sdj-10th day
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
EIGHTIETH LEGISLATURE
REGULAR SESSION, 2011
TENTH DAY
____________
Charleston, W. Va., Friday, January 21, 2011
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
CLERK'S NOTE: The following correspondence was transmitted to
the Clerk of the Senate on this day:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
January 21, 2011
The Honorable Darrell E. Holmes
Clerk, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear Mr. Clerk:
Since Governor Joe Manchin, III resigned the office of
governor on November 15, 2010 to assume the office of United States
Senator from the State of West Virginia, I have been obligated by
our Constitution to act as governor. The work of the governor's office has been, is and will continue to be rigorous. It has
demanded great energy and attention from me. I am responsible for
ensuring that the executive branch of government functions
flawlessly for the people of this great State. That is my
obligation -- my constitutional obligation -- my obligation as
Senate President.
Last week, the Senate -- the great legislative body that I
hold dear to my heart -- reelected me for the ninth/tenth
consecutive time as its President. It has always been my
unwavering belief that I remain the President of the Senate while
I act as governor. In the face of legal challenges, however, I
announced my intention not to preside or vote in the Senate while
I acted as governor. My decision was guided by my desire to
protect the work of Senate until the legal challenges were
resolved. On Tuesday, the Supreme Court stated with absolute
clarity that "the senate president does not cease being a
constitutional officer when he or she acts as governor. The senate
president remains the senate president."
Given the Court's confirmation that I remain Senate President
while act as governor, and its guidance that my acting as governor
while Senate President is an exception to the general separation of
powers principles, I will return to the Senate when I am able and
will preside over this great body. The vast responsibilities of
the office of governor will, however, continue to require a substantial portion of my attention and focus.
Over the coming months, I will balance the need of this body
for a president with the need of the people for a working
government. I must put West Virginia first -- and I will put West
Virginia first. When I am in the Senate, I will do what I was
elected to do -- I will be its President and I will preside. I
will also continue to act as governor as I am constitutionally
obligated to do. I look forward to a productive legislative
session and the advancement of West Virginia.
I also note that while I have acted as Governor, the Senate
has been organized. Today I reaffirm that organization and all
steps that have been taken during this 80th Legislature.
Very truly yours,
Earl Ray Tomblin,
President.
Prayer was offered by the Reverend Jim McQuerry, Associate
Pastor of Worship Ministries, Bible Center Church, Charleston, West
Virginia.
Pending the reading of the Journal of Thursday, January 20,
2011,
On motion of Senator Williams, 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.
(Senator Kessler, Acting President, in the Chair.)
On motion of Senator Unger, the Senate recessed for five
minutes for the purpose of holding a meeting of the Committee on
Rules at the rostrum.
At the expiration of the recess, the Senate reconvened and
resumed business under the second order.
The Senate proceeded to the fourth order of business.
Senator Stollings, from the Committee on Health and Human
Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under
consideration
Senate Bill No. 80, Exempting breast feeding mothers from jury
duty.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 80 (originating in the Committee
on Health and Human Resources)--A Bill to amend and reenact §52-1-8
of the Code of West Virginia, 1931, as amended, relating to
excusing breast feeding women from jury duty upon request and
making reasonable accommodations for a breast feeding juror upon
request.
And,
Senate Bill No. 93, Relating to escape from custody of Division of Juvenile Services.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 93 (originating in the Committee
on Health and Human Resources)--A Bill to amend and reenact §61-5-
12b of the Code of West Virginia, 1931, as amended, relating to
escape from custody of the Director of Juvenile Services; and
penalties.
With the recommendation that the two committee substitutes do
pass; but under the original double committee references first be
referred to the Committee on the Judiciary.
Respectfully submitted,
Ron Stollings,
Chair.
The bills (Com. Sub. for S. B. Nos. 80 and 93), under the
original double committee references, were then referred to the
Committee on the Judiciary.
Senator Stollings, from the Committee on Health and Human
Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under
consideration
Senate Bill No. 89, Including certain Division of Juvenile
Services records in exemptions from Freedom of Information Act
requests.
And reports the same back with the recommendation that it do
pass; but under the original double committee reference first be
referred to the Committee on the Judiciary.
Respectfully submitted,
Ron Stollings,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on the Judiciary.
Senator Kessler (Acting President), from the Committee on
Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Resolution No. 11 (originating in the Committee on
Rules)--
Amending Senate Rule No. 15.
Resolved by the Senate:
That Senate Rule No. 15 be amended to read as follows:
Bills and Resolutions
15.Each bill or resolution for introduction shall be
presented in duplicate and electronically, bearing the name of the
member or members by whom it is to be introduced, and shall be
filed with the Clerk not later than twelve o'clock meridian on the
legislative day next preceding its introduction: Provided, That
the pre-filing requirement shall not apply to the first day of any
session of the Legislature. A bill may be introduced by request.
All bills introduced by request shall bear the words "by request", following the designation of the name or names of the bill sponsor
or sponsors.
The Clerk shall designate one copy of a bill or resolution the
official copy and it shall constitute the official bill or
resolution for use of committees and for the permanent files of the
Senate. One copy shall be used for printing.
Each bill or resolution shall be numbered, edited and
corrected as to form by the Clerk and reported by the Clerk to the
Senate on the next legislative day, under the sixth order of
business. In case of urgency, on motion for leave agreed to by a
majority of the members present, a member may introduce a bill or
resolution from the floor.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Jeffrey V. Kessler,
Chair ex officio.
At the request of Senator Unger, unanimous consent being
granted, the resolution (S. R. No. 11) contained in the preceding
report from the Committee on Rules was taken up for immediate
consideration and adopted.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were
introduced, read by their titles, and referred to the appropriate committees:
By Senators Kessler (Acting President) and Hall (By Request of
the Executive):
Senate Bill No. 228--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §18-8B-1, §18-8B-2, §18-8B-3 and §18-8B-4, all relating
to school dropout prevention and recovery; creating the Local
Solution Dropout Prevention and Recovery Act; providing legislative
findings and purpose for Local Solution Dropout Prevention and
Recovery Act; requiring State Department of Education to develop
statewide student profile system to include early warning
indicators for at-risk students; establishing pilot sites to test
individual statewide student profile system; creating special
revenue fund in State Treasury for Local Solution Dropout
Prevention and Recovery Fund; providing application process for
schools, groups of schools or school districts to become designated
dropout prevention and recovery pilot projects; providing State
Board of Education legislative and emergency rule-making power to
develop and implement dropout prevention and recovery pilot
program, application and award process; and requiring the State
Board of Education to provide the Legislature with annual reports
regarding the dropout prevention and recovery pilot project.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Kessler (Acting President) and Hall (By Request of
the Executive):
Senate Bill No. 229--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §18C-8-1, §18C-8-2, §18C-8-3, §18C-8-4 and §18C-8-5, all
relating to creating the Math and Science Teacher Loan Assistance
Program; providing legislative purposes of the loan assistance
program; creating a special revenue fund to administer the loan
assistance program; requiring the State Department of Education to
promulgate legislative rules for administering the loan assistance
program; identifying geographic areas or schools in critical need
of math and science teachers; administering the application and
award process and other aspects of the loan assistance program;
providing loan assistance to math and science teachers who agree to
teach in critical needs areas or schools; permitting the State
Department of Education to solicit funds for the loan assistance
program; providing selection criteria and procedures for loan
assistance recipients; providing conditions for renewal,
noncompliance, deferral and exceptions within the loan assistance
program; and providing the amount of loan assistance per teacher
and the duration of the loan assistance program.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Foster and Klempa:
Senate Bill No. 230--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §5-10D-10, relating to the retirement plans administered
by the West Virginia Consolidated Public Retirement Board; ensuring
the continued qualification of the plans under federal tax laws by
adopting provisions required by Sections 104(a) and 105(b) of the
Heroes Earnings Assistance and Relief Tax Act of 2008 (P.L. 110-
245) requiring the plans to provide certain death benefits to
survivors of the plans' members or participants who die while
performing qualified military service; and governing the treatment
of differential wage payments made to the plans' members or
participants.
Referred to the Committee on Pensions; and then to the
Committee on Finance.
By Senator Foster:
Senate Bill No. 231--A Bill to amend and reenact §21-3C-10a of
the Code of West Virginia, 1931, as amended, relating to elevator
workers' licensure exemptions.
Referred to the Committee on Labor; and then to the Committee
on Government Organization.
By Senator Stollings:
Senate Bill No. 232--A Bill authorizing the county commission
of Boone County to transfer its title and interests in the Boone
Memorial Hospital, also known as the Boone County Memorial Hospital, to the Boone Memorial Hospital, Incorporated, a West
Virginia private, nonprofit corporation for the continued public
use of providing needed health care in a cost-effective manner.
Referred to the Committee on Government Organization; and then
to the Committee on Finance.
By Senators McCabe, Browning, Foster, Unger, Edgell, Wells,
Stollings, Nohe, Klempa, Wills, Miller and Kessler (Acting
President):
Senate Bill No. 233--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §11-13BB-1, §11-13BB-2, §11-13BB-3, §11-13BB-4 and §11-
13BB-5; and to amend and reenact §11-21-12 of said code, all
relating to establishing a tax credit for graduates of a higher
education institution for a portion of the interest paid on student
loans; requiring the Joint Committee on Government and Finance to
review the effectiveness of the tax credit; establishing a
modification reducing federal adjusted gross income for recent
graduates of higher education institutions; and providing for the
promulgation of rules by the Tax Commissioner.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Kessler (Acting President) and Hall (By Request of
the Executive):
Senate Bill No. 234--A Bill to amend and reenact §8-38-3, §8-38-4, §8-38-5, §8-38-7, §8-38-10, §8-38-12, §8-38-15, §8-38-16,
§8-38-17 and §8-38-20 of the Code of West Virginia, 1931, as
amended, all relating to revising the Municipal Economic
Opportunity Development District Act generally; enlarging the types
of municipal corporations that may use sales tax increment
financing to finance certain economic development projects to any
Class I, Class II and Class III city and any Class IV town or
village; including "mining operations" in the definition of
"remediation"; including remediation of former coal mining sites as
a permissible development expenditure for a project; changing the
standard by which the maximum amounts of reserves that may be
established in the financing of a project are measured;
recommending that the Development Office consider whether the
economic development that a project enables is large enough to
require that it contain mixed-use development consisting of a
housing component with at least ten percent of housing units in the
district allocated for affordable housing when determining whether
there is a pressing need for the project; defining "affordable
housing"; allowing the Development Office to reduce the minimum
amount of local sales tax revenues that would be deposited into the
state's General Revenue Fund in certain circumstances; providing
that the maximum repayment schedule of all notes, bonds or other
instruments issued to fund projects is thirty years; and providing
technical and clerical cleanup.
Referred to the Committee on Energy, Industry and Mining; and
then to the Committee on Finance.
By Senators Kessler (Acting President) and Hall (By Request of
the Executive):
Senate Bill No. 235--A Bill to amend and reenact §7-22-3,
§7-22-4, §7-22-5, §7-22-7, §7-22-10, §7-22-12, §7-22-15, §7-22-17
and §7-22-20 of the Code of West Virginia, 1931, as amended, all
relating to revising the County Economic Opportunity Development
District Act generally; defining the term "remediation"; including
remediation of landfills, former coal mining sites, solid waste
facilities or hazardous waste sites as permissible development
expenditures for approved projects; changing standard by which the
maximum amounts of reserves that may be established in the
financing of a project are measured; providing that the Development
Office cannot approve a project involving remediation unless all
development expenditures proposed within a certain timeframe result
in more than $50 million in capital investment in the district;
changing "ordinance" to "order"; correcting language by changing
"municipality" to "county"; providing that the Development Office
may not approve a project involving remediation unless the county
commission submits clear and convincing information that the
proposed remediation expenditures to be financed with bonds or
notes do not constitute more than twenty-five percent of a
project's total development expenditures; and providing technical and clerical cleanup.
Referred to the Committee on Energy, Industry and Mining; and
then to the Committee on Finance.
By Senators Kessler (Acting President) and Hall (By Request of
the Executive):
Senate Bill No. 236--A Bill to amend and reenact §18A-2-12 and
§18A-2-12a of the Code of West Virginia, 1931, as amended, all
relating to providing for evaluation of professional personnel in
the public schools; specifying certain professional personnel who
must be evaluated; requiring evaluations to be at least annual;
providing certain processes for evaluations and applicable dates;
requiring State Board of Education to revise professional personnel
evaluations; requiring State Board of Education to establish task
force to address rule changes regarding professional personnel
evaluations; requiring state board study duties and
responsibilities of certain professional employees and time
required to accomplish evaluations; requiring use and reporting of
study results; establishing task force reporting and
recommendations; requiring state board report to Legislative
Oversight Commission on Education Accountability; establishing
dates certain for submission of proposed rule and adopted rule and
effective date of rule; requiring certain rule provisions;
requiring provision of written evaluation results to persons
evaluated; modifying related evaluation provisions to comport with changes; and making technical corrections and removing obsolete
provisions throughout.
Referred to the Committee on Education.
By Senators Kessler (Acting President) and Hall (By Request of
the Executive):
Senate Bill No. 237--A Bill to amend and reenact §18-2E-5 of
the Code of West Virginia, 1931, as amended; and to amend and
reenact §18-9-3a, all relating to the improvement of schools and
school districts; requiring electronic county and school strategic
improvement plans to identify and plan for early warnings and
interventions regarding at-risk students; requiring electronic
county and school strategic improvement plans to identify level of
performance on certain high-quality education standards; requiring
state board adoption of rule on certain high-quality education
standards and including certain legally required elements;
requiring certain reports on rule and submission on certain dates;
requiring state board study consistent with rule of certain
staffing issues and specifying submission; revising graduation
standards used to determine adequate yearly progress under the No
Child Left Behind Act; requiring state annual performance measures
to account for growth over the previous year; revising
extraordinary circumstances that may warrant a school being given
a low-performing accreditation status; narrowing deadlines for
improvement of low performance in schools; revising school system approval criteria for schools given temporary and conditional
status; authorizing the districtwide transfer of principals in
school systems on nonapproved status in certain circumstances;
requiring certain revision and state board approval of county
strategic improvement plan of counties given temporary, conditional
or nonapproval status; establishing the Education Opportunity Zone
180 Program; requiring training for certain county board members
and providing penalty for not attending; requiring training for
superintendents and certain other personnel in certain
circumstances; requiring counties given temporary, conditional or
nonapproval status to examine various strategies collaboratively
agreed upon to bring county to full approval; requiring county
board of education annual reports including accreditation status
and county board member training information on published financial
reports; and making technical corrections and removing obsolete
provisions throughout.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Kessler (Acting President) and Hall (By Request of
the Executive):
Senate Bill No. 238--A Bill to amend and reenact §4-10-8 of
the Code of West Virginia, 1931, as amended; to amend and reenact
§5F-1-2 of said code; to amend and reenact §5F-2-1 of said code; to
amend and reenact §6-7-2a of said code; and to amend and reenact §9A-1-1, §9A-1-2 and §9A-1-4 of said code, all relating to
redesignating the Division of Veterans' Affairs as the Department
of Veterans' Assistance within the executive branch; establishing
the time period for review of the Department of Veterans'
Assistance by the Joint Standing Committee on Government
Organization and the Joint Committee on Government Operations;
providing that the Veterans' Council be part of the Department of
Veterans' Assistance; providing that the department be supervised
by a secretary-level administrator; establishing the salary of the
secretary; providing an effective date for redesignation; making
other changes to the code to comport with the amendment; and
providing technical and clerical cleanup.
Referred to the Committee on Military; and then to the
Committee on Finance.
Senators Barnes, Helmick, Stollings, Klempa and Beach offered
the following resolution:
Senate Concurrent Resolution No. 8--
Requesting the Division of
Highways to name a segment of US Route 33, from the Rockingham
County line atop the Shenandoah Mountain in Pendleton County to the
Randolph County line atop the Allegheny Mountain in Pendleton
County, as the "Sergeant Clinton M. Hedrick and World War II
Veterans Memorial Highway".
Whereas, Sergeant Clinton M. Hedrick was born on May 1, 1918,
in Cherry Grove, Pendleton County, West Virginia, and died on March 28, 1945, at Lembeck Castle, near Wessel, Germany, as a result of
German, self-propelled gunfire following a statement of surrender
while he and his men were moving to accept the capitulation; and
Whereas, Sergeant Clinton M. Hedrick entered the United States
Army during World War II, serving in Company I, 194th Glider
Infantry, 17th Airborne Division, rising to rank of Technical
Sergeant; and
Whereas, Sergeant Clinton M. Hedrick belongs to a
distinguished, honorable and elite group of servicemen being one of
only four hundred sixty four soldiers who received the
Congressional Medal of Honor for their service during World War II,
one of only three thousand four hundred forty-eight soldiers being
honored with the Congressional Medal of Honor since the birth of
our nation and the only recipient of the Congressional Medal of
Honor from Pendleton County; and
Whereas, Sergeant Clinton M. Hedrick was honored with the
Congressional Medal of Honor for extraordinary heroism and
gallantry in action and was credited, in the Order accompanying the
Congressional Medal of Honor, with great personal courage and
heroic leadership that contributed in large measure to the speedy
capture of Lembeck and provided an inspiring example to his
comrades; and
Whereas, Many more of Pendleton's sons responded to our
country's call and served honorably during this very difficult time in our history; and
Whereas, It is fitting to honor Sergeant Clinton M. Hedrick
and all other Pendleton natives for their service of this nation;
and
Whereas, The naming of a highway in honor of Sergeant Clinton
M. Hedrick and the many other Pendleton sons is but a small gesture
of gratitude and appreciation for the sacrifices made by these men
and suffered by their families; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
to name a segment of US Route 33, from the Rockingham County line
atop the Shenandoah Mountain in Pendleton County to the Randolph
County line atop the Allegheny Mountain in Pendleton County, as the
"Sergeant Clinton M. Hedrick and World War II Veterans Memorial
Highway"; and, be it
Further Resolved, That the Division of Highways is requested
to have made and be placed signs identifying the segment of highway
as the "Sergeant Clinton M. Hedrick and World War II Veterans
Memorial Highway"; and, be it
Further Resolved, That the Clerk of the Senate forward a
certified copy of this resolution to the Secretary of the
Department of Transportation; to the county commission of Pendleton
County; to Gene McConnell; and to all living relatives, if any.
Which, under the rules, lies over one day.
Senators Barnes, Helmick, Stollings, Klempa and Beach offered
the following resolution:
Senate Concurrent Resolution No. 9--
Requesting the Division of
Highways to name bridge number 36A154 on US Route 220 in Smoke
Hole, Pendleton County, West Virginia the "Pendleton County Vietnam
Veterans Memorial Bridge".
Whereas, Many brave sons and daughters of Pendleton County,
West Virginia responded to the call of their community, their
state, and their nation to defend many of the values, ideals, and
freedoms they held so dear by serving in our military during our
nation's involvement in the Vietnam War; and
Whereas, Many of those brave sons and daughters also made the
ultimate sacrifice to protect those values, ideals, and freedoms;
and
Whereas, Over one hundred forty-five years ago President
Abraham Lincoln reminded the American people that from those who
made the ultimate sacrifice, that this nation "take increased
devotion to that cause for which they gave the last full measure of
devotion that we here highly resolve that these dead shall not have
died in vain"; and
Whereas, As a community, a state, and a nation, we must remain
committed to working diligently to provide all our surviving
warriors who returned home, and the families of our fallen, our
missing from the Vietnam War with our full support; and
Whereas, In dedication to the memory of all the sons and
daughters of Pendleton County, West Virginia who served in the
Vietnam War, let us recommit ourselves to never forget their
sacrifices; and
Whereas, Let us commit ourselves to renew our commitment to
the values and ideals that have made this nation what it is today,
the greatest nation in the world; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
name bridge number 36A154 on US Route 220 in Smoke Hole, Pendleton
County, West Virginia the "Pendleton County Vietnam Veterans
Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested
to have made and be placed signs identifying bridge number 36A154
the "Pendleton County Vietnam Veterans Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates
forward a certified copy of this resolution to the Pendleton County
Commission and the Secretary of the Department of Transportation.
Which, under the rules, lies over one day.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 60, Authorizing probation
officers' supervision of sex offenders pending availability of
multijudicial officer.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
The Senate then proceeded to the thirteenth order of business.
The remarks by Senators Unger and Jenkins on Thursday, January
20, 2011, regarding the adoption of Committee Substitute for Senate
Resolution No. 6 (Amending Senate Rule Nos. 3, 14, 15, 27 and 62)
are extended in the Journal of this day as follows:
SENATOR JENKINS: Let me use this as an opportunity to follow
up on the question yesterday that, obviously, when we were in
Remarks and you just said, "There would be nothing to prohibit the
President from returning and performing the duties of the
President." You just said that.
Could the President, the Senator from Logan, today, walk into
this chamber and perform the duties and functions of the Office of
President under the rules that we have before us?
SENATOR UNGER: If he chose to do so. He could walk in and
vote as the Senator from Logan. He could also preside over this
chamber. So, I mean, that's his decision.
As far as my personal opinion about the separations of power
that would be left up to the people of how they would view that,
but there's nothing in this rule that would prohibit that.
SENATOR JENKINS: Then what happens because this rule says the
moment the President becomes, or assumes, the position to act as
Governor, we are to immediately elect an Acting President and vest
all powers, duties and authority in that individual and that is to continue until such time as the Acting Governor, the President to
act as Governor [sic], finishes that responsibility.
The rules say our President has been stripped of all power and
duty and authority and it is now in the hands of the Senator from
Marshall. How then can you reconcile your statement that the
Senator from Logan can come here and perform the duties of the
Office of President, because our rules have stripped him of that
because he is serving in the position of Acting Governor?
SENATOR UNGER: Senator, I disagree with you and, of course,
you know this, we continue to disagree with each other on that
point. And I think you made that point and we can continue
disagreeing.
All this rule change is is that we recognize that when the
President of the Senate is acting as Governor that we, as a body,
can elect the presiding officer that we termed as "Acting
President" with the duties and responsibilities of running this
body for the purposes of doing the people's work because the
people's work must continue. The only thing that this change does
in this particular rule is we go from terming that situation as
"Acting Governor" to when the Senate President "acts as Governor".
And that mirrors the Constitution which has been brought up in
the recent decision. But it mirrors the Constitution (and we want
it to be consistent) . . . that instead of calling him Acting
Governor (which there is no such thing) when the Senate President acts as Governor and that's what we are doing right here. So I
want you to be very clear what we're doing.
Now all your other legal theories, if you want questions on,
we can do that but it has nothing pertaining to this particular
change.
SENATOR JENKINS: Let me then try to ask it in an affirmative
way. Today, our President, under the Constitution, is serving in
the capacity of acting as Governor. We have the set of rules that
were put in place a week ago. Under these rules that are in place
today and with our President in the capacity under the Constitution
acting as Governor, can the President of the Senate, the Senator
from Logan, walk in here today, still while he is in that
constitutional responsibility, can he appoint chairs? And do all
of the duties and functions and responsibilities invested [sic] in
the Office of the Presidency of the Senate.
SENATOR UNGER: Senator, I think that your question is he can
exercise any of the duties of the office that he chooses to
exercise when he is no longer acting as Governor.
SENATOR JENKINS: Okay. Let's listen to these words carefully
because, folks, please recognize what the Leader has just said. I
am trying to make an important point. Can he do it today when he
is in that capacity? And what I think what the Leader just said is
essentially, "No, he can't." He can only assume those duties when
he is no longer acting in the capacity of President.
And I think that is my point--that under the rules that are
operating today the duly elected President has been divested,
scrubbed of all power, duty and authority, and he can only get
those back once he ends his Acting Governor or acting as Governor
position. And that may happen on November 15, 2011, or it could
happen at some time before that. Is that . . . have I pointed out
the distinction of what you're making: That an event, finishing
his duties downstairs, is the trigger point--whenever that comes--
that he at that point can reassume powers. And until he finishes
that responsibility, he has no power and authority here and they
are with the Senator from Marshall.
SENATOR UNGER: Senator, that's not what I said. If the
President decides to return to this body and exercise his powers
and duties and his responsibilities as Senate President, then he
would be exercising the powers, duties and responsibilities as
Senate President, not as Governor.
So, the fact that he comes in and presides over this body,
he's not going to be presiding over us acting as Governor because
governors cannot preside over the Senate. If he comes and presides
over this body, he's going to be acting in the capacity of Senate
President.
So, the fact of the matter is, I, you know, it depends on the
idea of the rules, and I just want to point to one body that has
rules that we want to look at it's the United States Senate. In the United States Senate, the Vice President serves as the
President of the Senate. And in that capacity as President of the
Senate, there's [sic] certain duties and responsibilities that that
person has. And that person is to preside over the United States
Senate and to break any ties. Mostly, it's a ceremonial position
of presiding over the Senate.
But in their rules, unlike ours, but in their rules, all the
powers and duties that we give to our Senate President actually
rests [sic] with the Majority Leader, not the President of the
Senate, and they go off the rules. Because even though in the
Constitution you have the President of the Senate in the United
States Constitution. You do not have a position called Majority
Leader in the United States Constitution, but that person has
duties and responsibilities as our Senate President would be of
this legislative body. So the rules define what those powers and
responsibilities and duties are.
SENATOR JENKINS: Last question. Let me just ask point blank:
Could the Senator from Logan while he is still operating under the
Constitution as Acting Governor, can he walk in here today, assume
the Chair, perform all duties and functions of the Office of the
President? Could he do that today?
SENATOR UNGER: If he wanted to come right through this door
right now and walk up there and start presiding over this body as
Senate President, the answer is yes.
SENATOR JENKINS: Great. I just wanted to . . . . Thank you.
Just a final, quick word or two, I'm going to be voting "no"
on this rule change. The real crux is, again, I have said
repeatedly that I think that what we did last week is improper and
unconstitutional. I think it is important to point out that the
changes in the rule that are being proffered today, in my opinion,
is [sic] another effort to cover the tracks of the actions that
were taken last week.
Specifically, my discussion on the floor last week I raised
terms that I had not heard mentioned before that we had provisions
in the Joint Rules. And the Joint Rules said that the Joint Rules
take precedent over House or the Senate rules individually. And
what they are doing in this resolution is trying to backdoor that
problem. Typically, adopt the Joint Rules on the first day. We
don't have any Joint Rules now as though we are flying by the seat
of our pants in how we coordinate activities with the House.
And I think this rule is a vehicle by which the leadership is
trying to confuse, to try to put in here words that give the
presiding officer, the Acting President, authority to do certain
things that we were pointing out last week they couldn't do. The
other is the fact that the Leader, the Senator from Berkeley, is
saying it's very clear the Constitution, based on the Supreme
Court's ruling, says there is no such thing as an Acting Governor.
But that's not in the Constitution. And we are cleaning up this language.
The problem is (and I have repeatedly said), the Constitution
also recognizes "a" president. The Constitution does not recognize
an "Acting President". The same reason that the Supreme Court
ruled on Wednesday and, while we are doing what we are doing today
of saying that there's no such thing as an Acting Governor (that
the Senator from Berkeley has acknowledged it now), I still think
us putting into the rules an Acting President from the same legal
constitutional theories is unconstitutional.
And if that question were put before that Court directly, I
think that they would come to the same conclusion of that there's
no such thing as, not only an Acting Governor, there's no such
thing under the Constitution as a [sic] Acting President.
The final comment is the fact that, you know, I asked the
Leader yesterday to enumerate for me what the duties--and did the
Constitution contemplate duties--in the position of President of
the Senate and referenced in here, they are, have new language,
talking about any duties imposed by the West Virginia Constitution.
And that's why I think, again, our constitutional argument that the
Constitution envisions "a" president and that there are certain
apparent constitutional rights and duties of that position. We, by
rule here, are trying to divest that office by allowing those same
constitutionally . . . constitutionally provided duties into a
person other than the President. So I encourage a "no" vote on these rules.
__________
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Unger, the Senate adjourned until Monday,
January 24, 2011, at 11 a.m.
__________
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