I wanted to give a concise summary and commentary of what occurred January 24th through 26th during the First Special Session of the West Virginia Legislature, but I have not had the time until now. Hopefully this information will still be timely and relevant (and, may I dare to hope, interesting).

It is important for West Virginians to know what their legislature is doing. The special session was, for the most part, for the glory and honor of Governor Joe Manchin and nothing else.

The first bill was Senate Bill 1001: Authorizing excess contribution received by inaugural committees be expended for Governor’s Mansion.

This bill basically set up contribution limits for inaugurations to $5,000 and requires that any donation over $250 be reported. It also states that, “‘contribution’ does not include volunteer personal services but does include in-kind contributions of materials or supplies.” The responsible parties are supposed to file the appropriate papers with the Secretary of State within 90 days after the event.

The bill continues, “In addition to any other information required by the state election commission, the report of contributions required by the provisions of this section shall include the methodology of the fundraising, the nature of the expenditures made and the names, addresses and amounts paid to any person.”

In other words, not only are contribution amounts and donor names and addresses reported, so is the way the funds were raised, what the funds were used to purchase and who was paid. That, to me, is highly obtrusive and exceeds reason. While it can be argued (not that I agree, mind you) that the State has an interest in seeing if a candidate is being “bought” by a person or group of persons, the State has no defendable interest in knowing how the money is spent.

Secondly, the bill allows the inauguration committee to donate excess funds to any “educational, cultural or charitable organization, or to the governor’s mansion fund created in section two, article four, chapter five-a of this code.”

A copy of this bill can be found online.

This bill passed both houses and is on the desk of the Governor to be signed or vetoed.

The second bill was Senate Bill 1002: Relating to reorganization of executive branch of state government.

This bill is very extensive and detailed. As you can tell by the summary, it deals with a reorganization of certain parts of state government. To be honest, I have no idea whether these changes will be for the better. Here is a detailed summary of what was done:

• relating to the reorganization of the executive branch of state government;
• establishing prerequisites for bond issuance and refunding;
• creating a new department of commerce in the executive branch of state government;
• creating the office of secretary as the chief executive officer of the department of commerce;
• providing for the transfer to and incorporation into the department of commerce of the bureau of commerce and numerous state divisions, agencies and boards and allied, advisory, affiliated and related entities and funds;
• describing the powers, duties and authority of the secretary, administrators, division heads and employees of the department of commerce;
• providing for annual reports by the secretary of the department of commerce to the governor;
• providing for the delegation of powers and duties for the secretary of the department of commerce;
• extending authority of executive agencies to transfer funds;
• providing for interdepartmental communication of certain confidential information in certain cases

And it goes on and on.

Check out the online version of the bill if you want the details.

This bill passed both houses and is on the desk of the Governor to be signed or vetoed.

The third bill was Senate Bill 1003: Relating generally to ethical standards of governmental officials and employees.

Entitled the “ethics bill” it was supposed to be the “silver bullet” to unethical practices in the statehouse. Unfortunately, while the bill makes surface changes, it also makes significant errors.

The first is the “gag rule.” This amendment was slipped in by Senators Kessler, Chafin and Tomblin during the second reading in the Senate:

“No person who has filed a complaint, provided information to the Commission or has knowledge that the Commission is undertaking an investigation and no Commission member or employee or former member or employee shall disclose:
(A) His or her knowledge that a complaint has been filed or an investigation has been undertaken;
(B) Any information he or she obtained as a result of having interacted with the Commission in connection with a particular investigation;
(C) The fact that he or she has filed a complaint, provided information to or testified before the Commission or otherwise participated in the Commission investigation; or
(D) The contents of any investigations, complaints, reports, records, proceedings, and other information received by the Commission and related to complaints made to the Commission or investigations conducted by the Commission pursuant to this section, including the identity of the complainant or respondent…”

According to the bill, you cannot disclose any information to the general public about anything you have reported to the Commission. This gag order has been reviewed by the brilliant legal minds in of our state and they all unequivically say the same thing: it isn’t Constitutional. The state is overstepping their bounds with this gag order.

Not only that, it makes no sense to “gag” anyone’s testimony. The Commission is supposed to be impartial so that no public outrage - no matter how opinionated - should affect their decision.

The second problem with the ethics bill was first pointed out by Harvey Payton, a local attorney. The bill says that:

“If the Commission finds by evidence beyond a reasonable doubt that the facts alleged in the complaint are true and constitute a material violation of this article, it may impose one or more of the following sanctions…”

Notice the words, “beyond a reasonable doubt.” This language is traditionally reserved for the most stringent legal cases that deal with criminal cases and is inappropriate and too stringent when it comes to the Commission investigating civil and/or administrative matters. “Beyond a reasonable doubt” is the highest level of proof required to win a case and necessary to get a guilty verdict in criminal cases.

Under law there are three basic degrees of standards in deciding cases.

Preponderance of the evidence: “the greater weight of the evidence required in a civil lawsuit for the trier of fact to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.” (dictionary.law.com) This is commonly referred to as “more likely than not.”

Under this standard, the Commission’s only requirement would be to decide if the allegations are probable. Preponderance of the evidence is the least stringent standard.

Clear and convincing: the clear and convincing standard of proof requires that the result shall not be reached by a mere balancing of doubts or probabilities, but rather by clear evidence which causes you to be convinced that the allegations sought to be proved are true.

Clear and convincing would require the Commission to be confident and sure of their decision based on the evidence.

Beyond a reasonable doubt: the strongest standard of all that is reserved for criminal cases. There must be no doubt that in the Commission’s mind that the allegations are unequivocally true.

As you can see, this bill is significantly weighed in the favor of the politician who finds himself in trouble. Just as long as unscrupulous politicians are not stupid enough to leave clear evidence of their misdeeds, under the current rule of culpability, they will remain unscathed. While the Commission could suspect wrong-doing, without irrefutable proof, they have no authority to rule in favor of the plaintiff. Couple that with the “gag order” and no one will ever know they were even indicted until after the fact.

An online copy of this bill is available at the West Virginia Legislature’s website.

This bill passed both houses and is on the desk of the Governor to be signed or vetoed.

The fourth bill was Senate Bill 1004: Relating generally to workers’ compensation.

This bill establishes the foundation to privatized worker’s compensation by 2008.

It takes care of the debt with a severance tax increase for gas, timber and coal. West Virginia is 50th in median income and 15th in highest taxes. Taxes always does two things, one obvious, the other disputed.

First, it increases income. You don’t need me to tell you that.

Second, it depresses the economy. This issue is doubted by liberal circles, but it is true. Taxes always depresses to some degree. For West Virginia, we are depressed enough. It is time for the Democrat leadership to raise money by cutting government programs and stop suppressing businesses growth in our state.

Check out the online version of the bill if you want the details.

This bill passed both houses and is on the desk of the Governor to be signed or vetoed.

Also of note is the pension bond amendment, HJR 101. This is the Governor’s own Ponzi scheme to fund the unfunded pension liabilities. His solution is to get a $5.5 billion, 30 year bond and pay it off $350 million a year. How does he plan to pay for the estimated 7.6% interest? That is where the “Ponzi” of his Ponzi scheme is. He plans to invest the $5.5 billion in the stock market. Yes, my friends, he will take your tax dollars and hope to heaven that he gets a return higher than 7.6%. Will it work? It very well could. But there always is a possibility of a return under - if not significantly less than - 7.6%.

Thankfully the State Supreme Court has previously ruled that no bond can be sold without a vote by the people. I don’t care to take the risk and I seriously doubt when we get to decide, the rest of West Virginia will either.

Text of the resolution.

So that is what happened - or didn’t happen - in the first Special Session of 2005. I was disappointed in how Manchin handled it. As usual, no matter what reality is, he declares it a success.

Special thanks to the one and only Marty Wright, the Senate Minority Legal Counsel, for reviewing this article.