Riley Moore’s Political Stunt Will Cost West Virginia Money

/in , , , , /by

Riley Moore is a nice young man from a prominent political family. He was elected to the House of Delegates in 2016 from the old 67th District (Harpers Ferry and Shepherdstown) and was on his way to becoming the House Majority Leader in 2018 when a funny thing happened – Jefferson County voters turned him out of office.

Trying another path to public office, Moore ran for West Virginia Treasurer and was elected in November 2022. One wonders why Treasurer is a political office, for which the successful candidate need only demonstrate political skills not financial ones.  Good thing for Moore, because he had no financial education or demonstrated financial skills. Before trying his hand as a politician Moore received a degree in Government and International Politics and had a job with a defense contractor.

As Treasurer, Moore has relentlessly pursued a political agenda. In the last eighteen months, he has taken credit for two “culture war” policies that became laws after approval by the Republican super-majority in the Legislature. No surprise there. Let’s call them Moore’s Law No. 1 and No. 2. Both laws attack considering “ESG” factors (environmental, social, governance) in the investment of state funds. In case you hadn’t heard, ESG investing is the latest boogeyman of the political right.

West Virginia needs easy access to the municipal bond market to fund its needs and also has $34 billion in pension funds to invest. It retains respected banks and investment companies to create a market for its bonds and to invest the pension funds. Like any other investor, the state wants to get a reasonable return on its investments while minimizing unnecessary risks. Consideration of ESG factors that have a material impact on a company’s health is an important part of a sound investment policy. To ignore these risks would be irresponsible.

Considering ESG factors is not political, it’s just smart business. For example, if we invest in a coal company, will that investment have eroded in five or ten years? What if the market for coal dries up because of tougher government regulations or cheaper gas and renewable energy sources? On the other hand, does a company that develops clean water technology give us the return we want and provide a safer long term place for our money? Considering ESG factors does not undermine the pursuit of return on investment — ESG investors still seek the best returns. But it also better protects those returns from risk.

Nevertheless, Moore and his allies insist on making investing state funds a political issue. To them even considering ESG factors is a practice of “woke” liberals that West Virginia should reject. In one of his shrill press releases, Moore told West Virginians that “the ESG crusade being perpetrated by the liberal elites must be stopped!” This is just nonsense politics about culture, not economics.  In this posturing for right-wing votes, Moore has threatened the stability of state investments and will cost West Virginians money in the bargain.  He either doesn’t understand why it is important for investment managers to consider ESG factors or doesn’t care.

Moore’s Law No. 1 was enacted in 2022.  It empowers Moore as state Treasurer to create a list of financial institutions that, in his opinion, unreasonably “boycott” or limit commercial relations with any company engaged in the fossil-fuel based energy business.  Moore is authorized to disqualify firms on the restricted list from competitive bidding for state banking contracts or refuse to enter a banking contract with such firm, regardless of how financially advantageous to the state that contract might be.

Moore’s restricted list includes five of the largest, most sophisticated financial institutions in the United States — BlackRock Inc., Goldman Sachs Group Inc., JPMorgan Chase & Co., Morgan Stanley, and Wells Fargo & Co. They provide banking services by generating a market for bonds issued by West Virginia state governmental units. The non-profit Sunrise Group commissioned a study of the costs to states who adopt anti-ESG legislation like Moore’s Law No. 1. The study estimated that in a single year of refusing to do business with these five firms, West Virginia would have to pay increased interest on its bonds of between $9 million and $29 million.

How have the five financial institutions targeted by Moore “boycotted” fossil-fuel energy companies to justify disqualification from doing business with West Virginia? Moore’s press release concerning BlackRock explained it – and you’d better cover your children’s ears for this one. BlackRock was disqualified because it “has urged companies to embrace ‘net zero’ investment strategies.” Seriously?

Isn’t this simply an effort to use politics to interfere with market forces, a practice free-market Republicans are supposed to hate? According to Dana Milbank, writing in the Washington Post, Moore and fellow Republican treasurers in other states are determined to “stop the free market no matter how much it costs.”  He reported that the Kansas Public Employees Retirement System expects that anti-ESG legislation could cause more than $1 billion in losses from early sale of assets and reduce returns by $3.6 billion over a decade. Arkansas public pension authorities said anti-ESG legislation there would cause them to lose $37 million per year.

West Virginia’s Treasurer doesn’t control the investment decisions for state pension funds. These funds are invested on the state’s behalf by banks and mutual funds at the direction of the West Virginia Investment Management Board and the Board of Treasury Investments. Periodically, our investments require these investment boards to vote as a shareholder on the direction of the corporations into which our funds have been invested. Moore’s law No. 2 requires these boards to consider only “pecuniary” factors when casting these shareholder votes. The law specifically states that “environmental, social, corporate governance, or other similarly oriented considerations are not pecuniary factors” unless they have an immediate financial impact.

When Moore’s Law No. 2 was enacted in 2023, he boasted by saying that the law was “leading the way to fight back against woke activists who want to use our state investments and retiree pension dollars to advance extreme political and social agendas.” Presumably he means saving the planet from catastrophic climate change.

The problems with Moore’s Law No. 2 are many, but the most significant is that it requires state investment board members who cast our votes to ignore long-term, systemic factors that, as fiduciaries, they can’t ignore. A 2021 study by the insurance giant Swiss Re estimated that by mid-century the world stands to lose 10% of its economic value from climate change. Moore’s Law No. 2 requires that our investment board trustees ignore this looming crisis and puts them in jeopardy of violating other state and federal laws regarding fiduciary duty.

Not to be unkind, but Riley Moore couldn’t think this stuff up on his own. Key features of Moore’s Law No. 2 are lifted straight from a template provided by the American Legislative Exchange Council to conservative legislators around the country. ALEC’s mission is to protect fossil-fuel energy industries at all cost, while instead claiming to be interested in small government. Moore’s Law No. 1 is based on a similar template that now even ALEC won’t support after complaints by the American Bankers Association that “government should not be dictating business decisions to the private sector.”

The point is that Moore’s legislative efforts do not spring from his own genuine concern about protecting West Virginia, as he claims, but rather from an ideological platform used by ultra-conservatives around the country. Other Republican-dominated states have passed nearly identical laws. Moore is taking advantage of this tool to become a Ron DeSantis clone, slaying the “wokeness” dragon. That plays to a certain crowd.

This all comes into better focus when you consider that Riley Moore is running for Congress. When the time comes, he will trot out his anti-ESG efforts to prove his conservative credentials. But his aggressive attack on the “liberal elites” and their evil conspiracy to halt climate change is just a boneheaded political stunt undertaken for the sake of publicity, without consideration of the costs it will impose on the average West Virginians Moore claims to protect.

Solar Energy and the Legislature: A Power Play in Charleston

/in , , , /by

For a state beholden to the coal and natural gas industries, solar energy generated a lot of heat at the recent West Virginia legislative session. Two initiatives concerning alternative energy, including solar, were introduced. One survived and will become law. Unfortunately, the survivor is a timid effort to attract a specific hi-tech enterprise that will involve no new solar energy facilities unless that enterprise locates here. But progress on renewable energy in West Virginia will have to be made in small steps, and this was a start.

The unsuccessful initiative – SB 759 – contained a number of wonderful ideas that would have enabled commercial and individual property owners to develop alternative energy for their own consumption.  The bill would have accomplished this by authorizing municipalities to establish low-cost alternative energy revolving loan programs to assist the property owners. Interest rates charged on the loans from these programs would have been below prevailing market rates.

The alternative energy technologies eligible for loans from the municipal loan program included solar photovoltaic projects, solar thermal energy projects, geothermal energy projects, as well as wind energy, biomass or gasification facilities for generating electricity.

SB 759 was introduced by Democratic Senators Robert Plymale and Mike Woelfel, both from District 5 (Cabell and Wayne counties). It was referred to the Government Organization Committee, the place where bills of this sort go to die. At the end of the session 67 bills, including SB 759, had expired in that committee with no action.

The survivor of the two initiatives — SB 583 — was introduced by Republican Senator Patricia Rucker of Jefferson County, among others. This bill will authorize electric utilities in the state to construct or purchase solar energy facilities on sites that have previously been used for industrial, manufacturing or mining operations. Wind and other alternative energy sources are not covered.

Demonstrating how timorous this initiative is, solar facilities under the law can only be built in 50 megawatt increments. When 85% of the power from the first increment is under contract, facilities for the next 50 megawatts can be built. No single such facility can generate more than 200 megawatts and the state-wide cumulative generating capacity of renewable energy facilities can’t exceed 400 megawatts. Evidently, neither the utility industry nor the coal industry wanted a lot of excess solar power sloshing around that would require companies to reduce coal-fired power generation.

This bill surprisingly had the support of the West Virginia Department of Commerce. It seems that whenever the business recruiters at the Department tried to lure tech companies to the state, these companies insisted on the availability of solar energy. Well, of course, we have had no such capacity.

The particular focus of the Department’s recent efforts is a company that proposes to build a research and development facility in Preston County that will test ultra-high speed transportation systems. The provisions of SB 583 that enable utilities to recover their costs for constructing solar facilities will sunset in 2025, by which time this company will either have located in West Virginia or not. So despite the high-sounding rhetoric about the need for West Virginia to enter the twenty-first century world of renewable energy, the real driver of this legislation was immediate business development and not a long-term commitment to renewable energy.

A similar bill – HB 4562 – was introduced in the House and debated extensively in the House Energy Committee, where it appeared to be stalled by objections from the coal industry. When SB 583 was passed by the Senate and sent to the House, it sidestepped the troublesome Energy Committee and went straight to House Judiciary and then to the House floor. Debate there was contentious. Delegate Tom Bibby, a Republican from Berkeley County, grumbled 

If renewable energy and solar energy were so good they (the tech companies) could afford to pay for it themselves. Renewables may sound nice and good, but they are heavily subsidized. To say coal-fired power plants won’t suffer from this legislation is just sticking your head in the sand.

House environmental advocates were initially considering an amendment that would broaden SB 583 to include solar power purchase agreements (PPAs). These are contractual arrangements where a third-party developer designs, finances and installs a solar energy system on a customer’s property at little to no cost. The developer sells the power generated to the host customer at a fixed rate that is typically lower than the local utility’s retail rate.

However, the idea for an amendment allowing PPAs was dropped. Democrats favoring the amendment had little time to gather support and it was feared that complicating the process would threaten passage of the main bill. Karan Ireland, lead lobbyist for the West Virginia Environmental Council, lamented that “what we see is utilities calling the shots and getting everything they want in the process.”

So West Virginia will move forward with a solar facilities law limited in scope that was carefully managed by electric utility and coal interests to avoid any threat to the existing carbon-based power generation monopoly in the state. The motivation for this law had nothing to do with any recognition that burning coal is fouling our air and literally killing us. Nevertheless, it is a first step and progress will have to be made this way.

Charter Schools: The Real Threat to Public Education

/in , , /by

Those who have been following the Brexit debacle in the UK will be familiar with the terms Leavers and Remainers. Leavers are the faction who want Britain to leave the European Union, where it has prospered for decades. Remainers are the faction who want Britain to stay. West Virginia has its own version of Leavers. Our Leavers, led by Senator Patricia Rucker of Jefferson County, want to set up a system of charter schools that would permit parents to remove their children from public school. But the evidence does not show that students at charter schools perform better. Worse yet, the Leavers want the rest of us to pay for this scheme with our tax money, draining funds from already underfunded public schools.

Senator Rucker was appointed by the Republican leadership in the West Virginia Senate to be Chair of the Senate Education Committee. This Committee has first crack at any legislation affecting our public schools. She is an odd choice for this role. Her education views have been described as “extremist and in many ways anti-public education.”

Senator Rucker has five children, all of whom have been home schooled. At the very least, this shows some sort of distaste on her part for public schools. For this and other reasons the Charleston Gazette-Mail, West Virginia’s largest and most influential newspaper, declared that she was a poor choice for Education Committee Chair.

The Republican members of Senator Rucker’s Committee recently advanced SB 451, known as the Omnibus Education Bill. This 133-page Bill covers many topics, including teacher pay raises. It contains a complicated charter school provision and a provision for Education Savings Accounts into which the state would deposit money for parents to spend on private school education for their children, including religious schools and home schooling.

The Bill was passed out of the Education Committee to the floor of the Senate, from where it was scheduled to be referred to the Finance Committee. But the Republican leadership somehow forgot that they did not have the votes on Finance.  As a result, they quickly resorted to parliamentary hard-ball by declaring the full Senate a Committee of the Whole and bypassing the Finance Committee. This has been done only four times in state history. A revised Bill will probably pass the Senate and move to the House in the week beginning February 4, 2019.

Since the late Nineteenth Century, American public education has produced legions of well-educated students who have gone on to productive lives. Our system has been the envy of the world. Recently, our system of public education has been weakened by poor funding and low teacher pay.

It has also been undermined by conservative ideologues like Secretary of Education Betsy DeVos pushing alternatives to public school, such as charter schools, mostly in the name of parent choice. But there are already private schools in West Virginia – Jefferson has two and Berkeley has five. And there are over 11,000 home school students in West Virginia. So it cannot be a desire for alternatives to public school that is driving the Leavers.

Private schools charge tuition for attendance. These private schools are not the charter schools contemplated in SB 451, although private schools could qualify if they successfully complete the application process. Unlike private schools, SB 451 prohibits charter schools from charging tuition or fees.  Instead, they would be funded by a portion of the tax money that would otherwise fund public schools.

One issue that is not addressed in the text of SB 451 is whether private religious schools may qualify as public charter schools. An applicant for a charter must be a 501(c)(3) organization, but religious schools can possess that tax designation. Although there is a provision entitled “Prohibitions” in SB 451, it does not include a prohibition on a religious course of instruction. So SB 451 has the potential to allow public religious charter schools.

Charter schools would carve students and revenues from public schools and would recruit public school teachers. There is no way that public schools can be as strong after this bleeding. Charter schools might benefit students who attend them, but would harm students who don’t. This was precisely the issue raised by teachers in the recent strike in Los Angeles. That strike resulted in a moratorium on new charter schools.

Moreover, there is plenty of evidence that charter schools don’t deliver superior student performance. In a 2011 study of 36 charter middle schools in 15 states, the researchers compared charter school performance with local public schools. They found that charter schools showed some positive achievement results versus disadvantaged public schools but some negative results versus the more advantaged schools.  On average, however, charter middle schools in the study were neither more nor less successful than traditional public schools in improving student achievement.

Despite high-sounding language about improving student achievement, the oversight and accountability under the Bill would be weak. HB 451 requires the authorizing School Board to supervise the performance of charter schools, but only allows it to terminate a charter school for failure to perform after five years of performance or lack thereof.

The second major initiative proposed by the Leavers is the creation of Education Savings Accounts (ESA), in use in only five states. These would be different than the vouchers that have been tried in 15 states over the last two decades. Vouchers are usually issued to parents and submitted by them to qualified private or charter schools in partial payment of the tuition. Money flows from the government to the qualified schools when they present the vouchers for payment. With an ESA, the money flows directly to the parents of a qualifying student. The amount would be 75% of the state’s share of per pupil spending — $3,172 in 2018-2019.

The parents would agree to spend the money on tuition to a private school or an institution of higher learning, tutoring, textbooks, educational hardware and software, school uniforms, transportation to school and several other things. The West Virginia Treasurer would be tasked with developing rules for determining if funds have been misused. The Treasurer does not currently perform these duties in connection with any similar program.

As with charter schools, the ESA money provided by the state could be spent on defraying the cost of attending a religious school. This would be an unprecedented failure to respect the separation of church and state embedded in our Constitution. It would be wrong.

The revised SB 451 limits the number of ESAs to 2,500, but there is no means test for eligibility.  A substantial number of these ESAs could be created for parents who would otherwise send their children to private school even without an ESA. In that way the ESAs would benefit the wealthy, not those who presently cannot afford private school.

Furthermore, the amount of the state’s contribution to the ESA would be short of the typical West Virginia private school tuition of $4,761, leaving a financial hurdle for low-income parents. Finally, private schools in West Virginia are not evenly distributed. Over half of the state’s private school students attend school in one of five counties. Nineteen counties in the state have no private schools at all.

SB 451 is not only ant-public school, it is anti-public school teacher. Some wags around the Capitol have called the Bill “Mitch Carmichael’s Revenge,” referring to the current Senate President’s annoyance at last year’s teacher’s strike. Not only does SB 451 contain charter school and ESA provisions, which most teachers oppose, it contains a provision making union dues harder to collect and a provision barring teachers for receiving pay even if School Boards close schools during job actions as they did last year.

Clearly the Leavers are in control of the West Virginia Senate and its Education Committee. But SB 451 doesn’t become law unless it is also passed by the House of Delegates and signed by the Governor, who has threatened a veto. There is hope for our public schools.  Our leaders simply need to come to their senses to protect them.

Microplastics: An Emerging Concern for Animal and Human Health

/in , , /by

I cannot claim to be the most environmentally aware person in my neighborhood. I drive a car that is way too fond of gas, and often leave the lights on when I shouldn’t. So maybe I can be excused for not having heard of microplastics until now.

Plastic, which is a petro-chemical product, is produced in prodigious quantities around the world and has been an important advancement in modern life. But all this plastic has created its own set of problems. One visible problem is the huge amount of plastic trash – containers, fishing nets, straws – that floats around on the surface of the oceans. Plastic products also shed or deconstruct to tiny, sometimes invisible, particles and fibers. The effects of these microplastics are poorly understood now, but they are sure to become a concern for animal and human health.

Since plastics were first widely used in the mid-20th century, roughly 9 billion tons of it have been produced, most of which has become trash. This trash doesn’t biodegrade. A November 26, 2018 article in the excellent magazine High Country News speculates that scientists in the distant future will come upon a brightly colored layer of plastic material deposited in our time. Some geologists today refer to the current period as the Plastocene, and even recognize a type of rock made from naturally fused plastic and sediment called plastiglomerate.

Microplastics are particles smaller than 5 millimeters in diameter. Some have broken down from larger objects like tires or plastic bags. Some have been intentionally manufactured. Concern about microbeads, tiny plastic scrubbers in toothpaste and exfoliant washes, led to a federal ban on them in personal care products beginning in 2017. But perhaps the greatest concern now is the tiny synthetic fibers shed by clothing.

Synthetic fibers are long, thin strands of plastic woven into threads, much like wool. It is estimated that 58% of today’s clothing is woven with them. The fleece that keeps us warm in the winter is full of synthetic fiber. Synthetic blankets, sweaters and shirts also. A researcher in Australia set up three washing machines with special filters that trapped the microfibers after washing fleece garments. He found that they shed up to 1900 tiny fibers each time they were washed. These are too small to be captured by typical washing machine filters or municipal sewage systems. They go directly into our open water.

We are beginning to realize how widely microplastics are being taken up by animals in the lower orders of the food chain, such as invertebrate sea creatures, worms and insects. Mosquito larvae are also capable of eating microplastics and then retaining the plastic as adults. Dragonfly and midges, which also begin life as underwater larvae, are similar. Larger fish and sea animals that predate on the lower level creatures are likely to take up microplastics into their gut. And birds that make meals of insects are equally likely to take up microplastics.

Studies between 1962 and 2012 have revealed that 59% of examined seabird species have ingested plastics. Albatrosses, petrels and shearwaters contain more plastic that other species, probably because they feed in the open ocean and mistake floating plastic for prey. Most of this comes from pecking or otherwise ingesting small pieces of bottle caps, plastic bags, balloons, buttons and plastic lighters.

In the case of birds and other animals, it is unclear whether the plastic transfers from the gut to other organs and muscles. It may simply be ground up and pass through undigested. It is clear, however, that mortality rates increase among the birds that ingest large amounts of plastic. This could be caused by obstruction in the digestive tract, or an inverse correlation between the amount of plastic ingested and the amount of body fat the bird produces.

There have been no proper studies of the effects on humans of plastic uptake by fish and birds. Even scientists who work in the area concede that we have more serious environmental problems like carbon dioxide emissions and coastal erosion that require attention immediately.

But you can expect more attention to be paid to microplastics in the future. One reason is that they often act as sponges for other organic pollutants such as dioxins and PCBs. The molecules of these notably harmful chemicals shelter in the water-free environment found between the long carbon chains that make up plastics. A Japanese study found that 3-millimeter-wide plastic resin pellets found in Tokyo Bay contained organic pollutants one million times their concentration in ordinary sea water.

So how can an environmentally retarded person such as my own personal self act appropriately when it comes to plastic? One thing I do is ask for paper bags at the Food Lion. The check-out people see me coming and immediately go on break. Too bad – they will just have to get used to it. I also try to buy products packaged without plastic, but this is near impossible. Recently I found a big jug of olive oil in a glass bottle and snagged it. The more people do this the sooner manufacturers will get the message. And I will start buying cotton and wool garments, avoiding space-age synthetics. No more Speedo swimsuits.

But aside from modifying individual behavior, what can be done? West Virginia counties and cities still have the freedom to pass ordinances prohibiting one-use plastic packaging like shopping bags and water bottles. Last year, our ultra-libertarian Senator Patricia Rucker led a group of like-minded legislators in an effort to prohibit municipalities from passing ordinances relating to packaging and similar sinister left-wing topics. This effort failed, but she is likely to try again this year. If our newly-found environmental consciousness in Jefferson County has continuing strength, perhaps we can prevail on our local governments to tackle the plastic issue promptly.

Impeachment Trial of Justice Elizabeth Walker – Day Two

/in , /by

The historic impeachment trial of Justice Beth Walker resumed on October 2, 2018. This trial day was short, consisting of only one witness called by the House impeachment managers and closing arguments by the parties.

The West Virginia Constitution declares that “any officer of the state may be impeached for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor.” Walker has been charged in the Articles of Impeachment, which were broadly drafted to cover the conduct of the four Justices involved, in this language:

[Walker] did, in the absence of any policy to prevent or control expenditure, waste state funds with little or no concern for the costs to be borne by the tax payers for unnecessary and lavish spending for various purposes including, but without limitation, . . . to remodel state offices, [and] for regular lunches from restaurants.

Walker’s conduct described at the trial could only conceivably fall into the categories of maladministration or neglect of duty. If she has committed offenses, it is hard to see how they could rise to the level of a high crimes and misdemeanors, which are limited to serious offenses against the state like treason.

The trial has been presided over by Judge Paul T. Farrell, a Circuit Judge from Huntington who was appointed temporarily to fill the seat of suspended Chief Justice Loughry.  Farrell is Acting Chief Justice for the purpose of the impeachment trial. In his October 1 charge to the assembled Senate, which is functioning as the “court of impeachment,” Farrell said:

This is your decision and your decision alone . . . I urge you all to be West Virginians. Not Democrats, not Republicans, simply West Virginians, and base your decisions on what is best for the state of West Virginia and what is fair not only to Justice Walker, but what is fair to the House members who have brought these charges.

The witness called today was Mike McKown, former State Budget Director. He testified that the state was required to adjust its budget mid-year in FY 2017, which required almost all state agencies to take significant cuts. Because the budget for the Supreme Court of Appeals is not controlled by the Legislature, no budget cuts were imposed on the Court. Instead House managers emphasized these cuts as context within which to view Walker’s “excessive” spending to renovate her office.

In the closing argument from the House impeachment managers, Senators were asked to consider that Walker continued participating in state-paid lunches until a FOIA request was made about them, and to weigh heavily what she did “when no one was looking.” As for the renovations to her office, House managers argued that while everyone else in the state government was required to tighten their belts, Walker was spending money for a cosmetic renovation of her office rest room that benefitted nobody but her. Using a golf analogy, the House managers argued that Walker was asking for mulligans (extra chances) when she apologized and expressed regret.

Walker’s counsel argued that since she didn’t take office until January 1, 2017 she was not responsible for policies that were adopted before, especially since she had no power as an individual Justice to change them. He pointed out that she had been the sole Justice to vote against substantial salary increases for the Court’s staff during the 2017 budget crisis. While the House managers had suggested that ethical standards applying to lawyers should also apply to Justices in impeachment proceedings, Walker’s attorney argued well that lawyer disciplinary rules and “best practices” are not incorporated into the state’s Constitution as standards by which to remove a Constitutional officer.

At about 12:50 p.m., the court of impeachment was called back into session and Senators cast their ballots through the electronic voting system. An aye was a vote in favor of sustaining the articles of impeachment; a nay was a vote rejecting them. The vote tally showed one aye and thirty-two nays. The lone aye vote was cast by Senator Stephen Baldwin (D-Greenbrier). Chief Justice Farrell declared the articles of impeachment rejected as to Justice Walker and dismissed the proceedings.

However, Senators gathered in regular session shortly after the impeachment vote and agreed to censure Justice Walker. The censure is, in effect, an admonishment that will not affect her tenure in office.

Impeachment Trial of Justice Elizabeth Walker – Day One

/in , /by

Beth Walker is the first of four Justices of the West Virginia Supreme Court of Appeals to face an impeachment trial in the state Senate.  Her trial began Monday, October 1, 2018. She is alleged to have failed to control wasteful spending on working lunches which the Justices enjoyed on argument days and other days when there were administrative of judicial conferences. She is also alleged to have wastefully spent $130,000 on the renovation of her office.

Regarding the lunches, the House impeachment managers sought to show that court employees such as security guards and clerks who were not working directly on legal matters shared in the lunches. They further showed that the lunches were purchased, not from fast food restaurants or the Capitol cafeteria, but rather at “upscale” restaurants in Charleston. The average cost of one of these lunches was $16.77 with tip. This is somewhat more than the $13 GSA per diem for federal employee travel reimbursement in Charleston. The GSA rates were incorporated by reference into the 2016 and 2018 versions of the Supreme Court of Appeals travel policy. The House impeachment managers will argue that the GSA rates should apply to working lunches that did not involve travel.

Justice Walker was not initially concerned about whether it was appropriate for her and other Justices to enjoy working lunches paid for by the state because, as an employment lawyer for 26 years, she knew that employer-paid working lunches were typical and not considered income to the employee. For that reason, she testified, that accepting these lunches was not illegal and did not cause her total compensation to exceed the $136,000 authorized by law.

When another Justice began not participating in the lunches, Walker also began to have some personal concerns and requested the total amount spent on these lunches in 2017. When she ultimately got these figures she repaid the state 1/5 of the total. Walker maintains there was nothing ethically wrong about these lunches but that she simply decided as a personal matter not to participate. The House impeachment managers pointed out that her personal concern did not begin until the “spotlight” of a FOIA request was shined on the practice. But the West Virginia Judicial Investigation Commission exonerated Walker of any wrongdoing in connection with the lunches.

Walker replaced Justice Benjamin, to whose former office she was assigned. Although she could have requested used furniture from storage, she proceeded with a design contract with an outside firm. This was not out of the ordinary as Justices typically do not ask for used furniture for their offices. The outside design firm chosen was low bidder, but the price it proposed was later raised in a change order. Walker’s objective was to have an office that was functional, brighter than Benjamin’s dark office had been and a place where she and her clerks could work comfortably. The House impeachment managers sought to show that when the renovation money spent by Benjamin in 2010 is added to the amount spent by Walker in 2017, it was the second highest amount among all. Although she testified that she regretted overspending taxpayer funds on her office she admitted that she had not repaid these excess costs.

As an Associate Justice who began her term on January 1 2017, Walker was not involved in the adoption or failure to adopt policies on taxable fringe benefits, the use of state charge cards, home offices, or the inventory of state property. The Court’s Chief Financial Officer testified that individual Justices were not able to issue or modify Court policies. Walker was not paid a per diem by the state for days when she worked; she did not use a state car; she never asked for reimbursement for mileage in her personal car; and she never used a state credit card.  She paid for her judicial robe and catering at her swearing in ceremony out of her own pocket.

Walker was contrite about the working lunch allegation and office renovation overspending.  She apologized to the assembled legislators and the state taxpayers.  She admits that she should have been more aware and sensitive about overspending.  However, she does not believe these things amount to grounds to remove her from office. She believes she can contribute to the restoration of public confidence in the court.

On Day 2, the House impeachment managers will call one additional witness and then Walker’s attorneys will call witnesses.

The West Virginia Legislature Fails Its Budget Responsibility

/in , , /by

“Do Your Job!” This was a constant refrain heard from the thousands of citizens, many of them teachers, who filled the halls of the state capitol in late February and early March.

They were calling for investment in public education, and for decent salaries for themselves and thousands of other seriously underpaid public employees. The Legislature was dragged kicking and screaming into granting an average 5% raise.

This raise was critically important. But there is another critically important job the Legislature failed to do.

By essentially “rubber stamping” the proposed budget sent to it by the Governor, the Legislature failed to exercise proper stewardship of the public’s money. When it comes to the single most important document the Legislature produces each year, the State Budget, the Legislature did not do its job.

As to my bona fides, I served on the House of Delegates Finance Committee for 19 years (as Vice Chair for 10 years). Later, I was Deputy Secretary of Revenue for 3 years. I have learned the budget process from both the legislative and executive points of view.

Under our state constitution, it is the Governor’s responsibility to propose a budget. It is the responsibility of the Legislature to enact a budget. We on the House Finance Committee took that responsibility seriously and every year we went through the Governor’s proposal carefully, looking for places to economize.

Each of the members of the House Finance Committee was assigned individually to the proposed budget for one or more executive branch agencies to find money that might be cut or used elsewhere. It took us the first 30 days of each annual Regular Session to gather the information and about the next 20 days to compile and analyze it. We would make dozens of changes, sometimes over a hundred, to the Governor’s original proposal. When we reported our completed budget to the House floor during the last week of the session, we were confident that we had done our job up to that point.

But the job wasn’t finished. The Senate Finance Committee would send its budget to the Senate floor at the same time. A Budget Conference Committee for the two chambers would begin meeting as soon as the regular 60-day session was finished. It would usually take between five and seven days to finish. The Governor was always invited into the discussions. I served on this Committee for twelve straight years. The result would be a budget thoroughly vetted.

But that did not happen this year.

In recent years the Legislature has stopped being thorough in analyzing the Governor’s proposed budget. This year the Legislature didn’t even appoint a Budget Conference Committee to discuss ways to improve the budget.

This year’s final budget (FY 2019) included fewer than a dozen changes from the Governor’s proposal. And most of those changes were dictated by the decision (unanticipated when the Governor presented his proposed budget) to grant that 5% pay raise, which cost the state’s coffers about $150 million.

Either our present Governor is the smartest person ever to occupy the office, or the Legislature punted. I think the Legislature abdicated its responsibility to vet the governor’s budget proposal thoroughly. This was fiscally irresponsible.

The West Virginia Constitution permits the Governor to extend the Regular Session for as long as it takes to finish the budget. This is called the Extension of the Regular Session and is different than the Special Session that was required for the FY 2018 budget.  Each day of an extended regular session costs the state approximately $20,000. If this extension averages six days that would cost the taxpayers approximately $120,000. If that work can save at least $500,000 I argue it’s worth the expense. Every year I was on the Budget Conference Committee we saved at least several million dollars.

Because of this work we were able to significantly pay down the unfunded liabilities of the workers’ compensation fund and the various public employee retirement funds, and to establish the rainy day fund. We stabilized the public employee health care program, then called PEIB and now PEIA. The system was so behind in its payments in the 1990’s that medical providers were refusing to see state employees.

Through careful work and negotiation, West Virginia — a financial basket case in 1992 — became recognized as one of the half dozen most fiscally responsible states in the Union by 2012 when I left the Legislature. Our bond ratings were “junk” status in 1992, but had risen so much by 2012 that some were the highest rating (aaa-plus).

In the last four years the so-called “fiscal conservatives” in the Republican Party who lead the Legislature have raided our rainy day fund several times and have overseen a drop in our bond ratings. They have also slowed down paying off some unfunded liabilities. In my view this is fiscal irresponsibility. Their lack of budget scrutiny is another example of irresponsibility.

John Doyle resides in Shepherdstown. He is a Democratic candidate for the House of Delegates from the 67th District.

West Virginia Republican Legislators Propose “Death Star” Preemption Bill to Strip Counties, Cities and Towns of Power to Enact Progressive Policies

/in , /by

State preemption of local government is all the rage among conservative legislators around the country these days. Here’s how it works. Suppose the Jefferson County Commission wished to pass an ordinance banning plastic bags at grocery stores as a threat to the environment. Or suppose the city of Beckley declared it unlawful for a private employer within the city to ask for information about race or sexual orientation on employment applications. State preemption seeks to strip local governments of the right to regulate certain matters within their own borders. Usually these matters are of concern to progressive cities but not conservative Republican-majority state legislatures. And preventing West Virginia local governments from adopting progressive policies is just what the Panhandle’s own Senator Patricia Rucker and her conservative Republican colleagues are now seeking to do.

West Virginia is one of the states that follows Dillon’s Rule. In a nutshell this principle of law states that municipal governments owe their existence to state legislatures. They can be created, eliminated or limited in authority any way the state legislature decides. Unless a power is expressly given to the local governments, they don’t possess that power. Even in those areas where local governments have express power to regulate, those regulations cannot be inconsistent in any way with state law. This played out in the rejection of Morgantown’s local ban on fracking, which was found by the U.S. Fourth Circuit Court of Appeals to be inconsistent with the state’s licensing of drillers under its broad oil and gas laws.

The Legislature has expressly granted certain “home rule” powers to all West Virginia cities in WV Code 8-12-5. Among these are the powers to furnish local services, to protect order, safety and health, and to tax under certain limitations. West Virginia has also created the Home Rule Pilot Program, under which 34 cities can apply for extra power to solve specified problems. Martinsburg, Shepherdstown, Charles Town, Harpers Ferry and Ranson have been granted these limited extra powers.

But standard home rule power under WV Code 8-12-5 is generalized, leaving the municipalities much room for interpretation and action. For example, in order to protect order, safety and health a city might pass an ordinance banning handguns. That is where state preemption comes in. At the behest of the NRA, the West Virginia Legislature has specifically preempted localities from regulating firearms.

Other Republican-controlled states have gone much further to shackle local governments than preempting firearm regulation. Michigan, for example, passed what opponents called the “Death Star” bill because of the extent to which it imposed state control. That statute affected local government ability to pass ordinances that raised minimum wages, raised benefits, required sick leave, regulated union organizing and strikes, or regulated apprenticeship programs. As originally proposed, the Death Star would have retroactively invalidated local ordinances protecting the LGBT community. That feature was removed and the bill that passed has prospective effect only.

The vehicle for state preemption of local governments in West Virginia is SB 458 sponsored by Sen. Rucker and a handful of other Republican Senators. The Bill passed the Senate on February 15, 2018 on a vote of 22 to 12. Panhandle Senators Rucker, Charles Trump (R-Berkeley/Morgan, 15) and Craig Blair (R-Berkeley/Morgan, 15) voted in favor, while Sen. John Unger (D-Berkeley/Jefferson, 16) voted against. The Bill is now with the House Judiciary Committee.  The Bill is worded to apply to county governments as well as cities.

SB 458 is nearly identical to the Michigan Death Star bill. In fact, it is worse in some ways. It would retroactively invalidate any local ordinances that regulate matters the bill now would declare off limits to local governments. In addition to prohibiting local governments from regulating wages, benefits, paid leave, strikes and apprenticeship programs, SB 458 would preempt any effort by local government to restrict what information a private employer requests on an employment application. And in an obvious concession to certain business interests, SB 458 would preempt any local regulation of consumer products or their packaging. Think plastic grocery bags.

The retroactivity provision of SB 458 would invalidate several current West Virginia city Human Rights ordinances that regulate what a private employer may ask on an employment application. A non-exhaustive survey shows that Charleston (Code 62-81 (2)(a)), Beckley (Art IV, 10-450 (2)(a)), and Martinsburg (Code 154.03 (2)(a)) all have such ordinances.

It is no coincidence that the Death Star bills in Michigan and West Virginia are so similar. Both were taken from “model” laws written by the American Legislative Exchange Council (ALEC), of which Sen. Rucker is State Chair. ALEC was formed and is funded by big business and the notorious billionaire Koch brothers. It is determined to strangle local democracy because it rightly sees the normally more progressive cities as a threat to the libertarian agenda.

West Virginia’s local governments cannot be responsive to local needs and interests if their power to act is snuffed out from the start by conservative Republicans in the state legislature. Stopping SB 458 deserves your attention and action.

Panhandle Legislators Lead West Virginia’s “Bad Idea Machine”

/in , , , /by

Delegate Mike Pushkin, who represents Charleston’s East End in the House of Delegates, once quipped that the West Virginia Legislature is a “bad idea machine.” Our Eastern Panhandle delegation contains some of the leaders, if that is the proper term, in generating bad ideas. I have recently written that Sen. Patricia Rucker has sponsored a host of bills that advance her far right ideology and religious beliefs. Most notably, these include her sponsorship of Senate Joint Resolution 12 that would put on the November 2018 ballot a proposed amendment to the West Virginia Constitution declaring that nothing in that Constitution creates a right to abortion. Not to be outdone, her Panhandle colleagues in the House of Delegates have introduced pro-gun and anti-public school legislation that give Sen. Rucker a run for her money.

The recent teacher strike has highlighted how badly our government has allowed the state’s public schools to deteriorate. Until the settlement announced on February 27, 2018 is implemented, teacher salaries in West Virginia rank 48th out of 51 state jurisdictions. We are surrounded by states that value their teachers more. And yet the poor-mouthing by Governor Justice about the state’s inability to raise teacher pay was obviously just posturing in light of the 5% bump teachers will now receive.

If there is any truth to the “inability to pay” argument, that inability has been created by a decade of corporate tax cutting that has blown huge holes in the budget. Over this period, West Virginia has relentlessly cut corporate taxes. In the period 2007 to 2014, the Legislature reduced the business franchise tax from .7% to zero and reduced the corporate net income tax rate from 9% to 6.5%.

In the midst of a courageous walkout by teachers in all 55 counties, the Legislature was primed to hand business interests yet another tax cut in the form of eliminating the business inventory tax and may yet do so. Tax cuts for business are nothing more than a choice on how to “spend” revenues, in this case by forgoing revenue that otherwise would be collected and available. Until its hand was forced by the teachers, the Legislature was prepared to spend a big pile of cash on corporations instead of quality education.

But there is reason to question whether our Panhandle Delegates care about public education at all. Del. Michael Folk (R-Berkeley, 63) has introduced HB 2031, which would eliminate state payment for teacher training or professional development, and HB 2094, which would give home school parents a $100 tax credit per student. This tax credit would begin the process of permitting home school parents not only to opt out of public education but to avoid paying for it like everyone else. This folks is what libertarians want not only when it comes to public education but all government services.

When it comes to guns, our Panhandle Delegates are second to none in the bad idea category. Here Del. Folk fully reveals his extreme views. He sponsored HB 2311, which would declare any federal or local laws or regulations that attempt to tax, regulate or restrict gun ownership void and unenforceable in West Virginia.  He clearly needs some re-education about the Supremacy Clause of the U.S. Constitution.

The recent horrible school shootings have perhaps caused us to forget the equally horrible workplace shootings of the near past.  Del. Saira Blair (R-Berkeley, 59) may be too young to remember what “going Postal” meant to America but a few short years ago.  She has co-sponsored HB 4187, named the Business Liability Protection Act, but referred to as the Parking Lot Gun Act.  It would allow an employee, contractor or visitor to a business that bans guns on its property to nonetheless keep a gun locked up securely in their cars while parked in the business parking lot. The business would even be prohibited from inquiring whether a gun is in the car. This bill has now passed the House of Delegates.

In Committee, Del. Riley Moore (R-Jefferson, 67) offered an amendment to HB 4187 that was favored by the NRA to retain the full scope of this bad idea against efforts to soften it. State Chamber of Commerce President Steve Roberts, West Virginia Manufacturers Association President Rebecca McPhail and David Rosier, general manager of administration for Toyota’s Buffalo plant, have all come out against HB 4187, saying it would make their workplaces less safe.

Elections have consequences. The 2016 House of Delegates election produced this crop of Republican legislators and we are now truly living with the consequences. Fortunately, the winds of change are swirling.

Sen. Patricia Rucker: Leader of West Virginia’s Far Right Fringe

/in , , /by

In the 2016 West Virginia Senate election, voters in Jefferson and Berkeley elected Patricia P. Rucker over Stephen Skinner by a margin of 2,773 votes – 6.5% of the votes cast. Rucker is a stay-at-home mom from Harpers Ferry who home schools her five children. Voters in this area are usually moderate, and fringe views on either side of the political spectrum don’t attract much support. But by her activity in the Senate and the attention she has received from national far right political groups, it is clear that Sen. Rucker is no ordinary West Virginian.  Instead she has proven herself to be a leader in libertarian fringe politics to a degree that would shock most of the unsuspecting people who voted for her.

According to Rucker, she and her husband moved to West Virginia “as refugees from socialist Montgomery County [Maryland].” In 2009, she founded a local Tea Party chapter. After several years, that group restructured into a political action committee and began recruiting “liberty-minded” candidates for local office. Because none of these would step forward to challenge Skinner in the 2014 House of Delegates race, Rucker did. Skinner narrowly prevailed, but the two found themselves again opposing one another in the 2016 Senate race.

In connection with her 2016 election victory, the West Virginia Secretary of State reports that Rucker raised over $104,000. Heavily represented among her contributors were political action committees formed by corporations in the energy industry: First Energy PAC, AEP PAC, Arch PAC, Dominion PAC and Noble Energy PAC. She was also financially supported by other right-wing politicians in West Virginia: Peter Onoszko, Michael Folk, Eric Householder, Jill Upson, Elliott Simon and “Mooney for Congress.” The Tea Party group she founded and led – We the People of West Virginia – also donated money to her campaign.

Once in the West Virginia Senate, Rucker began to sponsor a slew of bizarre bills, many of which never got out of committee. A significant number of these bills would benefit people with the narrow interests and views held by Sen. Rucker herself. For example, several of these bills involve home schooling.  One called the “Tim Tebow Act” (SB130) would allow home school children to participate in public school extra-curricular activities like football. People who support this legislation want to pick and choose which aspects of public education their children will enjoy. She also led an effort to have pornography declared a “public health crisis,” claiming that it was hypersexualizing teenagers.

Acting on her own religious beliefs, Sen. Rucker has sponsored several bills attacking abortion. One is the “Life at Conception Act” (SB 405), which would contradict current U.S. law and make medical professionals who perform abortions in the first trimester of pregnancy legally responsible for violating a “right to life” of the fetus.

Just recently Sen. Rucker introduced Senate Joint Resolution 12 that would put on the November 2018 ballot a proposed amendment to the West Virginia Constitution declaring that nothing in that Constitution creates a right to abortion. This amendment would prevent the Constitution from being used to argue against further abortion restrictions, such as banning Medicaid funding of abortion, which Rucker is also pushing. After a successful vote in the Senate, the West Virginia ACLU issued a statement saying “25 legislators have chosen to side with misogynists and fundamentalist religious extremists who are hell-bent on imposing their own religious agendas on all West Virginians.”

Her effort to place the proposed amendment on the November 2018 state-wide ballot is also viewed by many as an effort to ensure turnout by religious fundamentalists in an election that appears to be trending badly for Republicans at all levels.

Sen. Rucker has also sponsored the “Taxation With Representation Act” (SB 399) whereby nonresidents of a municipality who work in that municipality and who pay a tax or user fee pursuant to a municipal ordinance would be permitted to vote in municipal elections. In other words, merely paying a user fee would enfranchise any person, who has no other connection or interest in a municipality’s affairs, to select the municipality’s elected officials. Anti-tax fanatics love this kind of thing.  Sen. Rucker has also engaged in blaming the victim. She sponsored a bill (SB60) that would have added work requirements for SNAP benefits (food stamps).

By virtue of her performance as a legislator, Rucker has risen in the esteem of right-wing groups. For example, she was selected to be the State Chair for the American Legislative Exchange Council, an organization funded by large corporations and the notorious billionaire Koch brothers. This innocuous-sounding organization is actually a libertarian legislation mill for sympathetic state legislators around the country. According to the group’s website, it works with legislators “dedicated to the principles of limited government, free markets and federalism.” ALEC creates “model” laws and policies, among which are model state resolutions calling for the U.S. Congress to convene a convention to amend the Constitution under Article V.

An Article V convention by which to advance a balanced budget amendment to the Constitution is the dream of the Koch brothers and all libertarians. In her groundbreaking 2017 book Democracy in Chains, Nancy MacLean details how a balanced budget amendment would be used to handcuff Congress and ensure that spending would be virtually eliminated for Social Security, Medicare, Medicaid and all other discretionary social spending the libertarians hate. This would be the case despite overwhelming support for these programs by the majority of voters.  Even conservative legal scholars like Justice Antonin Scalia have opposed a constitutional convention because there would be no telling what dangerous proposed amendments would emerge.

Alarmist you say? It could never happen here? Article V states that the Constitution can be amended when two-thirds of the state legislatures apply to Congress to convene a convention and any amendments that that are proposed are ratified by three-fourths of the states.  Two-thirds of the states would be 34 states.  In 2016, West Virginia became the 28th state to apply for a convention. That application (HCR36) is straight out of the ALEC playbook. In the current West Virginia legislative session, two related pieces of legislation have been proposed that double down on this effort.

On January 26, 2018, Rucker and others introduced a Senate Resolution (SCR9) which again calls on Congress to convene a convention, asserting that Congress has abused its power by creating a national debt, that the federal government has ceased to follow the Constitution, and that the states themselves can limit such convention to amendments that “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.”

At the same time a second, breathtakingly anti-democratic companion piece of legislation (SB95) was introduced by Rucker and two other libertarian fringe Senators — Robert Karnes (R-Upshur, 11) and Mark Maynard (R-Wayne, 06). It would prohibit a West Virginia delegate from participating in any convention where the states are represented proportionally by population. In other words, each state may have only one vote regardless of size. This would shift power to rural states and away from large blue states like California and New York. Further, SB95 calls for immediate removal of any West Virginia delegate who votes for an amendment outside the purposes in the state’s application and would subject that delegate to criminal prosecution. Sen. Rucker’s two pieces of legislation seek to rig the rules of a convention to ensure the outcome the libertarian right desires even though the majority of West Virginia voters might want another outcome.

Sen. Patricia Rucker is not simply a benign legislator with a few quirky ideas.  She is on a mission to impose her libertarian and religious fundamentalist views on the rest of us in whatever way she and her like-minded colleagues can manage. Along the way, she will dispense with majority rule democracy as an inconvenience in achieving the end she seeks.