corporations; or the dissolution of public defender corporations in accordance with the provisions of section eight of this article.
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the agency is authorized to make grants to and contracts with public defender corporations and with individuals, partnerships, firms, corporations and nonprofit organizations for the purpose of providing legal representation under this article and may make ~~such~~ any other grants and contracts as that are necessary to carry out the purposes and provisions of this article.
(b) The agency is authorized to accept, and employ or dispose of in furtherance of the purposes of this article, any money or property, real, personal or mixed, tangible or intangible, received by gift, devise, bequest or otherwise.
(c) The agency shall establish and the executive director or his or her designee shall operate a criminal law research center as provided ~~for~~ in section seven of this article. This center shall undertake directly, or by grant or contract, to serve as a clearinghouse for information; to provide training and technical assistance ~~relating~~ related to the delivery of legal representation; and to engage in research, except that broad general, legal or policy research unrelated to direct representation of eligible clients may not be undertaken.
(d) The agency shall establish and the executive director or his ~~designate~~ or her designee shall operate an accounting and auditing division to require and monitor the compliance with this article by public defender corporations and other persons or entities receiving funding or compensation from the agency. ~~This~~ The accounting and auditing division shall review all plans and proposals for grants and contracts and shall make a recommendation of approval or disapproval to the executive director. The accounting and auditing division shall prepare, or cause to be prepared, reports concerning the evaluation, inspection or monitoring of public defender corporations and other grantees, contractors, persons or entities receiving financial assistance under this article and shall further carry out the agency's responsibilities for records and reports as set forth in section eighteen of this article. The accounting and auditing division shall require each public defender corporation to ~~periodically~~ submit financial statements monthly and to report monthly on the billable and nonbillable time of its professional employees, including time ~~utilized~~ used in administration of the respective offices, so as to compare ~~such~~ the time to similar time expended in nonpublic law offices for ~~like~~ similar activities. The accounting and auditing division shall provide to the executive director assistance in the fiscal administration of all of the agency's divisions. ~~Such~~ This assistance shall include, but not be limited to, budget preparation and statistical analysis.
(e) The agency shall establish and the executive director or ~~a person designated by the executive director~~ his or her designee shall operate an appellate advocacy division for the purpose of prosecuting litigation on behalf of eligible clients in the Supreme Court of Appeals. The executive director or ~~a person designated by the executive director~~ his or her designee shall be the director of the appellate advocacy division. The appellate advocacy division shall represent eligible clients upon appointment by the circuit courts or by the Supreme Court of Appeals. The division may, however, refuse ~~such~~ the appointments due to a conflict of interest or if the executive director has determined the existing caseload cannot be increased without jeopardizing the appellate division's ability to provide effective representation. In order to effectively and efficiently ~~utilize~~ use the resources of the appellate division, the executive director may restrict the provision of appellate representation to certain types of cases. The executive director ~~is empowered to~~ may select and employ staff attorneys to perform the duties prescribed by this subsection. The appellate division shall maintain ~~vouchers and~~ records ~~for~~ of representation of eligible clients for record purposes only.
§29-21-8. Public defender corporations; establishment thereof.
(a) (1) In each judicial circuit of the state, there is hereby created a public defender corporation of the circuit: Provided, That the executive director, with the approval of the Indigent Defense Commission, may authorize the creation, merger or dissolution of a public defender corporation in a judicial circuit where the creation, merger or dissolution of such a public defender corporation would improve the quality of legal representation, assure the prudent and resourceful expenditure of state funds and further the purposes of this article: Provided, however, That prior to the creation, merger or dissolution of a public defender corporation in accordance with this subsection, the commission shall provide a report to the Legislature pursuant subsection (g), section three-b of this article for approval of the creation, merger, or dissolution of any public defender corporation.
(2) The purpose of these public defender corporations is to provide legal representation in the respective circuits in accordance with the provisions of this article. A public defender corporation may employ full-time attorneys and employ part-time attorneys in whatever combination that the public defender corporation deems most cost effective.
(b) If the executive director, with the approval of the Indigent Defense Commission, determines there is a need to activate, merge or dissolve a corporation in a judicial circuit of the state, pursuant to subsection (a) of this section, the Indigent Defense Commission shall first consult with and give substantial consideration to the recommendation of the judge of a single-judge circuit or the chief judge of a multijudge circuit or a majority of the active members of the bar in the circuit determine there is a need to activate the corporation, they shall certify that fact in writing to the executive director. The executive director shall allocate funds to those corporations so certifying ~~in the order in which he or she deems most efficient and cost effective~~.
(c) Public defender corporations may apply in writing to the executive director for permission to merge to form multi-circuit or regional public defender corporations. Applications for mergers shall be subject to the review procedures set forth in section eleven of this article.
§29-21-9. Panel attorneys.
(a) In each circuit of the state, the circuit court shall establish and maintain regional and local panels of private attorneys-at-law who ~~shall be~~ are available to serve as counsel for eligible clients. An attorney-at-law may become a panel attorney and be enrolled on the regional or local panel, or both, to serve as counsel for eligible clients by informing the court. An agreement to accept cases generally or certain types of cases particularly ~~shall~~ may not prevent a panel attorney from declining an appointment in a specific case.
(b) In all cases where an attorney-at-law is required to be appointed for an eligible client, the appointment shall be made by the circuit judge in the following order of preference:
(1) In circuits where a public defender office is in operation, the judge shall appoint the public defender office unless ~~such~~ an appointment is not appropriate due to a conflict of interest or unless the public defender corporation board of directors or the public defender, with the approval of the board, has notified the court that the existing caseload cannot be increased without jeopardizing the ability of defenders to provide effective representation;
(2) If the public defender office is not available for appointment, the court shall appoint one or more panel attorneys from the local panel;
(3) If there is no local panel attorney available, the judge shall appoint one or more panel attorneys from the regional panel;
(4) If there is no regional panel attorney available, the judge may appoint a public defender office from an adjoining circuit if such public defender office agrees to the appointment;
(5) If the adjoining public defender office does not accept the appointment, the judge may appoint a panel attorney from an adjoining circuit; or
(6) If a panel attorney from an adjoining circuit is unavailable, the judge may appoint a panel attorney from any circuit. In circuits where no public defender office is in operation, the judge shall first refer to the local panel and then to the regional panel in making appointments, and if an appointment cannot be made from the panel attorneys, the judge may appoint the public defender office of an adjoining circuit if the office agrees to the appointment. In any circuit, when there is no public defender, or assistant public defender, local panel attorney or regional panel attorney available, the judge may appoint one or more qualified private attorneys to provide representation, and such private attorney or attorneys shall be treated as panel attorneys for that specific case.
(c) In any given case, the appointing judge may alter the order in which attorneys are appointed if the case requires particular knowledge or experience on the part of the attorney to be appointed: Provided, That any time a court, in appointing counsel pursuant to the provisions of this section, alters the order of appointment as set forth herein, the order of appointment shall contain the court's reasons for doing so.

§29-21-13. Approval of public defender corporation funding applications; funding; recordkeeping by public defender corporations.

(a) On or before the first day of May of each year, each active public defender corporation shall submit to the executive director and the commission a funding application and a proposed budget for the ensuing fiscal year. The accounting and auditing division shall review all funding applications and prepare recommendations for an operating plan and annual budget for each public defender corporation. The executive director shall review the funding applications and the accounting and auditing recommendations and shall, in consultation with ~~the applicants~~ the board of directors of each public defender corporation, prepare a plan for providing legal services, execute a funding contract for the fiscal year and commit funds for that purpose.
(b) Upon final approval of a funding application by the executive director, the approved budget shall be set forth in an approval notice. The total cost to the agency shall not exceed the amount set forth in the approval notice and the agency shall not be obligated to reimburse the recipient for costs incurred in excess of the amount unless and until a program modification has been approved in accordance with the provisions of this article. At the discretion of the executive director, when caseloads increase or unusual expenses occur, funding contracts may be amended during a fiscal year if necessary to provide cost-effective representation.
(c) Funding of public defender corporations or other programs or entities providing legal representation under the provisions of this article shall be by annual grants disbursed in such periodic allotments as the executive director shall deem appropriate.
(d) All recipients of funding under this article shall maintain such records as required by the executive director.
§29-21-13a. Compensation and expenses for panel attorneys.
(a) All panel attorneys shall maintain detailed and accurate records of the time expended and expenses incurred on behalf of eligible clients, and upon completion of each case, exclusive of appeal, shall submit to the appointing court a voucher for services. Claims for fees and expense reimbursements shall be submitted to the appointing court on forms approved by the executive director. The executive director shall establish guidelines for the submission of vouchers and claims for fees and expense reimbursements under this section. Claims submitted more than ~~four years~~ ninety calendar days after the last date of service shall be rejected, unless for good cause, the appointing court authorizes in writing an extension: Provided, That claims where the last date of service occurred prior to the first day of July, two thousand eight, shall be rejected unless submitted prior to the first day of January, two thousand nine.
The appointing court shall review the voucher to determine if the time and expense claims are reasonable, necessary and valid, and shall forward the voucher to the agency with an order approving payment of the claimed amount or of a lesser sum the court considers appropriate.
(b) Notwithstanding any other provision of this section to the contrary, Public Defender Services may pay by direct bill, prior to the completion of the case, litigation expenses incurred by attorneys appointed under this article.
(c) Notwithstanding any other provision of this section to the contrary, a panel attorney may be compensated for services rendered and reimbursed for expenses incurred prior to the completion of the case where: (1) More than six months have expired since the commencement of the panel attorney's representation in the case; and (2) no prior payment of attorney fees has been made to the panel attorney by Public Defender Services during the case. The executive director, in his or her discretion, may authorize periodic payments where ongoing representation extends beyond six months in duration. The amounts of any fees or expenses paid to the panel attorney on an interim basis, when combined with any amounts paid to the panel attorney at the conclusion of the case, shall not exceed the limitations on fees and expenses imposed by this section.
(d) In each case in which a panel attorney provides legal representation under this article, and in each appeal after conviction in circuit court, the panel attorney shall be compensated at the following rates for actual and necessary time expended for services performed and expenses incurred subsequent to the effective date of this article:
(1) For attorney's work performed out of court, compensation shall be at the rate of forty-five dollars per hour. For paralegal's work performed out of court for the attorney, compensation shall be at the rate of the paralegal's regular compensation on an hourly basis or, if salaried, at the hourly rate of compensation which would produce the paralegal's current salary, but in no event shall the compensation exceed twenty dollars per hour. Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings and prehearing or pretrial research.
(2) For attorney's work performed in court, compensation shall be at the rate of sixty-five dollars per hour. No compensation for paralegal's work performed in court shall be allowed. In-court work includes, but is not limited to, all time spent awaiting hearing or trial ~~if the presence of the attorney is required~~ before a judge, magistrate, special master or other judicial officer.
(3) The maximum amount of compensation for out-of-court and in-court work under this subsection is as follows: For proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, the amount as the court may approve; for all other eligible proceedings, three thousand dollars unless the court, for good cause shown, approves payment of a larger sum.
(e) Actual and necessary expenses incurred in providing legal representation for proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed in an amount as the court may approve. For all other eligible proceedings, actual and necessary expenses incurred in providing legal representation, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed to a maximum of ~~fifteen hundred~~ one thousand five hundred dollars unless the court, for good cause shown, approves reimbursement of a larger sum.
Expense vouchers shall specifically set forth the nature, amount and purpose of expenses incurred and shall provide receipts, invoices or other documentation required by the executive director and the State Auditor:
(1) (A) Reimbursement of expenses for production of transcripts of proceedings reported by a court reporter is limited to the cost per original page and per copy page as set forth in section four, article seven, chapter fifty-one of this code. Reimbursement of the cost of copies of such transcripts is limited to the cost per copy page as provided for under said section. It is the duty of the executive director of Public Defender Services to maintain computer records of all transcripts, including originals and copies, for which payment has been made.
(B) (i) There shall be no reimbursement of expenses for or production of a transcript of a preliminary hearing before a magistrate or juvenile referee, or of a magistrate court ~~jury~~ trial, ~~which has been reported by a court reporter at the request of the attorney,~~ where ~~the preliminary~~ such hearing or ~~jury~~ trial has also been recorded electronically in accordance with the provisions of section eight, article five, chapter fifty of this code or court rule.
(ii) Reimbursement of the expense of an appearance fee for a court reporter who reports a proceeding other than one described in subparagraph (i) of this paragraph ~~or who reports a proceeding which is not reported by an official court reporter acting in his or her official capacity for the court,~~ is limited to twenty-five dollars. Where a transcript of a proceeding is produced, there shall be no reimbursement for the expense of any appearance fee. Where a transcript is requested by the attorney after an appearance fee has been paid, reimbursement of the expense incurred to obtain the transcript is limited to the cost of producing the transcript, within the prescribed limitations of paragraph (a) of this subdivision, less the amount of the paid appearance fee.
(iii) ~~Reimbursement of travel expenses incurred for travel by a court reporter is subject to the limitations provided by subdivision (2) of this subsection.~~
~~(iv)~~ Except for the appearance fees provided in this paragraph, there shall be no reimbursement for hourly court reporters' fees or fees for other time expended by the court reporter, either at the proceeding or traveling to or from the proceeding.
(C) Reimbursement of the cost of transcription of tapes electronically recorded during preliminary hearings or magistrate court ~~jury~~ trials is limited to ~~the rates established by the Supreme Court of Appeals for the reimbursement of transcriptions of electronically recorded hearings and trial~~ one dollar per page.
(2) Reimbursement for any travel expense incurred in an eligible proceeding is limited to the rates for the reimbursement of travel expenses established by rules promulgated by the Governor pursuant to the provisions of section eleven, article eight, chapter twelve of this code and administered by the Secretary of the Department of Administration pursuant to the provisions of section forty-eight, article three, chapter five-a of this code.
(3) Reimbursement for investigative services is limited to a rate of thirty dollars per hour for work performed by an investigator.
(f) For purposes of compensation under this section, an appeal from magistrate court to circuit court, an appeal from a final order of the circuit court or a proceeding seeking an extraordinary remedy made to the Supreme Court of Appeals shall be considered a separate case.
(g) Vouchers submitted under this section shall specifically set forth the nature of the service rendered, the stage of proceeding or type of hearing involved, the date and place the service was rendered and the amount of time expended in each instance. All time claimed on the vouchers shall be itemized to the nearest tenth of an hour. If the charge against the eligible client for which services were rendered is one of several charges involving multiple warrants or indictments, the voucher shall indicate the fact and sufficiently identify the several charges so as to enable the court to avoid a duplication of compensation for services rendered. The executive director shall refuse to requisition payment for any voucher which is not in conformity with the recordkeeping, compensation or other provisions of this article or the voucher guidelines established issued pursuant to subsection (a) of this section and in such circumstance shall return the voucher to the court or to the service provider for further review or correction.
(h) Vouchers submitted under this section after the first day of July, two thousand eight, shall be reimbursed within ninety days of receipt. Reimbursements after ninety days shall bear interest from the ninety-first day at the legal rate in effect for the calendar year in which payment is due.
(i) Vouchers submitted for fees and expenses involving child abuse and neglect cases shall be processed for payment before processing vouchers submitted for all other cases.;
And,
That both houses recede from their respective positions as to the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 4022--A Bill to repeal §29- 21-10, §29-21-11 and §29-21-12 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §29-21-3b; and to amend and reenact §29-21-6, §29-21-8, §29-21-9, §29-21-13 and §29-21-13a of said code, all relating to Public Defender Services generally; creating the Indigent Defense Commission; specifying members and their terms; specifying certain powers and duties of the Indigent Defense Commission; requiring submission of report to Legislature; requiring public defender corporations to submit monthly financial statements and reports; providing requirements for the creation, activation, merger or dissolution of public defender corporations; authorizing employment of certain attorneys; requiring consultation with judge; providing for the order of appointment of panel attorneys; establishing requirements for funding applications; requiring corporations to submit proposed budgets; authorizing amended funding contracts; authorizing executive director to establish guidelines for submission of claims and vouchers; establishing certain deadlines for submitting claims; providing for periodic payment of fees to panel attorneys; clarifying in-court work and meaning of separate cases; establishing limitations on reimbursement of certain expenses; requiring vouchers be reimbursed within a certain period; providing for interest accruing on late reimbursements; and giving preference to processing vouchers involving child abuse and neglect cases.
Respectfully submitted,
Mary M. Poling, Chair, Alex Shook, John N. Ellem, Conferees on the part of the House of Delegates.
Joseph M. Minard, Chair, Mike Green, John Yoder, Conferees on the part of the Senate.
Senator Minard, Senate cochair of the committee of conference, was recognized to explain the report.
Thereafter, on motion of Senator Minard, the report was taken up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 4022, as amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4022) passed with its conference amended title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4022) takes effect July 1, 2008.
Ordered, That The Clerk of the Senate communicate to the House of Delegates the action of the Senate.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 4023, Provide for the denial or suspension of a driver's license for any student who withdraws from school or fails to receive passing grades.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION, AND RENEWAL.
§17B-2-3a. Graduated driver's license.
(a) Any person under the age of eighteen may not operate a motor vehicle unless he or she has obtained a graduated driver's license in accordance with the three-level graduated driver's license system described in the following provisions. (b) Any person under the age of twenty-one, regardless of class or level of licensure, who operates a motor vehicle with any measurable alcohol in his or her system is subject to the provisions of section two, article five, chapter seventeen-c of this code and section two, article five-a of said chapter. Any person under the age of eighteen, regardless of class or licensure level, is subject to the mandatory school attendance and satisfactory academic progress provisions of section eleven, article eight, chapter eighteen of this code. (c) Level one instruction permit. -- An applicant who is fifteen years or older meeting all other requirements prescribed in this code may be issued a level one instruction permit. (1) Eligibility. -- The division shall not issue a level one instruction permit unless the applicant: (A) Presents a completed application, as prescribed by the provisions of section six of this article, and which is accompanied by a writing, duly acknowledged, consenting to the issuance of the graduated driver's license and executed by a parent or guardian entitled to custody of the applicant; (B) Presents a certified ~~birth certificate~~ copy of a birth certificate issued by a state or other governmental entity responsible for vital records unexpired, or a valid passport issued by the United States government evidencing that the applicant meets the minimum age requirement and is of verifiable identity; (C) Passes the vision and written knowledge examination and completes the driving under the influence awareness program, as prescribed in section seven of this article; (D) Presents a ~~current school enrollment form~~ Driver's Eligibility Certificate or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code; and (E) Pays a fee of five dollars, which shall permit the applicant at the written knowledge test. (2) Terms and conditions of instruction permit. -- A level one instruction permit issued under the provisions of this section is valid until thirty days after the date the applicant attains the age of eighteen and is not renewable. However, any permit holder who allows his or her permit to expire prior to successfully passing the road skills portion of the driver examination, and who has not committed any offense which requires the suspension, revocation or cancellation of the instruction permit, may reapply for a new instruction permit under the provisions of section six of this article. The division shall immediately revoke the permit upon receipt of a second conviction for a moving violation of traffic regulations and laws of the road or violation of the terms and conditions of a level one instruction permit, which convictions have become final unless a greater penalty is required by this section or any other provision of this code. Any person whose instruction permit has been revoked is disqualified from retesting for a period of ninety days. However, after the expiration of ninety days, the person may retest if otherwise eligible. In addition to all other provisions of this code for which a driver's license may be restricted, suspended, revoked or canceled, the holder of a level one instruction permit may only operate a motor vehicle under the following conditions: (A) Under the direct supervision of a licensed driver, twenty-one years of age or older, or a driver's education or driving school instructor who is acting in an official capacity as an instructor, who is fully alert and unimpaired, and the only other occupant of the front seat. The vehicle may be operated with no more than two additional passengers, unless the passengers are family members; (B) Between the hours of five a.m. and eleven p.m.; (C) All occupants must use safety belts in accordance with the provisions of section forty-nine, article fifteen, chapter seventeen-c of this code; (D) Without any measurable blood alcohol content, in accordance with the provisions of subsection (h), section two, article five, chapter seventeen-c of this code; and (E) Maintains current school enrollment and is making satisfactory academic progress or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code. (F) A holder of a level one instruction permit who is under the age of eighteen years may not use a wireless communication device while operating a motor vehicle, unless the use of the wireless communication device is for contacting a 9-1-1 system. A law-enforcement officer may enforce the provisions of this paragraph only as a secondary action when a law-enforcement officer with probable cause detains a driver for a suspected violation of another provision of this code. A person violating the provisions of this paragraph is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars; and for a third or subsequent offense be fined seventy-five dollars. (d) Level two intermediate driver's license. -- An applicant sixteen years of age or older, meeting all other requirements of the code, may be issued a level two intermediate driver's license.(1) Eligibility. -- The division shall not issue a level two intermediate driver's license unless the applicant: (A) Presents a completed application as prescribed in section six of this article; (B) Has held the level one instruction permit conviction-free for the one hundred eighty days immediately preceding the date of application for a level two intermediate license; (C) Has completed either a driver's education course approved by the State Department of Education or thirty hours of behind-the-wheel driving experience certified by a parent or legal guardian or other responsible adult over the age of twenty-one as indicated on the form prescribed by the division: Provided, That nothing in this paragraph shall be construed to require any school or any county board of education to provide any particular number of driver's education courses or to provide driver's education training to any student; (D) Presents a ~~current school enrollment form~~ Driver's Eligibility Certificate or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code; (E) Passes the road skills examination as prescribed by section seven of this article; and (F) Pays a fee of five dollars. (2) Terms and conditions of a level two intermediate driver's license. -- A level two intermediate driver's license issued under the provisions of this section shall expire thirty days after the applicant attains the age of eighteen, or until the licensee qualifies for a level three full Class E license, whichever comes first. In addition to all other provisions of this code for which a driver's license may be restricted, suspended, revoked or canceled, the holder of a level two intermediate driver's license may only operate a motor vehicle under the following conditions: (A) Unsupervised between the hours of five a.m. and eleven p.m.; (B) Only under the direct supervision of a licensed driver, age twenty-one years or older, between the hours of eleven p.m. and five a.m. except when the licensee is going to or returning from: (i) Lawful employment; (ii) A school-sanctioned activity; (iii) A religious event; or (iv) An emergency situation that requires the licensee to operate a motor vehicle to prevent bodily injury or death of another; (C) All occupants shall use safety belts in accordance with the provisions of section forty-nine, article fifteen, chapter seventeen-c of this code; (D) Operates the vehicle with no more than three passengers under the age of nineteen, unless the passengers are family members, in addition to the driver; (E) Without any measurable blood alcohol content in accordance with the provisions of subsection (h), section two, article five, chapter seventeen-c of this code; (F) Maintains current school enrollment and is making satisfactory academic progress or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code; (G) A holder of a level two intermediate driver's license who is under the age of eighteen years may not use a wireless communication device while operating a motor vehicle, unless the use of the wireless communication device is for contacting a 9-1-1 system. A law-enforcement officer may enforce the provisions of this paragraph only as a secondary action when a law-enforcement officer with probable cause detains a driver for a suspected violation of another provision of this code. A person violating the provisions of this paragraph is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars; and for a third or subsequent offense be fined seventy-five dollars; (H) Upon the first conviction for a moving traffic violation or a violation of paragraph (A), (B), (C), (D) or (G), subdivision (1), subsection (d) of this section of the terms and conditions of a level two intermediate driver's license, the licensee shall enroll in an approved driver improvement program unless a greater penalty is required by this section or by any other provision of this code; and At the discretion of the commissioner, completion of an approved driver improvement program may be used to negate the effect of a minor traffic violation as defined by the commissioner against the one year conviction-free driving criteria for early eligibility for a level three driver's license; and (I) Upon the second conviction for a moving traffic violation or a violation of the terms and conditions of the level two intermediate driver's license, the licensee's privilege to operate a motor vehicle shall be revoked or suspended for the applicable statutory period or until the licensee's eighteenth birthday, whichever is longer unless a greater penalty is required by this section or any other provision of this code. Any person whose driver's license has been revoked as a level two intermediate driver, upon reaching the age of eighteen years and if otherwise eligible may reapply for an instruction permit, then a driver's license in accordance with the provisions of sections five, six and seven of this article. (e) Level three, full Class E license. -- The level three license is valid until ~~the day designated by the commissioner of the month in which the licensee attains the age of twenty-one~~ thirty days after the date the licensee attains his or her twenty-first birthday. Unless otherwise provided in this section or any other section of this code, the holder of a level three full Class E license is subject to the same terms and conditions as the holder of a regular Class E driver's license. A level two intermediate licensee whose privilege to operate a motor vehicle has not been suspended, revoked or otherwise canceled and who meets all other requirements of the code may be issued a level three full Class E license without further examination or road skills testing if the licensee: (1) Has reached the age of seventeen years; and (A) Presents a completed application as prescribed by the provisions of section six of this article; (B) Has held the level two intermediate license conviction free for the twelve-month period immediately preceding the date of the application; (C) Has completed any driver improvement program required under paragraph (G), subdivision (2), subsection (d) of this section; and (D) Pays a fee of two dollars and fifty cents for each year the license is valid. An additional fee of fifty cents shall be collected to be deposited in the Combined Voter Registration and Driver's Licensing Fund established in section twelve, article two, chapter three of this code; or
(E) Presents a Driver's Eligibility Certificate or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code; or (2) Reaches the age of eighteen years; and (A) Presents a completed application as prescribed by the provisions of section six of this article; and (B) Pays a fee of two dollars and fifty cents for each year the license is valid. An additional fee of fifty cents shall be collected to be deposited in the Combined Voter Registration and Driver's Licensing Fund established in section twelve, article two, chapter three of this code.
(f) A person violating the provisions of the terms and conditions of a level one or two intermediate driver's license, is quality of a misdemeanor and, upon conviction thereof, shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars; and for a third or subsequent offense be fined seventy-five dollars.
ARTICLE 3. CANCELLATION, SUSPENSION, OR REVOCATION OF LICENSES.

§17B-3-6. Authority of division to suspend or revoke license; hearing.

(a) The division is hereby authorized to suspend the driver's license of any person without preliminary hearing upon a showing by its records or other sufficient evidence that the licensee: (1) Has committed an offense for which mandatory revocation of a driver's license is required upon conviction;(2) Has by reckless or unlawful operation of a motor vehicle, caused or contributed to an accident resulting in the death or personal injury of another or property damage; (3) Has been convicted with such frequency of serious offenses against traffic regulations governing the movement of vehicles as to indicate a disrespect for traffic laws and a disregard for the safety of other persons on the highways; (4) Is an habitually reckless or negligent driver of a motor vehicle; (5) Is incompetent to drive a motor vehicle; (6) Has committed an offense in another state which if committed in this state would be a ground for suspension or revocation; (7) Has failed to pay or has defaulted on a plan for the payment of all costs, fines, forfeitures or penalties imposed by a magistrate court or municipal court within ninety days, as required by section two-a, article three, chapter fifty or section two-a, article ten, chapter eight of this code; (8) Has failed to appear or otherwise respond before a magistrate court or municipal court when charged with a motor vehicle violation as defined in section three-a of this article; (9) Is under the age of eighteen and has withdrawn either voluntarily or involuntarily due to misconduct from a secondary school or has failed to maintain satisfactory academic progress, as provided in section eleven, article eight, chapter eighteen of this code; or (10) Has failed to pay overdue child support or comply with subpoenas or warrants relating to paternity or child support proceedings, if a circuit court has ordered the suspension of the license as provided in article five-a, chapter forty-eight-a of this code and the child support enforcement division has forwarded to the division a copy of the court order suspending the license, or has forwarded its certification that the licensee has failed to comply with a new or modified order that stayed the suspension and provided for the payment of current support and any arrearage due. (b) The driver's license of any person having his or her license suspended shall be reinstated if: (1) The license was suspended under the provisions of subdivision (7), subsection (a) of this section and the payment of costs, fines, forfeitures or penalties imposed by the applicable court has been made; (2) The license was suspended under the provisions of subdivision (8), subsection (a) of this section, and the person having his or her license suspended has appeared in court and has prevailed against the motor vehicle violations charged; or (3) The license was suspended under the provisions of subdivision (10), subsection (a) of this section, and the division has received a court order restoring the license or a certification by the child support enforcement division that the licensee is complying with the original support order or a new or modified order that provides for the payment of current support and any arrearage due. (c) Any reinstatement of a license under subdivision (1), (2) or (3), subsection (b) of this section shall be subject to a reinstatement fee designated in section nine of this article. (d) Upon suspending the driver's license of any person as hereinbefore in this section authorized, the division shall immediately notify the licensee in writing, sent by certified mail, return receipt requested, to the address given by the licensee in applying for license, and upon his request shall afford him an opportunity for a hearing as early as practical within not to exceed twenty days after receipt of such request in the county wherein the licensee resides unless the division and the licensee agree that such hearing may be held in some other county. Upon such hearing the commissioner or his duly authorized agent may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may require a reexamination of the licensee. Upon such hearing the division shall either rescind its order of suspension or, good cause appearing therefor, may extend the suspension of such license or revoke such license. The provisions of this subsection (d) providing for notice and hearing are not applicable to a suspension under subdivision (10), subsection (a) of this section.
CHAPTER 18. EDUCATION.
ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.

§18-8-11. School attendance and satisfactory academic progress as conditions of licensing for privilege of operation of motor vehicle.

(a) In accordance with the provisions of ~~sections three and five, article two, chapter seventeen-b of this code~~ sections three-a and five, article two, chapter seventeen-b of this code, the Division of Motor Vehicles shall deny a license or instruction permit for the operation of a motor vehicle to any person under the age of eighteen who does not at the time of application present a diploma or other certificate of graduation issued to the person from a secondary high school of this state or any other state or documentation that the person: (1) Is enrolled and making satisfactory progress in a course leading to a general educational development certificate (GED) from a state-approved institution or organization or has obtained the certificate; (2) is enrolled and is making satisfactory academic progress in a secondary school of this state or any other state; (3) is excused from the requirement due to circumstances beyond his or her control; or (4) is enrolled in an institution of higher education as a full-time student in this state or any other state.
(b) The attendance director or chief administrator shall upon request provide ~~documentation of~~ ~~enrollment status~~ a Driver's Eligibility Certificate on a form approved by the Department of Education to any student at least fifteen but less than eighteen years of age ~~upon request~~ who is properly enrolled and is making satisfactory academic progress in a school under the jurisdiction of the official for presentation to the Division of Motor Vehicles on application for or reinstatement of an instruction permit or license to operate a motor vehicle. Whenever a student at least fifteen but less than eighteen years of age, except as provided in subsection (d) of this section, withdraws from school, the attendance director or chief administrator shall notify the Division of Motor Vehicles of the withdrawal not later than five days from the withdrawal date. Within five days of receipt of the notice, the Division of Motor Vehicles shall send notice to the licensee that the license will be suspended under the provisions of section three, article two, chapter seventeen-b of this code on the thirtieth day following the date the notice was sent unless documentation of compliance with the provisions of this section is received by the Division of Motor Vehicles before that time. If suspended, the division may not reinstate a license before the end of the semester following that in which the withdrawal occurred.
(c) Whenever a student at least fifteen but less than eighteen years of age, except as provided in subsection (g) of this section, withdraws from school, the attendance director or chief administrator shall notify the Division of Motor Vehicles of the student's withdrawal no later than five days from the date of the withdrawal. Within five days of receipt of the notice, the Division of Motor Vehicles shall send notice to the student that the student's instruction permit or license to operate a motor vehicle will be suspended under the provisions of section six, article three, chapter seventeen-b of this code on the thirtieth day following the date the notice was sent unless documentation of compliance with the provisions of this section is received by the Division of Motor Vehicles before that time. The notice shall also advise the student that he or she is entitled to a hearing before the county superintendent of schools or his or her designee or before the appropriate private school official concerning whether the student's withdrawal from school was due to a circumstance or circumstances beyond the control of the student. If suspended, the division may not reinstate an instruction permit or license until such time as the student returns to school and shows satisfactory academic progress or until such time as the student attains eighteen years of age.
(d) Whenever a student at least fifteen but less than eighteen years of age is enrolled in a secondary school and fails to maintain satisfactory academic progress, the attendance director or chief administrator shall follow the procedures set out in subsection (c) of this section to notify the Division of Motor Vehicles. Within five days of receipt of the notice, the Division of Motor Vehicles shall send notice to the student that the student's instruction permit or license will be suspended under the provisions of section six, article three, chapter seventeen-b of this code on the thirtieth day following the date the notice was sent unless documentation of compliance with the provisions of this section is received by the Division of Motor Vehicles before that time. The notice shall also advise the student that he or she is entitled to a hearing before the county superintendent of schools or his or her designee or before the appropriate private school official concerning whether the student's failure to make satisfactory academic progress was due to a circumstance or circumstances beyond the control of the student. Once suspension is ordered, the division may not reinstate an instruction permit or license until such time as the student shows satisfactory academic progress or until such time as the student attains eighteen years of age.
(e) Upon written request of a student, within ten days of receipt of a notice of suspension as provided by this section, the Division of Motor Vehicles shall afford the student the opportunity for an administrative hearing. The scope of the hearing shall be limited to determining if there is a question of improper identity, incorrect age, or some other clerical error.
~~(c)~~ (f) For the purposes of this section:
(1) Withdrawal is defined as more than ten consecutive or fifteen total days unexcused absences during a school year, or suspension pursuant to subsections (a) and (b), section one-a, article five, chapter eighteen-a of this code.
(2) "Satisfactory academic progress" means the attaining and maintaining of grades sufficient to allow for graduation and course-work in an amount sufficient to allow graduation in five years or by age nineteen, whichever is earlier.
(3) "Circumstances outside the control of the student" shall include, but not be limited to, medical reasons, familial responsibilities and the necessity of supporting oneself or another.
~~(3)~~ (4) Suspension or expulsion from school or imprisonment in a jail or a West Virginia correctional facility is not a ~~circumstance~~ circumstance beyond the control of the ~~person~~ student.
~~(d)~~ (g) Whenever the withdrawal from school of the student, or the student's failure to enroll in a course leading to or to obtain a GED or high school diploma, is or the student's failure to make satisfactory academic progress is due to a circumstance or circumstances beyond the control of the student, or the withdrawal from school is for the purpose of transfer to another school as confirmed in writing by the student's parent or guardian, no notice shall be sent to the Division of Motor Vehicles to suspend the student's motor vehicle operator's license and if the student is applying for a license, the attendance director or chief administrator shall provide the student with documentation to present to the Division of Motor Vehicles to excuse the student from the provisions of this section. The school district superintendent (or the appropriate school official of any private secondary school) with the assistance of the county attendance director and any other staff or school personnel shall be the sole judge of whether ~~withdrawal~~ ~~is due to circumstances beyond the control of the person~~ any of the grounds for denial or suspension of a license as provided by this section are due to a circumstance or circumstances beyond the control of the student.
(h) The state board shall promulgate rules necessary for uniform implementation of this section among the counties and as may otherwise be necessary for the implementation of this section. The rule may not include attainment by a student of any certain grade point average as a measure of satisfactory progress toward graduation.
The bill (Eng. Com. Sub. for H. B. No. 4023), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4023) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Unger, Wells, White and Tomblin (Mr. President)--29.
The nays were: Caruth, Sprouse, Sypolt and Yoder--4.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4023) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4023--A Bill to amend and reenact §17B-2-3a of the Code of West Virginia, 1931, as amended; to amend and reenact §17B-3-6 of said code; and to amend and reenact §18-8-11 of said code, all relating to the denial or suspension of the driver's license of any student between the ages of fifteen and eighteen who withdraws from school or fails to make substantial progress towards graduating; providing for appeal; defining certain terms; and providing for exceptions.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4287, Clarifying that certain funds are authorized investments for funds of political subdivisions.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4287) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4287) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate proceeded to the tenth order of business.
Senate Bill No. 788, Requiring DUI convicts serve mandatory community service and creating a registry of such persons.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 682, Creating Community and Technical College Capital Improvement Fund.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page three, section eight, line seven, after the word "article." by inserting the following: The statutory provisions governing collection and disposition of capital funds in place prior to the enactment of this section remain in effect.;
On page six, section eight, line sixty-eight, by striking out the words "subsection (a) of";
On page nine, section eight, line one hundred thirty-eight, by striking out the words "section two-h" and inserting in lieu thereof the words "subsection (h), section two";
On page eighteen, section eighteen, line eighty, by striking out the word "Account" and inserting in lieu thereof the word "Fund";
On page nineteen, section eighteen, line ninety-six, after the word "Fund" by inserting the words "and the Community and Technical College Capital Improvement Fund";
On page twenty-six, section eighteen, line two hundred thirty- six, by striking out the word "five" and inserting in lieu thereof the words "seven and a half";
On page twenty-seven, section eighteen, line two hundred forty-three, after the word "mature" by inserting the words "or are paid in full";
And,
On page twenty-seven, section eighteen, line two hundred forty-six, by striking out the words "second-in priority" and inserting in lieu thereof the word "second-in-priority".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 682, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 682) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 682) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments, as amended by the House of Delegates, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment to the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 4636, Making changes to workers' compensation insurance.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the Senate amendments to the bill was reported by the Clerk:
On page twenty-nine, section eleven, subsection (d), after the words "salary of the members of the Board" by changing the period to a colon and inserting the following proviso: Provided, however, That the annual salary of a member of the Board of Review shall not exceed one hundred ten thousand dollars.
Under rule number forty-three of the Rules of the Senate, Senator Helmick was excused from voting on any matter pertaining to the bill.
On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendment to the Senate amendments to the bill.
Engrossed Committee Substitute for House Bill No. 4636, as amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Wells, White and Tomblin (Mr. President)--29.
The nays were: Hunter, Unger and Yoder--3.
Absent: Sharpe--1.
Excused from voting: Helmick--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4636) passed with its Senate amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Wells, White and Tomblin (Mr. President)--29.
The nays were: Hunter, Unger and Yoder--3.
Absent: Sharpe--1.
Excused from voting: Helmick--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4636) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate again proceeded to the sixth order of business, which agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return from the House of Delegates of
Eng. Com. Sub. for House Bill No. 4476, Public-Private Transportation Facilities Act.
Passed by the Senate in earlier proceedings tonight,
The bill still being in the possession of the Senate,
On motion of Senator Chafin, the Senate reconsidered its action by which in earlier proceedings tonight it adopted Senator Chafin's amendment to the title of the bill (shown in the Senate Journal of today, pages 660 to 661).
The vote thereon being reconsidered,
The question again being on the adoption of Senator Chafin's amendment to the title of the bill.
At the request of Senator Chafin, and by unanimous consent, Senator Chafin's amendment to the title of the bill was withdrawn.
On motion of Senator Chafin, the following substitute amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4476--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §17-27-1, §17-27-2, §17-27-3, §17-27-4, §17-27-5, §17-27-6, §17-27-7, §17-27-8, §17-27-9, §17-27-10, §17-27-11, §17-27-12, §17-27-13, §17-27-14, §17-27-15, §17-27-16, §17-27-17 and §17-27-18, all relating to establishment of the Public-Private Transportation Facilities Act; setting forth legislative findings and purposes; defining terms; providing prerequisites for acquiring, constructing or improving of a transportation facility; creating public-private transportation oversight within the Division of Highways; creating the powers and duties of the division and any other agencies that are part of the department; providing for the submission of proposals and approval by the division; providing for service contracts; providing for the dedication of public property; setting forth the powers and duties of a developer; requiring a comprehensive agreement; requiring that comprehensive agreement be adopted by the Legislature by concurrent resolution; requiring yeas and nays to be entered in journal; providing for federal, state and local assistance; addressing the issues of material default and remedies; prohibiting governmental entities from pledging full faith and credit; providing for the exercise of condemnation; addressing utility crossings and relocations; addressing dedication of assets; qualifying transportation facilities as public improvements; providing for an exemption of qualifying transportation facilities from taxation; addressing liberal construction and application of article; and requiring approval of Governor.
The bill, as just amended, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Wells and Tomblin (Mr. President)--28.
The nays were: Hunter, Sypolt, Unger, White and Yoder--5.
Absent: Sharpe--1.
So, a majority of those present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4476) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, adoption as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Senate Concurrent Resolution No. 58, Requesting Division of Highways name bridge near Eleanor, Putnam County, "Memorial Bridge".
On motion of Senator Chafin, the message on the resolution was taken up for immediate consideration.
The following House of Delegates amendments to the resolution were reported by the Clerk:
By striking out everything after the title and inserting in lieu thereof the following:
Whereas, Bridge number 40-869-0.27 (4380) on Route 869, completed in 1998, crosses the Kanawha River near Eleanor, in Putnam County, connecting U. S. Route 35, which follows the southwest side of the river, with W. Va. State Route 62, which follows the northeast side of the river; and
Whereas, U. S. Route 35 and W. Va. State Route 62 are both older designed two-lane highways that border the Kanawha River from Point Pleasant through Mason and Putnam counties and both highways, particularly U. S. Route 35 , are heavily traveled thoroughfares, traveled by a large number of tractor-trailers and other commercial vehicles in interstate commerce; and
Whereas, During a ten-year time period from January 1, 1998, through December 31, 2007, on U. S. Route 35 alone, 1,040 traffic accidents occurred between the intersection with W. Va. State Route 34 in Putnam County and the town of Henderson in Mason County, 29 of which resulted in 33 fatalities; one of the most tragic of those accidents resulted in the untimely loss of Johnathon David Higginbotham; and
Whereas, Johnathon David Higginbotham grew up in the Eleanor and Midway areas of Putnam County, and he frequently crossed the bridge and traveled U. S. Route 35 to visit his grandparents in Pliny and to stay with his father ; and
Whereas, Johnathon attended Buffalo High School where he was to be a starting guard on the basketball team for the upcoming fall season; and
Whereas, On June 3, 2004, Johnathon crossed the bridge enroute to his father's home, and while traveling on U. S. Route 35 just a few miles from the bridge, Johnathon, at age 17, died in a tragic collision with a tractor-trailer; and
Whereas, It is fitting that this bridge be named the "Memorial Bridge" for Johnathon and the many other persons who have lost their lives in accidents on U. S. Route 35 and State Route 62 to honor and memorialize their passing, as well as to honor their memory by families and friends as they cross the bridge; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 40-869-0.27 (4380) on Route 869 crossing the Kanawha River and U. S. Route 35 near Eleanor, Putnam County, the "Memorial Bridge" in recognition of Johnathon David Higginbotham and the many other persons who have lost their lives on U. S. Route 35 and W. Va. State Route 62; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "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 and Johnathon David Higginbotham's stepfather and mother, Jim and Vallery Withrow.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Senate Concurrent Resolution No. 58--Requesting the Division of Highways to name bridge number 40-869-0.27 (4380) on Route 869 crossing the Kanawha River and U. S. Route 35 near Eleanor, Putnam County, the "Memorial Bridge" in recognition of Johnathon David Higginbotham and the many other persons who have lost their lives on U. S. Route 35 and W. Va. State Route 62.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the resolution.
The question being on the adoption of the resolution (S. C. R. No. 58), as amended, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 105--Requesting the Division of Highways name the Gilbert Creek bridge number 30-13-0.01 (3590) on Route 13 in Mingo County the "Elmer and May Cline Memorial Bridge".
Whereas, Elmer and May Cline were lifelong residents of Gilbert, Mingo County; and
Whereas, The town of Gilbert was a significant trade area for local residents; and
Whereas, Elmer and May Cline owned and operated a country store in Gilbert most of their adult lives; and
Whereas, Elmer and May Cline were revered by the community for their integrity and the contributions they made to the vitality of the town of Gilbert; and
Whereas, It is fitting that this bridge be named for Elmer and May Cline who represented the best qualities of citizens in this state by their industry, citizenship and dedication to meeting the needs of friends, neighbors and patrons at their country store; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name the Gilbert Creek bridge number 30-13-0.01 (3590) on Route 13 in Mingo County the "Elmer and May Cline Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways have made and be placed signs identifying bridge number 30-13-0.01 (3590) as the "Elmer and May Cline Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Secretary of the Department of Transportation, the mayor of the town of Gilbert, and the surviving family members of Elmer and May Cline.
At the request of Senator Chafin, and by unanimous consent, the message was taken up for immediate consideration and reference of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 107--Requesting the Division of Highways name bridge number 30-13/2-0.02 (5935) at the Right Hand Fork of Gilbert Creek in Mingo County the "Wilburn and Effie Cline Memorial Bridge".
Whereas, Wilburn and Effie Cline were lifelong residents of Gilbert, Mingo County; and
Whereas, The town of Gilbert was a significant trade area for local residents; and
Whereas, Wilburn and Effie Cline owned and operated a country store in Gilbert most of their adult lives; and
Whereas, Wilburn and Effie Cline donated to the State of West Virginia the land needed to build the bridge at Right Hand Fork of Gilbert Creek; and
Whereas, It is fitting that this bridge be named for Wilburn and Effie Cline who represented the best qualities of citizens in this state by their industry, citizenship and dedication to meeting the needs of friends, neighbors and patrons at their country store; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name bridge number 30-13/2-0.02 (5935) at the Right Hand Fork of Gilbert Creek in Mingo County the "Wilburn and Effie Cline Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways have made and be placed signs identifying the bridge as the "Wilburn and Effie Cline Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Secretary of the Department of Transportation, to the Mayor of Gilbert, and to any surviving members of Wilburn and Effie Cline.
At the request of Senator Chafin, and by unanimous consent, the message was taken up for immediate consideration and reference of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate again proceeded to the fourth order of business.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
House Concurrent Resolution No. 24, The A. R. "Dick" Townsend Memorial Roadway.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being granted, the resolution (H. C. R. No. 24) contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate again proceeded to the sixth order of business, which agenda includes the making of main motions.
At the request of Senator Hunter, and by unanimous consent, the Senate returned to the consideration of
Senate Concurrent Resolution No. 28, Designating timber rattlesnake as state reptile.
Having been received as a House message in earlier proceedings tonight,
The resolution now being in the possession of the Senate,
On motion of Senator Hunter, the Senate reconsidered its action by which in earlier proceedings tonight it adopted Senator Chafin's motion to refuse to concur in the House of Delegates amendments to the resolution (shown in the Senate Journal of this day, pages 485 to 486).
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Chafin's motion to refuse to concur in the House of Delegates amendments to the resolution, the same was put and did not prevail.
Whereupon, Senator Tomblin (Mr. President) declared the Senate concurred in the House of Delegates amendments to the resolution.
The question now being on the adoption of the resolution (S. C. R. No. 28), as amended, the same was put.
The result of the voice vote being inconclusive, Senator Prezioso demanded a division of the vote.
A standing vote being taken, there were twenty-seven "yeas" and four "nays".
Whereupon, Senator Tomblin (Mr. President) declared the resolution (S. C. R. No. 28), as amended, adopted.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fourth order of business.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
House Concurrent Resolution No. 27, Designating "Almost Heaven -- West Virginia -- Wild and Wonderful" as the official roadway welcome slogan of the State of West Virginia.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
Senator Unger requested unanimous consent that the resolution (H. C. R. No. 27) contained in the preceding report from the Committee on Transportation and Infrastructure be taken up for immediate consideration.
Which consent was not granted, Senator Sprouse objecting.
Senator Unger then moved that the resolution (H. C. R. No. 27) contained in the preceding report from the Committee on Transportation and Infrastructure be taken up for immediate consideration.
The question being on the adoption of Senator Unger's aforestated motion, the same was put and did not prevail.
On motion of Senator Chafin, the Senate recessed for five minutes.
Upon expiration of the recess, the Senate reconvened and resumed business under the fourth order.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
House Concurrent Resolution No. 37, Urging the Government of Turkey to uphold and safeguard religious and human rights and to cease its discrimination of the Ecumenical Patriarchate.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the resolution (H. C. R. No. 37) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced the adoption by that body of the committee of conference report, passage as amended by the conference report, and requested the concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 4402, Relating to compulsive gambling.
Whereupon, Senator Kessler, from the committee of conference on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 4402, Relating to compulsive gambling.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendments of the Senate to Engrossed Committee Substitute for House Bill No. 4402 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That the Senate recede from its amendments to the bill and its title.
Respectfully submitted,
Corey L. Palumbo, Chair, Tim Miley, Bill Hamilton, Conferees on the part of the House of Delegates.
Jeffrey V. Kessler, Chair, Michael A. Oliverio II, Andy McKenzie, Conferees on the part of the Senate.
Senator Kessler, Senate cochair of the committee of conference, was recognized to explain the report.
Thereafter, on motion of Senator Kessler, the report was taken up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 4402, as amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4402) passed with its title.
Ordered, That The Clerk of the Senate communicate to the House of Delegates the action of the Senate.
The Senate again proceeded to the fourth order of business.
Senator Tomblin (Mr. President), from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 2, Requesting Joint Committee on Government and Finance study tourism opportunities in less-developed counties.
Senate Concurrent Resolution No. 67, Requesting Joint Committee on Government and Finance study joint parenting.
Senate Concurrent Resolution No. 68, Requesting Joint Committee on Government and Finance study Alcohol and Drug Mental Health Courts.
And,
Senate Concurrent Resolution No. 70, Requesting Joint Committee on Government and Finance study West Virginia Tax Increment Financing Act.
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
At the request of Senator Chafin, unanimous consent being granted, Senate Concurrent Resolution No. 2 contained in the preceding report from the Committee on Rules was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being granted, Senate Concurrent Resolution No. 67 contained in the preceding report from the Committee on Rules was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being granted, Senate Concurrent Resolution No. 68 contained in the preceding report from the Committee on Rules was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being granted, Senate Concurrent Resolution No. 70 contained in the preceding report from the Committee on Rules was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Tomblin (Mr. President), from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 16, Requesting Joint Committee on Government and Finance study elimination of wireless coverage dead spots.
And,
Senate Concurrent Resolution No. 56, Requesting Joint Committee on Government and Finance study certain veterans' eligibility for Veterans Memorial Monument.
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
At the request of Senator Chafin, unanimous consent being granted, Senate Concurrent Resolution No. 16 contained in the preceding report from the Committee on Rules was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being granted, Senate Concurrent Resolution No. 56 contained in the preceding report from the Committee on Rules was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 3, Requesting Legislative Oversight Commission on Education Accountability explore options to improve school health.
Senate Concurrent Resolution No. 32, Requesting Joint Committee on Government and Finance study daily physical education classes.
House Concurrent Resolution No. 80, Requesting the Joint Committee on Government and Finance to make a study on promoting a safe and productive learning environment.
House Concurrent Resolution No. 81, Requesting the Joint Committee on Government and Finance to make a study on providing supplemental state aid for the instruction of english as a second language.
And,
House Concurrent Resolution No. 82, Requesting the Joint Committee on Government and Finance to make a study to improve the efficiency of school level, county board and regional education service agency accounting practices and procedures.
And reports the same back with the recommendation that they each be adopted; but under the original double committee references first be referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
The resolutions, under the original double committee references, were then referred to the Committee on Rules.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
House Concurrent Resolution No. 79, Requesting the Joint Committee on Government and Finance to study the feasibility of election day registration in and for the State of West Virginia.
And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Chafin, unanimous consent was granted to dispense with the second committee reference to the Committee on Rules of the resolution contained in the foregoing report from the Committee on the Judiciary.
At the request of Senator Chafin, unanimous consent being granted, the resolution (H. C. R. No. 79) was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Senate Concurrent Resolution No. 13, Requesting Legislative Oversight Commission on Health and Human Resources Accountability study sexual assault nurse examiner programs.
And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
The resolution, under the original double committee reference, was then referred to the Committee on Rules.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Concurrent Resolution No. 59, Requesting Joint Committee on Government and Finance study simplified tax structure for communications.
Senate Concurrent Resolution No. 61, Requesting Joint Committee on Government and Finance study energy sources' taxation.
And,
Senate Concurrent Resolution No. 74, Requesting Joint Committee on Government and Finance review property tax assessment and appeals system.
And reports the same back with the recommendation that they each be adopted; but under the original double committee references first be referred to the Committee on Rules.
Respectfully submitted,
Walt Helmick,
Chair.
The resolutions, under the original double committee references, were then referred to the Committee on Rules.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 65, Urging Congress to pass resolution regarding farm vehicle exemptions.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being granted, the resolution (S. C. R. No. 65) contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
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The midnight hour having arrived, the President stated all unfinished legislative business, with the exception of the budget bill, had expired due to the time element.
A series of messages from the House of Delegates having been received at his desk, the following communications were reported by the Clerk:
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 398, Authorizing Department of Health and Human Resources promulgate legislative rules.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 536, Exempting Supreme Court probation officers' vehicles from certain registration requirements.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of the committee of conference report, passage as amended by the conference report, with its conference amended title, as to
Eng. Com. Sub. for Senate Bill No. 571, Relating to certain firefighters' workers' compensation benefits.
A message from The Clerk of the House of Delegates announced that that body had receded from its amendments to, and the passage as amended by deletion, to take effect July 1, 2008, of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 573, Increasing public school teachers' and service personnel annual salaries.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, of
Eng. Senate Bill No. 606, Requiring hiring preference for summer school program positions.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 645, Exempting city and county hospitals from certain audit requirements.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect July 1, 2008, of
Eng. Senate Bill No. 659, Increasing certain crime victims' benefits.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Senate Bill No. 673, Making supplementary appropriation to Department of Health and Human Resources.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Senate Bill No. 674, Making supplementary appropriation to Department of Administration and Department of Military Affairs and Public Safety.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 6, Requesting Joint Committee on Government and Finance study Universal Voluntary Accounts Program.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 8, Requesting Division of Highways name bridge in Beaver, Raleigh County, "Major Jeff L. Davis Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 18, Requesting Division of Highways name bridge in Martinsburg, Berkeley County, "Dr. C. Vincent Townsend, Sr., Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 22, Requesting Division of Highways name bridge in Clarksburg, Harrison County, "PFC Hotty Herrick Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Com. Sub. for Senate Concurrent Resolution No. 60, Requesting Joint Committee on Government and Finance study armed forces retirement service credit.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 69, Requesting Joint Committee on Government and Finance study judicial elections.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 71, Requesting Division of Highways name bridge in Grafton, Taylor County, "Floyd 'Scotty' Hamilton: First WVU All American Basketball Player Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 75, Requesting Division of Highways name bridge in Summers County "Vaughn Ray York, Jr., Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 76, Requesting Division of Highways place sign at Fayetteville, Fayette County, "Coolest Small Town".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 77, Urging Congress declare December 7th a national holiday.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 83, Requesting Division of Highways name bridge in Kanawha County "Captain Benjamin D. Tiffner Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 84, Requesting Division of Highways name bridge in Kanawha County "Master Sergeant William L. 'Buster' Hackney Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 88, Requesting Division of Highways name bridge in Delbarton, Mingo County, "Thomas Elbert Muncy, Jr., Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, to take effect from passage, of
Eng. House Bill No. 4016, Updating meaning of federal adjusted gross income and certain other terms used in West Virginia Personal Income Tax Act.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, to take effect from passage, of
Eng. House Bill No. 4017, Updating meaning of federal taxable income and certain other terms used in West Virginia Corporation Net Income Tax Act.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4023, Provide for the denial or suspension of a driver's license for any student who withdraws from school or fails to receive passing grades.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4059, Relating to medical qualifications for school bus operators.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. House Bill No. 4094, Relating to reimbursement of compensation paid to certain state employees for job-related training, education or professional development.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amended title, passage as amended, of
Eng. Com. Sub. for House Bill No. 4121, Authorizing the participation of local governments in a purchasing card program to be administered by the Auditor.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, of
Eng. House Bill No. 4296, Relating to the rights of crime victims.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4307, Relating to bona fide residents wholly or solely owning greyhounds.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amended title, passage as amended, of
Eng. House Bill No. 4348, Adding language to the code for fees for tests and certificates that were already imposed.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, to take effect July 1, 2008, of
Eng. House Bill No. 4406, Relating to state board standards for the recommended duration of school bus transportation times for students to and from school.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 4433, Increasing the maximum amount of a medical student loan that may be cancelled.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, to take effect July 1, 2008, of
Eng. Com. Sub. for House Bill No. 4434, Establishing a higher education energy and water savings revolving loan fund.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. House Bill No. 4465, Relating to fees charged by the Secretary of State.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 4476, Public-Private Transportation Facilities Act.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 4515, Relating to reports by health care providers of persons incompetent to drive an automobile.
A message from The Clerk of the House of Delegates announced that that body had agreed to the changed effective date to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4524, Relating generally to the ethical standards of public officers, employees and lobbyists.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. House Bill No. 4527, Allowing county commissions to regulate subdivisions and land development without adopting a plan.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. House Bill No. 4567, Attracting private investment for the financing, construction and operation of additional lodging units at Stonewall Jackson Lake State Park.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, to take effect July 1, 2008, of
Eng. House Bill No. 4588, Relating to public school support.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. House Bill No. 4623, Relating to establishing minimum deductions.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4637, Relating to the deployment of broadband to the remaining unserved areas of the state.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the adoption as amended, with its Senate amended title, of
House Concurrent Resolution No. 55, The "Brian Keith Paul Brian Keith Paul Memorial Bridge".
On motion of Senator Chafin, the Senate adjourned until tomorrow, Sunday, March 9, 2008, at 12:15 a.m., for an extended session to complete action on the annual state budget, under authority of the Governor's proclamation issued March 5, 2008, extending the second annual session of the seventy-eighth Legislature until and including the eleventh day of March, two thousand eight, solely for that purpose, as being the only permissive legislation within constitutional purview.
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