sdj-01st day 3es

WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
EIGHTIETH LEGISLATURE
THIRD EXTRAORDINARY SESSION, 2011
FIRST DAY
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Charleston, W. Va., Sunday, November 13, 2011

     Pursuant to the proclamation of His Excellency, the Governor, the Honorable Earl Ray Tomblin, dated the second day of November, two thousand eleven, convening the eightieth Legislature of West Virginia in extraordinary session today (Sunday, November 13, 2011), under the provisions of section seven, article seven of the Constitution of West Virginia, the Senate assembled in its chamber in the state capitol in the City of Charleston at 12 o'clock Noon, and was called to order by its Acting President, the Honorable Jeffrey V. Kessler.
     Prayer was offered by the Honorable Roman W. Prezioso, Jr., a senator from the thirteenth district.
     On the call of the roll, the following answered to their names:
     Senators Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Williams, Wills, Yost and Kessler (Acting President).
     Twenty-six members having answered to their names, the Acting President declared the presence of a quorum.
Executive Communications
     Senator Kessler (Acting President) laid before the Senate the following proclamation from His Excellency, the Governor, convening the Legislature in extraordinary session, which was read by the Clerk:
STATE OF WEST VIRGINIA
EXECUTIVE DEPARTMENT
Charleston
A P R O C L A M A T I O N
By the Governor
     WHEREAS, The resignation of former Governor Joe Manchin III, from the office of Governor to assume the office of United States Senator from the State of West Virginia on the fifteenth day of November, Two Thousand Ten, created a vacancy in the office of Governor of the State of West Virginia; and
     WHEREAS, The Supreme Court of Appeals of West Virginia mandated that the vacancy in the office of Governor be filled by an elected successor within one year of the date when the vacancy occurred; and
     WHEREAS, Pursuant to Article VII, Section Sixteen of the Constitution of West Virginia, section two, article ten, chapter three of the Code of West Virginia, 1931, as amended, and the mandate of the Supreme Court of Appeals of West Virginia filed on the eighteenth day of January, Two Thousand Eleven, a new election was held on the fourth day of October, Two Thousand Eleven, for the purpose of electing a successor to the unexpired term of former Governor Joe Manchin III; and
     WHEREAS, The West Virginia Secretary of State, Natalie E. Tennant, has informed me that all West Virginia counties have completed the canvassing and certification process required by article six, chapter three of the Code of West Virginia, 1931, as amended; and
     WHEREAS, Article VII, Section Three of the Constitution of West Virginia requires that "[t]he returns of every election for the [office of Governor] shall be sealed up and transmitted by the returning officers of the Secretary of State, directed 'to the Speaker of the House of Delegates,' who shall, immediately after the organization of the House, and before proceeding to business, open and publish the same, in the presence of a majority of each house of the Legislature, which shall for that purpose assemble in the Hall of the House of Delegates. The person having the highest number of votes for [the office of Governor], shall be declared duly elected thereto"; and
     WHEREAS, Syllabus Point 4 of Carr v. Wilson, 9 S.E. 31 (W. Va. 1889), provides that "[a] declaration of election to the office of governor, as provided for by section 3, art. 7, of the constitution, is indispensable to perfect and consummate the title of that office."
     NOW, THEREFORE, I, EARL RAY TOMBLIN, by virtue of the authority vested in the Governor by Article VII, Section Seven of the Constitution of West Virginia, do hereby call the Legislature of West Virginia to convene in Extraordinary Session at twelve o'clock, noon, on the thirteenth day of November, Two Thousand Eleven, in its chambers in the State Capitol, City of Charleston, for the sole purpose of considering and acting upon the following matters:
     FIRST: Certification and declaration of election returns in accordance with the requirements of Article VII, Section Three of the Constitution of West Virginia for the office of Governor associated with the new election held on the fourth day of October, Two Thousand Eleven, to fill the remainder of the unexpired term in said office.
     SECOND: Legislation authorizing and appropriating the expenditure of public moneys to pay the expenses of this Extraordinary Session.
     IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of West Virginia to be affixed.
DONE at the Capitol in the City of Charleston, State of West Virginia, on this the second day of November, in the year of our Lord, Two Thousand Eleven, and in the One Hundred Forty-Ninth year of the State.
EARL RAY TOMBLIN,
Governor.
By the Governor:
  NATALIE E. TENNANT,
  Secretary of State.
     The following communication was reported by the Clerk:
THE SENATE OF WEST VIRGINIA
OFFICE OF THE PRESIDENT
Charleston
TO:       Darrell Holmes
          Clerk of the West Virginia Senate
FROM:     Jeffrey V. Kessler
          Acting Senate President
DATE:     November 13, 2011
RE:       President pro Tempore
     Effective September 1, 2011, Senator Joseph Minard has been appointed to the position of President pro Tempore, West Virginia State Senate.
     Senator Unger offered the following resolution:
     Senate Resolution No. 301--Raising a committee to inform the House of Delegates the Senate has assembled in extraordinary session.
     Resolved by the Senate:
     That a committee of three be appointed by the Acting President to inform the House of Delegates that the Senate has assembled in extraordinary session, with a quorum present, and is ready to proceed with the business for which the extraordinary session was called by His Excellency, the Governor.
     At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     Whereupon, the Acting President appointed as members of such committee the following:
     Senators Laird, Klempa and Sypolt.
     Subsequently, Senator Laird, from the committee to notify the House of Delegates the Senate has assembled in extraordinary session, and is ready to proceed with the business of the session, announced that the committee had discharged its duties.
     A message from the House of Delegates, by
     Delegates Fragale, M. Poling and Evans, announced that the House of Delegates has assembled in extraordinary session, with a quorum present, and is ready to proceed with the business stated in the proclamation convening the Legislature.
     Senator Unger then offered the following resolution:
     Senate Resolution No. 302--Raising a committee to wait upon the Governor.
     Resolved by the Senate:
     That a committee of three on the part of the Senate, to join with a similar committee on the part of the House of Delegates, be appointed by the Acting President to notify His Excellency, the Governor, that at his call the Legislature has assembled in extraordinary session, with a quorum of each house present; and is ready to receive any communication or message he may be pleased to present under section seven, article seven of the Constitution of West Virginia, which provides that no business except that stated in his proclamation be considered.
     At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     Whereupon, the Acting President appointed as members of such committee the following:
     Senators Edgell, D. Facemire and Boley.
     A message from the House of Delegates, by
     Delegates Staggers, Walker and Border, announced that the Speaker had appointed them a committee of three to join with a similar committee on the part of the Senate to wait upon the Governor, under the provisions of Senate Resolution No. 302. Senate and House members of this select committee then proceeded to the executive offices.
     Subsequently, Senator Edgell reported that the joint Senate and House committee had performed the duty assigned to it.
     The Senate proceeded to the third order of business.
Executive Communications
     Senator Kessler (Acting President) laid before the Senate the following communication from His Excellency, the Governor, consisting of executive nominations for appointees:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON

November 13, 2011

Senate Executive Message No. 1
TO:  The Honorable Members of the
     West Virginia Senate
Ladies and Gentlemen:
     I respectfully submit the following nominations for your advice and consent:
      1.  For Director, Division of Protective Services, Randy Mayhew, Hurricane, Putnam County, to serve at the will and pleasure of the Governor.
      2.  For Director, Office of Miners' Health, Safety and Training, C. A. Phillips, Pipestem, Summers County, to serve at the will and pleasure of the Governor.
      3.  For Member, Concord University Board of Governors, Myra Susan Rogers, Hinton, Summers County, for the term ending June 30, 2015.
      4.  For Member, Concord University Board of Governors, Lane Bailey, Fairfax Station, Virginia, for the term ending June 30, 2015.
      5.  For Member, Board of Professional Surveyors, R. Michael Shepp, Shepherdstown, Jefferson County, for the term ending June 30, 2015.
      6.  For Member, Public Employees Insurance Agency Finance Board, Michael Smith, Milton, Cabell County, for the term ending June 30, 2015.
      7.  For Member, Statewide Independent Living Council, Beverly Jones, Hurricane, Putnam County, for the term ending June 30, 2014.
      8.  For Member, Statewide Independent Living Council, Brenda Lamkin, Buckhannon, Upshur County, for the term ending June 30, 2014.
      9.  For Member, Statewide Independent Living Council, James Qualls, Huntington, Cabell County, for the term ending June 30, 2014.
     10.  For Member, Statewide Independent Living Council, David Sanders, Charleston, Kanawha County, for the term ending June 30, 2014.
     11.  For Member, Statewide Independent Living Council, Gregory Bilonick, Maidsville, Monongalia County, for the term ending June 30, 2014.
     12.  For Member, Statewide Independent Living Council, Todd Rundle, Fairmont, Marion County, for the term ending June 30, 2014.
     13.  For Member, Statewide Independent Living Council, Cindy Spinks, Summersville, Nicholas County, for the term ending June 30, 2014.
     14.  For Member, Statewide Independent Living Council, Bob Waybright, Webster Springs, Webster County, for the term ending June 30, 2014.
     15.  For Member, Board of Chiropractic Examiners, Dr. Roger Kritzer, Fairmont, Marion County, for the term ending June 30, 2014.
     16.  For Member, Board of Chiropractic Examiners, Dr. Peggy Kiser-Crouch, Charleston, Kanawha County, for the term ending June 30, 2012.
     17.  For Member, Glenville State College Board of Governors, Richard Heffelfinger, Charleston, Kanawha County, for the term ending June 30, 2015.
     18.  For Member, Glenville State College Board of Governors, Dr. William Deel, Milton, Cabell County, for the term ending June 30, 2015.
     19.  For Member, West Virginia School of Osteopathic Medicine Board of Governors, C. Sue Holvey, Roanoke, Lewis County, for the term ending June 30, 2015.
     20.  For Member, Board of Pharmacy, George Karos, Martinsburg, Berkeley County, for the term ending June 30, 2016.
     21.  For Member, Natural Resources Commission, Dr. Thomas Owen Dotson, White Sulphur Springs, Greenbrier County, for the term ending June 30, 2018.
     22.  For Member, Concord University Board of Governors, Brace Mullett, Charleston, Kanawha County, for the term ending June 30, 2014.
     23.  For Member, Concord University Board of Governors, David Barnette, Charleston, Kanawha County, for the term ending June 30, 2014.
     24.  For Member, Board of Control for Southern Regional Education, The Honorable Roman W. Prezioso, Jr., Fairmont, Marion County, for the term ending June 30, 2015.
     25.  For Member, Human Rights Commission, Dr. Darrell Cummings, Wheeling, Ohio County, for the term ending June 30, 2014.
     26.  For Member, Human Rights Commission, Wesley Dobbs, Carolina, Marion County, for the term ending June 30, 2013.
     27.  For Member, Human Rights Commission, Karl Gattlieb, Charleston, Kanawha County, for the term ending June 30, 2013.
     28.  For Member, Human Rights Commission, Timothy Hairston, Westover, Monongalia County, for the term ending June 30, 2014.
     29.  For Member, Human Rights Commission, William Williams, Jr., Omar, Logan County, for the term ending June 30, 2012.
     30.  For Member, Human Rights Commission, Lisa Younis, Shepherdstown, Jefferson County, for the term ending June 30, 2012.
     31.  For Member, Human Rights Commission, The Honorable Terry Walker, Kearneysville, Jefferson County, for the term ending June 30, 2014.
     32.  For Member, Public Employees Grievance Board, Bob Brown, Charleston, Kanawha County, for the term ending June 30, 2013.
     33.  For Member, Public Employees Grievance Board, Melissa Lampinen, Buckhannon, Upshur County, for the term ending June 30, 2012.
     34.  For Member, Public Employees Grievance Board, David Roberts, Fairmont, Marion County, for the term ending June 30, 2014.
     35.  For Member, Public Employees Grievance Board, William Burdette, Huntington, Cabell County, for the term ending June 30, 2013.
     36.  For Member, Veterans' Council, James DeCarlo, St. Albans, Kanawha County, for the term ending June 30, 2013.
     37.  For Member, Human Rights Commission, John McFerrin, Beckley, Raleigh County, for the term ending June 30, 2012.
     38.  For Member, Marshall University Board of Governors, Wyatt Scaggs, Logan, Logan County, for the term ending June 30, 2015.
     39.  For Member, Northern Community College Board of Governors, Mary K. Hervey De Garmo, Wellsburg, Brooke County, for the term ending June 30, 2012.
     40.  For Member, Northern Community College Board of Governors, H. Brann Altmeyer, Wheeling, Ohio County, for the term ending June 30, 2014.
     41.  For Member, Northern Community College Board of Governors, Christin Byrum, Wheeling, Ohio County, for the term ending June 30, 2014.
     42.  For Member, Northern Community College Board of Governors, Dr. Darrell Cummings, Wheeling, Ohio County, for the term ending June 30, 2013.
     43.  For Member, Mountwest Community and Technical College Board of Governors, Bob Bailey, Huntington, Cabell County, for the term ending June 30, 2014.
     44.  For Member, Mountwest Community and Technical College Board of Governors, Jason Moses, Huntington, Cabell County, for the term ending June 30, 2014.
     45.  For Member, Mountwest Community and Technical College Board of Governors, Susan Richardson, Proctorville, Ohio, for the term ending June 30, 2014.
     46.  For Member, Board of Accountancy, Donald Nestor, Buckhannon, Upshur County, for the term ending June 30, 2013.
     47.  For Member, Board of Accountancy, Louis Costanzo III, Wheeling, Ohio County, for the term ending June 30, 2012.
     48.  For Member, Board of Accountancy, Reed Tanner, Morgantown, Monongalia County, for the term ending June 30, 2014.
     49.  For Member, Board of Accountancy, Harold Davis, Lenore, Mingo County, for the term ending June 30, 2012.
     50.  For Member, Board of Accountancy, David Hill, Charleston, Kanawha County, for the term ending June 30, 2014.
     51.  For Member, Board of Accountancy, Barry Burgess, Huntington, Cabell County, for the term ending June 30, 2013.
     52.  For Member, Eastern West Virginia Community and Technical College Board of Governors, Dixie Bean, Moorefield, Hardy County, for the term ending June 30, 2015.
     53.  For Member, West Liberty University Board of Governors, Lisa Allen, Wheeling, Ohio County, for the term ending June 30, 2013.
     54.  For Member, Northern Community College Board of Governors, Joseph Craycraft, Wheeling, Ohio County, for the term ending June 30, 2012.
     55.  For Member, Bridgemont Community and Technical College Board of Governors, David Barnhart, Oak Hill, Fayette County, for the term ending June 30, 2014.
     56.  For Member, Bridgemont Community and Technical College Board of Governors, David Lewia, Elkview, Kanawha County, for the term ending June 30, 2014.
     57.  For Member, State Board of Education, The Honorable Lloyd G. Jackson II, Hamlin, Lincoln County, for the term ending November 4, 2020.
     58.  For Member, Mountwest Community and Technical College Board of Governors, Thomas Gibson, Kenova, Wayne County, for the term ending June 30, 2014.
     Notice of these appointments was previously provided to the appropriate legislative staff at the time the appointments were made.
                              Sincerely,
                               Earl Ray Tomblin,
                               Governor.
     Which communication was received and referred to the Committee on Confirmations.
     On motion of Senator Edgell, consideration of the nominations immediately hereinbefore reported was made a special order of business for Tuesday, November 15, 2011, at 11 a.m.
     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. 301--Raising a Joint Assembly to open and publish election returns.
     Resolved by the Legislature of West Virginia:
     That the two houses of the Legislature convene in Joint Assembly in the Hall of the House of Delegates at 12:30 o'clock postmeridian, this day, that the Speaker of the House of Delegates may, in the presence of the Senate, open and publish the returns of the election held throughout the State on the 4th day of October, 2011, as provided by Sec. 3, Article VII of the Constitution.
     At the request of Senator Unger, 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 hour of 12:30 p.m. having arrived, that being the time set for the joint assembly to open and publish state election returns (under the provisions of H. C. R. No. 301, previously adopted by the Senate),
     Pending announcements of majority and minority party caucuses,
     On motion of Senator Unger, the Senate adjourned until tomorrow, Monday, November 14, 2011, at 6 p.m.
     Members of the Senate then repaired in a body to the hall of the House of Delegates.
***
     (NOTE: For formal procedure in the joint assembly, see the Journal of the House of Delegates for this day.)
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