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The Dome Report - 2021 West Virginia Legislative Update: Issue 4
March 09, 2021
After 28 days, and with more than 1,634 bills introduced, the West Virginia Legislature already has enacted significant legislation promoting the establishment of public charter schools, increasing oversight of local boards of health, and declaring work stoppages by public employees as unlawful. In the meantime, the Governor unveiled his long-awaited comprehensive tax package, introduced as Senate Bill 600 and House Bill 2027, which included an immediate partial elimination of the personal income tax with tax increases in certain other areas. The details of the Governor's plan were met with tacit approval by some business leaders, but also rising opposition from other sectors, and the debate over the same is likely to hold the attention of the Legislature for the remaining half of the 2021 Regular Session.    
During the legislative process there are certain critical deadlines imposed by the Legislature that impact the consideration of pending bills and their chances of success. Those remaining dates are as follows:
  • March 16, 2021: Last day to introduce bills in the House of Delegates. This does not apply to bills originating in committee. 
  • March 22, 2021: Last day to introduce bills in the Senate. This does not apply to bills originating in committee. 
  • March 28, 2021: Bills are due out of committee in house of origin.
  • March 31, 2021: Last day to consider bills on third reading in house of origin ("Cross Over").
  • April 10, 2021 (midnight): Session ends.
As of today, 13 bills have completed the legislative process and will be sent to the Governor. Of interest to our readers, the following bills have completed legislative action and will be presented to the Governor who has five days, excluding Sundays, from such presentment to approve, veto, or let become law without his signature:
HB 2019
Governor Justice's 2021 legislative agenda achieved its first victory with the enactment of House Bill 2019, which elevates the West Virginia Development Office and the West Virginia Tourism Office into cabinet-level agencies known as the Department of Economic Development and the Department of Tourism, respectively. This reorganization of the Governor's cabinet is meant to highlight the significance of economic development and tourism by establishing more direct control over those two areas of the administration. Governor Justice approved this bill on March 8.
HB 2012
Charter schools are now more likely to become part of K-12 educational landscape when the Republican supermajority in both chambers enacted House Bill 2012. The bill increases the number of charter schools from three to 10 statewide and establishes the Professional Charter School Board as an additional authorizing agency for charter schools, thus bypassing what may have been a barrier to their recognition under existing law, the county boards of education. That Board also may recognize up to two statewide virtual charter schools. The recognition of charter schools was one of the reasons teachers and school service personnel held statewide work stoppages in 2018 and 2019. The bill was presented to Governor Justice on March 5, and he has until midnight on March 11 to act.
SB 12
Senate Bill 12 increases political oversight and control over rules promulgated by local health boards. The bill requires a 30-day public comment period for new or amended rules and authorizes county commissions to approve, disapprove, and even amend such health rules. Where there is joint control over a health department, such as between a municipality and a county, but only one of those entities approves a new or amended rule, then such rule would be in effect only in the approving jurisdiction. The bill would not affect existing rules, unless such are amended by the health department. Finally, the bill requires local health departments to come under the control of the state health officer during a state of emergency in that county. Certain healthcare related citizens' groups, including clean indoor air advocates, have expressed opposition to the bill and may ask the Governor to veto it.
SB 11
Finally, also pending before the Governor is Senate Bill 11, which, among other things, codifies case law by declaring any work stoppage or strike by public employees to be unlawful. An employee is considered to be participating in a concerted work stoppage or strike purposes if, on any day during a concerted stoppage or interruption of work, the employee does not report to work and is not on leave, recognizing that leave may not be used to participate in a strike. If an employee remains employed notwithstanding participation in a work stoppage or strike, the county board of education shall withhold their prorated salary or hourly pay of each employee for each day they participate in the same. Finally, the bill prohibits a superintendent from closing a school in anticipation of or to facilitate a concerted work stoppage or strike.
SB 600 and HB 2027
However, what is certain to be the most talked about legislation is the Governor's proposal to eliminate the personal income tax. In Senate Bill 600/House Bill 2027, Governor Justice proposes an initial 60 percent reduction for personal income rates for all filers on income earned from wages and salaries and pensions, annuities, IRAs, Social Security and unemployment. The reduction, however, does not extend to income earned from Schedule C business profits, Schedule E rents, royalties and pass-through entity profits, Schedule D capital gains, Schedule F farm income, supplemental gains and losses, taxable interest income, dividend income, and miscellaneous income.
The plan also includes plans for $52,000,000 worth of personal income tax rebate checks. All West Virginians earning less than $35,000 per year would receive an annual rebate check.
To balance the reduction in revenue, Governor Justice proposes raising the state consumer sales tax from 6 to 7.9 percent, while also adding a single-item luxury tax for certain high value items. Furthermore, the exemptions to the consumer sales tax for professional services, such as legal and accounting services, computer hardware/software, select advertising, electronic data processing, lottery tickets, and gym memberships would be eliminated.
The bill also is expected to include tax increases on soft drinks, tobacco products, beer, wine and liquor. Specifically, cigarette taxes would be increased to $2.25 per pack; other tobacco products taxes would be increased to 19.5 percent of wholesale prices; E-cigarette tax would be increased to 75 cents per milliliter; beer barrel tax would be increased to $29.25 per barrel; wine tax would be increased to $4 per gallon; liquor wholesale mark-up would be increased to 39.25 percent; and soft drink taxes would be increased to 6 cents per 16.9 fluid ounces or fraction thereof, $4.80 per gallon on syrup and 5 cents per each 28.35 grams of dry mixture. Finally, the Governor's proposal would create a tiered system for severance tax collections from extractions of oil, natural gas and coal with the tax level to increase as price rises. These bills are now pending in the Finance Committees of the House and Senate.
Other bills of interest that have been introduced or advanced this session include:
SB 295
Governor Justice's proposed amendments to the West Virginia Economic Development Authority's broadband loan insurance fund already has passed the Senate and now is pending in the House Finance Committee. Senate Bill 295, among other things, codifies the provisions of the Governor's 2020 executive order that will position the state and its broadband providers well for participation in the Federal Communication Commission's Rural Digital Opportunity Fund ("RDOF") programs.
SB 275
Senate Bill 275, which creates an Intermediate Court of Appeals, was passed by the Senate and sent to the House where it advanced out of the Judiciary Committee with some notable amendments. First, instead of two districts, the bill now only establishes one district within West Virginia, with a single three-judge panel to hear appeals. The judges still are appointed by the Governor, with the advice and consent of the Senate, to staggered terms but, after expiration of their initial terms, the full term for the office would be for only 10 years. As before, the Intermediate Court of Appeals would not have any original jurisdiction and, after June 30, 2022, would have appellate jurisdiction over such matters as final judgments or orders of a circuit court in civil cases, final judgments or orders of a family court, and decisions of an agency or an administrative law judge. Appeals from its decisions to the Supreme Court of Appeals would be taken by discretion. Interestingly, the amended bill would permit the Supreme Court to essentially pull certain cases of legal significance from the Intermediate Court for more expedited review. The amended bill does not alter the reorganization of the workers' compensation appeals. Concisely stated, the Office of Judges would be abolished after September 30, 2022 and its duties would be assumed by the three-judge panel of the Board of Review. The Intermediate Court then would have exclusive appellate jurisdiction over all decisions issued by the Board of Review after June 30, 2022. The amendments to the bill are expected to reduce the annual cost of the court to just over $2 million per year to operate. As before, the plaintiffs' trial bar continues to oppose the bill, while business interests are redoubling their efforts to get the bill over its last hurdles in the House of Delegates. Once the bill is reported from Judiciary, it goes to Finance, then to the full House.
SB 277
Of the several bills designed to limit liability of certain persons from lawsuits arising as a result of the COVID-19 pandemic Senate Bill 277, known as the West Virginia COVID-19 Immunity Act, passed out of the Senate and was advanced by House Judiciary. The bill provides simply that there is no claim against any person, business, entity, health care facility or provider, first responder, or volunteer for any loss, including death, arising from COVID-19, COVID-19 care, or impacted care. "Impacted care” is defined as care offered, delayed, or otherwise adversely affected at a health care facility or to a health care provider during the COVID-19 emergency that impacted the facility or provider’s response to the COVID-19 emergency. The bill was amended by the House to provide a special procedure for medical malpractice action to determine whether "the impacted care" arose from COVID-19 and, if so, to dismiss such claims. In addition, the bill provides immunity to any person that designs, manufactures, sells, distributes, or donates a product in response to COVID-19 that is utilized by any person, government entity, business entity, health care facility or provider, first responder, or volunteer resulting from the product’s manufacturing or design, or a failure to provide proper instructions or sufficient warnings. Such limitations, however, would not apply if that person had actual knowledge of a defect or acted with actual malice. The provisions of this bill were made effective retroactively from January 1, 2020, and apply to any cause of action accruing on or after that date. The bill is expected to pass the House this week and be sent back to the Senate for consideration of the House amendment.
SB 1 and HB 2024
Reflecting the reality of providing a continuum of care during a pandemic, the Legislature is considering several bills to expand the use of telemedicine. The Senate advanced Senate Bill 1, which, among other things, provided for parity of payment for telehealth services between a service in-person and a service provided through a telehealth platform, including such that is established and provided through audio-only means. Further, that bill established a procedure for registration with the appropriate licensing boards that would have permitted healthcare providers licensed in other states to practice telemedicine in West Virginia. Even though that bill passed the Senate unanimously, it was set aside by House Health & Human Resources in favor of the Governor's bill, House Bill 2024, which contains some of the registration and licensing provisions, and recognizes audio-only telemedicine, but stripped out the provisions of the bill providing for payment parity. That bill, too, passed its chamber of origin, without any opposition and is being communicated to the Senate. It remains unclear how the differences between the two telemedicine bills will be reconciled.
HB 2013
The House approved the creation of Education Savings Accounts for a second time this session in House Bill 2013, which creates Education Savings Accounts through the Hope Scholarship Program and would give parents the option to use a portion of their per-pupil expenditure from the state School Aid Formula for certain educational expenses, such as private school tuition, tutoring, educational learning aids and other qualified expenses. As it passed the House the first time, a floor amendment broadened the eligibility to anyone who applied after July 1, 2026 and thus increased its potential cost to over $100 million. As a result, the House recalled the bill from the Senate and recommitted it to its Finance Committee for additional study. Upon reconsideration, the Finance Committee made it so only state residents enrolled during the previous instruction term, or enrolled for 45 days prior to application, would be eligible. Further, the amount of total state funding was capped to not less than 2 percent of the net public school enrollment or the total number of eligible Hope Scholarship applicants received by the State Treasurer’s Office, whichever is greater. The cost per eligible student would be $4,624. Before it can become law, the bill will have to be approved by Senate Education, then Finance, before it goes to the full Senate.
HB 2009
Pending before Senate Judiciary is House Bill 2009, which limits the use of wages and agency shop fees for political activities and prohibits employers from withholding or diverting any portion of an employee’s wages or salary for political activities without express, written annual authorization. This prohibition against withholding or diverting wages for political activities applies to any agreement entered into, modified, renewed or extended on or after July 1, 2017.
SB 5
Senate Bill 5, which sets forth procedures and standards by which attorneys' fees may be recovered under the West Virginia Consumer Credit & Protection Act, was substantially amended by Senate Judiciary before it was advanced by the full Senate and sent to the House where it is pending before that body's Judiciary Committee. As amended, the bill essentially codifies certain factors considered by a court for an award of attorneys' fees such as the time and labor required; novelty and difficulty of the questions presented; the skill requisite to perform the legal service properly; and the experience, reputation, and ability of the attorneys. The bill also departed from the introduced version in how offers of judgment are evaluated. Simply stated, now if a defendant makes an offer of judgment that is rejected by the plaintiff, the plaintiff may not recover fees or expenses from the date of the offer through the entry of judgment if the final judgment is one of no liability or if the final judgment obtained, exclusive of attorneys' fees and expenses, is less than 75 percent of the offer. If the judgment entered does not exceed 75 percent, the defendant may be entitled to reasonable fees and expenses incurred from the date of the offer to the entry of final judgment if the court finds that the plaintiff acted without substantial justification or without good faith in rejecting the defendant’s offer. Finally, the bill provides that a prevailing party may be entitled to fees and costs if the court determines that the opposing party presented a frivolous claim or defense. In that event, the court would hold a separate bifurcated hearing wherein it shall make a determination of whether the frivolous claims or defenses were asserted and to award damages, if any, against the party presenting the frivolous claims or defenses.
Government Relations Alexander Macia