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Senate Journal


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WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTY-FIRST LEGISLATURE

REGULAR SESSION, 2013

THIRTY-FOURTH DAY

____________

Charleston, W. Va., Monday, March 18, 2013

    The Senate met at 11 a.m.

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

    Prayer was offered by Bishop P. Randall Bowles, Oceana Church of God, Oceana, West Virginia.

    Pending the reading of the Journal of Friday, March 15, 2013,

    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.

    On motion of Senator Unger, the Senate recessed for five minutes to permit Yushi Wang to address the Senate on behalf of the Governor’s School for the Arts and Joshua Clevenger 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 concurrence by that body in the passage, to take effect from passage, of

    Eng. Senate Bill No. 197, Expiring funds from State Fund, General Revenue, and making supplementary appropriations to various accounts.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    Com. Sub. for House Concurrent Resolution No. 27--Requesting that bridge number 322-10-28.14 on West Virginia Route 10, crossing the Guyandotte River, currently known as the “West Hamlin Bridge” in Lincoln County, West Virginia, be named the “Army SSGT Arthur N. McMellon Memorial Bridge”.

    Referred to the Committee on Transportation and Infrastructure.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    Com. Sub. for House Concurrent Resolution No. 28--Requesting the Division of Highways to name a two-mile section of County Route 62 in Alkol, Lincoln County, beginning at the intersection of County Routes 62 and 46, and heading east along Route 62 for two miles the “Mud River Pound Punchers Highway”.

    Referred to the Committee on Transportation and Infrastructure.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 40--Requesting the Division of Highways to name bridge number 24-1-3.58 on Route 1 in McDowell County, the "Estel R. Stacy World War II Navy Veteran Memorial Bridge”.

    Referred to the Committee on Transportation and Infrastructure.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    Com. Sub. for House Concurrent Resolution No. 41--Requesting the Division of Highways to name the bridge located at Lenore, Mingo County, West Virginia, Route 65 milepost 19.63, which was built in 1947, specifically bridge number 1652, the “US Army Staff Sergeant Cornelius Nebo Lackey Memorial Bridge”.

    Referred to the Committee on Transportation and Infrastructure.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 48--Requesting the Division of Highways to name bridge number 30-3/5-20.12 on County Route 3/5 in Mingo County, the "Albert & Peggie Maynard Memorial Bridge”.

    Referred to the Committee on Transportation and Infrastructure.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    Com. Sub. for House Concurrent Resolution No. 57--Requesting that bridge number 42-219-12.59 on U. S. Route 219 across the Tygart River at Elkwater, Randolph County, West Virginia, be named the “Fire Chief Lyle Ware Memorial Bridge”.

    Referred to the Committee on Transportation and Infrastructure.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 60--Requesting the Division of Highways to bridge number 30-49-0.01 on Route 49 in Mingo County, the "William S. (Bill) Croaff Memorial Bridge”.

    Referred to the Committee on Transportation and Infrastructure.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 65--Requesting the Division of Highways to rename the Ruth Bridge over Trace Fork of Davis Creek, bridge number 20-214-5.35 on Route 214 in Kanawha County, the "Jimmie Stewart Pauley Memorial Bridge United States Air Force”.

    Referred to the Committee on Transportation and Infrastructure.

    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 Miller, Barnes, Beach, Cookman, Fitzsimmons, Jenkins, Kirkendoll, Laird, McCabe, Snyder, Wells, Williams, Yost, Unger and Stollings:

    Senate Bill No. 551--A Bill to amend and reenact §11-13Z-1 and §11-13Z-3 of the Code of West Virginia, 1931, as amended, all relating to residential solar energy tax credits; applying credit to residential installation of a solar energy system or systems; and extending the tax credit until July 1, 2021.

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

    By Senators Tucker, Chafin, Nohe, Palumbo, Sypolt, Wells, McCabe, Fitzsimmons, Plymale and Stollings:

    Senate Bill No. 552--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §39A-4-1, §39A-4-2, §39A-4-3, §39A-4-4, §39A-4-5, §39A-4-6 and §39A-4-7, all relating to creating the Uniform Real Property Electronic Recording Act; providing short title; defining terms; clarifying validity of electronic documents and electronic signatures; providing for recording of electronic documents; requiring any county clerk implementing the provisions of the act to comply with established standards; authorizing county clerks to receive, index, store, archive and transmit electronic documents; authorizing county clerks to allow public access, search and retrieval of electronic documents; allowing county clerks to convert paper documents accepted for recording into electronic documents; authorizing county clerks to collect electronically any tax or fee relating to electronic recording of real property documents they are authorized by law to collect; authorizing county clerks to agree with other jurisdictions on procedures or processes necessary for electronic recording of documents; creating the Real Property Electronic Recording Standards Council to develop the standards necessary to electronically record real property documents; authorizing a legislative rule; providing for a report and recommendations to the Legislature; providing that members of the Real Property Electronic Recording Standards Council pay their own expenses; setting forth areas for consideration when adopting or changing standards; providing for uniformity of application and construction of the act; and providing that this act modifies, limits and supersedes certain parts of the federal Electronic Signatures in Global and National Commerce Act.

    Referred to the Committee on Interstate Cooperation; and then to the Committee on the Judiciary.

    By Senators Beach, McCabe, Miller and Stollings:

    Senate Bill No. 553--A Bill to amend and reenact §17-2D-2 and §17-2D-5 of the Code of West Virginia, 1931, as amended, all relating to the continuation of the Highway Design-Build Pilot Program; modifying limitations on design-build projects; requiring identification of design-build projects; and requiring annual reporting.

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

    By Senators Carmichael and Blair:

    Senate Bill No. 554--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §51-1B-1, §51-1B-2, §51-1B-3, §51-1B-4, §51-1B-5, §51-1B-6, §51-1B-7, §51-1B-8, §51-1B-9 and §51-1B-10, all relating to authorizing a new court to be known as the Intermediate Court of Appeals; setting forth how judges are to be selected; providing that its judges may not receive additional compensation; setting forth the court’s jurisdictional authority; providing that the Supreme Court of Appeals controls its pleading, practice, procedure, scheduling of terms and adjournment; authorizing the hiring of a clerk of the court and other employees; setting forth the duties of the clerk; providing that the court’s budget be part of the Supreme Court of Appeals’ budget; and permitting appeals to the Supreme Court of Appeals.

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

    By Senators Carmichael, Sypolt and Blair:

    Senate Bill No. 555--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §55-19-1, §55-19-2, §55-19-3, §55-19-4, §55-19-5, §55-19-6, §55-19-7, §55-19-8, §55-19-9, §55-19-10, §55-19-11 and §55-19-12, all relating to actions and suits; creating a loser-pays civil justice system; providing for recovery of attorney’s fees by prevailing party and applicability to causes of action and parties; procedure for recovery of attorney fees; rebuttable presumption; election by plaintiff and defendant; revocation of election; dismissal or nonsuit of action; award of litigation costs; liability of attorney; and when this article controls over any other law relating to the award of attorney's fees or other costs of litigation in connection with the civil action.

    Referred to the Committee on the Judiciary.

    By Senators Williams, Beach, Cann, Cole, Green, Jenkins, Kirkendoll, Snyder, Sypolt and Stollings:

    Senate Bill No. 556--A Bill to amend and reenact §31-15C-2, §31-15C-8, §31-15C-9 and §31-15C-10 of the Code of West Virginia, 1931, as amended, all relating to broadband deployment projects; clarifying that the West Virginia Infrastructure and Jobs Development Council’s public outreach and education efforts extend beyond unserved areas; revising the council’s guidelines on requests for funding assistance; requiring projects for broadband service involving the construction of a network to meet the revised definition of “broadband” before being approved; revising the criteria for funding assistance applications; providing that projects to promote demand may be on a regional or statewide basis; revising notice and posting requirements; and redefining certain terms.

    Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Government Organization.

    By Senators Yost, Kessler (Mr. President), Fitzsimmons and Stollings:

    Senate Bill No. 557--A Bill to amend and reenact §16-2J-3 of the Code of West Virginia, 1931, as amended, relating to authorizing continued operation of certain pilot programs after expiration date; and resetting expiration date.

    Referred to the Committee on Government Organization.

    By Senators Walters, Barnes, Blair, Boley, Carmichael, Cole, M. Hall, Nohe, Sypolt, Cookman and Stollings:

    Senate Bill No. 558--A Bill to amend and reenact §61-7-4 of the Code of West Virginia, 1931, as amended, relating to dangerous weapons; how license to carry deadly weapons obtained; and accepting documentation of current military service or an honorable discharge from any branch of the United States military, reserve or National Guard as equivalent experience toward the training requirement for a concealed weapons license.

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

    By Senators Palumbo, Cookman, Stollings, Fitzsimmons and Miller:

    Senate Bill No. 559--A Bill to amend and reenact §49-5-2 of the Code of West Virginia, 1931, as amended, relating to expanding circuit court jurisdiction over certain juvenile status offenders.

    Referred to the Committee on the Judiciary.

    By Senators Palumbo, McCabe, Wells, Walters, D. Hall, Unger, Beach, Williams and Stollings:

    Senate Bill No. 560--A Bill to amend and reenact §18B-18A-1, §18B-18A-2, §18B-18A-3, §18B-18A-9, §18B-18A-11 and §18B-18A-12 of the Code of West Virginia, 1931, as amended, all relating to the West Virginia Research Trust Fund; increasing the recipients of the fund to include all state land grant institutions of higher education; redistribution of moneys; deposit into fund from General Revenue Fund under certain conditions; deadline and consequences for failure to obtain matching funds and donations; legislative rulemaking; and reporting requirement.

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

    By Senators Williams, Unger, Sypolt and Miller:

    Senate Bill No. 561--A Bill to establish the Tucker County Cultural District Authority; providing legislative findings; forming the Tucker County Cultural District Authority; providing for appointment of members; providing for organization and bylaws; requiring quarterly meetings; providing for quorum; authorizing proxy voting; providing for parliamentary procedure; providing for certain powers and duties of the board; establishing funding priorities; allowing public and private partnerships; granting certain specific authority to the president of the authority; requiring cooperation of state agencies; and allowing various municipalities, boards, commissions, agencies and others to assist the authority.

    Referred to the Committee on Government Organization.

    By Senators D. Hall, Chafin, Green, Miller, Tucker, Fitzsimmons and Stollings:

    Senate Bill No. 562--A Bill to amend and reenact §18-5-18a of the Code of West Virginia, 1931, as amended, relating to limiting the student-to-teacher ratio in preschool through twelfth grades and adding additional pay to aides in classrooms over the maximum class size.

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

    By Senators Palumbo and Snyder:

    Senate Bill No. 563--A Bill to amend and reenact §61-3-49 of the Code of West Virginia, 1931, as amended, relating to the purchase of scrap metal by scrap metal dealers; and excluding platinum, gold, silver and palladium from the definition of “scrap metal”.

    Referred to the Committee on the Judiciary.

    Senators McCabe, Palumbo, Walters, Wells, Unger and Stollings offered the following resolution:

    Senate Concurrent Resolution No. 22--Requesting the Division of Highways to name the bridge on highway U. S. 214 South, Oakhurst Drive and Deer Oaks Road in Kanawha County, BR-0214(011)D, Bridge No. 10730, built in 2011, the “Joseph Albert ‘Joey’ King, Jr., Memorial Bridge”.

    Whereas, Joseph Albert "Joey" King, Jr., died in the line of duty as a volunteer firefighter on December 4, 2011, when he fell to his death from a bridge while looking for a fire. Joey was very dedicated to the Davis Creek and Ruthdale volunteer fire departments and the safety of his community. The first left from this bridge going south is the road that Joey traveled for years to and from home and work; and

    Whereas, Joseph Albert "Joey" King, Jr., was born on August 28, 1951, in Charleston, West Virginia, the son of Joseph and Betty Jo King. He grew up with his parents and his siblings: Arietta, Diana, Bethel and Linnie "Curley". Joey was blessed to have three children: Edna, Joey III and LeAnne. Joey's beloved only son passed away at age twelve in 1988. Joey later met his longtime companion, Sonja Kay, and helped raise her son, Anthony. Joey loved to travel to Florida on his motorcycle to visit his daughter and spend time with his granddaughters, Amanda and Skyler. He loved to ride and was a member of the Patriot Guard and The Red Knights motorcycle clubs. Joey spent many years working at Copley's Wrecker Service. He later worked for the City of Charleston Sanitary Board as a mechanic, before retiring for health reasons. Joey served as a volunteer and took pride in being a firefighter. He found a way to help people and the community by becoming a volunteer firefighter, a task that lasted for the last seven years of his life; and

    Whereas, Joey originally started at the fire department to get Anthony interested in something worthwhile and positive. However, he soon realized that he had a knack for what a volunteer fire department does--helping people. He became not only a firefighter, but a great friend to many members of the department. He saw that he could use his mechanical skills to benefit the fire department by caring for the equipment. Most people will never realize how valuable an asset Joey was to the fire department. To his brother firefighters, he was a friend, brother and mentor, with many looking to him for personal advice to help them to get through life. One man stated at the memorial service that Joey was a "First responder" before there was such a thing, the man you wanted at an accident scene. On a lighter note, Joey loved to tease and play practical jokes on others. He enjoyed taking his nieces' sons and granddaughters to his garage, sitting them on his motorcycle, or taking them to the firehouse and putting them in the fire truck. Joey was always there for someone in need. People have said he was the nicest guy they knew and could never be replaced. Never once did he hesitate to help anyone in need of help; and

    Whereas, It is only fitting that we honor Joseph Albert "Joey" King, Jr., for his dedication to the Davis Creek and Ruthdale volunteer fire departments and the safety of his community, and for his contributions to his community; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Division of Highways is hereby requested to name the bridge on highway U. S. 214 South, Oakhurst Drive and Deer Oaks Road in Kanawha County, BR-0214(011)D, Bridge No. 10730, built in 2011, the “Joseph Albert ‘Joey’ King, Jr., Memorial Bridge”; and, be it

    Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the bridge as the “Joseph Albert ‘Joey’ King, Jr., Memorial Bridge”; 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 the Department of Transportation and to the children, surviving relatives and companion of Joseph Albert "Joey" King, Jr.

    Which, under the rules, lies over one day.

    Senators D. Hall, Chafin, Green, Unger, Cole and Stollings offered the following resolution:

    Senate Concurrent Resolution No. 23--Requesting the Division of Highways to name bridge number 55-16/40-0.01, in Allen Junction, Wyoming County, West Virginia, the “Reverend Edward and Mary Mullins Memorial Bridge”.

    Whereas, Reverend Edward and Mary Mullins moved to Allen Junction in 1951, when they purchased property across the Guyandotte River from Route 16; and

    Whereas, At the time, the residents living across the river from Route 16 had only a cable swinging foot bridge to reach their homes, but Reverend Mullins later purchased property on both sides of the river and allowed his property to be used for construction of a bridge that would enable the residents to reach their homes by automobile; and

    Whereas, In addition to playing an instrumental role in getting the bridge built at Allen Junction and serving as its longtime caretaker, Reverend Mullins also constructed a building for the community to use as its post office, and it was used in that capacity for many years; and

    Whereas, Reverend Mullins worked diligently in the coal mines while pastoring several churches over the years, and Mary served the churches he pastored as their secretary, janitor, baker or any other role in which she was needed. They both worked tirelessly to establish new churches in Wyoming County, some of which are still in existence today; and

    Whereas, Reverend Mullins later served as the state superintendent for his church organization and was responsible for overseeing numerous churches around the state; and

    Whereas, Reverend Edward and Mary Mullins were respected by all who knew them for their commitment to church and community and for the spirit of devoted service with which they lived their lives; and

    Whereas, Sadly, Reverend Edward Mullins passed away on June 22, 1970, and his beloved wife, Mary Mullins, followed him home to the Lord on January 6, 1975. They are survived by their children, James E. Mullins and Ruby Mullins Byrd, and their grandchildren, James Mullins, Lonnie Mullins, Robert Mullins and Deborah Mullins Conner; and

    Whereas, It is only fitting that we name this bridge, which Reverend and Mary Mullins were so instrumental in having built, to honor their many contributions to the community of Allen Junction and greater Wyoming County, and for their enduring legacy of service; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Division of Highways is hereby requested to name bridge number 55-16/40-0.01, in Allen Junction, Wyoming County, West Virginia, the “Reverend Edward and Mary Mullins Memorial Bridge”; and, be it

    Further Resolved, That the Commissioner of the Division of Highways is hereby requested to erect signs at both ends of the bridge proclaiming the bridge the “Reverend Edward and Mary Mullins Memorial Bridge”; and, be it

    Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Commissioner of the Division of Highways and to James E. Mullins and Ruby Mullins Byrd.

    Which, under the rules, lies over one day.

    Senators Kessler (Mr. President), Unger, Fitzsimmons, Beach, Williams, Sypolt, Snyder, Wells and Stollings offered the following resolution:

    Senate Resolution No. 38--Recognizing the many contributions of the thousands of volunteers and paid staff at pregnancy care centers in West Virginia and across the United States.

    Whereas, The life-affirming impact of pregnancy care centers on the women, men, children and communities they serve is considerable and growing; and

    Whereas, Pregnancy care centers serve women in West Virginia and across the United States with integrity and compassion with more than 2,500 centers across the United States providing comprehensive care to women and men facing unplanned pregnancies, including resources to meet their physical, psychological, emotional and spiritual needs; and

    Whereas, Pregnancy care centers offer women free, confidential and compassionate services, including pregnancy tests, peer counseling, 24-hour hotlines, childbirth and pregnancy classes and referrals to community, health care and other support services; and

    Whereas, Many pregnancy care centers offer ultrasounds and other medical services, information on adoption and adoption referrals while encouraging women to make positive life choices by equipping them with complete and accurate information regarding their pregnancy options and the development of the unborn; and

    Whereas, Pregnancy care centers ensure that women are receiving prenatal information and services that lead to the birth of healthy infants; and

    Whereas, Pregnancy care centers provide important support and resources for women and their children, including prenatal care and education, ultrasound screenings, pregnancy tests, parenting training, life-skills education and financial management education, as well as the provision of nursery furniture, diapers, diaper bags, infant clothing, maternity clothing and child safety seats; and

    Whereas, The pregnancy care centers of West Virginia have worked to prevent unplanned pregnancies among teens by teaching effective abstinence education to over 1,700 public school students in 2011; and

    Whereas, In 2011, Pregnancy care centers in West Virginia provided services to more than 4,500 clients for an estimated savings of at least $46 million for West Virginia taxpayers; and

    Whereas, Pregnancy care centers do not receive state or federal funding and operate primarily through reliance on the voluntary donations and the time of thousands of volunteers who are committed to caring for the needs of women and their families, while also promoting and protecting life; and

    Whereas, Both federal and state governments are increasingly recognizing the valuable services of pregnancy care centers through the public support of such organizations; and

    Whereas, The Senate strongly encourages the United States Congress and other federal and state government agencies to grant pregnancy care centers assistance for medical equipment and abstinence education in a manner that does not compromise the mission or religious integrity of these organizations; therefore, be it

    Resolved by the Senate:

    That the Senate hereby recognizes the many contributions of the thousands of volunteers and paid staff at pregnancy care centers in West Virginia and across the United States; and, be it

    Further Resolved, That the Senate extends its sincere appreciation to these committed volunteers and staff who unselfishly work to educate, assist and contribute to the many women, men, children, families and babies that are in their need across West Virginia and the entire United States; and, be it    Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate representative of pregnancy care centers in West Virginia.

    At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.

    On motion of Senator Unger, the Senate recessed for one minute.

    Upon expiration of the recess, the Senate reconvened and proceeded to the eighth order of business.

    Eng. Senate Bill No. 108, Creating Unintentional Pharmaceutical Drug Overdose Fatality Review Team.

    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, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, 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. 108) passed.

    The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

    Eng. Senate Bill No. 108--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §61-12A-1, §61-12A-2, §61-12A-3, §61-12A-4, §61-12A-5 and §61-12A-6, all relating to the creation of the Unintentional Pharmaceutical Drug Overdose Fatality Review Team under the Office of the Chief Medical Examiner; setting forth legislative findings; setting forth membership of the team and terms of office; setting forth responsibilities of the team; providing for certain actions the team may not take in exercising its duties; providing for an annual report to the Governor and Legislature and its contents; providing for confidentiality of the team’s proceedings, records and opinions; setting forth record-keeping requirements; authorizing access to certain records; requiring other state and local agencies to cooperate with the team; and directing the Office of the Chief Medical Examiner, in consultation with the Unintentional Pharmaceutical Drug Overdose Fatality Review Team, to propose legislative rules.

    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. 353, Establishing First Informer Broadcasters 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, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, 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. 353) passed with its title.

    Senator Unger moved that the bill take effect July 1, 2013.

    On this question, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, 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. 353) takes effect July 1, 2013.

    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. 359, Relating generally to reforming public education.

    On third reading, coming up in regular order, was reported by the Clerk.

    At the request of Senator Unger, unanimous consent being granted, further consideration of the bill was deferred until the conclusion of bills on today's first reading calendar.

    Eng. Senate Bill No. 412, Relating to removal of elected county conservation district supervisors from office.

    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, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, 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. 412) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, 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. 412) 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. 464, Regulating tanning facilities.

    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: Beach, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Yost and Kessler (Mr. President)--26.

    The nays were: Barnes, Blair, Green, D. Hall, Nohe, Sypolt, Walters and Williams--8.

    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. 464) 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.

    Senate Bill No. 183, Updating terms in Corporation Net Income Tax Act.

    On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

    Senate Bill No. 208, Making supplementary appropriation from State Fund, General Revenue, to Department of Commerce, Division of Labor, and DHHR, Division of Human Services.

    On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

    Com. Sub. for Senate Bill No. 358, Relating to municipal policemen and firemen pensions.

    On second reading, coming up in regular order, was read a second time.

    The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

    On page twenty-one, section twenty-five, line fifty-four, by striking out the word “to”.

    The bill (Com. Sub. for S. B. No. 358), as amended, was then ordered to engrossment and third reading.

    Senate Bill No. 446, Conforming motor fuel taxes with International Fuel Tax Agreement.

    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 tenth order of business.

    The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:

    Com. Sub. for Senate Bill No. 27, Relating to administration of opioid antidote in emergency situations.

    Senate Bill No. 441, Relating to withdrawal of erroneous state tax liens.

    And,

    Com. Sub. for Senate Bill No. 477, Relating to electronic registration of voters.

    Pending announcement of meetings of standing committees of the Senate,

    On motion of Senator Unger, the Senate recessed until 1:30 p.m. today.

    Upon expiration of the recess, the Senate reconvened.

    The end of today's first reading calendar having been reached, the Senate returned to the consideration of

    Eng. Com. Sub. for Senate Bill No. 359, Relating generally to reforming public education.

    On third reading, coming up in deferred order, was again reported by the Clerk.

    At the request of Senator Plymale, unanimous consent was granted to offer amendments to the bill on third reading.

    Thereupon, on motion of Senator Plymale, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:

    On pages one hundred eight through one hundred fourteen, by striking out all of section forty-five and inserting in lieu thereof a new section, designated section forty-five, to read as follows:

§18-5-45. School calendar.

    (a) As used in this section:

    (1) “Instructional day” means a day within the instructional term which meets the following criteria:

    (A) Instruction is offered to students for at least the minimum amount of hours provided by state board rule;

    (B) Instructional time is used for instruction and cocurricular activities; and

    (C) Other criteria as the state board determines appropriate.

    (2) “Cocurricular activities” are activities that are closely related to identifiable academic programs or areas of study that serve to complement academic curricula as further defined by the state board.

    (b) Findings. --

    (1) The primary purpose of the school system is to provide instruction for students.

    (2) The school calendar, as defined in this section, is designed to define the school term both for employees and for instruction.

    (3) The school calendar shall provide for one hundred eighty separate instructional days.

    (c) The county board shall provide a school term for its schools that contains the following:

    (1) An employment term that excludes Saturdays and Sundays and consists of at least two hundred days, which need not be successive. The beginning and closing dates of the employment term may not exceed forty-eight weeks;

    (2) Within the employment term, an instructional term for students of no less than one hundred eighty separate instructional days, which includes an inclement weather and emergencies plan designed to guarantee an instructional term for students of no less than one hundred eighty separate instructional days;

    (3) Within the employment term, noninstructional days shall total twenty and shall be comprised of the following:

    (A) Seven paid holidays;

    (B) Election day as specified in section two, article five, chapter eighteen-a of this code;

    (C) Six days to be designated by the county board to be used by the employees outside the school environment, with at least four outside the school environment days scheduled to occur after the one hundred and thirtieth instructional day of the school calendar; and

    (D) The remaining days to be designated by the county board for purposes to include, but not be limited to:

    (i) Curriculum development;

    (ii) Preparation for opening and closing school;

    (iii) Professional development;

    (iv) Teacher-pupil-parent conferences;

    (v) Professional meetings;

    (vi) Making up days when instruction was scheduled but not conducted; and

    (vii) At least four two-hour blocks of time for faculty senate meetings with each two-hour block of time scheduled once at least every forty-five instructional days; and

    (4) Scheduled out-of-calendar days that are to be used for instructional days in the event school is canceled for any reason.

    (d) A county board of education shall develop a policy that requires additional minutes of instruction in the school day or additional days of instruction to recover time lost due to late arrivals and early dismissals.

    (e) If it is not possible to complete one hundred eighty separate instructional days with the current school calendar, the county board shall schedule instruction on any available noninstructional day, regardless of the purpose for which the day originally was scheduled, or an out-of-calendar day and the day will be used for instruction of students: Provided, That the provisions of this subsection do not apply to:

    (A) Holidays;

    (B) Election day;

    (C) Saturdays and Sundays.

    (f) The instructional term shall commence and terminate on a date selected by the county board.

    (g) The state board may not schedule the primary statewide assessment program more than thirty days prior to the end of the instructional year unless the state board determines that the nature of the test mandates an earlier testing date.

    (h) The following applies to cocurricular activities:

    (1) The state board shall determine what activities may be considered cocurricular;

    (2) The state board shall determine the amount of instructional time that may be consumed by cocurricular activities; and

    (3) Other requirements or restrictions the state board may provide in the rule required to be promulgated by this section.

    (i) Extracurricular activities may not be used for instructional time.

    (j) Noninstructional interruptions to the instructional day shall be minimized to allow the classroom teacher to teach.

    (k) Prior to implementing the school calendar, the county board shall secure approval of its proposed calendar from the state board or, if so designated by the state board, from the state superintendent.

    (l) In formulation of a school’s calendar, a county school board shall hold at least two public meetings that allow parents, teachers, teacher organizations, businesses and other interested parties within the county to discuss the school calendar. The public notice of the date, time and place of the public hearing must be published in a local newspaper of general circulation in the area as a Class II legal advertisement, in accordance with the provisions of article three, chapter fifty-nine of this code.

    (m) The county board may contract with all or part of the personnel for a longer term of employment.

    (n) The minimum instructional term may be decreased by order of the state superintendent in any county declared a federal disaster area and where the event causing the declaration is substantially related to a reduction of instructional days.

    (o) Notwithstanding any provision of this code to the contrary, the state board may grant a waiver to a county board for its noncompliance with provisions of chapter eighteen, eighteen-a, eighteen-b and eighteen-c of this code to maintain compliance in reaching the mandatory one hundred eighty separate instructional days established in this section.

    (p) The state board shall promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code for the purpose of implementing the provisions of this section.

    (q) The amendments to this section during the 2013 regular session of the Legislature shall be effective for school years beginning on or after July 1, 2013, and the provisions of this section immediately prior to those amendments remain in effect until July 1, 2013.;

    On pages one hundred seventeen and one hundred eighteen, section five, lines sixty-eight through seventy-six, by striking out all of subdivision (2) and inserting in lieu thereof a new subdivision, designated subdivision (2), to read as follows:

    (2) A faculty senate may establish a process for members to interview new prospective professional educators and paraprofessional employees at the school and or otherwise obtain information regarding applicants for classroom teaching vacancies that will enable the faculty senate to submit recommendations regarding employment to the principal. who may also make independent recommendations, for submission to the county superintendent: Provided, That such process shall be chaired by the school principal and must permit the timely employment of persons to perform necessary duties. To facilitate the establishment of a process that is timely, effective, consistent among schools and counties, and designed to avoid litigation or grievance, the state board shall promulgate a rule pursuant to article three-b, chapter twenty-nine-a of this code to implement the provisions of this subdivision. The rule may include the following:

    (A) A process or alternative processes that a faculty senate may adopt;

    (B) If determined necessary, a requirement and procedure for training for principals and faculty senate members or their designees who may participate in interviews and provisions that may provide for the compensation based on the appropriate daily rate of a classroom teacher who directly participates in the training for periods beyond his or her individual contract;

    (C) Time lines that will assure the timely completion of the recommendation or the forfeiture of the right to make a recommendation upon the failure to complete a recommendation within a reasonable time;

    (D) The authorization of the faculty senate to delegate the process for making a recommendation to a committee of no less than three members of the faculty senate; and

    (E) Such other provisions as the state board determines are necessary or beneficial for the process to be established by the faculty senate.;

    On pages one hundred twenty-eight through one hundred thirty-five, by striking out all of section one-d and inserting in lieu thereof a new section, designated section one-d, to read as follows:

§18A-3-1d. Study of alternative certification programs.

    The state board shall conduct a study on alternative certification programs, including the effectiveness of the current methods of alternative certification, any improvements needed on current methods of alternative certification and potential additional methods of certification that would enhance the ability of the State of West Virginia to place effective teachers in areas of high need. “Areas of high need” means those subject areas, public schools or geographic areas of the state in which the state board determines that critical teacher shortages exist. The board shall report its findings and recommendations to the Legislative Oversight Commission on Education Accountability no later than December 31, 2013.;

    On pages one hundred thirty-five through one hundred thirty-seven, by striking out all of section one-e;

    On pages one hundred thirty-seven through one hundred forty-three, by striking out all of section two-a;

    On pages one hundred sixty through one hundred seventy-four, by striking out all of section seven-a and inserting in lieu thereof a new section, designated section seven-a, to read as follows:

§18A-4-7a. Employment, promotion and transfer of professional personnel; seniority.

    (a) A county board of education shall make decisions affecting the hiring of professional personnel other than classroom teachers on the basis of the applicant with the highest qualifications.

    (b) (a) The A county board of education shall make decisions affecting the hiring filling of new classroom teachers vacancies in professional positions of employment on the basis of the applicant with the highest qualifications: Provided, That the county superintendent shall be hired under separate criteria pursuant to section two, article four, chapter eighteen of this code.

    (c) (b) In judging qualifications for hiring employees pursuant to subsections (a) and (b) of this section the filling of vacancies of professional positions of employment, consideration shall be given to each of the following:

    (1) Appropriate certification, licensure or both;

    (2) Amount of experience relevant to the position or, in the case of a classroom teaching position, the amount of teaching experience in the subject required certification area;

    (3) The amount of course work, degree level or both in the relevant field and degree level generally;

    (4) Academic achievement;

    (5) In the case of a classroom teaching position or the position of principal, certification by the National Board for Professional Teaching Standards;

    (5) (6) Relevant Specialized training relevant to the performance of the duties of the job;

    (6) (7) Past performance evaluations conducted pursuant to section twelve, article two of this chapter and section two, article three-c of this chapter or, in the case of a classroom teacher, past evaluations of the applicant’s performance in the teaching profession;

    (8) Seniority; and

    (7) (9) Other measures or indicators upon which the relative qualifications of the applicant may fairly be judged;

    (10) In the case of a classroom teaching position, the recommendation of the principal of the school at which the applicant will be performing a majority of his or her duties; and

    (11) In the case of a classroom teaching position, the recommendation, if any, resulting from the process established pursuant to the provisions of section five, article five-a, chapter eighteen of this code by the faculty senate of the school at which the employee will be performing a majority of his or her duties.

    (d) (c) If In considering the filling of a vacancy pursuant to this section, a county board is entitled to determine the appropriate weight to apply to each of the criterion when assessing an applicant’s qualifications: Provided, That if one or more permanently employed instructional personnel apply for a classroom teaching position and meet the standards set forth in the job posting, each criterion under subsection (b) of this section shall be given equal weight except that the criterion in subdivisions (10) and (11) shall each be double weighted. the county board of education shall make a decision affecting the filling of the position on the basis of the following criteria:

    (1) Appropriate certification, licensure or both;

    (2) Total amount of teaching experience;

    (3) The existence of teaching experience in the required certification area;

    (4) Degree level in the required certification area;

    (5) Specialized training directly related to the performance of the job as stated in the job description;

    (6) Receiving an overall rating of satisfactory in the previous two evaluations conducted pursuant to section twelve, article two of this chapter; and

    (7) Seniority.

    (e) In filling positions pursuant to subsection (d) of this section, consideration shall be given to each criterion with each criterion being given equal weight. If the applicant with the most seniority is not selected for the position, upon the request of the applicant a written statement of reasons shall be given to the applicant with suggestions for improving the applicant’s qualifications.

    (d) For a classroom teaching position, if the recommendations resulting from the operations of subdivisions (10) and (11), subsection (b) of this section are for the same applicant, and the superintendent concurs with that recommendation, then the other provisions of subsections (b) and (c) of this section do not apply and the county board shall appoint that applicant notwithstanding any other provision of this code to the contrary.

    (e) The state board shall promulgate a rule, including an emergency rule if necessary, in accordance with the provisions of article three-b, chapter twenty-nine-a of this code to implement and interpret the provisions of this section, including provisions that may provide for the compensation based on the appropriate daily rate of a classroom teacher who directly participates in making recommendations pursuant to this section for periods beyond his or her individual contract.

    (f) Recommendations made pursuant to subdivisions (10) and (11), subsection (b) of this section shall be made based on a determination as to which of the applicants is the highest qualified for the position: Provided, That nothing in this subsection shall require principals or faculty senates to assign any amount of weight to any factor in making a recommendation.

    (f) (g) With the exception of guidance counselors, the seniority of classroom teachers, as defined in section one, article one of this chapter, shall be determined on the basis of the length of time the employee has been employed as a regular full-time certified and/or licensed professional educator by the county board of education and shall be granted in all areas that the employee is certified, licensed or both.

    (g) (h) Upon completion of one hundred thirty-three days of employment in any one school year, substitute teachers, except retired teachers and other retired professional educators employed as substitutes, shall accrue seniority exclusively for the purpose of applying for employment as a permanent, full-time professional employee. One hundred thirty-three days or more of said employment shall be prorated and shall vest as a fraction of the school year worked by the permanent, full-time teacher.

    (h) (i) Guidance counselors and all other professional employees, as defined in section one, article one of this chapter, except classroom teachers, shall gain seniority in their nonteaching area of professional employment on the basis of the length of time the employee has been employed by the county board of education in that area: Provided, That if an employee is certified as a classroom teacher, the employee accrues classroom teaching seniority for the time that that employee is employed in another professional area. For the purposes of accruing seniority under this paragraph, employment as principal, supervisor or central office administrator, as defined in section one, article one of this chapter, shall be considered one area of employment.

    (i) (j) Employment for a full employment term shall equal one year of seniority, but no employee may accrue more than one year of seniority during any given fiscal year. Employment for less than the full employment term shall be prorated. A random selection system established by the employees and approved by the board shall be used to determine the priority if two or more employees accumulate identical seniority: Provided, That when two or more principals have accumulated identical seniority, decisions on reductions in force shall be based on qualifications.

    (j) (k) Whenever a county board is required to reduce the number of professional personnel in its employment, the employee with the least amount of seniority shall be properly notified and released from employment pursuant to the provisions of section two, article two of this chapter. The provisions of this subsection are subject to the following:

    (1) All persons employed in a certification area to be reduced who are employed under a temporary permit shall be properly notified and released before a fully certified employee in such a position is subject to release;

    (2) Notwithstanding any provision of this code to the contrary, all employees subject to release shall be considered applicants for any vacancy in an established, existing or newly created position that, on or before February 15, is known to exist for the ensuing school year, and for which they are qualified, and, upon recommendation of the superintendent, the board shall appoint the successful applicant from among them before posting such vacancies for application by other persons;

    (2) (3) An employee subject to release shall be employed in any other professional position where the employee is certified and was previously employed or to any lateral area for which the employee is certified, licensed or both, if the employee’s seniority is greater than the seniority of any other employee in that area of certification, licensure or both;

    (3) (4) If an employee subject to release holds certification, licensure or both in more than one lateral area and if the employee’s seniority is greater than the seniority of any other employee in one or more of those areas of certification, licensure or both, the employee subject to release shall be employed in the professional position held by the employee with the least seniority in any of those areas of certification, licensure or both; and

    (4) (5) If, prior to August 1 of the year a reduction in force is approved, the reason for any particular reduction in force no longer exists as determined by the county board in its sole and exclusive judgment, the board shall rescind the reduction in force or transfer and shall notify the released employee in writing of his or her right to be restored to his or her position of employment. Within five days of being so notified, the released employee shall notify the board, in writing, of his or her intent to resume his or her position of employment or the right to be restored shall terminate. Notwithstanding any other provision of this subdivision, if there is another employee on the preferred recall list with proper certification and higher seniority, that person shall be placed in the position restored as a result of the reduction in force being rescinded.

    (k) (l) For the purpose of this article, all positions which meet the definition of “classroom teacher” as defined in section one, article one of this chapter shall be lateral positions. For all other professional positions, the county board of education shall adopt a policy by October 31, 1993, and may modify the policy thereafter as necessary, which defines which positions shall be lateral positions. The board shall submit a copy of its policy to the state board within thirty days of adoption or any modification, and the state board shall compile a report and submit the report to the Legislative Oversight Commission on Education Accountability by December 31, 1993, and by that date in any succeeding year in which any county board submits a modification of its policy relating to lateral positions. In adopting the policy, the board shall give consideration to the rank of each position in terms of title; nature of responsibilities; salary level; certification, licensure or both; and days in the period of employment.

    (l) (m) After the twentieth day prior to the beginning of the instructional term, no person employed and assigned to a professional position may transfer to another professional position in the county during that instructional term unless the person holding that position does not have valid certification. The provisions of this subsection are subject to the following:

    (1) The person may apply for any posted, vacant positions with the successful applicant assuming the position at the beginning of the next instructional term;

    (2) Professional personnel who have been on an approved leave of absence may fill these vacancies upon their return from the approved leave of absence;

    (3) The county board, upon recommendation of the superintendent may fill a position before the next instructional term when it is determined to be in the best interest of the students. The county superintendent shall notify the state board of each transfer of a person employed in a professional position to another professional position after the twentieth day prior to the beginning of the instructional term;

    (4) The provisions of this subsection do not apply to the filling of a position vacated because of resignation or retirement that became effective on or before the twentieth day prior to the beginning of the instructional term, but not posted until after that date; and

    (5) The Legislature finds that it is not in the best interest of the students particularly in the elementary grades to have multiple teachers for any one grade level or course during the instructional term. It is the intent of the Legislature that the filling of positions through transfers of personnel from one professional position to another after the twentieth day prior to the beginning of the instructional term should be kept to a minimum.

    (m) (n) All professional personnel whose seniority with the county board is insufficient to allow their retention by the county board during a reduction in work force shall be placed upon a preferred recall list. As to any professional position opening within the area where they had previously been employed or to any lateral area for which they have certification, licensure or both, the employee shall be recalled on the basis of seniority if no regular, full-time professional personnel, or those returning from leaves of absence with greater seniority, are qualified, apply for and accept the position.

    (n) (o) Before position openings that are known or expected to extend for twenty consecutive employment days or longer for professional personnel may be filled by the board, the board shall be required to notify all qualified professional personnel on the preferred list and give them an opportunity to apply, but failure to apply shall not cause the employee to forfeit any right to recall. The notice shall be sent by certified mail to the last known address of the employee, and it shall be the duty of each professional personnel to notify the board of continued availability annually, of any change in address or of any change in certification, licensure or both.

    (o) (p) Openings in established, existing or newly created positions shall be processed as follows:

    (1) Boards shall be required to post and date notices which shall be of each opening at least once. At their discretion, boards may post an opening for a position other than classroom teacher more than once in order to attract more qualified applicants. At their discretion, boards may post an opening for a classroom teacher one additional time after the first posting in order to attract more qualified applicants only if fewer than three individuals apply during the first posting subject to the following:

    (A) The notices Each notice shall be posted in conspicuous working places for all professional personnel to observe for at least five working days;

    (B) The At least one notice shall be posted within twenty working days of the position openings and shall include the job description;

    (C) Any special criteria or skills that are required by the position shall be specifically stated in the job description and directly related to the performance of the job;

    (D) Postings for vacancies made pursuant to this section shall be written so as to ensure that the largest possible pool of qualified applicants may apply; and

    (E) Job postings may not require criteria which are not necessary for the successful performance of the job and may not be written with the intent to favor a specific applicant;

    (2) No vacancy shall be filled until after the five-day minimum posting period of the most recent posted notice of the vacancy;

    (3) If one or more applicants under all the postings for a vacancy meets the qualifications listed in the job posting, the successful applicant to fill the vacancy shall be selected by the board within thirty working days of the end of the first posting period;

    (4) A position held by a teacher who is certified, licensed or both, who has been issued a permit for full-time employment and is working toward certification in the permit area shall not be subject to posting if the certificate is awarded within five years; and

    (5) Nothing provided herein shall prevent the county board of education from eliminating a position due to lack of need.

    (p) (q) Notwithstanding any other provision of the code to the contrary, where the total number of classroom teaching positions in an elementary school does not increase from one school year to the next, but there exists in that school a need to realign the number of teachers in one or more grade levels, kindergarten through six, teachers at the school may be reassigned to grade levels for which they are certified without that position being posted: Provided, That the employee and the county board of education mutually agree to the reassignment.

    (q) (r) Reductions in classroom teaching positions in elementary schools shall be processed as follows:

    (1) When the total number of classroom teaching positions in an elementary school needs to be reduced, the reduction shall be made on the basis of seniority with the least senior classroom teacher being recommended for transfer; and

    (2) When a specified grade level needs to be reduced and the least senior employee in the school is not in that grade level, the least senior classroom teacher in the grade level that needs to be reduced shall be reassigned to the position made vacant by the transfer of the least senior classroom teacher in the school without that position being posted: Provided, That the employee is certified, licensed or both and agrees to the reassignment.

    (r) (s) Any board failing to comply with the provisions of this article may be compelled to do so by mandamus and shall be liable to any party prevailing against the board for court costs and reasonable attorney fees as determined and established by the court. Further, employees denied promotion or employment in violation of this section shall be awarded the job, pay and any applicable benefits retroactive to the date of the violation and payable entirely from local funds. Further, the board shall be liable to any party prevailing against the board for any court reporter costs including copies of transcripts.

    (s) (t) The county board shall compile, update annually on July 1 and make available by electronic or other means to all employees a list of all professional personnel employed by the county, their areas of certification and their seniority.

    (u) Notwithstanding any other provision of this code to the contrary, upon recommendation of the principal and approval by the classroom teacher and county board, a classroom teacher assigned to the school may at any time be assigned to a new or existing classroom teacher position at the school without the position being posted.

    (v) The amendments to this section during the 2013 regular session of the Legislature shall be effective for school years beginning on or after July 1, 2013, and the provisions of this section immediately prior to those amendments remain in effect until July 1, 2013.;

    On pages two hundred thirteen through two hundred sixteen, by striking out all of section fourteen and inserting in lieu thereof a new section, designated section fourteen, to read as follows:

§18A-4-14. Duty-free lunch and daily planning period for certain employees.

    (1) (a) Notwithstanding the provisions of section seven, article two of this chapter, every teacher who is employed for a period of time more than one half the class periods of the regular school day and every service personnel person whose employment is for a period of more than three and one-half hours per day and whose pay is at least the amount indicated in the state minimum pay scale as set forth in section eight-a of this article shall be provided a daily lunch recess of not less than thirty consecutive minutes, and such the employee shall not be assigned any responsibilities during this recess. Such The recess shall be included in the number of hours worked, and no county shall increase the number of hours to be worked by an employee as a result of such the employee being granted a recess under the provisions of this section.

    (2) (b) Every teacher who is regularly employed for a period of time more than one half the class periods of the regular school day shall be provided at least one planning period within each school instructional day to be used to complete necessary preparations for the instruction of pupils. Such planning period shall be the length of the usual class period in the school to which such teacher is assigned, and shall be not less than thirty minutes. No teacher shall may be assigned any responsibilities during this period, and no county shall increase the number of hours to be worked by a teacher as a result of such teacher being granted a planning period subsequent to the adoption of this section (March 13, 1982).

    The duration of the planning period shall be in accordance with the following:

    (1) For grades where the majority of the student instruction is delivered by only one teacher, the planning period shall be no less than forty minutes; and

    (2) For grades where students take separate courses during at least four separate periods of instruction, most usually delivered by different teachers for each subject, the planning period shall be the length of the usual class period taught by the teacher, but no less than forty minutes.

    Principals, and assistant principals, where applicable, shall cooperate in carrying out the provisions of this subsection, including, but not limited to, assuming control of the class period or supervision of students during the time the teacher is engaged in the planning period. Substitute teachers may also be utilized to assist with classroom responsibilities under this subsection: Provided, That any substitute teacher who is employed to teach a minimum of two consecutive days in the same position shall be granted a planning period pursuant to this section.

    (3) (c) Nothing in this section shall be construed to prevent prevents any teacher from exchanging his or her lunch recess or a planning period or any service personnel person from exchanging his or her lunch recess for any compensation or benefit mutually agreed upon by the employee and the county superintendent of schools or his or her agent: Provided, That a teacher and the superintendent or his or her agent may not agree to terms which are different from those available to any other teacher granted rights under this section within the individual school or to terms which in any way discriminate among such those teachers within the individual school, and that service personnel a service person granted rights under this section and the superintendent or his or her agent may not agree to terms which are different from those available to any other service personnel within the same classification category granted rights under this section within the individual school or to terms which in any way discriminate among such those service personnel within the same classification category within the individual school.

    (d) The state board shall conduct a study on planning periods. The study shall include, but not be limited to, the appropriate length for planning periods at the various grade levels and for the different types of class schedules. The board shall report its findings and recommendations to the Legislative Oversight Commission on Education Accountability no later than December 31, 2013.;

    And,

    By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:

    That §18-2-23a and §18-2-32 of the Code of West Virginia, 1931, as amended, be repealed; that §18-2E-5c of said code be repealed; that §18-2I-6 and §18-2I-7 of said code be repealed; that §18A-3A-2a and §18A-3A-6 of said code be repealed; that §18-1-4 of said code be amended and reenacted; that §18-2-24 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18-2-39; that §18-2E-5 of said code be amended and reenacted; that §18-2I-1, §18-2I-2, §18-2I-3, §18-2I-4 and §18-2I-5 of said code be amended and reenacted; that §18-3-1 and §18-3-12 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18-3-9b; that §18-5-18, §18-5-44 and §18-5-45 of said code be amended and reenacted; that §18-5A-5 of said code be amended and reenacted; that §18A-2-1 and §18A-2-7 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18A-3-1d; that §18A-3A-1, §18A-3A-2 and §18A-3A-3 of said code be amended and reenacted; that §18A-4-2a, §18A-4-7a, §18A-4-8, §18A-4-8a and §18A-4-14 of said code be amended and reenacted; that §18A-5-2 of said code be amended and reenacted; that §18C-1-2 of said code be amended and reenacted; that §18C-4-1, §18C-4-2, §18C-4-3 and §18C-4-4 of said code be amended and reenacted; and that said code be amended by adding thereto three new sections, designated §18C-4A-1, §18C-4A-2 and §18C-4A-3, all to read as follows:.

    The bill, as just amended, was again ordered to engrossment.

    Engrossed Committee Substitute for Senate Bill No. 359 was then read a third time and put upon its passage.

    On the passage of the bill, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, 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. 359) passed.

    On motion of Senator Plymale, the following amendment to the title of the bill was reported by the Clerk and adopted:

    Eng. Com. Sub. for Senate Bill No. 359--A Bill to repeal §18-2-23a and §18-2-32 of the Code of West Virginia, 1931, as amended; to repeal §18-2E-5c of said code; to repeal §18-2I-6 and §18-2I-7 of said code; to repeal §18A-3A-2a and §18A-3A-6 of said code; to amend and reenact §18-1-4 of said code; to amend and reenact §18-2-24 of said code; to amend said code by adding thereto a new section, designated §18-2-39; to amend and reenact §18-2E-5 of said code; to amend and reenact §18-2I-1, §18-2I-2, §18-2I-3, §18-2I-4 and §18-2I-5 of said code; to amend and reenact §18-3-1 and §18-3-12 of said code; to amend said code by adding thereto a new section, designated §18-3-9b; to amend and reenact §18-5-18, §18-5-44 and §18-5-45 of said code; to amend and reenact §18-5A-5 of said code; to amend and reenact §18A-2-1 and §18A-2-7 of said code; to amend said code by adding thereto a new section, designated §18A-3-1d; to amend and reenact §18A-3A-1, §18A-3A-2 and §18A-3A-3 of said code; to amend and reenact §18A-4-2a, §18A-4-7a, §18A-4-8, §18A-4-8a and §18A-4-14 of said code; to amend and reenact §18A-5-2 of said code; to amend and reenact §18C-1-2 of said code; to amend and reenact §18C-4-1, §18C-4-2, §18C-4-3 and §18C-4-4 of said code; and to amend said code by adding thereto three new sections, designated §18C-4A-1, §18C-4A-2 and §18C-4A-3, all relating to transforming and improving public education; removing outdated language; requiring the State Board of Education, the Higher Education Policy Commission and the Council for Community and Technical College Education to collaborate in formally adopting uniform and specific college- and career-readiness standards for English/language arts and math; providing methods for determining whether students have met the college- and career-readiness standards; requiring that an explicit focus be embedded in each course on the development of English/language arts and math skills; requiring a twelfth-grade transitional course for both English/language arts and math for students not on track to be college ready; requiring professional development on teaching the college- and career-readiness standards to be included in the State Board’s Master Plan for Professional Staff Development; requiring the state board to require all teacher preparation programs to include appropriate training for teaching adopted standards in at least grades eight through twelve; requiring the use of certain assessments, exams or tests for determining whether a student is to enroll in a remedial course; requiring accountability for increasing the percentage of students who meet the standards and for increasing the percentage of students who are making adequate progress toward meeting the standards; removing requirement applicable to annual county and school strategic improvement plans; modifying requirements for high-quality education standards for student, school and school system performance and processes; modifying requirements pertaining to a comprehensive statewide student assessment program; removing provisions relating to No Child Left Behind annual measures; modifying provisions pertaining to the state annual performance measures for school and school system accreditation; removing provisions pertaining to requiring the standards to include indicators of exemplary student, school and school system performance and progress; eliminating the Process for Improving Education Council; modifying component of system of education performance audits; expanding state board authority pertaining to the Office of Education Performance Audit’s reporting formats; eliminating condition for on-site review; removing prohibition of certain duplicate reviews or inspections; removing provisions pertaining to persons who are to conduct an on-site review; removing list of areas for which the office may not review; modifying provisions pertaining to school accreditation; removing provision allowing a student to transfer from a low-performing school under certain conditions; professional development; establishing clear state-level leadership of professional development; providing findings on the importance of professional development; requiring State Board of Education to develop a master plan for professional development; requiring submission of plan to certain entities; requiring goals to be established and included in the master plan; requiring state board rules; setting forth minimum components of the rule; requiring annual report on the statewide professional development plan; modifying language pertaining to the Strategic Staff Development Fund; modifying State Superintendent of Schools qualifications and removing his or her salary limit; requiring state superintendent to reduce the amount budgeted for personal services, related employee benefits and contractual expenditures related to employment in fiscal years 2014 and 2015; increasing the number of schools to be included in a special community development pilot program; modifying other provisions pertaining to the pilot program; requiring kindergarten and early childhood aides to transition to one of three new assistant teacher positions beginning July 1, 2014; exempting those eligible for retirement before July 1, 2020; requiring early childhood education programs to be made available five days a week for the full day; allowing program to be for fewer than five days per week and less than full day under certain circumstances; allowing parent to withdraw child for good cause; providing for local control of the school calendar; defining terms and establishing findings about the school calendar; requiring a 200-day employment term; limiting beginning and closing dates to forty-eight weeks; requiring one hundred eighty separate days of actual instruction are to be provided for students; requiring twenty noninstructional days; requiring school term to include out-of-calendar days that are to be used for instructional days in the event school is canceled; requiring county policy for adding minutes or days to school calendar for certain purpose; limiting noninstructional interruptions to instructional day; requiring state board or state superintendent approval of proposed county calendar; requiring public meetings for discussions of a school system’s calendar; allowing the state board to grant a waiver to certain code sections that prevent a school system from meeting one hundred eighty instructional days; requiring state board rule to implement the calendar section provisions; modifying provisions pertaining to a process for a faculty senate to submit recommendations regarding employment to the principal; requiring state board to promulgate rule to implement the provisions relating to the process; removing language about faculty senates on instructional support and enhancement days; requiring the local board to provide at least four additional two-hour blocks of time during noninstructional days, with each block scheduled once at least every forty-five instructional days; prohibiting principals from recommending for employment certain individuals that are related to him or her; allowing reassignment of teachers when a vacancy was not foreseen before March 1 based on pupil-teacher ratio; requiring state board to conduct a study on alternative certification programs; providing for salary bonus for classroom teachers with a National Board for Professional Teaching Standards renewal certificate; providing for reimbursement of the renewal certification fee; removing language that limits the number of board-certified teachers who can receive reimbursement per year; modifying process for filling vacancies in professional positions of employment including the criteria to be considered; allowing a county board to determine the appropriate weight to apply to each criterion except when one or more permanently employed instructional personnel apply for a classroom teaching position and meet the standards set forth in the job posting; providing that for a classroom teaching position if the recommendation of the principal and resulting from the faculty senate process are the same and the superintendent concurs, the county board is required to appoint the applicant; requiring state board rule to implement and interpret certain employment provisions; allowing released employees to be hired for certain vacancies prior to the job being posted; allowing for multiple postings within a thirty-day period under certain conditions; allowing reassignment of a teacher within his or her school upon consent of teacher and county board; creating three new types of early childhood classroom assistant teacher positions; assigning a pay grade to the new positions; modifying provisions pertaining to the length of planning periods; requiring state board study on planning periods; clarifying that not all holidays will be counted as a day of the employment term and that pay per pay period cannot change as a result; providing that snow days are not counted as days of employment or days of instruction; providing definitions; scholarships and loan assistance for teachers in critical need areas; creating loan assistance program; determining subject and geographic areas of critical need; requiring legislative rules for program administration; revising eligibility criteria and specifying effective date; determining eligibility and awarding loan assistance; establishing criteria for inclusion in scholarship and loan assistance agreements; requiring payments to be made directly to a lending entity; requiring model contract agreements; specifying loan amount, limits and duration of loan assistance; requiring repayment under certain conditions; specifying excusal from repayment under certain conditions; and making technical corrections and deleting obsolete language.

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

    Pending announcement of meetings of a select committee of the Senate,

    On motion of Senator Unger, the Senate adjourned until tomorrow, Tuesday, March 19, 2013, at 11 a.m.

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