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Right-to-Work Withstands Legal Challenge

The Free Press WV

Last week I wrote about the ongoing legal battle over West Virginia’s right-to-work law. The headline was, “Right-to-work arguments in WV go on… and on.”

I was wrong… because that was before the state Supreme Court issued its decision overturning the lower court’s preliminary injunction preventing the right-to-work law from taking effect.

The majority opinion by Justice Menis Ketchum and the concurrence by Chief Justice Allen Loughry left no avenue for a possible appeal and no room to suggest they might be convinced that the right-to-work law is unconstitutional.

First, Ketchum established this is a legislative matter not a judicial one. “Whether a law is fair or unfair is not a question for the judicial branch of government,” he wrote.  But then he went on to make clear his belief about the union argument.

“Twenty-seven other states have adopted right-to-work laws similar to West Virginia’s, and the unions have not shown a single one that has been struck down by an appellate court,” Ketchum wrote.

Chief Justice Loughry was even more direct.  “In absence of any legal authority supporting its constitutional challenge and in the face of United States Supreme Court holdings undermining their (the unions’) position, the respondents’ (the unions’) action fails on all fronts.”

Justice Robin Davis dissented and will issue a separate opinion and Justice Margaret Workman concurs in part and dissents in part and also reserves the right to issue her opinion.  However, the lean of the majority of the court—Loughry, Ketchum and Beth Walker—is clear.

The case is now remanded back to Kanawha Circuit Court Judge Jennifer Bailey for a final hearing.  It would be wise for her to heed the not-so-subtle criticism from the court.

Justice Ketchum wrote in a footnote, “Because of the far-reaching effect of Senate Bill 1 (the right-to-work bill) and its potentially substantial impact upon the public interests, in the future, we encourage the circuit court to act with greater celerity in bringing this case to a resolution.”

Chief Justice Loughry was again a little more direct. He called Judge Bailey’s issuance of the injunction “inexplicable” and added, “I further encourage the circuit court to assiduously avoid further delay and grant this matter its foremost attention.”

The unions may continue their legal challenge, and Judge Bailey may even make an ill-advised ruling contrary to the strong message from the high court, but from a legal perspective this issue is settled.  Right-to-work opponents should put their efforts into changing the make-up of the Legislature or the Supreme Court if they hope to prevail on this issue.

Auditors Urge Shutting West Virginia Funeral Examiners Board

The Free Press WV

West Virginia’s Board of Funeral Service Examiners fails to protect the public against unscrupulous operators and should be disbanded, according to the Legislature’s auditors.

They cited four cases in the past few years where they say the board delayed for many months suspending or revoking funeral directors’ licenses despite evidence they had taken customers’ advance payments that should have been held in trust.

Lawmakers should consider removing the board’s oversight function to another state agency, or else replace all board members and ensure that two have no working ties to the funeral industry, according to Performance Evaluation and Research Division Director John Sylvia.

“Consumers of funeral services and goods are often in a distraught emotional state when making these high-cost transactions,” Sylvia wrote. “The evidence demonstrates a relatively high risk of dishonest business practices by unprofessional funeral service providers.”

Board Executive Director Regina Anderson, in an audit response, said board attorneys have advised them not to take disciplinary actions without formal complaints and when there are criminal cases to wait for convictions before acting.

“We now find ourselves being chastised for failing to act according to the interpretation of your attorneys when our attorneys have advised to the contrary,” Anderson wrote. The board currently consists of three funeral directors and one citizen member, with three more due to be appointed, she wrote.

According to Anderson, the board also is never informed of embezzlement by funeral directors unless there are media reports. “We only find out by chance,” she wrote.

Auditors focused mainly on the case of Chad Harding, former president of the board, who kept his license after he was found in an August 2016 federal court judgment to have received more than $900,000 from filing false claims for funeral services against more than 100 consumers who bought “preneed policies” with Homesteaders Life Co. The $2.8 million in treble damages for racketeering were paid by another businessman.

A month later, in September, the board first contacting Harding about its charges against him.

The month after that, the state attorney general’s office filed a motion in state court to permanently prohibit Harding from selling preneed funeral products and services.

In July this year, the board voted 3-2 to accept Harding’s settlement proposal for having his funeral director and crematory licenses suspended for six months, followed by six months’ probation and $25,000 to cover the board’s legal fees. Three board members subsequently resigned.

Anderson wrote that the board was looking at additional legal fees of about $50,000 if it pursued the case instead of settling it and the final outcome would not have been guaranteed.

September ‘We Card’ Awareness Month

The Free Press WV

In an effort to combat underage tobacco use, Governor Jim Justice joined with the West Virginia Oil Marketers & Grocers Association and the West Virginia Wholesalers Association to proclaim September “We Card” Awareness Month.

The initiative is designed to encourage all retailers to successfully identify and prevent age-restricted product sales to minors.

“The West Virginia Oil Marketers & Grocers Association and the West Virginia Wholesalers Association — organizations representing the companies that sell these products — want to make sure that they don’t get in the hands of kids,” said Traci Nelson, president of the West Virginia Oil Marketers & Grocers Association and executive director of the West Virginia Wholesalers Association.

The West Virginia Wholesalers Association and OMEGA strongly encourage retailers to train or re-train employees by taking advantage of We Card’s award-winning training courses offered online through We Card’s eLearning Center at www.wecard.org or through licensing to retailers and other organizations.

For additional information, call 304.343.5500 or visit www.Omegawv.com.

Consumers Are Warned of Equifax Impostor Scam

The Free Press WV

West Virginia Attorney General Patrick Morrisey warns the public of a scam in which callers impersonate Equifax employees, calling and seeking more personal information in the wake of last week’s massive data breach potentially affecting more than 730,000 West Virginia consumers.

A new batch of scammers are using the data breach to victimize consumers a second time. They use false telephone numbers, impersonate Equifax representatives and claim to be verifying account information. In fact, these callers are after more personal identifiable information from consumers who are eager to learn whether or not they were victims of the breach.

“Right now, consumers are anxious and want to make sure their credit and banking information is secure,” Attorney General Morrisey said. “However, scammers use this fear to prey on consumers and potentially obtain even more sensitive information.”

More than 730,000 West Virginia Consumers could be impacted by a data breach targeting Equifax, Inc., one of the nation’s three major credit bureau monitoring agencies. Equifax reported hackers exploited a website application vulnerability and gained access to files potentially impacting 143 million consumers nationwide.

Equifax does not make unsolicited calls to consumers. The Attorney General’s Consumer Protection Division warns any call claiming to represent the company is likely a scam and consumers should exercise extreme caution.

The initial Equifax data breach primarily accessed names, Social Security numbers, birth dates and addresses. In other instances, hackers also may have gained access to driver’s license numbers, credit card numbers and dispute documents containing personal identifying information, thus increasing the risk of identity theft for those impacted.

Anyone with questions or needing more information about the Equifax data breach or the related impostor scam can call the Attorney General’s Consumer Protection Division at 1.800.368.8808, the Eastern Panhandle Consumer Protection Office in Martinsburg at 304.267.0239 or visit the office online at www.wvago.gov.

Right-to-Work Arguments in WV Go On… and On

The Free Press WV

The West Virginia legislature passed a bill during the 2016 regular session making West Virginia a right-to-work state. Governor Tomblin vetoed the bill, but the House and Senate overrode the veto and the law went into effect July 01, 2016.

However, nearly 15 months later West Virginia is still not a right-to-work-state.

The state AFL-CIO challenged the law in court and in August 2016, Kanawha County Circuit Court Judge Jennifer Bailey issued a temporary injunction prohibiting the law from being enforced.  State Attorney General Patrick Morrisey challenged the court order and finally last week the state Supreme Court heard arguments in the case.

The high court should rule soon, but that won’t be the end of it.  The issue before the court is whether the circuit judge’s temporary order blocking the law should stand.  Regardless of how the Justices rule, it’s likely that a court fight over the merits of the right-to-work law is ahead.

Labor argues the law is unconstitutional because it is tantamount to an illegal taking since a union may have to represent a worker even if that worker does not join their organization or pay dues.  “Our contention remains as strong as it was the day we filed this lawsuit in 2016 that this law is an unconstitutional taking of property rights from local unions and their members,” said AFL-CIO President Josh Sword.

Sword is right that the union will have to represent all employees at a workplace whether or not they join and pay dues, but only if the union acts as the exclusive bargaining agent.  If the union chooses to have that exclusive representation–which carries with it a considerable amount of power and benefits–then under federal law it must represent all employees.

If the union does not wish to be the exclusive bargaining agent, then it can operate with a “members only” arrangement where it represents only dues-paying workers who willingly join the union.

These and related issues have already been adjudicated a number of times in many of the 28 states that have adopted right-to-work laws. West Virginia’s law is not substantially different from these other cases to warrant it being tossed out, unless a judge or a court here makes that call for political reasons.

For years, West Virginia was not a right-to-work state because Democrats controlled the legislature. That has changed and the Republicans wasted no time passing the bill and even overriding a gubernatorial veto.

Whether or not West Virginia is a right-to-work state is a public policy decision to be debated and voted upon by the people’s representatives.  That process was followed and the courts should recognize that while the unions are upset, their arguments do not justify overturning the legislature’s will.

West Virginia Submits ESSA Plan To U.S. Department of Education

The Free Press WV

The West Virginia Department of Education (WVDE) submitted its plan today to the United States Department of Education (USDE) to comply with the federal law known as the Every Student Succeeds Act (ESSA). The plan was submitted one week ahead of the September 18 deadline.

“I am extremely proud of the extraordinary amount of work put into developing this plan and for the valuable input we received from various stakeholders including teachers, parents, administrators, community members and elected officials,” said West Virginia Superintendent of Schools, Dr. Steven Paine. “I feel confident that West Virginia’s plan outlines a foundation that is best for all Mountain State students and know we will ultimately see results surrounding student achievement.”

West Virginia’s plan details the foundational pieces of its public education system including content standards, the statewide assessment, the school accountability system and support for struggling schools. The plan also details how federal funds will be distributed to counties.

Several changes were incorporated into the final version of the plan as a result of stakeholder input. Within the state’s accountability system, the five-year graduation cohort was included to accommodate those students who require additional time to graduate. The English Language Proficiency indicator was incorporated into the English language arts measure within the Academic Achievement indicator. The Student Success indicator, which considers attendance and behavior, now includes an exemption for all absences due to out-of-school suspensions and level three behavior violations are exempt from accountable suspensions. Summer School courses will be included within the high school Student Progress indicator, which considers credits earned toward graduation.

The USDE has 120 days to review the plan and provide feedback. To review West Virginia’s plan, visit: http://wvde.state.wv.us/essa/review/

WV to Observe National Voter Registration Month; Remind Voters of September 18th Deadline

The Free Press WV

Secretary of State Mac Warner announced today that he is leading the effort to promote September as National Voter Registration Month.

Secretary Warner encourages voters to participate by registering to vote or checking their registration status for the upcoming Special Election. He is also asking county clerks, the West Virginia Press Association and the West Virginia Broadcasters Association to help in the effort to encourage civic participation. 

“Registering to vote and monitoring any change in registration, such as polling locations changes and status of the registration, will ensure that there is no confusion on election day when exercising your civic duty to vote,“ Warner said. 

However, he sends an urgent reminder to those registering: the deadline to register to vote for the upcoming road bond amendment is on or before Monday, September 18th. The special election to consider a $1.6 billion road bond amendment is scheduled for Saturday, October 7th. Early voting for the special election begins on Friday, September 22nd and continues (except on Sunday’s) until Wednesday, October 4th.

Warner said his Office will focus on voter registration until the end of the day on September 18th.

“Of course, eligible West Virginia residents can register to vote at any time during the month of September by going online or stopping in to see their county clerk,” Warner said.

“But our primary focus for National Voter Registration Month will be from September 1st to September 18th. We don’t want to confuse voters who register after September 18th and expect to vote in the Special Election. They will not be eligible if they register after the 18th,” Warner said.

Since Warner took office on January 16th, the Elections Division has worked with all 55 county clerks to register 25,707 new voters throughout the state. During the same time period, the clerks have removed 67,483 outdated, deceased and illegible voters from the state’s database of registered voters (attachment).  

National Voter Registration Month is a project of the National Association of Secretaries of State (NASS). The initiative was started by NASS in 2002 to encourage voter participation and increase awareness of federal, state and local elections.

Citizens can either register to vote with their county clerks, at the Division of Motor Vehicles,or online at ovr.sos.wv.gov.

Link: Online Voter Registration

Attachment: Chart of New Registrations/Cancellations

Attachment: NVRM Twitter Graphic

Attachment: NVRM Facebook Graphic

Attatchment: NVRM Toolkit

- End of Release -

Secretary Warner Encourages Citizens to Check Charity Status Before Making Donations

The Free Press WV

Secretary of State Mac Warner encourages all West Virginians to give to those in need after disasters, but to use caution.

“Anytime there is a natural disaster anywhere in the United States and beyond, West Virginians step up and help out,” said Secretary of State Mac Warner. “But there are some individuals out there who like to prey on our generosity and our humanity.”

The recent flooding caused by more than four foot of rain dumping down on southern Texas is a perfect example. Warner said that scam charities routinely start up during events that cause families and individuals to be displaced from their homes.

Warner issued a public notice on Wednesday reminding residents to be cautious when donating to relief efforts to assist those families displaced by Tropical Storm Harvey. A simple search on the Secretary of State’s website will help contributors confirm that the charity they want to donate to is registered to solicit and accept donations in West Virginia.

Before contributions are made to a charity, Warner suggests that donors go to this link. Then type in the name of the charity and hit “Search.“

“It is also very important for the public to help us identify scam charities. I can promise that we will immediately investigate every credible report of an illegal charity operating anywhere in West Virginia,” Warner said.

If you suspect a problem with a charity or an organization seeking donations for any project, organization or relief effort, please file a complaint or contact us by phone at 304.558.6000.

Some organizations not listed in our database are not necessarily out of code or fraudulent.

Some organizations, such as the American Red Cross, are exempt because they are federally regulated.

Other organizations, such as the Salvation Army, are exempt because they are religious organizations.

For more information on charity visit watchdog organizations.

Paine Says Educators ‘Gave Up’ Because of A-F Grading System

The Free Press WV

The public comment period ended Wednesday, August 30, for the state’s new way to measure education, the Every Student Succeeds Act.

Many of the comments received by the State Department of Education and heard in public hearings earlier this year had to do with the plans for a school accountability system.

State School Superintendent Doctor Steve Paine told members of the state Board of Education they are still working on a balanced approach for the accountability portion of ESSA.

“We’re trying to create a rigorous system that in totality will move student achievement forward for the benefit of all students in our state,” Paine said.

Paine said one thing’s for sure, the accountability system will look much different than the A-F school grading system approved by the previous state Board of Education. He said it caused a lot of negativity across the state.

“It was created by well-intentioned people but the unintended consequence, in my estimation, after talking with many educators and after serving as an interim superintendent in Wayne County and talking with our educators–is that they gave up,” Paine said.

Instead of A-F, schools will have a ‘balanced scorecard’ with four levels of classification: “distinguished,” “accomplished,” “emerging” and “unsatisfactory.”

Paine said those working on the accountability section are still trying to reach a balance on the exact components to be used to measure school performance.

“Where we set our performance levels (on things like) behavior, attendance, English/language arts. We want to set (performance thresholds) lofty enough that we’ll drive student performance up but we’re not trying to have the most rigorous system that is unattainable,” Paine said.

The current state Board of Education, with most of its members appointed by Gov. Jim Justice, voted in March to waive the A-F system. It was introduced in November 2016 following a 2014 request from then-Governor Earl Ray Tomblin. Under the system, school performance was based on how students performed on Smarter Balanced tests in math and English/language arts.

The system was heavily criticized. Most schools received a “C” during its first and only release because results were placed on a bell curve.

One county superintendent called the A-F school grading system “criminal,” Paine told school board members last week.

“That’s how strongly he felt and he’s one of our best,” Paine said.

All components of ESSA will be up for final approval by the state BOE next month and then it will be submitted to the U.S. Department of Education. State Department of Education Executive Communications Director Kristin Anderson said Governor Justice is also currently reviewing the plan and must sign-off on it before it is submitted.

GOP Leaders Predict House Departures

The Free Press WV

Several West Virginia Republican Party leaders are addressing concerns about a possible higher-than-usual turnover rate in the House of Delegates in 2018.  Republicans hold a commanding 64-36 advantage in the House, and the GOP will likely still have the majority after the 2018 election, but there will be some shakeup.

Officials and candidate recruiters estimated that from 10 to 15 current Republican House members will not run for re-election next year.  The reasons vary.  Several are running for different offices, including Congress, County Commission and State Senate.  Others, I’m told, are just ready to move on from politics, especially after the last session.

Lawmakers worked through a controversial and aggravating special session that took the state right up to the July 1st deadline for the start of the new fiscal year. Some left Charleston tired and frustrated with the whole process.  And the budget outlook for the next couple of years also looks grim.

However, state Republican Party Chairman Conrad Lucas believes GOP Delegates who were considering not running may change their minds.  “In June, a lot of folks who had been there for the extended session were frustrated, but now they’ve been back home and regained perspective,” Lucas said. “It’s not a concern for us at all.”

Lucas says he plans to personally contact every Republican House member soon to find out for certain their plans for the next election.  After that, the party can begin recruiting to fill any vacancies.

Greg Thomas, a Republican consultant who has played a critical role in candidate recruitment in recent elections, acknowledges the possible high turnover, but he is confident Republicans can keep their advantage. “Nearly all of the seats that are being vacated are in Republican strongholds or heavily leaning GOP districts,” he said.

Kris Warner, Republican National Committeeman for West Virginia, says voting data collected by the national party will be made available to state candidates. “Our conservative candidates (will) have access to the same information in West Virginia that was available to the Trump campaign last cycle and continues to be updated daily so our candidates do not waste money on inaccurate voter information,” he said.

Just a few elections ago, the only thing missing from the Republican ballot in many parts of the state was the image of tumbleweed rolling over the empty pages. That has changed dramatically with the GOP now in control of the House and Senate, not to mention Governor Jim Justice has recently switched to the Republican Party.

The challenge now is to retain the majority, protect incumbents and recruit replacements where necessary.  “We know the importance of having a full ballot,” Lucas said, “and we have every reason to believe we will have a full ballot next year.”

No doubt the GOP will, but depending on decisions made in the next couple of weeks, the party may have to mount a bigger recruiting effort than expected.

A Cyber Terrorism Strategy in WV is Important to Safeguarding Election Systems and Voter Databases

The Free Press WV

The most challenging war we may need to fight in the future will be in cyberspace. It’s a fight I am preparing for as your Secretary of State.

Cyberspace is a new frontier for terrorism, one that threatens far out of proportion to its cost. A non-traditional cyber attack on American infrastructure could happen without a single aircraft or boot on American soil. For example, one skilled Russian hacker sitting in a Moscow basement could potentially wipe out an entire city’s electrical grid here in the United States, causing indeterminate suffering for hundreds of thousands of people for an extended period of time.

Similarly, the integrity of elections and voter databases have become targets of nefarious international cyber attacks. In 2014, two years before our recent national election, Ukraine accused Russia of launching a series of coordinated cyber attacks attempting to control the outcome of that country’s presidential election. Similar accusations against Russia have been made by officials in Germany, Austria, Norway, France, the United Kingdom, and the Netherlands.

On August 19th, President Donald Trump elevated the country’s cyberspace operations to full combatant command status. Those active in the military understand exactly what that means. This move will substantially strengthen the country’s effort to protect our people, government and critical infrastructure against cyber terrorism and cyberspace threats.

This new focus on U.S. Cyber Command (CyberCom) will improve the control and response to time-sensitive cyberspace operations by consolidating them under a single military commander leading some of the most talented technology professionals in the world.

The most important part of the President’s announcement is the support the new Command will be able to offer to the protection of the nation’s critical infrastructure, which now includes election systems and voter databases.

Over the last six months, I’ve relied on my education and military background to help lead a national effort to improve the communication between the federal government and state elections officials. The National Association of Secretaries of State (NASS) endorsed my recommendation to the U.S. Department of Homeland Security to provide secretaries of state with security clearances. The move was approved and now allows CyberComm and the National Guard to communicate directly with the secretaries.

Since taking office, I’ve focused on recruiting an Information Technology team of professionals who understand the threat that cyberspace brings to the Secretary of State’s office. We’ve developed a three-prong strategy to deal with cybersecurity in the Secretary of State’s Office: Protection – Detection – Correction. 

Our primary focus is on protection. But we aren’t foolish enough to believe that, despite our best efforts, there aren’t hackers out there creative enough to find a weak link in our process. That’s where our detection and immediate correction strategies kick in.

Cybersecurity is not just a concern for my office. I want to encourage law enforcement officials and government administrators at all levels to educate themselves and stay updated on cyber threats, technology, and the improper use of computers to create havoc in cities large and small. Shutting down or contaminating water systems, air systems, traffic systems, or electric power grids would create immediate chaos. Law enforcement agencies need to work closely with community leaders and the utility industry to identify and assess possible vulnerabilities.

You’ll be hearing more from the Secretary of State’s Office in the coming weeks as we announce new initiatives and partnerships to protect our critical elections systems. As your Secretary of State, I will always remain vigilant in the protection of your voter information.

Mac Warner, Secretary of State - Before being elected West Virginia’s 30th Secretary of State, Mac Warner had a 23-year career in the United States Army. He retired as a Lt. Colonel after having served in countries throughout the world. He is a graduate of West Point and the WVU School of Law. He earned his Master’s Degree in International Law from the University of Virginia.

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