From the Well | January 15, 2024

It is the informal gathering place for lobbyists, reporters, constituents and lawmakers.

Centrally situated between the chambers of the House of Delegates and Senate,

The Well is where information is often shared, alliances are formed, and deals are made.

86th West Virginia Legislature

State Capitol

January 15, 2024

West Virginia News Headlines

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·     TOUGHER PENALTIES: The House Judiciary Committee passed legislation that would increase the criminal penalties imposed on a parent, guardian, or custodian for child abuse.

·     EDUCATION: State Superintendent Michele Blatt presented the West Virginia Department of Education’s legislative priorities to the House Education Committee.

·     DRUG LAW: The Senate Judiciary Committee discussed legislation that would amend and re-enact the provisions of Section 416 of Article 4 of Chapter 60-A, which is the Controlled Substances Act.

·     BUDGET CONCERNS: Officials considering Governor Jim Justice’s proposed $5.22 billion general revenue budget will need to consider a few variables.

·     ENERGY PERMITTING: Senate President Craig Blair is urging the federal government to reform its energy permitting process.

Last year, the court system’s budget request was about $154 million, WVMetroNews reported.

“We have, I believe, right-sized our budget over the last few years and accurately represent what it costs to run our court system throughout the state,” Chief Justice Tim Armstead told members of the House Finance Committee on Monday.

Although the court system is a separate branch of government, the Chief Justice annually presents a budget request to the Legislature. The presentation includes a budget request for all levels of the state’s court system, from the Supreme Court to magistrate courts. The past couple of years, that has reflected the addition of the new Intermediate Court of Appeals.

Click here for more coverage.

Attorney General

Attorney General Patrick Morrisey discussed efforts to address Medicaid fraud, which includes consultation with the Department of Health and Human Resources. DHHR has been separated into the Department Of Health, Department of Human Resources, and Department of Health Facilities, based on legislation adopted last year.

The Attorney General said use of external counsel saves money and secures expertise for litigation, including what he termed several times as litigation prompted by Biden administration “overreach.”

“The Biden threats were very significant,” he said, specifically mentioning initiatives relating to greater regulation of the state’s coal and oil and gas industries as a chief area of emphasis.

Attorney General Morrisey said about half of his office’s 165 staff members are attorneys, and many of the staff attorneys work on matters relating to consumer protection or representing state entities. In response to a Committee member’s question, Morrisey said outside expertise is necessary to represent the state, especially given the size of the cases involved. He also said external legal expertise gives his office “additional flexibility.”

As areas requiring expertise, he cited recent opioid settlements, as well as efforts to ensure Republican presidential candidate Donald J. Trump is permitted to run in the state’s May primary election ballot.

According Attorney General Morrisey, money derived from settlements is distributed by the Legislature rather than his office – a complaint lodged against his processor, Darrell McGraw.

State Auditor

Deputy Auditor Steve Connolly provided the presentation and noted increases in governmental entities’ use of the Office’s “transparency website,” including 39 counties and 24 municipalities.

Mr. Connolly also said the Office had received an increase in “tips” relating to fraud among local governmental units.

Use of “P-Cards,” including increased use by Volunteer Fire Departments, is increasing, he said.

Among other items mentioned:

·     The smallest municipalities have difficulty in securing audits due to the $3,000 statutory allotment, although the number of municipalities affected is “less than 20.”

·     The Office is having difficulty securing accountants because fewer students are entering the accounting field or are seeking to become Certified Public Accountants (CPAs). That is a trend across the nation, according to Mr. Connolly.

·     VFD audits are not billable to fire departments themselves, rather to counties and municipalities.

·     Increased usage of “P-Cards” results in rebates to authorizing entities and allows for greater public spending transparency due to tracking of the expenditures. Local government rebates amounted to $2.9 million last year. The “P-Card” third party, placed for bid every five years, is U.S. Bank.

·     The office has 205 full-time staff.

The Auditor’s Office, while not distributing funds from opioid litigation, is aware of financial distribution, which can be seen on its “transparency site” for participating local governments.

Secretary of State

Secretary of State Mac Warner noted his Office’s work in streamlining business registrations with, according to his staff, about 99% of the state’s new business registrations occurring through the office’s digital filing system.

Additionally, Chief of Staff Donald Kersey provided most of the presentation.

Mr. Kersey noted three “in-person” offices operate to support business registrations. Offices are in Charleston, Clarksburg, and Martinsburg.

In response to an inquiry from Senator Eric Nelson of Kanawha County, staff noted “third parties” often charge up to $125 for business reports whereas the Secretary of State’s Office charges $25.

Most money from business registrations is provided back to the state.

Cybersecurity is an increasing emphasis in the Secretary of State’s Office, particularly regarding elections.

Additionally, the Office is using AI-generated questions to aid persons in registering businesses.

Senator Chandler Swope of Mercer County, a businessman, praised the office for its “One-Stop” program.

Alluding to comments from President Craig P. Blair of Berkeley County, Senator Swope said the Secretary of State’s Office ensures West Virginia is “doing business at the speed of business.”

Senator Jack Woodrum of Summers County praised the office for its work with local elected officials.

The first bill taken up was Committee Substitute for House Bill 4302, which would increase the criminal penalties imposed on a parent, guardian, or custodian for child abuse. It passed unanimously with an amendment.

Counsel said the bill increased sentencing ranges for child abuse and neglect to not less than five or more than 15 years, an increase from current two to 10 years, for serious bodily injury. Abuse creating a risk of death was increased to two to 10 years from the current one- to 5-year sentence. Second offenses are made a felony.

Delegate J.B. Akers of Kanawha County, newly appointed to the House, asked whether the bill comports with the child sexual abuse statute regarding a person of trust, and he was told it did not. He proposed an amendment to insert “persons in position of trust in relation to child” in addition to parent, guardian, or custodian already in the bill.

In explaining his amendment, he said, “The Court would be inclined to think if person of trust is not included, it is for a reason,” adding that courts take legislation to mean what it says and say what it means. There was discussion that determined the term “custodian” did not encompass the same meaning as “person of trust.”

The amendment was adopted.

Court filing fees discussed

The House Judiciary Committee, citing lack of a fiscal note, laid over House Bill 4384, which involves Circuit Court filing fees. The bill would allow multiple plaintiffs against the same defendant to be charged only one filing fee.

The fee distribution is specified in a special revenue code that provides:

·     $30 to the West Virginia Courthouse Facilities Improvement Authority;

·     $45 to Fund for Low-Income Legal Fees;

·     $20 for Domestic Violence Legal Fees.

·     The remainder of the filing fee stays with the Office of the Circuit Clerk.

The sponsor of the bill, Delegate Phil Mallow of Marion County, said the fees are being used as a “money-making proposition for the listed recipients.” Other Delegates pointed out that, while three plaintiffs all could be suing the same contractor, the facts and circumstances could be different, and 20 or 30 cases could be filed with one fee. They said the Circuit Clerk has to manage all filing and paperwork. There also was concern about how the proposed change would affect class-action cases.

Because the bill did not yet have a fiscal note and it wasn’t determined how much revenue would be lost, the bill was laid over until a fiscal note is available.

Candidate residency requirements considered

House Bill 4428 passed the House Judiciary Committee with amendments and would require that candidates live in the state or local election district for the office they are seeking. Counsel said the bill specifies that residency is synonymous with domicile.

Donald Kearsey, Counsel for the Secretary of State, said the Secretary of State’s Office is prohibited from investigating beyond what is on the Certificate of Announcement itself.

“We are limited to objective administrative duties,” he added, giving an example that a candidate is not eligible if he or she claims a residence in Ohio.

Mr. Kearsey told the Committee that the last two lines of the bill create a responsibility of adjudication that is substantially different from what the Office does now as an administrative office. He said it created a conflict with current case law regarding the Office of Secretary of State. The language referencing adjudication by the Secretary of State was amended out of the bill.

Delegate Brandon Steele of Raleigh County offered an amendment that this bill would not apply to Circuit Judges, Family Court Judges, or Prosecuting Attorneys. Prosecuting Attorneys currently do not have to live in the county for which they serve as prosecutor, and judges do not have to live in their district to run but must move into the district prior to taking the oath of office. The amendment passed.

Party-affiliation bill advances

Committee Substitute for House Bill 4552 passed House Judiciary. It would ensure that party affiliation on a Certificate of Announcement is the same as the candidate’s voter registration. Delegates presented no examples of problems.

Immediate verification would be done electronically at the Secretary of State’s Office for statewide and legislative candidates or by the County Clerk or Municipal Clerk for county and local office candidates through the Statewide Voter Registration System.

Concern was expressed that verification could hold up the process or cause a candidate to miss the filing deadline. As an example of how quickly the verification could be done, Delegate Chris Phillips of Barbour County confirmed that, yes, he was registered as a Republican by simply looking it up online during the meeting.

Delegate Joey Garcia of Marion County offered an amendment that the years and months a candidate has resided at the address on the Certificate of Announcement be required. There was discussion that only a few offices require a length of time as a resident of the state. One Delegate asked what if one candidate has lived in the district two months longer than the other. He asked Delegate Garcia, “Does this open the door for someone to be petty?”

Delegate Garcia responded that, in his opinion, “We’re way past the point of pettiness in politics.”

2 bills advance during Friday meeting

The House Judiciary Committee, meeting Friday, January 12, approved two bills.

House Bill 4190 establishes an alert system for missing cognitively impaired persons.

Several Committee members questioned the need for numerous “alert” measures, although Committee Counsel noted many of the alerts, including “Amber” alerts for missing children and youth, are tied to uniform laws as well as federal legislation.

The bill would establish a “Purple Alert” for cognitively impaired persons.

Bill provisions outline criteria for the activation of a Purple Alert, including notice of the alert to the public, and providing immunity for individuals providing information pursuant to a Purple Alert in “good faith.”

HB4190 is on First Reading.

House Bill 4252, according to Committee Counsel, would allow local enforcement officials to have the ability to “recognize and enforce” Canadian domestic violence protective orders.

According to sponsor Brandon Steele of Raleigh County, local law enforcement officials do not have the express authorization under current law.

The bill also provides directives to courts about how to deal with the orders, including contacting Canadian officials to determine applicability with state domestic violence laws.

The bill also provides the means to register a Canadian domestic violence protective order.

Bill regarding torture referred to subcommittee

Following several minutes of debate, House Judiciary Chairman Tom Fast referred House Bill 4250, which establishes the crime of “torture,” to a subcommittee.

Most of the debate centered on what some members view as the bill’s provisions “overlapping” existing law or in conflict with existing law, including laws relating to use of firearms in crimes, poisoning, disciplining of children, and other scenarios.

Additionally, members questioned when the statute would be used in concert with other laws, especially since the proposed statute has a minimum 15-years jail sentence.

Moreover, several members questioned whether a person convicted of violating the proposed statute also could be sentenced for violating similar laws that do not include mandatory sentences of a certain length.

Subcommittee members include Delegate Brandon Steele, bill sponsor, who chairs the subcommittee.

Superintendent Blatt said the WVDE’s “laser-like” focus pertains to implementing 2023 legislation regarding “third-grade readiness.”

That legislation, included in House Bill 3035 from 2023, sees enhanced reading and mathematics skills attainment as the “key” for student success — that is, students showing mastery in math and reading by third grade as an indication of future academic proficiency.

The Superintendent said absenteeism is another priority, including the need to get “handles” on causes of absenteeism.

Although Superintendent Blatt received few questions, she said agency staff has high interest in legislative interim meeting presentations and recommendations, especially as relating to House Bill 3035.

Education officials go over budget

In terms of the WVDE budget, Philip Uy, who serves as the Department’s Chief Financial Officer, and Uriah Cummings, Director of the WVDE’s Office of School Finance, reviewed FY25 budget requests for the Department and for the states’ Public School Support Program (PSSP).

Uy stated the WVDE budget has essentially stayed “the same level for the last five years.”

He reviewed several budget line items, including those relating to federal programs.

Mr. Cummings said the state has 5,340 fewer students than FY24.

He stated many PSSP line-items, especially relating to school personnel, were tied to “net enrollments.” Given decreases in net enrollments, he said the state would lose funding “slots” for 387 professional positions, but have lesser losses in school personnel positions given the nature of those positions, especially school bus operators.

He also discussed “local share” or county-derived tax dollars that offset direct state appropriations through the PSSP (or school aid formula).

Mr. Cummings said most of the increase in state tax dollars is derived from the oil and gas industry rather than real estate or personal property taxes.

According to WVDE calculations, five county boards, due to oil and gas tax receipts, literally draw no PSSP funds. Mr. Cummings identified those county boards as the Doddridge, Marshall, Tyler, and Wetzel County school districts and possibly the Ritchie County Board of Education, although that board’s status will not be known until early in March.

Mr. Cummings said “volatility with charter schools” enrollments is one factor in lesser student enrollments, although other factors include loss of population in the state.

Teaching staff vacancies discussed

Regarding what is commonly referred to as vacancies with teaching staff, Mr. Cummings and Ms. Blatt said the “figure” may be best seen as referring to educators who are teaching in areas where they don’t have proper certification, especially special-needs teachers who teach classes such as math and science because certified teachers are not available.

Another factor regarding personnel is that 241 special teachers transferred from those classrooms to staff House Bill 3035 positions, according to Blatt, who said the Department is monitoring to what extent those positions have been filled. She said 88 positions are posted on the WVDE website.

Committee members questioned how funds are allocated for student alternative education. They also touched on a slight increase in English as a Second Language (ESL) moneys the WVDE is requesting, moneys for enhanced school security, and funds allocated for central office administrations — a topic of considerable legislative interest, according to various reports.

Given the Legislature’s focus on student discipline this session, the alternative learning question is a key component, although noted as costly and as part of the solution to rising student behavioral incidents in elementary schools.

$173 million requested for safe schools funds

According to Mr. Cummings, county boards presented a budget request of $173 million for safe schools funds, although that line-item is not funded in the Governor’s budget.

ESL funds are for a few counties, including Putnam and Monongalia counties, according to WVDE staff with increases based on county board requests for ESL students.

Mr. Cummings noted the county superintendent position and an assistant superintendent as well as an attendance director position are funded through the PSSP. Most other administrative positions, he said, are picked up by county boards, including the mandated position of a school treasurer.

Counties, in fact, receive lesser state aid if not meeting a ratio that delineates the number of professional instructional positions that are required to be filled for receiving PSSP funds.

Delegate Heather Tully of Nicholas County inquired about the loss of federal COVID-19 pandemic dollar, an issue discussed in January legislative interim meetings.

Ms. Blatt said county superintendents will meet to discuss funding decisions based on staffing with use of those federals funds. Most of the funds are to be expended by June 30, 2025, if not earlier.

The purpose of the bill is to amend and re-enact the section to clarify phrases involving the failure to render aid to someone who overdoses, specifically the fines, the term “engaged in the use of controlled substance with another person,” and “to seek medical assistance.”

The heard that the overall purpose of Subsection B is to encourage the reporting of overdoses by those who are with, perhaps using drugs with, or in the presence of other people using drugs. The language was contained in Senate Bill 135, which the Senate passed last session 33-0 with one absent. The bill came to rest in the House Judiciary Committee.

The Committee opened the floor for discussion or amendments to the bill. When none were proposed, a motion was made to report the bill to the full Senate with a recommendation to pass.

WVMetroNews reported Sunday that one factor is the possibility that West Virginia could hit a trigger to further reduce personal income taxes. The state instituted a 21.25% cut this year in a package that included further automatic reductions under certain economic conditions.

The first trigger could occur this year, and officials are already assessing what size that cut could be.

Additional factors are quirks of tax collection that could be affected by the calendar. That refers to a new state law providing a workaround to a federal $10,000 cap on state and local tax deductions, often called SALT. The workaround allows partnerships and other pass-through businesses to pay West Virginia income taxes as entities rather than passing the tax responsibility through to individual owners.

The upshot could be more of those tax collections up front and more tax credits and refunds in the second half of the fiscal year.

Click here to read more from WVMetroNews.

Senate Concurrent Resolution 16 was before the members: “Urging the United States Congress to enact much-needed reforms to federal permitting policies to accelerate deployment of new energy infrastructure.”

WVMetroNews reported the Senate adopted the resolution unanimously in a voice vote; it now goes to the House for concurrence there.

Blair told his colleagues that he is the new chair of the Council of State Governments Southern Office and they are following his idea of passing a resolution in each state focused on a certain issue, such as this one.

In West Virginia, he said, the Legislature reviews and approves agency rules created to carry out state code. This provides checks and balances. It’s not that way at the federal level, where Congress has abdicated its authority to the agencies. “It has gummed up to works to the point where nothing gets done.”

SCR is an all-of-the above energy resolution, he said, aimed at the federal permitting delays that discourage investment in energy projects, to the detriment of national security.

Click here for more coverage.

20th Day: January 29, 2024 — Submission of Legislative Rule-Making Review bills due

35th Day: February 13, 2024 — Last day to introduce bills in the House. House Rule 91a does not apply to originating or supplementary appropriation bills, and does not apply to Senate or House resolutions or concurrent resolutions

41st Day: February 19, 2024 — Last day to introduce bills in the Senate. Senate Rule 14 does not apply to originating or supplementary appropriation bills and does not apply to Senate or House resolutions or concurrent resolutions

47th Day: February 25, 2024 — Bills due out of committees in house of origin to ensure three full days for readings

50th Day: February 28, 2024 — Last day to consider bill on third reading in house of origin; does not include budget or supplementary appropriation bills

60th Day: March 9, 2024 — Adjournment at midnight