From the Well | Day 48

Day 48

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.

The House Judiciary Committee hosted a public hearing Monday morning to allow people, mostly parents and representatives from religious organizations, to provide input on HB4753, which is on third reading in the House of Delegates.

The bill would prohibit locating certain homeless facilities near schools and certain day-care centers. The bill prohibits municipalities, governing bodies of a municipality, or agencies of a municipality from authorizing or permitting homeless encampments within 1,000 feet of a school or licensed child-care center.

As many as 20 people provided testimony during the morning hearing.

Jeff Allen, Executive Director of the West Virginia Council of Churches, asked Committee members why snake-handling is legal. He went on to explain that it’s a practice of faith and the state guarantees the right of people to handle snakes during worship no matter if it’s 100 or 1,000 feet from a school.

Tiffany McMillion, formerly homeless, said a bill such as HB4753 could separate families. Because of overcrowding in West Virginia jails, she said, the bill potentially could do more harm than good. McMillion conveyed to members that she slept near schools when she was homeless because it was a safer place to be.

On the opposing side, Dr. Danielle Wade of Charleston, who attended Sacred Heart Grade School in Charleston and whose children now attend Sacred Heart, told committee members her children were stressed.

“When it involves the safety of my children, you’ve crossed the line,” Dr. Wade said.

HB4753 is set to pass the full House tomorrow. It will then cross over to the Senate for deliberation.

The Senate Government Organization Committee on Monday considered SB632, which moves the state Office of Emergency Medical Services (OEMS) from the control of the Department of Health and Human Resources and places under the control of the Department of Homeland Security.

The bill calls for the physical office and staff to remain with DHHR, but it no longer will answer to the Secretary of the DHHR. It does not have a Cabinet position.

Under the bill, the Governor will appoint the director of OEMS with the advice and consent of the Senate.

The bill showed no fiscal impact.

After about an hour of vigorous discussion, the House of Delegates passed HB4510, which provides more support for third-graders before they move up to fourth grade.

“This bill has the potential to transform kindergarten through third grade in our state, if implemented,” said House Education Chairman Joe Ellington of Mercer County. “And I repeat, if implemented. If it’s just code, it doesn’t mean anything. But if it’s implemented, it might make a big difference for these kids.”

After the 84-11 vote, the bill now goes to the state Senate.

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The Senate Education Committee on Monday took up a single bill. SB498 would create the Anti-Racism Act of 2022, which would apply to public and charter schools, as well as public institutions of higher learning.

Counsel for the committee explained a proposed Committee Substitute that made mostly non-substantive changes to the bill as it was introduced.

The bill would prohibit the teaching or requiring a statement or affirmation of several concepts, including that one race, ethnic group, or biological sex is inherently, morally, or intellectually superior to another race, ethnic group, or biological sex, and that an individual, by virtue of the individual’s race, ethnicity, or biological sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

During a discussion of the bill, Senator Mike Romano of Harrison expressed concern about a requirement that prohibited instruction that an individual should feel discomfort, guilt, anguish, or any other form of psychological distress because of the individual’s race, ethnicity, or biological sex, or that academic achievement, meritocracy, or traits such as a hard work ethic are racist or sexist or were created by members of a particular race, ethnic group, or biological sex to oppress members of another race, ethnic group, or biological sex.

Senator Romano argued that teaching facts should never subject a teacher to discipline. He expressed support for an amendment to include specific language in the bill to ensure the instruction in historical fact was not prohibited by the legislation.

Other members of the committee, notably Senators Robert Karnes and Eric Tarr indicated that the concepts in the bill that were concepts that should not be taught and expressed support for the proposed bill.The Committee heard from Todd Gaziano, Chief of Legal Policy and Strategic Research at the Pacific Legal Foundation, who expressed support for the proposed legislation and believed it would achieve the purpose of removing divisive concepts from the classroom.

He said the bill could be made better by clarifying that the teaching of historical fact would never subject a teacher to sanction. In short, Mr. Gaziano said he believes there is much to admire within the proposed Committee Substitute, but the Committee might consider including some of the provisions contained in HB4011, which recently was taken up in the House.

When questioned by Senator Romano about the necessity of the legislation, Mr. Gaziano argued the bill is necessary because he is aware of school systems where caustic race-based instruction was part of a curriculum. He specifically referred to a teacher at Wheeling Park High School who taught particular concepts that were racially divisive but was unable to provide any specifics about the alleged instruction.

He also pointed to curriculum in Albemarle County, Virginia, schools that taught white and black people have inherent traits. He alleged that the National Education Association (NEA) has embraced the teaching of divisive racial concepts.

He argued that because the NEA was a union, it might pressure teachers to teach the divisive concepts. Finally, he asserted the Madison, Wisconsin, Metro School District required that white students be instructed that they are privileged and an oppressor by virtue of their race.

The committee also heard from Eli Baumwell with the West Virginia American Civil Liberty Union (ACLU), who indicted his organization’s concern about how the legislation might be used to disrupt the educational process if enacted.

He said he believes the bill is an attack on an effort to teach and understand the impact of structural racism in society. When questioned by Senator Tarr, Mr. Baumwell explained he was specifically concerned about the impact the legislation would have on efforts to provide instruction of implicit bias.

Senator Karnes asked Mr. Baumwell whether he had specific examples of how the legislation might be misused to chill legitimate instruction. Mr. Baumwell was using the example of instruction on racial “redlining” as a way to segregate communities of color when the Chair cut off the discussion to take up amendments.

The Committee Substitute was amended three times, two upon the motion Senator Amy Grady to address questions by Senators, specifically to make the requirements for K-12 schools consistent with institutions of higher learning.

Additionally, Senator Romano successfully amended the bill to ensure that complaints that a teacher is violating the law would first go to the school principal with an appeal to the county superintendent and, finally, if necessary, an appeal to the state superintendent of schools.

The bill would also require schools to report complaints to the state superintended for the purposed of annual reporting to the Legislative Oversight Committee on Education Accountability.

Senators Tarr and Charles Trump spoke in favor of the legislation. Senator Trump noted that prior to Monday’s committee meeting, he was unsure of how he would vote on the proposed legislation. He noted that West Virginia and the nation have a shameful history when it comes to race in particular, but that it should be taught. He noted the West Virginia Constitution required whites and blacks to be taught in separate schools until the Constitution was amended in the 1990s despite the U.S. Supreme Court finding such segregation unconstitutional in 1954.

However, he said he believes the proposed legislation as it has been amended is worthy of his support.

Senator Ron Stollings of Boone County indicated that despite the good work of the Committee, the proposed bill is unnecessary and, worse, is likely to cause a great deal of anxiety among teachers. Consequently, he said he cannot vote for the proposed bill.

Senator Hannah Geffert of Berkeley County said she was concerned the bill doesn’t properly acknowledge the complexity of the issue and is likely to leave teachers in confusion about whether they have the freedom to discuss complex issues, such as race, gender, and sexuality.

The Committee Substitute, as amended, was adopted with a recommendation that it be adopted by the full Senate. The bill will now go to the Senate floor for further consideration.

The Senate Judiciary Committee began its meeting Monday with a lengthy discussion on Committee Substitute for SB422, relating to DNA data maintained for law-enforcement purposes.

Any qualified arrestee who is 18 years of age or older and arrested by an authorized authority shall submit to a DNA sample collection during the intake process.

The primary change is that the DNA sample will be drawn at an arrest rather than a conviction for certain felonies, including burglary, which was added to the Committee Substitute.

Melissa Runyon, Supervisor for Data Base at State Police Forensic Lab, told the Committee that 27 states have arrestee legislation, including Ohio, and the practice has the potential to wrap up cold cases.

Senator David Stover of Wyoming County expressed concerns about a DNA sample being left in data base if a person is acquitted.

The bill allowed for an expungement process, but he explained, “As the Clerk of Court for 16 years, I know how difficult that process is.”

Ms. Runyon responded that lab employees have no way of knowing about acquittals, although she explained there are quality measures in place, and no name is released until various steps are confirmed.

She added the records are in the Combined DNA Index System (CODIS), which is run by the FBI, and there is no personal identification information in CODIS.

Senator Stover said it had a “chilling effect” on him to hold data on people who committed no crime, and he proposed an amendment that would remove information from the data base automatically upon acquittal or dismissal with prejudice.

The amendment was further amended to add that the Circuit Clerk would notify the State Police of acquittals, and then the Circuit Clerk would notify the individual that the expungement had occurred.

“I’ve been handed something illegible,” Chairman Charles Trump said after Committee Counsel put the various conceptual amendments in writing.

After a reading of the combined amendments, Senator Stover said, “I agree with that, although I may hear from Circuit Clerks.”

The bill as amended passed, but it will also be referred to the Finance Committee because it has a $700,000 fiscal note.

The Senate Judiciary Committee had a long discussion Monday on the Committee Substitute for SB671, updating the regulation of car-sharing services in West Virginia. It is a practice known as peer-to-peer car sharing.

The major change in the Committee Substitute that is not in the introduced bill. It is the removal of the ability for airports to regulate car-sharing.

A representative for the Turo Company, a car-sharing company, told the committee it has been working on the bill with national insurance associations. He provided information about the industry in West Virginia, saying it is a relatively small marketplace and the business is still in its infancy in the state.

Chairman Charles Trump of Morgan County said he had envisioned that “mom and pop” could go into business and compete with Avis or Hertz when the initial bill passed a few years ago to authorize car-sharing.

The Turo representative said that is happening in other states.

Senator Mike Romano of Harrison County proposed an amendment regarding insurance coverage, saying it is totally web-based. He said he has concerns about West Virginians having adequate insurance. The amendment was adopted.

He offered another amendment for West Virginians to verify their insurance coverage and not be caught “with their proverbial pants down.” The bill will become a strike-and-insert amendment that Senator Ryan Weld pointed out will also require a title amendment.

“We’ll move a title amendment, as yet unwritten,” responded Chairman Trump.

The bill passed and has been reported to the floor.

On Friday, the Senate Judiciary Committee didn’t complete Committee Substitute for SB434, which would update authority to airports for current operations.

By Monday afternoon, a Committee Substitute for the Committee Substitute for SB434 was presented to the Committee. It adds “existing airport” to the bill’s language.

The bill defines abandoned aircraft and provides for the disposal of abandoned aircraft.

It increases the cost of violations for pedestrian traffic near airports and airport rules and regulations.

The terms “international airport” and “vertiport” are added to certain areas of the code, and additional authority is provided to airports.

Senator Mike Romano of Harrison County said five airports have concerns with management agreements, and he asked to hear from the lead sponsor of the bill, Senator Eric Nelson of Kanawha County.

Nelson assured Senator Romano that airport police would have jurisdiction only on airport property.

Richard Rock, Director of the North Central Regional Airport, told the committee, “We don’t understand all the intents and purposes,” explaining that allowing airports to enter into managerial agreements with airports in non-contiguous counties could result in a “bunch of airports that have very limited service.”

Brent Brown and Clint Ransom, Director and Deputy Director of Huntington Tri-State Airport, respectively, echoed Mr. Rock’s concerns. Mr. Brown asked that they all be allowed to compete for management agreements through the RFP process.

“Regional airport authorities are already allowed to operate in contiguous counties. Adding the ability to work outside those counties adds unnecessary competition,” Mr. Ransom said.

Nick Keller, Director of Yeager Airport, spoke in favor of the legislation.

Senator Romano expressed concern to Mr Keller that the management agreements could be for just about anything involved with managing an airport.

Senator Robert Karnes of Randolph County successfully amended the bill by deleting a portion that could be construed as much broader than intended.

Senator Romano suggested an amendment to alleviate unintended consequences of broad management agreements to several airports around the state.

“If this bill passes as is, it may be the death knell for some of our largest airports,” Senator Romano said.

Senator Ryan Weld of Brooke County countered, saying the Ohio County Airport has benefitted from consulting with Yeager Airport on a voluntary basis.

Senator Mike Woelfel responded, saying, “You’re going to rue the day (if the bill passes). We want local control until we don’t.”

The amendment failed by three votes.

The amended Committee Substitute for the Committee Substitute for SB434 passed 10-7.

Following passage of the bill, Chairman Trump told the committee he admired and applauded their debate and civility in dealing with difficult issues.

Following a lengthy discussion about airports, the Senate Judiciary Committee on Monday quickly passed Committee Substitute for SB697 that would modify and clarify elements of kidnapping and unlawful restraint.

Counsel said the Committee Substitute clearly distinguishes between kidnapping and unlawful restraint, saying the two may conflict with each other under current law.

Chairman Charles Trump asked whether the changes have been run by the Prosecuting Attorneys’ Association.

Counsel responded, “Yes, it’s my understanding they are fine with this version.”

Senator Ryan Weld thanked Counsel Tom Smith for his continued use of the word “inveiglement” in code (a running joke over versions of the bill).

The Senate Judiciary Committee on Monday originated and passed a bill that adds a new section directing the ABCC Commissioner to cease purchasing alcoholic beverages made in Russia.

ABCC is to hold an auction of current stock and give proceeds to a charity that benefits the people of Ukraine The order is in effect for three years or until the Governor lifts it.

ABCC Counsel was asked how much inventory of Russian vodka is currently owned by the state. He responded the agency has 73 cases, but the Governor has issued an executive order directing ABCC to attempt to purchase Ukrainian vodka. The state currently has one case of Ukrainian vodka.

Study Resolution 

The Senate Judiciary Committee passed SCR1, a resolution to study the tolling of the statute of limitations under the West Virginia Consumer Credit Protection Act.

Currently, there is a four-year statute of limitations, but it doesn’t mention any tolling provision or applicability of discovery.

Sex Offender Fee

The Senate Judiciary Committee quickly passed Originating Bill 3 with no questions or discussion. It would increase the sexual offender annual registration fee to $75.

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of the 85th West Virginia Legislature.

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.