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WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

SECOND EXTRAORDINARY SESSION, 2010

SECOND DAY

____________

Charleston, W. Va., Friday, July 16, 2010

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

     Prayer was offered by the Honorable John R. Unger II, a senator from the sixteenth district and Vicar, St. John Evangelical Lutheran Church, Harpers Ferry, West Virginia.
     Pending the reading of the Journal of Thursday, July 15, 2010,
     On motion of Senator Snyder, the Journal was approved and the further reading thereof dispensed with.
     The Senate proceeded to the second order of business and the introduction of guests.
     The Clerk presented a communication from the Department of Environmental Protection, submitting its Carbon Dioxide Sequestration Working Group's preliminary report, in accordance with chapter twenty-two, article eleven-a, section six of the code of West Virginia.
     Which report was received and filed with the Clerk.
     The Clerk submitted a communication from the Department of Environmental Protection, submitting its Chesapeake Bay restoration funding recommendations as required by chapter twenty-two, article eleven, section thirty of the code of West Virginia.
     Which report was received and filed with the Clerk.
     The Clerk presented a communication from the Secretary of State, submitting its Uniformed Services and Overseas Voter Pilot Program Online Voting Pilot Project report, in accordance with chapter three, article three-b, section three of the code of West Virginia.
     Which report was received and filed with the Clerk.
     The Senate proceeded to the fourth order of business.
     Senator Stollings, from the Committee on Confirmations, submitted the following report, which was received:
     Your Committee on Confirmations has had under consideration
     Senate Executive Message No. 1, dated July 15, 2010, requesting confirmation by the Senate of the nominations mentioned therein. The following list of names from Executive Message No. 1 is submitted:
      1.  For Secretary, Department of Military Affairs and Public Safety, Joseph Thornton, Culloden, Putnam County, to serve at the will and pleasure of the Governor.
      2.  For Member, Board of Physical Therapy, D. C. Offutt, Jr., Barboursville, Cabell County, for the term ending June 30, 2014.
      3.  For Member, Board of Occupational Therapy, Bambi Hill, Beckley, Raleigh County, for the term ending December 31, 2011.
      4.  For Member, Municipal Pensions Oversight Board, John Kee, Charleston, Kanawha County, for the term ending June 30, 2014.
      5.  For Member, Fire Commission, Michael Butcher, Parkersburg, Wood County, for the term ending June 30, 2012.
      6.  For Member, Fire Commission, Grant Gunnoe, Winfield, Putnam County, for the term ending June 30, 2014.
      7.  For Member, Ethics Commission, Douglas Sutton, Mannington, Marion County, for the term ending June 30, 2011.
      8.  For Member, Forest Review Management Commission, The Honorable Thomas Hawse III, Moorefield, Hardy County, for the term ending March 14, 2013.
      9.  For Member, Fire Commission, Rick Scott, Clarksburg, Harrison County, for the term ending June 30, 2015.
     10.  For Member, Public Service Commission, Ryan Palmer, Charleston, Kanawha County, for the term ending June 30, 2015.
     11.  For Member, West Virginia School of Osteopathic Medicine Board of Governors, Dr. Randall Short, Chapmanville, Logan County, for the term ending June 30, 2014.
     12.  For Member, West Virginia School of Osteopathic Medicine Board of Governors, Dr. Rodney Fink, Daniels, Raleigh County, for the term ending June 30, 2014.
     13.  For Member, Board of Osteopathy, Dr. Joseph Schreiber, Weirton, Hancock County, for the term ending June 30, 2013.
     14.  For Member, Parole Board, Mike McCarthy, Huntington, Cabell County, for the term ending June 30, 2016.
     15.  For Member, West Virginia University Board of Governors, Carolyn Long, Little Birch, Braxton County, for the term ending June 30, 2014.
     16.  For Member, West Virginia University Board of Governors, Andrew Payne III, Charleston, Kanawha County, for the term ending June 30, 2014.
     17.  For Member, West Virginia University Board of Governors, Thomas Flaherty, Charleston, Kanawha County, for the term ending June 30, 2014.
     18.  For Member, Parkways Authority, Tom Mainella, Fairmont, Marion County, for the term ending June 30, 2015.
     19.  For Commissioner, Tax Division, Craig Griffith, Charleston, Kanawha County, to serve at the will and pleasure of the Governor.
     20.   For Member, Fairmont State University Board of Governors, Shirley Stanton, Fairmont, Marion County, for the term ending June 30, 2014.
     21.  For Member, Nursing Home Administrators Licensing Board, Ronald LaNeve, Elkins, Randolph County, for the term ending June 30, 2015.
     22.  For Member, Nursing Home Administrators Licensing Board, Kay Cottrill, Clarksburg, Harrison County, for the term ending June 30, 2015.
     23.  For Member, Nursing Home Administrators Licensing Board, Matthew Keefer, Hurricane, Putnam County, for the term ending June 30, 2012.
     24.  For Member, Nursing Home Administrators Licensing Board, Roger Topping, Princeton, Mercer County, for the term ending June 30, 2014.
     25.  For Member, Nursing Home Administrators Licensing Board, Tammy Jo Painter, Charleston, Kanawha County, for the term ending June 30, 2013.
     26.  For Member, Nursing Home Administrators Licensing Board, Joan Armbruster, Davis, Tucker County, for the term ending June 30, 2014.
     27.  For Member, Glenville State College Board of Governors, Sue Morris, Glenville, Gilmer County, for the term ending June 30, 2012.
     28.  For Member, Glenville State College Board of Governors, Bill Hanlin, St. Marys, Ritchie County, for the term ending June 30, 2011.
     29.  For Member, Glenville State College Board of Governors, Jerry Milliken, Spencer, Roane County, for the term ending June 30, 2013.
     30.  For Member, Glenville State College Board of Governors, Greg Smith, Glenville, Gilmer County, for the term ending June 30, 2014.
     31.  For Member, Glenville State College Board of Governors, Richard Heffelfinger, Charleston, Kanawha County, for the term ending June 30, 2011.
     32.  For Member, Glenville State College Board of Governors, Paul Fulks, Bridgeport, Harrison County, for the term ending June 30, 2013.
     33.  For Member, Glenville State College Board of Governors, Tim Butcher, Glenville, Gilmer County, for the term ending June 30, 2013.
     34.  For Member, Glenville State College Board of Governors, Stan Pickens, Clarksburg, Harrison County, for the term ending June 30, 2014.
     35.  For Member, West Virginia University Board of Governors, The Honorable James Robert Rogers, Ponte Vedra Beach, Florida, for the term ending June 30, 2012.
     36.  For Member, Investment Management Board of Trustees, Steve Antoline, Mount Lookout, Nicholas County, for the term ending January 31, 2015.
     37.  For Member, Water Development Board, Michael Jones, Farmington, Marion County, for the term ending June 30, 2015.
     And reports the same back with the recommendation that the Senate do advise and consent to all of the nominations listed above.
                              Respectfully submitted,
                               Ron Stollings,
                               Chair.
__________

     The Senate then proceeded to the seventh order of business.
     The time having arrived for the special order of business to consider the list of nominees for public office submitted by His Excellency, the Governor, the special order thereon was called by the President.
     Thereupon, Senator Tomblin (Mr. President) laid before the Senate the following executive message:
     Senate Executive Message No. 1, dated July 15, 2010 (shown in the Senate Journal of that day, pages 9 through 14, inclusive).
     Senator Stollings then moved that the Senate advise and consent to all of the executive nominations referred to in the foregoing report from the Committee on Confirmations.
     The question being on the adoption of the aforestated motion by Senator Stollings,
     The roll was then taken; and
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Oliverio, Palumbo, Plymale, Prezioso, Shott, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--30.
     The nays were: None.
     Absent: Deem, Edgell, Fanning and Minard--4.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the aforestated motion by Senator Stollings had prevailed.
__________

     Consideration of executive nominations having been concluded, at the request of Senator Chafin, unanimous consent being granted, the Senate returned to the fourth order of business.
     Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
     Your Committee on the Judiciary has had under consideration
     Senate Bill No. 2001, Filling of vacancies in office of U. S. Senator.
     And reports back a committee substitute for same with the following title:
     Com. Sub. for Senate Bill No. 2001 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §3-1-44 of the Code of West Virginia, 1931, as amended; to amend and reenact §3-10-1 and §3-10-3 of said code; and to amend said code by adding thereto a new section, designated §3-10-4a, all relating to vacancies in the office of United States Senator; requiring the state to pay costs incurred in connection with a special election to fill a vacancy in the office of United States Senator; making technical amendments; clarifying the procedure for filling vacancies in the office of United States Senator; providing that any vacancy occurring in the office of United States Senator is filled by the Governor by appointment with the advice and consent of the Senate; specifying when an election is required to fill a vacancy in the office of United States Senator; setting forth procedures for the nomination of candidates for an election to fill a vacancy in the office of United States Senator; requiring a special primary election for the nomination of political party candidates under certain circumstances; setting forth requirements for a Governor's proclamation; establishing certain time frames and guidelines for conducting elections to fill a vacancy in the office of United States Senator; providing that the Secretary of State may modify ministerial election duties, deadlines or procedures in connection with an election to fill a vacancy in the office of United States Senator; and providing an effective date.
     With the recommendation that the committee substitute do pass.
                              Respectfully submitted,
                               Jeffrey V. Kessler,
                               Chair.
     At the request of Senator Kessler, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 2001) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second 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, Bowman, Browning, Chafin, D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Oliverio, Palumbo, Plymale, Prezioso, Shott, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--30.
     The nays were: None.
     Absent: Deem, Edgell, Fanning and Minard--4.
     The bill (Com. Sub. for S. B. No. 2001) was then read a second time.
     At the request of Senator Bowman, unanimous consent was granted to offer an amendment to the bill prior to other amendments now lodged with the Clerk.
     On motion of Senator Bowman, the following amendment to the bill was reported by the Clerk:
     On pages seven and eight, section four-a, by striking out subsection (c) in its entirety and inserting in lieu thereof a new subsection (c), to read as follows:
     (c) The special election to fill the vacancy shall be conducted as an open general election with no nomination requirements. Any candidates may appear on the special election to fill the vacancy after filing a timely certificate of announcement with the Secretary of State and payment of filing fee.
     (1) If the vacancy occurs more than ten days before the end of the filing period for the general election provided in section seven, article five, of this chapter, the candidate must filed before the conclusion of the filing.
     (2) If the vacancy occurs after the provision of subdivision (1) of this subsection, but more than 120 days before the next scheduled general election, the candidate filing period shall run from the one hundred second day prior to the general election through the eighty-fourth day prior to the general election. An open general election means that any certified candidate for a vacant United States Senate seat may seek election without a nominating process and the candidate receiving the most votes shall be elected.;
     And,
     On pages eight and nine, section four-a, by striking out subsection (e) in its entirety and inserting in lieu thereof a new subsection (e), to read as follows:
     (e) The provisions of this chapter shall apply to the special vacancy election authorized by this section to the extent that they are not inconsistent with the provisions of this section.
     Following extended discussion,
     On motion of Senator Sypolt, the following amendment to Senator Bowman's amendment to the bill (Com. Sub. for S. B. No. 2001) was reported by the Clerk:
     On page one, section four-a, subsection (c), subdivision (2), after the word "elected" by changing the period to a colon and inserting the following proviso: Provided, That if no candidate receives at least 50 percent of the ballots cast, there shall be a runoff election held of the top three candidates within 45 days of the special election.
     Following discussion,
     The question being on the adoption of Senator Sypolt's amendment to Senator Bowman's amendment to the bill, the same was put and did not prevail.
     The question now being on the adoption of Senator Bowman's amendment to the bill (Com. Sub. for S. B. No. 2001), the same was put and did not prevail.
     On motion of Senator Shott, the following amendments to the bill were next reported by the Clerk, considered simultaneously, and adopted:
     On page seven, section four-a, line five, following the word "occurs" by inserting the words "more than";
     On page seven, section four-a, line five, following the word "days" by striking out the words "or more";
     On page seven, section four-a, line nine, following the word "occurs" by striking out the words "less than";
     And
     On page seven, section four-a, line nine, following the word "days" by inserting the words "or less".
     On motions of Senators Kessler and Palumbo, the following amendment to bill (Com. Sub. for S. B. No. 2001) was next reported by the Clerk and adopted:
     On pages six and seven, section four-a, by striking out subsection (a) in its entirety and inserting in lieu thereof a new subsection (a), to read as follows:
     (a) Any vacancy occurring in the office of United States Senator shall be filled by the Governor by appointment. If the vacancy occurs when there is a period of less than two years remaining in the term, the appointment to fill the vacancy is for the unexpired term. If the vacancy occurs when there is a period of two years or longer remaining in the term, the appointment is until a successor to the unexpired term has been elected and qualified in accordance with this section.
     The bill, as amended, was ordered to engrossment and third reading.
     Engrossed Committee Substitute for Senate Bill No. 2001 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. 2001 pass?"
     On the passage of the bill, the yeas were: Barnes, Boley, Browning, Chafin, D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Oliverio, Palumbo, Plymale, Prezioso, Shott, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--29.
     The nays were: Bowman--1.
     Absent: Deem, Edgell, Fanning and Minard--4.
     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. 2001) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Barnes, Boley, Browning, Chafin, D. Facemire, K. Facemyer, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Oliverio, Palumbo, Plymale, Prezioso, Shott, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--29.
     The nays were: Bowman--1.
     Absent: Deem, Edgell, Fanning and Minard--4.
     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. 2001) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Thereafter, at the request of Senator Barnes, and by unanimous consent, the remarks by Senator Oliverio regarding the passage of Engrossed Committee Substitute for Senate Bill No. 2001 were ordered printed in the Appendix to the Journal.
     At the request of Senator Oliverio, unanimous consent being granted, the remarks by Senators Barnes and Jenkins regarding the passage of Engrossed Committee Substitute for Senate Bill No. 2001 were ordered printed in the Appendix to the Journal.
     The Senate proceeded to the eleventh order of business and the introduction of guests.
     Pending announcement of meetings of standing committees of the Senate,
     On motion of Senator Chafin, the Senate adjourned until tomorrow, Saturday, July 17, 2010, at 1 p.m.
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