WVSPS Legislative Update

Please allow this correspondence to serve as an update regarding my activity undertaken this legislative session on behalf of the West Virginia Society of Professional Surveyors. Obviously, this was a unique session unlike any we’ve seen in recent memory. The West Virginia State Capitol Complex was closed except for “official business” this session, with the State Senate opting to host most committee meetings and testimony via Microsoft Teams.

Although we were not prohibited from entering the Capitol grounds, we had to conduct our government relations activities by scheduling appointments with individual legislators. The customary “walk and talk” meetings were few and far between this session, as the Capitol Police vigorously enforced the building’s visitor policy. We were also unable to conduct our customary Surveying/GIS day at the Capitol, because all events inside the Capitol were cancelled due to COVID concerns. Despite these issues, we were able to stave off a major piece of legislation (HB 2007) which would have had a detrimental impact on the surveying profession.

I. Bills Monitored

HB 2007 – Provide for occupational licenses or other authorization to practice by recognition for qualified applicants from other states

HB 2007’s stated purpose was to “provide for occupational licenses or authorization to practice by recognition for qualified applicants from other states.” While the title sounds innocuous, this was a dangerous bill we fought from the beginning of session up until its final week. Our concerns with the bill were as follows:

(i) Out-of-state applicants could have significantly less experience and qualifications than the West Virginia professionals that have met the thresholds established in state code (chapters 21, 29 and 30).

(ii) Out-of-state applicants do not have to reside in West Virginia to receive their West Virginia professional designation. The bill states that the applicant “intends” to move to West Virginia, a clearly unenforceable proposition.

(iii) Accepting out-of-state applicants could damage reciprocity with other states since West Virginia would have reduced its qualifications threshold. In essence, the legislation delegates the responsibility to establish minimum standards to protect the public to other states.

(iv) Accepting these reduced standards places the public health and safety at a substantial risk and will cause insurance premiums to increase and will create an environment for potential lawsuits due to substandard work.

HB 2007’s lead sponsor was House Majority Whip Paul Espinosa. Cosponsors included House Government Organization Committee Vice-Chairman Geoff Foster, Delegate Charles Horst, Delegate Danny Hamrick, Delegate Gary Howell, Delegate George Miller, House Government Organization Chairman Brandon Steele, Delegate Josh Holstein, Delegate Wayne Clark, Delegate Riley Keaton, and Delegate Adam Burkhammer. This robust list of sponsors and their prominent roles on the House Committee on Government Organization gave this bill extra momentum to pass the House. HB 2007 passed out of the House Committee on Government Organization on February 10, 2021, the first day of legislative proceedings. By February 18, 2021, HB 2007 passed the full House of Delegates, largely along party lines.

At this juncture, I engaged with the West Virginia Business and Industry Council (BIC) on behalf of the West Virginia Society of Professional Surveyors to develop a concerted effort from the business community to kill this legislation. BIC is much like the West Virginia Chamber of Commerce in that it’s a group of businesses and industries which will support or oppose legislation depending on the group’s desires.

Working through BIC, we established an ad hoc committee to address licensing issues and to specifically take on HB 2007. We worked alongside accountants, engineers, realtors, and architects to educate legislators about the unintended consequences of the bill.

HB 2007 was referred to the Senate Committee on Government Organization with a second committee reference to the Senate Judiciary Committee. I worked with Jack Booda to testify before the Senate Government Organization Committee to prepare his testimony. Jack and I went over some basic principles for testifying before a legislative committee, and then developed specific talking points against this bill as applied to surveyors. One major area of concern was the lack of a jurisprudential exam regarding West Virginia’s surveying regulations and laws. Jack articulated how surveying in West Virginia is different than surveying in Kansas, giving specific examples to the committee as to why this bill was unnecessary. Jack told the committee that HB 2007 was “a solution looking for a problem,” as he explained that many surveyors licensed in West Virginia are actually from out of state. Therefore, in Jack’s estimation, there is simply no need to adjust our licensing procedures to favor out-of-state residents without any protection for in-state practitioners.

After Jack’s testimony, the bill was held over for a subsequent meeting. Jack’s testimony was compelling, and I don’t think it was a coincidence that the Chairman held the bill over after Jack testified. At that point, the Chairman didn’t have the votes and confidence in the bill was waning. The Committee subsequently took up the bill on February 19, 2021, but in an amended format. The amendments made the bill much more palatable. To reiterate, I don’t think the bill being held over and the committee amendments being adopted would have occurred but for Jack’s testimony. This shows how valuable our engagement can be, because nobody can tell our collective story better than we can.

The Senate Judiciary Committee scheduled a stakeholders meeting for April 5, 2021 so that the interested parties could continue to discuss the bill and work out their differences off the record. Jack Booda was going to speak at this meeting as was John Green and Amber Legg (on behalf of the Board of Surveyors). When the Senate Judiciary Chairman discovered how many stakeholders were involved and the length of time it would take to hear everybody, he made a decision to cancel the stakeholder meeting. The bill therefore died under its own weight – we were able to amend it such that the House didn’t like it anymore and the Senate didn’t have the time to work it.

HB 2011 – Eliminating any time requirements for part time personnel to work during a working year

The stated purpose of HB 2011 is to eliminate any hour requirement for part time working personnel in professional services with or without administrative duties during a working year. The bill only applies to civil service workers. We monitored this legislation for potential amendments throughout the legislative process. The bill completed legislative action on March 16, 2021 and was approved by Governor Justice on March 24, 2021.

HB 2026 – Relating to the modernization of the collection of income taxes by adopting uniform provisions relating to the mobile workforce

The stated purpose of HB 2026 is to modernize the collection of income taxes by adopting uniform treatment of mobile employee income and by ending the so-called “throw out” rule, which provided that gross receipts from untaxed sales of tangible personal property are excluded from the denominator of the sales factor when apportioning the business income of the taxpayer, which resulted in higher state income taxes. The bill also changes the apportionment of sales of service and intangible personal property to market sourcing instead of origin sourcing, which would place West Virginia’s treatment of these items consistent with a majority of jurisdictions. Finally, the bill eliminates the payroll and property factors and therefore apportions income on a single sales factor only. We monitored the bill over the course of the session to ensure no amendments were offered which would have broadened taxes applicable to surveyors.

HB 2026 was a bill introduced at the request of Governor Jim Justice. The bill completed legislative action on March 30, 2021 and was signed by Governor Justice on April 9, 2021.

HB 3002 – Update road abandonment process

HB 3002’s stated purpose is to require the Commissioner of Highways to post online at the Division of Highways website any petition, notice, order, decision, or other record related to the abandonment or discontinuance of any state highway or road, or any part thereof; and to allow any member of the public to participate in or attend any hearing related to the abandonment or discontinuance of any state highway or road by virtual means. Bills involving the West Virginia Department of Highways oftentimes mention or relate to the practice of surveying, so we watched this bill for the inclusion of any language which would impact surveying. The bill completed legislative action on the final day of session, but Governor Justice has not yet received it.

SB 272 – Relating to WV Employment Law Worker Classification Act

The stated purpose of SB 272 is to simplify criteria used to define independent contractors and to impose objective standards on the differentiation of independent contractors from employees. This bill was requested by Governor Justice. The bill was referred to the Senate Judiciary committee which recommended it for full passage by the State Senate. The bill passed the State Senate, largely along party lines. Thereafter, the House of Delegates suspended the rules to dispense with the bill’s committee reference and take it up for immediate consideration. The bill was postponed at various times, being placed on the active House calendar and the inactive House calendar. It passed the House, again, largely along party lines on March 10, 2021. The Senate concurred with the House amendments, and the bill completed legislative action on March 11, 2021. It as approved by Governor Justice on March 19, 2021 and goes into effect on June 9, 2021.

SB 296 – Relating generally to repealing certain rules

SB 296 involved the repeal of certain rules. None of these rules ended up impacting surveyors or the profession of surveying, but we nonetheless tracked this bill.

SB 472 – Updating criteria for regulating certain occupations and professions

The stated purpose of SB 472 is to update the criteria the Performance Evaluation and Research Division uses when assessing an application for a new license or other government regulation and when reviewing existing government regulations relating to occupational and professional regulation.

The bill was referred to the Senate Committee on Government Organization upon introduction. I worked with Chairman Mark Maynard and the other Chapter 30 boards in an attempt to develop a committee substitute for the introduced bill. Our efforts produced a committee substitute, but not one we fully supported as he didn’t incorporate our suggestions regarding PERD. The committee substitute passed out of the Senate Committee on Government Organization on March 10, 2021 and unanimously passed the Senate with one member absent and not voting.

After passing the Senate, the bill was introduced in the House and referred to the House Committee on Government Organization. The Committee took up the bill on March 30, 2021 and recommended passage to the full House. The bill passed the House, largely along party lines, on April 2, 2021. SB 472 completed legislative action on April 5, 2021 and was sent to the Governor on April 7, 2021. The Governor has 10 days to act on a bill when he receives it during session. Therefore, please see section II below regarding a proposed veto letter we encourage you to send to Governor Justice. Time is of the essence, so please send this letter today.

SB 517 Relating to sunset provisions of legislative rules

The purpose of SB 517 is to eliminate the requirement for all new legislative rules to have a five-year sunset date after the initial five year sunset date, to allow the Secretary of State to conform all active legislative rules with a sunset provision to the requirements of this section, and requires the Secretary of State to file a notice of sunset in the State Register upon the expiration of a legislative rule within thirty days of its expiration. Finally, the bill requires that effective July 1, 2021, all legislative rules subject to the sunset provisions of this section shall have a termination date of July 1 of the applicable year. The bill was sponsored by Senator Dave Sypolt and cosponsored by Senator Rolan Roberts. The notion of sunsetting legislative rules began when Tim Armstead was Speaker of the House and has continued to be one of the cornerstones of what legislative leadership in both houses believes to be “good government.”

II. Action from the Governor on SB 472

I have attached a draft letter for you to send to Governor Justice, urging him to veto SB 472. Please sign your name to this letter and email it to Melissa.R.Parsons@wv.gov.

III. Moving Forward

Engagement with legislators outside of the legislative session will be critical to maintaining the ongoing integrity of the surveying profession. Bills affecting the profession of surveying and occupational licensing more broadly most frequently pass through the Senate Committee on Government Organization and the House Committee on Government Organization. Please review these committee lists and identify any legislators you know.

Senator Mark Maynard is the Chairman of the Senate Committee on Government Organization, with Senator Chandler Swope serving as Vice-Chairman of that Committee. Maynard is from Wayne County while Swope is from Mercer County. Delegate Brandon Steele is the Chairman of the House Committee on Government Organization, with Delegate Geoff Foster serving as Vice-Chairman of that Committee. Steele is from Raleigh County while Foster is from Putnam County. These chairmen and vice-chairmen often coordinate on legislative issues throughout the year, including during interims. To the extent you are from the same counties as these individuals or have a relationship with them, it’s imperative that you communicate with them regarding the importance of the surveying profession in West Virginia, not only to you, but to the public at large.

I collaborated with several groups this session including the Association for Responsible Professional Licensing, the WV Business and Industry Council, and the National Council of Examiners for Engineering and Surveying (NCEES). I expect this trend of collaborating with multiple groups to continue because the interests pushing for the deregulation of occupational licensing are not going to let this battle go quietly. Americans for Prosperity, the U.S. Chamber of Commerce, and the American Legislative Exchange Council are the entities pursuing these bills. These organizations have deep pockets and contribute regularly to political campaigns. We can’t outspend them but we do have one advantage; we are all West Virginia constituents.

The best and most effective weapon in our arsenal is and always will be our people. Jack Booda’s testimony before the Senate Government Organization Committee regarding HB 2007 is a great example. Eliminating or reducing barriers to occupational licensing sounds good until the unintended consequences of doing so are brought to light by practitioners and constituents. In other words, a human touch is incredibly valuable to what we do.

As always, please don’t hesitate to contact me if you have any questions or concerns. Thank you.

Best regards,

Will Swann