hdj2011-03-09-57
__________*__________
Wednesday, March 9, 2011
FIFTY-SEVENTH DAY
[Mr. Speaker, Mr. Thompson, in the Chair]
The House of Delegates met at 11:00 a.m., and was called to order by the Honorable Richard
Thompson, Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Tuesday, March 8, 2011, being the first order of
business, when the further reading thereof was dispensed with and the same approved.
At the request of Delegate Boggs, and by unanimous consent, the House of Delegates
proceeded to the Ninth Order of Business for the purpose of considering a resolution on Unfinished
Business.
Unfinished Business
The following resolution, coming up in regular order, as unfinished business, was read by
the Clerk and adopted:
H. C. R. 117, The "Larry K. Conley Memorial Bridge".
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Committee Reports
Mr. Speaker, Mr. Thompson, from the Committee on Rules, submitted the following report,
which was received:
Your Committee on Rules has had under consideration:
H. C. R. 45, Conducting a study on the educational and communication barriers facing
children in West Virginia who are deaf or hard of hearing and their families,
H. C. R. 54, Requesting a study on the feasibility and potential effectiveness of justice
reinvestment strategies as a mechanism to better direct our expenditures in criminal justice to help
prevent crimes, not merely to punish them,
H. C. R. 66, Requesting a study regarding the various learning disabilities that affect many
students in West Virginia,
H. C. R. 80, Requesting the Joint Committee on Government and Finance study requiring
the Consolidated Public Retirement Board to deduct from monthly benefits to retirees sums to pay
retiree association dues,
H. C. R. 81, The "Eli 'Rimfire' Hamrick Trail",
H. C. R. 94, Supporting the "Honor and Remember" Flag as an official emblem of the
service and sacrifice by the brave men and women who have given their lives in the line of duty,
H. C. R. 97, Requesting a broad study of budgeting, including budget formats, approached,
processes, procedures and controls,
H. C. R. 98, Recognizing the Mighty Wurlitzer Pipe Organ in the Keith-Albee Theatre as
the Official Theatre Pipe Organ in the State,
H. C. R. 100, Requesting the Joint Committee on Government and Finance to study the need
for legislation to clarify the law relating to the right of disposition of a deceased person's remains,
H. C. R. 115, Supporting raising the pay of state mine inspectors to federal levels,
H. C. R. 116, The "Honorary and Memorial Firefighters Bridge",
H. C. R. 118, Requesting a feasibility study for a proposed multi-county ATV trail system
in Central West Virginia,
H. C. R. 120, Requesting a study on the effect of transferring supervisory and jurisdictional
responsibilities of all or part of Coopers Rock State Forest,
H. C. R. 127, The "Staff Sergeant Chester Arthur Winchell Memorial Bridge",
H. C. R. 137, Requesting the Division of Highways erect signs stating "Lewisburg, Coolest
Small Town U. S. A., 2011",
H. R. 25, Recognizing the importance of the annual Marshall - WVU football game and
urging continuation of the series,
H. R. 27, Expressing the sense of the Legislature that designating the annual observance of
September 17, Constitution Day, also be declared "Robert C. Byrd Remembrance Day",
S. C. R. 10, Designating March 30 annually "West Virginia Vietnam Veterans Recognition
Day",
S. C. R. 11, Authorizing placement of statue of Honorable Francis Harrison Pierpont in
Independence Hall in Wheeling,
S. C. R. 16, Requesting DOH name WV 54, from intersection with CR 54/4 to intersection
with WV 16, "C.C. 'Sonnie' Phillips Bypass",
S. C. R. 20, Requesting DOH name bridge at I-64, Exit 11, near 16th Street and Hal Greer
Boulevard, "Jeffrey P. Ball Memorial Bridge",
S. C. R. 21, Requesting DOH name bridge on I-79, spanning WV 114, "Hodges Brothers
Bridge",
S. C. R. 24, Requesting DOH name bridge in Monongalia County "Joseph C. Bartolo
Memorial Bridge",
S. C. R. 28, Requesting DOH name intersection of Stoney Ridge and King Coal Highway
in Mercer County "Christine West Interchange",
S. C. R. 29, Requesting DOH name King Coal Highway Interchange, at intersection of U.
S. Route 52 and U. S. Route 460 in Mercer County "The K. A. Ammar, Jr. Interchange",
S. C. R. 32, Requesting DOH name bridge on U. S. Route 60 in Gauley Bridge "Sgt. Scott
Angel Memorial Bridge",
S. C. R. 37, Urging WV Delegation to Congress oppose any action by Congress or President
to reduce funding for Community Service Block Grants,
And,
S. C. R. 39, Requesting DOH name WV 20 between Cowen and Webster and Nicholas
County lines "Chief Samuel 'Ed' Plummer Memorial Highway",
And reports the same back with the recommendation that they each be adopted.
Chairman Poling, from the Committee on Education, submitted the following report, which
was received:
Your Committee on Education has had under consideration:
S. B. 375, Authorizing Higher Education Policy Commission collect and disseminate
information concerning higher education institutions,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
Chairman Miley, from the Committee on the Judiciary, submitted the following report, which
was received:
Your Committee on the Judiciary has had under consideration:
S. B. 192, Protecting consumers from price gouging and unfair pricing practices,
And reports the same back with the recommendation that it do pass, and with the
recommendation that second reference of the bill to the Committee on Finance be dispensed with.
In the absence of objection, reference of the bill (S. B. 192) to the Committee on Finance
was abrogated.
Chairman Miley, from the Committee on the Judiciary, submitted the following report, which
was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 407, Incorporating federal health insurance reforms into insurance code,
And,
Com. Sub. for S. B. 408, Creating WV Health Benefit Exchange Act,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended, but that they first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bills (Com. Sub. for S. B. 407 and
Com. Sub. for S. B. 408) were each referred to the Committee on Finance.
Chairman Miley, from the Committee on the Judiciary, submitted the following report, which
was received:
Your Committee on the Judiciary has had under consideration:
S. B. 376, Permitting unit owners' associations institute legal action to collect dues,
Com. Sub. for S. B. 439, Clarifying that filing of manufactured housing complaint with state
regulatory board is prerequisite for lawsuit,
And,
Com. Sub. for S. B. 474, Relating to manufacturer's liability for prescription drug warning
or instruction,
And reports the same back with the recommendation that they each do pass.
Chairman Miley, from the Committee on the Judiciary, submitted the following report, which
was received:
Your Committee on the Judiciary has had under consideration:
S. B. 435, Amending insurance code with respect to surplus lines insurance,
And,
Com. Sub. for S. B. 532, Relating to fraud and abuse in Medicaid program,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended.
Chairman White, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration:
S. B. 329, Updating provisions of sales and use tax,
And reports the same back with the recommendation that it do pass.
Chairman Miley, from the Committee on the Judiciary, submitted the following report, which
was received:
Your Committee on the Judiciary has had under consideration:
S. B. 428, Increasing fees charged by clerk of circuit court for medical professional liability
actions,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, and with the recommendation that second reference of the bill to the Committee on
Finance be dispensed with.
In the absence of objection, reference of the bill (S. B. 428) to the Committee on Finance
was abrogated.
Messages from the Executive
The Speaker then laid before the House of Delegates the following communications from
His Excellency, the Governor, which were read by the Clerk as follows:
STATE OF WEST VIRGINIA
Earl Ray Tomblin
Governor
March 8, 2011
EXECUTIVE MESSAGE NO. 2
2011 REGULAR SESSION
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, WV 25305
Dear Sir:
Pursuant to the provision of section twenty, article one, chapter five of the Code of West
Virginia, I hereby certify that the following 2009-2010 annual reports have been received in the
Office of the Governor:
Accountancy, West Virginia Board of (2009 and 2010)
Adjutant General, Office of the State of West Virginia (West Virginia National Guard)
2009 and 2010
Architects, West Virginia Board of
Attorney General, Office of the, State of West Virginia
Banking, Division of, West Virginia Department of Revenue (2009 and 2010)
Barbers and Cosmetologists, West Virginia Board of
Consumer Advocate, Office of the, Offices of the Insurance Commissioner, West Virginia
Department of Revenue
Consumer Advocate, Division of the, West Virginia Public Service Commission
Corrections, Division of, West Virginia Department of Military Affairs and Public Safety
Counseling, West Virginia Board of
Court of Claims, West Virginia
Court System, West Virginia Supreme Court of Appeals
Crime, Delinquency and Correction, Governor's Committee on, Community Corrections
Act, Division of Criminal Justice Services, West Virginia Department of Military Affairs
and Public Safety
Crime, Delinquency and Correction, Governor's Committee on, Law Enforcement Training
Subcommittee, Division of Criminal Justice Services, West Virginia Department of
Military Affairs and Public Safety
Dental Examiners, West Virginia Board of
Dieticians, West Virginia Board of Licensed
Economic Development Authority, West Virginia
Education, Board, of West Virginia Department of Education (2008-2009)
Energy, Division of, West Virginia Department of Commerce
Family Protection Services Board, West Virginia Department of Health and Human
Resources
Farmland Protection Conservation Easements, West Virginia Agricultural Land
Protection Authority
Fire Marshal, State Fire Commission, West Virginia Department of Military Affairs and
Public Safety
Guaranteed Work Force Program, Governor's West Virginia Department of Commerce
(2009 and 2010)
Health Enhancement and Lifestyle Planning (GO HELP), Governor's Office of
Housing Development Fund, West Virginia
Insurance Commission, Office of the, West Virginia Department of Revenue
Juvenile Services, Division of, West Virginia Department of Military Affairs and Public
Safety
Licensed Practical Nurses, West Virginia Board of Examiners for
Logging Sediment Control Act, Division of Forestry, West Virginia Department of
Commerce
Medical Imaging and Radiation Therapy Technology, West Virginia Board of Examiners for
Medicine, West Virginia Board of, West Virginia Volumes I, II and III
Mine Inspector's Examining Board, West Virginia Office of Miners Health, Safety and
Training, West Virginia Department of Commerce
Motor Vehicles, Division of, West Virginia Department of Transportation
Municipal Bond Commission, West Virginia
National and Community Service, West Virginia Commission for (Volunteer West Virginia)
Neighborhood Investment Program, West Virginia Development Office
Nursing Home Administrators Licensing Board, West Virginia
Osteopathy, West Virginia Board of
Parole Board, West Virginia Department of Military Affairs and Public Safety
Personnel, Division of, West Virginia Department of Administration
Pharmacy, West Virginia Board of
Physical Therapy, West Virginia Board of
Planning and Development Council, Region VII
Privacy Office, West Virginia Health Care Authority
Professional Engineers, West Virginia State Board of Registration for
Psychologists, West Virginia Board of Examiners of
Public Defender Services, West Virginia
Real Estate Commission, West Virginia
Registered Professional Nurses, West Virginia Board of Examiners for (Biennium Report)
Rehabilitation Council, Division of Rehabilitation Services, West Virginia Department of
Education and the Arts
Rehabilitation Services, Division of, West Virginia Department of Education and the Arts
Risk and Insurance Management, West Virginia Board of
Ron Yost Personal Assistance Services Board, Statewide Independent Living Council,
Division of Rehabilitation Services, West Virginia Department of Education and the Arts
Senior Services, West Virginia Bureau of
State Police, West Virginia
Transportation Coordinating Council, Division of Public Transit, West Virginia
Department of Transportation
Veterans Affairs, Division of, Department of Military Affairs and Public Safety
Veterinary Medicine, West Virginia Board of
Water Development Authority, West Virginia
Very truly yours,
Earl Ray Tomblin,
Governor.
STATE OF WEST VIRGINIA
Earl Ray Tomblin
Governor
EXECUTIVE MESSAGE NO. 3
2011 REGULAR SESSION
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305
Dear Sir:
In accordance with the provisions of Section 11, Article 7 of the Constitution of the State of
West Virginia, and Section 16, Article 1, Chapter 5 of the Code of West Virginia, I hereby report that
I granted no pardons or reprieves, nor commuted punishment to any person, nor remitted any fines
or penalties during the period of November 15, 2010 through March 8, 2011.
I further hereby report that, according to the records in the Office of the Governor, no pardons
or reprieves were granted by former Governor Joe Manchin III during the period of February 26,
2010 through November 15, 2010, nor did former Governor Manchin commute punishment to any
person, nor remit any fines or penalties during said period.
Very truly yours,
Earl Ray Tomblin,
Governor.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
Com. Sub. for H. B. 2438, Bringing older contradicting language still remaining in the code
into conformity with §3-2-5(b)(3) and reestablishing a definition for "independent voter".
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §3-1-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
and that §3-4A-9 and §3-4A-20 of said code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-2. Scope of chapter; definitions.
Unless restricted by the context, the provisions of this chapter
shall apply to every general,
primary and special election in which candidates are nominated or elected or in which voters pass
upon any public question submitted to them, except that the provisions hereof shall be construed to
be operative in municipal elections only in those instances in which they are made expressly so
applicable.
Unless the context clearly requires a different meaning, as herein used:
'Voter'
shall mean means any person who possesses the statutory and Constitutional
qualifications for voting;
'Independent' means a registered voter who declined to state a preference for party affiliation
on their voter registration or who listed a party affiliation which is not qualified as a political party
as defined in section eight, article one of this chapter.
'Election'
shall mean means the procedures whereby the voters of this state or any subdivision thereof elect persons to fill public offices, or elect members of a Constitutional
convention, or vote on public questions;
'Any election' or 'all elections'
shall include means every general, primary or special election
held in this state, or in any of its subdivisions, for the purpose of nominating or electing federal or
state officers, or county, city, town or village officers of any subdivision now existing or hereafter
created, or for the purpose of electing members of a Constitutional convention, or for voting upon
any public question submitted to the people of the state or any of the aforesaid subdivisions;
'Office'
shall be construed to mean or 'public office'
which shall include means: (1) Any
elective office provided for by the Constitution or laws of the United States or of this state to which
a salary or other compensation attaches;
and or (2) membership in a Constitutional convention.
'Candidate'
shall mean means any person to be voted for at an election;
'Public question'
shall mean means any issue or proposition, now or hereafter required by
the governing body of this state or any of its subdivisions to be submitted to the voters of the state
or subdivision for decision at elections;
The term 'minor' as used in article four, section one of the State Constitution and as used in
this chapter
shall mean means a person who has not become eighteen years of age.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-9. Minimum requirements of electronic voting systems.
An electronic voting system of particular make and design may not be approved by the State
Election Commission or be purchased, leased or used by any county commission unless it meets the
following requirements:
(1) It secures or ensures the voter absolute secrecy in the act of voting or, at the voter's
election, provides for open voting;
(2) It is constructed to ensure that
no person, except in instances of open voting as provided
in this section,
can see or know for whom any the contents of a ballot may not be seen or known by
anyone other than the voter
who has voted or is voting;
(3) It permits each voter to vote at any election for all persons and offices for whom and
which he or she is lawfully entitled to vote, whether or not the name of any person appears on a
ballot
or ballot label as a candidate; and it permits each voter to vote for as many persons for an
office as he or she is lawfully entitled to vote for; and to vote for or against any question upon which
he or she is lawfully entitled to vote. The automatic tabulating equipment used in electronic voting
systems is to reject choices recorded on any ballot if the number of choices exceeds the number to
which a voter is entitled;
(4) It permits each voter to
deposit, write in,
affix upon a ballot, card, envelope or other
medium to be provided for that purpose, ballots containing the names of persons for whom he or she
desires to vote whose names do not appear upon the ballots or ballot labels;
(5) It permits each voter to change his or her vote for any candidate and upon any question
appearing upon the ballots or ballot labels up to the time when his or her ballot is deposited in the
ballot box or his or her ballot is cast by electronic means;
(6) It contains
a program deck consisting of cards that are sequentially numbered or
consisting of a computer program disk, diskette, tape or other programming media containing
sequentially numbered program instructions and coded or otherwise protected from tampering or
substitution of the media or program instructions
by of unauthorized persons and capable of
tabulating all votes cast in each election;
(7) It contains two standard validation test decks approved as to form and testing capabilities
by the State Election Commission;
(8) It correctly records and counts accurately all votes cast
each for the candidate and for and
against each question appearing upon the ballots
or ballot labels;
(9) It permits each voter at any election, other than
a primary
elections election, by one mark
or punch to vote a straight party ticket, as provided in section five, article six of this chapter
, by one
mark or punch;
(10) It permits
each a voter in
a primary
elections election to
: (A) vote only for the candidates of the party for which
he or she the voter is legally permitted to vote
; (B) vote for the candidates, if
any, for nonpartisan nominations or election; and (C) vote on public questions; and precludes
him or
her the voter from voting for any candidate seeking nomination by any other political party
unless that
political party has determined that the voter may participate in its primary election permits him or her
to vote for the candidates, if any, for nonpartisan nomination or election and permits him or her to
vote on public questions;
(11) It, where applicable, is provided with means for sealing or electronically securing the vote
recording device to prevent its use and to prevent
tampering with ballot labels, both before the polls
are open or before the operation of the vote recording device for an election is begun and immediately
after the polls are closed of after the operation of the vote recording device for an election is
completed;
(12) It has the capacity to contain the names of candidates constituting the tickets of at least
nine political parties and accommodates the wording of at least fifteen questions;
(13) (A) Direct recording electronic voting machines must generate a paper copy of each
voter's
votes vote that will be automatically kept within a storage container, that is locked, closely
attached to the direct recording electronic voting machine, and inaccessible to all but authorized
voting officials, who will handle such storage containers and such paper copies contained therein in
accordance with section nineteen of this article.
(B) The paper copy of the voter's vote shall be generated at the time the voter is at the voting
station using the direct recording electronic voting machine.
(C) The voter may examine the paper copy visually or through headphone readout, and may
accept or reject the printed copy.
(D) The voter may not touch, handle or manipulate the printed copy manually in any way.
(E) Once the printed copy of the voter's votes is accepted by the voter as correctly reflecting
the voter's intent, but not before, it will automatically be stored for recounts or random checks and
the electronic vote will be cast within the computer mechanism of the direct recording electronic voting machine.
(F) Direct recording electronic voting machines with a mandatory paper copy shall be
approved by the Secretary of State. The Secretary of State may promulgate rules and emergency rules
to implement or enforce this subsection pursuant to the provisions of section five, article three,
chapter twenty-nine-a of this code.
(14) Where vote recording devices are used, they shall:
(A) Be durably constructed of material of good quality and in a workmanlike manner and in
a form which makes it safely transportable;
(B) Be constructed with frames for the placing of ballot labels that the labels upon which are
printed the names of candidates and their respective parties, titles of offices office and wording of
questions are reasonably protected from mutilation, disfigurement or disarrangement or are
constructed to ensure that the screens upon which appear the names of the candidates and their
respective parties, titles of offices and wording of questions are reasonably protected any from
modification;
(C) (B) Bear a number that will identify it or distinguish it from any other machine;
(D) (C) Be constructed to ensure that a voter may easily learn the method of operating it and
may expeditiously cast his or her vote for all candidates of his or her choice and upon any public
question;
(E) (D) Be accompanied by a mechanically or electronically operated instruction model which
shows the arrangement of ballot labels, party columns or rows, and questions;
(F) (15) For electronic voting systems that utilize a screen upon which votes may be recorded
by means of a stylus or by means of touch:
(A) Be constructed to provide for the direct electronic recording and tabulating of votes cast
in a system specifically designed and engineered for the election application;
(G) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch,
(B) Be constructed to prevent any voter from voting for more than the allowable number of
candidates for any office, to include an audible or visual signal, or both, warning any voter who
attempts to vote for more than the allowable number of candidates for any office or who attempts to
cast his or her ballot prior to its completion and are constructed to include a visual or audible
confirmation, or both, to the voter upon completion and casting of the ballot;
(H) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch,
(C) Be constructed to present the entire ballot to the voter, in a series of sequential pages, and
to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and
to allow the voter to review and change all ballot choices prior to completing and casting his or her
ballot;
(I) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch,
(D) Be constructed to allow election commissioners to spoil a ballot where a voter fails to
properly cast his or her ballot, has departed the polling place and cannot be recalled by a poll clerk
to complete his or her ballot;
(J) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch,
(E) Be constructed to allow election commissioners, poll clerks, or both, to designate, mark
or otherwise record provisional ballots;
(K) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch,
(F) Consist of devices which are independent, nonnetworked voting systems in which each
vote is recorded and retained within each device's internal nonvolatile electronic memory and contain
an internal security, the absence of which prevents substitution of any other device;
(L) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means of touch,
(G) Store each vote in no fewer than three separate, independent, nonvolatile electronic
memory components and that each device contains comprehensive diagnostics to ensure that failures
do not go undetected;
(M) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch,
(H) Contain a unique, embedded internal serial number for auditing purposes for each device
used to activate, retain and record votes;
(N) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch,
(I) Be constructed to record all preelection, election and post-election activities, including all
ballot images and system anomalies, in each device's internal electronic memory and are to be
accessible in electronic or printed form;
(O) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch,
(J) Be constructed with a battery backup system in each device to, at a minimum, prevent the
loss of any votes, as well as all preelection, election and post-election activities, including all ballot
images and system anomalies, stored in the device's internal electronic memory and to allow voting
to continue for two hours of uninterrupted operation in case of an electrical power failure; and
(P) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch,
(K) Be constructed to prevent the loss of any votes, as well as all preelection, election and
post-election activities, including all ballot images and system anomalies, stored in each device's
internal electronic memory even in case of an electrical and battery power failure.
§3-4A-20. Independent voting in primary elections Non-affiliated voters in primary elections.
If at any primary elections, nonpartisan candidates for office and public questions are submitted to the voters on which persons registered as 'independent' are entitled to vote, as provided
in section eighteen article two of this chapter, the Unless voter not affiliated with a party, is permitted
to participate in the primary election of a political party, the following provisions apply to voters, not
affiliated with a party, in primary elections that include non-partisan candidates or public questions:
(1) Election officers shall provide a vote recording device, where applicable, or the appropriate
ballot to be marked by an electronically sensible pen or ink, or by means of a stylus or by means of
touch,
or by other electronic means, so that
independent voters
not affiliated with a party may vote
only those portions of the ballot relating to the nonpartisan candidates and the public questions
submitted, or shall provide a ballot containing only provisions for voting for those candidates and
upon those issues submitted common to the ballots provided to all voters regardless of political party
affiliation, or both.
(2) In counties utilizing electronic voting systems in which votes are recorded by perforating,
if vote recording devices are not available for the
independent voters
not affiliated with a party,
provisions are to be made for sealing the partisan section or sections of the ballot or ballot labels on
a vote recording device using temporary seals, thus permitting the
independent voter
not affiliated
with a party to vote for the nonpartisan section or sections of the ballot or ballot labels.
(3) After
the independent a voter
not affiliated with a party has voted,
the temporary seals may
be removed and the device may then be used by partisan voters."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2438 - "A Bill to amend and reenact §3-1-2 of the Code of West
Virginia, 1931, as amended; and to amend and reenact §3-4A-9 and §3-4A-20 of said code, all
relating to independent voters; defining independent voters; reforming conflicts in voting procedures;
and making technical corrections throughout."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
Roll No. 256), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2348) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the
House of Delegates, as follows:
Com. Sub. for H. B. 2532, Zipline Responsibility Act.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new
article, designated §20-3C-1, §20-3C-2, §20-3C-3, §20-3C-4 and §20-3C-5, all to read as follows:
ARTICLE 3C. ZIPLINE/CANOPY TOUR RESPONSIBILITY ACT.
§20-3C-1. Legislative purpose.
(a) The Legislature finds that:
(1) The sport of ziplining and canopy touring is practiced by a large number of citizens of
West Virginia and also attracts to West Virginia a large number of nonresidents, significantly
contributing to the economy of West Virginia; and
(2) There are inherent risks in the sport of ziplining and canopy touring which should be
understood by each participant and which are essentially impossible to eliminate by the zipline or
canopy tour operator.
(b) The purpose of this article is to define those areas of responsibility and affirmative acts
for which zipline and canopy tour operators shall be liable for loss, damage or injury and those risks
which the participant expressly assumes responsibility and for which there can be no recovery.
§20-3C-2. Definitions.
As used in this article:
(1) 'ACCT''means the Association for Challenge Course Technology, Seventh Edition, or
substantially equivalent standards.
(2) 'Canopy tours' means a facility not located in an amusement park or carnival which is a
supervised or guided educational or recreational activity including, but not limited to, beams, bridges,
cable traverses, climbing walls, nets, platforms, ropes, swings, towers and ziplines, which may be
installed on or in trees, poles, portable structures or buildings, or be part of self-supporting structures.
(3) 'Participant' means any person who engages in activities on a zipline or canopy tour
individually or in a group activity supervised by a zipline or canopy tour operator.
(4) 'Zipline' means a cable or rope line suspended between support structures enabling a
participant attached to a pulley to traverse from one point to another.
(5) 'Zipline operator' means any person, partnership, corporation or other commercial entity
and their agents, officers, employees or representatives, who has operational responsibility for any
zipline or canopy tour.
§20-3C-3. Duties of zipline operators.
Every zipline operator shall:
(1) Construct, install, maintain and operate all ziplines and canopy tours in accordance with
ACCT or substantially equivalent standards;
(2) Ensure that ziplines and canopy tours are inspected annually by a professional inspector
who meets the qualifications set forth in ACCT or substantially equivalent standards;
(3) Train employees operating ziplines and canopy tours in accordance with national standards
associated with their profession;
(4) Procure and maintain commercial general liability insurance against claims for personal
injury, death and property damages occurring upon, in or about the zipline or canopy tour which
affords protection to the limit of not less than $1 million for injury or death of a single person, to the
limit of $1 million for any one accident or occurrence, and to the limit of not less than $100,000 for
property damage; and
(5) Maintain records for a period of at least three years from the date of the creation of the
record of:
(A) Proof of insurance;
(B) Inspection reports;
(C) Maintenance records; and
(D) Participant acknowledgment, assumption of risks and release of liability.
§20-3C-4. Responsibilities of participants; assumption of risks; prohibited acts.
(a) Each participant has the sole individual responsibility for knowing the range of his or her
own ability to negotiate a zipline or canopy tour, and it is the duty of each participant to participate
as instructed by the zipline operator to participate within the limits of his or her own ability.
(b) Each participant expressly assumes the risk of and legal responsibility for any injury, loss
or damage to persons or property which results from participation in the sport of ziplining or canopy
touring, including, but not limited to, any injury, loss or damage caused by variation in terrain,
weather conditions, rocks, trees or other forms of forest growth or debris
: Provided, That the injury,
loss or damage is not caused by the reckless or willful misconduct of the zipline operator or an agent
or employee of the zipline operator.
(c) No participant may:
(1) Use a zipline or canopy tour without the authority, supervision and guidance of the zipline
operator;
(2) Drop, throw or expel any object from a zipline or canopy tour except as authorized by the
operator;
(3) Perform any act which interferes with the running or operation of a zipline or canopy tour;
or
(4) Engage in any harmful conduct, or willfully or negligently engage in any type of conduct
with contributes to cause injury to any person.
§20-3C-5. Liability of zipline operators.
(a) A zipline operator may liable for injury, loss or damage caused by failure to follow the
duties set forth in subsection (a), section three of this article where the violation of duty is causally
related to the injury, loss or damage suffered.
(b) A zipline operator is not liable for any injury, loss or damage caused by the negligence of
any person who is not an agent or employee of the zipline operator."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2532 -"A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §20-3C-1, §20-3C-2, §20-3C-3, §20-3C-4 and §20-3C-5,
all relating to zipline and canopy tour regulation; establishing legislative purpose; defining terms;
setting forth duties of zipline and canopy tour operators; requiring liability insurance; setting forth
record-keeping requirements; establishing responsibilities of participants; providing for assumption
of risks; setting forth prohibited acts; and defining liability of zipline and canopy tour operators."
On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate
amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect from passage, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 2626, Authorizing the Department of Commerce to promulgate legislative rules.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page six, section three, line twenty-nine, after "5.1(f)", by changing the period to a
semicolon and inserting the following:
And,
On page eight, subsection 7.3, by striking out "25-5" and inserting in lieu thereof "25-4".
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
(Roll No. 257), and there were--yeas
82, nays 17, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Carmichael, Cowles, Duke, Householder, Ireland, Lane, J.
Miller, Overington, Romine, Savilla, Snuffer, Sobonya, Storch and Walters.
Absent and Not Voting: Crosier.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2626) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 258), and there were--yeas 85, nays
14, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Carmichael, Cowles, Duke, Gearheart, Householder, Howell,
Ireland, J. Miller, Savilla, Snuffer, Sobonya and Walters.
Absent and Not Voting: Crosier.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2626) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with a title amendment, a bill
of the House of Delegates, as follows:
Com. Sub. for H. B. 2750, Adding consideration of sexual assault in issuing an order to
temporarily or permanently end a parent-child relationship.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate title amendment was reported by the Clerk:
Com. Sub. for H. B. 2750 - "A Bill to amend and reenact §49-6-3 and §49-6-5 of the Code
of West Virginia, 1931, as amended, all relating to making the commission of sexual assault or sexual
abuse against certain persons a basis for denying someone temporary or permanent custody of a minor
child or children."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate title
amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
(Roll No. 259), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2750) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect from passage, a bill of the House of Delegates as follows:
H. B. 2765, Relating to the retirement plans administered by the West Virginia Consolidated
Public Retirement Board.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the
House of Delegates, as follows:
H. B. 2989, Creating a process by which the West Virginia Racing Commission may grant
stay requests.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page six, section sixteen, line ninety-four, after the word "decision" by inserting the words
"that meets the requirements of this subsection".
And,
By amending the title of the bill to read as follows:
H. B. 2989 - "A Bill to amend and reenact §19-23-16 of the Code of West Virginia, 1931, as
amended, relating to addressing appeals from decisions of stewards or judges generally; adding
references to suspensions or revocations made by judges; providing a process for seeking a stay
pending appeal and authority for granting such a request; providing that hearing examiners appointed
by the Racing Commission may hear appeals; creating requirements for hearing examiner
recommended decision; and providing options for the Racing Commission following a hearing
examiner recommended decision."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
(Roll No. 260), and there were--yeas
92, nays 7, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Ellem, Householder, Ireland, Snuffer, Sobonya and Walters.
Absent and Not Voting: Crosier.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2989) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect from passage, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 3064, Finding and declaring certain claims against the state and its
agencies to be moral obligations of the state.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page twenty-seven, line four hundred eighty-six, by striking out "$100.00" and inserting
in lieu thereof "$174.60".
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
(Roll No. 261), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3064) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 262), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3064) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect from passage, a bill of the House of Delegates, as follows:
H. B. 3205, Reducing jail sentence for successful completion of education and rehabilitation
programs.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY.
§31-20-5d. Good time credit.
(a) Any person convicted of a criminal offense and sentenced to confinement in a regional jail
is to be granted reduction of his or her sentence for good conduct in accordance with this section.
(b) The reduction of sentence or good time is to be deducted from the fixed term of
determinate sentences. An inmate under two or more consecutive sentences is allowed good time as
if the several sentences, when the maximum terms thereof are added together, were all one sentence.
(c) Every inmate sentenced to a regional jail for a term of confinement exceeding six months
who, in the judgment of the administrator of the regional jail facility, faithfully complies with all rules
of the regional jail during his or her term of confinement is entitled to a deduction of five days from
each month of his or her sentence. No inmate may be granted any good time under the provisions of
this section for time spent on bond or for time served on parole or in any other status in which he or
she is not physically incarcerated.
(d) Each inmate sentenced to a term of confinement in a regional jail facility who participates
in a general equivalency diploma program is to be granted three days of good time for the completion
of each educational literacy level, as demonstrated by achieving a passing score on standardized tests required by the department of education, and ten days of good time for completion of the
requirements for a general equivalency diploma or high school diploma.
(e) Each inmate sentenced to a term of confinement in a regional jail in excess of six months
shall be granted
one day five days of good time for successful completion
of for each of the following
rehabilitation programs: Domestic violence, parenting, substance abuse, life skills,
alcohol abuse,
and anger management or any special rehabilitation or educational program designated by the
executive director. A maximum of
five thirty days good time shall be granted for successful
completion of
five all six programs.
The fee for each class is $25 which is due upon enrollment. If
an inmate is unable to pay a fee or fees in full at the time of enrollment, it may be paid by deductions
from his or her inmate trust account, subject to the provisions of subsection (f), section thirty-one of
this article. No more than one half of the amount in the inmate trust account during any one week
period may be so deducted.
(f) The administrator of a regional jail facility may, with the approval of the Governor, allow
extra good time for inmates who perform exceptional work or service.
(g) The Regional Jail and Correctional Facility Authority shall promulgate disciplinary rules
for the regional jail facilities. The rules are to describe prohibited acts, procedures for charging
individual inmates for violations of the rules and for determining the guilt or innocence of inmates
charged with the violations, and sanctions that may be imposed for the violations. For each violation
by an inmate, any part or all of the good time that has been granted to the inmate may be forfeited and
revoked by the administrator of the regional jail facility. The administrator, when appropriate and
with approval of the executive director may restore any good time forfeited for a violation of the rules
promulgated or adopted pursuant to this subsection.
(h) Each inmate sentenced to a term of confinement in a regional jail in excess of six months
shall, within seventy-two hours of being received into a regional jail, be given a copy of the
disciplinary rules, a statement setting forth the term or length of his or her sentence or sentences, and
the time of his or her minimum discharge."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3205 - "A Bill to amend and reenact §31-20-5d of the Code of West
Virginia, 1931, as amended, relating to providing persons convicted of a criminal offense and
sentenced to confinement in a regional jail a reduction in sentence for successful completion of
education and rehabilitation programs; increasing the time permitted by a sentence reduction from
one day to five days per program; adding an alcohol abuse program to the programs offered;
increasing the total time permitted by sentence reduction to thirty days; and establishing an enrollment
fee for each program."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
(Roll No. 263), and there were--yeas
86, nays 13, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Cowles, Householder, Howell, Lane, C. Miller, Savilla, Sigler,
Sobonya, Sumner, Walker and Walters.
Absent and Not Voting: Crosier.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3205) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 264), and there were--yeas 86, nays
13, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Cowles, Gearheart, Householder, Howell, C. Miller, Savilla, Sigler,
Sobonya, Sumner, Walker and Walters.
Absent and Not Voting: Crosier.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3205) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Resolutions Introduced
Delegates Mahan, Perdue, Hatfield, Barill, Ferns, D. Campbell, Guthrie, Perry, Rodighiero,
Phillips, Staggers, Border, Ellington and Rowan offered the following resolution, which was read
by its title and referred to the Committee on Rules:
H. C. R. 144 - "Requesting the Joint Committee on Government and Finance study the
feasibility of requiring the West Virginia Department of Health and Human Resources to annually
review rates of its various programs pay to health care providers."
Whereas, Medicaid spending is approaching four billion dollars annually and consumes a
growing portion of West Virginia's annual budget; and
Whereas, The Department of Health and Human Resources reimburses health care providers
millions of dollars annually outside of the Medicaid program; and
Whereas, Federal health care reform is expected to add over 130,000 West Virginia residents
to the Medicaid program; and
Whereas, The Department of Health and Human Resources and Medicaid reimburse
providers significantly below the cost of providing services; and
Whereas, A number of providers have taken legal action against the state related to
inadequate reimbursement rates and other providers are refusing to accept Medicaid patients; and
Whereas, Medicaid rates below the cost of delivering services increase the healthcare costs
paid by insured and uninsured West Virginians through cost shifting; and
Whereas, The Legislature needs detailed provider rate and cost information to effectively
plan, develop and manage future budgets; and
Whereas, Agencies working in the environment where expenses are changing and currently
rates are not based upon the United States Department of Labor, the seasonally adjusted employment
cost index; and
Whereas, An annual report would be beneficial in that the State could better determine if rate
setting formulas and the processes are adequate to ensure the availability of the adequate and
appropriate availability of services for the clients served; and
Whereas, This report could provide specific information on, but not be limited to, the rates
paid to: physicians; hospitals; primary care centers; child care providers; behavioral health providers;
MR/DD waiver providers; foster care providers; residential treatment and child care residential
programs; emergency medical services agencies; chiropractors; dentists; physical therapists; day care
services and homeless shelters; and
Whereas, The review may also consider the impact rates are having on access to care, cost
shift to other payers, increased inflationary pressures faced by health care providers and the State's
limited resources while also comparing rates paid by the West Virginia Department of Health and
Human Resources and other major payers in the State to the degree possible and applicable; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to conduct a study
on requiring the West Virginia Department of Health and Human Resources to annually review rates
of its various programs pay to health care providers, the potential advantages, disadvantages and
barriers; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Legislature, on the first day of the regular session, 2012 on its findings, conclusions and
recommendations together with drafts of any legislation to effectuate its recommendations; and, be
it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Delegates Sobonya, C. Miller, Howell, Ireland, Kump, Savilla, Sigler, Snuffer and Sumner offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 145 - "Requesting the Joint Committee on Government and Finance to conduct a
broad study of the rule making process used throughout the United States; evaluate the process
currently used in West Virginia; and propose legislation consistent with the committee's findings."
Whereas, The Legislature is committed to a fair and accountable rule-making process which
is free for improper influence; and
Whereas, A broad, national examination of rule-making in states around the country was
conducted by the New York University School of Law's Institute for Policy Integrity; and
Whereas, The report was critical of the rule-making process used in West Virginia,
concluding "the state has no significant requirement for cost-benefit analysis, so regulatory decisions
are often made in a vacuum, with much of the information (and sometimes even the regulation) itself
coming from lobbyists"; and
Whereas, Periodic evaluation of the effectiveness and efficiency of government policies and
procedures are desirable, especially when questions are raised regarding whether those policies and
procedures operate in a manner consistent with their goals; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to conduct a broad
study of the rule-making process used throughout the United States; evaluate the process currently
used in West Virginia; and propose legislation consistent with the committee's findings; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2012, 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.
Delegates Sobonya, C. Miller, Anderson, Andes, Howell, Ireland, Kump, J. Miller, Sigler,
Snuffer, Sumner and Walker offered the following resolution, which was read by its title and referred
to the Committee on Rules:
H. C. R. 146 - "Requesting the Joint Committee on the Judiciary to study the existence and
extent of human trafficking in the State of West Virginia and propose legislation consistent with the
committee's findings."
Whereas, Important national and international legislation was passed in 2000 that launched
a concerted effort to research and assess the extent of human trafficking across the world; and
Whereas, Included in that legislation was the Trafficking Victims Protection Act which was
passed by the United States Congress and the Palermo Protocol which was adopted by the United
Nations and provided for the criminalization of all acts of trafficking including forced labor, slavery
and slavery-like practices; and
Whereas, Since 2000, the world has made great strides in combating this ultimate
exploitation both in terms of what is known about this crime and how to respond. Nevertheless,
trafficking of humans is tied with arms dealing as the second largest criminal industry in the world
and is the fastest growing; and
Whereas, According to UNICEF, as many as two million children are subjected to
prostitution in the global commercial sex trade; and
Whereas, Through its state department, the United States has recently acknowledged that,
like other countries, it has a serious problem with human trafficking for both labor and commercial
sexual exploitation; and
Whereas, The United States is not only a destination country for thousands of men, women
and children trafficked largely from Mexico and East Asia, as well as countries in South Asia, Central
America, Africa and Europe, for the purposes of sexual and labor exploitation but, according to the
2010 Trafficking in Persons (TIP) Report, the United States is also a "source country for people held
in servitude"; and
Whereas, The TIP report found that in America, men, women and children were subject to trafficking for "forced labor, debt bondage and forced prostitution"; and
Whereas, The U.S. Central Intelligence Agency has estimated that fifty thousand people are
trafficked into or transited through the U.S.A. annually as sex slaves, domestics, garment and
agricultural slaves; and
Whereas, Human trafficking is a human rights abuse that represents a global problem and
imposes on everyone the responsibility to eradicate it; and
Whereas, As part of this global effort, this state has both a moral and a legal responsibility
to investigate and implement strategies to detect and eradicate human trafficking within its borders;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on the Judiciary study the existence and extent of human trafficking
in the State of West Virginia and propose legislation consistent with the committee's findings; and,
be it
Further Resolved, That the Joint Committee on the Judiciary report to the regular session of
the Legislature, 2012, on its conclusions and recommendations, together with drafts of any legislation
necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Delegates Cann, Howell, Iaquinta, Craig, Ennis, Ferro, Fleischauer, Givens, Hatfield, Pethtel,
Smith, Rowan, Walters, Ashley, Nelson, O'Neal, Pasdon, Swartzmiller, Longstreth, Paxton, Staggers,
Stephens, Azinger and Armstead offered the following resolution, which was read by its title and
referred to the Committee on Rules:
H. C. R. 147 - "Requesting the Joint Committee on Government and Finance study the
feasibility of providing tax relief for members of and spouses of members of the National Guard and
U. S. Armed Forces Reserves upon return from deployment in areas of armed conflict or from deployment to duty assignments supporting our forces located in areas of armed conflict."
Whereas, As the United States enters its ninth year of military action in Afghanistan and Iraq,
multiple deployments of West Virginians serving in the National Guard and the United States Armed
Forces continue to be deployed to areas of armed conflict or deployed to duty assignments supporting
our forces located in areas of armed conflict; and
Whereas, Between January 1, 2009 and March 1, 2011, the West Virginia National Guard
has deployed 1588 members to active duty, many of whom were deployed to areas of armed conflict
or deployed to duty assignments supporting our forces located in areas of armed conflict, most of
whom are state residents; and
Whereas, Many members of units of the United States Armed Forces Reserves located in
West Virginia as well as members of regular active duty units of the United States Armed Forces
whose home of record is West Virginia have also been deployed to areas of armed conflict or
deployed to duty assignments supporting our forces located in areas of armed conflict; and
Whereas, These military deployments of West Virginians during the longest wartime period
in U. S. history has added considerable strain to military family budgets that are already shaken by
the worst economic downturn in over 70 years; and
Whereas, Those West Virginians who have volunteered and have endured great financial as
well as other personal sacrifice in the service to this great state and country should be acknowledged
by this state and its citizens who are served by them; and
Whereas, Providing tax relief for these West Virginia service men and women and their
families would be a fitting and proper way to recognize their service and to assist them in the cost and
expense of transitioning back into civilian life upon their return from deployment; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
feasibility of providing tax relief for members of and spouses of members of the National Guard and
U. S. Armed Forces Reserves upon return from deployment in areas of armed conflict or deployment to duty assignments supporting our forces located in areas of armed conflict; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Legislature, on the first day of the regular session, 2012, on its findings, conclusions and
recommendations, together with drafts of legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expense necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Delegates Miley and Elem offered the following resolution, which was read by its title and
referred to the Committee on Rules:
H. C. R. 148 - "Requesting the Joint Committee on Government and Finance study the laws
governing the processing of probated estates."
Whereas, West Virginia is among the states in the nation with the oldest average population
and many of West Virginia's elderly population have estates that are of relatively moderate to
minimal value; and
Whereas, The heirs of many West Virginians have relocated outside the state for purposes
of employment; and
Whereas, The process of settling a probated estate is often a lengthy process and often such
length is out of proportion to the actual value of the estate; and
Whereas, It is the desire of the legislature and of state and local governing bodies to ensure
that the heirs and legatees of probated estates should be able to settle such estates in as timely a
manner as possible; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on the Judiciary is hereby requested to study the laws governing the
settlement of probated estates; and, be it
Further Resolved, That the Joint Committee on the Judiciary report to the Regular Session of the Legislature, 2012, 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.
Delegates Manypenny, Mr. Speaker, Mr. Thompson, Boggs, Brown, Doyle, Fleischauer,
Guthrie, Hamilton, Hatfield, Lawrence, Longstreth, Mahan, Moore, Moye, M. Poling, Poore, Shaver,
Smith, Staggers, Talbott, Walker and Wells offered the following resolution, which was read by its
title and referred to the Committee on Rules:
H. C. R. 149 - "Urging the West Virginia Public Service Commission act to review the
condition of the Pruntytown to Mt. Storm 500kV transmission line owned by Monongahela Power,
a subsidiary of FirstEnergy, and order the rebuilding and reconductoring of that transmission line as
soon as is practical."
Whereas, In its final order approving Allegheny Energy's TrAIL transmission line in August
2008, the West Virginia Public Service Commission ordered Allegheny Energy, now FirstEnergy, to
submit a report on the condition of the Pruntytown to Mt. Storm 500kV transmission line within one
year from the energizing of the TrAIL line; and
Whereas, The TrAIL line will be in operation by June 2011; and
Whereas, The Pruntytown to Mt. Storm transmission line is a key element in the West
Virginia transmission grid; and
Whereas, The Pruntytown to Mt. Storm transmission line has been identified as the site of
reliability concerns by grid operator PJM Interconnection; and
Whereas, The West Virginia Public Service Commission has been charged, in statute, by this
Legislature to act in the best interests of West Virginia electric customers and citizens; therefore, be
it
Resolved by the Legislature of West Virginia:
That the Legislature of West Virginia urges the West Virginia Public Service Commission to
insure the reliability of West Virginia's transmission system by proceeding as quickly as possible with
a review of the condition of the Pruntytown to Mt. Storm transmission line and encouraging
Monongahela Power and its parent company, FirstEnergy to rebuild this line, if the Commission's
study concludes that such construction is needed; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby directed to forward a
certified copy of this resolution to the Commissioners of the West Virginia Public Service
Commission.
Delegates Boggs, Mr. Speaker, Mr. Thompson, and Delegates Anderson, Andes, Armstead,
Ashley, Azinger, Barill, Barker, Border, Brown, Butcher, D. Campbell, T. Campbell, Cann,
Canterbury, Caputo, Carmichael, Cowles, Craig, Crosier, Doyle, Duke, Ellem, Ellington, Ennis,
Evans, Ferns, Ferro, Fleischauer, Fragale, Frazier, Gearheart, Givens, Guthrie, Hall, Hamilton,
Hartman, Hatfield, Householder, Howell, Hunt, Iaquinta, Ireland, Jones, Kominar, Kump, Lane,
Lawrence, Longstreth, Mahan, Manchin, Manypenny, Marshall, Martin, Michael, Miley, C. Miller,
J. Miller, Moore, Morgan, Moye, Nelson, O'Neal, Overington, Pasdon, Paxton, Perdue, Perry,
Pethtel, L. Phillips, R. Phillips, Pino, D. Poling, M. Poling, Poore, Reynolds, Rodighiero, Romine,
Rowan, Savilla, Shaver, Sigler, Skaff, Smith, Snuffer, Sobonya, Staggers, Stephens, Storch, Stowers,
Sumner, Swartzmiller, Talbott, Varner, Walker, Walters, Wells, White and Williams offered the
following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 38 - "Honoring the forty-eight years of service and career of Allen E. Tackett, the
longest serving Adjutant General of the West Virginia National Guard."
Whereas, On January 20, 1963, East Bank High School graduate Allen E. Tackett became
a private in the West Virginia Army National Guard's 16th Special Forces Group; and
Whereas, Adjutant General Tackett earned a degree from the University of Charleston while
serving in the Guard, was commissioned a second lieutenant after Infantry Officer Candidate School
at Fort Benning, Georgia and spent twenty-five years in Special Forces units; and
Whereas, Governor Gaston Caperton appointed Allen E. Tackett as the state's Adjutant
General in 1995 and when Adjutant General Tackett retires on January 31, 2011, with over forty-eight
years of service to his credit, he will be the longest-serving Adjutant General in the nation; and
Whereas, Adjutant General Tackett has overseen more than $780 million in military
construction in West Virginia. He also played a critical role in the 2005 fight to block the Base
Realignment and Closure Commission from closing the 130th Airlift Wing at Yeager Airport; and
Whereas, Members of the state's Army and Air National Guard units serve all over the
world, and in times of trouble, all over West Virginia as well. Those units are highly valued by their
fellow citizens. But even more so by their commander. Adjutant General Tackett cherishes the
introduction of the West Virginia National Guard's tuition assistance program. In return for six-year
enlistment agreements, it helps soldiers and airmen cover college expenses; and
Whereas, Record numbers of West Virginia Army and Air National Guard soldiers made the
transition to active duty status during his tenure, to serve in Iraq, Afghanistan and other global
hotspots; and
Whereas, Adjutant General Tackett has served his country and state with the highest honor
and dignity in both times of peace and times of strife; therefore, be it
Resolved by the House of Delegates:
That the House of Delegates recognizes the service, the accomplishments and the honor that
Adjutant General Tackett has brought upon his state, his country and his fellow soldiers; and, be it
Further Resolved, That the Clerk of the House of Delegates forward certified copies of this
resolution to the West Virginia Army National Guard's 16th Special Forces Group and Adjutant
General Allen E. Tackett.
Special Calendar
Unfinished Business
S. C. R. 14, Requesting DOH name bridge in Whitesville crossing Big Coal River, "CPL
Charles 'Mitchell' Hannah Memorial Bridge"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. C. R. 19, Requesting DOH name WV 3 from intersection with WV 94 to Raleigh County
Line "John Protan Highway"; coming up in regular order, as unfinished business, was reported by the
Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. C. R. 30, Requesting DOH name bridge number 03-119-16.22 "PFC Willie Ray Stollings
Memorial Bridge"; coming up in regular order, as unfinished business, was reported by the Clerk and
adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. C. R. 43, Requesting DOH erect memorial sign on Route 60, at or near Caldwell exit in
Greenbrier County, "Home of Chan Whitt Jr., 'Little Prince' Billiards Champion";coming up in
regular order, as unfinished business, was reported by the Clerk.
An amendment, recommended by the Committee on Rules, was reported by the Clerk and
adopted, amending the resolution on page one, line nine, by striking out the remainder of the
resolution and inserting in lieu thereof the following:
Whereas, Chan Whitt Jr. resided in Caldwell, Greenbrier County, his entire life, being one
of seven children, until his tragic death resulting from a motor vehicle accident in 1994; and
Whereas, Chan Whitt Jr. traveled the world over, playing in national and international
billiards tournaments, including a tournament he played and won in Japan; and
Whereas, Chan Whitt Jr. was featured in several magazines and gave a billiards exhibition
at The Greenbrier Hotel in White Sulphur Springs; and
Whereas, Chan Whitt Jr. was a television celebrity, appearing on ESPN, the Today Show, PM Magazine, Good Morning America, Sports World and That's Incredible; and
Whereas, Chan Whitt Jr. put the little town of Caldwell, West Virginia, on the map with his
enormous talent and his many travels; and
Whereas, It is fitting to honor Chan Whitt Jr., not only for his stellar talents but for the
recognition he brought to the little town of Caldwell, Greenbrier County, and the State of West
Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to have made and be placed
a sign under the community of Caldwell sign on Route 60, at mile marker 165 east bound, and another
sign under the community of Caldwell sign on Route 60, at mile marker 166 west bound, in
Greenbrier County, stating "Home of Chan Whitt Jr."; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby directed to forward a
certified copy of this resolution to the Secretary of the Department of Transportation; to Judy Steele
and to Mr. Chan's father, Chan Whitt Sr.
And,
By amending the title of the resolution to read as follows:
S. C. R. 43 - "Requesting the Division of Highways to erect a sign under the community of
Caldwell sign on Route 60, at mile marker 165 east bound, and another sign under the community
of Caldwell sign on Route 60, at mile marker 166 west bound, in Greenbrier County, stating 'Home
of Chan Whitt Jr.'."
The resolution, as amended, was then adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. C. R. 83, Requesting the Joint Committee on Government and Finance to conduct an audit
of the efficiency of the expenditure of public education dollars"; coming up in regular order, as
unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. C. R. 113, The "PFC Darrell Lee Cabell Memorial Highway"; coming up in regular order,
as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. R. 23, Designating July 18 annually as "Law-Enforcement Officer Memorial Day"; coming
up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein on those requiring the same.
Third Reading
Com. Sub. for S. B. 234, Revising Municipal Economic Opportunity Development District
Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 265),
and there were--yeas 79, nays 20, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Armstead, Ashley, Carmichael, Cowles, Ellington, Gearheart, Householder, Howell,
Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Savilla, Sigler, Snuffer, Sumner and
Walters.
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 234) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 235, Revising County Economic Opportunity Development District Act;
on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 266),
and there were--yeas 90, nays 9, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Armstead, Carmichael, Gearheart, Householder, Howell, Kump, J. Miller, Savilla and
Sigler.
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 235) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 235 - "A Bill to amend and reenact §7-22-3, §7-22-4, §7-22-5, §7-22-7,
§7-22-10, §7-22-12, §7-22-14, §7-22-15, §7-22-17 and §7-22-20 of the Code of West Virginia, 1931,
as amended, all relating to revising the County Economic Opportunity Development District Act
generally; defining the term 'remediation'; including remediation of landfills, former coal or other
mining sites, solid waste facilities or hazardous waste sites as permissible development expenditures
for approved projects; changing standard by which the maximum amounts of reserves that may be
established in the financing of a project are measured; reducing the amount of capital investment
required for project approval; providing that the Development Office cannot approve a project
involving remediation unless all development expenditures proposed within a certain time frame
result in more than $25 million in capital investment in the district; changing 'ordinance' to 'order';
correcting language by changing 'municipality' to 'county'; providing that the Development Office
may not approve a project involving remediation unless the county commission submits clear and
convincing information that the proposed remediation expenditures to be financed with bonds or
notes do not constitute more than twenty-five percent of a project's total development expenditures;
allowing for minor modifications of districts without public hearing or approval by the development
office or the Legislature under certain circumstances; and providing technical and clerical cleanup."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 263, Relating to special plates for testing of vehicles operated by certain
nonprofit corporations; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 267),
and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Gearheart and Kump.
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 263) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 295, Authorizing DHHR promulgate legislative rules; on third reading,
coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 268),
and there were--yeas 72, nays 27, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Ashley, Border, Carmichael, Cowles, Ellington, Evans, Gearheart,
Householder, Howell, Kump, Lane, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan,
Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 295) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 269), and there were--yeas 73, nays
26, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Azinger, Border, Carmichael, Cowles, Ellington, Evans,
Gearheart, Householder, Howell, Kump, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine,
Rowan, Savilla, Sigler, Snuffer, Sobonya, Sumner and Walters.
Absent and Not Voting: Crosier.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 295) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 349, Requiring bittering agent be placed in certain engine coolants and antifreezes; on
third reading, coming up in regular order, was read a third time.
Delegate Howell requested to be excused from voting on the passage of S. B. 349 under the
provisions of House Rule 49.
The Speaker replied that the Delegate was a member of a class of persons possibly to be
affected by the passage of the bill but exhibited no direct personal or pecuniary interest therein, and
refused to excuse the Lady member from voting.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 270),
and there were--yeas 84, nays 15, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Andes, Duke, Gearheart, Howell, Kump, J. Miller, Nelson, O'Neal, Pasdon, Romine,
Rowan, Savilla, Sigler, Snuffer and Sumner.
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 349) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 514, Authorizing legislative rule for Higher Education Policy Commission regarding
authorization of degree-granting institutions; on third reading, coming up in regular order, was read
a third time.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 272), and there were--yeas 95, nays
4, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Kump, J. Miller and Savilla.
Absent and Not Voting: Crosier.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 514) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 538, Creating Learn and Earn Cooperative Education Program; on third reading, coming
up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 273),
and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Householder.
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 538) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Second Reading
S. J. R. 10, Proposing amendment to Constitution designated Repeal The Two Consecutive Term Limitation for Sheriffs Amendment; on second reading, coming up in regular order, was read
a second time and ordered to third reading.
Com. Sub. for S. B. 93, Relating to escape from custody of Division of Juvenile Services;
on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 96, Relating generally to certain county officials; on second reading,
coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 186, Relating to issuing subpoena to aid in criminal investigations
involving certain crimes against minors; on second reading, coming up in regular order, was read a
second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page three, section two, by striking out the section in its entirety
and inserting in lieu thereof the following language:
"
§62-1G-2. Subpoenas for criminal investigations relating to certain offenses against minors for
records concerning an electronic communications system or service or remote
computing service; content; fee for providing information; and limiting liability.
(a) As used in this section:
(1)(A) 'Electronic communication' means any transfer of signs, signals, writing, images,
sounds, data or intelligence of any nature transmitted, in whole or in part, by a wire, radio,
electromagnetic, photoelectronic or photooptical system.
(B) 'Electronic communication' does not include:
(i) Any oral communication;
(ii) Any communication made through a tone-only paging device;
(iii) Any communication from a tracking device; or
(iv) Electronic funds transfer information stored by a financial institution in a communications
system used for the electronic storage and transfer of funds.
(2) 'Electronic communications service' means any service which provides for users the
ability to send or receive wire or electronic communications.
(3) 'Electronic communications system' means any wire, radio, electromagnetic, photooptical
or photoelectronic facilities for the transmission of wire or electronic communications, and any
computer facilities or related electronic equipment for the electronic storage of the communication.
(4) (A) 'Electronic service provider' means a person or entity engaged in the business of
providing computer communications through which a consumer may obtain access to the internet.
(B) 'Electronic service provider' does not include a common carrier if it provides only
telecommunications service.
(5) 'Sexual offense against a minor' means:
(A) A violation or attempted violation of section five,
article eight-d, chapter sixty-one of this code;
(B) A sexual offense or attempted sexual offense committed against a minor in violation of
article eight-b, chapter sixty-one of this code;
(C) The distribution and display or attempted distribution and display of obscene materials
to a minor in violation of section two, article eight-a, chapter sixty-one of this code;
(D) The use or attempted use of obscene matter with the intent to seduce a minor in violation
of section four, article eight-a, chapter sixty-one of this code;
(E) The employment or use or the attempted employment or use of a minor to produce
obscene materials in violation of section five, article eight-a, chapter sixty-one of this code;
(F) The solicitation of a minor by use of a computer in violation of section fourteen-b, article
three-c, chapter sixty-one of this code; or
(G) The use of a minor in filming sexually explicit conduct in violation of sections two and
three, article eight-c, chapter sixty-one of this code.
(6) 'Remote computing service' means the provision to the public of computer storage or processing services by means of an electronic communications system.
(b) When a law-enforcement agency is investigating a sexual offense against a minor, an
offense of stalking under section nine-a, article two, chapter sixty-one of this code when the victim
is a minor or an offense of child kidnapping under section fourteen, article two, chapter sixty-one of
this code, and has reasonable suspicion that an electronic communications system or service or remote
computing service has been used in the commission of a sexual offense against a minor as defined
in this section, an offense of stalking when the victim is a minor or an offense of child kidnapping,
a magistrate or a circuit court judge may issue a subpoena, upon written application on a form
approved by the West Virginia Supreme Court of Appeals, to the electronic communications system
or service or remote computing service provider that owns or controls the internet protocol address,
websites, electronic mail address or service to a specific telephone number, requiring the production
of the following information, if available, upon providing in the subpoena the internet protocol
address, electronic mail address, telephone number or other identifier, and the dates and times the
address, telephone number or other identifier suspected of being used in the commission of the
offense:
(1) Names;
(2) Addresses;
(3) Local and long distance telephone connections;
(4) Records of session times and durations;
(5) Length of service, including the start date and types of service utilized;
(6) Telephone or other instrument subscriber numbers or other subscriber identifiers, including
any temporarily assigned network address; and
(7) Means and sources of payment for the service, including any credit card or bank account
numbers.
(c) A subpoena issued under this section shall state that the electronic communications system
or service or remote computing service provider shall produce only those records listed in subdivisions (1) through (7) of subsection (b) of this section, that are reasonably necessary to the
investigation of the suspected criminal activity or offense as described in the subpoena: Provided, that
the law-enforcement agency may not examine the contents of electronic communications without a
warrant.
(d) (1) An electronic communications system or service or remote computing service provider
that provides information in response to a subpoena issued under this section may charge a fee, not
to exceed the actual cost for providing the information.
(2) The law-enforcement agency conducting the investigation shall pay the fee.
(e) The electronic communications system or service or remote computing service provider
served with or responding to the subpoena shall not disclose the existence of the subpoena or its
response to the subpoena to the account holder identified in the subpoena.
(f) If the electronic communications system or service or remote computing service provider
served with the subpoena does not own or control the internet protocol address, websites or electronic
mail address or provide service for the telephone number that is a subject of the subpoena, the
provider shall:
(1) Notify the investigating law-enforcement agency that it is not the provider of the service;
and
(2) Provide to the investigating law-enforcement agency any information the provider knows,
through reasonable effort, that it has regarding how to locate the electronic service provider that does
own or control the internet protocol address, websites or electronic mail address, or provides service
for the telephone number.
(g) There shall be no cause of action against any electronic communication system or service,
remote computing service provider, electronic service provider or telecommunications carrier or its
officers, employees, agents or other specified persons for providing information, facilities or
assistance in accordance with the terms of the subpoena issued under this section.
(h) Applications for subpoenas authorized by this section may be transmitted to the appropriate court by any means permitted by rules promulgated by the West Virginia Supreme Court
of Appeals.
(j) The West Virginia Supreme Court of Appeals shall prescribe a form to be used by law-
enforcement agencies applying for a subpoena authorized by this section."
The bill was then ordered to third reading.
Com. Sub. for S. B. 193, Relating to law-enforcement certification generally; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu there of the following:
"That §30-29-1, §30-29-2, §30-29-3 and §30-29-5 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that said code be amended by adding thereto a new section,
designated §30-29-11, all to read as follows:
ARTICLE 29. LAW-ENFORCEMENT TRAINING AND CERTIFICATION.
§30-29-1. Definitions.
For the purposes of this article, unless a different meaning clearly appears in the context:
(1) 'Approved law-enforcement training academy' means any training facility which is
approved and authorized to conduct law-enforcement training as provided in this article;
(2) 'Chief executive' means the superintendent of the State Police; the chief natural resources
police officer of the Division of Natural Resources; the sheriff of any West Virginia county; any
administrative deputy appointed by the chief natural resources police officer of the Division of
Natural Resources; or the chief of any West Virginia municipal law-enforcement agency;
(3) 'County' means the fifty-five major political subdivisions of the state;
(4) 'Exempt rank' means any noncommissioned or commissioned rank of sergeant or above;
(5) 'Governor's committee on crime, delinquency and correction' or 'Governor's committee'
means the Governor's committee on crime, delinquency and correction established as a state planning agency pursuant to section one, article nine, chapter fifteen of this code;
(6) 'Law-enforcement officer' means any duly authorized member of a law-enforcement
agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests
and enforce the laws of the state or any county or municipality thereof, other than parking ordinances,
and includes those persons employed as campus police officers at state institutions of higher
education in accordance with the provisions of section five, article four, chapter eighteen-b of this
code, and persons employed by the Public Service Commission as motor carrier inspectors and weight
enforcement officers charged with enforcing commercial motor vehicle safety and weight restriction
laws although those institutions and agencies may not be considered law-enforcement agencies. The
term also includes those persons employed as rangers by the Hatfield-McCoy Regional Recreation
Authority in accordance with the provisions of section six, article fourteen, chapter twenty of this
code, although the authority may not be considered a law-enforcement agency:
Provided, That the
subject rangers shall pay the tuition and costs of training. As used in this article, the term 'law-
enforcement officer' does not apply to the chief executive of any West Virginia law-enforcement
agency or any watchman or special natural resources police officer;
(7) 'Law-enforcement official' means the duly appointed chief administrator of a designated
law-enforcement agency or a duly authorized designee;
(8) 'Municipality' means any incorporated town or city whose boundaries lie within the
geographic boundaries of the state;
(9) 'Subcommittee' or 'law-enforcement
training professional standards subcommittee' means
the subcommittee of the Governor's committee on crime, delinquency and correction created by
section two of this article; and
(10) 'West Virginia law-enforcement agency' means any duly authorized state, county or
municipal organization employing one or more persons whose responsibility is the enforcement of
laws of the state or any county or municipality thereof:
Provided, That neither the Hatfield-McCoy
Regional Recreation Authority, the Public Service Commission nor any state institution of higher education is a law-enforcement agency.
§30-29-2. Law-enforcement professional standards subcommittee.
(a)
A The law-enforcement training subcommittee of the Governor's committee on crime,
delinquency and corrections is
hereby created continued and renamed the Law-Enforcement
Professional Standards Subcommittee. The subcommittee has the following responsibilities:
(1) Review and
administration of administer programs for qualification, training and
certification of law-enforcement officers in the state;
and
(2) Consider applications by law-enforcement officers whose certification is deemed inactive
as a result of his or her separation from employment with a law-enforcement agency.
(b) The subcommittee shall be comprised of
eleven members of the Governor's committee
including one representative of each of the following:
(1) The department of public safety, West Virginia State Police;
(2) law-enforcement section of the Department of Natural Resources;
(3) the West Virginia Sheriffs Association;
(4) the West Virginia Association of Chiefs of Police;
(5) the West Virginia Deputy Sheriffs Association;
(6) the West Virginia
State Lodge Fraternal Order of Police;
(7) the West Virginia Municipal League;
(8) the West Virginia Association of county officials;
(9) the Human Rights Commission;
(10) West Virginia Trooper's Association; and
(11) the public at large.
(b) (c) The subcommittee shall elect a chairperson and a vice chairperson. Special meetings
may be held upon the call of the chairperson, vice chairperson or a majority of the members of the
subcommittee. A majority of the members of the subcommittee constitutes a quorum.
§30-29-3. Duties of the Governor's committee and the subcommittee.
Upon recommendation of the subcommittee, the Governor's committee shall, by or pursuant
to rules proposed for legislative approval in accordance with article three, chapter twenty-nine-a of
this code:
(a) Provide funding for the establishment and support of law-enforcement training academies
in the state;
(b) Establish standards governing the establishment and operation of the law-enforcement
training academies, including regional locations throughout the state, in order to provide access to
each law-enforcement agency in the state in accordance with available funds;
(c) Establish minimum law-enforcement instructor qualifications;
(d) Certify qualified law-enforcement instructors;
(e) Maintain a list of approved law-enforcement instructors;
(f) Promulgate standards governing the qualification of law-enforcement officers and the
entry-level law-enforcement training curricula. These standards shall require satisfactory completion
of a minimum of four hundred classroom hours, shall provide for credit to be given for relevant
classroom hours earned pursuant to training other than training at an established law-enforcement
training academy if earned within five years immediately preceding the date of application for
certification, and shall provide that the required classroom hours can be accumulated on the basis of
a part-time curricula spanning no more than twelve months, or a full-time curricula;
(g) Establish standards governing in-service law-enforcement officer training curricula and
in-service supervisory level training curricula;
(h) Certify organized criminal enterprise investigation techniques with a qualified anti-racial
profiling training course or module;
(i) Establish standards governing mandatory training to effectively investigate organized
criminal enterprises as defined in article thirteen, chapter sixty-one of this code, while preventing
racial profiling, as defined in section ten of this article, for entry level training curricula and for law-
enforcement officers who have not received such training as certified by the Governor's committee as required in this section;
(j) Establish, no later than July 1, 2011, procedures for implementation of a course in
investigation of organized criminal enterprises which includes an anti-racial training module to be
available on the Internet or otherwise to all law-enforcement officers. The procedures shall include
the frequency with which a law-enforcement officer shall receive training in investigation of
organized criminal enterprises and anti-racial profiling, and a time frame for which all law-
enforcement officers must receive such training:
Provided, That all law-enforcement officers in this
state shall receive such training no later than July 1, 2012. In order to implement and carry out the
intent of this section, the Governor's committee may promulgate emergency rules pursuant to section
fifteen, article three, chapter twenty-nine-a of this code;
(k) Certify
or de-certify or reactivate law-enforcement officers, as provided in
section sections
five
and eleven of this article;
(l) Establish standards and procedures for the reporting of complaints and certain disciplinary
matters concerning law-enforcement officers and for reviewing the certification of law-enforcement
officers. These standards and procedures shall provide for preservation of records and access to
records by law-enforcement agencies and conditions as to how the information in those records is to
be used regarding an officer's law-enforcement employment by another law enforcement agency;
(1) The subcommittee shall establish and manage a database that is available to all law-
enforcement agencies in the state concerning the status of any person's certification.
(2) Personnel or personal information not resulting in a criminal conviction is exempt from
disclosure pursuant to the provisions of chapter twenty-nine-b of this code.
(l) (m) Seek supplemental funding for law-enforcement training academies from sources other
than the fees collected pursuant to section four of this article;
(m) (n) Any responsibilities and duties as the Legislature may, from time to time, see fit to
direct to the committee; and
(n) (o) Submit, on or before September 30 of each year, to the Governor, and upon request to individual members of the Legislature, a report on its activities during the previous year and an
accounting of funds paid into and disbursed from the special revenue account established pursuant
to section four of this article.
§30-29-5. Certification requirements and power to decertify or reinstate.
(a) Except as provided in subsections (b) and (g) below,
no a person may
not be employed as
a law-enforcement officer by any West Virginia law-enforcement agency or by any state institution
of higher education or by the Public Service Commission of West Virginia on or after the effective
date of this article unless the person is certified, or is certifiable in one of the manners specified in
subsections (c) through (e) below, by the Governor's committee as having met the minimum entry
level law-enforcement qualification and training program requirements promulgated pursuant to this
article:
Provided, That the provisions of this section do not apply to persons hired by the Public
Service Commission as motor carrier inspectors and weight enforcement officers before July 1, 2007.
(b) Except as provided in subsection (g) below, a person who is not certified, or certifiable in
one of the manners specified in subsections (c) through (e) below, may be conditionally employed
as a law-enforcement officer until certified:
Provided, That within ninety calendar days of the
commencement of employment or the effective date of this article if the person is already employed
on the effective date, he or she makes a written application to attend an approved law-enforcement
training academy. The person's employer shall provide notice, in writing, of the ninety-day deadline
to file a written application to the academy within thirty calendar days of that person's
commencement of employment. The employer shall provide full disclosure as to the consequences
of failing to file a timely written application. The academy shall notify the applicant in writing of the
receipt of the application and of the tentative date of the applicant's enrollment. Any applicant who,
as the result of extenuating circumstances acceptable to his or her law-enforcement official, is unable
to attend the scheduled training program to which he or she was admitted may reapply and shall be
admitted to the next regularly scheduled training program. An applicant who satisfactorily completes
the program shall, within thirty days of completion, make written application to the Governor's committee requesting certification as having met the minimum entry level law-enforcement
qualification and training program requirements. Upon determining that an applicant has met the
requirements for certification, the Governor's committee shall forward to the applicant documentation
of certification. An applicant who fails to complete the training program to which he or she is first
admitted, or was admitted upon reapplication, may not be certified by the Governor's committee
:
Provided, however, That an applicant who has completed the minimum training required by the
Governor's committee may be certified as a law-enforcement officer, notwithstanding the applicant's
failure to complete additional training hours required in the training program to which he or she
originally applied.
(c) Any person who is employed as a law-enforcement officer on the effective date of this
article and is a graduate of the West Virginia basic police training course, the West Virginia State
Police cadet training program, or other approved law-enforcement training academy, is certifiable as
having met the minimum entry level law-enforcement training program requirements and is exempt
from the requirement of attending a law-enforcement training academy. To receive certification, the
person shall make written application within ninety calendar days of the effective date of this article
to the Governor's committee requesting certification. The Governor's committee shall review the
applicant's relevant scholastic records and, upon determining that the applicant has met the
requirements for certification, shall forward to the applicant documentation of certification.
(d) Any person who is employed as a law-enforcement officer on the effective date of this
article and is not a graduate of the West Virginia basic police training course, the West Virginia State
Police Cadet Training Program, or other approved law-enforcement training academy, is certifiable
as having met the minimum entry level law-enforcement training program requirements and is exempt
from the requirement of attending a law-enforcement training academy if the person has been
employed as a law-enforcement officer for a period of not less than five consecutive years
immediately preceding the date of application for certification. To receive certification, the person
shall make written application within ninety calendar days following the effective date of this article to the Governor's committee requesting certification. The application shall include notarized
statements as to the applicant's years of employment as a law-enforcement officer. The Governor's
committee shall review the application and, upon determining that the applicant has met the
requirements for certification, shall forward to the applicant documentation of certification.
(e) Any person who begins employment on or after the effective date of this article as a law-
enforcement officer is certifiable as having met the minimum entry level law-enforcement training
program requirements and is exempt from attending a law-enforcement training academy if the person
has satisfactorily completed a course of instruction in law enforcement equivalent to or exceeding the
minimum applicable law-enforcement training curricula promulgated by the Governor's committee.
To receive certification, the person shall make written application within ninety calendar days
following the commencement of employment to the Governor's committee requesting certification.
The application shall include a notarized statement of the applicant's satisfactory completion of the
course of instruction in law enforcement, a notarized transcript of the applicant's relevant scholastic
records, and a notarized copy of the curriculum of the completed course of instruction. The
Governor's committee shall review the application and, if it finds the applicant has met the
requirements for certification shall forward to the applicant documentation of certification.
(f)
Except as provided in subdivisions (1) through (3) below, any person who is employed
as a law-enforcement officer on or after the effective date of this article and fails to be certified shall
be automatically terminated and no further emoluments shall be paid to such officer by his or her
employer. Any person terminated shall be entitled to reapply, as a private citizen, to the
subcommittee for training and certification, and upon being certified may again be employed as a law-
enforcement officer in this state:
Provided, That if a person is terminated under this subsection
because an application was not timely filed to the academy, and the person's employer failed to
provide notice or disclosure to that person as set forth in subsection (b) of this section, the employer
shall pay the full cost of attending the academy if the person's application to the subcommittee as a
private citizen is subsequently approved.
(1) Any person who is employed as a law-enforcement officer on or after the effective date
of this article and fails to be certified as a result of hardship and/or circumstance beyond his or her
control may apply to the director of a training academy for reentry to the next available academy.
(2) Any person who is employed as a law-enforcement officer on or after the effective date
of this article and fails to be certified as a result of voluntary separation from an academy program
shall be automatically terminated and no further emoluments may be paid to such officer by his or
her employer. Any person terminated as a result of voluntary separation from an academy program
may not be conditionally employed as a law-enforcement officer for a period of two years from the
date of voluntary separation.
(3) Any person who is employed as a law-enforcement officer on or after the effective date
of this article and fails to be certified as a result of dismissal from an academy program shall be
automatically terminated and no further emoluments may be paid to such officer by his or her
employer. Any person terminated as a result of dismissal from an academy program may not be
conditionally employed as a law-enforcement officer for a period of five years from the date of
dismissal and receiving approval from the subcommittee.
(g) Nothing in this article may be construed as prohibiting any governing body, Civil Service
Commission or chief executive of any West Virginia law-enforcement agency from requiring their
law-enforcement officers to meet qualifications and satisfactorily complete a course of law-
enforcement instruction which exceeds the minimum entry level law-enforcement qualification and
training curricula promulgated by the Governor's committee.
(h) The Governor's committee, or its designee, may de-certify or reactivate a law-enforcement
officer pursuant to the procedure contained in this article and legislative rules promulgated by the
Governor's committee.
(h) (i) The requirement of this section for qualification, training and certification of law-
enforcement officers shall not be mandatory during the two years next succeeding
the effective date
of this article July 9, 1981 for the law-enforcement officers of a law-enforcement agency which employs a civil service system for its law-enforcement personnel, nor shall such provisions be
mandatory during the five years next succeeding
the effective date of this article July 9, 1981 for law-
enforcement officers of a law-enforcement agency which does not employ a civil service system for
its law-enforcement personnel:
Provided, That
such these requirements
shall be are mandatory for
all such law-enforcement officers until their law-enforcement officials apply for their exemption by
submitting a written plan to the Governor's committee which will reasonably assure compliance of
all law-enforcement officers of their agencies within the applicable two or five-year period of
exemption.
(i) (j) Any person aggrieved by a decision of the Governor's committee made pursuant to this
article may contest
such the decision in accordance with the provisions of article five, chapter twenty-
nine-a of this code.
(j) (k) Any person terminated from employment for not filing an application to the law-
enforcement training academy within ninety days after commencing employment as a law-
enforcement officer may appeal the termination to the Governor's committee for reconsideration on
an individual basis.
(k) (l) Beginning July 1, 2002 until June 13, 2003, any applicant who has been conditionally
employed as a law-enforcement officer who failed to submit a timely application pursuant to the
provisions of this section, may be conditionally employed as a law-enforcement officer and may
resubmit an application pursuant to subsection (b) of this section to an approved law-enforcement
training academy. If the applicant is accepted, the employer shall pay compensation to the employee
for attendance at the law-enforcement training academy at the rate provided in section eight of this
article.
§30-29-11. Certified law-enforcement officers who are separated from their employment.
(a) The certification of a law-enforcement officer who is separated from their employment
with a West Virginia law-enforcement agency, shall immediately become inactive and remain inactive
until the subcommittee authorizes reactivation of the officer's certification pursuant to the procedure set forth in this section.
(b) Whenever a law-enforcement officer is separated from their employment with a West
Virginia law-enforcement agency, the chief law-enforcement officer of that law-enforcement agency
shall notify the subcommittee of the separation within ten days of the date of separation. The
notification of the separation from employment shall include reason or reasons the applicant's is no
longer employed.
(c) A person whose law-enforcement certification has become inactive pursuant to subsection
(a), may apply to the subcommittee to have his or her certification reactivated.
(d) At the time of their application, an applicant for the reactivation of his or her certification,
whether for employment purposes or otherwise, shall provide the subcommittee with an authorization
for the release of his or her personnel file from the law-enforcement agency with which they were
most recently employed.
(e) Upon receipt of an application for reactivation, the subcommittee shall review the
notification of separation received from the law-enforcement agency with which the applicant was
most recently employed, and unless the notification indicates that the separation from employment
was based on circumstances that would result in the applicant being ineligible for certification
pursuant to section five of this article, the subcommittee shall grant the applicant a temporary
reactivation of his or her certification until a final determination is made pursuant to subsection (i).
(f) The subcommittee may request that the law-enforcement agency from which the applicant
was most recently separated, provide a copy of the applicants personnel file or other information
relevant to the applicant's separation of employment.
(g) Upon receipt of a request by the subcommittee, the chief law-enforcement official of the
law-enforcement agency with which the applicant was most recently employed, or his or her designee,
shall, within eight calendar days, provide the subcommittee with a copy of the applicant's personnel
file or other information relevant to the applicant's separation of employment.
(h) An applicant shall be entitled to a copy of all documents or other materials submitted to the subcommittee related to the application.
(i) Within thirty days of the receipt of the applicant's personnel file or any other information
provided by the law-enforcement agency, the subcommittee shall review the information and issue
a final decision.
(j) For the purpose of making a determination on an application for reactivation, the
subcommittee is authorized to examine witnesses and to subpoena persons, books, records or
documents from law-enforcement agencies in this state.
(k) An application for reactivation shall be approved unless the subcommittee affirmatively
demonstrates, in writing, that the applicant has engaged in conduct that may result in his or her
decertification. Where information available to the subcommittee indicates that the applicant has
engaged in conduct that is in violation of this article or other laws or rules, the application for
reactivation may not be granted.
(l) An applicant whose certification is not reactivated pursuant to a final decision of the
subcommittee, may appeal the final decision of the subcommittee to the Governor's committee.
(m) Nothing in this section shall be construed to require the rehiring of a person by a law
enforcement agency from which he or she was separated, even though the subcommittee authorizes
his or her certification to be reactivated.
(n) A law-enforcement official, or appointing officer, or his or her designee, is immune from
civil liability for providing to the subcommittee any information required or requested by this section.
(o) The provisions of this section apply only to those certified law-enforcement officers who
are separated from employment with a West Virginia law enforcement agency after the effective date
of this section during the 2011 Regular Session of the Legislature."
The bill was then ordered to third reading.
Com. Sub. for S. B. 196, Relating to criminal offenses of robbery and attempted robbery; on
second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-12. Robbery or attempted robbery; penalties.
(a) Any person who commits or attempts to commit robbery by:
(1) Committing violence to the person, including, but not limited to, partial strangulation or
suffocation or by striking or beating; or (2) uses the threat of deadly force by the presenting of a
firearm or other deadly weapon, is guilty of robbery in the first degree and, upon conviction thereof,
shall be imprisoned in a state correctional facility not less than ten years.
(b) Any person who commits or attempts to commit robbery by placing the victim in fear of
bodily injury by means other than those set forth in subsection (a) of this section or any person who
commits or attempts to commit robbery by the use of any means designed to temporarily disable the
victim, including, but not limited to, the use of a disabling chemical substance or an electronic shock
device, is guilty of robbery in the second degree and, upon conviction thereof, shall be confined in
a correctional facility for not less than five years nor more than eighteen years.
(c) If any person: (1) By force and violence, or by putting in fear, feloniously takes, or
feloniously attempts to take, from the person or presence of another any property or money or any
other thing of value belonging to, or in the care, custody, control, management or possession of, any
bank, he shall be guilty of a felony and, upon conviction, shall be confined in the penitentiary not less
than ten nor more than twenty years; and (2) if any person in committing, or in attempting to commit,
any offense defined in the preceding clause (1) of this subsection, assaults any person, or puts in
jeopardy the life of any person by the use of a dangerous weapon or device, disabling chemical
substance or an electronic shock device, he shall be guilty of a felony and, upon conviction, shall be
confined in the penitentiary not less than ten years nor more than twenty-five years.
(a) Any person who commits or attempts to commit robbery and in the course thereof
discharges a firearm or causes a victim or victims serious bodily injury as defined in section one, article eight-b of this chapter is guilty of the felony offense of aggravated robbery and upon conviction
thereof shall be imprisoned in a state correctional facility for a determinate sentence of not less than
twenty years nor more than fifty years.
(b) Any person who commits or attempts to commit robbery and in the course thereof causes
a victim or victims bodily injury as defined in section one, article eight-b of this chapter is guilty of
the felony offense of robbery causing bodily injury and upon conviction, shall be imprisoned in a state
correctional facility for a determinate sentence of not less than ten nor more than forty years.
(c) Any person who commits or attempts to commit robbery by the presentation of a firearm
or other deadly weapon or the pretense of possessing same is guilty of the felony offense of robbery
by the use or threat of a deadly weapon and upon conviction thereof shall be imprisoned in a state
correctional facility for a determinate sentence of not less than ten years nor more than forty years.
(d) Any person who commits robbery or attempted robbery in a manner other than those set
forth in subsections (a), (b), or (c) of this section shall be guilty of a felony and, upon conviction shall
be imprisoned in a state correctional facility for a determinate term of not less than five nor more than
twenty years."
Delegate Andes requested to be shown as having voted "Nay" on the adoption of the
amendment to Com. Sub. for S. B. 196.
The bill was then ordered to third reading.
Com. Sub. for S. B. 213, Relating to crimes using computers, telephones and electronic
devices; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two
, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 3C. WEST VIRGINIA COMPUTER AND ELECTRONIC COMMUNICATIONS
DEVICE CRIME AND ABUSE ACT.
§61-3C-14a. Obscene, anonymous, harassing and threatening communications by computer,
cell phones and electronic communication devices; penalty.
(a) It is unlawful for any person, with the intent to harass or abuse another person, to use a
computer, mobile phone, personal digital assistant or other electronic communication device to:
(1) Make contact with another without disclosing his or her identity with the intent to harass
or abuse;
(2) Make contact with a person after being requested by the person to desist from contacting
them;
(3) Threaten to commit a crime against any person or property; or
(4) Cause obscene material to be delivered or transmitted to a specific person after being
requested to desist from sending such material.
(b) For purposes of this section:
(1) 'Electronic communication device' means and includes a telephone, wireless phone,
computer, pager or any other electronic or wireless device which is capable of transmitting a
document, image, voice, e-mail or text message using such device in an electronic, digital or analog
form from one person or location so it may be viewed or received by another person or persons at
other locations.
(2) 'use of a computer, mobile phone, personal digital assistant or other electronic
communication device' includes, but is not limited to, the transmission of text messages, electronic
mail, photographs, videos, images or other nonvoice data by means of an electronic communication
system, and includes the transmission of such data, documents, messages and images to another's
computer, e-mail account, mobile phone, personal digital assistant or other electronic communication
device.
(3) 'obscene material' means material that:
(A) An average person, applying contemporary adult community standards, would find, taken
as a whole, appeals to the prurient interest, is intended to appeal to the prurient interest, or is pandered
to a prurient interest;
(B) An average person, applying contemporary adult community standards, would find,
depicts or describes, in a patently offensive way, sexually explicit conduct consisting of an ultimate
sexual act, normal or perverted, actual or simulated, an excretory function, masturbation, lewd
exhibition of the genitals, or sadomasochistic sexual abuse; and
(C) A reasonable person would find, taken as a whole, lacks literary, artistic, political or
scientific value.
(b) (c) It is unlawful for any person to knowingly permit a computer, mobile phone or personal
digital assistant or other electronic communication device under his or her control to be used for any
purpose prohibited by this section.
(c) (d) Any offense committed under this section may be determined to have occurred at the
place at which the contact originated or the place at which the contact was received or intended to be
received.
(d) (e) Any person who violates a provision of this section is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not more than $500 or confined in a county or regional jail not
more than six months, or both fined and confined. For a second or subsequent offense, the person
is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or
confined in a county or regional jail for not more than one year, or both fined and confined.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-16. Obscene, anonymous, harassing, repeated and threatening telephone calls; penalty.
(a) It shall be is unlawful for any person with intent to harass or abuse another by means of
telephone to:
(1) Make any comment, request, suggestion or proposal which is obscene; or
(2) Make a telephone call, whether or not conversation ensues, without disclosing his or her
identity and with intent to harass any person at the called number; or
(3) Make or cause the telephone of another repeatedly or continuously to ring, with intent to
harass any person at the called number; or
(4) Make repeated telephone calls, during which conversation ensues, with intent to harass
any person at the called number; or
(5) Threaten to commit a crime against any person or property.
(b) It shall be unlawful for any person to knowingly permit any telephone under his or her
control to be used for any purpose prohibited by this section.
(c) Any offense committed under this section may be deemed to have occurred at the place
at which the telephone call was made, or the place at which the telephone call was received.
(d) Any person who violates any provision of this section shall be is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not more than $500, or imprisoned confined in the county
jail not more than six months, or both fined and imprisoned confined."
The bill was then ordered to third reading.
S. B. 222, Relating to Municipal Police Officers and Firefighters Retirement System; on
second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 238, Redesignating Division of Veterans' Affairs as Department of
Veterans' Assistance; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk and adopted, amending the bill on page two, after the enacting clause by striking out the
enacting section and the remainder of the bill and inserting in lieu thereof the following:
"That §4-10-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that §5F-1-2 of said code be amended and reenacted; that §5F-2-1 of said code be amended and
reenacted; that §6-7-2a of said code be amended and reenacted; that §9A-1-1, §9A-1-2 and §9A-1-4
of said code be amended and reenacted; and that said code be amended by adding thereto four new
sections, designated §9A-1-1a, §9A-1-1b, §9A-1-1c and §9A-1-1d, all to read as follows:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 10. PERFORMANCE REVIEW ACT.
§4-10-8. Schedule of departments for agency review.
(a) Each department shall make a presentation pursuant to the provisions of this article, to the
Joint Standing Committee and the committee during the first interim meeting after the regular session
of the year in which the department is to be reviewed pursuant to the schedule set forth in subsection
(b) of this section.
(b) An agency review shall be performed on one or more agencies under the purview of each
department at least once every six years, commencing as follows:
(1) 2008, the Department of Administration;
(2) 2009, the Department of Education and the Arts, and the Department of Education,
including the Higher Education Policy Commission and the West Virginia Council for Community
and Technical College Education;
(3) 2010, the Department of Revenue and the Department of Commerce;
(4) 2011, the Department of Environmental Protection and the Department of Military Affairs
and Public Safety;
(5) 2012, the Department of Health and Human Resources, including the Bureau of Senior
Services;
and
(6) 2013, the Department of Transportation;
and
(7) 2016, the Department of Veterans' Assistance.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH OF STATE
GOVERNMENT.
ARTICLE 1. GENERAL PROVISIONS.
§5F-1-2. Executive departments created; offices of secretary created.
(a) There are created, within the executive branch of the state government, the following
departments:
(1) Department of Administration;
(2) Department of Education and the Arts;
(3) Department of Environmental Protection;
(4) Department of Health and Human Resources;
(5) Department of Military Affairs and Public Safety;
(6) Department of Revenue;
(7) Department of Transportation;
and
(8) Department of Commerce;
and
(9) Effective July 1, 2011, Department of Veterans' Assistance.
(b) Each department will be headed by a secretary appointed by the Governor with the advice
and consent of the Senate. Each secretary serves at the will and pleasure of the Governor.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the allied, advisory, affiliated or related
entities and funds associated with any agency or board, are incorporated in and administered as a part
of the Department of Administration:
(1) Building Commission provided in article six, chapter five of this code;
(2) Public Employees Insurance Agency provided in article sixteen, chapter five of this code;
(3) Governor's Mansion Advisory Committee provided in article five, chapter five-a of this
code;
(4) Commission on Uniform State Laws provided in article one-a, chapter twenty-nine of this
code;
(5) West Virginia Public Employees Grievance Board provided in article three, chapter six-c
of this code;
(6) Board of Risk and Insurance Management provided in article twelve, chapter twenty-nine
of this code;
(7) Boundary Commission provided in article twenty-three, chapter twenty-nine of this code;
(8) Public Defender Services provided in article twenty-one, chapter twenty-nine of this code;
(9) Division of Personnel provided in article six, chapter twenty-nine of this code;
(10) The West Virginia Ethics Commission provided in article two, chapter six-b of this code;
(11) Consolidated Public Retirement Board provided in article ten-d, chapter five of this code;
and
(12) Real Estate Division provided in article ten, chapter five-a of this code.
(b) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are incorporated in and administered
as a part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter twenty-one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided in article three-a, chapter
twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety provided in article nine, chapter
twenty-one of this code.
(2) Office of Miners' Health, Safety and Training provided in article one, chapter twenty-two-a
of this code. The following boards are transferred to the Office of Miners' Health, Safety and
Training for purposes of administrative support and liaison with the Office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety and Technical Review
Committee provided in article six, chapter twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification provided in article seven, chapter
twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine, chapter twenty-two-a of this
code.
(3) The West Virginia Development Office, which includes the Division of Tourism and the
Tourism Commission, provided in article two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources Commission provided in article one,
chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter nineteen of this code;
(6) Geological and Economic Survey provided in article two, chapter twenty-nine of this code;
and
(7) Workforce West Virginia provided in chapter twenty-one-a of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment
Services Service;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis.
(8) Division of Energy provided in article two-f, chapter five-b of this code.
(c) The Economic Development Authority provided in article fifteen, chapter thirty-one of this
code is continued as an independent agency within the executive branch.
(d) The Water Development Authority and
the Water Development Authority Board provided
in article one, chapter twenty-two-c of this code is continued as an independent agency within the
executive branch.
(e) The following agencies and boards, including all of the allied, advisory and affiliated
entities, are transferred to the Department of Environmental Protection for purposes of administrative
support and liaison with the office of the Governor:
(1) Air Quality Board provided in article two, chapter twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three, chapter twenty-two-c of this
code;
(3) Environmental Quality Board, or its successor board, provided in article three, chapter
twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in article seven, chapter twenty-two-c
of this code;
(6) Shallow Gas Well Review Board provided in article eight, chapter twenty-two-c of this
code; and
(7) Oil and Gas Conservation Commission provided in article nine, chapter twenty-two-c of
this code.
(f) The following agencies and boards, including all of the allied, advisory, affiliated or related
entities and funds associated with any agency or board, are incorporated in and administered as a part
of the Department of Education and the Arts:
(1) Library Commission provided in article one, chapter ten of this code;
(2) Educational Broadcasting Authority provided in article five, chapter ten of this code;
(3) Division of Culture and History provided in article one, chapter twenty-nine of this code;
and
(4) Division of Rehabilitation Services provided in
section two, article ten-a, chapter eighteen
of this code.
(g) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are incorporated in and administered
as a part of the Department of Health and Human Resources:
(1) Human Rights Commission provided in article eleven, chapter five of this code;
(2) Division of Human Services provided in article two, chapter nine of this code;
(3) Bureau for Public Health provided in article one, chapter sixteen of this code;
(4) Office of Emergency Medical Services and
Emergency Medical Service Advisory Council
provided in article four-c, chapter sixteen of this code;
(5) Health Care Authority provided in article twenty-nine-b, chapter sixteen of this code;
(6) Commission on Mental Retardation provided in article fifteen, chapter twenty-nine of this
code;
(7) Women's Commission provided in article twenty, chapter twenty-nine of this code; and
(8) The Child Support Enforcement Division provided in chapter forty-eight of this code.
(h) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Military Affairs and Public Safety:
(1) Adjutant General's Department provided in article one-a, chapter fifteen of this code;
(2) Armory Board provided in article six, chapter fifteen of this code;
(3) Military Awards Board provided in article one-g, chapter fifteen of this code;
(4) West Virginia State Police provided in article two, chapter fifteen of this code;
(5) Division of Homeland Security and Emergency Management and Disaster Recovery Board
provided in article five, chapter fifteen of this code and Emergency Response Commission provided
in article five-a of said chapter;
(6) Sheriffs' Bureau provided in article eight, chapter fifteen of this code;
(7) Division of Justice and Community Services provided in article nine-a, chapter fifteen of
this code;
(8) Division of Corrections provided in chapter twenty-five of this code;
(9) Fire Commission provided in article three, chapter twenty-nine of this code;
(10) Regional Jail and Correctional Facility Authority provided in article twenty, chapter
thirty-one of this code;
and
(11) Board of Probation and Parole provided in article twelve, chapter sixty-two of this code.
and
(12) Division of Veterans' Affairs and Veterans' Council provided in article one, chapter
nine-a of this code.
(i) The following agencies and boards, including all of the allied, advisory, affiliated or related
entities and funds associated with any agency or board, are incorporated in and administered as a part
of the Department of Revenue:
(1) Tax Division provided in
article one, chapter eleven of this code;
(2) Racing Commission provided in article twenty-three, chapter nineteen of this code;
(3) Lottery Commission and position of Lottery Director provided in article twenty-two,
chapter twenty-nine of this code;
(4)
Agency of Insurance Commissioner provided in article two, chapter thirty-three of this
code;
(5)
Office of West Virginia Alcohol Beverage Control Commissioner provided in article
sixteen, chapter eleven of this code and article two, chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided in article three, chapter thirty-one-a
of this code;
(7) Lending and Credit Rate Board provided in chapter forty-seven-a of this code;
(8) Division of Banking provided in article two, chapter thirty-one-a of this code;
(9) The State Budget Office provided in article two of this chapter;
(10) The Municipal Bond Commission provided in article three, chapter thirteen of this code;
(11) The Office of Tax Appeals provided in article ten-a, chapter eleven of this code; and
(12) The State Athletic Commission provided in article five-a, chapter twenty-nine of this
code.
(j) The following agencies and boards, including all of the allied, advisory, affiliated or related
entities and funds associated with any agency or board, are incorporated in and administered as a part
of the Department of Transportation:
(1) Division of Highways provided in article two-a, chapter seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority provided in article sixteen-a,
chapter seventeen of this code;
(3) Division of Motor Vehicles provided in article two, chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided in article two, chapter seventeen-b of this
code;
(5) Aeronautics Commission provided in article two-a, chapter twenty-nine of this code;
(6) State Rail Authority provided in article eighteen, chapter twenty-nine of this code; and
(7)
Public Port Authority provided in article sixteen-b, chapter seventeen of this code.
(k) The Veterans' Council provided in article one, chapter nine-a of this code, including all of the allied, advisory, affiliated or related entities and funds associated with it, is incorporated in and
administered as a part of the Department of Veterans' Assistance.
(k) (l) Except for powers, authority and duties that have been delegated to the secretaries of
the departments by the provisions of section two of this article, the position of administrator and the
powers, authority and duties of each administrator and agency are not affected by the enactment of
this chapter.
(l) (m) Except for powers, authority and duties that have been delegated to the secretaries of
the departments by the provisions of section two of this article, the existence, powers, authority and
duties of boards and the membership, terms and qualifications of members of the boards are not
affected by the enactment of this chapter. All boards that are appellate bodies or are independent
decision makers shall not have their appellate or independent decision-making status affected by the
enactment of this chapter.
(m) (n) Any department previously transferred to and incorporated in a department by prior
enactment of this section means a division of the appropriate department. Wherever reference is
made to any department transferred to and incorporated in a department created in section two, article
one of this chapter, the reference means a division of the appropriate department and any reference
to a division of a department so transferred and incorporated means a section of the appropriate
division of the department.
(n) (o) When an agency, board or commission is transferred under a bureau or agency other
than a department headed by a secretary pursuant to this section, that transfer is solely for purposes
of administrative support and liaison with the Office of the Governor, a department secretary or a
bureau. Nothing in this section extends the powers of department secretaries under section two of
this article to any person other than a department secretary and nothing limits or abridges the statutory
powers and duties of statutory commissioners or officers pursuant to this code.
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2a. Terms of certain appointive state officers; appointment; qualifications; powers and
salaries of such officers.
(a) Each of the following appointive state officers named in this subsection shall be appointed
by the Governor, by and with the advice and consent of the Senate. Each of the appointive state
officers serves at the will and pleasure of the Governor for the term for which the Governor was
elected and until the respective state officers' successors have been appointed and qualified. Each
of the appointive state officers are subject to the existing qualifications for holding each respective
office and each has and is hereby granted all of the powers and authority and shall perform all of the
functions and services heretofore vested in and performed by virtue of existing law respecting each
office.
Prior to July 1, two thousand six, each such named appointive state officer shall continue to
receive the annual salaries they were receiving as of the effective date of the enactment of this section
in two thousand six and thereafter, notwithstanding any other provision of this code to the contrary,
The annual salary of each named appointive state officer
shall be is as follows:
Commissioner, Division of Highways, $92,500; Commissioner, Division of
Corrections,$80,000; Director, Division of Natural Resources, $75,000; Superintendent, State Police,
$85,000; Commissioner, Division of Banking, $75,000; Commissioner, Division of Culture and
History, $65,000; Commissioner, Alcohol Beverage Control Commission, $75,000; Commissioner,
Division of Motor Vehicles, $75,000; Chairman, Health Care Authority, $80,000; members, Health
Care Authority, $70,000; Director, Human Rights Commission, $55,000; Commissioner, Division
of Labor, $70,000;
Director, Division of Veterans' Affairs, sixty-five thousand dollars; Chairperson,
Board of Parole, $55,000; members, Board of Parole, $50,000; members, Employment Security
Review Board, $17,000; and Commissioner,
Bureau of Employment Programs Workforce West
Virginia, $75,000. Secretaries of the departments shall be paid an annual salary as follows: Health
and Human Resources, $95,000; Transportation, $95,000:
Provided, That if the same person is
serving as both the Secretary of Transportation and the Commissioner of Highways, he or she shall be paid $120,000; Revenue, $95,000; Military Affairs and Public Safety, $95,000; Administration,
$95,000; Education and the Arts, $95,000; Commerce, $95,000;
Veterans' Assistance, $95,000; and
Environmental Protection, $95,000;
Provided, however, That
any increase in the salary of any current
appointive state officer named in this subsection pursuant to the reenactment of this subsection during
the regular session of the Legislature in 2006 that exceeds $5,000 shall be paid to such officer or his
or her successor beginning on July 1, 2006, in annual increments of $5,000 per fiscal year,
any officer
whose salary is increased by the reenactment of this subsection during the regular session of the
Legislature in 2011 by more than $5,000 shall be paid the salary increase in increments of $5,000 per
fiscal year beginning July 1, 2011, up to the maximum salary provided in this subsection
: Provided
further, That if the same person is serving as both the Secretary of Transportation and the
Commissioner of Highways, then the annual increments of $5,000 per fiscal year do not apply.
(b) Each of the state officers named in this subsection shall continue to be appointed in the
manner prescribed in this code
and, prior to July 1, 2006, each of the state officers named in this
subsection shall continue to receive the annual salaries he or she was receiving as of the effective date
of the enactment of this section in 2006 and shall thereafter, notwithstanding any other provision of
this code to the contrary,
and shall be paid an annual salary as follows:
Director, Board of Risk and Insurance Management, $80,000; Director, Division of
Rehabilitation Services, $70,000; Director, Division of Personnel, $70,000; Executive Director,
Educational Broadcasting Authority, $75,000; Secretary, Library Commission, $72,000; Director,
Geological and Economic Survey, $75,000; Executive Director, prosecuting attorneys Institute,
$70,000; Executive Director, Public Defender Services, $70,000; Commissioner, Bureau of Senior
Services, $75,000; Director, State Rail Authority, $65,000; Executive Director, Women's
Commission, $45,000; Director, Hospital Finance Authority, $35,000; member, Racing Commission,
$12,000; Chairman, Public Service Commission, $85,000; members, Public Service Commission,
$85,000; Director, Division of Forestry, $75,000; Director, Division of Juvenile Services, $80,000;
and Executive Director, Regional Jail and Correctional Facility Authority, $80,000
: Provided, That any increase in the salary of any current appointive state officer named in this subsection pursuant to
the reenactment of this subsection during the regular session of the Legislature in 2006 that exceeds
$5,000 shall be paid to such officer or his or her successor beginning on July, 1 2006, in annual
increments of $5,000 per fiscal year, up to the maximum salary provided in this subsection.
(c) Each of the following appointive state officers named in this subsection shall be appointed
by the Governor, by and with the advice and consent of the Senate. Each of the appointive state
officers serves at the will and pleasure of the Governor for the term for which the Governor was
elected and until the respective state officers' successors have been appointed and qualified. Each
of the appointive state officers are subject to the existing qualifications for holding each respective
office and each has and is hereby granted all of the powers and authority and shall perform all of the
functions and services heretofore vested in and performed by virtue of existing law respecting each
office.
Prior to July 1, 2006, each such named appointive state officer shall continue to receive the
annual salaries they were receiving as of the effective date of the enactment of this section in 2006
and thereafter, notwithstanding any other provision of this code to the contrary, The annual salary of
each named appointive state officer shall be as follows:
Commissioner, State Tax Division, $92,500;
Insurance Commissioner,
Insurance
Commission, $92,500; Director, Lottery Commission, $92,500; Director, Division of Homeland
Security and Emergency Management, $65,000; and Adjutant General, $92,500.
(d) No increase in the salary of any appointive state officer pursuant to this section
shall may
be paid until and unless the appointive state officer has first filed with the State Auditor and the
Legislative Auditor a sworn statement, on a form to be prescribed by the Attorney General, certifying
that his or her spending unit is in compliance with any general law providing for a salary increase for
his or her employees. The Attorney General shall prepare and distribute the form to the affected
spending units.
CHAPTER 9A. VETERANS' AFFAIRS.
ARTICLE 1. DIVISION DEPARTMENT OF VETERANS' AFFAIRS ASSISTANCE.
§9A-1-1. Creation and general purposes.
(a) A state agency to be known as Effective July 1, 2011, The the West Virginia Division of
Veterans' Affairs is
hereby created and established within the Department of Military Affairs and
Public Safety redesignated the Department of Veterans' Assistance.
(b) for the purpose of aiding, assisting, counseling and advising, and looking after the rights
and interests of, all persons known as veterans who have served in the Armed Forces of the United
States in the Army, Navy, Marine Corps, Air Force or Coast Guard as defined by the laws of the
United States and whose separation therefrom has been other than dishonorable and who are citizens
and residents of this state, and the widows, dependents and orphans, who are or have become citizens
and residents of this state, or all persons known as veterans who have served in the Armed Forces of
the United States in the Army, Navy, Marine Corps, Air Force or Coast Guard as defined by the laws
of the United States and whose separation therefrom has been other than dishonorable. The purpose
of the department is to aid, assist, counsel and advise, and to encourage competition among counties
and municipalities to develop, improve and enhance veteran-friendly services, benefits and assistance
to, veterans who have served in and been honorably discharged or separated under honorable
conditions from the Armed Forces of the United States and their widows, widowers and dependents,
including populations of veterans who may have special needs as a result of homelessness,
incarceration or physical or mental disabilities.
(c) All references in this code to the West Virginia Division of Veterans' Affairs and the
Director of the West Virginia Division of Veterans' Affairs shall mean the Department of Veterans'
Assistance and the Secretary of the Department of Veterans' Assistance, respectively.
§9A-1-1a. Department of Veterans' Assistance; office of Secretary of Department of Veterans'
Assistance.
(a) The Secretary of the Department of Veterans' Assistance is the chief executive officer of
the department. Subject to the requirements for the qualification and appointment of the secretary provided in section four of this article, the Governor shall appoint the secretary, by and with the
advice and consent of the Senate, for the term for which the Governor is elected and until a successor
shall have been appointed and qualified. The Secretary shall serve at the will and pleasure of the
Governor. Any reference in this code to the Division of Veterans' Affairs or to the Department of
Veterans' Affairs means the Department of Veterans' Assistance. Any reference in this code to the
Director of the Division of Veterans' Affairs means the Secretary of the Department of Veterans'
Assistance. As used in this chapter, "secretary" means the Secretary of Veterans' Assistance and
"division" means Department of Veterans' Assistance.
(b) The department may receive federal funds.
(c) The secretary serves at the will and pleasure of the Governor. The annual compensation
of the secretary shall be as specified in section two-a, article seven, chapter six of this code.
§9A-1-1b. Powers and duties of the secretary.
(a) The secretary controls and supervises the department and is responsible for the work of
each department employee.
(b) The secretary has the power and authority specified in this article, in article two, chapter
five-f of this code and as otherwise specified in this chapter.
(c) The secretary may employ staff, assistants and employees as necessary for the efficient
operation of the department.
(d) The secretary may delegate his or her powers and duties to assistants and employees, but
the secretary is responsible for all official acts of the department.
§9A-1-1c. Reports by secretary.
The secretary shall report annually to the Governor concerning the conduct of the department
and make other reports as the Governor may require.
§9A-1-1d. Right of appeal from interference with functioning of agency.
Any governmental entity may appeal to the Governor for review upon a showing that
application of the secretary's authority may interfere with the successful functioning of that entity. The Governor's decision controls on appeal.
§9A-1-2. Veterans' Council; administration of department.
There is continued the 'Veterans' Council' consisting of nine members who must be citizens
and residents of this state and who have served in and been honorably discharged or separated under
honorable conditions from the Armed Forces of the United States and whose service was within a
time of war as defined by the laws of the United States, either Public Law No. 2 -- 73rd Congress,
or Public Law No. 346 -- 78th Congress, and amendments thereto.
At Where feasible, least one
member of the council must be a veteran of World War II, at least one member of the council must
be a veteran of the Korean Conflict two members of the council shall be veterans of either World War
II or the Korean Conflict, at least two members of the council
must shall be veterans of the Vietnam
era, at least one member
must shall be a veteran of the first Gulf War and at least one member
must
shall be a veteran of the Afghanistan or Iraqi Conflicts. The members of the veterans' council
must
shall be selected with special reference to their ability and fitness to effectuate the purposes of this
article.
If an eligible veteran is not available or cannot be selected, a veteran who is a citizen and
resident of this state, who served in and was honorably discharged or separated under honorable
conditions from the Armed Forces of the United States and who served during any time of war or
peace may be selected.
A
director secretary and such veterans' affairs officers, assistants and employees as
may be
deemed the secretary considers advisable, shall administer the West Virginia
division of veterans'
affairs Department of Veterans' Assistance.
§9A-1-4. Duties and functions of Veterans' Council; appointment of
secretary; honoring
academic achievement at military academies.
(a) It is the duty and function of the Veterans' Council to advise the
director secretary on the
general administrative policies of the
division department, to select, at their first meeting in each
fiscal year commencing on July
1, a
chairman chairperson to serve one year, to advise the
director
secretary on rules as may be necessary, to advise the Governor and the Legislature with respect to legislation affecting the interests of veterans, their widows, dependents and orphans and to make
annual reports to the Governor respecting the service of the
division department. The
director
secretary has the same eligibility and qualifications prescribed for members of the Veterans' Council.
The Governor shall appoint a director for a term of six years, by and with the advice and consent of
the Senate. Before making the appointment the Governor shall request the council of the West
Virginia division of veterans' affairs to furnish a full and complete report concerning the qualifications
and suitability of the proposed appointee. The director may only be removed by the Governor for
cause, but shall have upon his or her own request an open hearing before the Governor on the
complaints or charges lodged against him or her. The action of the Governor shall be final. The
director secretary ex officio shall
be the executive secretary of the Veterans' Council, keep the minutes
of each meeting and be in charge of maintain all records of the
division Veterans' Council.
(b) The Veterans' Council may annually honor each West Virginian graduating from the U.S.
Military Academy, the U.S. Naval Academy, the U.S. Air Force Academy and the U.S. Coast Guard
Academy with the highest grade point average by bestowing upon him or her the "West Augusta
Award." The award shall be in a design and form established by the council and include the famous
Revolutionary War phrase from which the award's name is derived: 'Once again our brethren from
West Augusta have answered the call to duty.' The council shall coordinate the manner of
recognition of the recipient at graduation ceremonies with each academy."
The bill was then ordered to third reading.
S. B. 239, Extending period higher education institutes have to deposit moneys into research
endowments; on second reading, coming up in regular order, was read a second time and ordered to
third reading.
Com. Sub. for S. B. 243, Relating to Neighborhood Investment Program Act; on second
reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 247, Exempting certain construction contractor purchases from consumers sales, service and use tax; on second reading, coming up in regular order, was read a
second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page one, following the enacting section, by striking the remainder of
the bill in its entirety and inserting in lieu thereof the following:
"
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-8d. Limitations on right to assert exemptions.
(a) Persons who perform 'contracting' as defined in section two of this article, or persons
acting in an agency capacity, may not assert any exemption to which the purchaser of such contracting
services or the principal is entitled. Any statutory exemption to which a taxpayer may be entitled
shall be invalid unless the tangible personal property or taxable service is actually purchased by such
taxpayer and is directly invoiced to and paid by such taxpayer. This section shall not apply to
purchases by an employee for his or her employer; purchases by a partner for his or her partnership;
or purchases by a duly authorized officer of a corporation, or unincorporated organization, for his or
her corporation or unincorporated organization so long as the purchase is invoiced to and paid by the
employer, partnership, corporation or unincorporated organization.
(b)
Transition rule. -- This section shall not apply to purchases of tangible personal property
or taxable services in fulfillment of a purchasing agent or procurement agent contract executed and
legally binding on the parties thereto prior to September 15, 1999:
Provided, That this transition rule
shall not apply to any purchases of tangible personal property or taxable services made under such
a contract after August 31, 1991; and this transition rule shall not apply if the primary purpose of the
purchasing agent or procurement agent contract was to avoid payment of consumers sales and use
taxes. However, effective July 1, 2007, this section shall not apply to purchases of services,
machinery, supplies or materials, except gasoline and special fuel, to be directly used or consumed
in the construction, alteration, repair or improvement of a new or existing building or structure by a
person performing 'contracting', as defined in section two of this article, if the purchaser of the 'contracting' services would be entitled to claim the refundable exemption under subdivision (2),
subsection (b), section nine of this article had it purchased the services, machinery, supplies or
materials. Effective July 1, 2009, this section shall not apply to purchases of services, computers,
servers, building materials and tangible personal property, except purchases of gasoline and special
fuel, to be installed into a building or facility or directly used or consumed in the construction,
alteration, repair or improvement of a new or existing building or structure by a person performing
'contracting', as defined in section two of this article, if the purchaser of the 'contracting' services
would be entitled to claim the exemption under subdivision (7), subsection (a), section nine-h of this
article.
This section shall not apply to qualified purchases of computers and computer software,
primary material handling equipment, racking and racking systems, and their components, or to
qualified purchases of building materials and certain tangible personal property, as those terms are
defined in section nine-n of this article, by a person performing 'contracting,' as defined in section
two of this article, if the purchaser of the 'contracting' services would be entitled to claim the
refundable exemption under section nine-n of this article. Purchases of gasoline and special fuel shall
not be treated as exempt pursuant to this section.
§11-15-9n. Exemption of qualified purchases of computers and computer software, primary
material handling equipment, racking and racking systems, and components,
building materials and certain tangible personal property.
(a) Definitions. - For purposes of this section:
(1) 'Building materials' means all tangible personal property, including any device or
appliance used by builders, contractors or landowners in making improvements, additions, or
alterations to a building or other structure or to real property in such a way that such tangible personal
property becomes a part of the building or other structure or the realty, which is installed into or
directly used or consumed in the construction, addition, alteration, repair or improvement of a
qualified, new or expanded warehouse or distribution facility. 'Building materials' does not include
tools, construction equipment or any property or device which does not become a permanent part of the realty when construction is completed. A device or appliance becomes a fixture and a part of the
building or other structure or the real property to which it is connected when it is built into or is
attached to the property in such a way that its removal would substantially damage or deface such
property.
(2) 'Computers and computer software' as defined in section two, article fifteen-b of this
chapter means computer equipment and related software directly and primarily used to control
automated machinery in the facility and the movement of goods within the facility, to facilitate
customer delivery operations including shipment, preparation for shipment, order tracking and
delivery inventory control, printing of packing lists and labels and any other customer order
fulfillment functions.
(3) 'Distribution facility' means a warehouse, facility, structure, or enclosed area which is used
primarily for the storage, shipment, preparation for shipment, or any combination of such activities,
of finished goods, consumer ready wares, and consumer ready merchandise.
(4) 'Expansion period' means the period of time beginning one year prior to the start of the
construction or expansion of the qualified, new or expanded warehouse or distribution facility, and
ending one year after the substantial completion of the construction or expansion of the facility. In
no event shall the expansion period exceed five years.
(5) 'Full-time employment' for purposes of determining a full-time employee or a full-time
equivalent employee, means employment for at least one hundred forty hours per month at a wage
not less than the prevailing state or federal minimum wage, depending on which minimum wage
provision is applicable to the business.
(A) For purposes of this definition, any employee paid less than state or federal minimum
wage, depending on which minimum wage provision is applicable, shall be excluded from the count
of employees for the purpose of determining the three hundred jobs requirement of this section.
(B) For purposes of this definition, seasonal employees and part-time employees may be
converted into full-time equivalent employees if the part-time or seasonal employee is customarily performing job duties not less than twenty hours per week for at least six months during the tax year.
Persons who have worked less than twenty hours per week or who have worked less than six months
during the tax year do not qualify as part-time employees or as seasonal employees.
(6) 'Primary material handling equipment' means the principal machinery and equipment used
directly and primarily for the handling and movement of tangible personal property in a qualified,
new or expanded warehouse or distribution facility.
(A) The following items may be considered primary material handling equipment:
(i) Conveyers, carousels, lifts, positioners, pick-up-and-place units, cranes, hoists, mechanical
arms and robots;
(ii) Mechanized systems, including containers which are an integral part thereof, whose
purpose is to lift or move tangible personal property;
(iii) Automated storage and retrieval systems, including computers and software which control
them, whose purpose is to lift or move tangible personal property; and
(iv) Forklifts and other off-the-road vehicles which are used to lift or move tangible personal
property and which cannot be legally operated on roads and streets.
(B) 'Primary material handling equipment' does not include:
(i) Motor vehicles licensed for operation on the roads and highways of this state or any other
state of the United States or any other political jurisdiction;
(ii) Parts or equipment used to repair, refurbish, or recondition other equipment; or.
(iii) Equipment which replaces, in whole or in part, primary material handling equipment.
(7) 'Qualified, new or expanded warehouse or distribution facility' means a new or expanded
facility, subject to the following:
(A) Qualification criteria. 'Qualified, new or expanded warehouse or distribution facility'
means a new or expanded facility located in this state, that is a warehouse or distribution facility that
will employ three hundred or more West Virginia domiciled, West Virginia residents, as full-time
employees in the warehouse or distribution facility once the expansion period is complete and which is either:
(i) An existing warehouse or distribution facility that will be expanded over the expansion
period where the total value of all real and personal property purchased or acquired over the
expansion period as direct investment in the facility is $50 million or more; or
(ii) A new warehouse or distribution facility where the total value of all real and personal
property purchased or acquired over the expansion period as direct investment in the facility is $50
million or more.
(B) Exclusions and disqualifications.
(i) Subject to the limitations and restrictions set forth in this section, 'qualified, new or
expanded warehouse or distribution facility' does not include a building or facility where tangible
personal property is manufactured, fabricated or assembled.
(ii) Subject to the limitations and restrictions set forth in this section, 'qualified, new or
expanded warehouse or distribution facility' does not include a building or facility where annual
calendar year retail sales of tangible personal property are made over-the-counter from such building
or facility to the general public, if such sales exceed five percent of the total annual calendar year
revenues of the warehouse or distribution facility during the same calendar year.
(iii) Subject to the limitations and restrictions set forth in this section, 'qualified, new or
expanded warehouse or distribution facility' does not include a building or facility where the average
monthly full-time employment (determined by including full-time equivalent employees) for each
calendar year at the facility is less than three hundred West Virginia domiciled, West Virginia
residents. For purposes of determining average monthly employment for the calendar year, the
taxpayer shall divide the sum of the twelve monthly averages of qualified full-time and full-time
equivalent West Virginia employees at the qualified, new or expanded warehouse or distribution
facility by twelve. Each monthly average is computed as the average of West Virginia employment
at the beginning of each calendar month and at the end of each calendar month. Provided, That the
State Tax Commissioner may specify a different method for computation of average monthly full-time employment, on a state-wide basis or on a case-by-case basis, or both, as the State Tax
Commissioner may prescribe.
(8) 'Qualified West Virginia employee' means a full-time employee or full-time equivalent
employee who is a West Virginia domiciled West Virginia resident.
(9) 'Racking and racking systems' means any system of machinery, equipment, fixtures, or
portable devices whose function is to store, organize, or move tangible personal property within a
warehouse or distribution facility, including, but not limited to, conveying systems, chutes, shelves,
racks, bins, drawers, pallets, and other containers and storage devices which form a necessary part
of the facility's storage system, and which is used directly and primarily for the storage, handling and
movement of tangible personal property in a qualified, new or expanded warehouse or distribution
facility.
(10) 'Tangible personal property' means tangible personal property as defined in section two,
article fifteen-b of this chapter.
(11) 'Warehouse' means a facility, structure, or enclosed area which is used primarily for the
storage of finished goods, consumer ready wares, and consumer ready merchandise.
(b) Exemption. -- Qualified purchases of computers and computer software, primary material
handling equipment, racking and racking systems, and components thereof, building materials and
tangible personal property installed into or directly used or consumed in the construction, addition,
alteration or improvement of a qualified, new or expanded warehouse or distribution facility, as such
terms are defined in this section, purchased during the expansion period are exempt from the tax
imposed by this article and article fifteen-a of this chapter. This exemption may apply either to
qualified purchases made by a person or entity which will be the owner and operator of the qualified,
new or expanded warehouse or distribution facility or to qualified purchases made by a lessor or
lessee of the qualified, new or expanded warehouse or distribution facility. A purchase of computers
and computer software, primary material handling equipment, racking and racking systems, and
components thereof, building materials and tangible personal property is a qualified purchase if all requirements for exemption set forth in this section are met with relation to the purchase.
(c) Application for certification of exemption and plan describing investment to be made. --
(1) In order to qualify for the exemption authorized by this section, a taxpayer must submit
an application for certification of the exemption to the State Tax Commissioner, together with a plan
describing the investment to be made in the qualified, new or expanded warehouse or distribution
facility. The application and plan shall be submitted on forms prescribed by the State Tax
Commissioner. The plan shall demonstrate that the requirements of the law will be met.
(2) Filing date. The application for certification of the exemption and plan describing the
investment to be made must be filed on or before the start of the construction or expansion of the
proposed qualified, new or expanded warehouse or distribution facility.
(3) Late filing. If the taxpayer fails to timely file the application for certification of the
exemption with the State Tax Commissioner, together with a plan describing the investment to be
made, on or before the start of the construction or expansion of the proposed qualified, new or
expanded warehouse or distribution facility, the exemption allowed by this section shall not be
available for any purchases of computer and computer software, primary material handling
equipment, racking and racking systems, and components thereof, building materials and tangible
personal property otherwise exempt under this section that were made prior to the filing date of the
application for certification of the exemption, and no refund shall be issued for any such purchase.
(4) Exemption in cases of untimely filing. Notwithstanding the untimely filing of the
application for certification of the exemption and plan describing the investment to be made, if
certification of the exemption and plan is issued by the State Tax Commissioner of an untimely filed
application and plan, the exemption shall be available for qualified purchases of computers and
computer software, primary material handling equipment, racking and racking systems, and
components thereof, building materials and tangible personal property made subsequent to the filing
date of the application and plan and before the end of the expansion period.
(5) Exemption limited to expansion period purchases.
(A) Upon approval of the application and certification of the exemption, qualified purchases
of computers and computer software, primary material handling equipment, racking and racking
systems, and components thereof, building materials and tangible personal property shall be exempt
from the tax imposed by this article and article fifteen-a of this chapter. However, if the requisite
investment is not made within the expansion period, or if the terms and requirements of this section
are not satisfied, the taxpayer shall be subject to assessment for any tax, penalty or interest that would
otherwise have been due.
(B) Limitations. Any statute of limitations set forth in article ten of this chapter for
assessment made under this subsection for any such tax, penalty or interest shall not close until five
years subsequent to the end of the expansion period.
(d) Any person having a right or claim to any exemption set forth in this section shall first pay
to the vendor the tax imposed by this article and then apply to the State Tax Commissioner for a
refund or credit or, as provided in section nine-d of this article, give to the vendor his or her West
Virginia direct pay permit number.
(e) Additional Restrictions, Assessments and Statutes of Limitations. --
(1) Over-the-counter sales restrictions
.
(A) If within ten years after the end of the expansion period, over-the-counter sales are made
in any one calendar year, from a warehouse or distribution facility for which qualification for
exemption under this section was originally established, which over-the-counter sales, in the
aggregate, exceed five percent of the total revenues of the warehouse or distribution facility during
the same calendar year, the taxpayer will be disqualified from receiving the exemption under this
section as of the close of the calendar year in which over-the-counter sales first exceed five percent
of the total revenues of the warehouse or distribution facility during the same calendar year; and the
taxpayer shall be subject to assessment for any tax, penalty or interest that would otherwise have been
due had the exemption set forth in this section never been applied. This over-the-counter sales restriction shall not apply to any year subsequent to the end of the tenth year after the end of the
expansion period.
(B) Limitations. Notwithstanding any other provision of this code pertaining to statute of
limitations to the contrary, any statute of limitations set forth in article ten of this chapter for
assessment for any such tax, penalty or interest shall not close until five years subsequent to the end
of the calendar year in which over-the-counter sales first exceed five percent of the total revenues of
the warehouse or distribution facility during the same period.
(2) Fabrication and Assembly Restriction.
(A) Subject to the restriction and limitations set forth in this subsection, a qualified new or
expanded warehouse or distribution facility does not include a building or facility where tangible
personal property is manufactured, fabricated or assembled. If during any calendar year within ten
years after the end of the expansion period, the building or facility for which qualification for
exemption under this section was originally established, is used for manufacturing, fabrication or
assembly of tangible personal property, the taxpayer will be disqualified from receiving the exemption
set forth in this section as of the date such manufacturing, fabrication or assembly first occurs, and
the taxpayer shall be subject to assessment for any tax, penalty or interest that would otherwise have
been due had the exemption set forth in this section never been applied. This restriction against
manufacturing, fabrication and assembly shall not apply to any year subsequent to the tenth year after
the end of the expansion period.
(B) Limitations. Notwithstanding any other provision of this code pertaining to statute of
limitations to the contrary, any statute of limitations set forth in article ten of this chapter for
assessment for any such tax, penalty or interest shall not close until five years subsequent to the end
of the calendar year during which such manufacturing, fabrication or assembly first occurs.
(3) Minimum employment restriction.
(A) Subject to the limitations and restrictions set forth in this section, 'qualified, new or
expanded warehouse or distribution facility' does not include a building or facility where the average monthly full-time employment (determined including full-time equivalent employees) for each
calendar year at the facility is less than three hundred West Virginia domiciled, West Virginia
residents. If during any calendar year within ten years after the end of the expansion period, the
average monthly full-time employment at the building or facility for which qualification for
exemption under this section was originally established, is fewer than three hundred qualified West
Virginia employees, then the taxpayer will be disqualified from receiving the exemption under this
section as of the close of the first calendar year in which the average monthly full-time employment
at the facility is less than three hundred West Virginia domiciled, West Virginia residents, and the
taxpayer shall be subject to assessment for any tax, penalty or interest that would otherwise have been
due had the exemption set forth in this section never been applied. This restriction against having
fewer than three hundred qualified West Virginia employees shall not apply to any year subsequent
to the tenth year after the end of the expansion period.
(B) Limitations. Notwithstanding any other provision of this code pertaining to statute of
limitations to the contrary, any statute of limitations set forth in article ten of this chapter for
assessment for any such tax, penalty or interest shall not close until five years subsequent to the end
of the first calendar year in which the average monthly full-time employment at the facility is less than
three hundred qualified West Virginia employees.
(f) Assessments Against Taxpayer. -- In circumstances where the exemption authorized under
this section has been asserted by a contractor pursuant to the provisions of section eight-d of this
article for purchases of computers and computer software, primary material handling equipment,
racking and racking systems, and components thereof, building materials and tangible personal
property, the assessment of such tax, interest and penalties shall issue against, and liability is hereby
imposed upon, the purchaser of the contracting services, which is the taxpayer entitled to the
exemption set forth in this section, and not against the contractor who relied in good faith upon the
validity of the exemption available under this section to the purchaser of the contracting services."
The bill was then ordered to third reading.
S. B. 304, Providing alternative means for initial purchaser of junked vehicles to notify DMV;
on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 328, Relating to issuance, disqualification, suspension and revocation of driver's
licenses; on second reading, coming up in regular order, was read a second time and ordered to third
reading.
S. B. 331, Correcting invalid code reference in definition of "eligible taxpayer"; on second
reading, coming up in regular order, was reported by the Clerk.
At the request of Delegate Boggs, and by unanimous consent, the bill was advanced to third
reading with restricted right to amend by Delegate White, and the rule was suspended to permit the
consideration of the amendment on that reading.
Com. Sub. for S. B. 356, Making captive insurance company organized as risk retention
group subject to certain insurance code provisions; on second reading, coming up in regular order,
was read a second time and ordered to third reading.
Com. Sub. for S. B. 357, Relating to reporting beaver and river otter taken, tagged and
checked; on second reading, coming up in regular order, was read a second time and ordered to third
reading.
S. B. 371, Updating list of jurisdictions identified as tax havens; on second reading, coming
up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 460, Authorizing Division of Forestry establish practices and procedures
to address law-enforcement requirements of division; on second reading, coming up in regular order,
was read a second time and ordered to third reading.
Com. Sub. for S. B. 464, Allowing certain persons petition to regain right to possess firearms
when lost due to mental health disability; on second reading, coming up in regular order, was read
a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 7A. STATE MENTAL HEALTH REGISTRY; REPORTING OF PERSONS'
PROSCRIBED FROM FIREARM POSSESSION DUE TO MENTAL
CONDITION TO THE NATIONAL INSTANT CRIMINAL
BACKGROUND CHECK SYSTEM; LEGISLATIVE FINDINGS;
DEFINITIONS; REPORTING REQUIREMENTS; REINSTATEMENT
OF RIGHTS PROCEDURES.
§61-7A-2. Definitions.
As used in this article and as the terms are deemed to mean in 18 U.S.C. §922(g) and section
seven, article seven of this chapter as each exists as of January 31, 2008:
(1) "A person adjudicated as a mental defective" means a person who has been determined
by a duly authorized court, tribunal, board or other entity to be mentally ill to the point where he or
she has been found to be incompetent to stand trial due to mental illness or insanity, has been found
not guilty in a criminal proceeding by reason of mental illness or insanity or has been determined to
be unable to handle his or her own affairs due to mental illness or insanity.
(2) 'Committed to a mental institution' means to have been involuntarily committed for
treatment pursuant to the provisions of chapter twenty-seven of this code
by virtue of a final order of
commitment.
(3) 'Mental institution' means any facility or part of a facility used for the treatment of persons
committed for treatment of mental illness or addiction.
§61-7A-5. Petition to regain right to possess firearms.
(a) Any person who is prohibited from possessing a firearm pursuant to the provisions of
section seven, article seven of this chapter or by provisions of federal law by virtue solely of having
previously been adjudicated to be mentally defective or to having a prior involuntary commitment to
a mental institution pursuant to chapter twenty-seven of this code may petition the circuit court of the
county of his or her residence to regain the ability to lawfully possess a firearm.
(b) Petitioners prohibited from possession of firearms due to a mental health disability, must
include in the petition for relief from disability:
(1) A listing of facilities and location addresses of all prior mental health treatment received
by petitioner;
(2) An authorization, signed by the petitioner, for release of mental health records to the
prosecuting attorney of the county; and
(3) A verified certificate of mental health examination by a licensed psychologist or
psychiatrist occurring within thirty days prior to filing of the petition which supports that the
petitioner is competent and not likely to act in a manner dangerous to public safety.
(c) The court may only consider petitions for relief due to mental health adjudications or
commitments that occurred in this state, and only give the relief specifically requested in the petition.
(d) In determining whether to grant the petition, the court shall receive and consider at a
minimum evidence:
(1) Concerning the circumstances regarding the firearms disabilities imposed by 18 U.S.C.
§922(g)(4);
(2) The petitioner's record which must include the petitioner's mental health and criminal
history records; and
(3) The petitioner's reputation developed through character witness statements, testimony, or
other character evidence.
(f) If the court finds by clear and convincing evidence that the person is competent and capable
of exercising the responsibilities concomitant with the possession of a firearm, will not be likely to
act in a manner dangerous to public safety, and that granting the relief will not be contrary to public
interest, the court may enter an order allowing the petitioner to possess a firearm. If the order denies
petitioner's ability to possess a firearm, the petitioner may appeal the denial, which appeal is to
include the record of the circuit court rendering the decision.
(e) All proceedings for relief to regain firearm or ammunition rights shall be reported or recorded and maintained for review.
(f) The prosecuting attorney or one of his or her assistants shall represent the state in all
proceedings for relief to regain firearm rights and provide the court the petitioner's criminal history
records.
(g) The written petition, certificate, mental health or substance abuse treatment records and
any papers or documents containing substance abuse or mental health information of the petitioner,
filed with the circuit court, are confidential. These documents may not be open to inspection by any
person other than the prosecuting attorney or one of his or her assistants only for purposes of
representing the state in and during these proceedings and by the petitioner and his or her counsel.
No other person may inspect these documents, except upon authorization of the petitioner or his or
her legal representative or by order of the court, and these records may not be published except upon
the authorization of the petitioner or his or her legal representative.
(b) (h) The circuit clerk of each county shall provide the Superintendent of the West Virginia
State Police, or his or her designee, and the Administrator of the West Virginia Supreme Court of
Appeals, or his or her designee, with a certified copy of any order entered pursuant to the provisions
of this section which removes a petitioner's prohibition to possess firearms. If the order restores the
petitioner's ability to possess a firearm, petitioner's name shall be promptly removed from the central
state mental health registry and the superintendent or administrator shall forthwith inform the Federal
Bureau of Investigation, the United States Attorney General, or other federal entity operating the
National Instant Criminal Background Check System of the court action."
The bill was then ordered to third reading.
Com. Sub. for S. B. 492, Relating to maximizing federal funding for state Medicaid program;
on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 495, Relating generally to use of electronic voting systems; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-2. Definitions.
As used in this article, unless otherwise specified:
(1) 'Automatic tabulating equipment' means all apparatus necessary to electronically count
votes recorded on ballots and tabulate the results;
(2) 'Ballot' means a tabulating card an electronic image or paper on which votes may be
recorded by means of perforating or marking with electronically sensible ink or pencil or a screen
upon which votes may be recorded by means of a stylus or by means of touch;
(3) 'Central counting center' means a facility equipped with suitable and necessary automatic
tabulating equipment, selected by the county commission, for the electronic counting of votes
recorded on ballots;
(4) 'Electronic poll book' means an electronic device containing the same voter registration
information maintained by the county clerk in a printed poll book.
(5) 'Electronic voting system' is a means of conducting an election whereby votes are
recorded on ballots by means of an electronically sensible marking ink, by perforating or are recorded
on equipment that registers votes on a computer disk, or by touching a screen with a stylus or by
means of touch, and votes are subsequently counted by automatic tabulating equipment at the central
counting center;
(6) 'Program deck' means the actual punch card deck or decks, or a computer program disk,
diskette, tape or other programming media, containing the program for counting and tabulating the
votes, including the 'application program deck';
(7) 'Application program deck' means the punch card deck or equivalent capacity in other
program medias as provided, containing specific options used and necessary to modify the program
of general application, to conduct and tabulate a specific election according to applicable law;
(8) (6) 'Standard validation test deck' means a group of ballots wherein all voting possibilities
which can occur in an election are represented; and
(9) (7) 'Vote-recording device' means equipment in which ballot labels and ballots are placed
to allow a voter to record his or her vote by perforating or equipment with electronically sensible ink,
or pencil, or a screen upon which votes may be recorded by means of a stylus or by means of touch.
§3-4A-3. Procedure for adopting electronic voting systems.
An electronic voting system that has been approved in accordance with section eight of this
article may be adopted for use in general, primary and special elections in any county by the following
procedure and not otherwise:
By a majority of the members of the county commission voting to adopt the same at a public
meeting regularly called for that purpose: Provided, That the meeting be held not less than six
months prior to the next scheduled primary or general election, with notice thereof published as a
Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine
of this code. The publication area for such publication shall be the county involved.
§3-4A-4. Procedure for terminating use of electronic voting systems.
The use of an electronic voting system may be terminated:
(1) By a majority of the members of the county commission voting to terminate use of the
system and replace it with a different voting system meeting the requirements of the Help America
Vote Act of 2002, 42 U.S.C. §15301, et seq. at a special public meeting called for the purpose of said
termination, with due notice thereof published as a Class II-O 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 involved: Provided, That such meeting shall be held not less than six
months prior to a general election or six months prior to a primary election. If at such meeting, such county commission shall enter an order of its intention to terminate use of an electronic voting
system, it shall thereafter forthwith cause to be published a certified copy of such order as a Class II-O
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 involved. The first publication of
such order shall not be less than twenty days after the entry of such order. Such county commission
shall not terminate the use of an electronic voting system until ninety days after the entry of such
order of its intention to terminate the same. Promptly after the expiration of ninety days after the
entry of such order of intention to terminate the use of an electronic voting system, if no petition has
theretofore been filed with such county commission requesting a referendum on the question of
termination of the electronic voting system as hereinafter provided, such county commission shall
enter a final order terminating the use of the electronic voting system, and the use of electronic voting
system shall thereby be terminated. If a petition has been submitted as provided in this subdivision,
the county commission shall not terminate the use of the system but shall proceed as provided in this
subdivision.
If five percent or more of the registered voters of such county shall sign a petition requesting
that the use of an electronic voting system be terminated in such county and such petition be filed
with the county commission of such county within ninety days after the entry of such order of
intention to terminate the use of an electronic voting system, such county commission shall submit
to the voters of such county at the next general or primary election, whichever shall first occur, the
question: 'Shall the use of an electronic voting system be terminated in .................. County?' If this
question be answered in the affirmative by a majority of the voters in such election upon the question,
the use of an electronic voting system shall thereby be terminated. If such question shall not be
answered in the affirmative by such majority, the use of an electronic voting system shall continue.
(2) By the affirmative vote of a majority of the voters of such county voting upon the question
of termination of the use of an electronic voting system in such county. If five percent or more of the
registered voters of such county shall sign a petition requesting the termination of the use of an electronic voting system in such county, and such petition be filed with the county commission of
such county, such county commission shall submit to the voters of such county at the next general
or primary election, following by not less than ninety days the date of the filing of such petition, the
question: 'Shall the use of an electronic voting system be terminated in ................ County?' If this
question be answered in the affirmative by a majority of the voters of such county voting upon the
question, the use of an electronic voting system shall thereby be terminated. If such question shall
not be answered in the affirmative by a majority of the voters of such county voting upon the
question, the use of an electronic voting system shall thereby continue.
§3-4A-6. Acquisition of vote recording devices by purchase or lease; acquisition of use of
automatic tabulating equipment; counting centers.
(a) A county commission may acquire vote recording devices by any one or any combination
of the following methods:
(1) By purchasing the same and paying the purchase price in cash from funds available from
the maximum general levy or from any other lawful source; and
(2) By leasing the same under written contract of lease and paying the rentals in cash from
funds available from the maximum general levy or any other lawful source.
(b) A county commission may acquire the use of automatic tabulating equipment by leasing
or renting the same under written contract of lease or rental and paying the rentals therefor in cash
from funds available from the maximum general levy or other lawful source.
(c) A county commission may enter into an agreement with another county commission to
share automatic tabulating equipment if the automatic tabulating equipment may be transported to
the appropriate central counting centers. No ballots may be transported for counting in any county
other than the county in which the votes were cast.
(d) A county commission is authorized to accept as a gift the use of suitable automatic
tabulating equipment.
(e) The county commission may also secure a counting center.
§3-4A-9. Minimum requirements of electronic voting systems.
An electronic voting system of particular make and design may not be approved by the State
Election Commission or be purchased, leased or used by any county commission unless it meets the
following requirements:
(1) It secures or ensures the voter absolute secrecy in the act of voting or, at the voter's
election, provides for open voting;
(2) It is constructed to ensure that no person, except in instances of open voting as provided
in this section, can see or know for whom any the contents of a marked ballot may not be seen or
known by anyone other than the voter who has voted or is voting;
(3) It permits each voter to vote at any election for all persons and offices for whom and which
he or she is lawfully entitled to vote, whether or not the name of any person appears on a ballot or
ballot label as a candidate; and it permits each voter to vote for as many persons for an office as he
or she is lawfully entitled to vote for; and to vote for or against any question upon which he or she
is lawfully entitled to vote. The automatic tabulating equipment used in electronic voting systems
is to reject choices recorded on any ballot if the number of choices exceeds the number to which a
voter is entitled;
(4) It permits each voter to deposit, write in affix upon a ballot, card, envelope or other
medium to be provided for that purpose, ballots containing the names of persons for whom he or she
desires to vote whose names do not appear upon the ballots; or ballot labels;
(5) It permits each voter to change his or her vote for any candidate and upon any question
appearing upon the ballots or ballot labels up to the time when his or her ballot is deposited in the
ballot box or his or her ballot is cast by electronic means;
(6) It contains a program deck consisting of cards that are sequentially numbered or consisting
of a computer program disk, diskette, tape or other programming media containing sequentially
numbered program instructions and coded or otherwise protected from tampering or substitution of the media or program instructions by unauthorized persons and capable of tabulating all votes cast
in each election;
(7) It contains two standard validation test decks approved as to form and testing capabilities
by the State Election Commission;
(8) It correctly records and counts accurately all votes cast for each candidate and for and
against each question appearing upon the ballots; or ballot labels;
(9) It permits each voter at any election, other than a primary elections election, by one mark
or punch to vote a straight party ticket, as provided in section five, article six of this chapter, by one
mark or punch;
(10) It permits each a voter in a primary elections election to: (A) vote only for the candidates
of the party for which he or she the voter is legally permitted to vote; (B) vote for the candidates, if
any, for nonpartisan nominations or election; and (C) vote on public questions; and precludes him or
her the voter from voting for any candidate seeking nomination by any other political party unless that
political party has determined that the voter may participate in its primary election permits him or her
to vote for the candidates, if any, for nonpartisan nomination or election and permits him or her to
vote on public questions;
(11) It, where applicable, is provided with means for sealing or electronically securing the vote
recording device to prevent its use and to prevent tampering with ballot labels the device, both before
the polls are open or before the operation of the vote recording device for an election is begun and
immediately after the polls are closed or after the operation of the vote recording device for an
election is completed;
(12) It has the capacity to contain the names of candidates constituting the tickets of at least
nine political parties and accommodates the wording of at least fifteen questions;
(13) (A) Direct recording electronic voting machines must generate a paper copy of each
voter's votes vote that will be automatically kept within a storage container, that is locked, closely
attached to the direct recording electronic voting machine, and inaccessible to all but authorized voting officials, who will handle such storage containers and such paper copies contained therein in
accordance with section nineteen of this article.
(B) The paper copy of the voter's vote shall be generated at the time the voter is at the voting
station using the direct recording electronic voting machine.
(C) The voter may examine the paper copy visually or through headphone readout, and may
accept or reject the printed copy.
(D) The voter may not touch, handle or manipulate the printed copy manually in any way.
(E) Once the printed copy of the voter's votes is accepted by the voter as correctly reflecting
the voter's intent, but not before, it will automatically be stored for recounts or random checks and
the electronic vote will be cast within the computer mechanism of the direct recording electronic
voting machine.
(F) Direct recording electronic voting machines with a mandatory paper copy shall be
approved by the Secretary of State. The Secretary of State may promulgate rules and emergency rules
to implement or enforce this subsection pursuant to the provisions of section five, article three,
chapter twenty-nine-a of this code.
(14) Where vote recording devices are used, they shall:
(A) Be durably constructed of material of good quality and in a workmanlike manner and in
a form which makes it safely transportable;
(B) Be constructed with frames for the placing of ballot labels that the labels upon which are
printed the names of candidates and their respective parties, titles of offices and wording of questions
are reasonably protected from mutilation, disfigurement or disarrangement or are constructed to
ensure that the screens upon which appear the names of the candidates and their respective parties,
titles of offices and wording of questions are reasonably protected from any modification;
(C) (B) Bear a number that will identify it or distinguish it from any other machine;
(D) (C) Be constructed to ensure that a voter may easily learn the method of operating it and
may expeditiously cast his or her vote for all candidates of his or her choice and upon any public
question;
(E) (D) Be accompanied by a mechanically or electronically operated instruction model which
shows the arrangement of the ballot labels, party columns or rows, and questions;
(F) (15) For electronic voting systems that utilize a screen upon which votes may be recorded
by means of a stylus or by means of touch:
(A) Be constructed to provide for the direct electronic recording and tabulating of votes cast
in a system specifically designed and engineered for the election application;
(G) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, (B) Be constructed to prevent any voter from voting for more
than the allowable number of candidates for any office, to include an audible or visual signal, or both,
warning any voter who attempts to vote for more than the allowable number of candidates for any
office or who attempts to cast his or her ballot prior to its completion and are constructed to include
a visual or audible confirmation, or both, to the voter upon completion and casting of the ballot;
(H) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, (C) Be constructed to present the entire ballot to the voter,
in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages
before completing his or her vote and to allow the voter to review and change all ballot choices prior
to completing and casting his or her ballot;
(I) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, (D) Be constructed to allow election commissioners to spoil
a ballot where a voter fails to properly cast his or her ballot, has departed the polling place and cannot
be recalled by a poll clerk to complete his or her ballot;
(J) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, (E) Be constructed to allow election commissioners, poll
clerks, or both, to designate, mark or otherwise record provisional ballots;
(K) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, (F) Consist of devices which are independent, nonnetworked
voting systems in which each vote is recorded and retained within each device's internal nonvolatile
electronic memory and contain an internal security, the absence of which prevents substitution of any
other device;
(L) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, (G) Store each vote in no fewer than three separate,
independent, nonvolatile electronic memory components and that each device contains
comprehensive diagnostics to ensure that failures do not go undetected;
(M) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, (H) Contain a unique, embedded internal serial number for
auditing purposes for each device used to activate, retain and record votes;
(N) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, (I) Be constructed to record all preelection, election and post-
election activities, including all ballot images and system anomalies, in each device's internal
electronic memory and are to be accessible in electronic or printed form;
(O) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, (J) Be constructed with a battery backup system in each
device to, at a minimum, prevent the loss of any votes, as well as all preelection, election and post-
election activities, including all ballot images and system anomalies, stored in the device's internal
electronic memory and to allow voting to continue for two hours of uninterrupted operation in case
of an electrical power failure; and
(P) For electronic voting systems that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, (K) Be constructed to prevent the loss of any votes, as well
as all preelection, election and post-election activities, including all ballot images and system
anomalies, stored in each device's internal electronic memory even in case of an electrical and battery
power failure.
§3-4A-9a. Authorization for ballot-marking voting systems; minimum requirements.
(a) For purposes of this section, 'ballot-marking accessible voting system' means a device
which allows voters, including voters with disabilities, to mark an optical scanning or mark-sensing
voting system ballot, privately and independently. The ballot-marking device is capable of marking
voter selections on an optically readable or mark-sensing ballot which shall be subsequently read and
tallied on state certified optically readable or mark-sensing ballot tabulating and reporting systems.
Counties are hereby permitted to obtain and employ ballot-marking accessible voting systems that
are approved by the State Election Commission.
(b) The ballot-marking accessible voting device shall be a completely integrated
ballot-marking device that is designed to allow voters to either view ballot choices through a high
resolution visual display or listen to ballot choices with headphones and then enter ballot selections
directly through specially designed, integrated accessibility keys devices.
(c) Ballot-marking accessible voting systems may be used for the purpose of marking or
scanning optically readable or mark-sensing ballots cast in all general, special and primary elections
and shall meet the following specific requirements:
(1) The ballot-marking accessible voting system, system firmware and programming software
must be certified by an independent testing authority, according to current federal voting system
standards and be approved by the State Elections Commission prior to entering into any contract.
(2) The ballot-marking accessible voting system shall, additionally:
(A) Alert the voter if the voter has made more ballot selections than the law allows for an
individual office or ballot issue;
(B) Alert the voter if the voter has made fewer ballot selections than the law allows for an
individual office or ballot issue;
(C) Allow the voter to independently review all ballot choices and make any corrections,
before the ballot is marked;
(D) Provide the voter with the opportunity to make a write-in ballot choice, where allowed
by state law;
(E) Allow voters with disabilities to mark their ballots, in complete independence, and in
conformity with both federal and state law concerning mandatory accessibility for disabled persons;
(F) Allow blind or visually impaired voters to vote in complete privacy;
(G) Provide voters with an opportunity to change ballot selections, or correct errors, before
the ballot is marked for voting, including the opportunity to correct the error through the issuance of
a replacement ballot if the voter was otherwise unable to change the ballot or correct the error;
(H) Provide voters with the ability to view all ballot selections through a high resolution visual
display or to have all ballot selections read to the voter through headphones;
(I) Ensure complete ballot privacy, while employing the ballot-marking audio system and
providing the voter with the option to turn off the visual ballot display;
(J) Include a completely integrated voter input keypad, using commonly accepted voter
accessibility keys with Braille markings;
(K) Include the ability for a voter to employ a sip/puff device to enter ballot choices;
(L) Allow the voter to magnify all ballot choices and to adjust both the volume of the audio
feature and the speed of ballot presentation;
(M) Allow the voter to employ his or her own headset as well as the headset provided with
the ballot-marking device while being equipped with multiple output connections to accommodate
different headsets;
(N) Have multiple-language capability; and
(O) Allow the voter to verify that:
(i) An optical scan ballot inserted into the device at the start of voting is blank; and
(ii) The voted optical scan ballot that is produced by the device is voted as the voter intended.
(d) The Secretary of State is hereby directed to propose rules and emergency rules for
legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this
code designed to ensure that any system employed by a county under the provisions of this section
is publicly tested prior to use in election.
§3-4A-9b. Authorization for precinct ballot-scanning device; minimum requirements.
(a) For purposes of this section, 'precinct ballot-scanning device' means a device used by the
voter at the precinct on election day or during early voting for the purpose of scanning the voter's
ballot after the ballot has been voted but prior to depositing the ballot into the ballot box.
(b) The precinct ballot-scanning device may be used for the purpose of scanning optically
readable ballots cast in all primary, general and special elections.
(c) The precinct ballot-scanning device, firmware and programming software must be certified
by an independent testing authority, according to current federal standards and be approved by the
State Election Commission. No election official may enter into any contract to purchase, rent, lease
or otherwise acquire any precinct ballot-scanning device, firmware or software not approved by the
State Election Commission.
(d) The precinct ballot-scanning device shall additionally:
(1) Alert the voter if the voter has made more ballot selections than the law allows for an
individual office or ballot issue;
(2) Alert the voter if the voter has made fewer ballot selections than the law allows for an
individual office or ballot issue; and
(3) Allow voters an opportunity to change ballot selections, or correct errors, including the
opportunity to correct the error through the issuance of a replacement ballot if the voter was otherwise
unable to change the ballot or correct the error.
(e) The precinct ballot-scanning device may be used for tabulating election results only under
the following conditions:
(1) The county has at least one precinct ballot-scanning device in each precinct;
(2) No print out or tabulation of results is done at the precinct;
(3) The 'tabulation memory device' may be removed from the ballot-scanning device only
after the polls close and the votes may only be counted at the central counting center on the night of
the election; and
(4) All voters at the precinct are required to use the ballot scanning device as a condition of
completing their vote.
(f) If the optical scan ballots from each of the precincts are counted at the central counting
center on election night in accordance with section twenty-seven of this article, and the results from
that count are the results finally published on election night, then any county meeting each of the
requirements in paragraphs (1) through (4) of subsection (e), may turn off the over vote switch on the
central counting device since every ballot will have been evaluated for over votes by the precinct
scanning device.
(g) The Secretary of State is hereby directed to propose rules and emergency rules for
legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this
code in accordance with the provisions of this section.
§3-4A-10. County clerk to be custodian of vote-recording devices, tabulating equipment and
electronic poll books; duties.
(a) When an electronic voting system is acquired by any county commission, the
vote-recording devices, where applicable, and the tabulating equipment shall be immediately placed
in the custody of the county clerk and shall remain in his or her custody at all times except when in
use at an election or when in custody of a court or court officers during contest proceedings. The
clerk shall see that the vote-recording devices and the tabulating equipment are properly protected and
preserved from damage or unnecessary deterioration and shall not permit any unauthorized person to tamper with them. The clerk shall also keep the vote-recording devices and tabulating equipment
in repair and of preparing prepare the same for voting.
(b) When a county commission elects to acquire and use electronic poll books in lieu of
printed poll books, the clerk of the county commission shall immediately take custody of the
electronic poll books, which shall remain in his or her custody at all times except when in use at an
election or when in the custody of a court or court officers during contest proceedings. The clerk shall
ensure that the electronic poll books are properly protected and preserved from damage or
unnecessary deteriorations and the clerk shall not permit any unauthorized person to tamper with the
electronic poll books. The clerk shall also keep the electronic poll books in good repair and the clerk
shall prepare the electronic poll books for election day.
§3-4A-10a. Proportional distribution of vote-recording devices.
Where vote-recording devices are used, the county commission of each county shall, upon the
close of registration, review the total number of active registered voters and the number of registered
voters of each party in each precinct. Prior to each election, the commission shall determine the
number of voting devices needed to accommodate voters without long delays and shall assign an
appropriate number to each precinct. For the purposes of the primary election, the commission shall
assign the number of vote recording devices in each precinct to be prepared for each party based as
nearly as practicable on the proportion of registered voters of each party to the total: Provided, That
a minimum of one vote recording device per party be provided, except for 'independent' voters,
which shall be determined under section twenty of this article two vote-recording devices be provided.
§3-4A-13. Inspection of ballots, electronic poll books and vote-recording devices; duties of
county commission, ballot commissioners and election commissioners;
records relating to ballots and vote-recording devices; receipt of election
materials by ballot commissioners.
(a) When the clerk of the county commission has completed the preparation of the ballots and
of any electronic poll books and vote-recording devices as provided in sections eleven-a and twelve-a of this article and as provided in section twenty-one, article one of this chapter, and not later than
seven days before the day of the election, he or she shall notify the members of the county
commission and the ballot commissioners that the ballots and any electronic poll books and devices
are ready for use.
(b) The members of the county commission and the ballot commissioners shall convene at the
office of the clerk or at such other place at which any vote-recording devices or electronic poll books
and the ballots are stored, not later than five days before the day of the election, and shall inspect the
devices, electronic poll books and the ballots to determine whether the requirements of this article
have been met. Notice of the place and time of the inspection shall be published, no less than three
days in advance, as a Class I-0 legal advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code. The publication area is the county involved.
(c) Any candidate and one representative of each political party on the ballot may be present
during the examination. If the devices and electronic poll books and ballots are found to be in proper
order, the members of the county commission and the ballot commissioners shall endorse their
approval in the book in which the clerk entered the numbers of the devices opposite the numbers of
the precincts.
(d) The vote-recording devices, the electronic poll books and the ballots shall then be secured
in double lock rooms. The clerk and the president or president pro tempore of the county commission
shall each have a key. The rooms shall be unlocked only in their presence and only for the removal
of the devices, electronic poll books and the ballots for transportation to the polls. Upon removal of
the devices, the electronic poll books and the ballots, the clerk and president or president pro tempore
of the county commission shall certify in writing signed by them that the devices, the electronic poll
books and packages of ballots were found to be sealed when removed for transportation to the polls.
(e) Vote-recording devices used during the early voting period may be used on election day
if retested in accordance with all the provisions of this section, including public notice between the
close of early voting and prior to precinct placement for election day. Vote-recording devices containing a personal electronic ballot (PEB), a programable memory chip and a printed paper trail
must comply with the applicable requirements of section twenty-six of this article.
(f) Not later than one day before the election, the election commissioner of each precinct
previously designated by the ballot commissioners shall attend at the office of the clerk of the county
commission to receive the necessary election records, books and supplies required by law. The
election commissioners shall receive the per diem mileage rate prescribed by law for this service. The
election commissioners shall give the ballot commissioners a sequentially numbered written receipt,
on a printed form, provided by the clerk of the county commission, for such records, books and
supplies. The receipt shall be prepared in duplicate. One copy of the receipt shall remain with the
clerk of the county commission and one copy shall be delivered to the president or president pro
tempore of the county commission.
§3-4A-17. Check of vote-recording devices and electronic poll books before use; corrections;
reserve vote-recording devices.
(a) In counties utilizing an electronic voting system where votes are to be recorded by means
of perforating or by touching a screen with a stylus or by means of touch before permitting the first
voter to vote, the election commissioners shall examine the vote-recording devices to ascertain
whether the ballot labels are arranged as specified on the facsimile diagram furnished to the precinct.
If the ballot labels are arranged incorrectly, the commissioners shall immediately notify the clerk of
the county commission of the foregoing facts in writing, indicating the number of the device, and
obtain from the clerk a reserve vote-recording device and thereafter proceed to conduct the election.
(b) (a) Any reserve vote-recording device so used is to be prepared for use by the clerk or his
or her duly appointed deputy and the reserve vote-recording device is to be prepared, inspected and
sealed and delivered to the polling place wherein the seal is to be broken and the device opened in
the presence of the precinct election commissioners who shall certify in writing signed by them to the
clerk of the county commission, that the reserve vote-recording device was found to be sealed upon
delivery to the polling place, that the seal was broken and the device opened in their presence at the polling place. The vote-recording device found to have been with incorrect ballot labels is to be
returned immediately to the custody of the clerk who shall then promptly cause the vote-recording
device to be repaired, prepared and resealed in order that it may be used as a reserve vote-recording
device if needed.
(c) (b) In counties using electronic poll books, the election commissioners shall examine the
electronic poll books to ascertain whether the poll books are in working order before allowing any
voters to enter the polling location. If the electronic poll books are not in working order, the election
commissioners shall contact the county clerk who shall immediately authorize a printed poll book to
serve in place of the electronic poll book for that election. A printed poll book may accompany the
electronic poll book to each precinct.
§3-4A-19. Conducting electronic voting system elections generally; duties of election officers;
penalties.
(a) The election officers shall constantly and diligently maintain a watch in order to see that
no person votes more than once and to prevent any voter from occupying the voting booth for more
than five minutes.
(b) In primary elections, before a voter is permitted to occupy the voting booth, the election
commissioner representing the party to which the voter belongs shall direct the voter to the
vote-recording device or supply the voter with a ballot, as may be appropriate, which will allow the
voter to vote only for the candidates who are seeking nomination on the ticket of the party with which
the voter is affiliated or for unaffiliated voters in accordance with section thirty-one, article two of
this chapter.
(c) The poll clerk shall issue to each voter when he or she signs the poll book a printed card
or ticket numbered to correspond to the number on the poll book of the voter and in the case of a
primary election, indicating the party affiliation of the voter, which numbered card or ticket is to be
presented to the election commissioner in charge of the voting booth.
(d) One hour before the opening of the polls the precinct election commissioners shall arrive
at the polling place and set up the voting booths in clear view of the election commissioners. Where
applicable, they shall open the vote-recording devices, place them in the voting booths, examine them
to see that they have the correct ballots or ballot labels, where applicable by comparing them with the
sample ballots, and determine whether they are in proper working order. They shall open and check
the ballots, the electronic poll books, if applicable, supplies, records and forms and post the sample
ballots or ballot labels and instructions to voters. Upon ascertaining that all ballots, supplies,
electronic poll books, if applicable, records and forms arrived intact, the election commissioners shall
certify their findings in writing upon forms provided and collected by the clerk of the county
commission over their signatures to the clerk of the county commission. Any discrepancies are to be
noted and reported immediately to the clerk of the county commission. The election commissioners
shall then number in sequential order the ballot stub of each ballot in their possession and report in
writing to the clerk of the county commission the number of ballots received. They shall issue the
ballots in sequential order to each voter.
(e) Upon entering a precinct which is using an electronic poll book, each voter shall be
verified by use of the electronic poll book to be a registered voter. If the voter is not registered
according to the electronic poll book within that precinct, the poll clerk is to inform the voter of the
proper precinct in which the voter is registered.
(f) Where applicable, each voter shall be instructed how to operate the vote-recording device
before he or she enters the voting booth.
(g) Where applicable, any voter who spoils, defaces or mutilates the ballot delivered to him
or her, on returning the ballot to the poll clerks, shall receive another in its place. Every person who
does not vote any ballot delivered to him or her shall, before leaving the election room, return the
ballot to the poll clerks. When a spoiled or defaced ballot is returned, the poll clerks shall make a
minute of the fact on the poll books, at the time, write the word 'spoiled' across the face of the ballot
and place it in an envelope for spoiled ballots.
Immediately on closing the polls, the election commissioners shall ascertain the number of
spoiled ballots during the election and the number of ballots remaining not voted. The election
commissioners shall also ascertain from the poll books the number of persons who voted and shall
report, in writing signed by them to the clerk of the county commission, any irregularities in the ballot
boxes, the number of ballots cast, the number of ballots spoiled during the election and the number
of ballots unused. All unused ballots are to be returned at the same time to the clerk of the county
commission who shall count them and record the number. All unused ballots shall be stored with the
other election materials and destroyed at the expiration of twenty-two months.
(h) Each commissioner who is a member of an election board which fails to account for every
ballot delivered to it is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more
than $1,000 or confined in jail for not more than one year, or both.
(i) The board of ballot commissioners of each county, or the chair of the board, shall preserve
the ballots that are left over in their hands, after supplying the precincts as provided, until the close
of the polls on the day of election and shall deliver them to the clerk of the county commission who
shall store them with the other election materials and destroy them at the expiration of twenty-two
months.
(j) Where ballots are used, the voter, after he or she has marked his or her ballot, shall, before
leaving the voting booth, place the ballot inside the envelope or sleeve provided for this purpose, with
the stub extending outside the envelope, and return it to an election commissioner who shall remove
the stub and deposit the envelope, if applicable, with the ballot inside in the ballot box. No ballot
from which the stub has been detached may be accepted by the officer in charge of the ballot box, but
the ballot shall be marked 'spoiled' and placed with the spoiled ballots. If an electronic voting system
is used that utilizes a screen on which votes may be recorded by means of a stylus or by means of
touch and the signal warning that a voter has attempted to cast his or her ballot has failed to do so
properly has been activated and the voter has departed the polling place and cannot be recalled by a
poll clerk to complete his or her ballot while the voter remains physically present in the polling place, then two election commissioners of different registered party affiliations, two poll clerks of different
registered party affiliations or an election commissioner and a poll clerk of different registered party
affiliations shall spoil the ballot.
(k) The precinct election commissioners shall prepare a report in quadruplicate of the number
of voters who have voted and, where electronic voting systems are used that utilize a screen on which
votes may be recorded by means of a stylus or by means of touch, the number of ballots that were
spoiled, as indicated by the poll books, and shall place two copies of this report in the ballot box or
where electronic voting systems are used that utilize a screen upon which votes may be recorded by
means of a stylus or by means of touch, shall place two copies of this report and the electronic ballot
devices in a container provided by the clerk of the county commission, which thereupon is to be
sealed with a paper seal signed by the election commissioners to ensure that no additional ballots may
be deposited or removed from the ballot box. Two election commissioners of different registered
party affiliations or two special messengers of different registered party affiliations appointed by the
clerk of the county commission, shall forthwith deliver the ballot box or container to the clerk of the
county commission at the central counting center and receive a signed numbered receipt therefor. The
receipt must carefully set forth in detail any and all irregularities pertaining to the ballot boxes or
containers and noted by the precinct election officers.
The receipt is to be prepared in duplicate, a copy of which remains with the clerk of the county
commission who shall have any and all irregularities noted. The time of their departure from the
polling place is to be noted on the two remaining copies of the report, which are to be immediately
mailed to the clerk of the county commission.
(l) The poll books, register of voters, unused ballots, spoiled ballots and other records and
supplies are to be delivered to the clerk of the county commission, all in conformity with the
provisions of this section.
§3-4A-20. Non-affiliated voters in primary elections.
If at any primary elections, nonpartisan candidates for office and public questions are
submitted to the voters on which persons registered as 'independent' are entitled to vote, as provided
in section eighteen article two of this chapter, the Unless a voter, not affiliated with a party, is
permitted to participate in the primary election of a political party, the following provisions apply to
voters, not affiliated with a party, in primary elections that include non-partisan candidates or public
questions:
(1) Election officers shall provide a vote recording device, where applicable, or the appropriate
ballot to be marked by an electronically sensible pen or ink, or by means of a stylus or by means of
touch or by other electronic means, so that independent voters not affiliated with a party may vote
only those portions of the ballot relating to the nonpartisan candidates and the public questions
submitted, or shall provide a ballot containing only provisions for voting for those candidates and
upon those issues submitted common to the ballots provided to all voters regardless of political party
affiliation, or both.
(2) In counties utilizing electronic voting systems in which votes are recorded by perforating,
if vote recording devices are not available for the independent voters not affiliated with a party,
provisions are to be made for sealing the partisan section or sections of the ballot or ballot labels on
a vote recording device using temporary seals, thus permitting the independent voter not affiliated
with a party to vote for the nonpartisan section or sections of the ballot or ballot labels.
(3) After the independent a voter not affiliated with a party has voted, the temporary seals may
be removed and the device may then be used by partisan voters.
§3-4A-27. Proceedings at the central counting center.
(a) All proceedings at the central counting center are to be under the supervision of the clerk
of the county commission and are to be conducted under circumstances which allow observation from
a designated area by all persons entitled to be present. The proceedings shall take place in a room of
sufficient size and satisfactory arrangement to permit observation. Those persons entitled to be
present include all candidates whose names appear on the ballots being counted or if a candidate is absent, a representative of the candidate who presents a written authorization signed by the candidate
for the purpose and two representatives of each political party on the ballot who are chosen by the
county executive committee chairperson. A reasonable number of the general public is also freely
admitted to the room. In the event all members of the general public desiring admission to the room
cannot be admitted at one time, the county commission shall provide for a periodic and convenient
rotation of admission to the room for observation, to the end that each member of the general public
desiring admission, during the proceedings at the central counting center, is to be granted admission
for reasonable periods of time for observation: Provided, That no person except those authorized for
the purpose may touch any ballot or ballot card or other official records and papers utilized in the
election during observation.
(b) All persons who are engaged in processing and counting the ballots are to work in teams
consisting of two persons of opposite political parties, and are to be deputized in writing and take an
oath that they will faithfully perform their assigned duties. These deputies are to be issued an official
badge or identification card which is assigned an identity control number and the deputies are to
prominently wear on his or her outer garments the issued badge or identification card. Upon
completion of the deputies' duties, the badges or identification cards are to be returned to the county
clerk.
(c) Ballots are to be handled and tabulated and the write-in votes tallied according to
procedures established by the Secretary of State, subject to the following requirements:
(1) In systems using punch card ballots, the ballot cards and secrecy envelopes for a precinct
are to be removed from the box and examined for write-in votes before being separated and stacked
for delivery to the tabulator. Immediately after valid write-in votes are tallied, the ballot cards are to
be delivered to the tabulator. No write-in vote may be counted for an office unless the voter has
entered the name of that office and the name of an official write-in candidate for that office on the
inside of the secrecy envelope, either by writing, affixing a sticker or label or placing an ink-stamped
impression thereon;
(2) (1) In systems using ballots marked with electronically sensible ink, ballots are to be
removed from the boxes and stacked for the tabulator which separates ballots containing marks for
a write-in position. Immediately after tabulation, the valid write-in votes are to be tallied. No
write-in vote may be counted for an office unless the voter has entered the name of an official write-in
candidate for that office on the line provided, either by writing, affixing a sticker or placing an
ink-stamped impression thereon;
(3) (2) In systems using ballots in which votes are recorded upon screens with a stylus or by
means of touch, the personalized electronic ballots are to be removed from the containers and stacked
for the tabulator. Systems using ballots in which votes are recorded upon screens with a stylus or by
means of touch are to tally write-in ballots simultaneously with the other ballots;
(4) (3) When more than one person is to be elected to an office and the voter desires to cast
write-in votes for more than one official write-in candidate for that office, a single punch or mark, as
appropriate for the voting system, in the write-in location for that office is sufficient for all write-in
choices. When there are multiple write-in votes for the same office and the combination of choices
for candidates on the ballot and write-in choices for the same office exceed the number of candidates
to be elected, the ballot is to be duplicated or hand counted, with all votes for that office rejected;
(5) (4) Write-in votes for nomination for any office and write-in votes for any person other
than an official write-in candidate are to be disregarded;
(6) (5) When a voter casts a straight ticket vote and also punches or marks the location for a
write-in vote for an office, the straight ticket vote for that office is to be rejected, whether or not a
vote can be counted for a write-in candidate; and
(7) (6) Official write-in candidates are those who have filed a write-in candidate's certificate
of announcement and have been certified according to the provisions of section four-a, article six of
this chapter.
(d) If any ballot card is damaged or defective so that it cannot properly be counted by the
automatic tabulating equipment, a true duplicate copy is to be made of the damaged ballot card in the presence of representatives of each political party on the ballot and substituted for the damaged ballot
card. All duplicate ballot cards are to be clearly labeled 'duplicate' and are to bear a serial number
which is recorded on the damaged or defective ballot card and on the replacement ballot card.
(e) The returns printed by the automatic tabulating equipment at the central counting center,
to which have been added write-in and other valid votes, are, when certified by the clerk of the county
commission, to constitute the official preliminary returns of each precinct or election district. Further,
all the returns are to be printed on a precinct basis. Periodically throughout and upon completion of
the count, the returns are to be open to the public by posting the returns as have been tabulated
precinct by precinct at the central counting center. Upon completion of the canvass, the returns are
to be posted in the same manner.
(f) If for any reason it becomes impracticable to count all or a part of the ballots with
tabulating equipment, the county commission may direct that they be counted manually, following
as far as practicable the provisions governing the counting of paper ballots.
(g) As soon as possible after the completion of the count, the clerk of the county commission
shall have the vote recording devices properly boxed or securely covered and removed to a proper and
secure place of storage."
The bill was then ordered to third reading.
Com. Sub. for S. B. 544, Relating to municipal policemen's and firemen's pension and relief
funds; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page twenty, following section twenty-eight, by striking the remainder
of the bill,
And,
By amending the enacting section to read as follows:
"That §8-22-16 and §8-22-20 of the Code of West Virginia, 1931, as amended, be amended
and reenacted; and that §8-22A-28 of said code be amended and reenacted, all to read as follows" followed by a colon.
The bill was then ordered to third reading.
Com. Sub. for S. B. 592, Requiring schools have crisis response plans; on second reading,
coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Education, was reported by the Clerk and
adopted, amending the bill on page one, following the enacting clause, by striking the remainder of
the bill and inserting in lieu thereof the following:
"That §18-9F-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that said code be amended by adding thereto a new section, designated §18-9F-9; and that §18-28-2
of said code be amended and reenacted, all to read as follows:
ARTICLE 9F. SCHOOL ACCESS SAFETY AND CRISIS RESPONSE ACT.
§18-9F-1. Legislative findings and intent.
(a) The Legislature finds that:
(1) Establishing and maintaining safe and secure schools is critical to fostering a healthy
learning environment and maximizing student achievement;
(2) All school facilities in the state should be designed, constructed, furnished and maintained
in a manner that enhances a healthy learning environment and provides necessary safeguards for the
health, safety and security of persons who enter and use the facilities;
(3) Adequate safeguards for the ingress to and egress from school facilities of pupils, school
employees, parents, visitors and emergency personnel are critical to the overall safety of the public
schools in this state;
(4) Safety upgrades to the means of ingress to and egress from school facilities for pupils,
school employees, parents, visitors and emergency personnel must be part of a comprehensive
analysis of overall school safety issues that takes into consideration the input of local law-
enforcement agencies, local emergency services agencies, community leaders, parents, pupils,
teachers, administrators and other school employees interested in the prevention of school crime and violence;
(5) In order to help ensure safety in all schools within the state and to be prepared to
adequately respond to potential crises, including any traumatic event or emergency condition that
creates distress, hardship, fear or grief, each school must have an up-to-date comprehensive crisis
response plan as detailed in section nine of this article.
(b) It is the intent of the Legislature to empower the School Building Authority to facilitate
and provide state funds for the design, construction, renovation, repair and upgrading of facilities so
as to enhance school access safety and provide secure ingress to and egress from school facilities to
pupils, school employees, parents, visitors and emergency personnel.
§18-9F-9. Crisis Response Plan.
(a) The state board in conjunction with the Division of Homeland Security and Emergency
Management shall promulgate by December 31, 2011, a legislative rule in accordance with article
three-b, chapter twenty-nine-a of this code, and if necessary may promulgate an emergency rule in
accordance with said article, for the establishment of an up-to-date, school specific crisis response
plan at every school in the state. In developing the rule, the state board shall consider plans currently
being developed as part of the safe schools initiative currently underway by the School Building
Authority and the Division of Homeland Security and Emergency Management. In addition, those
portions of a school's access safety plan created pursuant to section three of this article may be used
as a portion of the school's school specific crisis response plan if there are any overlapping
requirements. The rule shall provide for at least the following:
(1) A model school crisis response plan for use by each school in the state, including a
uniform template which shall be used by each school to file the plan, including at least the following
information, in a secure electronic system identified by the Division of Homeland Security and
Emergency Management:
(A) The school employee in charge during a crisis and a designated substitute;
(B) A communication plan to be used during a crisis;
(C) Protocols for responding to immediate physical harm of students, faculty or staff and to
traumatic events, including the period after the events have concluded;
(D) Disaster and emergency procedures to respond to earthquakes, fire, flood, other natural
disasters, explosions or other events or conditions in which death or serious injury is likely;
(E) Crisis procedures for safe entrance to and exit from the school by students, parents, and
employees, including an evacuation and lock down plan; and
(F) Policies and procedures for enforcing school discipline and maintaining a safe and orderly
environment during the crisis.
(2) A requirement that each school's school specific crisis response plan shall be in place and
filed with that school's county board, and included in a secure electronic system identified by the
Division of Homeland Security and Emergency Management, no later than August 1, 2013, or soon
after completion by the school, whichever occurs first;
(3) The necessary safeguards to protect information contained in each school specific crisis
response plan that may be considered protected critical infrastructure information, law enforcement
sensitive information or for official use only. These safeguards must have the approval the Division
of Homeland Security and Emergency Management. County boards shall provide the same necessary
safeguards for the information in the plan;
(4) The annual review and necessary update of the model plan and uniform template by state
board in conjunction with the Division of Homeland Security and Emergency Management by
December 31 of each year after 2011;
(5) The development by each school of a school specific crisis response plan by using the state
board's model plan as an example and with consultation from local social services agencies, local first
response agencies including police, fire, emergency medical services (EMS), emergency management
and any other local entities that the school's crisis response planning team determines should be
consulted;
(6) Procedures for the annual review and update if necessary by each school of its school specific crisis response planning plan. Each school shall file either an updated crisis response plan
or a memorandum stating that no update to the crisis response plan was necessary with its county
board and the Division of Homeland Security and Emergency Management no later than August 1
of each year after 2013.
(7) Procedures for each school within the state to form a crisis response planning team, which
team may consist of the school's Local School Improvement Council or a separate team consisting
of the principal, two teachers, one service person and two parents of children attending the school.
In addition the school may include on the team one member of the county board, a school counselor,
a member from local law-enforcement authorities, the local county emergency services director and
one student in grade ten or higher if the school has those grades;
(8) Procedures for informing and training school personnel on any actions required of them
to effectuate the school's school specific crisis response plan;
(9) A model template for redacted copies of the school crisis response plan for the public
inspection and for the release and notice to parents of information related to the plan; and
(10) Procedures for non public schools to establish, file and update school crisis response
plans consistent with subdivision (1) subsection (a) of this section.
(b) The county board shall keep the current crisis response plan of each school in the county
on file and, unless otherwise provided for, provide a copy of each school's crisis response plan to each
local emergency response agency that has a role in the plan. Local emergency response agencies that
maintain a copy of the plan shall provide the necessary safeguards for the information in the plan
established pursuant to the state board rule promulgated pursuant to subsection (a) of this section.
Upon request, a redacted copy of a school crisis response plan shall be made available for inspection
by the public with any information removed that is necessary for compliance with the necessary
safeguards. Starting with the 2012-2013 school year, each school shall annually send notice home
to all parents and guardians of students at the school alerting the parents and guardians to the
existence of the crisis response plan and the ability to review a redacted copy at the offices of the county board.
ARTICLE 28. PRIVATE, PAROCHIAL OR CHURCH SCHOOLS OR SCHOOLS OF A
RELIGIOUS ORDER.
§18-28-2. Attendance; health and safety regulations.
The following is applicable to each private, parochial or church school schools or school
schools of a religious order:
(a) Each school shall observe a minimum instructional term of one hundred eighty days with
an average of five hours of instruction per day;
(b) Each school and shall make and maintain annual attendance and disease immunization
records for each pupil enrolled and regularly attending classes. Such The attendance records shall be
made available to the parents or legal guardians;
(c) Upon the request of the county superintendent, of schools any a school to which this
applies (or a parents organization composed of the parents or guardians of children enrolled in said
the school) shall furnish to the county board of education a list of the names and addresses of all
children enrolled in such the school between the ages of seven and sixteen years;
(d) Attendance by a child at any school to which this article relates and which complies with
this article shall satisfy satisfies the requirements of compulsory school attendance;
(e) Each such school shall be is subject to reasonable fire, health and safety inspections by
state, county and municipal authorities as required by law, and shall further be is required to comply
with the West Virginia school bus safety regulations; and
(f) Each school shall establish, file and update a school specific crisis response plan which
complies with the requirements established for it by the state board and the Division of Homeland
Security and Emergency Management pursuant to section nine, article nine-f of this chapter."
The bill was then ordered to third reading.
S. B. 612, Exempting certain schools and school districts from certain statutory provisions;
on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for H. B. 3029, Relating to crimes using computers, telephones and electronic
communications devices; on second reading, coming up in regular order, was read a second time.
On motion of Delegate Boggs, the bill (Com. Sub. for H. B. 3029) was laid upon the table.
First Reading
The following bills on first reading, coming up in regular order, were each read a first time
and ordered to second reading:
Com. Sub. for S. B. 112, Authorizing Department of Administration promulgate legislative
rules,
Com. Sub. for S. B. 121, Authorizing DEP promulgate legislative rules,
Com. Sub. for S. B. 177, Authorizing Department of Revenue promulgate legislative rules,
Com. Sub. for S. B. 195, Relating to requirements to serve as magistrate,
Com. Sub. for S. B. 219, Relating to maintaining solvency of Unemployment Compensation
Fund,
Com. Sub. for S. B. 228, Creating Local Solution Dropout Prevention and Recovery Act,
Com. Sub. for S. B. 241, Relating to Division of Tourism and Tourism Commission,
Com. Sub. for S. B. 242, Dedicating portion of coal severance tax to county of origin,
Com. Sub. for S. B. 253, Amending insurance code with respect to holding companies,
Com. Sub. for S. B. 461, Providing criminal penalty for violating restraining order entered
upon conviction for stalking or harassment,
Com. Sub. for S. B. 484, Relating to management agreements of Higher Education Policy
Commission,
S. B. 546, Relating to municipal police and firefighter pensions,
Com. Sub. for S. B. 550, Relating generally to gaming at licensed racetracks and historic
resort hotels,
S. B. 563, Authorizing municipalities to create deferred retirement option plans for certain employees,
S. B. 581, Changing beginning date for early voting; allowing Saturday early voting,
S. B. 608, Increasing fees for services and documents issued by DMV,
S. B. 614, Permitting specific law-enforcement officials access to certain confidential
pharmaceutical information,
And,
Com. Sub. for H. B. 2012, Budget Bill, making appropriations of public money out of the
treasury in accordance with section fifty-one, article six of the Constitution.
At 11:55 a.m., on motion of Delegate Boggs, the House of Delegates recessed until 5:30 p.m.,
and reconvened at that time.
* * * * * * *
Evening Session
* * * * * * *
Messages from the Executive
The Speaker laid before the House a Proclamation extending the session for the sole purpose
of consideration of the Budget Bill, which was read by the Clerk as follows:
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 Constitution of West Virginia delineates the respective powers, duties and
responsibilities of the three separate branches of government; and
Whereas, Article VI, Section 22 of the Constitution of West Virginia provides that this
session of the Legislature not exceed sixty calendar days computed from and including the second
Wednesday of January; and
Whereas, Pursuant to Article VI, Section 22 of the Constitution of West Virginia, the 2011
regular session of the Legislature concludes on March 12, 2011; and
Whereas, Article VI, Section 51 of the Constitution of West Virginia sets forth the legal
authority of the Governor and the Legislature relating to the preparation and enactment of the Budget
Bill; and
Whereas, Subsection D of said section requires the Governor to issue a proclamation to
extend the regular session of the Legislature if the Budget Bill shall not have been fully acted upon
by the Legislature three days before the expiration of its regular session; and
Whereas, The Legislature has not finally acted upon the Budget Bill three days before the
expiration of this current regular session of the State Legislature.
Now, Therefore, I, Earl Ray Tomblin, by virtue of the authority vested in me as the
Governor of the State of West Virginia, do hereby issue the following proclamation, in accordance
with Article VI, Section 51, Subsection D(8) of the Constitution of West Virginia, extending this
regular session of the State Legislature for consideration of the Budget Bill for a period not to exceed
three days beyond the conclusion of this regular session, including any extension thereof, under the
provisions of Article VI, Section 22 of the constitution of West Virginia; but no matters other than
the Budget Bill and a provision for the cost of said extended session shall be considered during this
extension of the session.
In Witness Whereof, I have hereunto set my hand and caused the Great Seal of the State of
West Virginia to be affixed.
(Great Seal)
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DONE at the Capitol in the City of Charleston,
State of West Virginia, this ninth day of March,
in the year of our Lord, Two Thousand and
Eleven, and in the One Hundred Forty-Eighth
year of the State.
EARL RAY TOMBLIN,
Governor.
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By the Governor:
Natalie E. Tennant
Secretary of State.
At the request of Delegate Boggs, and by unanimous consent, the House of Delegates
returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports
Chairman Miley, from the Committee on the Judiciary, submitted the following report, which
was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 424, Creating Natural Gas Horizontal Well Control Act,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, and with the recommendation that second reference of the bill to the Committee on Finance
be dispensed with.
Delegate Boggs then asked unanimous consent that reference of the bill to the Committee on
Finance be dispensed with, which consent was not given, Delegate Cann objecting.
The Speaker then referred Com. Sub. for S. B. 424 to the Committee on Finance.
Chairman Poore, from the Joint Committee on Enrolled Bills, submitted the following report,
which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled and, on the 9
th
day of March, 2011, presented to His Excellency, the Governor, for his action, the following bill,
signed by the President of the Senate and the Speaker of the House of Delegates:
H. B. 2708, Removing a twelve-month limitation for certain agreements between or among
law-enforcement agencies.
Chairman Miley , from the Committee on the Judiciary, submitted the following report, which
was received:
Your Committee on the Judiciary has had under consideration:
S. B. 285, Extending time frame practitioners must write prescriptions on official
tamper-resistant paper,
Com. Sub. for S. B. 391, Relating to community voting locations generally,
Com. Sub. for S. B. 472, Relating to portable electronics insurance,
And,
Com. Sub. for S. B. 560, Relating to confidentiality of Health Care Authority's rate-setting
model,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended.
On motion for leave, a bill was introduced (Originating in the Committee on Finance and
reported with the recommendation that it do pass), which was read by its title, as follows:
By Delegates White, T. Campbell, M. Poling, Manchin, Iaquinta, Kominar, Perdue,
Doyle, Guthrie, Anderson and Walters:
H. B. 3272 - "A Bill expiring funds to the unappropriated surplus balance in the State Fund,
General Revenue, for the fiscal year ending June 30, 2011 in the amount of $3,900,000 from the
Governor's Office - Civil Contingent Fund, fund 0105, fiscal year 2009, organization 0100, activity 236, and in the amount of $7,100,000 from the Department of Military Affairs and Public Safety -
Office of the Secretary, fund 0430, fiscal year 2006, organization 0601, activity 511, and making a
supplementary appropriation of public moneys out of the Treasury from the balance of moneys
remaining as an unappropriated surplus balance in the State Fund, General Revenue, to the Auditor's
Office - General Administration, fund 0116, fiscal year 2011, organization 1200, to the Department
of Agriculture, fund 0131, fiscal year 2011, organization 1400, to the Department of Administration -
Ethics Commission, fund 0223, fiscal year 2011, organization 0220, to the Department of
Administration - Public Defender Services, fund 0226, fiscal year 2011, organization 0221, to the
Department of Education - State Department of Education, fund 0313, fiscal year 2011, organization
0402, to the Department of Health and Human Resources - Consolidated Medical Service Fund, fund
0525, fiscal year 2011, organization 0506, to the Department of Health and Human Resources -
Division of Human Services, fund 0403, fiscal year 2011, organization 0511, to the Department of
Military Affairs and Public Safety - West Virginia Parole Board, fund 0440, fiscal year 2011,
organization 0605, to the Department of Military Affairs and Public Safety - Division of Corrections -
Correctional Units, fund 0450, fiscal year 2011, organization 0608, to the Department of Military
Affairs and Public Safety - Division of Veterans' Affairs, fund 0456, fiscal year 2011, organization
0613, and to Higher Education - Higher Education Policy Commission - Administration - Control
Account, fund 0589, fiscal year 2011, organization 0441, and to Higher Education Policy
Commission - System Control Account, fund 0586, fiscal year 2011, organization 0442, by
supplementing and amending the appropriations for the fiscal year ending June 30, 2011."
Chairman White, from the Committee on Finance, submitted the following report, which was
received:
Your Committee on Finance has had under consideration:
S. B. 35, Increasing nonfamily adoption tax credit,
And reports the same back with the recommendation that it do pass.
Chairman , from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 570, Creating Volunteer for Nonprofit Youth Organizations Act,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
Chairman , from the Committee on the Judiciary, submitted the following report, which was
received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 335, Authorizing certain municipalities regulate taxis and taxi stands
by ordinance,
Com. Sub. for S. B. 488, Revising HIV testing statute to conform with most recent
recommendations from CDC,
And,
Com. Sub. for S. B. 569, Increasing maximum homeowners' associations' fees; exception
for certain expense liability planned communities,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended.
Chairman White, from the Committee on Finance, submitted the following report, which was
received:
Your Committee on Finance has had under further consideration:
Com. Sub. for H. B. 3145, Providing a one-time bonus to certain annuitants of the Public
Employees Retirement System and the State Teachers Retirement System,
And reports the same back, with amendment to the Senate amendment, with the
recommendation that it do pass, as amended.
Chairman White, from the Committee on Finance, submitted the following report, which was
received:
Your Committee on Finance has had under consideration:
Com. Sub. for S.B. 245, Relating to protection of Chesapeake Bay Watershed,
And,
Com. Sub. for S.B. 330, Relating to higher education personnel generally,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended.
Chairman White, from the Committee on Finance, submitted the following report, which was
received:
Your Committee on Finance has had under consideration:
S.B. 366, Relating to Underground Storage Tank Administrative Fund,
And reports the same back with the recommendation that it do pass.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the
House of Delegates, as follows:
Com. Sub. for H. B. 2555, Establishing the offense of operating a motor vehicle while
sending, reading or receiving a text message.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page fourteen, after section fifteen, by adding a new section, designated section forty-nine,
to read as follows:
"ARTICLE 15. EQUIPMENT.
§17C-15-49. Operation of vehicles with safety belts; exception; penalty; civil actions;
educational program by West Virginia State Police.
(a) Effective September 1, one thousand nine hundred ninety-three 2011, a person may not
operate a passenger vehicle on a public street or highway of this state unless the person, any passenger in the back seat under eighteen years of age and any passenger in the front seat of such the passenger
vehicle is restrained by a safety belt meeting applicable federal motor vehicle safety standards. For
the purposes of this section, the term "passenger vehicle" means a motor vehicle which is designed
for transporting ten passengers or less, including the driver, except that such the term does not include
a motorcycle, a trailer or any motor vehicle which is not required on the date of the enactment of this
section under a federal motor vehicle safety standard to be equipped with a belt system. The
provisions of this section shall apply to all passenger vehicles manufactured after January 1, 1967,
and being 1968 models and newer.
(b) The required use of safety belts as provided herein in this section does not apply to a duly
appointed or contracted rural mail carrier of the United States Postal Service who is actually making
mail deliveries or to a passenger or operator with a physically disabling condition whose physical
disability would prevent appropriate restraint in such the safety belt if the condition is duly certified
by a physician who shall state states the nature of the disability as well as the reason such the restraint
is inappropriate. The Division of Motor Vehicles shall adopt propose rules for legislative approval,
in accordance with the provisions of chapter twenty-nine-a of this code, to establish a method to
certify the physical disability and to require use of an alternative restraint system where feasible or
to waive the requirement for the use of any restraint system.
(c) Any person who violates the provisions of this section shall be fined not more than twenty-
five $15. No court costs or other fees shall Court costs or other fees may not be assessed for a
violation of this section. Enforcement of this section shall be accomplished only as a secondary
action when a driver of a passenger vehicle has been detained for probable cause of violating another
section of this code.
(d) A violation of this section is not admissible as evidence of negligence or contributory
negligence or comparative negligence in any civil action or proceeding for damages and shall is not
be admissible in mitigation of damages: Provided, That the court may, upon motion of the defendant,
conduct an in camera hearing to determine whether an injured party's failure to wear a safety belt was a proximate cause of the injuries complained of. Upon such a finding by the court, the court may
then, in a jury trial, by special interrogatory to the jury, determine: (1) That the injured party failed
to wear a safety belt; and (2) that the failure to wear the safety belt constituted a failure to mitigate
damages. The trier of fact may reduce the injured party's recovery for medical damages by an amount
not to exceed five percent thereof of the medical damages. In the event the plaintiff stipulates to the
reduction of five percent of medical damages, the court shall make the calculations and the issue of
mitigation of damages for failure to wear a safety belt shall may not be presented to the jury. In all
cases, the actual computation of the dollar amount reduction shall be determined by the court.
(e) Notwithstanding any other provision of this code to the contrary, no points may be entered
on any driver's record maintained by the Division of Motor Vehicles as a result of a violation of this
section.
(f) Commencing the first day of July, one thousand nine hundred ninety-three The Governor's
Highway Safety Program, in cooperation with the division of public safety West Virginia State Police
and any other state departments or agencies and with county and municipal law-enforcement agencies,
shall initiate and conduct an educational program designed to encourage compliance with safety belt
usage laws. This program shall be focused on the effectiveness of safety belts, the monetary savings
and the other benefits to the public from usage of safety belts and the requirements and penalties
specified in this law.
(g) Nothing contained in this section shall be construed to abrogate or alter abrogates or alters
the provisions of section forty-six of this article relating to the mandatory use of child passenger
safety devices.;
And,
By striking out the enacting section and inserting in lieu thereof a new enacting section, to
read as follows:
That §17B-2-3a of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that said code be amended by adding thereto a new section, designated §17C-14-15; and that §17C-15-49 of said code be amended and reenacted, all to read as follows" and a colon.
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2555 - "A Bill to amend and reenact §17B-2-3a of the Code of West
Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated
§17C-14-15; and to amend and reenact §17C-15-49 of said code, all relating to traffic safety;
establishing the primary misdemeanor offense of operating a motor vehicle while sending or reading
a text message; providing exceptions; providing definitions; providing penalties; making graduated
driver's license provisions consistent with new offense; making the offense of failure to wear safety
belts a primary offense; and modifying fines."
On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate
amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect from passage, a bill of the House of Delegates, as follows:
H. B. 2971, Relating to the definition of the term "durable medical equipment".
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §11-15-3a and §11-15-9i of the Code of West Virginia, 1931, as amended, be amended
and reenacted, all to read as follows:
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-3a. Rate of tax on food and food ingredients intended for human consumption; reductions of tax beginning
July 1, 2008 and January 1, 2012.
(a) Rate of tax on food and food ingredients. -- Notwithstanding any provision of this article
or article fifteen-a of this chapter to the contrary, the rate of tax on sales, purchases and uses of food
and food ingredients intended for human consumption after the thirty-first day of December, two
thousand five, shall be five percent of its sales price, as defined in section two, article fifteen-b of this
chapter: Provided, That the rate of tax on sales, purchases and uses of food and food ingredients, as
defined in said section, that is intended for human consumption after the thirtieth day of June, two
thousand seven, shall be four percent of its sales price, as defined in said section: Provided, however,
That the rate of tax on sales, purchases and uses of food and food ingredients as defined in said
section that is intended for human consumption after the thirtieth day of June, two thousand eight
June 30, 2008, shall be three percent of its sales price, as defined in said section two, article fifteen-b
of this chapter: Provided, That the rate of tax on sales, purchases and uses of food and food
ingredients as defined in said section that is intended for human consumption after December 31,
2011, shall be two percent of its sales price, as defined in said section.
(b) Calculation of tax on fractional parts of a dollar. -- The tax computation under this section
shall be carried to the third decimal place and the tax rounded up to the next whole cent whenever the
third decimal place is greater than four and rounded down to the lower whole cent whenever the third
decimal place is four or less. The seller may elect to compute the tax due on a transaction on a per
item basis or on an invoice basis provided the method used is consistently used during the reporting
period.
(c) Federal food stamp and women, infants and children programs, other exemptions. --
Nothing in this section shall affect application of the exemption from tax provided in section nine of
this article for food purchased by an eligible person using food stamps, electronic benefits transfer
cards or vouchers issued by or pursuant to authorization of the United States Department of
Agriculture to individuals participating in the federal food stamp program, by whatever name called,
or the women, infants and children (WIC) program, or application of any other exemption from tax set forth in this article or article fifteen-a of this chapter.
§11-15-9i. Exempt drugs, durable medical equipment, mobility enhancing equipment and
prosthetic devices.
(a) Notwithstanding any provision of this article, article fifteen-a or article fifteen-b of this
chapter, the purchase by a health care provider of drugs, durable medical goods equipment, mobility
enhancing equipment and prosthetic devices, all as defined in section two, article fifteen-b of this
chapter, to be dispensed upon prescription and intended for use in the diagnosis, cure, mitigation,
treatment or prevention of injury or disease are exempt from the tax imposed by this article.
(b) For purposes of this exemption, 'health care provider' means any person licensed to
prescribe drugs, durable medical goods equipment, mobility enhancing equipment and prosthetic
devices intended for use in the diagnosis, cure, mitigation, treatment or prevention of injury or
disease. For purposes of this section, the term 'health care provider' includes any hospital, medical
clinic, nursing home or provider of inpatient hospital services and any provider of outpatient hospital
services, physician services, nursing services, ambulance services, surgical services or veterinary
services: Provided, That the amendment to this subsection enacted during the 2009 regular legislative
session shall be effective on or after July 1, 2009.
(c) This section shall be effective July 1, 2007. The term 'durable medical goods' as used in
this article means 'durable medical equipment' as defined in section two, article fifteen-b of this
chapter."
And,
By amending the title of the bill to read as follows:
H. B. 2971 - "A Bill to amend and reenact §11-15-3a and §11-15-9i of the Code of West
Virginia, 1931, as amended, all relating to the consumers sales and service tax, generally; reducing
the consumers sales and service tax on sales, purchases and uses of food and food ingredients
intended for human consumption on a date certain; and defining the term 'durable medical
equipment'."
Delegate Armstead was recognized and announced that he had filed amendments to the Senate
amendment, and that said amendments were lodged with the Clerk.
The Speaker then recognized the Majority Leader, who raised a point of parliamentary inquiry
as to the House's position on the offering and consideration of House amendments to Senate
amendments which are amendments other than of a technical nature.
To the parliamentary inquiry, the Speaker replied that the long-established historical
development and precedent of the House was to permit the offering and consideration of a motion to
concur in Senate amendments with amendment only to rectify technical discrepancies, as had been
advised by the Clerk.
He further stated that in years prior to his becoming Speaker, the practice too often resulted
in creating substantive changes to the text of bills, often unbeknown to members. He iterated that he
had stopped the practice upon becoming Speaker, and that upon consultation with the Clerk, the
amendments tendered by Delegate Armstead represented substantive changes to the text and would
not be considered in light of the legal precedents heretofore originally established by this House.
Delegate Boggs then moved that the House of Delegates concur in the Senate amendments
to H. B. 2971, and on this motion, the yeas and nays were demanded, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 274), and there were--yeas
91, nays 2, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Cann and Michael.
Absent and Not Voting: Azinger, Crosier, Morgan, O'Neal, L. Phillips, Skaff and
Stephens.
So, a majority of the members present and voting having voted in the affirmative, the motion
to concur in the Senate amendments prevailed.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 275), and there were--yeas
89, nays 4, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Cann, Gearheart, Householder and Michael.
Absent and Not Voting: Azinger, Crosier, Morgan, O'Neal, L. Phillips, Skaff and
Stephens.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2971) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 276), and there were--yeas 91, nays
2, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Cann and Michael.
Absent and Not Voting: Azinger, Crosier, Morgan, O'Neal, L. Phillips, Skaff and
Stephens.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2971) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
At 5:47 p.m., the House of Delegates adjourned until 11:00 a.m., Thursday, March 10, 2011.
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