From the Well | February 12, 2024

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86th West Virginia Legislature

State Capitol

February 12, 2024

West Virginia News Headlines

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FIGHTING OPIOIDS: The House Judiciary Committee adopted a bill that creates an offense to expose certain police and emergency responders to opioids.

RACING SUPPORT: The House Finance Committee approved legislation to restore funding for the thoroughbred racing and greyhound breeding industries.

WINERY RULES: The House Committee on Government Organization passed a bill that aims to comprehensively overhaul and amend seven sections of the West Virginia code that regulate farm wineries.

OPEN GOVERNMENT: The House Finance Committee passed legislation to clarify what grants are subject to reporting requirements under the Grant Transparency and Accountability Act.

EXPUNGEMENT: The House Judiciary Committee adopted a bill that allows the expungement of criminal records in certain cases.

DNA DATABASE: The Senate Judiciary Committee passed a bill that directs that information from certain arrestees in the state is to be added to the DNA database.

CORRECTIONAL OFFICERS: The House Judiciary Committee passed legislation that would recognize the law-enforcement powers of correctional officers within the Division of Corrections and Rehabilitation.

POLICE CHIEF CHANGES: The House Judiciary Committee adopted a bill that Counsel said “grandfathers” three elected municipal police chiefs by clarifying those officers, if employed prior to July 1, 2018, are exempt from §30-29-5.

CLASSROOM BEHAVIOR: Senator Amy Grady of Mason County spoke to the Senate, expressing her support for legislation that addresses students’ classroom behavior. The Senate passed the bill.

ELECTION BILLS: The Senate Judiciary Committee passed Committee Substitutes for three election bills.

CANDIDATE CERTIFICATION: The House Judiciary Committee referred a bill involving political candidates’ certification to a subcommittee.

INTERNET BILLING: The House Judiciary Committee adopted a bill to establish limitations on billing practices of Internet or telecommunications providers that fail to provide service to customers.

OBSCENITY LAW: The House Judiciary Committee adopted legislation that changes laws related to obscene material.

Directing transfer of moneys into fire protection funds at the end of each year

The Committee will report the bill to the full House with the recommendation it pass.

Specifically, the legislation would dedicate $6 million to the State Fire Protection Fund to be distributed to all volunteer fire departments. Another $3 million would go to the County Fire Protection Fund to be divided equally among all 55 counties. The remaining $3 million would go to the All County Fire Protection Fund but only be distributed to counties that have countywide excess levies or fees dedicated to fire or emergency services.

Creating the offense of exposing a law-enforcement officer, probation officer, parole officer, courthouse security officer, correctional officer, the State Fire Marshal, a deputy or assistant fire marshal, firefighter, or emergency medical service personnel to opioids

The Committee amended HB5319 so its provisions relate to fentanyl specifically and include inflicting injury or death on a first responder as felonies. The latter carries a prison term of 15 years to life.

Here are some definitions:

·    “Bodily injury” means substantial physical pain, illness, or any impairment of physical condition, including, but not limited to, loss of consciousness or other symptoms of an opioid overdose that result in the immediate administration of an opioid antagonist medication.

·    “Death” means the death of any law-enforcement officer, probation officer, parole officer, courthouse security officer, correctional officer, the State Fire Marshal, a deputy or assistant fire marshal, firefighter, or emergency medical service personnel who ensues within one year as a proximate result of a bodily injury received.”

·    “Exposure” includes without limitation skin contact, inhalation, ingestion, or contact with a needle-stick or a mucus membrane, including the mouth, eyes, or nose. Proof of exposure shall be based on a confirmed positive test for opioids administered by a medical professional immediately following the death or bodily injury of an injured public safety officer.

Delegate J. B. Akers of Kanawha County said unlike social media posts he has seen, “This (fentanyl exposure) in not a ‘made up’ issue. This is something that can kill our first responders.”

Delegate Akers added that the Centers for Disease Control concur with dangers of fentanyl exposure — a point also made by another Delegate who said his son is a physician who concurs that exposure can occur despite the use of protective gear by medical professionals who come in contact with fentanyl.

Relating to the transfer of certain revenues derived from lottery activities

Specifically, the legislation would restore the percentages of revenue from racetrack video lottery terminals (VLTs) and table games that used to go to the thoroughbred development fund and greyhound breeding development fund before those funds were diverted to the state excess lottery fund in 2014. That was done at that time because the Legislature and Governor were struggling with a significant budget deficit.

The Committee Substitute amended some technical errors in the original bill and removed language about using the restored funds to pay off debts in the workers’ compensation debt reduction fund and for revenue shortfalls.

Revising state law regulating farm wineries

It will be reported to the floor with the recommendation that it pass.

The bill creates four new classes (A, B, C, D) of farm wineries based on annual production levels, between 0-25,000 gallons, 25,000-50,000 gallons, etc.

Each class would have different requirements for the percentage of agricultural produce that must be grown on the farm winery itself or obtained from elsewhere within the state. Higher production classes would need less in-state sourcing.

The Agriculture Commissioner was given authority to relax the in-state sourcing requirements in cases of crop disease or severe weather affecting supplies.

The bill relaxes some food regulations, allowing pre-packaged foods to be distributed by farm wineries where previously only prepared foods were allowed if wineries had full kitchens.

Farm wineries would be permitted to serve wine by the glass for on-site consumption, not just provide complimentary samples.

Class A licensees could serve and sell wine at any festival in West Virginia, expanding their sales opportunities.

The bill had unanimous support from West Virginia’s 17 existing farm wineries, which risked closure without the regulatory changes.

Relating to the Grant Transparency and Accountability Act

The Committee Substitute restores language that is removed in the introduced bill regarding particular factors to be developed by the State Auditor.

Counsel noted that grants made from the Water Development Authority are exempt.

Marie Prezioso, Executive Director of the WDA, explained that WDA uses a different process as a “drawdown agency,” but it has plenty of oversight.

Creating the equitable right to expungement

Under terms of HB4399, individuals whose charges have been dismissed following a pre-trial diversion or whose charges have been dismissed following completion of deferred adjudication are authorized to file a civil petition so all “records relating to the arrest, charges or other matters arising out of the arrest or charges” can be expunged.

Exceptions include charges for driving under the influence, including participation in the Department of Motor Vehicles Alcohol Test and Lock Program, which has its own provisions for expungement, and for domestic battery and assault.

Expungements require approval from a circuit judge, according to Committee discussions. Certain crimes, including felonies, make one unable to seek expungement, although Committee Counsel said reference to that section of law omits the need for HB4399 to specify crimes, such as stalking, child abuse, and neglect.

The Committee also voted to amend the bill to use “shall” instead of “may not” in cases of persons whose records are expunged not having to “disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.”

“May not,” while the preferred by Legislative Services, could lead potential employers leeway to seek disclosure of information, according to Committee members.

Relating to DNA data maintained for law-enforcement purposes

Counsel said no current law provides authority for pre-conviction collection of DNA. This Committee Substitute would authorize DNA collection upon certain felony indictments rather than after arrests. The Committee Substitute adds domestic violence to the qualifying felonies.

As described by Counsel, the bill is different from the Senate’s 2023 version and also from the House of Delegates version in 2024.

Expungement of the DNA from the database was discussed in detail. The bill provides that a circuit judge can issue an order to purge records of DNA or an individual has a right to seek expungement.

Ashley Spence, representing the DNA Justice Project, spoke in favor of the bill. A DNA match from another state from the person who raped her seven years previously was found in a database. Currently, all 50 states collect DNA upon conviction of a felony. Thirty-one states collect upon certain violent crimes. Texas just became the 19th state to collect DNA from all felony arrests.

Law Enforcement Officers Safety Act

Under current law, the Commissioner of the Division of Corrections and Rehabilitation is authorized to “establish an appropriate training program for personnel of the division.”

Persons completing the Division’s correctional officers’ training programs, including higher education personnel, persons employed as hospital police officers, persons employed by the Public Service Commission who have law enforcement duties, and persons employed by resorts are not subject to compliance with the federal Law Enforcement Officers Safety Act (LEOSA), although the Commissioner may consult with LEOSA in designing Corrections Division officer training courses.

According to Committee Counsel, the bill’s provisions apply to Corrections officers’ “on-duty” employment in terms of normal powers and duties, most of which are limited to specific jurisdiction with correctional facilities. An exception might be a Corrections officer who assists with the apprehension of an inmate escapee.

Counsel reiterated that the term “law enforcement officer” does not apply to the chief executive of any West Virginia law-enforcement agency, any watchman or special natural resources police officer, or any litter control officer who is authorized and trained under current law but not trained and currently certified as a law-enforcement officer.

Clarifying that elected municipal police chiefs shall be certified law-enforcement officers

That statute, effective in 2007, did not include provisions for police chiefs in Martinsburg, Follensbee, and New Martinsville, who are elected rather than appointed.

Under the provisions of the statute, certified law-enforcement officers must meet the minimum entry-level law-enforcement training program requirements and are exempt from attending a law-enforcement training academy if he or she has satisfactorily completed a course of instruction in law enforcement equivalent to or exceeding the minimum applicable law-enforcement training curriculum.

The statute, according to Committee discussion, didn’t specify elected police chiefs.

Relating to elementary behavior intervention and safety

Click here and to see and hear Senator Grady explain her support for the legislation.

Updating time period of voting inactivity for removal from voter registration

SB623

Requiring DMV to provide images of certain individuals to Secretary of State for voter identification purposes

SB624

Cancelling voter registration records for individuals no longer WV residents

SB622

The first was Senate Bill 622, which would decrease the period of voting inactivity required to initiate a confirmation notice mailing. Currently, the time period is four years, but the bill will change the time frame to two years.

Donald Kersey, Chief of Staff for the Secretary of State, said the U.S. Supreme Court recently upheld the Ohio law from which the bill is modeled. State and federal law allows voters to remain on the voter registration rolls for eight years with no voting activity. SB622 shortens that time to six years.

Putnam County Clerk Brian Wood told the Committee that the bill would help Clerks start contact with the voter earlier.

“Clerks walk a tightrope with keeping people who want to vote on the rolls and removing those who don’t,” he said.

SB623

Committee Substitute for Senate Bill 623 passed Senate Judiciary Committee to require the Division of Motor Vehicles (DMV) to provide images of persons who are issued any identification or license to the Secretary of State for voter identification purposes.

Currently, biographical information is sent to the Secretary of State, but the bill would add the photo or image of the person.

Donald Kersey, Chief of Staff for the Secretary of State, said signatures already are transferred to County Clerks, and the photo would go next to the signature in the poll book. That would apply to electronic or E-poll books and to paper poll books.

Asked by Senator Charles Trump of Morgan County whether the bill would pose an additional burden to County Clerks, Mr. Kersey responded that there will be a cost component for paper poll books and for development of the initiative.

Chairman Trump asked Michelle Holly, Fayette County Clerk, whether Clerks have a position on the legislation. Clerk Holly responded that the photo will help provide an additional perspective for identifying a voter, noting that signatures from DMV often are not similar to a person’s actual signature on paper.

A representative from DMV was asked whether people would know their information was being transmitted. She said that question is “affirmative denial.”  DMV customers are asked two yes or no questions: Do you want to register to vote or do you want to edit your voter registration? If the response to either question is “no,” then no information is sent to the Secretary of State.

SB624

Concluding its election bills agenda, Senate Judiciary Committee passed Committee Substitute for SB 624, which would use DMV notifications from other states to identify individuals who are no longer West Virginia residents.

Donald Kersey, Chief of Staff for the Secretary of State, was asked what change actually occurs with the bill. He said it is a prospective bill allowing the Secretary of State and County Clerks to skip all the confirmation-card notifications.

When an individual goes to another state and gets a driver’s license, it indicates they are no longer a West Virginia resident.

“DMV identification requirements are much more thorough than voter registration,” Mr. Kersey said.

Michelle Holly, Fayette County Clerk, was asked how the bill would affect the operations of the County Clerk’s office.

She responded, “This person has definitively told another state, ‘I live here now.’”

She added the change would eliminate having to wait eight years to remove an inactive voter and allow clerks to keep voter rolls better maintained.

The elections bills are not effective until January 1, 2025.  

Give a 10-day right to appeal to the Supreme Court of Appeals a Secretary of State decision to not certify a candidacy

HB4591, as introduced, amends current law, authorizing the Secretary of State or Board of Ballot Commissioners to refuse to certify the candidacy (or may remove the certification of the candidacy) “upon receipt of a certified copy of the voter’s registration record of the candidate showing that the candidate was registered as a voter in a party other than the one named in the certificate of announcement during the 60 days immediately preceding the filing of the certificate.”

The complaint and the certified copy of the voter’s registration record of the candidate are to be “filed no later than 10 days following the close of the filing period.” The candidate may not be refused certification for that reason.

Accordingly:

1.   The Secretary of State shall, upon receipt of certificates of announcements, verify the party registration, residency, and correct district.

2.  The Supreme Court of Appeals has original jurisdiction over appeals from the decision of the Secretary of State’s refusal to certify a candidacy for public office.

3.  An applicant who is denied certification of his or her candidacy may appeal the decision to the Supreme Court of Appeals within 10 days of the decision from the Secretary of State.

Committee debate concerned whether appeals could be filed “automatically” — the gist of a proposed amendment offered by Delegate Joey Garcia of Marion County. It also touched on methods the Secretary of State’s Office would use to determine residency.

An additional concern involved whether the state Supreme Court, if not acting on an appeal, would effectively make the appeal moot.

To require telecommunications providers that fail to provide subscribed customers service for five (5) or more days (120 hours) to automatically credit the customer’s account for the lack of service proportional to the number of days disrupted services

The bill calls for automatically crediting a customer’s account for the lack of service proportional to the number of days disrupted.

As stated in the legislation, “The purpose of (the bill) is to place reasonable limitations on the billing practices of Internet or telecommunications providers to assure that consumers are not required to pay for long service outages when he or she did not receive services, and further, prohibit billing for these services in periods when the consumer is not receiving Internet or telecommunications services.”

Its provisions are to be enforced by the Attorney General, who is to “maintain an action against the Internet or telecommunications service provider to enforce the provisions of (the statute) to recover the excessive costs billed to the customer, and a civil penalty may be assessed, in an amount determined by the court, of not less than the cost of one month of service to the customer or $100, whichever is greater.”

The Committee amended the bill to provide individual consumers the ability to seek legal actions for damages, although provisions relating to the Attorney General remain.

Relating to the registration requirements in the Sex Offender Registration Act

As explained by the House Judiciary Committee Counsel, House Bill 5345 provides a means for sex offenders to satisfy their legal obligation to comply with statutory registration requirements if they have no permanent residence.

The bill was amended to refer to “transient residency” for that purpose.

Additionally, HB5345 requires sex offender registration status, as a continuous legal obligation, to be reported in person to the West Virginia State Police detachment responsible for covering the county of his or her residence within 10 days of relocation.

Counsel said the intent of the legislation is to move statutory definitional terms under one code section.

In doing so, the term “transient residency” was added.

The term is defined as “a location where a person lives, or is located for a period of three or more days in the aggregate during a calendar year, and which is not the person’s temporary or permanent address. The term includes, but is not limited to, a place where the person sleeps or receives shelter, and a location that has no specific street address.”

Removing bona fide schools, public libraries, and museums from the list of exemptions from criminal liability relating to distribution and display to minor of obscene matter

In what one Delegate termed three hours of “wasted legislative time,” few pages were left unturned in terms of the Committee discussion of the legislation, which was adopted on a 21-3 vote.

Megan Tarbett, president of the West Virginia Library Association (WVLA), said local libraries have systems to consider initial placement of books and then to potentially reconsider that placement if a community member objects. She reiterated several times that communities have various type of libraries, including one-staff libraries, and that determination of library offerings is “hyper-local.”

Additionally, in response to Delegate J.B. Akers of Kanawha County, she said the WVLA itself – not individual libraries – is a member of the National Library Association.

Delegate Akers said the decentralized nature of process, which Tarbett explained in detail, may be insufficient in that materials that parents deem obscene can be viewed by minors.

As Delegate Brandon Steele of Raleigh County closed debate on the bill, he said the measure was offered to address “grooming” and to ensure libraries don’t become a “sanctuary for pedophilia that exists in her code.”

Other Committee members, including Delegate Shawn Fluharty of Ohio County said the bill was simply a ploy to use for “re-election in November.”

Click here to read more from WVMetroNews.

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