From The Well

Day 47


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.



Domestic Violence



Bill clarifies use of deferred prosecution


The Senate Judiciary Committee on Friday considered Originating Bill Number 2, which relates to pretrial diversion and deferred adjudication.


The bill would amend current law on pre-trial diversions and deferred adjudications to restrict their use in cases of domestic violence. The changes are necessary to ensure the state continues to be eligible for federal Violence Against Women Act (VAWA) grant funds.


Grants of about $5 million fund various domestic violence services, advocates, and even prosecutors.


Joyce Yedlosky, Co-Director of the West Virginia Coalition Against Domestic Violence (WVCDV), explained the changes to current law were intended to decrease the opportunity for the law to be used in ways that compromise victim safety. She also indicated that the federal grant funds are threatened when offenders are permitted to defer their prosecutions for serious acts of domestic violence, particularly given evidence that when domestic violence is not treated seriously it often escalates.


Monongalia County Prosecuting Attorney Peri DeChristopher testified about need for restricting the use of pretrial diversions and deferred adjudications to ensure compliance with grant conditions necessary for the continued receipt of VAWA grants.


After significant discussion on the impact of the amendments to the current law, most of which were initiated by Senator Robert Karnes of Randolph County, the Committee adopted the Originating Bill and recommended it to the full Senate for passage. The bill will be given a bill number when it is received on the floor.


Also on Friday, staff for the Senate Judiciary Committee suggested Committee Substitute for SB413, which simply clarifies that the law provides for two different crimes — stalking and harassment.


The Committee adopted the Committee Substitute and recommended it to the full Senate for passage.



Suicide Hotline



988 legislation advanced to full Senate


Senator Ryan Weld of Brooke County said he is hopeful a bill will pass and allow the state’s 988 suicide hotline to function fully.


Senator Weld told WTRF-TV in Wheeling that SB181 passed out of the Finance Committee on Friday, and it’s scheduled for a first reading in the Senate on Monday, with passage expected on Wednesday. From there, it would move to the House of Delegates.


Bill proponents said the three-digit number is easy to remember and may mean a higher number of calls. The bill would support a West Virginia call center that is tasked with handling the calls.


“That is the most important thing that this bill does, is that it ensures that calls from West Virginia continue to go to a call center in West Virginia that is staffed by people who live and work here because they will have relationships with mental health provider,” Senator Weld said.


Click here to read more from WTRF-TV.



Organ Donations



Legislation advances to full Senate


The Senate Judiciary Committee on Friday took up a staff-suggested Committee Substitute for Committee Substitute for SB647, which prohibits discrimination in the organ-donation process.


The Senate Committee on Health and Human Resources recently recommended the Committee Substitute for SB647. Rules of the Senate permit a Committee of second reference to offer a Substitute Bill when a first-referenced Committee adopts a Committee Substitute. The House of Delegate permits only one Committee Substitute.


The Committee adopted a Committee Substitute that made only non-substantive changes to the Health Committee Substitute. The bill will now go to the full Senate with a recommendation that it pass.



Alcohol Sales



Committee passes bill to alter retail markup


During Thursday’s Senate Judiciary Committee meeting, SB659 (relating to nonintoxicating beer, wine, liquor licenses, and requirements) was tabled after a long discussion and the eventual defeat of a staff-suggested Committee Substitute.


Senator Ryan Weld’s motion to take the bill “off the table” was adopted, meaning the bill was back before the Committee Friday for deliberations. At that point, a new staff-suggested Committee Substitute was placed before the Committee.


The new Committee Substitute was substantially similar to the one considered during the previous meeting with two differences.


First, the prohibition on the sale of alcohol within 300 feet of a school or church was reduced to 200 feet with a provision allowing a church to waive the prohibition.


Second, the minimum retail markup provision, which was debated Thursday, was increased from 110% to 112.5%. The Committee Substitute before the Committee Thursday would have increased the minimum markup to 115%.


Senator Michael J. Romano of Harrison County moved to amend the proposed Committee Substitute to increase the minimum markup from the proposed 112.5% to 115%. In response, Senator Robert Karnes of Randolph County moved to amend Senator Romano’s amendment to restore the minimum markup to the current 110%.


The Karnes amendment to the Romano amendment was rejected 10-6.


The Committee adopted the Romano amendment to increase in the minimum markup to 115%.


The Committee adopted the staff-suggested Committee Substitute, as amended, by a voice vote. It then agreed to recommend the Committee Substitute to the full Senate with a recommendation that it be enacted.


The House of Delegates Government Organization Committee originated and passed a bill similar to SB659.






Committee OKs bill limiting special elections


After a few questions on Friday, Committee Substitute for HB4353, relating to on-cycle elections, passed the House Judiciary Committee.


Counsel explained HB4353 is a very lengthy bill because, “We have a lot of unusual elections.”


The bill, for the most part, eliminates all special elections except for municipalities that have a charter. Counsel clarified that most municipalities do have a charter. If the bill becomes law, most ballot issues will be on the regular primary or general ballot.



Bill bans mass mailing of absentee ballots


The House Judiciary Committee on Friday passed Committee Substitute for HB4293, which would prohibit mass mailing or any mailing of absentee ballot applications without a specific request.


The revised bill, as presented to the committee, took out all felonious penalties and made it a misdemeanor if an election official knowingly and willingly sent out an unrequested application.


For a member of the general public, it would be a misdemeanor to mail out 10 or more unrequested applications.


Delegate Mike Pushkin of Kanawha County asked about the entrapment issue for the election official, but Counsel thought that “knowingly and willfully” would account for that.


Donald Kersey, General Counsel to the Secretary of State, said the only problem his office has seen is nonuniformity in mailings, noting that two counties sent applications to all registered voters in the 2020 general election.


Some Delegates expressed concern about people being assisted in nursing homes to request an application. Delegate Larry Pack of Kanawha County, who owns nursing homes, said assistance in nursing homes could run afoul of this law.


Speaking against the bill, Delegate Pushkin said, “Someone could mail me an application to Harvard, but I don’t think anyone here thinks I’ll be accepted. I’m voting against an unnecessary bill.”



Health and Human Resources



Committee extends time to split department


The full House of Delegates will consider dividing the Department of Health and Human Resources in two.


The House Finance Committee on Friday afternoon advanced HB4020, providing a year longer to complete the reorganization than a previous version. In this case, the transition into the Department of Health and the Department of Human Resources would be finalized by July 2023.


DHHR Secretary Bill Crouch spoke before the committee, warning that some financial issues might not be easy to resolve if the agency splits in half.


Click here to read more from MetroNews.



Public Education



Senate tackles controls of state School Board


After HJR102 passed the West Virginia House, Senators on Friday discussed the legislation, which would allow West Virginia lawmakers to approve, amend, or reject policies made by the state Board of Education.


Senator Patricia Rucker of Jefferson County is leading the push in the Senate.


“If there is something in a state Board rule that we disagree with, or goes contrary to what we passed in legislation, we can’t clarify it,” Senator Rucker said. “All this does it put them under the same purview and ability as we do with everything else. It is usually a simple review, and most things go by without any questions.”


Click here to read more from WCHS-TV.



Anti-Stereotyping Act



Lawmakers place legislation in study status


West Virginia’s Anti-Stereotyping Act — HB4011 — is now a study resolution.


Up against a deadline for committees to pass bills, the House Judiciary Committee on Friday considered legislation all day. HB4011 was listed next on the committee’s agenda at 7 p.m., when Chairman Moore Capito of Kanawha County announced time had run out.


Delegates voted to make the policy a study resolution instead, meaning they may give the bill considerable thought during the coming year.


Click here to read more from WVMetronews.






Compromise reached on tax valuations


Members of a West Virginia House of House Finance Committee approved a compromise bill to address county natural gas property tax assessments, though one Northern Panhandle lawmaker remained unconvinced.


The Committee on Friday passed HB4336, which provides for the valuation of natural resources property. The only no vote heard came from Delegate Dave Pethel of Wetzel County.


HB4336 would provide a revised and more specific methodology to the State Tax Department for valuing property that produces oil, natural gas, and natural gas liquids for property tax assessments.


Click here to read more from the Weirton Daily Times.



Term Limits



Bill proposes constitutional amendment vote


Described as a “perennial favorite” by Committee Counsel, the House Judiciary Committee once again passed a constitutional amendment proposal on Friday to limit the terms of office for the State Board of Public Works (Secretary of State, Auditor, Attorney General, Treasurer, and Commissioner of Agriculture) to three consecutive terms.


HJR104 — Providing Term Limits for certain Constitutional Officers — would be on the November 2022 ballot if it becomes law.


Delegate Joey Garcia of Marion County offered an amendment that the committee passed last year that would make the constitutional amendment effective from passage, which would affect the Attorney General, who would have served three terms.


Delegate Garcia stressed that it was hypocritical not to pass it again this year, pointing out that by the time it would take effect, the Attorney General could have served a total of 24 years.


Delegate Mike Pushkin of Kanawha County added his support, saying, “If this isn’t adopted, then you don’t really have term limits.”


The amendment to the proposed constitutional amendment failed this year, 17-7.



Claims Against State



Bill would require response to claimant


The House Judiciary Committee on Friday considered Committee Substitute for HB4629, which would require the Attorney General or chief officer of a subject government agency to issue a response to a potential claimant within 60 days of receipt of the notice to file suit, to toll the statute of limitations during pre-suit negotiations for actions against the state, afford a 90-day time limit to file suit absent pretrial negotiations, and dismiss claims absent suit filed within the 90 days.


There was discussion that this countered another state policy, which is to allow minors to reach age 18 so they can make a claim against the state. Because of several proposed amendments, the bill was delayed until the afternoon meeting. The bill received very little discussion when members met again and passed it.






Bill helps define meaning of ‘livestock’


The House Judiciary on Friday wrestled with the meaning of the word “livestock” while discussing HB4050, which defines livestock as an animal of the bovine, equine, porcine, ovine, or caprine species, domestic poultry, peafowl, guineafowl, and emu.


Counsel was asked by various Delegates, “Does this include rabbits? Alpacas? Llamas?”


Counsel said he wasn’t sure whether any of those animals fell under the definition. The Committee took a short break and learned rabbits are part of the Leporidae family, and alpacas and llamas are part of the Camelid family. Those terms were amended into the bill, and the amendment passed.


Chairman Moore Capito of Kanawha County noted members learn something every day on the Committee.



Missing Persons



Bill broadens guidelines to police response


The House Judiciary Committee on Friday originated and passed a bill relating to missing persons.


If a missing person complaint is filed for a person 75 years or older, the bill defines it as a high-risk investigation. Upon receipt of missing-person information, the State Police may monitor or supervise the investigation.


Tracy White provided testimony for the bill, stating that she became involved “in honor of my Aunt Brenda.” Brenda Curry was 81, according to media reports.


She told the committee her aunt and cousin traveled from Cross Lanes to Ritchie County on a Friday but never made it to their destination. A helicopter search Saturday morning was unsuccessful. She emphasized that was the last official action taken.


Family and friends organized a manhunt and tried to find businesses with video. Four days later, the missing persons were found in a location known as a place where people frequently wreck.


“My aunt died on Monday on that hillside and laid there for two days,” Ms. White said.

Her cousin survived but had to fight off animals from her mother’s body.


“Many things could have been done that weren’t,” concluded Ms. White.



Air Safety



Panel OKs bill to ban pilots from alcohol use


The House Judiciary Committee on Friday originated and passed a bill creating a new article that would forbid a person from operating an aircraft while under the influence of alcohol or controlled substances.


Counsel explained the provisions were very similar to driving a motor vehicle under the influence.


Asked how air traffic is policed, Committee Counsel said, “This isn’t like the movie ‘Dragnet,’ where the cop pulls over Dan Akroyd in a plane.”


Delegate Ken Reed, a pilot, said the FAA does undercover random ramp checks at airports and that pilots can lose their pilot’s license for flying under the influence.



Online Marketplace



Regulatory bill doesn’t clear committee


The House Judiciary Committee had a long discussion Friday on HB2908, which relates to the disclosure of information by online marketplaces to inform consumers. Ultimately, the Committee rejected the bill.


A public hearing on the subject is scheduled for 9:30 a.m. Monday, Feb. 28., in the House chamber.


Committee Counsel began discussion by reviewing the definitions as an important part of the bill. A high-volume third-party seller is a participant in an online marketplace who is a third-party seller and in a 12-month period has 200 or more sales of new or unused consumer products resulting in $5,000 or more in gross revenues. (As per the definition, it must be 200 or more sales and a total of $5,000 or more, Counsel emphasized).


The term “online marketplace” means any electronically based or accessed platform that includes features that allow or enable third-party sellers to engage in the sale, purchase, payment, storage, shipping, or delivery of a consumer product in the United States and host one or more third-party sellers. Counsel gave examples of Amazon, E-bay, and Walmart.


Once a seller reaches the benchmarks of 200 sales and $5,000, sellers must provide information to the online marketplaces that have the burden of verifying the information. The information must be provided within 24 hours of reaching the criteria in the definition. The Attorney General is charged with enforcement of the act.


Conrad Lucas, speaking on behalf of Walgreens, spoke in favor of the bill. He said the issue being addressed is organized retail crime. He provided an example of a Cross Lanes man who stole about $400,000 in area stores and sold the items on E-bay. A brand exclusive to Walgreens that it does not sell online, Boots #7, can be found on Amazon, which means it’s stolen, Lucas said.


Phil Reale, representing Amazon, spoke against the bill, saying that 4,800 small West Virginia businesses would reach the threshold of 200 sales/$5,000 and be shut down if they don’t provide the required information within 24 hours.


“In every one of your districts, you have more than one online seller,” Reale told Committee members. He said federal law addressing the issue nationally should be completed this year.


Herb Sheldon, Kroger regional organized retail crime investigator, said his company is soliciting the help of “boosters” to help with investigations. Boosters are people who steal for financial gain to feed their drug habit. He gave an example that Kroger-brand electric toothbrushes will show up on E-bay, but a Google search of the seller’s address shows nothing there.


Several delegates explained why they would vote against the bill, including waiting to see the federal legislation The bill failed 13-9.



Life Insurance



Bill bars creditors from claiming proceeds


The House Judiciary Committee Counsel on Friday described an Originating Bill that has gone through many iterations to exclude proceeds from life insurance policies from creditors in a bankruptcy proceeding.


The new bill allows a debtor in bankruptcy to exclude up to $100,000 from a life insurance policy and annuities. Life insurance payable to the dependents and not the debtor is also excluded. After much discussion in previous committee meetings and in subcommittee, the bill passed with no discussion.



Distracted Driving



House passes bill to toughen penalties


The House Judiciary Committee on Friday passed Committee Substitute for HB4066 , the Distracted Driving Act, which increases the scope of prohibitions on distracted driving by prohibiting the use of a stand-alone electronic device or telecommunications devices unless by first responders or utility services as explicitly permitted under the Act.


The Committee Substitute says violations that cause death can result in a charge of negligent homicide.


Ms. Tara Ames provided emotional testimony to the Committee about her husband’s death while bike-riding. He was hit by a motorist who admitted she was checking the weather on her phone. All of the charges against her were misdemeanor offenses.


“I want to salvage this pain for other families. The phone can wait,” Ms. Ames said, stating there was no accountability in current law.



Local Government



Bill taps Auditor to help in fiscal emergencies


The House Judiciary Committee on Friday quickly dispatched with discussion and passed HB2751, which relates generally to fiscal emergencies of local governments.


The bill establishes a system to remediate emergencies and requires action be taken by the State Auditor, including a fiscal watch review or declaration of a fiscal emergency by the State Auditor The bill also modernizes the process for the dissolution of municipalities.


The bill’s legislative findings state that the State Auditor is directed to:


(1) Take necessary and appropriate actions to limit and restrict the powers of local governments to prevent the abuse of statutory powers;

(2) Require reports and examinations of their financial condition, transactions, operations, and undertakings;

(3) Ensure the fiscal integrity of local governments so that they may provide for the health, safety, and welfare of their citizens; and

(4) Determine if local governments have paid due principal and interest on their debt obligations, meet financial obligations to their employees, vendors and suppliers, and provide for proper financial accounting procedures, budgeting, and taxing practices.



Legislative Update



House of Delegates touts job-creation efforts


The West Virginia House of Delegates on Friday said it has passed legislation this session that offers targeted tax credits for specific industries and would allow the state to create jobs for a new economy.


In addition, it said in a news release that the House strengthened the state’s regulations on broadband connectivity. The full House passed HB4001 on Friday to create a process for mapping rights-of-way and potential obstructions, create rights-of-way for utility poles, strengthen customer protections, and define eligible carriers.


“This would provide the state of West Virginia the opportunity to hold those providers accountable,” said Delegate Daniel Linville of Cabell County, lead sponsor of HB4001. “While we trust, we would hope to verify. If folks know someone will be watching, I hope that they would carry out the intent of the Legislature and the intent of Congress correctly.”


House Bill 4025, which would provide a severance tax exemption of up to five years for the extraction, production, and sale of rare earth elements and other critical materials as an economic development incentive, passed the full House 94-4 on Friday, Feb. 25.


Early in the week, Delegates voted to bring back the film tax credit. Championed by Delegate Dianna Graves of Kanawha County, HB2096 would restore the film investment tax credit, which the Legislature first created in 2007. It was repealed in 2018 after a legislative auditor’s report recommended eliminating the tax credits. The bill now goes to the West Virginia Senate for debate.


“For too many years now, West Virginia has been the only state in our region without this film credit,” Delegate Graves said. “That effectively meant Netflix, Hulu, Amazon and every other content producer out there had reasons to go to any state other than West Virginia to film their projects.”


Delegates approved HB4344 last week with only one vote against it. The measure would increase the salary ranges for the state’s Child Protective Services workers by 15% and would require the West Virginia Department of Health and Human Resources to work with child-placement agencies to create a program that ensures kinship families are able to participate in the foster-care process. The bill also requires the West Virginia Bureau for Children and Families to complete a study of centralized intake by January 2023 and create a dashboard to be incorporated in the Bureau’s existing data system.


Delegate Matthew Rohrbach of Cabell County, chairman of the House Health and Human Resources Committee, was lead sponsor of HB4344. Chairman Rohrbach described the state’s foster care crisis as an issue the entire Legislature has taken seriously, calling this bill “another very good product to move the ball forward.”



Bills passing both houses listed here


Below are bills that passed both houses of the Legislature through Thursday, Feb. 24. The list also notes whether the Governor has signed the bill.


SB 4: Repealing ban on construction of nuclear power plants (Signed, 02-08)

SB 8: Relating generally to state’s savings and investment programs (Signed, 02-02)

SB 191: Allowing poll workers to work full and half days (Signed, 02-02)

SB 244: Relating to appointment of judges to Intermediate Court of Appeals (Signed, 02-09)

SB 279: Authorizing DEP to promulgate legislative rules (Signed, 02-21)

SB 435: Awarding service weapon to retiree from Division of Protective Services (Signed, 02-16)

SB 436: Correcting code citation for authority of State Fire Marshal (Signed, 02-18)

SB 437: Providing for early discharge of parolees (Signed, 02-16)

SB 445: Modifying police and firemen’s pension plans for trustees (Completed; awaiting action by Governor)

SB 449: Relating to Nonviolent Offense Parole Program (Signed, 02-16)

SB 450: Updating definitions of WV Personal Income Tax Act (Signed, 02-21)

SB 451: Updating definitions of WV Corporation Net Income Tax Act (Signed, 02-21)

HB 2325: Removing the requirement of continuing education for barbers and cosmetologists (Signed, 02-21)

HB 3312: Establishing a memorial to child labor and child workers who died in the course of employment in this state (Completed; awaiting action by Governor)

HB 3220: Restrictions on Taxpayer funded lobbying (Completed; awaiting action by Governor)

HB 4024: Creating a cosmetology apprentice program that allows companies to train employees for practical real-world experience (Signed, 02-23)

HB 4048: WV Keep, Bear and Drive with Arms Act (Completed; pending action by Governor)

HB 4060: Repealing outdated sections of code relating to health (Completed; awaiting action by Governor)

HB 4062: Removing the residency requirement for the Commissioner of the Division of Highways (Signed, 02-21)

HB 4067: To make certain agency reports electronic or eliminating certain agency reports altogether (Signed, 02-23)

HB 4074: Require schools provide eating disorder and self-harm training for teacher and students (Signed, 02-21)

HB 4114: Authorizing certain agencies of the Department of Administration to promulgate legislative rules (Completed; awaiting action by Governor)

HB 4264: Change designation of Glenville State College to “Glenville State University” (Signed, 02-23)

HB 4276: WVU to create a Parkinson’s disease registry (Signed, 02-23)

HB 4299: To prohibit the intentional interference with election processes and creating associated criminal penalties (Completed; awaiting action by Governor)

HB 4301: Reforming membership requirements of Huntington Park and Recreation District Board (Signed, 02-16)

HB 4308: Authorizing disclosure of juvenile information to Crime Victims Compensation Fund for investigation and award of benefits (Completed; awaiting action by Governor)

HB 4312: Extending the option of electronic absentee ballot transmission to first responders in certain emergency circumstances (Completed; awaiting action by Governor)

HB 4369: Update the telepsychology compact (Completed; awaiting action by Governor)



Footnote for Readers



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Some information in this update is collected from the WV Legislature’s Daily/Weekly Blogs.


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.






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