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WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

FIRST EXTRAORDINARY SESSION, 2010

SEVENTH DAY

____________

Charleston, W. Va., Wednesday, May 19, 2010

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

     Prayer was offered by the Honorable Erik P. Wells, a senator from the eighth district.
     Pending the reading of the Journal of Tuesday, May 18, 2010,
     On motion of Senator Snyder, the Journal was approved and the further reading thereof dispensed with.
     The Senate proceeded to the fourth order of business.
     Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
     Your Committee on Finance has had under consideration
     Com. Sub. for Senate Bill No. 1012, Relating to additional compensation for certain professional school personnel.
     Now on second reading, having been read a first time and referred to the Committee on Finance on May 18, 2010;
     And reports the same back with the recommendation that it do pass.
                              Respectfully submitted,
                               Walt Helmick,
                               Chair.
     At the request of Senator Helmick, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 1012) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
     On motion of Senator Plymale, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
     O
n pages eight through twelve, by striking out all of section two-c and inserting in lieu thereof a new section two-c, to read as follows:
§18A-4-2c. State minimum annual salary supplement for classroom teachers employed in high minority and high poverty areas; state minimum monetary incentive for classroom teachers based on student growth.

     (a) Findings. -- The Legislature finds and declares that:
     (1) Creating conditions for effective teaching and learning requires a collaborative and systemic approach that supports and develops educator talent to promote meaningful, evidence-based improvements across the educator career continuum. 
     (2) The state should encourage experienced and effective classroom teachers to teach in areas of high poverty or high minority.
     (3) The payment of an annual salary supplement to classroom teachers in areas of high poverty or high minority will attract experienced and effective classroom teachers to those areas and persuade experienced and effective classroom teachers to stay in those areas.
     (4) The payment of additional compensation to classroom teachers in areas of high poverty or high minority who teach in a documented statewide area of shortage in the areas of math and science will encourage teachers to teach in these areas.
     (5) The payment of a monetary incentive to classroom teachers based on student growth will encourage high-quality instruction and reward classroom teachers for performance.
     (b) High poverty and high minority annual salary supplements. --
     Effective July 1, 2011:
     (1) Subject to subdivisions (3) and (6) of this subsection, $2,000 shall be paid annually in equal monthly installments to each classroom teacher employed in a school with a student population that is high poverty or high minority.
     (2) Subject to subdivisions (3) and (6) of this subsection, $5,000 shall be paid annually in equal monthly installments to each classroom teacher who meets the following requirements:
     (A) The classroom teacher is teaching in a documented statewide area of shortage in the areas of math and science;
     (B) The classroom teacher is employed in a school with a student population that is high poverty or high minority; and
     (C) The classroom teacher is fully certified in the subject area being taught and no other coursework, program or experience is needed to complete full certification.
     (3) A lesser amount may be paid to each classroom teacher on a pro rata basis in accordance with subdivision (6) of this subsection.
     (4) A classroom teacher may not receive both salary supplements set forth in subdivision (1) and (2) of this subsection at the same time.
     (5) The salary supplements required by this subsection are in addition to any amounts prescribed in the applicable state minimum salary schedule.
     (6) The salary supplement required by this subsection shall be paid from funds appropriated to the West Virginia Department of Education or received by it from other sources specifically for this purpose. The State Superintendent shall provide an estimate of the amount of the appropriation required to the Governor for inclusion in his or her proposed budget to the Legislature. If the amount of the appropriation is insufficient to provide payment of all salary supplements required under this subsection, each county's allocation for payment of the supplements shall be reduced pro rata. The Legislature may appropriate additional amounts to provide payment of all salary supplements required under this subsection. Notwithstanding any other provision of this subsection, the salary supplement requirements of this subsection are subject to legislative appropriation.
     (7) For the purposes of this subsection:
     (A) "High poverty" means a school which is ranked within the top twenty-five percent of the public schools in the state based on the percentage of students eligible for free and reduced price meals.
     (B) "High minority" means a school in which the student population consists of twenty percent or more noncaucasian students.
     (C) After a school is determined to have a student population that is high poverty or high minority, the school remains classified as such for one year beyond the year in which it is determined that it no longer meets the definition of a high poverty or high minority school.
     (c) Monetary incentive based on student growth. --
     
Effective July 1, 2011:
     (1) $1,000 shall be paid to each classroom teacher who meets goals for student growth during the previous school year: Provided, That a lesser amount may be paid to each classroom teacher on a pro rata basis in accordance with subdivision (4) of this subsection.
     (2) The state board shall establish the criteria for annually determining which classroom teachers, on an individual, group or school basis, have met goals for student growth during the previous school year as evidenced by multiple measures. By December 1, 2010, the state board shall propose legislative rules for legislative approval in accordance with article three-a, chapter twenty-nine-a of this code for this purpose. These criteria shall apply uniformly to all classroom teachers in the public schools. The rule shall define the area or areas of student growth and measures that support teaching and learning.
     (3) A classroom teacher shall receive his or her monetary incentive in a lump sum.
     (4) The monetary incentive required by this subsection shall be paid from funds appropriated to the West Virginia Department of Education or received by it from other sources specifically for this purpose. The State Superintendent shall provide an estimate of the amount of the appropriation required to the Governor for inclusion in his or her proposed budget to the Legislature. If the amount of the appropriation is insufficient to provide payment of all monetary incentives required under this subsection, each county's allocation for payment of the incentives shall be reduced pro rata. The Legislature may appropriate additional amounts to provide payment of all monetary incentives required under this subsection. Notwithstanding any other provision of this subsection, the monetary incentive requirements of this subsection are subject to legislative appropriation.
     (d) Rules. -- By December 1, 2010, the state board shall propose legislative rules for legislative approval in accordance with article three-a, chapter twenty-nine-a of this code to implement the provisions of this section.;
     And,
     On pages twelve through sixteen, by striking out all of section three-a and inserting in lieu thereof a new section three- a, to read as follows:
§18A-4-3a. State minimum annual salary supplement for principals and assistant principals in high minority and high poverty areas; state minimum monetary incentive for principals and assistant principals based on student growth.

     (a) Findings. -- The Legislature finds and declares that:
     (1) Creating conditions for effective teaching and learning requires a collaborative and systemic approach that supports and develops educator talent to promote meaningful, evidence-based improvements across the educator career continuum. 
     (2) The state should encourage experienced and effective principals and assistant principals to supervise schools in areas of high poverty or high minority.
     (3) The payment of an annual salary supplement to principals and assistant principals in areas of high poverty or high minority will attract experienced and effective personnel to those areas and persuade experienced and effective principals and assistant principals to stay in those areas.
     (4) The payment of a monetary incentive to principals and assistant principals based on student growth will encourage high- quality support and leadership and will reward principals and assistant principals for performance.
(b) High poverty and high minority salary supplements. --

     Effective July 1, 2011:
     (1) $1,000 shall be paid annually in equal monthly installments to each principal and assistant principal employed in a school with a student population that is high poverty or high minority: Provided, That a lesser amount may be paid to each classroom teacher on a pro rata basis in accordance with subdivision (3) of this subsection.
     (2) The salary supplement required by this subsection is in addition to the salary increments required by section three of this article and is in addition to any salary increments for principals and assistant principals paid from local funds.
     (3) Salary supplements required by this subsection shall be paid from funds appropriated to the West Virginia Department of Education or received by it from other sources specifically for this purpose. The state superintendent shall provide an estimate of the amount of the appropriation required to the Governor for inclusion in his or her proposed budget to the Legislature. If the amount of the appropriation is insufficient to provide payment of all salary supplements required under this subsection, each county's allocation for payment of the supplements shall be reduced pro rata. The Legislature may appropriate additional amounts to provide payment of all salary supplements required under this subsection. Notwithstanding any other provision of this subsection, the salary supplement requirements of this subsection are subject to legislative appropriation.
     (4) The salary supplements required by this subsection are in addition to any amounts prescribed in the applicable state minimum salary schedule.
     (5) For the purposes of this subsection:
     (A) "High poverty" means a school which is ranked within the top twenty-five percent of the public schools in the state based on the percentage of students eligible for free and reduced price meals.
     (B) "High minority" means a school in which the student population consists of twenty percent or more noncaucasian students.
     (C) After a school is determined to have a student population that is high poverty or high minority, the school remains classified as such for one year beyond the year in which it is determined that it no longer meets the definition of a high poverty or high minority school.
     (c) Monetary incentive based on student growth. --
     
Effective July 1, 2011:
     (1) $1,000 shall be paid to each principal and assistant principal whose school meets goals for student growth during the previous school year: Provided, That a lesser amount may be paid to each principal and assistant principal on a pro rata basis in accordance with subparagraph (4) of this subsection.
     (2) The state board shall establish the criteria for annually determining which principals and assistant principals met goals for student growth during the previous school year as evidenced by multiple measures. By December 1, 2010, the state board shall propose legislative rules for legislative approval in accordance with article three-a, chapter twenty-nine-a of this code for this purpose. These criteria shall apply uniformly to all principals and assistant principals in the public schools. The rule shall define the area or areas of student growth and measures that support teaching and learning.
     (3) A principal or assistant principal shall receive his or her monetary incentive in a lump sum.
     (4) Monetary incentives required by this subsection shall be paid from funds appropriated to the West Virginia Department of Education or received by it from other sources specifically for this purpose. The state superintendent shall provide an estimate of the amount of the appropriation required to the Governor for inclusion in his or her proposed budget to the Legislature. If the amount of the appropriation is insufficient to provide payment of all monetary incentives required under this subsection, each county's allocation for payment of the incentives shall be reduced pro rata. The Legislature may appropriate additional amounts to provide payment of all monetary incentives required under this subsection. Notwithstanding any other provision of this subsection, the salary supplement requirements of this subsection are subject to legislative appropriation.
     (5) The monetary incentive required by this subsection is in addition to the salary increments required by section three of this article and is in addition to any salary increments for principals and assistant principals paid from local funds.
     (6) The monetary incentive required by this subsection shall not be included as gross salary in the calculation of average final salary for purposes of calculating retirement benefits in article seven-a, chapter eighteen of this code.
     (d) Rules. -- By December 1, 2010, the state board shall propose legislative rules for legislative approval in accordance with article three-a, chapter twenty-nine-a of this code to implement the provisions of this section.
     The bill (Com. Sub. for S. B. No. 1012), as amended, was then ordered to engrossment and third reading.
     On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
     On suspending the constitutional rule, the yeas were: Barnes, Boley, Browning, Chafin, Deem, Edgell, D. Facemire, Foster, Green, Guills, Hall, Helmick, Jenkins, Laird, McCabe, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--28.
     The nays were: None.
     Absent: Bowman, K. Facemyer, Fanning, Kessler and Minard--5.
     Engrossed Committee Substitute for Senate Bill No. 1012 was then read a third time and put upon its passage.
     Pending extended discussion,
     The question being "Shall Engrossed Committee Substitute for Senate Bill No. 1012 pass?"
     On this question, the yeas were: Foster, Guills, Jenkins, McCabe, Oliverio, Plymale, Stollings, Wells and Tomblin (Mr. President)--9.
     The nays were: Barnes, Boley, Browning, Chafin, Deem, Edgell, D. Facemire, Green, Hall, Laird, Palumbo, Prezioso, Snyder, Sypolt, Unger, White, Williams and Yost--18.
     Absent: Bowman, K. Facemyer, Fanning, Helmick, Kessler and Minard--6.
     So, a majority of all the members present and voting not having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 1012) rejected.
     The Senate proceeded to the sixth order of business.
     Senators Tomblin (Mr. President), Barnes, Boley, Deem, K. Facemyer, Guills, Hall, Sypolt, Bowman, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Williams and Yost offered the following resolution:
     Senate Resolution No. 103--Memorializing the life of the Honorable Donald T. Caruth, attorney, musician, civic leader, former member of the West Virginia House of Delegates, member of the West Virginia Senate, Minority Leader of the Senate, distinguished West Virginian and dedicated statesman.
     Whereas, Donald T. Caruth was born May 23, 1950, in Princeton, Mercer County, West Virginia, the son of William B. and Elizabeth S. Caruth; and
     Whereas, Donald T. Caruth received his education from Athens High School, and earned a Bachelor's degree from Concord College, and a law degree from the West Virginia University College of Law; and
     Whereas, Donald T. Caruth was dedicated to the practice of law in Mercer County, and was a member of the West Virginia State Bar and the Mercer County Bar Association. He also served as the Athens Town Attorney; and
     Whereas, Donald T. Caruth was married to his beloved wife Laura, and was the proud father of five daughters, Maria, Andrea and Christie Boby; and Allison and Madison Caruth; and
     Whereas, Donald T. Caruth served his community with pride and distinction in a myriad of civic minded organizations, including his membership in the New River Parkway Authority; the Board of Directors of the Athens Volunteer Fire Department, the Athens Medical Center, and the Childrens Home Society of West Virginia. He was a former Adjunct Professor to Concord College and Bluefield State College. He served as a Regional Supervisor for Veteran's Education and Training. He was also a dedicated member of his beloved Concord United Methodist Church, where he served as Chairman of the Church Council; and
     Whereas, Donald T. Caruth had a life-long passion for music, especially jazz music, and was a talented trombone player. He played for the Bluefield State College Jazz Ensemble, and played in a jazz band named the "Concord Commanders" while at Concord College. He also played in a top 40's band, the "Kaleidoscope"; and
     Whereas, The Honorable Donald T. Caruth was elected to the West Virginia House of Delegates in 2002, and was elected to the West Virginia Senate in 2004 and 2008. During his time in office, the Honorable Donald T. Caruth was responsible for a myriad of worthwhile legislation which was enacted for the betterment of all the citizens of West Virginia. At the commencement of the 78th Legislature, he was elected as the Senate Minority Leader; and
     Whereas, Sadly, the Honorable Donald T. Caruth passed away on May 1, 2010, bringing to an end a dedicated life as an attorney, civic leader, and a distinguished career in public service; therefore, be it
     Resolved by the Senate:
     That the Senate hereby extends its sincere sadness at the passing of the Honorable Donald T. Caruth, attorney, musician, civic leader, former member of the West Virginia House of Delegates, member of the West Virginia Senate, Minority Leader of the Senate, distinguished West Virginian and dedicated statesman; and, be it
     Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the family of the Honorable Donald T. Caruth.
     At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     On motion of Senator Chafin, the Senate recessed for one minute.
     Upon expiration of the recess, the Senate reconvened.
     On motion of Senator Chafin, the Senate recessed until 4 p.m. today.
     Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
Petitions

     Senator Tomblin (Mr. President) presented a petition from Rose Casto and numerous Jackson County teachers, opposing certain education reform proposals.
     Referred to the Committee on Education.
     Senator Chafin offered the following pre-adjournment resolution:
     Senate Resolution No. 104--Raising a committee to notify the House of Delegates the Senate is ready to adjourn sine die.
     Resolved by the Senate:
     That the President be authorized to appoint a committee of three to notify the House of Delegates that the Senate has completed its labors and is ready to adjourn sine die.
     At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     Senator Tomblin (Mr. President), under the provisions of the foregoing resolution, appointed the following committee to notify the House of Delegates of impending Senate adjournment:
     Senators Unger, Stollings and Guills.
     Subsequently, Senator Unger reported that the duties assigned by Senate Resolution No. 104 had been performed.
     Thereafter, a three-member delegation from the House of Delegates, namely
     Delegates Beach, Klempa and Anderson, announced that that body also had completed its labors and was ready to adjourn sine die.
     Senator Chafin then offered the following resolution:
     Senate Resolution No. 105--Raising a committee to notify His Excellency, the Governor, that the Legislature is ready to adjourn sine die.
     Resolved by the Senate:
     That the President be authorized to appoint a committee of three to join with a similar committee of the House of Delegates to notify His Excellency, the Governor, that the Legislature has completed its labors and is ready to adjourn sine die.
     At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     Under the provisions of the foregoing resolution, Senator Tomblin (Mr. President) appointed the following committee to notify His Excellency, the Governor, that the Senate was ready to adjourn:
     Senators Edgell, Snyder and Deem.
     Delegates Staggers, D. Walker and Evans, then announced that they had been appointed by that body to join with the similar committee named by the Senate to wait upon His Excellency and were ready to proceed with this assignment.
     Senators Edgell, Snyder and Deem, comprising the Senate committee, then joined the House committee and proceeded to the executive offices to notify His Excellency, the Governor, of imminent adjournment of this extraordinary session of the Legislature.
     Subsequently, Senator Edgell, from the joint select committee to notify His Excellency, the Governor, that the Legislature had completed the business of this extraordinary session and was ready to adjourn sine die, returned to the chamber and was recognized by the President. Senator Edgell then reported this mission accomplished.
     At the request of Senator Palumbo, unanimous consent being granted, the Joint Committee on Enrolled Bills was granted permission, after it has examined, found truly enrolled and presented to His Excellency, the Governor, for his action, bills passed but not presented to him prior to adjournment of this first extraordinary session of the seventy-ninth Legislature in the year two thousand ten, to file its reports with the Clerk and that the same be included in the Journal of the last day of the session; and also, that any communications from His Excellency, the Governor, as to his action on bills after adjournment of the session, be included in the Journal.
     In accordance with the foregoing unanimous consent agreement, the following reports of the Joint Committee on Enrolled Bills were filed as follows:
     Senator Palumbo, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:
     Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 21st day of May, 2010, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:
     (S. B. No. 1003), Renaming conservation officers natural resources police officers.
     (S. B. No. 1004), Replacing references to "mentally retarded" with "intellectually disabled".
      And,
     (Com. Sub. for S. B. No. 1005), Relating to criminal offenses and penalties regarding firearms and ammunition sales.
                              Respectfully submitted,
                               Corey Palumbo,
                               Chair, Senate Committee.
                               Danny Wells,
                               Chair, House Committee.
     Senator Palumbo, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:
     Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 24th day of May, 2010, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:
     (S. B. No. 1010), Creating Behavioral Mental Health Services Fund.
     (S. B. No. 1014), Making supplementary appropriation of federal funds to Office of Economic Opportunity Community Services and Workforce WV.
     (S. B. No. 1015), Making supplementary appropriation from General Revenue to various accounts.
     (S. B. No. 1016), Making supplementary appropriation of unappropriated moneys to Board of Examiners for Registered Professional Nurses.
     (S. B. No. 1017), Supplementing, amending and increasing items from State Road Fund to Division of Highways.
     (S. B. No. 1018), Making supplementary appropriation from State Excess Lottery Revenue Fund to various accounts.
     (S. B. No. 1019), Making supplementary appropriation from unappropriated moneys to various accounts.
     (S. B. No. 1020), Making supplementary appropriation of federal funds to Workforce WV.
     (S. B. No. 1021), Making supplementary appropriation of federal funds to various accounts.
     (S. B. No. 1022), Making supplementary appropriation of unappropriated moneys to various accounts.
     (S. B. No. 1023), Supplementing and amending items from State Road Fund to Office of Administrative Hearings.
      And,
     (S. B. No. 1024), Making supplementary appropriation from State Fund, General Revenue, to various accounts.
                              Respectfully submitted,
                               Corey Palumbo,
                               Chair, Senate Committee.
                               Danny Wells,
                               Chair, House Committee.
Executive Communications

     Under authorization of Senate approval therefor in prior proceedings today, to include in this day's Journal communications showing the Governor's action on enrolled bills presented to him in post-session reports, the following are inserted hereinafter:
     The Clerk then presented communications from His Excellency, the Governor, advising that on May 24, 2010, he had approved Enr. Senate Bill No. 1014, Enr. Senate Bill No. 1015, Enr. Senate Bill No. 1016, Enr. Senate Bill No. 1017, Enr. Senate Bill No. 1018, Enr. Senate Bill No. 1019, Enr. Senate Bill No. 1020, Enr. Senate Bill No. 1021, Enr. Senate Bill No. 1022, Enr. Senate Bill No. 1023 and Enr. Senate Bill No. 1024; and on June 3, 2010, he had approved Enr. Senate Bill No. 1003, Enr. Senate Bill No. 1004, Enr. Committee Substitute for Senate Bill No. 1005 and Enr. Senate Bill No. 1010.
     On motion of Senator Chafin, the first extraordinary session of the Senate in the year two thousand ten adjourned sine die.
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