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WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

THIRD EXTRAORDINARY SESSION, 2009

SECOND DAY

____________

Charleston, W. Va., Wednesday, August 12, 2009

     The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)

     Prayer was offered by the Honorable Clark S. Barnes, a senator from the fifteenth district.
     Pending the reading of the Journal of Tuesday, August 11, 2009,
     On motion of Senator White, the Journal was approved and the further reading thereof dispensed with.
     The Senate proceeded to the fourth order of business.
     Senator Stollings, from the Committee on Confirmations, submitted the following report, which was received:
     Your Committee on Confirmations has had under consideration
     Senate Executive Message No. 2, dated August 11, 2009, requesting confirmation by the Senate of the nominations mentioned therein. The following list of names from Executive Message No. 2 is submitted:
      1.  For Member, Fire Commission, Carl Sizemore, Mineral Wells, Wood County, for the term ending June 30, 2013.
      2.  For Member, Fire Commission, Virgil White, South Charleston, Kanawha County, for the term ending June 30, 2012.
      3.  For Member, Fire Commission, Dale Clayton, Fairmont, Marion County, for the term ending June 30, 2011.
      4.  For Member, Fire Commission, Randy James, Gassaway, Braxton County, for the term ending June 30, 2012.
      5.  For Member, Fire Commission, Ted Shriver, Charleston, Kanawha County, for the term ending June 30, 2012.
      6.  For Member, Board of Optometry, Dr. James Campbell, New Martinsville, Wetzel County, for the term ending June 30, 2009.
      7.  For Member, Workforce Investment Council, Russell Fry, Charleston, Kanawha County, for the term ending June 30, 2012.
      8.  For Member, Forest Management Review Commission, The Honorable James Willison, Sistersville, Tyler County, for the term ending March 14, 2015.
      9.  For Member, Fire Commission, Robert Sullivan, Barboursville, Cabell County, for the term ending June 30, 2014.
     10.  For Member, Board of Control for Southern Regional Education Board, The Honorable Thomas Campbell, Lewisburg, Greenbrier County, for the term ending June 30, 2013.
     11.  For Member, Contractor Licensing Board, The Honorable John Pino, Oak Hill, Fayette County, for the term ending June 30, 2013.
     12.  For Member, Board of Optometry, Dr. James Campbell, New Martinsville, Wetzel County, for the term ending June 30, 2012.
     13.  For Member, Commission on the Arts, DeEtta King Hunter, Lewisburg, Greenbrier County, for the term ending June 30, 2012.
     14.  For Member, Health Enhancement and Lifestyle Planning Advisory Council, Amanda Pasdon, Morgantown, Monongalia County, for the term ending June 30, 2013.
     15.  For Member, Health Enhancement and Lifestyle Planning Advisory Council, Gary Johnson, Baker, Hardy County, for the term ending June 30, 2013.
     16.  For Member, Health Enhancement and Lifestyle Planning Advisory Council, Angela Vance, Charleston, Kanawha County, for the term ending June 30, 2012.
     17.  For Member, Health Enhancement and Lifestyle Planning Advisory Council, Denise Campbell, Elkins, Randolph County, for the term ending June 30, 2013.
     18.  For Member, Health Enhancement and Lifestyle Planning Advisory Council, Dr. David Avery, Vienna, Wood County, for the term ending June 30, 2013.
     19.  For Member, Health Enhancement and Lifestyle Planning Advisory Council, Karen Bowling, Beckley, Raleigh County, for the term ending June 30, 2013.
     20.  For Member, Health Enhancement and Lifestyle Planning Advisory Council, Dr. Steven Sebert, Barboursville, Cabell County, for the term ending June 30, 2010.
     21.  For Member, Health Enhancement and Lifestyle Planning Advisory Council, Brandon Tinney, Charleston, Kanawha County, for the term ending June 30, 2012.
     22.  For Member, Health Enhancement and Lifestyle Planning Advisory Council, Ryan Ferns, Wheeling, Ohio County, for the term ending June 30, 2013.
     23.  For Member, West Virginia University Board of Governors, Diane Lewis, Morgantown, Monongalia County, for the term ending June 30, 2013.
     24.  For Member, West Virginia University Board of Governors, John Mattern, Fairmont, Marion County, for the term ending June 30, 2013.
     25.  For Member, West Virginia University Board of Governors, Dr. Thomas Samuel Clark, Bruceton Mills, Preston County, for the term ending June 30, 2013.
     26.  For Member, Natural Resources Commission, David Milne, Bruceton Mills, Preston County, for the term ending June 30, 2016.
     27.  For Member, Natural Resources Commission, Dr. Thomas Dotson, White Sulphur Springs, Greenbrier County, for the term ending June 30, 2011.
     28.  For Member, Investment Management Board of Trustees, Frank Oates, Morgantown, Monongalia County, for the term ending January 31, 2011.
     29.  For Member, Investment Management Board of Trustees, Randy Snider, Parkersburg, Wood County, for the term ending January 31, 2011.
     30.  For Member, Investment Management Board of Trustees, Guy Bucci, Charleston, Kanawha County, for the term ending January 31, 2013.
     31.  For Member, Investment Management Board of Trustees, Rob Alsop, Charleston, Kanawha County, for the term ending January 31, 2013.
     32.  For Member, Public Employees Insurance Agency Finance Board, James Dailey II, Martinsburg, Berkeley County, for the term ending June 30, 2013.
     33.  For Member, Public Employees Insurance Agency Finance Board, John Ruddick, Hurricane, Putnam County, for the term ending June 30, 2010.
     34.  For Member, Public Employees Insurance Agency Finance Board, Troy Giatras, Charleston, Kanawha County, for the term ending June 30, 2013.
     35.  For Member, Kanawha Valley Community and Technical College Board of Governors, Bradley Shafer, Clendenin, Kanawha County, for the term ending June 30, 2012.
     36.  For Member, Board of Examiners of Psychologists, Terri Sigley, Morgantown, Monongalia County, for the term ending June 30, 2012.
     37.  For Member, Board of Examiners of Psychologists, Dr. Tina Yost, Fairmont, Marion County, for the term ending June 30, 2012.
     38.  For Member, Board of Examiners of Psychologists, Michael Folio, Hurricane, Putnam County, for the term ending June 30, 2012.
     39.  For Member, Statewide Independent Living Council, Scott Adkins, St. Albans, Kanawha County, for the term ending June 30, 2012.
     40.  For Member, Statewide Independent Living Council, Erick Dowdy, Huntington, Cabell County, for the term ending June 30, 2012.
     41.  For Member, Statewide Independent Living Council, Nathan Parker, Huntington, Cabell County, for the term ending June 30, 2012.
     42.  For Member, Statewide Independent Living Council, Anne Weeks, Huntington, Cabell County, for the term ending June 30, 2012.
     43.  For Member, Statewide Independent Living Council, Darla Ervin, Morgantown, Monongalia County, for the term ending June 30, 2012.
     44.  For Member, Statewide Independent Living Council, Kevin Maynus, Beckley, Raleigh County, for the term ending June 30, 2012.
     45.  For Member, Statewide Independent Living Council, Joyce Floyd, Elkins, Randolph County, for the term ending June 30, 2012.
     46.  For Member, Library Commission, Dennis Taylor, Winfield, Putnam County, for the term ending June 30, 2010.
     47.  For Member, Library Commission, Mary Bland Strickland, Glenville, Gilmer County, for the term ending June 30, 2011.
     48.  For Member, Library Commission, Katy White, Charleston, Kanawha County, for the term ending June 30, 2011.
     49.  For Member, Library Commission, Betty Gunnoe, Martinsburg, Berkeley County, for the term ending June 30, 2012.
     50.  For Member, Library Commission, Dennis Altizer, War, McDowell County, for the term ending June 30, 2013.
     51.  For Member, Library Commission, Connie Shumate, Princeton, Mercer County, for the term ending June 30, 2013.
     52.  For Member, Library Commission, David Dalzell, Moundsville, Marshall County, for the term ending June 30, 2013.
     53.  For Member, Library Commission, Dr. Charles Julian, Wheeling, Ohio County, for the term ending June 30, 2012.
     54.  For Member, West Virginia University Institute of Technology Community and Technical College Board of Governors, Mildred Shelton, Oak Hill, Fayette County, for the term ending June 30, 2013.
     55.  For Member, Board of Examiners in Counseling, Marilyn Cassis, Charleston, Kanawha County, for the term ending June 30, 2014.
     56.  For Member, Fire Commission, Thomas Keefer, Winfield, Putnam County, for the term ending June 30, 2011.
     57.  For Member, Consolidated Public Retirement Board, David Wyant, Wheeling, Ohio County, for the term ending June 30, 2013.
     58.  For Member, Commission on the Arts, Max Armentrout, Elkins, Randolph County, for the term ending June 30, 2012.
     59.  For Member, Board of Physical Therapy, John Spiker, Morgantown, Monongalia County, for the term ending June 30, 2014.
     60.  For Member, Board of Physical Therapy, Lesleigh Barber- Sprouse, Charleston, Kanawha County, for the term ending June 30, 2013.
     And reports the same back with the recommendation that the Senate do advise and consent to all of the nominations listed above.
                              Respectfully submitted,
                               Ron Stollings,
                               Chair.
__________

     The Senate then proceeded to the seventh order of business.
     The time having arrived for the special order of business to consider the list of nominees for public office submitted by His Excellency, the Governor, the special order thereon was called by the President.
     Thereupon, Senator Tomblin (Mr. President) laid before the Senate the following executive message:
     Senate Executive Message No. 2, dated August 11, 2009 (shown in the Senate Journal of that day, pages 9 through 16, inclusive).
     Senator Stollings then moved that the Senate advise and consent to all of the executive nominations referred to in the foregoing report from the Committee on Confirmations.
     The question being on the adoption of the aforestated motion by Senator Stollings,
     The roll was then taken; and
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--31.
     The nays were: None.
     Absent: Guills, Palumbo and Plymale--3.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the aforestated motion by Senator Stollings had prevailed.
__________

     Consideration of executive nominations having been concluded,
     On motion of Senator Chafin, the Senate recessed until 1:30 p.m. today.
     Upon expiration of the recess, the Senate reconvened.
     On motion of Senator Edgell, the Senate recessed until 2:30 p.m. today.
     Upon expiration of the recess, the Senate reconvened and, without objection, returned to the third order of business.
     A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
     Eng. House Bill No. 301--A Bill to amend and reenact §21A-6A- 1, §21A-6A-5 and §21A-6A-6 of the Code of West Virginia, 1931, as amended, all relating to extended unemployment compensation benefits; providing for a temporary "state 'on' indicator" based on the average rate of total unemployment; providing for temporary increases in the extended benefit period and total extended benefit amount during a high unemployment period; making technical amendments throughout; and correcting nomenclature throughout.
     At the request of Senator Edgell, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.
     On motion of Senator Edgell, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
     On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Deem, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--28.
     The nays were: None.
     Absent: Chafin, K. Facemyer, Guills, Oliverio, Palumbo and Plymale--6.
     The bill was read a second time and ordered to third reading.
     Having been engrossed, the bill (Eng. H. B. No. 301) was then read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Deem, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--28.
     The nays were: None.
     Absent: Chafin, K. Facemyer, Guills, Oliverio, Palumbo and Plymale--6.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 301) passed with its title.
     Senator Edgell moved that the bill take effect from passage.
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Deem, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--28.
     The nays were: None.
     Absent: Chafin, K. Facemyer, Guills, Oliverio, Palumbo and Plymale--6.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 301) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     On motion of Senator Edgell, the Senate recessed until 5 p.m. today.
     Upon expiration of the recess, the Senate reconvened and resumed business under the third order.
     A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
     Eng. House Bill No. 302--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-5-7; to amend said code by adding thereto a new section, designated §5-10-22k; and to amend said code by adding thereto a new section, designated §18-7A-26v, all relating to providing salary and benefit enhancements for certain current and former public employees generally; providing authority for the Governor to authorize by executive order a one-time payment of a $500 salary enhancement to certain public employees on or before November 30, 2009; providing for selection of payment date by State Auditor; requiring payment of the salary enhancements upon authorization; providing for transfer and expenditure of funding appropriated to State Budget Office to spending units and county boards of education for payment of the salary enhancements; defining terms; providing a one-time payment of a $266 benefit enhancement to certain retirants of the Public Employees Retirement System and the State Teachers Retirement System on November 25, 2009; and providing for the pro rata distribution of the benefit enhancement to certain beneficiaries.
     Referred to the Committee on Finance.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
     Eng. Senate Bill No. 3003, Making supplementary appropriation to Department of Commerce, Development Office, Broadband Deployment Fund.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Senate Bill No. 3004, Expiring funds from Lottery Commission, Video Lottery Income Fund, and making supplementary appropriation from General Revenue to various accounts.
     On motion of Senator Edgell, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting clause and inserting in lieu thereof the provisions of Engrossed House Bill No. 304;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Senate Bill No. 3004--A Bill expiring funds to the unappropriated surplus balance in the State Fund, General Revenue, for the fiscal year ending June 30, 2010, in the amount of $53,463,000 from the Lottery Commission - Video Lottery Income Fund, fund 7203, fiscal year 2010, organization 0705, 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 Governor's Office, fund 0101, fiscal year 2010, organization 0100, to the Department of Administration - Consolidated Public Retirement Board, fund 0195, fiscal year 2010, organization 0205, to the Department of Revenue - State Budget Office, fund 0595, fiscal year 2010, organization 0703, and to the Bureau of Senior Services, fund 0420, fiscal year 2010, organization 0508, by supplementing and amending the appropriations for the fiscal year ending June 30, 2010.
     On motion of Senator Edgell, the Senate refused to concur in the foregoing House amendments to the bill (Eng. S. B. No. 3004) and requested the House of Delegates to recede therefrom.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Executive Communications

     Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, which was received:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

August 12, 2009

Senate Executive Message No. 3
TO:  The Honorable Members of the
     West Virginia Senate
     The Honorable Members of the
     West Virginia House of Delegates
Ladies and Gentlemen:
     I am writing concerning Engrossed House Bill No. 302 and Engrossed Senate Bill No. 3004, as amended and passed by the House of Delegates. As you are aware, the West Virginia Constitution gives the Governor the authority to convene the Legislature in extraordinary session, but when so convened, the Legislature "shall enter upon no business except that stated in the proclamation by which it was called together." W. Va. Const. Art. VII §7. It is my belief, as Governor, that Engrossed House Bill No. 302 and Engrossed Senate Bill No. 3004, as amended, exceed the scope of my proclamation convening the Legislature into extraordinary session. As the language in my proclamation authorized a one-time salary enhancement for "full-time public employees" only, and as the proclamation stated a specific level of appropriation to be dedicated to the payment of such enhancement, Engrossed House Bill No. 302 and Engrossed Senate Bill No. 3004, as amended, are outside the boundaries of the Constitution. For this reason, I request the West Virginia Senate to not take up Engrossed House Bill No. 302 and to refuse to recede from its position on Engrossed Senate Bill No. 3004.
                              Sincerely,
                               Joe Manchin III,
                               Governor.
     The Senate proceeded to the eleventh order of business and the introduction of guests.
     Senator Edgell offered the following pre-adjournment resolution:
     Senate Resolution No. 303--Raising a committee to notify the House of Delegates the Senate is ready to adjourn sine die.
     
Resolved by the Senate:
     That the President be authorized to appoint a committee of three to notify the House of Delegates that the Senate has completed its labors and is ready to adjourn sine die.
     At the request of Senator Edgell, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     Senator Tomblin (Mr. President), under the provisions of the foregoing resolution, appointed the following committee to notify the House of Delegates of impending Senate adjournment:
     Senators Bowman, Unger and Sypolt.
     Senator Edgell then offered the following resolution:
     Senate Resolution No. 304--Raising a committee to notify His Excellency, the Governor, that the Legislature is ready to adjourn sine die.
     
Resolved by the Senate:
     That the President be authorized to appoint a committee of three to join with a similar committee of the House of Delegates to notify His Excellency, the Governor, that the Legislature has completed its labors and is ready to adjourn sine die.
     At the request of Senator Edgell, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     Under the provisions of the foregoing resolution, Senator Tomblin (Mr. President) appointed the following committee to notify His Excellency, the Governor, that the Senate was ready to adjourn:
     Senators Prezioso, Foster and Barnes.
     At the request of Senator Wells, unanimous consent being granted, the Joint Committee on Enrolled Bills was granted permission, after it has examined, found truly enrolled and presented to His Excellency, the Governor, for his action, bills passed but not presented to him prior to adjournment of this third extraordinary session of the seventy-ninth Legislature in the year two thousand nine, to file its reports with the Clerk and that the same be included in the Journal of the last day of the session; and also, that any communications from His Excellency, the Governor, as to his action on bills after adjournment of the session, be included in the Journal.
     In accordance with the foregoing unanimous consent agreement, the following report of the Joint Committee on Enrolled Bills was filed as follows:
     Senator Palumbo, 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 18th day of August, 2009, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:
     (S. B. No. 3003), Making supplementary appropriation to Department of Commerce, Development Office, Broadband Deployment Fund.
     And,
     (H. B. No. 301), Utilizing additional federal matching moneys for extended unemployment compensation benefits.
                              Respectfully submitted,
                               Corey Palumbo,
                               Chair, Senate Committee.
                               Danny Wells,
                               Chair, House Committee.
Executive Communications

     Under authorization of Senate approval therefor in prior proceedings today, to include in this day's Journal communications showing the Governor's action on enrolled bills presented to him in post-session reports, the following are inserted hereinafter:
     The Clerk then presented a communication from His Excellency, the Governor, advising that on August 19, 2009, he had approved Enr. Senate Bill No. 3003 and Enr. House Bill No. 301.
     [CLERK'S NOTE: Enrolled Senate Bill No. 3003 became law without the Governor's signature on August 19, 2009, under the provisions of Subsection 11, Section 51, Article VI of the Constitution of West Virginia.]
     On motion of Senator Edgell, the third extraordinary session of the Senate in the year two thousand nine adjourned sine die.
________

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