From the Well | February 6, 2024

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86th West Virginia Legislature

State Capitol

February 6, 2024

West Virginia News Headlines

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HEALTH SERVICES: The House Health and Human Resources Committee passed a bill to eliminate the ability of companies to subcontract under the certificate-of-need process.

CHILD WELFARE: The House Health and Human Resources Committee passed legislation to establish a Critical Incident Review Team to review deaths or near deaths of children under sate care>

HOTEL TRAINING: The Senate Government Organization Committee adopted an amended Senate Bill 472 to exclude certain hotels from providing human-awareness training.

HIRING OFFICERS: The House Committee on Veterans Affairs and Homeland Security on Tuesday passed a bill that changes the process of appointing law enforcement officers.

FIRE COMMISSION RULES: The Senate Government Organization Committee adopted Senate Bill 587, which addresses the State Fire Commission’s rules promulgation.

LOCAL ORDINANCES: The Senate Judiciary Committee revisited legislation that is to be construed as “a limitation on the use of local ordinances, regulations or other policies by political subdivisions to regulate labor and employment law in a manner contrary to existing state law or public policy.”

COMMISSION APPOINTMENTS: The Senate Government Organization Committee adopted a bill that amends code relating to filling vacancies on county commissions that have more than three members.

DEVELOPMENT: The House Committee on Economic Development and Tourism passed Senate Bill 354, which creates the West Virginia Advanced Energy and Economic Corridor Authority to promote economic development through McDowell, Mercer, Mingo, and Wayne counties.

GAS RECOVERY: The House Energy and Manufacturing Committee passed House Bill 5268, which aims to allow for enhanced oil and gas recovery through the injection of fluids into horizontal wells.

DRIVING, DIGITAL RECORDS: The House Committee on Technology and Infrastructure discussed bills related to driving safety and digital records.

Modifying definition of family subject to provisions of domestic violence laws

The affected section of code, however, does not provide further definition for those terms.

Kanawha County Magistrate Gary Q. Sheff addressed the Committee regarding the legislation, saying the lack of the terms brother- and sister-in-law means some parties involved in domestic violence situations may have to petition courts “twice” to secure domestic violence protective orders because those terms aren’t cited in code, meaning a “general” and then personal domestic violence protective order may have to be sought and granted by law enforcement officials for parties who may be living in the same home but who may be subject to varying protective orders.

Based on a Senator’s inquiry of Committee Counsel, it appears that if a marriage is dissolved the terms brother- and sister-in-law may continue to apply to parties involved in domestic-relations incidents, although the statute is silent about that.

Senators offered no amendments to clarify the issue, although existing statute states its provisions apply to persons who are or were married to each other, dating one another, were intimate sexual partners, and similar considerations.

There are 16 definitions of persons affected by the statute, ranging from parent to first or second cousin.

Mr. Sheff said he alerted the state Supreme Court about his appearance before the Committee to comply with judicial canons.

Eliminating the ability to subcontract under Certificate of Need

Each individual company engaged in personal care services that has a Certificate of Need cannot use subcontract services.

Counsel explained that entities are using another entity’s certificate of need.

The bill would require each entity to get its own certificate of need. Under the bill, a subsidiary of the original certificate-of-need holder would be allowed, but a sub-contractor would not.

Creating critical incident review team

The bill is second referenced to House Judiciary Committee.

The responsibilities would include examining and assessing the death or near-death of a child in the custody of the Department of Human Services and clarifies that the Team can assess deaths brought to their attention. The committee must report to the Legislative Oversight Committee on Health and Human Resources Accountability (LOCHHRA).

The Health Committee’s amendment moves the new article to the code chapter on Child Welfare.

Requiring hotels and public lodging establishments to provide human trafficking awareness training for employees 

“Human-awareness training” is to be provided for employees who “perform housekeeping duties in the rental units or who work at the front desk or reception area where guests ordinarily check in or check out.”

New employees must receive the training within 60 days after their employment commences or by January 1, 2025, whichever occurs later.

Local departments of health must approve the training, which must include elements relating to the definition of human trafficking, sex trafficking, and labor trafficking, how to identify individuals who may be victims of human trafficking, as well as guidance about employee reporting and responding to suspected human trafficking.

Employees must document that they received the training.

The measure has additional requirements, which are effective January 1, 2025:

·    Implementation of a procedure for the reporting of suspected human trafficking to the National Human Trafficking Hotline or to a local law enforcement agency.

·    Posting in a conspicuous location in the establishment accessible to employees a human-trafficking public awareness sign that states in English and Spanish and any other language predominantly spoken in that area that the department deems appropriate substantially the following: “If you or someone you know is being forced to engage in an activity and cannot leave, whether it is prostitution, housework, farm work, factory work, retail work, restaurant work, or any other activity, call the National Human Trafficking Resource Center at 888-373-7888 or text INFO or HELP to 233-733 to access help and services.” Victims of slavery and human trafficking are protected under United States and West Virginia Law.

Administrative penalties are $2,000 per day and have a 45-day correction period.

Second or subsequent penalties have no correction period.

Committee debate focused largely on the effects of the legislation on smaller or boutique hotels, with both counsel and a representative of the state’s Hospitality and Association saying templates meeting bill provisions should be available from various sources.

Senator Mike Stuart of Kanawha County said he supports the legislation and noted its impact as a mandate, especially on smaller hotels.

When reminded the bill has a second reference to the Senate Judiciary Committee, Senator Stuart said, “End of comments.”

Relating to the hiring requirements of West Virginia law enforcement employees

The Committee voted to report the bill to the full House with the recommendation that it pass after it first is referred to the Judiciary Committee.

HB4803 amends code relating to the hiring requirements of West Virginia law enforcement employees. The purpose of this bill is to change the process of appointing eligible law enforcement officers after competitive examinations by expanding the maximum number of certified names of eligible employed individuals ranked according to their averages from three to five.

Enabling State Fire Commission to propose legislative rules

As explained by Committee Counsel, SB587 authorizes the Commission to promulgate “interpretive and procedural rules” in accordance with the state’s rulemaking review process in addition to specific legislative rules the state Fire Commission may propose.

Senator Chandler Swope of Mercer County said he thought the Commission had the ability to promulgate interpretative and procedural rules.

Counsel responded that the Commission, under existing law, is authorized to propose rules inherent to specific statutes and not “general” rules.

Creating Local Government Labor Regulatory Limitation Act

The legislation, includes volunteer fire departments, prohibits political subdivisions from “enacting labor and employment laws on employers operating within their borders that are contrary to the existing laws or the public policy of the state, or both.”

Other prohibited practices would include “wage mandates above the state and federal minimums, scheduling and overtime, required paid leave, and efforts to reinstate the prevailing wage requirements previously repealed by the Legislature. All are examples of recent attempts by political subdivisions to regulate labor-management relations at the local level.

The bill’s “Legislative Intent” says those type of local mandates, if left unchecked, create an unworkable patchwork of regulations throughout the state (and may) place a burden on employers to comply with regulatory schemes on a city-by-city or county-by-county basis.

Senator Mike Caputo of Marion County made several inquiries about the application of the statute. Committee Counsel said funds secured by political subdivisions, which Counsel described as governmental units “below” the Legislature, would not be affected by provisions of grants, federal monetary allocations, or similar situations. Counsel said the intent is to compel private employers in the political subdivisions from being affected by broad or general edicts.

Committee Vice-Chair Ryan Weld of Brooke County inquired whether bill provisions were meant to affect Volunteer Fire Departments. He said VFDs, even if receiving public funds, often operate as 501( c)(3) corporations.

Committee members made no effort to remove VFDs from the proposed legislation.

SB590 defines political subdivisions as a “county commission, municipality, and county board of education; any separate corporation or instrumentality established by one or more counties or municipalities, as permitted by law; any instrumentality supported in most part by municipalities; any public body charged by law with the performance of a government function and whose jurisdiction is coextensive with one or more counties, cities or towns; a combined city-county health department; public service districts; and other instrumentalities including, but not limited to, volunteer fire departments and emergency service organizations as recognized by an appropriate public body and authorized by law to perform a government function….”

Senator Caputo, in remarks opposing the legislation, said many legislators tout support for what he termed “local control.”

“All of a sudden, we want to wade into it…. We’re all for local control until we’re not,” he said. He advised legislators to both “talk the talk and walk the walk.”

The bill was reported from Committee on an 8-4 division vote.

Amending procedure for filling vacancies in county offices having more than three commissioners

Based on Committee testimony, bill provisions apply to both Berkeley and Jefferson counties, the latter of which was embroiled in controversy about filling a vacancy that resulted in a 2-2 split. Click here for a related story from WVMetroNews. Refer to https://wvmetronews.com/2023/12/01/following-judges-order-jefferson-county-commission-meets-requirement-of-actually-having-a-meeting/

The bill amends current law by saying that an appointee to a commissions having three members must “reside in a magisterial district in which no other member of the county commission resides.” The appointee is to be of the same political party of the commissioner who vacated office and that, at the time of the appointment, the appointee must have been a member of that political party for at least 60 days prior to the occurrence of the vacancy.

For counties having five commissioners, if the county commission or council fails to make the appointment within the specified time, the county commissioner or council shall strike one name from the list, in turn, in the following order of precedence:

·    All county commissioners or councilors affiliated with the same political party as the vacating member shall strike a name from the list before those not affiliated with the vacating member’s party;

·    Of the county commissioners or councilors affiliated with the same party, the commissioner or councilor with the longest tenure shall strike before those with lesser tenure; and

·    Of the county commissioners or councilors with equal tenure, a drawing by lot shall be conducted within the timeframe required to fill the vacancy to determine which one shall eliminate one name from the submitted list before the other commissioner or councilor with equal tenure;

·    After the county commissioners affiliated with the same political party as the vacating member make their strikes, the remaining county commissioners shall follow the same procedure and order of precedence provided herein. The name remaining after four names have been eliminated shall be deemed to be appointed by the county commission or council.

The measure include technical language changes, according to Counsel.

Relating to the WV Advanced Energy and Economic Corridor Authority

SB354 creates the West Virginia Advanced Energy and Economic Corridor Authority to promote economic development along the Interstate 73/74 corridor through McDowell, Mercer, Mingo, and Wayne counties.

The Authority will consist of representatives from those counties and councils, as well as industry and utility representatives appointed by the Governor. Its powers and duties include seeking partnerships, developing an agreement with the Appalachian Regional Commission, proposing legislation for regulatory flexibility and tax incentives, and acquiring/managing property to facilitate economic development.

The bill does not expend any state money.

Relating to the enhanced recovery of oil and natural gas in horizontal wells

Vice Chair Mark Zatezalo of Hancock County provided the Committee with an overview of how enhanced recovery works in vertical wells and the bill’s provisions to incorporate it into the horizontal well permitting process.

EQT’s John Bane explained the various methods used for CO2 injection in horizontal wells, including converting existing wells, drilling new injection wells, or injecting into depleted production wells.

Committee members asked questions about the technical aspects of CO2 injection and how it would work in shale formations. They discussed concerns about the impermeability of shale and how pathways could be opened between parallel wells.

West Virginia Department of Environmental Protection Oil and Gas Director Jim Martin provided details on CO2 being injected in a supercritical liquid state and mobilizing trapped oil and gas.

The Committee heard testimony from DEP about its ability to permit such projects.

Committee members discussed wanting more information on projects in other states and the environmental effects. They considered tabling the bill but decided to pass it to allow for further testing and rulemaking.

Royalty issues were raised regarding gas migration between wells with different owners. Landowner rights Attorney Dave McMahon discussed units formed for horizontal drilling and potential need for new agreements.

In the end, the Committee voted to report the bill with a recommendation to pass to the full Legislature.

The first, House Bill 5237 addressed prohibiting driving slowly in the left lane under certain circumstances, with fines proposed for violations. Committee members discussed whether existing code already covers the situation.

House Bill 5287 focused on treating maintenance and disabled vehicles on the roadway similarly to emergency vehicles by requiring other drivers to slow down and move over if possible.

The Committee amended the bill to replace the term “disabled vehicle” with “stationary vehicle” for clarity. The amendments were adopted as a committee substitute to be reported to the floor with a recommendation to pass.

The Committee then considered House Bill 5161, which creates an online digital-wallet infrastructure under the Secretary of State’s office. The wallet would allow individuals to store their learning and employment records, certifications, and licenses in one digital location.

An amendment was proposed to clarify that individuals, not the state, would be responsible for uploading and organizing their own records. While some members expressed concerns about expanding government responsibilities and online security, others argued the wallet could increase accessibility and opportunities for marginalized groups without reliable document storage.

Proponents also discussed how such a system could help connect job seekers to employers who could evaluate skills rather than degrees alone. After a discussion, the Committee adopted the amendments as a Committee Substitute along with a recommendation to pass the bill.

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