From the Well | January 12, 2022

Legislative Session Begins

At the center of the West Virginia state Capitol is an area known as The Well.

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

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

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

Lawmakers to receive executive’s budget bill

The House of Delegates and Senate expect to receive the executive’s budget bill today, thus fulfilling constitutional requirements, the House said in a statement.

The Governor was scheduled to speak to a joint session of the West Virginia Legislature at 7 p.m. Wednesday. The Legislature’s 2022 session began today and will extend through Saturday, March 12.

Lawmakers share ideas during BIC gathering

During his brief address at the state Culture Center in Charleston, Gov. Jim Justice said West Virginia is poised for economic growth if it doesn’t “get in its own way.” He thanked the Legislature for its cooperation as the 2022 session approached.

Members of the House of Delegates and Senate told the audience about their legislative priorities, which include enhancing vocational education and workforce training, improving infrastructure, reducing regulatory barriers to job growth, encouraging development of rare-earth minerals, eliminating the state’s ban on nuclear power, and creating a state program that addresses mining reclamation.

Legislative initiatives don’t stop there.

More than one lawmaker mentioned recent legislation intended to spur investment in a specific industrial project. See here and here.

Senate President Craig Blair advocated voter support for Amendment One, which will focus on reducing or eliminating the personal property tax on business equipment and inventory and personal vehicles.

Legislators repeatedly mentioned the economy and said West Virginia’s legislative leadership is committed to population growth and more job opportunities. Their strategy is diverse and has many elements. The governor’s comments suggested he is an eager partner.

Delegate Larry Pack of Kanawha County said the state is prepared to tell a story that shows it is a competitor in the nation’s economy. The state, he said, is now in a positive position it couldn’t have contemplated 10 or 15 years ago.

Meanwhile, legislators – some of whom are business owners – said they are interested in addressing government regulations they say discourage economic growth.

A sampling of legislators’ comments:

Senator Blair said he applauds Gov. Justice for his work on unemployment compensation. He suggested the state-run fund could reduce the premiums it charges employers. Blair also said he supports coal production in every way, but West Virginia would be well served to eliminate its ban on nuclear power, particularly small generating plants.

Delegate Riley Keaton of Roane County said he supports development of rare-earth minerals. He noted the U.S. and other nations rely on China for those minerals, which are critical to the manufacture of high-tech products. Keaton also said he is interested in leveraging state institutions’ ownership of intellectual property.

Senator Rollan Roberts of Raleigh County said he wants to see better results in state-directed workforce training. Roberts also said West Virginia is on the right path, citing recent publicity that projects the newly designated New River Gorge National Park and Preserve as a desirable destination for families with children. He also noted encouraging statistics that show West Virginia gained population last year.

Delegate Wayne Clark of Jefferson County, owner of Locust Hill Golf Course, said vocational schools must have better equipment and greater success. “I want to see our community technical and vocational schools be better,” said Clark, who attended a community college in Maryland.

Delegate Paul Espinosa of Jefferson County mentioned the Legislature’s consideration of transformational legislation that will support industrial development – especially a project that he said affirms that passage of BIC-supported policies is having a positive effect on the state’s economy. He also said he is interested in how the state funds higher education.

Delegate Adam Burkhammer of Lewis County said he has operated a business for 12 years, and state regulations are complex and difficult to navigate. “I feel I’m constantly hit with something new,” he said. “I want to deregulate. We need to remove those hurdles.”

West Virginia officials announced Wednesday that GreenPower Motor Co. Inc. has agreed to manufacture zero-emission, all-electric school buses in South Charleston. Read more here.

They said the company signed an agreement with the state to lease/purchase a 9.5-acre manufacturing facility, including an 80,000-square-foot building, where the company will produce the school buses.

While most lawmakers saw a payoff from the incentives, others said they were concerned about trade-offs or how quickly the package was considered.

The Senate approved the first three judges to the new intermediate court.

The Joint Committee on Health held a lengthy meeting on Tuesday during the January interim session and discussed involuntary mental hygiene commitments and other health care situations.

Rodney Miller, Executive Director of the West Virginia Sheriffs’ Association and a former Boone County sheriff, discussed the role of sheriffs in involuntary commitments and the complex problems they are facing.

“What is in the books versus what actually happens is very problematic,” Miller, a former state delegate, said in his opening remarks. He provided a handout to the committee that outlined the sheriffs’ process from the time an individual is picked up through screening and finding a facility.

From beginning to end, the statewide average time from custody to facility is 14 hours, and Miller emphasized that sheriffs’ departments have custody of the individuals the entire time.

“Sheriffs do not have the training for these people, but we must hold them until all steps are completed,” Miller said, noting that no other law enforcement agency is authorized by statute to handle mental hygiene commitments.

Miller asked the committee, “The big question is, if it’s a family member and you are at the end of your ability to care for them, how would you want them cared for?”

Custody is in effect arrest, he said, and deputies hold individuals against their will by court order, sometimes handcuffed and/or shackled or possibly locked in a room while awaiting placement in a facility.

“Officers are untrained, uncertified, and unskilled to handle this psychological emergency,” he said.

Miller introduced Cabell County Sheriff Chuck Zerkle and Marion County Sheriff Jim Riffle, President of the West Virginia Sheriffs’ Association, and noted that Cabell County has the best resources to handle mental hygiene situations, but it still reports a 10-hour average.

Citing West Virginia Supreme Court statistics, Miller said the average mental hygiene filings per year statewide for the past 10 years is 8,024. The Sheriffs’ Association recognized several specific problems, including:

·    A sheriff or deputy should not be the person responsible for contacting a state hospital to check on bed availability.

·    Providers of screening services and mental hygiene commissioners are often not available until after business hours.

·    No single streamlined system is working uniformly in the counties; some are worse than others, he said.

Miller suggested Florida’s Baker Act as a solution. Facilities there are designated as receiving sites for law enforcement. He suggested West Virginia could have regional sites to accept commitments.

“We think people need to be treated better,” Miller said. “We think the system needs to be better.”

Michael Folio, Counsel from the DHHR Office of General Counsel, told the committee he has participated in multiple work groups to address the involuntary commitment situation and propose draft legislation.

Folio explained that hospitals are prohibited from using any law enforcement tactics, and that most states use the sheriff’s office for transport. He suggested helping sheriffs by adding more mental hygiene commissioners. He noted that 10 counties generate the bulk of cases.

“Have more resources and availability in those counties,” he suggested.

Folio said three pieces of information are needed at state hospitals to help streamline the process. That approach is included in the draft legislation: an application for involuntary commitment, certification for involuntary commitment, and medical clearance.

He also suggested that data collected with the Supreme Court could identify “hot spots” and problematic areas.

“People are being committed who shouldn’t be and are not being committed who should be,” Folio said.

In summary, the draft legislation provides for accelerated time frames and requires communication and coordination.

Former Senator Mark Drennan, CEO of the West Virginia Behavioral Healthcare Providers Association, emphasized that the medical clearance piece of commitment needs to be streamlined to reduce time.

Jim Kauffman, CEO of the West Virginia Hospital Association, told the Joint Committee on Health on Tuesday that the Covid pandemic has exacerbated existing staffing challenges.

He told the committee that hospitals, with 6,600 licensed beds, employ 49,000 people in West Virginia.

“The challenge is staffing the beds,” he said, noting that 500 staffed beds have been lost during the past year as the result of employee retirements, illnesses, and other reasons. An aging population and aging health care workforce has made staffing a nationwide problem, not just in nursing but across the board in health care. Covid remains a factor, he said. Models show that more than 1,000 patients will be admitted in West Virginia for Covid just this month.

“How do we keep health care professionals in the state?” he asked the committee.

He said hospitals also face fiscal challenge: 75% of patients are covered by Medicare, Medicaid, or PEIA, and all three reimburse below the cost of care.

Kauffman thanked Gov. Jim Justice for the Saving Our Care initiative that provides $58 million for overtime, retention bonuses, assistance for frontline care workers, and for the nursing workforce expansion program. The new workforce initiative is designed to increase nurses by 2,200 during the next four years and help retain existing nurses.

The West Virginia Legislature’s Joint Rulemaking & Review Committee on Sunday discussed two rules proposed for legislative approval. They were:

Local Government: The sunset date for a county commission or municipal body to meet as a levying body was extended five years to August 2027. The extension would allow levying bodies to meet without the Legislature passing a bill, or, as Delegate Larry L. Rowe described it, without asking “Mother, may I?”

Oil & Gas Valuation/Property Taxes: A bill passed in the 2021 legislative session requires a rule change by the State Tax Department for the valuation of producing and reserve oil, natural gas liquids, and natural gas for the purpose of property taxation. Counsel described the rule as being a much broader application of expenses incurred (operating costs) that can be deducted from gross receipts to arrive at a true and actual value as constitutionally required. Counsel also said the yield capitalization methodology is very different.

Reasonable and actual annual operating costs were described as the standard and, if determined by the tax commissioner not to be reasonable or actual, the Tax Department could replace it with industry averages. The proposed rules received many comments, both pro and con, with counties concerned about revenue decreases and producers concerned about tax increases. Counsel said one of the main concerns from producers was use of the word “reasonable.”

Steve Stockton spoke for the State Tax Department, explaining that property taxes are unique because of deadlines and that time is limited to contact each individual taxpayer if a filing is incomplete or unreasonable, allowing industry averages to be used.

“The rule is designed to reach true and actual value,” he said.

Delegate Brandon Steele argued that the authorizing statute does not use the word “reasonable” and that the rule does not stay within the scope of the statute.

Industry spokesperson Phil Reale agreed, saying, “The law in place is designed to assume that everything will be reported correctly.”

Jonathan Adler, Executive Director of the West Virginian Association of Counties, said counties had not been part of the promulgation process for the emergency rule and there was confusion about its impact.

Following about 90 minutes of discussion, a motion was made to “not approve” the rule. The Tax Department has to have a rule in place to implement the 2021 statute. The proposed rule will remain as an emergency rule because there is not time to propose another rule and meet the statutory deadlines.

After clearing up some confusion about how to vote to “not approve,” which would actually be a “yes” vote, the motion passed, and the proposed rule will remain active as an emergency rule for the purpose of tax filings until a new rule is proposed and passed.

Pamela Woodman-Kaehler, Foster Care Ombudsman, provided the Joint Committee on Children & Families on Sunday a detailed report on the function of her office, sample statistics, and the office’s key legislative priorities.

Because of its role as a problem solver and risk mitigator, the Ombudsman Office must be independent, she said. The office, she continued, has had 826 complaints to date, with 93 of them regarding guardians ad litem.

Woodman-Kaehler said the Ombudsman Office is mandated to provide recommendations and legislative advocacy but not necessarily in agreement with DHHR.

Proposed legislation includes:

(1) 48-9-102 and 48-1-105 provide a framework for establishing the best interests of a child, but those need to be categorized.

(2) Required thorough review when children die or nearly die.

(3) Improvements in the ombudsman statute, chapter 48, article 9, that have been recognized since its inception a few years ago, such as jurisdiction over more than just foster children, exemption from providing testimony in court, and striking disclosure of names of those who provide complaints.

(4) A needs assessment for guardians ad litem and removal of barriers to guardians ad litem.

(5) Address barriers to having regular and properly attended multi-disciplinary team meetings.

(6) Develop a child welfare matrix or dashboard with state and federal statistics.

In response to a question about complaints, the ombudsman responded, “There is good law, and there is good policy about steps that CPS workers take.”

While the underlying law and policies are clear, she said staffing and vacancies are a consistent problem.

Marissa Sanders, Director of WV Foster, Adoptive and Kinship Network, said communication in the system is the top challenge.

“Families are sometimes not included in decision-making, and this leads to misunderstandings,” she said.

She echoed many of the ombudsman’s recommendations, including the need for a data dashboard and the need to better define the best interests of the child. She said many states have very consistent information reported through data dashboards while much of West Virginia’s information is shared only internally.

Sanders recommended software that is available to help with tracking foster families and determining how many are needed. For example, she said, mapping software used in other states can help keep a child close to home or in the same school and shows the concentration around the state of foster families and foster placements.

Jeffrey Pack, Commissioner of the DHHR Bureau for Children and Families, presented a comparison study of salaries of West Virginia CPS workers with surrounding states. The data compiled by WVU show that West Virginia had the lowest starting compensation for CPS workers except Pennsylvania, and West Virginia is below all surrounding states in top supervisory salaries.

Delegate Kayla Kessinger of Fayette County asked Pack to describe some wins his bureau has had. He used Fayette County as an example, citing a 50% improvement in response to complaints and a Christmas party for foster children provided by staff in Raleigh County. It included providing Christmas trees and hot meals for the families.

Associate General Counsel Cammie Chapman briefly discussed grandparents’ rights. She said 49-4-601a expresses a preference for kinship that includes grandparents, and 49-4-114(3) states a preference that adoptive placement be with a grandparent. The “polar stars” of these decisions are in the best interests of the child and the parent/child relationship, but Chapman explained that visitation rights by grandparents are terminated in cases where a child is adopted by a non-relative.

During the course of the two-hour meeting, Senator Eric Tarr asked presenters if they received support from the DHHR Cabinet Secretary and requested that he be present for meetings to answer questions.

Citizens’ confidence in elections is critical

By Mac Warner

West Virginia Secretary of State

Restoring confidence in our government begins with confidence in our elections. Election confidence has two main components: transparency and process.

Much of the recent focus has been on transparency over matters such as vote totals and legal challenges not heard by our courts. Some people point to recounts and certified results as evidence of transparency. Other people challenge cardboard-covered windows at election centers, videos of ballot boxes pulled from under tables late on election night, and mid-election rule changes as bases for their “fraud” conclusions.

No matter how many times votes are counted and recounted, if ballots didn’t enter the system properly in the first place, and witnesses are prohibited from observing the process, citizens’ confidence in elections will remain justifiably shaken. And when courts — where evidence is brought to light and disputes should be settled — refuse to take cases, confidence will not be restored.

As greater transparency should promote confidence, states must focus on how each ballot enters the system through the election process. The profit-driven media has polarized the American people into thinking there are only two options: either there was no evidence of widespread voter fraud, and certainly not enough to overturn the election, or the election was stolen and citizens must unite to “stop the steal.”

In reality, there is a third alternative centered on the election process itself. So important is process that our Constitution holds it instrumental to fundamental fairness in both the Fifth and Fourteenth amendments. American law guarantees legal process rights, such as the rights to remain silent, to a jury, to legal representation, and to confront accusers.

Similarly, election process provides for voter registration, verification of eligibility, ballot submission, ballot tallying, audits, and certification. The details for casting ballots and questioning results are left up to each individual state legislature by Article 1, Section 4 of the U.S. Constitution.

If any election process adopted by a state is not followed, then citizens have a right to address their concerns in a court of law. The mantra of “nothing to see here, move on” or “there was no evidence of widespread fraud” simply adds to the concern as people wonder, “What are they hiding? Why are they afraid to expose what really happened?” Federal law mandates election ballots be retained for 22 months following an election for the very purpose of being able to verify results should issues arise.

Yet, both sides have added to the uncertainty. One side claims victory, shuns the questioning of changes in the process, and now wants Congress to federalize those irregularities spawned by the pandemic in the 2020 election. The other side claims all irregularities amount to fraud. Our country needs to focus on reducing tensions and increasing trust. The path forward is for states, individually, to exercise their Constitutional authority by addressing the irregularities that occurred in 2020 and determine through the legislative process what is proper for future elections in their state.

Individual state legislatures are the proper place for this analysis to occur, not via the federal government through massive omnibus bills like “For the People’s Act” and “Freedom to Vote Act.” While the two bills were purposely labeled to mislead the American public, both failed. Any future version of such federal bills should similarly be defeated.

The real issue to be resolved is assessing how votes get into the system. In the proper setting it can be determined whether the means by which the votes entered the system were valid, and if such measures should be permitted in the future. Looking back, for example, contrary to their individual state laws was it proper for Pennsylvania to accept ballots three days after the election or for Michigan to accept absentee ballots without signatures and incomplete addresses?

These irregularities, and those in other states, should be addressed by the respective state legislatures in guiding future elections. Knowing what actually happened and exposing such to daylight would be the best disinfectant and the best method to guide future elections. But we will not know if we do not ask and look.

Recognizing that process matters and vigorously following established election laws is the best way to restore confidence in our elections and in our government — not through Congress but through states’ rights granted by our Constitution.

Since January 2017, Mac Warner has served as West Virginia’s 30th Secretary of State. He is a graduate of the U.S. Military Academy at West Point and the West Virginia University College of Law.

The 2022 legislative session: Jan. 12 – March 12.

Click here for full calendar.

Hartman Harman Cosco, Public Policy Strategists, LLC, (H2C) is a strategically assembled bipartisan lobbying firm comprised of legal, communications and policy professionals. H2C possesses the insight and intuition that only comes from decades of hands on experience leading community and statewide initiatives.