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Senate Journal


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WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTY-FIRST LEGISLATURE

FIRST EXTRAORDINARY SESSION, 2013

FIRST DAY

____________

Charleston, W. Va., Wednesday, April 17, 2013

    Pursuant to the proclamation of His Excellency, the Governor, the Honorable Earl Ray Tomblin, dated the seventeenth day of April, two thousand thirteen, convening the eighty-first Legislature of West Virginia in extraordinary session today (Wednesday, April 17, 2013), under the provisions of section seven, article seven of the Constitution of West Virginia, the Senate assembled in its chamber in the state capitol in the City of Charleston immediately upon adjournment sine die of the Extended Budget Session and was called to order by its President, the Honorable Jeffrey V. Kessler.

    Prayer was offered by the Honorable William R. Laird IV, a senator from the tenth district.

    On the call of the roll, the following answered to their names:

    Senators 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).

    Thirty-four members having answered to their names, the President declared the presence of a quorum.

Executive Communications

    Senator Kessler (Mr. President) laid before the Senate the following proclamation from His Excellency, the Governor, convening the Legislature in extraordinary session, which was read by the Clerk:

STATE OF WEST VIRGINIA

EXECUTIVE DEPARTMENT

CHARLESTON

A P R O C L A M A T I O N

By the Governor

    I, EARL RAY TOMBLIN, by virtue of the authority vested in the Governor by Section 7, Article VII of the Constitution of West Virginia, do hereby call the Legislature of West Virginia to convene in Extraordinary Session upon adjournment sine die of the 2013 Regular Session, as extended by Proclamation dated April 10, 2013, in its chambers in the State Capitol, City of Charleston, for the sole purpose of considering and acting upon the following matters:

    FIRST: Legislation permitting the Monongalia County Commission to levy a special district excise tax for the benefit of the University Town Centre economic opportunity district.

    SECOND: Legislation relating to compensation in the magistrate court system.

    THIRD: Legislation relating to the distribution of state funds to volunteer fire departments in connection with the Volunteer Fire Department Workers’ Compensation Subsidy Program and a transfer of funds to the Subsidy Program from the Fire Marshal Fees Fund in an amount not to exceed $4 million.

    FOURTH: A supplemental appropriation bill expiring funds to the unappropriated surplus balance in the State Fund, General Revenue, for the fiscal year ending June 30, 2013, from fund 0105, fiscal year 2009, organization 0100, of the Governor’s Office, Civil Contingent Fund, and from fund 1509, fiscal year 2013, organization 1500, of the Attorney General, Consumer Protection Fund; and making a supplementary appropriation from the unappropriated surplus balance in the State Fund, General Revenue, to fund 0105, fiscal year 2013, organization 0100, of the Governor’s Office - Civil Contingent Fund account; to fund 0150, fiscal year 2013, organization 1500, of the Attorney General account; to fund 0256, fiscal year 2013, organization 0307, of the Department of Commerce - West Virginia Development Office account; to fund 0525, fiscal year 2013, organization 0506, of the Department of Health and Human Resources - Consolidated Medical Service Fund account; to fund 0589, fiscal year 2013, organization 0441, of the Higher Education Policy Commission - Administration - Control Account; and to fund 0586, fiscal year 2013, organization 0442, of the Higher Education Policy Commission - System - Control Account.

    FIFTH: Legislation relating to the administration, collection and enforcement of local sales and use taxes and excise taxes by the State Tax Commissioner and providing rule-making authority.

    SIXTH: Legislation authorizing and appropriating the expenditure of public moneys to pay the expenses of this Extraordinary Session.

    IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of West Virginia to be affixed.

DONE at the Capitol in the City of Charleston, State of West Virginia, this the Seventeenth day of April, in the year of our Lord, Two Thousand Thirteen, and in the One Hundred Fiftieth year of the State.

  EARL RAY TOMBLIN,

    Governor.

By the Governor:

  NATALIE E. TENNANT,

    Secretary of State.

    Senator Unger offered the following resolution:

    Senate Resolution No. 101--Raising a committee to inform the House of Delegates the Senate has assembled in extraordinary session.

    Resolved by the Senate:

    That a committee of three be appointed by the President to inform the House of Delegates that the Senate has assembled in extraordinary session, with a quorum present, and is ready to proceed with the business for which the extraordinary session was called by His Excellency, the Governor.

    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.

    Whereupon, the President appointed as members of such committee the following:

    Senators D. Hall, Cookman and Carmichael.

    Subsequently, Senator D. Hall, from the committee to notify the House of Delegates the Senate has assembled in extraordinary session, and is ready to proceed with the business of the session, announced that the committee had discharged its duties.

    A message from the House of Delegates, by

    Delegates Skinner, Young and Ambler, announced that the House of Delegates has assembled in extraordinary session, with a quorum present, and is ready to proceed with the business stated in the proclamation convening the Legislature.

    Senator Unger then offered the following resolution:

    Senate Resolution No. 102--Raising a committee to wait upon the Governor.

    Resolved by the Senate:

    That a committee of three on the part of the Senate, to join with a similar committee on the part of the House of Delegates, be appointed by the President to notify His Excellency, the Governor, that at his call the Legislature has assembled in extraordinary session, with a quorum of each house present; and is ready to receive any communication or message he may be pleased to present under section seven, article seven of the Constitution of West Virginia, which provides that no business except that stated in his proclamation be considered.

    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.

    Whereupon, the President appointed as members of such committee the following:

    Senators Kirkendoll, Fitzsimmons and Walters.

    A message from the House of Delegates, by

    Delegates Sponaugle, Tomblin and Raines, announced that the Speaker had appointed them a committee of three to join with a similar committee on the part of the Senate to wait upon the Governor, under the provisions of Senate Resolution No. 102. Senate and House members of this select committee then proceeded to the executive offices.

    Subsequently, Senator Kirkendoll reported that the joint Senate and House committee had performed the duty assigned to it.

    The Senate proceeded to the sixth order of business.

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

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

    Senate Bill No. 1001--A Bill to amend and reenact §7-22-9 of the Code of West Virginia, 1931, as amended, relating to permitting the Monongalia county commission to levy a special district excise tax.

    At the request of Senator Unger, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.

    On motion of Senator Unger, 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, 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.

    The bill was read a second time and ordered to engrossment and third reading.

    Engrossed Senate Bill No. 1001 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. S. B. No. 1001) 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. 1001) takes effect from passage.

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

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

    Senate Bill No. 1002--A Bill to amend and reenact §12-4-14a of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §33-3-33a, all relating to the distribution of state funds to volunteer fire departments under the Volunteer Fire Department Workers' Compensation Subsidy Program; specifying that the subsidy provided to volunteer fire departments to offset certain workers' compensation premium increases applies to increases attributable to the fire fighting service, rapid response emergency medical service, ambulance service and diving service components of the services provided by volunteer fire departments; establishing the Volunteer Fire Department Workers' Compensation Premium Subsidy Fund and directing that certain moneys be deposited into the fund for the program; requiring the State Fire Marshal, in consultation with the Insurance Commissioner, State Auditor, Secretary of Revenue and Legislative Auditor, to review, assess and prepare a comprehensive report to the Joint Committee on Government and Finance on or before December 31, 2015, of steps that may be taken to meet the needs of volunteer fire departments and companies; expiring §12-4-14a and §33-3-33a of this code on June 30, 2016; and providing for the closure of the fund.

    At the request of Senator Unger, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.

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

    Senate Bill No. 1003--A Bill to amend and reenact §50-1-3, §50-1-8, §50-1-9 and §50-1-9a of the Code of West Virginia, 1931, as amended, all relating generally to the magistrate court system; making legislative findings; adjusting the population line upon which salaries for magistrates and certain magistrate employees are calculated; providing that the Joint Committee on Government and Finance shall request a study from the National Center for State Courts on the weighted case loads, salaries, jurisdiction and apportionment of resources within the magistrate court system; requiring presentation of report and recommendations regarding redistribution of magistrate court personnel and resources by December 1, 2014; requiring the Supreme Court of Appeals of West Virginia to present recommendations to the Legislature regarding allocation and assignment of resources; adjusting certain salaries for certain magistrates and magistrate court employees effective January 1, 2013; equalizing the pay for all magistrates and certain magistrate employees on January 1, 2017; providing for an effective date; and providing that the amendments are retroactive to January 1, 2013.

    At the request of Senator Unger, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.

    On motion of Senator Unger, 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, 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.

    The bill was read a second time and ordered to engrossment and third reading.

    Engrossed Senate Bill No. 1003 was then read a third time and put upon its passage.

    Pending discussion,

    The question being “Shall Engrossed Senate Bill No. 1003 pass?”

    On the passage of the bill, the yeas were: Beach, Boley, Cann, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Yost and Kessler (Mr. President)--28.

    The nays were: Barnes, Blair, Carmichael, M. Hall, Sypolt and Walters--6.

    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. 1003) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Beach, Boley, Cann, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Yost and Kessler (Mr. President)--28.

    The nays were: Barnes, Blair, Carmichael, M. Hall, Sypolt and Walters--6.

    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. 1003) takes effect from passage.

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

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

    Senate Bill No. 1004--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-10-11c, relating to local sales and use taxes and local excise taxes; granting the Tax Commissioner exclusive responsibility for administering, collecting and enforcing specified local sales and use taxes and excise taxes; specifying jurisdiction and standing before the Office of Tax Appeals; permitting fees for collection of local sales and use taxes and excise taxes; providing a special fund for deposit of fees for collection of specified local sales and use taxes and excise taxes; providing that notwithstanding specified provisions, the Tax Commissioner may prescribe by rule the schedule and manner for deposit of moneys into the special fund for deposit of fees for collection of local sales and use taxes and excise taxes, and such other administrative and procedural requirements as may be useful or necessary for the management and handling of the fund; authorizing the Tax Commissioner to promulgate ordinary and emergency rules; declaring that such rules may provide for administration, collection and enforcement of local sales and use taxes and excise taxes, assessment of a fee for the Tax Commissioner’s services, authority for resolution of disputes, the schedule and manner for deposit of fees for collection of local sales and use taxes and excise taxes, and such other purposes as the Tax Commissioner may find useful or necessary; and specifying an effective date.

    At the request of Senator Unger, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.

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

    Senate Bill No. 1005--A Bill expiring funds to the unappropriated surplus balance in the State Fund, General Revenue, for the fiscal year ending June 30, 2013, in the amount of $10,317,860.71 from the Governor’s Office - Civil Contingent Fund, fund 0105, fiscal year 2009, organization 0100, activity 236, and in the amount of $7,459,913 from the Attorney General, Consumer Protection Recovery Fund, fund 1509, fiscal year 2013, organization 1500, and making a supplementary appropriation of public moneys out of the Treasury from the balance of moneys remaining as an unappropriated surplus balance in the State Fund, General Revenue, to the Governor’s Office - Civil Contingent Fund, fund 0105, fiscal year 2013, organization 0100, to the Attorney General, fund 0150, fiscal year 2013, organization 1500, to the Department of Commerce, West Virginia Development Office, fund 0256, fiscal year 2013, organization 0307, to the Department of Health and Human Resources, Consolidated Medical Service Fund, fund 0525, fiscal year 2013, organization 0506, to the Higher Education Policy Commission - Administration - Control Account, fund 0589, fiscal year 2013, organization 0441, and to the Higher Education Policy Commission - System - Control Account, fund 0586, fiscal year 2013, organization 0442, by supplementing and amending the appropriations for the fiscal year ending June 30, 2013.

    At the request of Senator Unger, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.

    On motion of Senator Unger, 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, 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.

    The bill was read a second time and ordered to engrossment and third reading.

    Engrossed Senate Bill No. 1005 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 elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 1005) 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. 1005) takes effect from passage.

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

    Without objection, the Senate returned 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. 1001, Permitting Monongalia county commission levy district excise tax.

    A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of

    Eng. House Bill No. 103--A Bill to amend and reenact §12-4-14a of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §33-3-33a, all relating to the distribution of state funds to volunteer fire departments under the Volunteer Fire Department Workers' Compensation Subsidy Program; specifying that the subsidy provided to volunteer fire departments to offset certain workers' compensation premium increases applies to increases attributable to the fire fighting service, rapid response emergency medical service, ambulance service and diving service components of the services provided by volunteer fire departments; establishing the Volunteer Fire Department Workers' Compensation Premium Subsidy Fund and directing that certain moneys be deposited into the fund for the program; requiring the State Fire Marshal, in consultation with the Insurance Commissioner, State Auditor, Secretary of Revenue, and Legislative Auditor, to review, assess and prepare a comprehensive report to the joint committee on government and finance on or before December 31, 2015, of steps that may be taken to meet the needs of volunteer fire departments and companies; expiring §12-4-14a and §33-3-33a of this code on June 30, 2016; and providing for the closure of the fund.

    At the request of Senator Unger, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.

    On motion of Senator Unger, 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, 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.

    The bill was read a second time and ordered to third reading.

    Having been engrossed, the bill (Eng. H. B. No. 103) 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. H. B. No. 103) 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. H. B. No. 103) takes effect from passage.

    Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

    On motion of Senator Unger, the Senate recessed until 7:30 p.m. tonight.

Night Session

    Upon expiration of the recess, the Senate reconvened.

    On motion of Senator Unger, the Senate adjourned until tomorrow, Thursday, April 18, 2013, at 11 a.m.

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