From the Well | February 29, 2024

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86th West Virginia Legislature

State Capitol

February 29, 2024

West Virginia News Headlines

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VOLUNTEER FIRE DEPARTMENTS: The Senate Finance Committee passed legislation that would direct the transfer of monies from the State Lottery into fire protection funds at the end of each year.

FOSTER CARE: The Senate Health and Human Resources Committee adopted legislation that addresses foster-care arrangements.

PHYSICIANS: The Senate Finance Committee approved a bill that increases the number of out-of-state medical students receiving in-state tuition rates who agree to practice for a specific time within West Virginia.

INDECENT EXPOSURE: The House Judiciary Committee passed a bill that addresses indecent exposure.

CHILD ABUSE, NEGLECT: The Senate Judiciary Committee adopted House Bill 5662, which Committee Counsel said addresses those involved in the injury or death of a child.

SHOPLIFTING: The Senate Judiciary Committee passed a measure that modifies the penalty for third-offense shoplifting.

COMPETENCY PROCEEDINGS: The Senate Judiciary Committee adopted an amended House Bill 5520, which Committee Counsel said clarifies a 2021 statute relating to juvenile competency proceedings.

VOTER IDENTIFICATION: The House Judiciary Committee passed legislation to authorize the Division of Motor Vehicles (DMV) to provide images for voter-identification purposes.

DIGITAL WALLET: The Senate Government Organization Committee approved a bill that creates a digital wallet to collect and organize various employment-related records for citizens.

AI TASK FORCE: The Senate Government Organization Committee adopted a bill to establish a 14-member West Virginia Task Force on Artificial Intelligence.

·     SB468 (Requiring course in public schools on human development) to Health

·     SB679 (Regulating certain plant-based derivatives, hemp-derived cannabinoid products, and Kratom) to Finance

·     SB732 (Requiring cooperation between law-enforcement agencies and military authorities) to Government Organization

·     SB 858 (Clarifying filing requirements and deadlines in property tax cases) to Judiciary

Bills on second reading (amendment)

·     SB240 (Increasing fees charged by sheriff) was advanced to third reading without amendment

·     SB164 (Relating generally to trespassing), SB451 (Directing Prosecuting Attorneys Institute to make training available to certain new prosecuting attorneys), and SB539 (Creating cold case database) advanced from first reading to second reading

Directing transfer of moneys into fire protection funds at the end of each year

HB5128 would direct the transfer of monies from the State Lottery into fire protection funds at the end of each year. Specifically, it would require $12 million to be distributed from the state lottery annually as follows:

·     $6 million to the existing Fire Protection Fund

·     $3 million to the County Fire Protection Fund for counties with a levy or fee for emergency readiness

·     $3 million to the All County Fire Protection Fund

The bill aims to provide a more permanent financial solution for fire protection funds.

The accounts were not permanently funded last year when they initially were created through separate legislation.

Relating to defining term fictive kin

HB5151, as adopted by the House of Delegates, includes statutory language revising the listing of persons who may serve as “fictive kin” to include “foster parents with whom the child has previously been placed” in addition to “an adult of at least 21 years of age, who is not a relative of the child, as defined herein, but who has an established substantial relationship with the child, including but not limited to teachers, coaches, ministers,  parents, or family members of the child’s friends.”

The Senate Health and Human Resources Committee amendment, as explained by Committee counsel, revises HB5151 to restore existing code omitted by the House relating to “community-based juvenile probation sanctions” to include “rehabilitative interventions, such as family counseling, substance-abuse treatment, restorative-justice programs, and behavioral or mental health treatment.”

The bill goes to Senate floor.

Relating to increasing the number of out-of-state medical students receiving in-state tuition rates who agree to practice for a specific time within West Virginia

The Committee will report the bill to the full body with the recommendation that it pass.

Specifically, HB4768 would increase the number of out-of-state medical students receiving in-state tuition rates from the current two students per medical school (for a total of 12 students) to four students per medical school. It also requires each participating medical student to practice in a medically underserved area and in a primary care or specialty field with a physician shortage.

The goal is to address the need for more primary care physicians in rural areas of West Virginia. The bill has no impact on the state budget.

Updating language and increasing penalties for indecent exposure

The Committee passed the bill as it arrived from the Senate with one amendment to add back the exemption to breastfeeding that had been removed from the bill as introduced.

The bill as introduced relates to indecent exposure of a person’s nude penis, vagina, or anus, declaring that indecent exposure requires exposing one’s nude penis, vagina, or anus, but those words were replaced with “private parts” in the rejected strike-and-insert amendment.

Lengthy discussion of the strike-and-insert amendment had delegates describing behavior that unintentionally could be made a felony in the bill. One example came from Delegate Brandon Steele of Raleigh County, who said a man or woman could get out of a lake or pool with some of the breast or buttocks showing in the presence of an underage child.

“How much of the buttocks has to be covered to not be a felony?” Steele asked.

Delegate Rick Hillenbrand of Hampshire County spoke in support of adopting the bill as it came from the Senate.

“We are in a hole so deep that if we keep going we might need a bigger shovel,” Hillenbrand said, adding that the Senate did a good job on a difficult subject.

Committee Substitute for SB 504 Relating to felony offense of sexual intercourse, intrusion, or contact with student

The House Judiciary Committee on Thursday passed a strike-and-insert amendment for the Committee Substitute for Senate Bill 504, which addresses felony offenses involving sexual intercourse, intrusion, or contact with a student.

The bill clarifies that the offense applies to a student of any private or public elementary or secondary school and provides an exception for secondary students participating in the teacher pathway youth apprenticeship program.

The strike and insert amendment added the school resource officer and expanded the current teacher pathway program called “Grow Your Own’ to encompass other similar programs that might be developed.

Another adopted amendment changed private or public school to clarify that the bill applies to any elementary or secondary school of any type.

Relating to adding ‘person in a position of trust’ to certain crimes

The Committee amended HB5662 to include persons “under law or agreement who act in place of parents” as clarification for the term “person in a position of trust.”

Counsel said the bill adds the term “person in a position of trust in relation to a child for murder, death of a child, child abuse resulting in injury, child abuse creating risk of injury, female genital mutilation, child neglect resulting in injury, child neglect creating risk of injury, and child neglect resulting in death.”

HB5662 provisions do not apply to a child “who in lieu of medical treatment was under treatment solely by spiritual means through prayer in accordance with a recognized method of religious healing with a reasonable proven record of success shall, for that reason alone, be considered to have been neglected within the provisions of this section.”

The bill also said: “A method of religious healing shall be presumed to be a recognized method of religious healing if fees and expenses incurred in connection with such treatment are permitted to be deducted from taxable income as ‘medical expenses’ pursuant to regulations or rules promulgated by the United States Internal Revenue Service….”

Accordingly, HB5662 adds an additional provision of law, stating that it does not “apply to persons in a position of trust in relation to a child who by virtue of their occupation is charged with any duty or responsibility for the health, education, welfare, or supervision of the child.”

HB5662 retains penalties existing under current law.

Modifying penalties for third-offense shoplifting

According to Committee Counsel, current law states, “Upon a third or subsequent shoplifting conviction, regardless of the value of the merchandise, the person is guilty of a felony and shall be fined not less than $500 nor more than $5000 and shall be imprisoned in the penitentiary for not less than one year nor more than 10 years.”

The bill also says: “As part of the presentence investigation, if the court finds that evidence exists that the person convicted of third or subsequent offense was abusing drugs or alcohol at the time of his or her arrest, the Court shall order an evaluation to determine whether the person has a substance-use disorder. Upon a finding by the Court that the person convicted of third or subsequent offense has been diagnosed with a substance-use disorder, in addition to the other penalties provided pursuant to this subsection, the Court shall order the person to undergo treatment for the substance-use disorder.”

According to Committee testimony, including comments from Committee Vice Chairman Ryan Weld of Brooke County, most shoplifting occurs to aid substance disorders, meaning HB4498 will allow greater attention to addiction or substance-related disorders.

In response to a Committee member’s question, Counsel said courts, in determining the number of prior shoplifting convictions for purposes of imposing punishment under the section, must disregard “all such convictions occurring more than seven years prior to the shoplifting offense in question.”

Given the magnitude of crimes, most prosecutors will seek “pleading down” to lesser charges, especially if arrangements can be made to deal with substance disorders, according to Committee discussion.

In response to a question, Senator Weld responded, based on knowledge of laws in neighboring Ohio and Pennsylvania, “I don’t think we really are doing anything wild in this piece.”

Relating to juvenile competency

Under terms of HB5520, “a juvenile’s attorney, the prosecuting attorney, or the court may raise the issue of his or her competency to participate in the proceeding any time during proceedings under this article. Once competency is raised, all proceedings unrelated to competency shall be stayed until the issue of competency is resolved.”

Counsel said the primary difference HB5520 makes is to “reduce’ from age 14 to age 13 for a declaration a juvenile is considered “incompetent to proceed in (juvenile) delinquency action, (meaning the filing of a motion) for a determination of competency. The motion must establish the basis for ordering a competency evaluation based on “known facts” that motive such a filing.

In the meantime, the juvenile can receive competency attainment services that are ordered and provided in the least restrictive environment, taking into account public safety and the best interests of the juvenile.

The bill says if a juvenile has been released on temporary orders and refuses or fails to cooperate with the service provider, the court may modify the orders to require a more appropriate setting for further services. A juvenile may not be placed in a Bureau of Juvenile Services facility to receive competency attainment services.

Counsel said officials in some judicial circuits had interpreted 2021 legislation to mean adjudication had to come to a “screeching halt” until a juvenile becomes age 14, meaning a lack of services to determine levels of competency.

The revised statute allows interventions that could lead to better assessments regarding the juvenile’s understanding of a crime or violation of the law.

Requiring DMV to provide images of certain individuals to Secretary of State for voter identification purposes

Counsel began the explanation of the bill after a long day, saying “This bill is pretty straightforward. That doesn’t necessarily mean anything, though.”

Delegate Evan Hansen of Monongalia County asked former Secretary of State Natalie Tennant to speak to the current code language that calls for affirmative decline at DMV for registering to vote. He asked Ms. Tennant whether that meant opt out or opt in. She responded that DMV currently uses a Yes or No question, but that affirmatively declining means opting out. Delegate Hansen offered an amendment to clarify “opt out,” but the amendment failed.

Delegate Chris Pritt of Kanawha County offered an amendment to prohibit DMV from sending information to the Secretary of State if the person who registered is not a U.S. citizen. Donald Kersey, Chief of Staff to the Secretary of State, told Delegate Pritt that the Secretary of State currently gets notifications and is proactive. He said any non-citizen who mistakenly slips through will be removed from the rolls.

Mr. Kersey said non-citizens already cannot register to vote.

“In practice, it’s already done,” he said, referring to the process at DMV and Secretary of State being able to identify and remove non-citizens. Despite the assurance, Delegate Pritt spoke in support of his amendment, saying it offered an extra level of protection.

The amendment passed.

To create a ‘digital wallet’ to keep all certifications/licensure accrued by the person in one place

A central Senate Government Organization amendment provides persons who visit the business portal to access the data with the disclaimer, “This information has not been verified by the Secretary of State.”

While the Committee was intent that only West Virginia residents could be able to access the data, Senator Ben Queen of Harrison County withdrew his amendment to that effect.

Senator Queen contended the legislation, as written, would permit accessabiliy to everyone.

Several Committee members noted that border county employers may have interest in the data as provided by professionals. Senator Randy Smith of Tucker County said the information would be of interest to out-of-state employees seeking work in West Virginia, including in the coal or natural gas industries.

“Well, we’ll find out next session” if access proves to be an issue, Queen said.

The Committee, while not adopting an amendment to that effect, said the term “digital wallet” could be renamed as “digital CV” or similar designation.

HB5161 lead sponsor Delegate Jimmy Willis of Brooke County addressed the Committee, providing background for the legislation.

He said the concept emerged among a “futures” group of legislators who seek ways to widen the state’s use of technology and technology applications.

David Cook, General Counsel for the Secretary of State’s Office, estimated a cost between $200,000 and $250,000 to implement the legislation. The Secretary of State’s Office would need to develop or use updated software from an existing vendor that works with elections and similar projects.

Mr. Cook said the cost is mostly “up-front” but agreed with Senator Queen that long-term maintenance costs were not considered. Mr. Cook also said some of the information is available but not arranged as required by the legislation.

HB5161 has a second reference to the Senate Finance Committee.

Creating a West Virginia Task Force on Artificial Intelligence

Members include legislators, public and higher education officials, representatives of various state agencies, including a member representing the state Fusion Center, a statewide business association, the AI industry, and the cybersecurity industry.

The Committee adopted the measure without amendment.

Delegate Jarred Cannon of Putnam County, HB5690’s lead sponsor, explained the rationale and purpose for the task force.

He said the Task Force’s goals are:

·     Determining which public-interest use cases exist or may exist for artificial intelligence;

·     Developing best practices for public-sector uses of artificial intelligence in the state;

·     Recommending legislation to protect individual rights, civil liberties, and consumer data as it relates to generative artificial intelligence;

·     Recommending model policies for schools to address the use of artificial intelligence by students in the classroom;

·     Determining and making recommendations regarding whether the Task Force should be extended to monitor, analyze, and make findings and recommendations to keep pace with changes in Artificial-Intelligence technology and uses of the technology.

·     Assessing the use of Artificial Intelligence in the workforce and its effect on employment levels, types of employment, and the deployment of workers;

·     Taking an inventory of the current or proposed use of Artificial Intelligence within state agencies.

·     Other topics related to Artificial Intelligence that may arise from testimony or reports to the Task Force submitted by its members, invited guests, or the public.

The State Office of Technology would provide administrative and technical support.

The Task Force report is due by July 1, 2025, at which time the Task Force could be disbanded.