West Virginia lawmakers had plenty to keep them busy during the 2019 session, including controversial topics of charter schools, medical cannabis and campus carry.
Charter schools
Easily the single most divisive item of the 2019 legislative session, and the special session that followed, was the education reform omnibus bill. And the single most divisive item in that bill was charter schools.
It culminated in a nine-hour debate in the House floor June 19. Those nine hours on HB 206 led to the adoption of 15 amendments, the rejection of two aimed at removing charter schools from the bill, and the not-unexpected passage by a mostly party-line 51-47 vote.
The Senate took it up just over a week later and passed it in another mostly party-line vote, 18-16, and sent it to the governor.
The bill also included a variety of proposed changes to the education system, including pay raises, increased support personnel for schools, open enrollment, incentives to fill in-demand positions and financial support for small or struggling counties.
West Virginia Education Association President Dale Lee and American Federation of Teacher-West Virginia President Fred Albert expressed opposition to charters in early January.
Albert said charter schools give advantage to some over others and the state needs to support what it already has. Lee said the state Constitution mandates a free and thorough public education for all children, not charter schools. Charter school performance is a mixed bag across the nation, and in West Virginia. Charter schools could only make the achievement gap greater.
In a late January op-ed, Senate President Mitch Carmichael aired an opposing view: “In addition, we should consider concepts that other states have used to improve student achievement, such as empowering parents and students with options that better serve their needs, charter schools and Education Savings Accounts. Giving flexibility and choices to parents will drive improved performance.”
During the regular session, the Senate majority introduced and passed an omnibus that bounced back and forth, eventually getting tabled in the House of Delegates. The bill brought teachers back to the Capitol during a two-day strike.
Gov. Jim Justice then called a special session on education “betterment,” starting with education forums across the state.
During the special session, which began in early June, the Senate passed a new version of an omnibus bill. At that point, Justice expressed concern that the special session would go nowhere. When the House convened, delegates passed their own version of the omnibus bill during the marathon floor session. That’s the version the Senate took up and passed.
The version that passed allows for three charter schools in 2023 and then three more charter schools every three years. The charter schools would have to be approved by local school boards.
In November, the American Federation of Teachers-West Virginia announced its plans to file suit against the bill’s charter school provision, now embedded in state code.
It said it was basing its suit on its view that a charter school would be an independent free school district.
The state Constitution says, “No independent free school district, or organization shall hereafter be created, except with the consent of the school district or districts out of which the same is to be created, expressed by a majority of the voters voting on the question.”
“As we read it, the Constitution does require a referendum,” Albert said. Residents should be able to have their voices heard before a charter school is launched. “We felt like the citizens spoke last spring during all the round tables held across the state,” and they said charter schools are not a good fit. “Their voices were ignored.”
The school service personnel union filed its 30-days’ notice to sue on Oct. 31, according to WVMetroNews. The West Virginia Education Association filled its intent to sue in July but has not yet actually filed suit.
Medical cannabis
The state’s medical cannabis program was set to take effect July 1, but the legislation needed to fix some flaws. In January, Diana Stout, with the state treasurer’s office, explained that because cannabis is still federally illegal, banks won’t take the money generated by fees, fines and penalties. So even if they collected cash, they could never spend it. It would just sit in a vault until federal law changes.
She said some credit unions expressed interest in handling the money, so the treasurer’s office planned to propose language to amend the law to allow credit unions to do that.
West Virginia Attorney General Patrick Morrisey concluded the state can take some steps to ease concerns about processing money related to medical marijuana, but a long-term solution must come from the federal government.
“We conclude that notwithstanding West Virginia’s law, marijuana’s federal status as a controlled substance makes it very difficult for medical marijuana businesses to operate in a way consistent with current federal law and that by extension, financial institutions providing services to these entities may be at risk of federal civil or criminal liability,” Morrisey wrote in an opinion.
In February, the banking bill, HB 2538, began working its way through the Legislature. The bill created two state funds. The primary one is the Medical Cannabis Program Fund designed to receive license fees, penalties and taxes associated with the program. The other is the Treasurer’s Medical Cannabis Fund created to receive all fees charged to the institution by the treasurer and to be spent on oversight and compliance expenses.
The treasurer would select by competitive bid one or more financial institutions to handle banking services for the fund. The institution may be a bank, credit union or a “non-bank financial institution.”
Once federal law changes and it becomes legal for banks to handle program money, the contract or contracts will end, and the money will be transferred to BB&T, the institution holding the state concentration account, meaning the single account it uses to write checks.
When it reached the House floor, it passed 89-7 with no debate and no floor speeches.
In early March, the Senate Judiciary Committee breezed through approval of the bill in a matter of minutes one Friday morning. Sen. Mike Romano. D-Harrison, said, “The world is changing. If we don’t get out in front of it, the world will pass us by.”
The full Senate a few days later passed it 29-4 and sent it to the governor.
Meanwhile, a second bill addressed another flaw in the original legislation. HB 2079 was intended to enable vertical integration of medical cannabis operations. The law at the time said growers and processors may not be dispensaries. The bill allows growers, processors and dispensaries to be a single operation.
It had been shown that the expenses required in these operations, combined with federal tax law concerning distribution of illegal drugs, makes vertical integration necessary for them to operate profitably and succeed.
It passed the House on Feb. 27. The Senate approved an amended version on March 8. Justice vetoed it March 27, based on the Senate amendment and a misunderstanding of the intent of the bill.
Medical cannabis code at the time set a 10% gross receipts tax on sales by grower/processors to dispensaries. The Senate amendment set two rates: 10% for growers who sell to unrelated processors, processors who sell to unrelated dispensaries, or grower-processors who sell to unrelated dispensaries; or 5% for integrated businesses, charged on gross customer receipts. Justice objected to the differing rates as unreasonable.
So in May, during the special session, legislators retooled the legislation for SB 1037. It passed the Senate 23-7 and the House 81-17. It eliminated all but the 10% dispensary receipts tax.
SB 1037 also removed an existing code requirement that a provider try or consider opioids on a patient before recommending cannabis; it required companies seeking permits to be majority-owned by West Virginians; it removed the five regions for business distribution and called for the state medical cannabis board to consider geographic location among the permitting criteria; and set the number of dispensaries at 100, with 10 per individual owner; allows for pre-registration of eligible patients before July 1.
In June, we reported that while the program would take effect July 1, patients and caregivers shouldn’t expect to be receiving their physician certification or program ID cards anytime soon, according to the Department of Health and Human Resources.
DHHR spokeswoman Allison Adler explained where the state stood: “In most states, it has taken several years (often three to five) to get medical cannabis programs up and running. It requires program staffing and development, rules implementation, industry buildout (building licensed, in-state growing facilities, processing facilities, dispensaries, laboratories, etc.), registration of certifying providers, registration of patients, etc. Advanced work undertaken by DHHR should somewhat shorten this time in West Virginia.”
Adler said, “If all goes smoothly, DHHR’s Office of Medical Cannabis estimates it being two to three years from a fix to the financing issue before patients with a qualifying medical condition can procure quality-tested medical cannabis in West Virginia.”
In August, the state treasurer’s office selected a banker to handle transactions for the state medical cannabis program. Charleston-based Element Federal Credit Union submitted the winning proposal.
In September, federal legislation protecting banks that handle state-legal medical cannabis transactions overwhelmingly passed the U.S. House of Representatives this week. Similar legislation is working its way through the Senate.
The House SAFE (Secure and Fair Enforcement) Banking Act passed 321-103. All three West Virginia members — David McKinley, Alex Mooney, Carol Miller — were among the 91 Republicans voting for it (102 Republicans and one Democrat voted against it).
The bill prohibits a federal banking regulator from penalizing a depository institution for providing banking services to a legitimate marijuana-related business.
Campus carry fails
The Campus Self Defense Act, intended to require colleges to allow those licensed to carry a concealed deadly weapon to do so on campus and in campus buildings, stirred worry statewide, including at WVU, and heated debate at the Capitol.
It also drew protestors to the Capitol, and ultimately died in a Senate committee.
As it began its way through the House, it included exceptions, such as events in campus sports arenas with more than 1,500 seats, campus daycare centers, campus police headquarters and private events.
On Feb. 11, the bill nicknamed the Campus Carry Bill, drew 41 speakers to a public hearing. The opponents outnumbered the supporters almost 3-1, with 30 against and 11 for it.
Concord University’s Dean of Students Sarah Beasley was among those who raised the issue of the emotional vulnerability of college students and issues with suicide attempts. She said a survey showed that 98% of Concord students feel safe on campus, and the possibility of their school mates toting guns and accidental shootings makes them feel less safe.
Zach Campbell was one of several members of the Citizens Defense League there to support the bill. He said state law already allows permitted gun carriers to carry on campus and guns are already on campuses. The bill protects students, staff and faculty who could face consequences for exercising their constitutional right.
On Feb. 26, with the bill on second reading, opponents and supporters came to the Capitol. Some were university students. Some wore the black shirts of the Citizens Defense League, which backed the bill last year and this year.
Some were professors from Marshall and WVU opposing the bill. Some wore red shirts. They were united under the name Moms Demand Action and also opposed the bill.
Two of the opponents assembled outside the House chamber explained their concerns.
Cynthia Gorman is a WVU professor of geography and women’s and gender studies. “I’m concerned about having guns on campus because I don’t think it’s going to make campus any safer, and I don’t think it’s going to make students any safer,” she said.
Campus Carry carries the potential for guns in classrooms, accidental discharges and the volatile combination of guns and alcohol “especially among this population that at times cannot make very good decisions,” she said.
Gorman said her courses include discussions of many controversial issues, and the exchange and examination of ideas from different perspectives. “The potential that there are firearms in the classroom is going to stifle conversation,” she said. “I don’t think people learn in an environment where they’re fearful.”
The next day, the bill earned the title of “zombie bill.” Campus carry died, died again, died again, then rose and came to life. Along the way, a long list of amendments was swept aside. After the amendment stage, a long floor debate followed. It passed 59-41.
The zombie continued its plod in the Senate, pulled from a Senate Judiciary Committee meeting agenda on March 4 — but still not dead. President Mitch Carmichael explained what was going on. As it came over from the House, he said, senators thought they had it in a condition to bring it out for a committee vote. But they discovered some code conflicts and problems with the structure of the bill.
It was at the bottom of the Judiciary agenda, he said, and there were people in the audience who wanted to speak to the bill. “We just decided to pull it from the agenda so that the people that were there to address the bill knew that they probably wouldn’t get to it that day.”
That same day, close to 60 students from Concord, Fairmont State and Marshall universities rallied in front of the Senate chamber to protest Campus Carry. They represented OneCampusWV, which reported it had more than 920 members from college campuses across the state.
For about two hours, they chanted and waved signs.
The zombie finally died the next day, March 5. Senate Judiciary voted it down 7-9. Two Republicans joined with seven Democrats to vote no. Action on the bill took only about 20 minutes. There was no debate or discussion. Chair Charles Trump, R-Morgan, called for the customary voice vote, but couldn’t make a clear call. From the audience, the nays appeared a bit louder.
He then called for a show of hands. Republicans Mike Azinger, Greg Boso, Sue Cline, Mark Maynard, Patricia Rucker, Randy Smith and Trump voted yes.
Republicans Charles Clements and vice-chair Ryan Weld joined with Democrats Stephen Baldwin, Bob Beach, Paul Hardesty, Glenn Jeffries, Richard Lindsay, Mike Romano and Mike Woelfel to vote no.
Fairmont State President Mirta Martin said, “We’re grateful that the legislators took the will of the people into consideration. This is a day to rejoice in West Virginia.”
Carmichael was monitoring the action and paused on his way over to the West Wing to comment.
“There were some members that had a lot of reservations about it,” he said. The Republican caucus didn’t take a formal position on it. “We allowed everybody, as they should, to make their own decision on the bill. … These are issues that transcend partisan divide. I’m proud of the committee and the decision they came to.”
