Day of Session


Days Remaining


Bills Introduced (Includes House pre-filed bills)




Quote: "When they (students) fail, you (teachers) fail, but you can’t link it to what kind of teacher it is.” – House Education Committee Vice Chairman Brady Paxton, D-Putnam, discussing a teacher evaluation bill considered by that committee February 3, 2011.  According to several committee members, a multitude of factors affect student performance, including parental support and involvement.


Williamson Shriver Architects

The Thrasher Group

McKinley Architects & Engineers

February 4, 2011 - Volume 31 Issue 7


“Journalism is literature in a hurry.” – Matthew Arnold (1822-1888), British poet and cultural critic.

By Jim Wallace

The Senate and the House of Delegates compromised this week on when to hold primary and general elections this year for West Virginians to choose the next governor. The primary will be on May 14. The general election will be on Oct. 4.

The Senate had wanted a June 20 primary and Oct. 4 general election, as proposed by Senate President Earl Ray Tomblin, who has been acting as governor since mid-November, when former Gov. Joe Manchin became a U.S. senator. The House had opted for a May 14 primary and Sept. 13 general election. But the Senate proposed the compromise, and the House accepted.

However, at least one lawmaker thinks the Legislature still must address a problem that became apparent when Tomblin became the first Senate president since 1869 to fill a vacancy in the governor’s office.

“There is a pesky phrase in our Constitution, a phrase so made by two pesky words,” Delegate John Doyle, D-Jefferson, told his colleagues in the House on Tuesday. “The phrase is that upon a vacancy in the office of the governor, the president of the Senate ‘shall act as governor.’ The operative words are ‘act as.’ As long as those words are in the Constitution, we’re going to have a problem.”

Doyle said the state Supreme Court, in its decision calling for an election for governor before the end of this year, did narrow the gap of interpretation “from about a mile wide to about three quarters of a mile wide, but there’s still a lot of room for a future court to interpret those words. We need to get those words out of the Constitution.”

One way to do that, he said, is to adopt a resolution that he and others have proposed that would replace “act as” with “becomes.” That would make it clear that, when there is a vacancy in the governor’s office, the Senate president would not just act as governor but become the governor.


By Jim Wallace

Legislative leaders are still hoping to do something during the current session to address West Virginia’s estimated $8 billion liability for OPEB – other post-employment benefits. But it’s not coming soon enough for school boards around the state.

Most of the school boards already have filed an appeal to the Supreme Court in their lawsuit against the state over OPEB.

The main objection of the school boards is that the state is requiring them to carry a large share of the liability on their books. It amounts to 40 percent to 45 percent of the total liability. But the boards contend the state is mainly responsible for creating that liability, which mostly represents health care benefits promised to current and future retirees from public sector jobs.

Several years ago, the Legislature decided to assign to school boards the portion of the liability that corresponds to their current and past employees’ benefits, even though it is the state that provides most funding for school employees’ salaries and benefits through the School Aid Formula. Also, it was the state that decided what level of benefits retirees should have.

“We are working on finalizing some draft legislation.” – Sen. Brooks McCabe

During monthly interim meetings between the 2010 regular legislative session and the current session, lawmakers considered a long list of recommendations for OPEB, including one that would take the liability off the school boards’ books and put it on the state’s books. But they were unable to come up with draft legislation to address OPEB before the current session began on January 12. Senate President Pro Tem Brooks McCabe, D-Kanawha, hopes that will change soon.

“We are working on finalizing some draft legislation as well as what I’ll call a resolution,” he said. “By that, I mean, there are a number of issues we need to address that aren’t legislative. So we’re trying to put that together. I hope to have something that we can start circulating within the week.”

In other words, McCabe, who has been the lead lawmaker on the OPEB issue, hopes to have something moving in the Legislature before the 60-day session is half over, but it is such a difficult issue that he cannot guarantee it.

“I haven’t met my recent deadlines, so I wouldn’t want to bet on it,” he said. “My sense is we’re getting pretty close to having something that we can start talking about.”


School boards are impatient.

But most county school boards were unwilling to wait to see if the Legislature solves their problem. They already have filed an appeal of their lawsuit against the state with the West Virginia Supreme Court.

That suit was filed during last year’s regular legislative session, when the boards tired of waiting for a legislative fix. However, later in the year, Kanawha County Circuit Judge Tod Kaufman rejected the lawsuit, suggesting the issue should be handled by the Legislature. But Andy Fusco, one of the lawyers who filed the appeal for the school boards, said the boards hope the Supreme Court finds that Kaufman erred.

“The basis of the appeal is the lower court focused on legislative and funding issues and that this is really a legislative problem when, in fact, the focus of our case is much narrower,” Fusco said.

“The problem we’re trying to redress is the fact that the Legislature – unconstitutionally we believe – has shifted the reporting obligation for OPEB to the individual counties.” – Andy Fusco, attorney for school boards

“The problem we’re trying to redress is the fact that the Legislature – unconstitutionally we believe – has shifted the reporting obligation for OPEB to the individual counties,” he said. “This is inappropriate in light of the fact that the state bears the burden of funding and fixing the problem. By forcing counties to show the huge OPEB liability on their books technically renders many counties insolvent. This is particularly unfair since the debt on their books affects their ability to provide essential educational services.”

Of the 50 school boards that jointly filed the original lawsuit, 49 of them are still involved in the appeal. Fusco said only Monongalia County dropped out.

“We seek only a declaration that this shifting of the reporting burden unconstitutionally infringes upon and impedes the ability of the county school boards to meet their burden of providing a thorough and efficient education,” he said.

Fusco said the boards didn’t want to wait on the Legislature any longer before filing their appeal, because they have been waiting on the Legislature for several years. Meanwhile, he said, the problem just becomes more exacerbated.


Senator wants to stop the bleeding.

However, Senate Judiciary Chairman Corey Palumbo, D-Kanawha, hopes the Legislature soon will take action on OPEB, which he calls “really the last piece of unmanaged debt that the state has, and I think for us to continue moving the state forward, we need to stop the bleeding in that program, which I think gets worse by about $40 million or $50 million a year.”

“I’m hopeful that we’ll take that up this year and put that issue behind us once and for all. Then we’ll have more money to devote to salary enhancements, and our state pay is so low for our workers and teachers.” – Senate Judiciary Chairman Corey Palumbo

Palumbo said lawmakers must come up with a funding stream to bring down the debt. That’s what they did to address other previously unfunded liabilities in the Teachers’ Retirement System and the old workers’ compensation system.

“I’m hopeful that we’ll take that up this year and put that issue behind us once and for all,” Palumbo said. “Then we’ll have more money to devote to salary enhancements, and our state pay is so low for our workers and teachers. Really until we get that behind us, it’s difficult to do those kinds of things. So I’m hoping that we can address that this year and then be able to deal with other issues moving forward.”

Fusco said the first step should be to put the debt burden for OPEB on the state and off of the books of school boards around the state.


By Jim Wallace

The House Education Committee has approved bills dealing with costs of school building demolition and playground construction, helping students in military families, providing suicide prevention training for school employees, tax exemptions for sales of certain goods and services at schools, teacher evaluations and job classifications for school service personnel.

The committee combined two bills into one, because they both deal with school construction costs. As originally written, House Bill 2511 was designed to permit county school boards to include the cost of building demolition in revenue bonds for construction projects. The committee amended into it the contents of House Bill 2435, which would allow the School Building Authority to provide funds for playground projects.

Dave Mohr, senior policy analyst for the committee, explained that school systems have not had problems with demolition costs when constructing a new building on the site of an old building, because that was considered part of site preparation. He said the bill would permit including in a bond issue the cost of demolishing an old building when its replacement is being built on another site.

The language from House Bill 2435 amended into the bill would allow the School Building Authority to include in funding for building new school facilities up to $25,000 for the construction of playground facilities.

“Even though $25,000 may be a low sum, it was felt that that would be adequate to start with.” – Delegate Stan Shaver

Delegate Tiffany Lawrence, D-Jefferson, asked why the limit of $25,000 was put in the bill. Mohr said the School Building Authority did not want the limit to be open-ended. The chairman of the subcommittee that recommended the bill, Delegate Stan Shaver, D-Preston, explained that the School Building Authority did not want school systems to try to include such expensive items as in-ground swimming pools, which could run as much as $250,000.

“Even though $25,000 may be a low sum, it was felt that that would be adequate to start with,” he said. “It really wasn’t anything pulled from the sky. It was more a concern about how it could be inflated.”

The committee approved the amended bill and sent it to the House Finance Committee for further consideration.


Bill would help students from military families.

House Bill 2550 would make West Virginia the 36th member of the Interstate Compact on Educational Opportunity for Military Children. It also would establish the West Virginia Council for Educational Opportunities for Military Children, as required by the compact.

As Candace Kraus, the committee’s chief counsel, explained, the compact is designed to ease the transition of students as their parents are transferred from location to location around the country. She said those problems include transfer of records and difficulties in sequencing courses.

“For instance with transfer of records, often official transcripts for students when they’re coming from another state or even from overseas, children could be placed incorrectly because some schools refuse to accept hand-carried copies of unofficial transcripts until they receive the official version,” Kraus said. “Often, this can jeopardize the proper placement of the student, particularly students that are involved in special education, gifted education, English as a second language and advanced placement.”

In regard to course sequencing, she said, states vary in the prerequisites they require, so some students are forced to repeat content or are prevented from participating in honors or advanced placement courses. In addition, Kraus said, variations in graduation requirements can cause problems.

“In some states, specific courses are required for graduation,” she said. “For instance, maybe in West Virginia it’s West Virginia history requirements. In Kentucky, it could be Kentucky history. As students travel around there may be courses that are similar in content but are required specific to those states. Often when students transfer in their junior or senior year, they have difficulty being able to get those classes in the course of their scheduling.”

“As students travel around there may be courses that are similar in content but are required specific to those states. Often when students transfer in their junior or senior year, they have difficulty being able to get those classes in the course of their scheduling.” – House Education Committee chief counsel Candace Kraus

Kraus said other big issues include differences in kindergarten and first-grade age requirements and problems with the powers of custodial parents or guardians while one or both parents are deployed.

As a member of the Interstate Commission on Educational Opportunity for Military Children, West Virginia would be assessed a fee to help pay for the commission’s operations. The fee is determined by a formula based on the number of students from military families in the state. Kraus said West Virginia has only about 260 such students so the projected cost to the state would be about $650,000, which would be a very small piece of the state’s budget.

Norman Arflack, executive director of the commission, which is based in Lexington, Ky., told delegates he’s looking forward to welcoming West Virginia into the compact.

Among the questions committee members had about the bill was whether it would open the possibility of allowing students to transfer among schools within the state to participate on certain athletic teams. Arflack said the compact governs only transfers from state to state, not within a state.

The committee approved the bill and had its second reference to the House Finance Committee waived, so it went directly to the full House of Delegates for consideration. The House approved Wednesday it on a vote of 97-0 with three members absent.


Educators would get suicide training.

For the second straight year, the House Education Committee has approved a bill labeled the Jason Flatt Act, which would require annual suicide prevention training for teachers, principals and school service personnel who have direct contact with students. Mohr said this year’s bill, House Bill 2889, is less extensive that last year’s bill, which did not get through the Legislature. He said it was revised to have less of a fiscal effect.

The bill is named after a 16-year-old student in Tennessee who committed suicide in 1997. Several states have passed similar bills.

The bill would leave it up to the state school board to determine the guidelines for the training. The Center for Professional Development would provide the training.

“We want to arm teachers with the facts and make sure they understand if students are facing some of these difficulties whether at home or in the classroom.” – Delegate Tiffany Lawrence

Delegate Stan Shaver, D-Preston, said, “I would visualize this as being extremely important.” He said that when he was a school administrator, if a student talked about suicide, he was contacted immediately and he got a counselor involved.

Delegate Tiffany Lawrence, D-Jefferson, said that, as a cosponsor of the bill and also of an amendment to it, “We want to arm teachers with the facts and make sure they understand if students are facing some of these difficulties whether at home or in the classroom…so that they can figure out the signs and signals before something does occur.”

Delegate Linda Sumner, R-Raleigh, said, “I see a direct correlation between drug abuse and suicide, and to me, this is a step to preventing both.”

Lawrence told the committee about an experience she had in 2006, when she was a motivational speaker on mental health. She spoke to students are more than 200 schools, where she took straw polls asking if any students had ever considered suicide. “There wasn’t a day that went by that I didn’t see at least 20 students – I calculated it very carefully – in every auditorium that raised their hands.”

Many teachers also raised their hands when Lawrence asked if they ever had any students come to them while considering suicide.

“There are too many students in our school systems that have been in these severe situations, when they’re not feeling good about who they are because of one issue or another,” she said. “We can empower our teachers to take these steps to gain more awareness.”

The committee approved the bill and sent it to the House Finance Committee for further consideration.


Schools could sell things without tax burden.

“Schools are charged with providing many more dollars than the state provides and many more dollars than the county boards of education provide.” – Delegate David Perry

The fourth bill the committee approved is House Bill 2811, which would exempt sales of personal tangible property and services by public and private schools from the consumer sales and service tax. The exemption would be available for only the first $100,000 of such sales in a calendar year.

“Schools are charged with providing many more dollars than the state provides and many more dollars than the county boards of education provide,” Delegate David Perry, D-Fayette, said. He said the bill would relieve schools of unnecessary paperwork associated with reporting taxes.

Mohr said the exemption is meant to apply to such things as supplies and clothing that bear school logos.

The bill goes to the House Finance Committee for further consideration.


Rules for evaluations and personnel actions would change.

Another bill the Education Committee approved is House Bill 2757, which would make changes in how teachers and other professional personnel are evaluated and in dates for personnel changes.

Among the date changes are:

  • The last date for a school board to terminate a professional contract would move from February 1 to April 1.
  • The deadline for transfer notices would be April 1.
  • The final date for hearings would move from March 15 to May 1.
  • May 1 would be the final date for a board to receive recommendations of probationary teachers to be rehired.

The bill is very similar to one the House passed last year during a special session on education reform, but that session ended without agreement on the bill from the Senate. It would provide for teachers in their first or second year to be evaluated at least twice a year, teachers in their third year to be evaluated once a year, and teachers with longer employment to be evaluated only informally unless they have received unsatisfactory evaluations.

“Teachers are not objectionable to evaluating them on things they control.” – Dale Lee of WVEA

A task force is working on what are expected to be more permanent revisions to the evaluation process. Members of that task force include representatives of school employees. One of them, Dale Lee, president of the West Virginia Education Association, said the task force recommendations should be ready soon.

“Teachers are not objectionable to evaluating them on things they control,” he said. “This doesn’t tie into test scores or too many things outside of teachers’ control.”

Judy Hale, president of the American Federation of Teachers-West Virginia, said the bill calls for pilot projects, which the task force also is considering. She said she would like to see different kinds of teacher evaluations.

“Nobody has figured out how to do this yet,” she said. “Foundations are spending lots of money. AFT itself has partnered with the Gates Foundation at 12 different sites across the country to pilot different kinds of teacher evaluations so that we can figure out how to get this right.”

House Education Chairwoman Mary Poling, D-Barbour, said the task force should be left to do its work, so the Legislature should not impose too many specifics right now.

Amelia Courts, assistant state superintendent in the Division of Educator Quality and System Support, said Education Department officials have been pleased with the support for the process from several interest groups.

Frank Collier, executive director of the Elementary Principals Association, expressed his satisfaction with the bill. “This is something I can see as doable.”

Howard O’Cull, executive director of the West Virginia School Board Association, said his group also supports the bill. As someone who has worked on the task force, he said, the evaluation issue is very difficult.

House Bill 2757 does not have another committee reference, so it goes directly to the full House of Delegates.


Service personnel would get different job titles.

Another bill affecting the operation of school systems, House Bill 2895, is a result of several months of talks between the state Department of Education and the West Virginia School Service Personnel Association. Bob Brown of the association said many job classifications for service personnel were outdated. Some had no employees or very few in them anymore, but the department was in the process of developing competency tests for all of them, he said.

“It occurred to us in our conversation that many classifications were obsolete or certainly archaic and didn’t really reflect the duties that evolved over the years,” Brown said. So working together, they cut 86 classifications down to 63 by eliminating, combining and modernizing, he said.

“We had a classification called keypunch operator,” Brown said. “We haven’t had keypunch operators for a long time. There were none in the state. We had another classification called lubrication man, which I assume at some point was someone walking around with a can of oil taking care of perhaps the motors of the pumps that drove some of the equipment in the schools. We had something referred to as a watchman. We could not determine what a watchman or watchperson was. We also had some classifications that had evolved over the years into something else. We had something referred to as a crew leader, but in another section, we had something referred to as a foreman. We thought those ought to be combined, so we combined a lot of them. We also created a couple of new classifications to reflect the changing technology. For example, we created a classification to deal with maintaining computer equipment in schools.”

The bill also includes a few pay increases for such positions as cafeteria managers and mechanics with certain types of certification from the American Institute for Automotive Service Excellence. Brown said another bill that will come along later in the legislative session would create a career ladder for cooks.

“This is a good bill.” – Bob Brown of WVSSPA

“This is a good bill,” he said. “We think it will go a long way toward modernizing all our classifications. It will be followed up with another bill that will be coming along that several of the doctors in the Legislature are promoting based on child nutrition.”

The committee approved House Bill 2895 and sent it to the House Finance Committee.

Delegates want to study needs of students with hearing difficulties.

In addition to the bills it approved, the House Education Committee also originated a resolution that stresses the importance of giving deaf students appropriate accommodations. It asks for a study of the barriers of students who are deaf or hard of hearing and whether current laws are adequate or implemented in a way that serves the needs of students.

Marissa Sanders, executive director of the West Virginia Commission for the Deaf and Hard of Hearing, said a group of parents came to the commission with a laundry list of concerns about educational attainment, services and accommodations their children are receiving and problems in the system.

“We thought the best approach would be to ask the Legislature to study the issues,” she said.


Agency is limited in keeping illegal aliens off of school construction projects.

The committee also heard from Mark Manchin, executive director of the School Building Authority. His presentation was similar to those he gave during budget hearings before the House Finance Committee and the Senate Finance Committee, which were reported previously in The Legislature.

“Obviously, the School Building Authority does not have an enforcement arm. We are a funding mechanism.” – SBA Executive Director Mark Manchin

Among the questions Manchin received from the House Education Committee was one from Delegate Ricky Moye, D-Raleigh, who wanted to know if the School Building Authority is doing anything to ensure that West Virginians get to work on school construction projects and that illegal aliens are excluded from them.

“Obviously, the School Building Authority does not have an enforcement arm,” Manchin replied. “We are a funding mechanism.”

The agency has only three people who go out to the counties, he said, so there might be some illegal aliens working on some projects. But if the agency is made aware of a problem by the Department of Labor or immigration officials, it will try to take action, Manchin said. The agency’s “biggest stick” is withholding money from projects that are not in compliance with the law, he said.

On whether West Virginians get preference for working on school construction projects, Manchin said, the state used to have such a preference, but it caused problems in border areas, particularly the Northern Panhandle, because neighboring states retaliated in like manner against contractors from West Virginia. So that provision was dropped years ago, he said.

The Senate Education Committee dealt mainly with higher education bills this week, but it did approve one public education bill that had already cleared the House of Delegates. House Bill 2556 would reset the expiration date of provisions that allow the employment of retired teachers as substitutes beyond the post-retirement employment limit. The committee sent the bill to the Senate Finance Committee for further consideration.


Two bills – one Senate and one House of Delegates measure – would increase county board member per diem pay.

A third measure is likely to be introduced in the House next week.

The Senate measure – Senate Bill 415 – would increase per diem compensation for county board members from $160 per meeting to $225 per meeting. The 50 meetings per year cap would be retained. For county boards having more than 20,000 students – Kanawha County – the per diem pay would be set at $225, but that board or (boards in the future) would be compensated for up to 65 meetings per year.

Additionally, Senate Bill 415 would provide county board members $100 per training session for up to 12 training sessions per fiscal year.

(It would appear the state Board of Education, upon recommendation of the County Board Member Training Standards Review Committee [TSRC], would be responsible for logistics relating to pay for training.)

Senate Bill 415 is sponsored by Sen. Richard Browning, D-Wyoming, and Senate Education Chairman Bob Plymale, D-Wayne.

 Legislation similar to Senate Bill 415 is expected to be readied for introduction in the House of Delegates next week, according to West Virginia School Board Association Executive Director Howard M. O’Cull, Ed.D.  As contemplated, that measure would omit the per diem increase for meetings attended but provide up to $150 per training session attended – capped at six sessions, he said. 

House Bill 2078, introduced during the first day of the 2011 regular session, would increase board member compensation to $396 per meeting. Delegate Daniel Hall, D-Wyoming, introduced that bill.

According to research conducted by the West Virginia School Board Association in 2008, the “typical” county board meets 37 times per year. County board members are required to receive seven clock hours’ training per year.

WVSBA typically sponsors five training sessions per year, including two major statewide meetings, as well as a “drive-in” training session.

Based on a request from legislators, newer statistics relating to county board meetings will be requested from central offices today.


Editor’s Note: -- Jim Wallace is a former government reporter for the Charleston Daily Mail and former news director of West Virginia Public Radio. He now works for TSG Consulting in Charleston and writes for several national and West Virginia publications.