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Senate Journal


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sdj-14th day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2009

FOURTEENTH DAY

____________

Charleston, W. Va., Tuesday, February 24, 2009

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

Prayer was offered by the Reverend Tom Bias, Olive Branch Missionary Baptist Church, Turtle Creek, West Virginia.
Pending the reading of the Journal of Monday, February 23, 2009,
On motion of Senator Edgell, 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 Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2309--A Bill to amend and reenact §30-28-1, §30-28-2, §30-28-3, §30-28-4, §30-28-5, §30-28-6, §30-28-7, §30-28-8, §30-28-9, §30-28-10, §30-28-11, §30-28-12, §30-28-13, §30-28-14, §30-28-15, §30-28-16, §30-28-17 and §30-28-18 of the Code of West Virginia, 1931, as amended, all relating to the practice of occupational therapy; providing definitions; setting forth the scope of practice of occupational therapy; prohibiting practice or use of titles unless licensed; removing the requirement for referral by a physician or other health care practitioner; setting forth supervision requirements for assistants and aides; clarifying qualifications to serve as a board member; providing that board members are not civilly liable for acts or omissions in performance of duties in good faith; setting forth powers and duties of the board; providing exemptions from licensure; clarifying qualifications for licensure; setting forth examination requirements; providing for licensure for applicants from other jurisdictions; clarifying conditions of limited permits and temporary licenses; providing for renewal, suspension and revocation of licenses; providing for refusal to renew licenses; providing for reinstatement of lapsed licenses; setting forth complaint procedures; establishing grounds for disciplinary actions; providing for hearing procedures and rights of appeal; providing rulemaking authority; providing for criminal investigations, proceedings and penalties; and establishing that a single act may constitute evidence of practice.
Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2419--A Bill to amend and reenact §31-20-5d of the Code of West Virginia, 1931, as amended, relating to providing certain inmates a reduction in sentence for successful completion of education and rehabilitation programs.
Referred to the Committee on the Judiciary.
The Senate proceeded to the fourth order of business.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 168, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to benefit determination and appeal.
Senate Bill No. 169, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to Teachers Retirement System.
Senate Bill No. 170, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to Public Employees Retirement System.
Senate Bill No. 172, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to service credit for accrued and unused sick and annual leave.
Senate Bill No. 173, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to the State Police.
And,
Senate Bill No. 186, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to general provisions.
And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
Respectfully submitted,
Dan Foster,
Chair.
The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 171, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to refund, reinstatement, retroactive service and loan interest factors.
And,
Senate Bill No. 187, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to Deputy Sheriff Retirement System.
And reports the same back with the recommendation that they each do pass; but under the original triple committee references first be referred to the Committee on Finance; and then to the Committee on the Judiciary.
Respectfully submitted,
Dan Foster,
Chair.
The bills, under the original triple committee references, were referred to the Committee on Finance; and then to the Committee on the Judiciary.
Senator White, from the Committee on Agriculture, submitted the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Bill No. 181, Authorizing Commissioner of Agriculture promulgate legislative rule relating to disposal of dead poultry.
And,
Senate Bill No. 182, Authorizing Commissioner of Agriculture promulgate legislative rule relating to commercial feed.
And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
Respectfully submitted,
C. Randy White,
Chair.
The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
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. 259, Clarifying certain terminology within Courthouse Facilities Improvement Authority.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 259 (originating in the Committee on the Judiciary)--A Bill
to amend and reenact §29-26-1 of the Code of West Virginia, 1931, as amended, relating to making technical changes clarifying certain terminology within the West Virginia Courthouse Facilities Improvement Authority.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Helmick, as chair of the Committee on Finance, unanimous consent was granted to dispense with the second committee reference of the bill contained in the foregoing report from the Committee on the Judiciary.
Senator Browning, from the Committee on Economic Development, submitted the following report, which was received:
Your Committee on Economic Development has had under consideration
Senate Concurrent Resolution No. 4, Requesting Joint Committee on Government and Finance study gray energy research benefits.
And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.
Respectfully submitted,
Richard Browning,
Chair.
The resolution, under the original double committee reference, was then referred to the Committee on Rules.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills and joint resolution were introduced, read by their titles, and referred to the appropriate committees:
By Senators Foster, Minard and Unger:
Senate Bill No. 331--A Bill to amend and reenact §16-5V-6, §16-5V-7 and §16-5V-8 of the Code of West Virginia, 1931, as amended, all relating to the Emergency Medical Services Retirement System Act; specifying procedures for the transfer of contributions; clarifying actuarial valuation period; clarifying employer contribution amount; and specifying procedures for the correction of errors.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Kessler, Minard, Plymale, Foster, Jenkins and Palumbo:
Senate Bill No. 332--A Bill to amend and reenact §11-13A-2 and §11-13A-3 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §11-27-38, all relating to eliminating the severance tax and the health care provider tax on behavior health providers.
Referred to the Committee on Finance.
By Senators Kessler, Prezioso, Unger, Barnes, Foster, Jenkins, Yost, Williams, Green, Chafin and Oliverio:
Senate Bill No. 333--A Bill to amend and reenact §18-5-22 of the Code of West Virginia, 1931, as amended, relating to decreasing the student to nurse staffing ratio; expanding coverage to all school grades; and eliminating a county's ability to contract out nursing services.
Referred to the Committee on Education.
By Senators Oliverio, Prezioso, Unger and Chafin:
Senate Bill No. 334--A Bill to amend and reenact §11-13U-10 of the Code of West Virginia, 1931, as amended, relating to reinstating the high-growth business investment tax credit.
Referred to the Committee on Finance.
By Senators Bowman, K. Facemyer, Guills, Prezioso, Unger, Minard, Plymale, Jenkins, Yost and Green:
Senate Bill No. 335--A Bill to amend and reenact §29-1-11 of the Code of West Virginia, 1931, as amended, relating to authorizing distribution of fairs and festivals' funding by the Commissioner of the Division of Culture and History.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Palumbo, Foster, McCabe, Kessler and Wells:
Senate Bill No. 336--A Bill to amend and reenact §17C-15-49 of the Code of West Virginia, 1931, as amended, relating to making the offense of failure to wear safety belts a primary offense.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.
By Senator Browning:
Senate Bill No. 337--A Bill to amend and reenact §18-7A-14b of the Code of West Virginia, 1931, as amended, relating to increasing the time for a member of the State Teachers Retirement System to make contributions for credited service during periods of temporary total disability under workers' compensation; and providing retroactive period of additional two years.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Oliverio, Prezioso, Williams, Sypolt, Edgell and Kessler:
Senate Bill No. 338--A Bill to amend and reenact §51-2-1 of the Code of West Virginia, 1931, as amended, relating to authorizing an additional circuit court judge to the seventeenth judicial circuit.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senator Foster:
Senate Bill No. 339--A Bill to amend and reenact §61-10-15 of the Code of West Virginia, 1931, as amended, relating to creating an exemption for certain licensed professional medical personnel to county hiring prohibition.
Referred to the Committee on the Judiciary.
By Senators Kessler, Prezioso, Minard and White:
Senate Bill No. 340--A Bill to amend and reenact §49-5-15 of the Code of West Virginia, 1931, as amended, relating to granting juvenile probation officers the power to arrest juveniles under their supervision.
Referred to the Committee on the Judiciary.
By Senators Kessler and White:
Senate Bill No. 341--A Bill to amend and reenact §49-7-32 of the Code of West Virginia, 1931, as amended, relating to transferring the authority to administer the juvenile justice database from the Department of Military Affairs and Public Safety to the West Virginia Supreme Court of Appeals.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Snyder and Unger:
Senate Bill No. 342--A Bill to amend and reenact §17-4-50 of the Code of West Virginia, 1931, as amended, relating to the requirements for new subdivisions in relation to highway access.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.
By Senators Prezioso, Boley, Foster, Stollings, Minard, Kessler and Jenkins:
Senate Bill No. 343--A Bill to amend and reenact §30-3A-1 and §30-3A-2 of the Code of West Virginia, 1931, as amended, all relating to the management of pain by physicians; eliminating the definition of "intractable pain"; defining the word "pain"; and making conforming amendments to the Pain Management Act.
Referred to the Committee on Health and Human Resources.
By Senators Kessler and Minard:
Senate Bill No. 344--A Bill to amend and reenact §27-7-4 of the Code of West Virginia, 1931, as amended, relating to authorizing mental hygiene commissioners to sign readmission orders.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senators Foster, Minard, Palumbo and Wells:
Senate Bill No. 345--A Bill to amend and reenact §11-21-12 of the Code of West Virginia, 1931, as amended, relating to providing an exemption for severance pay being counted as gross income for West Virginia personal income tax.
Referred to the Committee on Finance.
By Senators Sypolt, Barnes and Boley:
Senate Joint Resolution No. 10
--Proposing an amendment to the Constitution of the State of West Virginia, amending section one, article VI thereof; amending section two, article XIV thereof; and amending said Constitution by adding a new article, designated article XV, all relating to the legislative powers held by the people of the state and the Legislature; power of the registered voters and power of the Legislature to propose amendments to this Constitution; reservation by and to the people and registered voters of this state the powers of initiative, referendum and recall at all levels of government in this state; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.

Referred to the Committee on the Judiciary; and then to the Committee on Finance.
Senators Jenkins and Plymale offered the following resolution:
Senate Concurrent Resolution No. 12--
Requesting the Division of Highways name bridge number 06-07-0.40 (3633) on Nine Mile Road, County Route 7, Lesage, West Virginia, the "PVT Russell Curtis Knight Memorial Bridge".
Whereas, Private Russell Curtis Knight was born on August 16, 1911, to Mr. and Mrs. G. O. Knight of Lesage, West Virginia; and
Whereas, Private Russell Curtis Knight was married to Lucille Knight; and
Whereas, Private Russell Curtis Knight enlisted with the United States Army on June 8, 1943, served in North Africa and Europe and was honorably discharged on January 11, 1945; and
Whereas, Private Russell Curtis Knight was wounded near Artena, Italy, on June 1, 1944, where he lost an eye in an explosion; and
Whereas, Private Russell Curtis Knight received the Purple Heart, the Bronze Star, the EAME Campaign Ribbon and other service decorations; and
Whereas, Private Russell Curtis Knight died on April 4, 1971; and
Whereas, Having honorably served and sacrificed for his country, his state and fellow man, we are compelled to ensure that future generations are aware of Private Russell Curtis Knight's commitment to the cause of freedom; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 06-07-0.40 (3633) on Nine Mile Road, County Route 7, Lesage, West Virginia, the "PVT Russell Curtis Knight Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "PVT. Russell Curtis Knight Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to Private Russell Curtis Knight's family and the Secretary of the Department of Transportation.
Which, under the rules, lies over one day.
Senators Unger, Snyder, Kessler and Plymale offered the following resolution:
Senate Resolution No. 15--Recognizing Leadership Jefferson for its service, dedication and commitment to Jefferson County.
Whereas, The objective of Leadership Jefferson is to promote knowledge and awareness of the problems, opportunities and issues facing Jefferson County; and
Whereas, Leadership Jefferson is designed to provide a series of educational and participatory experiences, as well as an opportunity for dialogue and the development of a correlation among participants in order to encourage local participation in the growth of Jefferson County; and
Whereas, The membership of Leadership Jefferson includes individuals, religious, governmental, educational, civic, the arts, organized labor and minority organizations who demonstrate a commitment to the community; and
Whereas, The 2009 membership of Leadership Jefferson consists of Daid Asam, Bavarian Inn; Laura Berkeley, Teacher of Year; Chris Bontoft, City of Ranson; Alicha Burlett, USFWS; Mike Chapman, Royal Venders; Christina Coad, Jefferson Memorial; Laura Davis, Skinner Law Firm; John Dempsey, Jr., City National Bank; Jeanne Flowers, Big Brothers/Big Sisters; Annette Gavin, Charles Town Races; Darren Hine, Charles Town Races; Tiffany Hine, Briel PC Attorneys; Tara Hostler, City of Charles Town; Aaron Howell, BCT; Jennifer Jensen, Platinum PR; Cheryl Keyrouze; Kimberly Lanager, Tri-State Moving, LLC ; Michael Martin, City Of Ranson; Nelson Parkinson, Holiday Inn Express; United Way; Jessica Polidor, APUS; Kathleen Sholl, USFWS; Jason Smith, Harvest Pt. Community Church; Vicki Shean, United Way; and Jessica Liptak, National Park Service; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes Leadership Jefferson for its service, dedication and commitment to Jefferson County; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate officials of Leadership Jefferson.

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.
Senators Browning, Chafin, McCabe, Prezioso, Minard, Kessler, Unger, Stollings, Foster, Jenkins, Yost, Green and White offered the following resolution:
Senate Resolution No. 16--
Designating Tuesday, February 24, 2009, as "Community Action Day".
Whereas, Community action agencies in the Mountain State work to assist low-income West Virginians; and
Whereas, Community action agencies try to find the causes of poverty and how to achieve self-sufficiency; and
Whereas, Community action agencies have been serving low- income families throughout our 55 counties for more than 40 years; and
Whereas, Community action agencies conduct programs to meet the needs of low-income West Virginians; and
Whereas, These programs consist of Head Start, weatherization, housing, energy assistance, home rehabilitation, job training and placement, nutrition for the elderly and children, counseling, health, education welfare reform, family mentoring and many others; and
Whereas, Community action agencies, in partnerships with elected officials, the private sector and citizens of West Virginia, continue to identify low-income conditions and pursue solutions; therefore, be it
Resolved by the Senate:
That the Senate hereby designates Tuesday, February 24, 2009, as "Community Action Day"; and, be it
Further Resolved, That the Senate invites all members of the West Virginia Legislature and all citizens of West Virginia to join in recognizing the value and importance of community action programs in West Virginia; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the West Virginia Community Action Partnership.

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 and, at the request of Senator Chafin, and by unanimous consent, 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. 346 (originating in the Committee on the Judiciary)--A Bill
to amend and reenact §20-2-22 of the Code of West Virginia, 1931, as amended, relating to making a technical correction to an internal code reference related to bear tagging .
And,
Senate Bill No. 347 (originating in the Committee on the Judiciary)--A Bill
to amend and reenact §62-12-26 of the Code of West Virginia, 1931, as amended, relating to making a technical correction to an internal code reference related to extended supervision for certain sex offenders .
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 9, Requesting Congress provide funding for Corridor H completion.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Finance.
Senate Concurrent Resolution No. 10, Requesting Joint Committee on Government and Finance study Department of Health and Human Resources employees' home visit safety issues.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Health and Human Resources; and then to the Committee on Rules.
Senate Concurrent Resolution No. 11, Requesting Joint Committee on Government and Finance reconstitute Select Committee A on Children, Juveniles and Other Matters.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on the Judiciary; and then to the Committee on Rules.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senators Chafin and Caruth.
Pending announcement of meetings of standing committees of the Senate, including majority and minority party caucuses,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Wednesday, February 25, 2009, at 11 a.m.
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