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March 30, 2009


House and Senate committees worked late last week to get bills out of their committees and to the floor.  Sunday was the last day to conclude committee action to ensure that the bills can be read three separate days.  Bills that didn’t meet yesterday’s deadline will require the rules to be suspended which calls for a four-fifths vote of the members present.  Bills that are contentious usually don’t get enough votes to have the rules suspended, so lawmakers will be pushing to get bills through the committee process and to the floor for a vote.  April 1, the 50th day of the session, is the last day for a bill to pass in its house of origin in order to be considered in the final ten days of the session.  However, bills can be originated in committee anytime between now and the end of the session. Below are a few of the bills of interest to CAWV members.




S.B. 680 was voted out of Senate Finance Committee Thursday and is on First Reading on today’s Senate calendar.  It is poised to pass the full Senate on Wednesday. S.B. 680 freezes the wholesale gas tax in 2010 at the current 11.7 cents a gallon.  The WV Division of Highways and the CAWV are working on the assumption that the price of gasoline will not rise in 2009 to the level the current wholesale tax is based upon.  If the wholesale price does not rise to $2.34 a gallon – the basis for the 11.7 cents tax – the wholesale tax will drop in 2010.  The wholesale tax generates approximately $14 million per penny, so a three to five cent drop in the tax would cost the State Road Fund between $42 million and $70 million.  If gas prices rise in 2009, the tax would stay the same in 2010 with passage of the bill. However, the administration and the legislature froze the tax twice from going up and the highway department is working on the presumption that the tax will be reduced, not increased.


Many CAWV members called their senators asking them to vote in favor of S.B. 680.  It passed unanimously out of the Senate Finance Committee. Finance Chairman Walt Helmick, D-Pocahontas, was never a proponent of the previous gas tax freezes, often commenting that the action has cost the highways program almost $120 million.  The bill is expected to pass the full Senate Wednesday and go to the House of Delegates.  Members will receive a CAWV Legislative Alert this week asking them to start contacting members of the House Finance Committee.




S.B. 63 increases the amount from the State Excess Lottery Revenue Fund that is deposited each fiscal year into the Higher Education Improvement Fund from $10 million to $15 million.  The bill passed out of Senate Finance Committee Thursday and is on First Reading in the Senate today. The education fund is one of the entities designated to receive excess lottery funds.  Other construction programs receiving lottery proceeds are the West Virginia Infrastructure Council, School Building Authority and state parks improvement projects. S.B. 63 increases by $5 million the amount available for higher education construction projects.  In a related issue, Senate Concurrent Resolution 14 authorizes the issuance of revenue bonds payable from the State Excess Lottery Fund to provide for new capital improvements, consisting of facilities, buildings and structures for state colleges and universities.  SCR 14 was approved by the Senate Finance Committee and is on the Senate’s calendar under Unfinished Business.




S.B. 246 raises the unemployment compensation wage threshold from $8,000 to $12,000 until the unemployment comp trust fund balance reaches $220 million when the wage base will be $10,000.  After July 1, 2009, if the fund dips below $180 million, a temporary solvency assessment of .075 of one percent will be imposed on all employees and .25 of one percent will be assessed to employers.  Governor Joe Manchin has introduced S.B. 246 in light of the rising unemployment in West Virginia.  The current trust fund balance is approximately $200.5 million.


The business community has pushed for reforms to the benefit package, including prohibiting striking employees from claiming benefits.  Benefit provisions include: 


                      If an employee quits due to health related reasons, he must notify the employer within two days of leaving the job and provide a written statement from a doctor within 30 days.

                      Under current law, a claimant should be guilty of gross misconduct if he/she was under the influence of alcohol or any control substance while at work. SB 246 adds the following language to the gross misconduct definition: “adulterating or otherwise manipulating a sample or specimen in order to thwart a drug or alcohol test; refusal to submit to random testing for alcohol or illegal controlled substances for employees in safety sensitive positions…”

                      A definition of lockout is added to the labor dispute section of the law and states benefits will not be denied if employees are not permitted to work.

                      If an individual accepts an early retirement package, unemployment benefits will not be paid unless the claimant can establish a “well-grounded fear of imminent layoff” and “establish that he or she would suffer a substantial loss by not accepting the early retirement package.”





Sen. Don Caruth, R-Mercer, offered an amendment in the Senate Judiciary Committee last week that restores the prime contractor / subcontractor relationship as it relates to workers’ compensation.  S.B. 537, introduced by the Insurance Commission, would have made prime contractors liable for any claims made by employees of a subcontractor on their project if the subcontractor lets their workers’ comp coverage lapse.  After much discussion between the business community and the Insurance Commission, the bill was amended to make the prime only responsible for a subcontractor with whom there is a direct contract.  This version still posed problems as a prime may not be notified for 30 to 45 days that a sub has gone into default, making the prime liable for claims made by an injured employee of a subcontractor.  Sen. Caruth’s amendment protects the prime contractor in the event they do their due diligence and obtain a certificate of insurance from their subcontractors.  The bill has been read a first time and the Senate Finance Committee is expected to take up the bill today.




H.B. 2863 relates to the way utility projects are designed and constructed.  Introduced by the Water Development Authority, the bill does a number of things. It increases to thirteen the number of members on the West Virginia Infrastructure Council by adding an engineer and utility contractor, caps  engineering fees on water and sewer projects, reduces the time periods for the Public Service Commission to review and approve certain applications by public utilities for a Certificate of Public Convenience and Necessity, and requires a study of engineering costs the by the West Virginia Infrastructure Council.  The bill is on Second Reading in the House today.




Bills needed to be out of committee on Sunday, March 29, in order for them to be read three separate days.  Bills that didn’t get out of committee Friday (legislators ended their work Friday and did not meet Sunday) must now have the rules suspended and controversial bills usually don’t get the fourth-fifths votes needed to get them on the agenda.  With this said, it is expected that H.B. 2478, requiring contractors working on public works projects to provide health insurance for their employees, will not pass this year.  Another bill, H.B. 2923 which requires contractors to submit a list of their subcontractors within two hours of bid opening, did not come out of committee.  The governor’s bill to change the way the WVDOH and Water Development Authority procures engineering services did not make it out of House Judiciary Committee.  H.B. 2977 would have changed the procurement method, known as 5G, from the Quality Based Selection process to a competitive bidding process.  The engineering community had a public hearing two weeks ago and a number of engineers presented testimony against the bill.  However, no bill is ever dead until the final day of the session.  The administration still has the option to get a bill originated in a committee and keep the issue alive.  At press time, the Senate Government Organization Committee is said to be considering this option.


A full list of bills that did not make it through the legislative process will be in next week’s Legislative Bulletin.