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Senate Journal


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WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTY-FIRST LEGISLATURE

REGULAR SESSION, 2013

THIRD DAY

____________

Charleston, W. Va., Friday, February 15, 2013

    The Senate met at 11 a.m.

(Senator Kessler, Mr. President, in the Chair.)

    Prayer was offered by Dr. D. W. Cummings, Senior Pastor, Bethlehem Apostolic Temple, Wheeling, West Virginia.

    Pending the reading of the Journal of Thursday, February 14, 2013,

    On motion of Senator Carmichael, the Journal was approved and the further reading thereof dispensed with.

    The Senate proceeded to the second order of business and the introduction of guests.

    The Senate then proceeded to the fourth order of business.

    Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

    Your Committee on the Judiciary has had under consideration

    Senate Bill No. 74, Replacing "other infamous offense" term relating to jury service disqualification.

    And reports back a committee substitute for same with the following title:

    Com. Sub. for Senate Bill No. 74 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §52-1-5a and §52-1-8 of the Code of West Virginia, 1931, as amended, all relating to redefining the basis for disqualification of prospective jurors to include those who have been convicted of any crime punishable by imprisonment in excess of one year, perjury or false swearing.

    With the recommendation that the committee substitute do pass.

                             Respectfully submitted,

                               Corey Palumbo,

                                 Chair.

    Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

    Your Committee on the Judiciary has had under consideration

    Senate Bill No. 116, Relating to crimes against property involving graffiti.

    And reports back a committee substitute for same with the following title:

    Com. Sub. for Senate Bill No. 116 (originating in the Committee on the Judiciary)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-3-59, relating to crimes against property involving graffiti; defining offense and terms; allowing for aggregation of valuations for penalty purposes; and establishing penalties.

    With the recommendation that the committee substitute do pass.

                             Respectfully submitted,

                               Corey Palumbo,

                                 Chair.

    The Senate proceeded to the sixth order of business.

    On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:

    By Senator Yost:

    Senate Bill No. 164--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §29-6A-1, §29-6A-2, §29-6A-3, §29-6A-4, §29-6A-5, §29-6A-6, §29-6A-7, §29-6A-8, §29-6A-9, §29-6A-10, §29-6A-11, §29-6A-12, §29-6A-13, §29-6A-14, §29-6A-15, §29-6A-16, §29-6A-17, §29-6A-18, §29-6A-19, §29-6A-20, §29-6A-21, §29-6A-22, §29-6A-23, §29-6A-24, §29-6A-25 and §29-6A-26, all relating to promoting orderly and constructive employment relations between the state and its employees; increasing the efficiency of the state; ensuring the health and safety of the citizens of this state; requiring the state to recognize, negotiate and bargain with employee organizations representing state employees and to enter into written agreements evidencing the result of bargaining; and encouraging labor peace through the establishment of standards and procedures which protect the rights of the state, the state’s employees and the citizens of this state.

    Referred to the Committee on Labor; and then to the Committee on Government Organization.

    By Senators Kessler (Mr. President) and Unger:

    Senate Bill No. 165--A Bill to amend and reenact §62-12-7 of the Code of West Virginia, 1931, as amended, relating to requiring probation officers in preparing a presentence report to calculate and identify the financial costs to the county and the state of the different forms of sentencing available to the court.

    Referred to the Committee on the Judiciary.

    By Senators Kessler (Mr. President), Unger, Stollings, Jenkins, Miller and Laird:

    Senate Bill No. 166--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11-13DD-1, §11-13DD-2, §11-13DD-3, §11-13DD-4, §11-13DD-5, §11-13DD-6, §11-13DD-7, §11-13DD-8 and §11-13DD-9, all relating to establishing a tax credit for certain physicians who provide certain physician’s services at no charge to certain free health facilities in West Virginia; setting forth findings; specifying definitions; authorizing credit; specifying the amount of tax credit; specifying how credit may be asserted; specifying no credit carryovers; specifying forms and schedules to be established by the Tax Commissioner; specifying $10,000 maximum credit per taxpayer per tax year; disallowing application of tax credit if the credit allowed under article thirteen-j of said chapter is allowed for the same credit base; providing for add back of deductions, adjustments or modifications to taxable income if based upon the same activity, in-kind service, donation or contribution for which credit is taken; authorizing the Tax Commissioner to promulgate rules; and specifying effective date.

    Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.

    By Senators Kessler (Mr. President), Unger, Snyder, Stollings, Fitzsimmons, Miller, Laird, McCabe, Wells and D. Hall:

    Senate Bill No. 167--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5A-2-35, relating to creation of the West Virginia Future Fund; initial funding to consist of twenty-five percent of increased proceeds from oil and natural gas severance taxes; expressing legislative intent not to encumber or otherwise use any principal or interest from the fund for a term of twenty years; and addressing use of the fund.

    Referred to the Committee on Economic Development; and then to the Committee on Finance.

    By Senators Kessler (Mr. President) and Fitzsimmons:

    Senate Bill No. 168--A Bill to amend and reenact §23-4-1f of the Code of West Virginia, 1931, as amended, relating to allowing workers’ compensation for certain mental illnesses related to being a crime victim.

    Referred to the Committee on the Judiciary.

    By Senators Kessler (Mr. President) and Jenkins:

    Senate Bill No. 169--A Bill to amend and reenact §5-10-25 of the Code of West Virginia, 1931, as amended, relating to the Public Employees Retirement System; and preventing reduction of disability pensions at age sixty-five.

    Referred to the Committee on Pensions; and then to the Committee on Finance.

    By Senators Yost and Fitzsimmons:

    Senate Bill No. 170--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5B-2I-1, §5B-2I-2, §5B-2I-3 and §5B-2I-4, all relating to creating the Keep Jobs in West Virginia Act; requiring all work performed for the state by contractors be performed in the United States; making legislative findings; permitting the state to seek damages and void contracts for work done outside the country; and providing exceptions.

    Referred to the Committee on Government Organization; and then to the Committee on Finance.

    By Senators Yost, Fitzsimmons and D. Hall:

    Senate Bill No. 171--A Bill to amend and reenact §18-2-26 of the Code of West Virginia, 1931, as amended; and to amend and reenact §18-5-4 of said code, all relating to increasing the amount of compensation a member of a county board of education may receive for attending certain meetings; increasing by $100 the amount a board member may receive for attending regional education council meetings if he or she also serves on that council; increasing by $40 the amount board members may receive for each board meeting attended; permitting board members to also be compensated at the same rate for other specific meetings attended; establishing a maximum number of compensable meetings; and permitting board members to be compensated for attending a maximum of six days of approved training classes.

    Referred to the Committee on Education; and then to the Committee on Finance.

    By Senator Kessler (Mr. President):

    Senate Bill No. 172--A Bill to amend and reenact §11-16-3 and §11-16-8 of the Code of West Virginia, 1931, as amended, all relating to the Nonintoxicating Beer Act; adding a limited liability company to the definition of “person” under the act; allowing a trust to be an applicant for a distributor license; and requiring certain disclosures by applicants that are trusts or limited liability companies.

    Referred to the Committee on the Judiciary.

    By Senators Wells, Yost, Jenkins, Fitzsimmons and D. Hall:

    Senate Bill No. 173--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18B-4-10, relating to establishing a policy for students enrolled in state institutions of higher education who are called up or ordered to state or federal active service, inactive-duty training or annual training in any active duty or reserve component of the armed forces of the United States or of the National Guard of this state or any other state.

    Referred to the Committee on Military; and then to the Committee on Education.

    By Senators Wells, Yost, Jenkins, Snyder, Fitzsimmons, Williams and D. Hall:

    Senate Bill No. 174--A Bill to amend and reenact §18B-4-9 of the Code of West Virginia, 1931, as amended, relating to providing for the appointment of veterans’ advocates at state institutions of higher education for veterans, current members or reserves of the armed forces of the United States or National Guard who are students; and setting forth the responsibilities of those advocates.

    Referred to the Committee on Military; and then to the Committee on Education.

    By Senators Carmichael and Wells:

    Senate Bill No. 175--A Bill to amend and reenact §21-5-4 of the Code of West Virginia, 1931, as amended, relating to extending the period that wages must be paid after termination.

    Referred to the Committee on Labor; and then to the Committee on the Judiciary.

    By Senator Carmichael:

    Senate Bill No. 176--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §55-7-26 and §55-7-27, all relating to actions for tort liability; providing reduction of judgment awards in tort liability actions of certain collateral source payments made or to be made to the plaintiff; defining the terms "collateral source" and "collateral source payments"; exceptions; and providing postverdict determination of reduction of compensatory damages.

    Referred to the Committee on the Judiciary.

    By Senators Walters, Blair, Boley, Carmichael, Cole, Sypolt, Wells and Nohe:

    Senate Bill No. 177--A Bill to amend and reenact §18-8-2 of the Code of West Virginia, 1931, as amended, relating to penalties for primary and secondary school students for excessive tardy minutes.

    Referred to the Committee on Education; and then to the Committee on Finance.

    By Senators Tucker, Williams, Cookman, Jenkins, Fitzsimmons, Miller, Laird, Nohe and D. Hall:

    Senate Bill No. 178--A Bill to amend and reenact §17A-3-14 of the Code of West Virginia, 1931, as amended, relating to motor vehicle registration generally; providing for the issuance of a special next-of-kin of a law-enforcement officer killed in the line of duty license plate; and assessing a special initial application fee and a special annual fee therefor.

    Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.

    By Senator Yost:

    Senate Bill No. 179--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §8-15B-1, §8-15B-2, §8-15B-3, §8-15B-4 and §8-15B-5, all relating to meeting and conference rights for members of police or fire departments employed by political subdivisions; providing for the right of these members to self organization; allowing designation of an exclusive representative agent; imposing a duty to meet and confer with employees; allowing deduction of employee organization dues and assessments; providing for compulsory arbitration of disputes; listing prohibited acts; allowing hearings before Civil Service Commission; providing judicial review; specifying powers and duties of the Civil Service Commission; and allowing injunctive relief.

    Referred to the Committee on Labor; and then to the Committee on the Judiciary.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 180--A Bill to amend and reenact §9-5-11 of the Code of West Virginia, 1931, as amended, relating to reforming the state Medicaid subrogation statute; reorganizing the statute for clarity; defining “department” as the Department of Health and Human Resources; establishing the department’s subrogation right; prioritizing the department’s subrogation right; establishing 21-day notice requirement upon action, claim or settlement offer affecting the department’s subrogation right; requiring joinder of the department upon filing of action or claim; enacting penalty provision for failure to comply with 21-day notice requirement; requiring specific allocation of damages for any settlement, compromise, judgment or award; providing a sixty-day review period for the department to assess a proposed settlement allocation; providing requirements for evidentiary damages hearings in instances where the department cannot agree with the parties on the allocation of damages in settlement; establishing post-trial payment procedures; and making other technical changes.

    Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 181--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17C-1-67; and to amend and reenact §17C-5-4 and §17C-5-6 of said code, all relating to improving enforcement of drugged driving offenses; defining “drug”; providing implied consent to test for controlled substances or drugs; including controlled substances and drugs in blood test administration procedures; and making other clerical changes.

    Referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 182--A Bill to amend and reenact §11-13X-5 of the Code of West Virginia, 1931, as amended, relating to lowering the total amount of tax credits available in a given fiscal year under the Film Industry Investment Act.

    Referred to the Committee on Economic Development; and then to the Committee on Finance.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 183--A Bill to amend and reenact §11-24-3 of the Code of West Virginia, 1931, as amended, relating to updating the meaning of “federal taxable income” and certain other terms used in the West Virginia Corporation Net Income Tax Act so the definitions conform with the Internal Revenue Code's definitions; and specifying effective dates.

    Referred to the Committee on Finance.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 184--A Bill to amend and reenact §11-21-9 of the Code of West Virginia, 1931, as amended, relating to updating the meaning of “federal adjusted gross income” and certain other terms used in the West Virginia Personal Income Tax Act so the definitions conform with the Internal Revenue Code's definitions; and specifying effective dates.

    Referred to the Committee on Finance.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 185--A Bill to amend and reenact §11-6D-1, §11-6D-2, §11-6D-3, §11-6D-4, §11-6D-5, §11-6D-6, §11-6D-7 and §11-6D-9 of the Code of West Virginia, 1931, as amended, all relating to the tax credit for alternative-fuel motor vehicles and qualified alternative-fuel vehicle refueling infrastructure and qualified alternative-fuel vehicle home refueling infrastructure; setting forth legislative findings; defining terms; restricting credit to purchases of and conversions to natural gas-fueled motor vehicles and liquefied petroleum gas-fueled motor vehicles; narrowing allowance of credit for alternative-fuel motor vehicle purchases, alternative-fuel motor vehicle conversions and alternative-fuel motor vehicle refueling infrastructure; outlining eligibility for credit and cessation of eligibility for credit for specified construction, purchases, expenditures, investments, installations or conversions made on or after cessation dates or tax years as specified; requiring that not more than one tax credit be granted under said article six-d, or any combination of articles set forth in said chapter eleven for purchase of an alternative-fuel motor vehicle or for costs relating to conversion of a motor vehicle to an alternative-fuel motor vehicle, or for costs associated with alternative-fuel vehicle refueling infrastructure or for costs associated with alternative-fuel home refueling infrastructure; providing amount of credit for qualified alternative-fuel vehicle refueling infrastructure; providing limitations on credit; providing for the termination of tax credit for alternative-fuel motor vehicles purchased after December 31, 2017; providing for the termination of tax credit for motor vehicles converted to operate on alternative fuel after December 31, 2017; providing for the termination of tax credit for construction or purchase and installation of alternative-fuel vehicle refueling infrastructure occurring after December 31, 2017; providing for the termination of tax credit for construction or purchase and installation of qualified alternative-fuel vehicle home refueling infrastructure occurring in tax years beginning after December 31, 2012; providing for the termination of tax credit for purchases of motor vehicles that operate on fuels other than compressed natural gas or liquefied natural gas, or liquefied petroleum gas, occurring in tax years beginning after December 31, 2012; providing for the termination of tax credit for conversions of motor vehicles to operate on fuels other than compressed natural gas or liquefied natural gas or liquefied petroleum gas occurring in tax years beginning after December 31, 2012; clarifying that provisions applicable to tax years beginning after December 31, 2012, are retroactive; providing limitations and restrictions of credit carryover; and providing that credit is nontransferable.

    Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 186--A Bill to amend and reenact §11-24-43a of the Code of West Virginia, 1931, as amended; to amend and reenact §31-15A-16 of said code; and to amend and reenact §33-20F-4 of said code, all relating to reallocation and repatriation of certain funds to the General Revenue Fund; specifying that dedication of tax proceeds for deposit in the Special Railroad and Intermodal Enhancement Fund expire at the end of June 30, 2013; reducing the amount deposited annually to the credit of the West Virginia Infrastructure General Obligation Debt Service Fund, subject to certain limitations, conditions and constraints; deleting obsolete provisions regarding a loan from the Tobacco Settlement Medical Trust Fund to the Physician’s Mutual Insurance Company; deleting the provision requiring some taxes on medical malpractice insurance premiums to be paid into the Revenue Shortfall Reserve Fund; and specifying effective dates.

    Referred to the Committee on Finance.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 187--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5B-2I-1, §5B-2I-2, §5B-2I-3, §5B-2I-4, §5B-2I-5 and §5B-2I-6, all relating to creating the Jobs Impact Statement Act; requiring that the West Virginia Development Office prepare a jobs impact statement when requested by the Governor or leader of either house of the Legislature for certain proposed legislation; outlining the contents of the jobs impact statement; providing that this article does not affect the validity of legislation, restrict consideration of pending legislation or otherwise alter, amend or invalidate any rule of the Senate, the House of Delegates or joint rules of the Senate and House of Delegates; and describing the manner in which copies of the jobs impact statement shall be made available.

    Referred to the Committee on Economic Development; and then to the Committee on Finance.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 188--A Bill to amend and reenact §9-2-9 of the Code of West Virginia, 1931, as amended; and to amend and reenact §24A-1-3 of said code, all relating to creating a vendor transportation program within the Department of Health and Human Resources to transport Medicaid patients for nonemergency transportation services; requiring that the Secretary of the Department of Health and Human Resources report on the effectiveness of the program to the Legislative Oversight Commission on Health and Human Resources Accountability; exempting motor vehicles used by or on behalf of the Department of Health and Human Resources in connection with the vendor transportation program from the jurisdiction of the Public Service Commission; providing a safety and insurance exception to this exemption; and making technical changes.

    Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 189--A Bill to amend and reenact §7-22-7 of the Code of West Virginia, 1931, as amended; and to amend and reenact §8-38-7 of said code, all relating to changing the capital investment threshold amount from more than $25 million to more than $75 million for development expenditures proposed to be made in county economic opportunity development districts and in municipal economic opportunity development districts in the first twenty-four months following their creation; changing the capital investment threshold amount from more than $25 million to more than $75 million for remediation expenditures to be made in county economic opportunity development districts and in municipal economic opportunity development districts in the first forty-eight months following their creation; and making other technical corrections.

    Referred to the Committee on Economic Development; and then to the Committee on Finance.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 190--A Bill to amend and reenact §17-27-5 and §17-27-9 of the Code of West Virginia, 1931, as amended, all relating to the funding of transportation public-private partnership projects and their corresponding comprehensive agreements; eliminating requirement that money from the State Road Fund only be used for public-private partnership projects where the money serves as a required match for federal funds specifically earmarked in a federal authorization or appropriation bill and does not exceed four percent of the immediate preceding three fiscal years’ average of the Division of Highway’s construction contracts awarded under the competitive bid process; allowing public-private partnership projects to use money from the State Road Fund when the projects are in excess of $20 million, constructed by the Division of Highways and contained in its six-year plan; providing that any earnings in excess of maximum rate of return that is negotiated in comprehensive agreements be deposited in the State Road Fund; eliminating a sunset provision prohibiting comprehensive agreements for public-private partnership projects after June 30, 2013; eliminating the requirement that a comprehensive agreement for public-private partnership projects be approved by concurrent resolution of the Legislature and be submitted to the Governor for his or her approval or disapproval before the Division of Highways enters into the comprehensive agreement; and mandating that the Division of Highways provide a copy of any comprehensive agreement to the Legislature’s Joint Committee on Government and Finance at least thirty days prior to said agreement being executed by the Division of Highways for a public-private partnership project.

    Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 191--A Bill to amend and reenact §11B-2-20 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §11B-2-20a; to amend and reenact §17-3-1 of said code; and to amend and reenact §31-15A-9 of said code, all relating to the Revenue Shortfall Reserve Fund, the Revenue Shortfall Reserve Fund - Part B and the creation of a West Virginia Infrastructure Modernization and Development Special Revenue Fund; specifying maximum aggregate funding amount for the Revenue Shortfall Reserve Fund; providing that interest and other earnings on Revenue Shortfall Reserve Fund - Part B be dedicated to and expended for and in support of the federal-state Medicaid program authorized by the Legislature or mandated by the federal government; providing that, in commencing and executing the provisions of this subdivision, the West Virginia Investment Management Board is not and shall not be obligated to sell any investments at a loss or otherwise take any action not in furtherance of its fiduciary duties and obligations in respect of funds and investments under its management and supervision; creating the West Virginia Infrastructure Modernization and Development Special Revenue Fund in the State Treasury; specifying the funding source for the West Virginia Infrastructure Modernization and Development Special Revenue Fund; specifying use of funds in the West Virginia Infrastructure Modernization and Development Special Revenue Fund; providing ability of State Road Fund to accept and expend funds transferred from the West Virginia Infrastructure Modernization and Development Special Revenue Fund; and providing ability of West Virginia Infrastructure Fund to accept and expend funds transferred from the West Virginia Infrastructure Modernization and Development Special Revenue Fund.

    Referred to the Committee on Finance.

    By Senators Kessler (Mr. President) and M. Hall (By Request of the Executive):

    Senate Bill No. 192--A Bill to amend and reenact §24B-4-6 of the Code of West Virginia, 1931, as amended, relating to increasing civil penalties imposed by the Public Service Commission for pipeline safety violations; providing that civil penalties collected by the Public Service Commission are submitted to the Treasurer for deposit into the General Revenue Fund; and making technical changes.

    Referred to the Committee on the Judiciary.

    Pending announcement of meetings of standing committees of the Senate,

    On motion of Senator Unger, the Senate adjourned until Monday, February 18, 2013, at 1 p.m.

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