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WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

FIRST EXTRAORDINARY SESSION, 2009

FIRST DAY

____________

Charleston, W. Va., Sunday, May 31, 2009

Pursuant to the proclamation of His Excellency, the Governor, the Honorable Joe Manchin III, dated the twenty-ninth day of May, two thousand nine, convening the seventy-ninth Legislature of West Virginia in extraordinary session today (Sunday, May 31, 2009), under the provisions of section seven, article VII of the Constitution of West Virginia, the Senate assembled in its chamber in the state capitol in the City of Charleston immediately upon adjournment sine die of the Extended Budget Session and was called to order by its President, the Honorable Earl Ray Tomblin.
Prayer was offered by Karl C. Lilly III, Senate senior consultant, Sissonville, West Virginia.
On the call of the roll, the following answered to their names:
Senators Barnes, Bowman, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President).
Thirty-two members having answered to their names, the President declared the presence of a quorum.
Executive Communications

Senator Tomblin (Mr. President) laid before the Senate the following proclamation from His Excellency, the Governor, convening the Legislature in extraordinary session, which was read by the Clerk:
STATE OF WEST VIRGINIA

EXECUTIVE DEPARTMENT

CHARLESTON

A P R O C L A M A T I O N

By the Governor

I, JOE MANCHIN III, GOVERNOR of the State of West Virginia, by virtue of the authority vested in me by Section 7, Article VII of the Constitution of West Virginia, do hereby call the Legislature of West Virginia to convene in Extraordinary Session upon adjournment sine die of the 2009 Regular Session, as extended by Senate Concurrent Resolution No. 68, in its chambers in the State Capitol, City of Charleston, for the sole purpose of considering and acting upon the following matters:
FIRST: Certain supplementary appropriation bills.
SECOND: Certain ceremonial resolutions.
THIRD: Legislation relating generally to the establishment of critical skills instructional support programs for students in grades three and eight; establishing procedures and requirements for implementing critical skills instructional support programs; and authorizing mandated attendance at a summer critical skills instructional support program as a condition for promotion under certain circumstances.
FOURTH: Legislation relating to the valuation of certain property used in a high-technology business or internet advertising business at salvage value for ad valorem property tax purposes; exempting the sale of certain goods used in a high-technology business or internet advertising business from the consumers sales and service tax; and permitting a contractor to assert, under certain circumstances, an exemption from the consumers sales and service tax to which his or her principal is entitled.
FIFTH: Legislation relating to enhancing opportunities for post-mine development of reclaimed surface mine property; requiring certain counties to develop master land use plans for post-mine development; requiring surface mine permits to contain reclamation plans that comport with approved master land use plans; authorizing the Department of Environmental Protection to approve alternative post-mine land uses under certain circumstances; and enhancing and clarifying procedures relating to the development of master land use plans.
SIXTH: Legislation relating generally to the establishment of minimum alternative and renewable energy portfolio requirements; requiring, by the year 2025, each electric utility doing business in West Virginia to purchase or generate the equivalent of at least twenty-five percent of electricity sold to electric retail customers in the state during the previous calendar year; providing for the establishment of a tradeable system of credits to track and verify the purchase and generation of electricity produced from alternative and renewable energy sources, electricity conserved through certain energy efficiency and demand-side energy initiative projects, emissions reduced through certain emission reduction or offset projects, or electricity generated from alternative or renewable energy sources operated by certain electric retail customers; authorizing the administration and enforcement of alternative and renewable energy portfolio requirements by the Public Service Commission; providing for certain cost recovery and rate incentives; requiring the Public Service Commission to initiate a general investigation into certain alternative and renewable energy standards; requiring the Public Service Commission to adopt certain net metering and interconnection standards; and creating a grant program for certain alternative and renewable energy projects.
SEVENTH: Legislation relating to increasing the share of adjusted gross receipts from pari-mutuel racetracks with West Virginia Lottery racetrack table games allocated to certain municipalities and counties after each pari-mutuel racetrack in the state is licensed to offer West Virginia Lottery racetrack table games; providing a corresponding adjustment of funds transferred to the state; and providing for a two-year increase in funds allocated to the Lottery Commission for administration and enforcement.
EIGHTH: Legislation relating to reclassifying licenses for the retail sale of liquor as freestanding licenses and mixed retail licenses; setting forth procedures and requirements for the issuance of each class of retail licenses; and providing a purchase option and financing procedures for certain current licensees seeking to operate a freestanding liquor retail outlet.
NINTH: Legislation relating to requiring the Division of Personnel and the Department of Health and Human Resources to jointly develop pay rates and employment requirements to support the recruitment and retention of certain classified service positions at Mildred Mitchell-Bateman Hospital and William R. Sharpe, Jr. Hospital.
TENTH: Legislation relating to the continuation of the Motor Fuel Excise Tax Shortfall Reserve Fund and specifying the termination of the fund on June 31, 2013.
ELEVENTH: Legislation relating to the development of innovative educational strategies in West Virginia schools; establishing certain procedures and requirements for the designation of school innovation zones; providing procedures for the waiver of certain rules, policies, interpretations or statutes in school innovation zones; and authorizing state institutions of higher education to establish schools designated as innovation zones subject to certain funding restrictions.
TWELFTH: Legislation relating generally to employment policies, standards and requirements for school personnel; revising certain dates and deadlines; and authorizing the posting of certain positions upon a classroom teacher's notice of retirement.
THIRTEENTH: Legislation relating to a personal income tax modification to adjusted gross income for parents or guardians contributing to a trust fund established for the future support of a child with autism; creating the West Virginia Children with Autism Trust Board; and establishing procedures and requirements for taxpayers claiming the personal income tax modification.
FOURTEENTH: Legislation to authorize and appropriate the expenditure of public moneys to pay the expenses of this Extraordinary Session.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of West Virginia to be affixed.
DONE at the Capitol in the City of Charleston, State of West Virginia, on this the twenty- ninth day of May, in the year of our Lord, Two Thousand Nine, and in the One Hundred Forty-Sixth year of the State.

JOE MANCHIN III,
Governor.
By the Governor:

Natalie E. Tennant,
Secretary of State.
Senator Tomblin (Mr. President) then laid before the Senate the following supplement to the proclamation dated May 29, 2009, from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

EXECUTIVE DEPARTMENT

CHARLESTON

A P R O C L A M A T I O N

By the Governor

I, JOE MANCHIN III, GOVERNOR of the State of West Virginia, by virtue of the authority vested in me by Section 7, Article VII of the Constitution of West Virginia, do hereby AMEND my Proclamation dated the twenty-ninth day of May, two thousand nine, calling the Legislature of West Virginia to convene in Extraordinary Session upon adjournment sine die of the 2009 Regular Session, as extended by Senate Concurrent Resolution No. 68, in its chambers in the State Capitol, City of Charleston, to include the following matters to be considered and acted upon:
FIFTEENTH: Legislation relating to authorizing certain county commissions to regulate by ordinance the location of businesses offering exotic entertainment.
SIXTEENTH: Legislation relating generally to the issuance of bonds for certified capital improvement projects at state institutions of higher education and certified capital improvement projects at state parks, the capitol complex, other state facilities or tourism sites; allocating sixty percent of bond proceeds for certified capital improvement projects at state institutions of higher education; allocating the balance of bond proceeds for certified capital improvement projects at state parks, the capitol complex, other state facilities or tourism sites; providing for the selection of certain capital improvement projects by the Higher Education Policy Commission; providing for the selection of certain capital improvement projects by a committee composed of certain individuals; providing for the final certification of projects by the Governor; and authorizing the expenditure of moneys in the Community and Technical College Capital Improvement Fund for certain capital improvement projects.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of West Virginia to be affixed.
DONE at the Capitol in the City of Charleston, State of West Virginia, on this the thirty-first day of May, in the year of our Lord, Two Thousand Nine, and in the One Hundred Forty-Sixth year of the State.

JOE MANCHIN III,
Governor.
By the Governor:

Natalie E. Tennant,
Secretary of State.
Senator Chafin offered the following resolution:
Senate Resolution No. 101--Raising a committee to inform the House of Delegates the Senate has assembled in extraordinary session.
Resolved by the Senate:
That a committee of three be appointed by the President to inform the House of Delegates that the Senate has assembled in extraordinary session, with a quorum present, and is ready to proceed with the business for which the extraordinary session was called by His Excellency, the Governor.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Whereupon, the President appointed as members of such committee the following:
Senators Oliverio, D. Facemire and Guills.
Subsequently, Senator Oliverio, from the committee to notify the House of Delegates the Senate has assembled in extraordinary session, and is ready to proceed with the business of the session, announced that the committee had discharged its duties.
A message from the House of Delegates, by
Delegates Iaquinta, Shook and Schadler, announced that the House of Delegates has assembled in extraordinary session, with a quorum present, and is ready to proceed with the business stated in the proclamation convening the Legislature.
Senator Chafin then offered the following resolution:
Senate Resolution No. 102--Raising a committee to wait upon the Governor.
Resolved by the Senate:
That a committee of three on the part of the Senate, to join with a similar committee on the part of the House of Delegates, be appointed by the President to notify His Excellency, the Governor, that at his call the Legislature has assembled in extraordinary session, with a quorum of each house present; and is ready to receive any communication or message he may be pleased to present under section seven, article seven of the Constitution of West Virginia, which provides that no business except that stated in his proclamation be considered.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Whereupon, the President appointed as members of such committee the following:
Senators Fanning, Minard and Caruth.
A message from the House of Delegates, by
Delegates Moore, D. Poling and Evans, announced that the Speaker had appointed them a committee of three to join with a similar committee on the part of the Senate to wait upon the Governor, under the provisions of Senate Resolution No. 102. Senate and House members of this select committee then proceeded to the executive offices.
Subsequently, Senator Fanning reported that the joint Senate and House committee had performed the duty assigned to it.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were introduced and read by their titles:
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1001
--
A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18- 2E-10, relating to critical skills instructional support programs for students in grades three and eight; setting forth legislative findings; providing for the promulgation of rules; establishing minimum provisions of rules; providing condition for promotion for certain students under certain circumstances; precluding county from charging tuition for program; requiring suitable facilities by county boards; preserving ability to retain students; preserving individualized education plans from effect of section; providing for county board preparation; providing that implementation is contingent upon funding; and requiring reports by State Board of Education.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Education; and then to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1002
--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-5- 4a, relating to the recruitment and retention of certain classified service positions at Mildred Mitchell-Bateman Hospital and William R. Sharpe, Jr. Hospital; establishing legislative findings; requiring the Division of Personnel and the Department of Health and Human Resources to develop pay rates and requirements for certain classified service positions at Mildred Mitchell-Bateman Hospital and William R. Sharpe, Jr. Hospital; establishing funding; and exempting pay rates and requirements from grievance procedures.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1003
--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11- 6J-1, §11-6J-2, §11-6J-3, §11-6J-4, §11-6J-5, §11-6J-6 and §11-6J- 7; and to amend and reenact §11-15-8d and §11-15-9h of said code, all relating to establishing the High-Technology Business Property Valuation Act; providing mandated salvage valuation of certain high-technology and internet advertising businesses' property; defining terms; specifying method for valuation of certain property; providing for initial determination by county assessors of whether certain property is used in a high-technology business or an internet advertising business; specifying procedure for protest and appeal of determination by county assessor; providing exceptions to limitations on right to assert exemptions; exempting certain items from consumers sales and service tax; specifying effective dates; and requiring reports to the Legislature.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1004
--A Bill to amend and reenact §29-22C-27 of the Code of West Virginia, 1931, as amended, relating to the allocation of adjusted gross receipts from pari-mutuel racetracks with West Virginia Lottery racetrack table games; increasing the share allocated to certain municipalities and counties after each pari-mutuel racetrack in the state is licensed to offer West Virginia Lottery racetrack table games; providing a corresponding adjustment of funds transferred to the state; providing for the allocation of funds in growth counties that have enacted the Local Powers Act; and increasing for two fiscal years the share allocated to the Lottery Commission for administration and enforcement upon the occurrence of certain conditions.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1005
--A Bill to amend and reenact §11-14C-48 of the Code of West Virginia, 1931, as amended, relating to the Motor Fuel Excise Tax Shortfall Reserve Fund; providing for continuation of the Motor Fuel Excise Tax Shortfall Reserve Fund; specifying termination of the Motor Fuel Excise Tax Shortfall Reserve Fund in 2013; and requiring the Commissioner of Highways to submit reports to the Joint Committee on Government and Finance for a specified time at specified intervals.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1006
--A Bill to amend and reenact §18-5-4 of the Code of West Virginia, 1931, as amended; to amend and reenact §18A- 1-1 of said code; to amend and reenact §18A-2-2, §18A-2-6, §18A-2-7 and §18A-2-8a of said code; and to amend and reenact §18A-3-1 and §18A-3-2a of said code, all relating to the hiring, termination, transfer and reassignment of teachers and school personnel; revising definition of "long-term substitute"; revising certain dates upon which action must be taken with respect to the hiring, termination, resignation or transfer of teachers and school personnel; clarifying probationary professional employee contract; providing conditional contract of prospective and recent graduates and prospective employable professional personnel; revising dates regarding the early notification of retirement; providing for nonrevocation of early notification; providing an economic hardship exception; and authorizing certification of noncitizen teachers.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Education; and then to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1007
--A Bill to amend and reenact §60-3A-2, §60- 3A-2a, §60-3A-4, §60-3A-6, §60-3A-7, §60-3A-8, §60-3A-10, §60-3A- 10b, §60-3A-11 and §60-3A-12 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §60-3A-10d, all relating to the issuance of retail licenses for the sale of liquor; classifying retail licenses for the sale of liquor; setting forth legislative findings; defining certain terms; authorizing the Alcohol Beverage Control Commissioner to issue retail licenses for the sale of liquor; establishing certain standards for the issuance of licenses within market zones; limiting the issuance of retail licenses to operate mixed retail liquor outlets; authorizing the commissioner to adopt certain standards for retail outlets; authorizing the Alcohol Beverage Control Board to consider certain factors when authorizing additional retail outlets; increasing the maximum percentage of retail licenses a person may own; setting forth bidding procedures; setting license fees; adding citizenship and character requirements for license applicants; authorizing credit and background checks on license applicants; providing a purchase option for active retail licensees seeking to operate a freestanding liquor retail outlet; providing for financing for the purchase of a retail license for a freestanding liquor retail outlet; and authorizing legislative and emergency rules.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1008
--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §18- 5B-1, §18-5B-2, §18-5B-3, §18-5B-4, §18-5B-5, §18-5B-6, §18-5B-7, §18-5B-8 and §18-5B-9, all relating to school innovation zones; setting forth legislative findings, intent and purpose; authorizing state board to designate school innovation zones in schools, groups of schools and departments or subdivisions of a school or schools; establishing an application, plan review, approval and amendment process; authorizing exceptions to certain policies, rules, interpretations and statutes; providing for approval of the innovation zone plan by certain employees of a school; providing for revocation of designation and plan approval; requiring annual report by the state board; designating the order in which the state board must consider applications; providing for the voluntary transfer of employees; authorizing teacher job postings that exceed certain qualifications and requirements; providing that a state institution of higher education may establish a school designated as an innovation zone and that such school may not receive certain funds; providing the procedure in which a state institution of higher education may apply for and establish an innovation zone school; providing for the approval mechanism for an innovation zone school established by a state institution of higher education by the county board and state board; and authorizing the State Board of Education to promulgate rules and emergency rules.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Education; and then to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1009
--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11- 21-12i; and to amend said code by adding thereto a new article, designated §44-16-1, §44-16-2, §44-16-3, §44-16-4, §44-16-5 and §44-16-6, all relating to the future support of children with autism; creating a personal income tax modification to adjusted gross income for parents and guardians contributing to a qualified trust fund; providing for limitations on amount of modification earned and taken; specifying modification carryforward and treatment of modification carryforward; specifying personal income tax treatment of deposits, earnings and withdrawals of trust funds; specifying effective date for tax modification; providing rule- making authority for use and administration of qualified trust funds and requirements for claiming the tax modification; specifying tax assessment for modification improperly taken; addressing statute of limitations; defining terms; specifying criteria for creating a qualified trust for a child with autism; establishing eligibility criteria; providing for creation of trust accounts for a child with autism; creating the West Virginia Children With Autism Trust Board; requiring board certification of certain information; setting forth membership of the board; setting forth duties and responsibilities of the board; granting rule- making authority to the board; providing for reimbursement of board members' expenses; exempting identities of trust fund beneficiaries, account owners or donors from chapter twenty-nine-b of said code; and providing an effective date.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1010
--A Bill to amend and reenact §7-1-3jj of the Code of West Virginia, 1931, as amended, relating to ordinances; and providing certain county commissions with authority to regulate the location of businesses offering exotic entertainment.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on the Judiciary.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1011
--A Bill to amend and reenact §5B-2A-3, §5B- 2A-5, §5B-2A-6 and §5B-2A-9 of the Code of West Virginia, 1931, as amended; and to amend and reenact §22-3-10 of said code, all relating to ensuring the post-mine development of reclaimed surface mine property; defining certain terms; requiring certain counties to develop master land use plans for post-mine development; clarifying procedures relating to master land use plans and community impact statements; enhancing certain powers and responsibilities of the Office of Coalfield Community Development and the Department of Environmental Protection with respect to master land use plans; requiring surface mine reclamation plans to comport with approved master land use plans; and authorizing surface mine reclamation plans to contain alternative, noncomporting post-mining land uses under certain circumstances.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Economic Development.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1012
--A Bill to amend and reenact §5-6-11a of the Code of West Virginia, 1931, as amended; to amend and reenact §18B-10-8 of said code; and to amend and reenact §29-22-18 of said code, all relating to bonds for certain higher education, tourism and state capital improvement projects; authorizing the State Building Commission to issue the bonds; providing for bond amounts and maturity; allocating bond proceeds; establishing procedures for project selection; and authorizing the use of moneys in the Community and Technical College Capital Improvement Fund for certain capital improvement projects.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 1013
--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §24- 2F-1, §24-2F-2, §24-2F-3, §24-2F-4, §24-2F-5, §24-2F-6, §24-2F-7, §24-2F-8, §24-2F-9, §24-2F-10, §24-2F-11 and §24-2F-12, all relating to an alternative and renewable energy portfolio standard; setting forth legislative findings; defining terms; establishing standards for the sale of electricity generated from alternative and renewable energy resources; providing for compliance assessments; creating a system of tradable alternative and renewable energy resource credits; providing for the awarding of credits based upon electricity generated or purchased from alternative and renewable energy resource facilities; providing for the awarding of credits for certain greenhouse emissions reduction and offset projects; providing for the awarding of credits for certain energy efficiency and demand-side energy initiative projects; requiring application to the Public Service Commission for approval of alternative and renewable energy portfolio standard compliance plans; setting forth minimum requirements for compliance plan applications; requiring Public Service Commission approval of compliance plan applications; requiring annual progress reports; providing for incentive ratemaking for investments in new alternative and renewable energy resource facilities in West Virginia; requiring the Public Service Commission to adopt certain net metering and interconnection rules and standards; authorizing interagency agreements; requiring an ongoing assessment of alternative and renewable energy resources in West Virginia; authorizing Public Service Commission to adopt portfolio standards for certain electric cooperatives and other electric facilities or utilities; establishing the Alternative and Renewable Energy Resources Research Fund; providing for the awarding of matching grants for certain research projects; and authorizing the Public Service Commission to promulgate rules.
At the request of Senator Chafin, unanimous consent being granted, the bill was taken up for immediate consideration, read a first time, ordered to second reading, and then referred to the Committee on Finance.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Monday, June 1, 2009, at 11 a.m.
____________

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