From the Well | February 14, 2024

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86th West Virginia Legislature

State Capitol

February 14, 2024

West Virginia News Headlines

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SCHOOL SECURITY: The House Judiciary Committee adopted House Bill 4299, which authorizes county boards of education to designate elementary or secondary school teachers to carry concealed firearms and serve as school protection officers.

ENERGY TAXATION: The House of Delegates held a public hearing on a bill that would remove a sunset clause from the current oil and gas personal property tax assessment.

AI TASK FORCE: A House of Delegates Committee passed a bill that would create an Artificial Intelligence Task Force.

EXPLICIT CONTENT: The Senate Judiciary Committee passed legislation that would create a new criminal offense for manipulating images of children and depicting them in sexually explicit conduct.

TAX LIENS: The House Judiciary Committee discussed a bill involving the timeline for giving notice to a person whose property is subject to a tax lien.

MALPRACTICE: The House Judiciary Committee passed House Bill 5067, which would amend state law regarding medical malpractice litigation involving persons who are under age 18.

Amending the Constitution to prohibit persons not United States citizens from voting in any election held within this state

Senator Mike Caputo of Marion County asked Counsel whether that standard already is the law. Counsel said federal law and West Virginia state law already restrict voting to U.S. citizens. Passing it as a constitutional amendment would prevent a local government from passing an ordinance allowing non-citizens to vote because the West Virginia Constitution doesn’t expressly prohibit it.

Asked whether non-citizen voting is a problem in West Virginia, David Cook, Counsel for the Secretary of State, said it is not a problem here but a few municipalities, such as Washington, D.C., New York City, and San Francisco have allowed non-citizens to vote in their municipal elections.

Senator Patricia Rucker of Jefferson County, a naturalized citizen, said no one has ever asked her for proof that she’s a naturalized citizen and questioned how this amendment would be enforced.

A representative from the Americans for Citizens Voting organization said it is a prominent matter of importance to our democratic process and that six states have the amendment.

Chairman Charles Trump of Morgan County proposed an amendment that was adopted, adding the pronoun “she” to the current constitutional language. Women were not allowed to vote when it was adopted. He also clarified through another adopted amendment that the purpose is to prohibit persons who are not U.S. citizens from voting in West Virginia elections.

Senator Caputo, opposing the bill, said, “We’re putting something out there to solve a problem that doesn’t exist. People will think ‘Is this going on in West Virginia?’ It’s a do-nothing amendment.”

Permit teachers in K-12 schools to be authorized to carry concealed firearms as a designated school protection officer

SPOs, as determined by the statute, would be authorized to carry “concealed firearms or a stun-gun or taser device in any school district.”

Teachers wishing to be designated as SPOs would contact the county superintendent in writing, providing various information, including evidence of a concealed carry permit and completion of a “training program which demonstrates that the person has successfully completed the curriculum, instruction, and training” established and regulated by the West Virginia Department of Homeland Security.

Names of SPOs would be provided to Homeland Security with other identifying information, although that information would not be made public.

Homeland Security training for persons designated as SPOs could not exceed an additional 24 hours, with annual requalification of eight hours, although county boards could adopt additional training requirements not to exceed four hours.

Fifteen specific areas of training are required, relating to topics such as mitigation, de-escalation, neutralization of threats, as well as “psychology of critical incidents” and crisis intervention.

Committee discussion, while wide ranging, related to qualifications and training of school personnel, costs to county boards, whether the legislation conflicts with other legislation that allows county boards to appoint trained law enforcement officials in schools, disparities between larger and rural school districts in terms of capacity of hiring security personnel, and potential loss of “innocent lives” if an SPO were involved in mitigating or neutralizing a situation.

Members also discussed how firearms would be stored. The statute says the weapon is to remain on the SPO’s body, although members were told by a pediatrician who studied the matter that studies show “residual casualties” in some instances. They also discussed whether current training is sufficient to allow school personnel to thwart shootings and whether school districts, if employing SPOs, have potential liability from persons other than the assailant who are injured in those circumstances.

While the questions of Counsel and witnesses, including the pediatrician, were “predictable,” Committee members recalled earlier versions of the legislation, when a former member recalled his experience in a 2007 shooting at Virginia Tech that left 32 persons dead. He said the perpetrator might have been dispatched had someone on campus been armed.

Delegate Bill Ridenour of Jefferson County provided remarks based on his work with military intelligence. He said school shooters are “terrorists” who seek and know building layouts, including classroom configurations, ingress and egress, perceived vulnerabilities among school personnel, perceived response time by school or law enforcement, and security deficiencies.

Delegate Ridenour noted that beginning with the 1999 Columbine, Colorado, shooting, perpetrators realize vulnerability helps them accomplish their aims, although if a shooter realized school personnel were armed, that, alone, could serve as a possible deterrent.

Although Delegate Ridenour was among the last of the Committee members discussing the bill, other Delegates said the presence of school security personnel could achieve the same objectives, although one Committee member noted the U.S. Justice Department noted “failings” in terms of external police response in the Uvalde, Texas, school shooting.

Delegate Geoff Foster of Putnam County, following consultation with Chairman Tom Fast of Fayette County, withdrew an amendment that would have required school districts to employ SPOs.

Several Delegates commented that no public education representatives were present to discuss the legislation.

Removing the sunset clause from Oil and Gas Personal Property Tax

Lawmakers heard from supporters and opponents of House Bill 4850.

A sunset clause is a note in the bill that gives it an expiration date unless other legislative action is taken to extend the bill.

Click here to read more from West Virginia Public Broadcasting.

House Bill 2581 from the 2021 session created the formula for how gas operators and property owners are taxed. The bill had a sunset clause, which comes due in July 2025. HB4850 would remove that sunset clause from the bill, making the tax formula permanent.

Delegate Vernon Criss of Wood County said the bill would help create tax predictability for landowners and well operators.

“If we do not do this, then there will be no tax collected by the counties,” Criss said. “That is how the law is set up now. So the sunset clause needs to be taken off so that the counties can continue to collect their personal property tax on oil and gas in those counties.”

However, landowners taxed by this bill expressed opposition. They said that the 2021 bill taxes them unfairly and lacks transparency.

Relating to criminalizing the use of deep fakes

HB5516 relates to criminalizing the use of deep fake images, which are artificially generated images that are realistic depictions of individuals engaging in speech or conduct they did not actually engage in for acts of revenge pornography and child pornography.

The Committee amendment added definitions of “deep fake” and language to properly place the bill in the nondisclosure of private and intimate images act. With the amendment adopted, the bill was referred to the Judiciary Committee for further consideration.

The bill creates an AI Task Force in the Office of the Governor to monitor and make recommendations on public-sector use of artificial intelligence. The bill named members of the task force and outlined its duties, which included defining artificial intelligence, determining relevant state agencies to oversee AI policies, and recommending best practices for public-sector AI use. It also discussed whether the task force should continue past its initial deadline.

The Committee passed an amendment to add the Secretary of the Department of Homeland Security to the task force. With the amendment passed, the bill was reported to the floor with a recommendation for passage.

Prohibiting digital manipulation of sexually explicit content to include minors

Counsel said the bill addresses a rising problem of deep fakes that make it appear to be an actual minor engaging in explicit sexual conduct. It is happening with head shots of minors that are being imposed on an unrelated film. He noted that the victim could be 30 years old when that happens, but the head shot could be a high school photo.

Sergeant Jillian Yeager with the State Police Crimes Against Children unit said the bill would be beneficial because sexual predators are modifying a child’s face and putting it on a body and transposing it into adult pornography that predators make and trade.

:Prohibiting creation, production, distribution or possession of artificially generated child pornography

The bill references the statutory definition of the word obscene even though a real child is not used. Counsel stressed that it is not an element of the bill that the minor actually exists. Counsel said digitally created images are being used to make realistic looking child pornography. Currently, West Virginia statutes reference only child pornography with a real person.

Sergeant Jillian Yeager with the State Police Crimes Against Children unit spoke about the bill as well, saying it is a problem that has been growing in the past two years, and the bill will help to combat it.

Relating to time frame of service of notice

As the discussion unfolded, chief issues concerned whether persons whose residential properties are subject to tax lien sales have been provided adequate notice or, more particularly, if the legislation would affect a federal court case in which the state Auditor’s Office agreed effectively to a 150-day period, which is based in part on New York litigation.

That litigation was decided on the basis of whether due process was sufficient to allow persons to redeem properties rather than properties being lost through tax-lien sales.

Although a representative of both the state Auditor’s Office and a representative of Mountain State Justice said the Legislature itself may not be necessarily bound by the 2021 litigation, that settlement — combined with New York litigation that dealt with due process under the U.S. Constitution — reflected an attempt to address issues about serving initial notice. That could be complicated by 911 property address revisions, courthouse records problems, return of a certified mail notice, problems with the Postal Service, use of third parties for properties owned by persons out of state, and misunderstandings about how to redeem properties after notice has been made.

The Auditor Office’s representative noticed truncating timelines provided greater advantage to persons purchasing properties through tax-lien sales, a point reiterated by the Mountain State Justice representative. Both said redemptions of 150 days provide delinquent taxpayers greater ability to pay outstanding tax liabilities.

Mountain State Justice represents indigent clients.

The Committee, following discussion, learned a proposed Committee Substitute proposes to shorten the 150 days to 120 days.

Given that consideration as well as what Chair Fast termed “another section of Code to be considered,” he remanded the bill to subcommittee.

To remove the 2-year timeframe for medical malpractice suits to be filed only for individuals who were minors when they had their procedures performed

The Committee passed the bill and sent it to the full House of Delegates.

The current timeline is five years.

HB5067 specifies internal provisions relating to deadlines for bringing litigation, primarily based on the individual’s age when the alleged injury or injuries occurred.

The periods of limitation, as established in HB5067, are to be tolled for any period during which the health care provider or its representative has committed fraud or collusion by concealing or misrepresenting material facts about the injury.

Bill provisions do not prohibit a party from “removing the action to federal court.”

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