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Senate Journal


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sdj-21st day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2009

TWENTY-FIRST DAY

____________

Charleston, W. Va., Tuesday, March 3, 2009

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

Prayer was offered by Dr. Frank Frye, Madison United Methodist Church, Madison, West Virginia.
Pending the reading of the Journal of Monday, March 2, 2009,
On motion of Senator Oliverio, 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.
On motion of Senator Chafin, the Senate recessed for five minutes to permit Sarah Abbot to address the Senate on behalf of the Governor's School for the Arts and Benjamin Becker to address the Senate on behalf of the Governor's Honors Academy.
Upon expiration of the recess, the Senate reconvened and proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2694--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §48-1-233.3 and §48-1-233.4; to amend said code by adding thereto a new section, designated §48-9-404; to amend and reenact §48-11-106 of said code; and to amend said code by adding thereto a new section, designated §48-11-108, all relating to modification of custodial rights for parent's have been deployed for military service; requiring that any such order is only a temporary order; providing for temporary modification of child support during the deployment.
Referred to the Committee on Military; and then to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2738--A Bill to amend and reenact §48-27-802 of the Code of West Virginia, 1931, as amended; and to amend and reenact §51-1-21 of said code, all relating to registering protective orders with the West Virginia Supreme Court of Appeals.
Referred to the Committee on the Judiciary.
The Senate proceeded to the fourth order of business.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Bill No. 78, Relating to Patriot Guard Riders license plate.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 78 (originating in the Committee on Transportation and Infrastructure)--A Bill to amend and reenact §17A-3-14 of the Code of West Virginia, 1931, as amended, relating to extending the time period for obtaining the minimum number of applications for a special registration plate for members of the West Virginia Bar Association; authorizing the Division of Motor Vehicles to create and issue a Patriot Guard Riders license plate for passenger vehicles and motorcycles; authorizing the division to create and issue a special registration plate bearing the inscription "In God We Trust"; authorizing the division to create and issue a special license plate for registered nurses and licensed practical nurses; authorizing the division to create and issue a special license plate for volunteer firefighters; and assessing a special initial application fee and a special annual fee for the license plates.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
John R. Unger II,
Chair.
The bill (Com. Sub. for S. B. No. 78), under the original double committee reference, was then referred to the Committee on Finance.
Senator Kessler, 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. 253, Relating to certain sexual offenses by or against inmates.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 253 (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 §61-8B-10a; and to amend and reenact §62-8-1 and §62-8-2 of said code, all relating to offenses by inmates and against inmates generally; creating offenses of sexual assault or sexual intrusion by or against an inmate; creating the offense of sexual intercourse or sexual intrusion by a visitor to a correctional or penal facility with an inmate; and establishing penalties.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler, 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. 263, Disclosing certain inmates' personal communications.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 263 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §25-1-17 and §25-1-18 of the Code of West Virginia, 1931, as amended, all relating to monitoring of inmate telephone calls and mail; procedures and restrictions; authorizing disclosure under certain circumstances; and providing for retention, maintenance and destruction of telephone recordings and mail.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler, 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. 294, Defining criminal offense of incapacitated or elderly person's abuse or neglect.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 294 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §61-2-29 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto three new sections, designated §61-2-29a, §61-2-29b and §61-2-29c, all relating to protecting incapacitated persons by providing criminal penalties for the offense of abuse or neglect of incapacitated adults which result in injury or death; providing definitions; and creating the offense of sexual abuse by a caregiver, guardian or custodian.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 417, Establishing Voluntary Employee Retirement Accounts Program.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 417 (originating in the Committee on Pensions)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5- 10E-1, §5-10E-2, §5-10E-3, §5-10E-4, §5-10E-5, §5-10E-6, §5-10E-7, §5-10E-8, §5-10E-9, §5-10E-10, §5-10E-11 and §5-10E-12; and to amend and reenact §36-8-13 of said code, all relating to establishing the West Virginia Voluntary Employee Retirement Accounts Program in the office of the State Treasurer; establishing findings; defining terms; creating program as a body corporate; providing for liberal construction; requiring compliance with federal and state law; providing for plan administration; authorizing Treasurer to propose rules; establishing participation; requiring all federal approvals be received before operations begin; creating trust; prohibiting assignment, except for qualified domestic relations orders; authorizing investments; specifying that the corpus, assets and earnings of trust do not constitute public funds; deferring compensation from federal, state and municipal income taxes; authorizing collection of fees from accounts; creating administration account; requiring that any funds appropriated by the Legislature be reimbursed; specifying the state and the Treasurer are not liable for losses; specifying certain information is confidential; requiring payroll information be provided to the Treasurer; and providing for the transfer of money from the Unclaimed Property Trust Fund for start-up of the program.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Dan Foster,
Chair.
The bill (Com. Sub. for S. B. No. 417), under the original double committee reference, was then referred to the Committee on Finance.
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 Jenkins:
Senate Bill No. 418--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §8-13-13a, relating to requirements for municipalities when they implement or increase a municipal fee.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Prezioso, Foster, Stollings and Jenkins:
Senate Bill No. 419--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-1E-6, relating to the Healthy West Virginia Program; initiating the Healthy Lifestyles Restaurant Calorie Posting Program; and providing for legislative rule-making authority.
Referred to the Committee on Health and Human Resources.
By Senators Prezioso, Foster, Stollings, Kessler, Jenkins and McCabe:
Senate Bill No. 420--A Bill to amend and reenact §11-17-3 of the Code of West Virginia, 1931, as amended, relating generally to raising the excise tax on cigarettes and all other tobacco products; and establishing a special revenue account.
Referred to the Committee on Finance.
By Senators D. Facemire, Minard, Laird and Jenkins:
Senate Bill No. 421--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §48-9-404, relating to modifying a child custody and support order due to military service.
Referred to the Committee on Military; and then to the Committee on the Judiciary.
By Senator Jenkins:
Senate Bill No. 422--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, §18-5B-9, §18-5B-10, §18-5B-11, §18-5B-12, §18-5B-13, §18-5B-14, §18-5B-15, §18-5B-16, §18-5B-17, §18-5B-18 and §18-5B-19, all relating to public education; and authorizing public colleges or universities to sponsor community schools in cooperation with county boards of education.
Referred to the Committee on Education; and then to the Committee on Finance.
By Senators Kessler, Foster and Wells:
Senate Bill No. 423--A Bill to amend and reenact §48-27-311, §48-27-505, §48-27-701, §48-27-902, §48-27-903 and §48-27-1002 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §48-27-1003 and §48-27-1004, all relating to authorizing circuit clerks to use certified or registered mail for service of a protective order; requiring magistrate court clerks to forward a copy of protective orders to state and federal agencies; providing that law enforcement attempt to serve protective orders within seventy-two hours of issuance; authorizing a petitioner to file a criminal complaint when a respondent possesses firearms in violation of a protective order; providing a criminal penalty for possessing firearms in violation of a protective order; providing for nonjudicial enforcement of state protective orders; and providing civil and criminal immunity to law-enforcement officers for acts or omissions arising out of the enforcement of a protective order.
Referred to the Committee on the Judiciary.
By Senators Minard and Jenkins:
Senate Bill No. 424--A Bill to amend and reenact §31A-4A-1, §31A-4A-2, §31A-4A-3 and §31A-4A-4 of the Code of West Virginia, 1931, as amended, all relating to the conversion of banks and other financial institutions to a West Virginia state-chartered bank; and expanding the law to allow charter types to use the conversion statute.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senators Minard, Jenkins and Deem:
Senate Bill No. 425--A Bill to amend and reenact §46A-4-111 of the Code of West Virginia, 1931, as amended, relating to requiring disclosure of a higher annual percentage rate in any refinancing or consolidation of a nonrevolving consumer loan or consumer credit sale; and requiring a documentation of a reasonable, net tangible benefit to the borrower of any refinancing or consolidation of a nonrevolving consumer loan or consumer credit sale made under this article that is secured by residential real estate.
Referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.
By Senators Wells, Sypolt, K. Facemyer, Green, Laird and Williams:
Senate Bill No. 426--A Bill to amend and reenact §33-20F-9 of the Code of West Virginia, 1931, as amended, relating to requiring providers with insurance coverage under the Physicians' Mutual Insurance Company to accept Tricare military insurance as a condition of Physicians' Mutual Insurance Company.
Referred to the Committee on Military; and then to the Committee on Banking and Insurance.
By Senators Jenkins, Bowman and Stollings:
Senate Bill No. 427--A Bill to amend and reenact §30-3-7 of the Code of West Virginia, 1931, as amended, relating to updating language and making technical changes clarifying that the Board of Medicine is an autonomous board which may hire its employees at the board's will and pleasure; and providing for continuation of employment and coverage under the classified service of the Division of Personnel for current employees.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Bowman and Snyder:
Senate Bill No. 428--A Bill to amend and reenact §6-7-2a of the Code of West Virginia, 1931, as amended, relating to eliminating the statutorily set salary of the Director of the Division of Personnel so the pay of the director can be made competitive.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Prezioso, Foster, Jenkins, Stollings and Laird:
Senate Bill No. 429--A Bill to amend and reenact §16-1A-1, §16-1A-2, §16-1A-3 and §16-1A-4 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §16-1A-5, all relating to establishing a uniform credentialing form and establishing a single statewide credentialing verification organization (CVO) or no greater than three regional entities in the state; authorizing the Insurance Commission and the Department of Health and Human Resources to put the CVO out for bid; establishing various aspects of the program; requiring all health care practitioners and insurers, hospitals, third-party administrators and other health care entities to utilize the services of the single statewide CVO or a regional entity; and continuing the advisory committee for credentialing.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senators Minard, Helmick and McCabe:
Senate Bill No. 430--A Bill to amend and reenact §5-16-5 of the Code of West Virginia, 1931, as amended, relating to the prohibition of retiree premium subsidies in the Public Employees Insurance Agency health plans for employees hired on or after January 1, 2010.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senators Minard, Helmick, McCabe and Barnes:
Senate Bill No. 431--A Bill to amend and reenact §33-16D-16 of the Code of West Virginia, 1931, as amended, relating to notice to in-state medical providers of the participation provisions of the small group health benefit plan.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senators Kessler, Unger, Boley, Snyder and Yost:
Senate Bill No. 432--A Bill to amend and reenact §8-14-11 of the Code of West Virginia, 1931, as amended, relating to the ability of Class I and Class II cities to terminate law-enforcement officers prior to the end of their probationary period.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
Senators Prezioso, Foster, Barnes and Unger offered the following resolution:
Senate Resolution No. 18--Designating March 1-7, 2009, as National Problem Gambling Awareness Week in West Virginia.
Whereas, On behalf of the citizens of West Virginia, the Senate joins the West Virginia Council on Problem Gambling and the Problem Gamblers Help Network of West Virginia in promoting March 1-7, 2009, as National Problem Gambling Awareness Week in West Virginia; and
Whereas, Promoting the awareness week provides individuals in the problem gambling community an opportunity to educate the public and policymakers about the social and financial effectiveness of services available for problem gambling; and
Whereas, Problem gambling is a public health issue affecting millions of Americans of all ages, races and ethnic backgrounds in all communities and which has a significant societal and economic cost; and
Whereas, Problem gambling is treatable and treatment is effective in minimizing the harm to both individuals and society as a whole; and
Whereas, Numerous individuals, professionals and organizations have dedicated their efforts to the education of the public about problem gambling and the availability and effectiveness of treatment; and
Whereas, The legislators of West Virginia, the West Virginia Council on Problem Gambling and the Problem Gamblers Help Network of West Virginia invite all residents of West Virginia to participate in National Problem Gambling Awareness Week; therefore, be it
Resolved by the Senate:
That the Senate hereby designates March 1-7, 2009, as National Problem Gambling Awareness Week in West Virginia; and, be it
Further Resolved, That the Senate joins the West Virginia Council on Problem Gambling and the Problem Gamblers Help Network of West Virginia in encouraging all citizens to help spread the message that there is help for problem gamblers through treatment and to support those who are in treatment and recovery and their families.
At the request of Senator Prezioso, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 8, Requesting Division of Highways name bridge in Mullens "Charles V. Stewart Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 12, Requesting Division of Highways name bridge in Lesage "PVT Russell Curtis Knight Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 13, Requesting Division of Highways name bridge in Berkeley County "Bruce Van Wyk Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for Senate Bill No. 99, Sentencing discretion for certain youthful offenders.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 99) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 307, Creating Maternal Screening Act.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
The Senate proceeded to the eleventh order of business and the introduction of guests.
The Senate then proceeded to the twelfth order of business.
Remarks were made by Senators Deem and Oliverio.
Thereafter, at the request of Senator Boley, and by unanimous consent, the remarks by Senator Deem were ordered printed in the Appendix to the Journal.
At the request of Senator Jenkins, unanimous consent being granted, the remarks by Senator Oliverio were ordered printed in the Appendix to the Journal.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Wednesday, March 4, 2009, at 11 a.m.
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