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Senate Journal


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WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTIETH LEGISLATURE

REGULAR SESSION, 2012

TWENTY-NINTH DAY

____________

Charleston, W. Va., Wednesday, February 8, 2012

    The Senate met at 11 a.m.

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

    Prayer was offered by the Reverend Jim Walther, Jr., St. Andrew Presbyterian Church, Pinch, West Virginia.

    Eric Blankenship of Charleston, West Virginia, then proceeded in the singing of “The Promise” and “Long As I Got King Jesus”.

    Pending the reading of the Journal of Tuesday, February 7, 2012,

    On motion of Senator Laird, 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 Plymale, from the Committee on Education, submitted the following report, which was received:

    Your Committee on Education has had under consideration

    Senate Bill No. 404, Relating to issuance of barrister's teaching certificate.

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

    Com. Sub. for Senate Bill No. 404 (originating in the Committee on Education)--A Bill to amend and reenact §18A-3-2a of the Code of West Virginia, 1931, as amended, relating to issuance of a barrister’s certificate to teach course-specific curricula in West Virginia public schools.

    With the recommendation that the committee substitute do pass.

                             Respectfully submitted,

                               Robert H. Plymale,

                                 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. 409, Substituting community service for jail confinement for certain persons convicted of alcohol-related crimes.

    And reports the same back with the recommendation that it 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

    Com. Sub. for Senate Bill No. 418 (originating in the Committee on Government Organization), Relating to qualifications of Parole Board members.

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

    Com. Sub. for Com. Sub. for Senate Bill No. 418 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §62-12-12 of the Code of West Virginia, 1931, as amended, relating to qualification of members of the Parole Board.

    With the recommendation that the committee substitute for committee substitute do pass.

                             Respectfully submitted,

                               Corey Palumbo,

                                 Chair.

    Senator Stollings, from the Committee on Health and Human Resources, submitted the following report, which was received:

    Your Committee on Health and Human Resources has had under consideration

    Senate Bill No. 484, Relating generally to child welfare.

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

    Com. Sub. for Senate Bill No. 484 (originating in the Committee on Health and Human Resources)--A Bill to repeal §49-5-21 of the Code of West Virginia, 1931, as amended; to repeal §49-6-5a of said code; to amend and reenact §49-1-3 of said code; to amend and reenact §49-2-17 of said code; to amend and reenact §49-5-13 of said code; to amend and reenact §49-5D-2, §49-5D-3 and §49-5D-3a of said code; to amend said code by adding thereto two new sections, designated §49-5D-3b and §49-5D-3c; to amend and reenact §49-6-2, §49-6-3, §49-6-5, §49-6-6, §49-6-8 and §49-6-12 of said code; to amend and reenact §49-6A-5 of said code; to amend said code by adding thereto a new section, designated §49-6A-12; to amend and reenact §49-6D-3 of said code; to amend and reenact §49-7-1 of said code; and to amend said code by adding thereto a new section, designated §49-7-36, all relating generally to child welfare; defining “court appointed special advocate program”; establishing a system of assistance from funds appropriated to the Department of Health and Human Resources for facilitating the adoption or legal guardianship of children who are dependents of the department or of a child welfare agency licenced to place children for adoption; providing when a juvenile is ordered into out-of-state placement, the reasons why the juvenile was not placed in state be included in the court order; adding additional members to the multidisciplinary team; providing a process for multidisciplinary treatment planning in cases involving child abuse and neglect; providing a process for multidisciplinary treatment planning in cases involving status offense or delinquency; increasing the continuing education hours required for attorneys appointed in child abuse and neglect cases; providing that reasonable efforts to preserve the family are not required when a person is required by state or federal law to register with a sex offender registry; providing that the court may modify a dispositional order when it finds a material change of circumstances has occurred and such modification is in the child’s best interests; clarifying that the circuit court of origin has exclusive jurisdiction over placement of a child in a child abuse and neglect case; providing a process for permanency hearings and permanent placement reviews; providing that any combination of improvement periods cannot cause a child to be in foster care more than fifteen months of the most recent twenty-two months unless the court finds that it is in the child’s best interests; providing for adding, maintaining or removing information from the statewide child abuse and neglect statistical index or any other database maintained by the Department of Health and Human Resources; providing for modifications and requests for expunging of records; requiring the secretary to promulgate legislative rules; providing guidelines for unified child and family case plans; confidentiality of records; and requiring a quarterly status review hearing and yearly permanency hearings for transitioning adults.

    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,

                               Ron Stollings,

                                 Chair.

    At the request of Senator Prezioso, as chair of the Committee on Finance, unanimous consent was granted to dispense with the second committee reference of the bill contained in the foregoing report from the Committee on Health and Human Resources.

    Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:

    Your Committee on Banking and Insurance has had under consideration

    Senate Bill No. 489, Limiting health insurance coverage for elective abortions to supplemental policies.

    And,

    Senate Bill No. 499, Clarifying PEIA is not "insurer" or engaged in "business of insurance".

    And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.

                             Respectfully submitted,

                               Joseph M. Minard,

                                 Chair.

    The bills, under the original double committee references, were then referred to the Committee on the Judiciary.

    Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:

    Your Committee on Banking and Insurance has had under consideration

    Senate Bill No. 509, Requiring health insurance contracts include certain claims submission deadline.

    And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Health and Human Resources.

                             Respectfully submitted,

                               Joseph M. Minard,

                                 Chair.

    The bill, under the original double committee reference, was then referred to the Committee on Health and Human Resources.

    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 Senators Kessler (Mr. President), Unger, Foster, Browning, Jenkins, Stollings, Klempa, Plymale and Chafin:

    Senate Bill No. 537--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-13A-6a, relating to the creation of a special revenue account known as the West Virginia Sustainable Wealth Fund; providing that funding consist of twenty-five percent of increased proceeds from oil and natural gas severance taxes; authorizing West Virginia Investment Management Board to invest the moneys in the fund; requiring investment guidelines to be established within one year; prohibiting encumbrance or use of the principal without legislative approval; prohibiting use of the interest from the fund prior to 2015; authorizing legislative appropriation of certain interest on the fund for limited purposes; creating the West Virginia Sustainable Wealth Fund Board of Trustees; establishing membership of the board; setting forth duties of the board; and requiring legislative rules governing disbursement of the fund.

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

    By Senators Plymale, Stollings, Jenkins and Foster:

    Senate Bill No. 538--A Bill to amend and reenact §49-2E-2 of the Code of West Virginia, 1931, as amended, relating to removing the requirement that program standards for registered family child care homes and all licensed programs be included as part of the rule to implement a quality rating and improvement system and requiring instead that the secretary establish and maintain these standards.

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

    By Senators Browning, Unger, Foster, Stollings, Klempa, Kessler (Mr. President), Plymale and Chafin:

    Senate Bill No. 539--A Bill to amend and reenact §5B-2E-5 and §5B-2E-7a of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto three new sections, designated §5B-2E-7b, §5B-2E-7c and §5B-2E-7d, all relating generally to the West Virginia Tourism Development Act; adding a small-scale tourism development component and credit; removing annual credit cap for expansion projects; providing rules for determining credit for multiyear, multiphase projects including presumption for consumers sales and service tax collections; and adding an ancillary project component and credit.

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

    By Senators McCabe, Green and Barnes:

    Senate Bill No. 540--A Bill to amend and reenact §8A-4-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §8A-5-12 of said code, all relating to subdivisions; extending the approval term of certain uses and permits associated with a subdivision plan or plat; and extending the vesting period for a subdivision or land development plan or plat.

    Referred to the Committee on Government Organization.

    By Senators Snyder, Laird, Jenkins and Klempa:

    Senate Bill No. 541--A Bill to amend and reenact §61-7-4 of the Code of West Virginia, 1931, as amended, relating to license to carry deadly weapons; and requiring proof of United States citizenship as one of the prerequisites to obtaining a state license to carry a concealed deadly weapon.

    Referred to the Committee on the Judiciary.

    By Senators Barnes and Beach:

    Senate Bill No. 542--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §1-2-1a; and to amend and reenact §3-5-7 of said code, all relating to providing that if a Senate district is comprised of more than one county, both senators in that district may not reside in the same county; and providing that the Secretary of State shall refuse to certify the candidacy or shall remove the certification of a candidate for a Senate district which is comprised of more than one county upon receipt of the candidate's certificate of announcement which indicates that the candidate's county of residence is located in the same county as a sitting senator serving in that district whose term would run concurrently, in whole or in part, with the candidate's term of office if the candidate were elected.

    Referred to the Committee on the Judiciary.

    By Senators Laird, Browning, Miller, Green, Stollings and Chafin:

    Senate Bill No. 543--A Bill authorizing a Prince Railroad Station Authority to acquire and maintain the railroad station building and the appurtenances thereto located in Prince, West Virginia; creating a public corporation; membership, terms and compensation of the board; powers; exemption from taxation; and dissolution of the authority.

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

    By Senators D. Facemire, Klempa and Beach:

    Senate Bill No. 544--A Bill to amend and reenact §17C-13A-3 of the Code of West Virginia, 1931, as amended, relating to Diesel-Powered Motor Vehicle Idling Act; regulating the idling time of a diesel-powered motor vehicle; exceptions; and extending the expiration date of exemptions for occupied vehicles with sleeper-berth compartments from May 1, 2012, to May 1, 2017.

    Referred to the Committee on Transportation and Infrastructure.

    By Senator Green:

    Senate Bill No. 545--A Bill to amend and reenact §5-10-48 of the Code of West Virginia, 1931, as amended, relating to reemployment after retirement from the Public Employees Retirement System.

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

    Senators Snyder, Miller, Beach, Yost, Laird, Klempa, Stollings, Foster, Unger and Jenkins offered the following resolution:

    Senate Concurrent Resolution No. 27--Urging all state agencies, political subdivisions and contractors to support the West Virginia Buy American Act.

    Whereas, Many individuals in the State of West Virginia are employed by the industries and or the businesses that produce iron,

steel, manufactured goods, coal and timber; and

    Whereas, Public revenue increases when the taxes are paid from the sale of iron, steel, manufactured goods, coal and timber; and

    Whereas, West Virginia's economy grows when public officials and state agencies support West Virginia's businesses and industries by procuring West Virginia and American iron, stee1, manufactured goods, coal and timber; and

    Whereas, The awarding of government contracts may be used to reward the companies and contractors who adhere to the principles of the West Virginia Buy American Act, as long as they uphold workplace safety, environmental laws and regulations; and

    Whereas, Urging governmental agencies to procure goods from West Virginia and the United States is useful to promote the economy of West Virginia and the United States; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Legislature hereby urges all state agencies, political subdivisions and contractors to support the West Virginia Buy American Act; and, be it

    Further Resolved, That the Legislature hereby urges the Division of Labor and Purchasing Division to support the West Virginia Buy American Act; and, be it

    Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Division of Labor and the Purchasing Division.

    Which, under the rules, lies over one day.

    Senators Snyder, Klempa, Stollings, Foster and Beach offered the following resolution:

    Senate Concurrent Resolution No. 28--Requesting the Secretary of Administration to maintain a permanent display of the history of the construction of the Capitol building in the first-floor rotunda as a monument to the Capitol building and its complex.

    Whereas, There are numerous documents, design plans, blueprints and photographs, which may be converted to digital media, models and other items in the archives of the State Capitol which are representative of and a chronology and living history of the various stages of construction and growth of the State Capitol Building and its expanded complex; and

    Whereas, A permanent display of these items showing the construction in print and digital media and other artifacts will make a fitting tribute and monument to the Capitol building and to those people who participated in the planning and construction of this magnificent edifice; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Legislature hereby requests the Secretary of Administration to maintain a permanent display of the history of the construction of the Capitol building in the first-floor rotunda as a monument to the Capitol building and its complex; and, be it

    Further Resolved, That the Secretary of Administration in consultation with the Commissioner of the Division of Culture and History is hereby requested to adopt a plan for presenting a permanent display of the history of the construction of the Capitol building and its complex; and, be it

    Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of Administration and the Commissioner of the Division of Culture and History.

    Which, under the rules, lies over one day.

    The Senate proceeded to the seventh order of business.

    Senate Concurrent Resolution No. 26, Requesting Joint Committee on Government and Finance study drug safety program.

    On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Health and Human Resources; and then to the Committee on Rules.

    The Senate proceeded to the eighth order of business.

    Eng. Senate Bill No. 54, Relating to minors obtaining tattoos; parental consent.

    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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (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. S. B. No. 54) passed with its title.

    Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

    Eng. Com. Sub. for Senate Bill No. 191, Relating to personal safety orders.

    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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (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. 191) passed with its title.

    Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

    Eng. Com. Sub. for Senate Bill No. 222, Creating criminal offense for interfering with emergency service call.

    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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (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. 222) passed with its title.

    Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

    Eng. Com. Sub. for Senate Bill No. 253, Authorizing DEP promulgate legislative rules.

    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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (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. 253) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--34.

    The nays were: None.

    Absent: None.

    So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 253) takes effect from passage.

    Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

    Eng. Senate Bill No. 414, Expanding definition of "medical services applicant" under Volunteer for Nonprofit Youth Organizations Act.

    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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (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. S. B. No. 414) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--34.

    The nays were: None.

    Absent: None.

    So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 414) takes effect from passage.

    Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

    Eng. Com. Sub. for Senate Bill No. 427, Conforming state administrative remedies for prisoners with Department of Justice standards.

    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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (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. 427) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--34.

    The nays were: None.

    Absent: None.

    So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 427) takes effect from passage.

    Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

    Eng. Com. Sub. for Senate Bill No. 434, Providing suggestion and suggestee execution contain certain information.

    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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (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. 434) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--34.

    The nays were: None.

    Absent: None.

    So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 434) takes effect from passage.

    Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

    The Senate proceeded to the twelfth order of business.

    Remarks were made by Senator Unger.

    Pending announcement of meetings of standing committees of the Senate,

    On motion of Senator Unger, the Senate adjourned until tomorrow, Thursday, February 9, 2012, at 11 a.m.

____________

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