From the Well | February 27, 2023

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

Countdown: 12 days to go

February 27, 2023

The bill involves the distribution of certain taxes and surcharges to benefit fire departments and emergency medical services providers. The Committee adopted a Committee Substitute to the Committee Substitute that included provisions of House Bill 3492 and other clarifying language.

Members of the Committee heard from Jill Rice, President of the West Virginia Insurance Federation, who informed the Committee that the insurance industry believes the January 1, 2024, effective date contained in the bill is appropriate. Blair Taylor of the Municipal Pensions Oversight Board confirmed the bill would have no impact on municipal pensions.

Most of the Committee’s questions were for Anthony Woods of the West Virginia Auditor’s Office. The Committee was most interested in the Auditor’s ongoing audits of volunteer fire departments. Several members asked about the potential for VFDs being included in West Virginia Checkbook, which is accessible on the Auditor’s website.

Mr. Woods said VFD participation could happen at any time, but their participation would be challenging because most VFDs do not have the staff to engage in the implementation of the program.

Because of the extensive questions about the impact of the legislation and the potential for amendments to authorize emergency medical service organizations to use the additional funding provided by the bill for salaries, the Committee adopted the Committee Substitute to the Committee Substitute without recommendation.

Because the date on which bills must be out of their chamber of origin is quickly approaching, it appears the maneuver is intended to allow the bill to be read a first time and then recommitted to the Committee for additional deliberation.

Counsel said it was a new version of Committee Substitute for House Bill 3153, which sets forth the distribution of surcharges and taxes to benefit volunteer fire departments and emergency medical services (EMS) providers.

Counsel said the increase remains the same, but the new version distributes funds differently between EMS and fire services.

For EMS, each county is eligible for 1% that is given out as a grant program. Then the six most populated counties are eligible for another 1%. Counties that have a special ambulance fee are eligible for another 1%.

The fire service fee is distributed in the same manner, with all counties getting 1% and the six most populous receiving another 1%. There is also the additional amount for counties as an incentive to have a fire levy or fire fee.

Delegate Clay Riley of Harrison County did the math and noted the last 39% of the money is split evenly among those counties that have a levy or fee. If the fiscal note is correct, he said, each county should get 1% of $12.3 million, or $123,000 each. That would amount to $95,000 for fire and $27,700 for EMS.

Delegate Daniel Linville of Cabell County asked whether private for-profit emergency service entities are eligible and whether they have to be audited. Counsel confirmed their eligibility and that they would be subject to audit.

Erin Hunter, Deputy Insurance Commissioner and General Counsel, told the Committee that the surcharge and tax are collected on all fire and casualty policies and that it applies to every policy sold in the state with the exception of traditional workers’ compensation.

Delegate Larry Rowe of Kanawha County summed up the distribution, stating that the first calculation goes to all counties. Then an additional second amount is distributed to the six counties with the highest population with the remaining third going to counties as encouragement to have a fire fee or fire levy or ambulance fee.

An unusual motion passed to make 5:07 a “hard stop” for questions because the House floor session was scheduled to start at 5:30.

Chairman Vernon Criss of Wood County could not tell whether the bill passed or failed by voice vote. After a division was called, the bill passed with 17 votes.

The Senate Finance Committee introduced the concept and approved the House Bill 2526 at a Saturday afternoon committee meeting that lasted only a few minutes. There was no discussion of an overall revenue impact, although a statement by the Governor characterized it as $750 million.

Later in the afternoon, the full Senate suspended constitutional rules requiring bills to be read three consecutive days and voted 32-1 to pass the tax bill. The only vote against the bill was by Senator Mike Caputo of Marion County.

Click here to read more from WVMetroNews.

In cases where allegations of abuse and neglect are not substantiated, all department records related to the allegation must be expunged one year after the unsubstantiated determination is made unless, during the one-year period, another allegation of child abuse and neglect against the person is substantiated

In cases where an allegation of child abuse and neglect has been substantiated but no petition based upon the allegation is filed with the circuit court or where there is a petition filed and the court does not find that abuse and neglect occurred, all records related to the allegation must expunged from five years after the judicial determination unless, during the five-year period, another allegation of child abuse and neglect is substantiated.

Where an allegation of child abuse and neglect is substantiated and a judicial determination of child abuse and neglect is found, a person found to be neglectful but not abusive may petition the circuit court that found the person to be neglectful to have his or her department record sealed and his or name removed from the central abuse registry after no less than five years have elapsed since the finding of neglect is rendered.

The legislation was drafted with the assistance of the DHHR’s Bureau for Social Services.

Bill creates new criminal offense

The Committee also adopted a Committee Substitute for Senate Bill 540. It created a new criminal offense of willfully urinating or defecating in public. The misdemeanor offense is punishable by up to 90 days in jail or a fine of not more than $500 or both.

Parental-leave pilot program falls short

Finally, the Committee considered Senate Bill 197, which would create a paid parental leave pilot program for full-time permanent state employees.

Currently, state law provides a total of 12 weeks of unpaid family leave following the exhaustion of all of his or her annual and personal leave because of the birth or adoption of a child of the employee or to care for the employee’s son, daughter, spouse, parent, or dependent who has a serious health condition.

Employers subject to the pilot project include any department, division, board, bureau, agency, commission, or other unit of state government. It does not include a county, municipality, or a county board of education.

Under the pilot program, an employee is entitled to a total of 12 weeks of paid leave during any 12-month period to care for and bond after a child’s birth or adoption. The paid leave is in addition to accrued annual or sick leave.

An employee taking leave is entitled to receive a weekly benefit of 90% of his or her average weekly wage up to a maximum of $1,000 per week while on leave pursuant to this section.

After several Senators expressed reservations as a result of the unknown cost of the program, the Committee rejected the bill on a tie vote.

HB3049 prohibits state higher education institutions from establishing or recognizing designated missions of a “Foreign Country of Risk,” which Committee Counsel said the U.S. Department of Energy defines as the People’s Republic of China, Iran, North Korea, and Russia.

If any designated foreign mission of the identified countries is established or recognized by any state institution of higher education, the institution is to implement a plan to ensure the foreign mission “does not remain established at or recognized” after September 15, 2023.

The bill states, in part, the legislation helps thwart foreign governments’ efforts to import “proprietary technology or software, unpublished data and methods, and intellectual property to further the military modernization goals and/or economic goals of a foreign government. Many, but not all, programs aim to incentivize the targeted individual to physically relocate to the foreign state for the above purpose. Some programs allow for or encourage continued employment at U.S. research facilities or receipt of federal research funds while concurrently working at and/or receiving compensation from a foreign institution, and some direct participants not to disclose their participation to U.S. entities. Compensation could take many forms, including cash, research funding, complimentary foreign travel, honorific titles, career advancement opportunities, promised future compensation, or other types of remuneration or consideration, including in-kind compensation.”

The original bill singled out the People’s Republic of China.

The measure cites 22 U.S.C. §4302(a), which states “Designated Foreign Mission” includes references to the “Confucius Institute U.S. Center, the Asia Society Chinese Language Partner Network, and the Center for Language Exchange and Cooperation.”

Delegate Bill Ridenour of Jefferson County told the Committee the Chinese Government is a “major threat to all institutions of higher learning” and that colleges and universities are targeted for espionage, based on his work. Ridenour said he wouldn’t answer questions from Committee members.

Delegate Sean Hornbuckle of Cabell County asked whether the legislation would affect Marshall University’s John Chambers School of Business and Economic programming.

Counsel said no state institution of higher education programs seems to be affected.

HB2992 defines “school bus” to mean “every motor vehicle owned by a public or governmental agency and operated for the transportation of children to or from school under contract with any county board of education.”

The Committee defeated a motion by Committee Minority Vice Chair Hornbuckle to force placement of a bill on its agenda that would have established the beginning salary for teachers at $50,000.

Both HB3049 and HB2992 are on the Frist Reading House Special Calendar.

Click here to read coverage from WVMetroNews.

House Bill 3156 raises compensation rates for panels of attorneys.

For proceedings involving felonies, compensation for representing indigent clients is increased from $3,000 to $4,500. Accordingly, expenses for representing clients charged with felonies would see compensation increased from $1,500 to $2,500. Courts can set higher compensation, based on good cause, in both situations.

Expenses for investigative services is moved from $30 to $40. If a case is dismissed for a not guilty finding for a criminal charge, attorneys will be reimbursed $1,000 for expungement services with a maximum of $500 for expenses unless the court approves higher reimbursements based on good cause.

Lawyers serving as counsel for indigent clients said the bill will address the current practice of asking courts to provide increased compensation.

‘Deliberate Intent’ statute amended

House Bill 3270 amends the Workers Compensation “deliberate intent” statute It says the “maximum amount recoverable as compensatory damages for noneconomic loss may not exceed the higher of two times the economic damages before offset or $500,000 for each person, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees.”

The amount, beginning January 1, 2024, would be subject to Consumer Price Index increases calculated by the U.S. Department of Labor, although the increase couldn’t exceed 150% of the figures HB3270 sets.

Click here to read coverage from WVMetroNews.

Bill mandates liability insurance for child placement

House Bill 3439 requires a child-placing agency to obtain liability insurance in an amount of not less than $1 million per incident insuring the person or entity and every employee against loss from the liability imposed by law for damages arising from any error or omission in the provision of child-placement services.

The bill states child-placing agencies aren’t liable for civil damages or injuries more than the amounts for which the person or entity is insured unless the damages or injuries are intentionally or maliciously inflicted.

Most Committee debate focused on bill language, which says, “Any person or entity who fails to secure a policy of insurance before providing child placement services is not entitled to the limited liability.” An amendment to remove that language was defeated in a 12-7 division vote.

Amendment sponsors argued the language effectively undermined the bill’s intent. Some Delegates argued other laws wouldn’t prohibit litigation against placement agencies, and that courts could grant relief.

Other bills approved include:

·    House Bill 3133 prohibits county commissions from establishing ordinances, rules, regulations, license requirements, or any other authorization of agricultural production operations that “contravene or is stricter than any state law or regulations for the purpose of the establishment, expansion, or continuation of agricultural businesses.” Existing ordinances are considered invalid and unenforceable to the extent they violate bill provisions While Committee debate focused on receipt of federal funds from storms or planning considerations in urban areas, the bill states its provisions don’t apply to federal law.

·    House Bill 3146 seeks uniformity in state laws relating to public meetings during emergencies, such as the COVID pandemic, based on state laws regarding public meetings.

·    House Bill 3354 allows municipalities and county commissions to combine and share services. The bill was amended so municipalities “may only arrest, convict and punish someone if they are in violation of a state law proscribing certain conduct with a firearm.” Moreover, based on another amendment, municipalities couldn’t regulate “combustibles,” including fireworks.

·    House Bill 3360 authorizes the Secretary of the Department of Homeland Security to establish an Office of the Inspector General within Homeland Security to conduct and supervise investigations within Department units. According to Committee testimony, the approach codifies existing practice, ensuring “across agency authority” to conduct investigations, especially in high-profile situations.

·    House Bill 3405 changes protective order extensions to one year except if judicial officials determine a protection order should be for a longer period.

·    House Bill 3480 prohibits credit-reporting agencies receiving consumer financial information, based on a consumer’s line of credit application from financial institutions, from disclosing or selling consumer financial information without the consent of the consumer, except for processing the line=of-credit application. The state Attorney General is responsible for enforcing the act, although a committee amendment gives consumers the ability to bring personal legal action.

·    House Bill 3500 permits regulated consumer lenders to permit employees to conduct certain business at locations other than the licensee’s designated office, although, among other bill provisions, “appropriate safeguards for licensee and consumer data, information, and records, including the use of secure virtual private networks where appropriate are maintained.”

Click here to see a news release from the House of Delegates.

50th Day — March 1: Last day to consider bill on third reading in house of origin. Does not include budget or supplementary appropriation bills.

60th Day — March 11: Adjournment at midnight.