House Journal

Wednesday, February 22, 2023

FORTY-THIRD DAY

[DELEGATE HANSHAW, MR. SPEAKER, IN THE CHAIR]

The House of Delegates was called to order by the Honorable Roger Hanshaw, Speaker.

Prayer was offered and the House was led in recitation of the Pledge of Allegiance.

The Clerk proceeded to read the Journal of Tuesday, February 21, 2023, being the first order of business, when the further reading thereof was dispensed with and the same approved.

Reordering of the Calendar

Pursuant to the action of the Committee on Rules, Delegate Householder announced that H. B. 2937 and Com. Sub. for H. B. 3233, on Third Reading, House Calendar, had been transferred to the Special Calendar; and Com. Sub. for H. B. 3337 and H. B. 3340, on Second Reading, House Calendar, had been transferred to the Special Calendar.

Committee Reports

Delegate Capito, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

H. B. 2122, Relating to custodial interrogation of a child,

And reports back a committee substitute therefor, as follows:

Com. Sub. for H. B. 2122 - “A Bill to amend the Code of West Virginia, 1931, as amended by amending §49-4-701(l), by removing language relating to statements while in custody, and adding thereto a new section designated §62-1A-12; relating to custodial interrogation of a child; requiring the child have contact with legal counsel by certain means; requiring the child have contact with a parent, guardian, legal custodian, or other legally recognized equivalent by certain means; permitting a law-enforcement officer to ask questions reasonably believed to be necessary to protect life or property without requiring contact with counsel, parents, guardians, or other recognized persons; and requiring questions of a child be limited to obtaining such information reasonably believed to be necessary to protect life or property,”

H. B. 3114, Deny severance pay to employees of DOT for failure or refusal of drug testing,

And reports back a committee substitute therefor, as follows:

Com. Sub. for H. B. 3114 - “A Bill to amend and reenact §5F-2-8 of the Code of West Virginia, 1931, as amended; relating to requiring the denial of severance pay to probationary employees of Department of Transportation who are terminated for failing or refusing to submit to drug or alcohol screens,”

H. B. 3232, Regulation of Fantasy Gaming Competitions and Implementation of Sports Wagering,

And reports back a committee substitute therefor, as follows:

Com. Sub. for H. B. 3232 - “A Bill to amend and reenact §29-22D-3 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §29-22D-25, all relating to allowing the West Virginia Lottery Commission to accredit independent evaluators to audit and opine on sports betting content directly or indirectly affiliated with management services providers; and subjecting management services providers and their direct or indirect affiliates to civil and criminal penalties,”

H. B. 3445, Relating generally to probation and parole,

And reports back a committee substitute therefor, as follows:

Com. Sub. for H. B. 3445 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §62-12-30, relating to probation and parole; creating earned compliance credits for individuals on probation and parole for certain behaviors and actions to incentivize rehabilitation efforts; authorizing supervising officers to recommend rescinding of credit to the court in certain circumstances; and requiring the Division of Corrections and Rehabilitation and the Division of Probation Services to provide annual reports to the Legislature,”

And,

H. B. 3551, Provide for criminal history record restrictions for certain persons,

And reports back a committee substitute therefor, as follows:

Com. Sub. for H. B. 3551 - “A Bill to amend and reenact §5-1-16a of the Code of West Virginia, 1931, as amended, relating to restricting access to criminal history record information of individuals who have been convicted of a crime and pardoned by the Governor and individuals who have been convicted of a crime; providing procedure for obtaining the restriction; outlining crimes for which criminal history restriction is not available; and exceptions,”

With the recommendation that the committee substitutes each do pass.

On motion for leave, a bill was introduced (Originating in the Committee on the Judiciary and reported with the recommendation that it do pass), which was read by its title, as follows:

By Delegates Steele, Garcia, Fast and Marple:

H. B. 3556 - “A Bill to amend the Code of West Virginia, 1931, as amended by creating a new article, §48-28B-1, et seq., relating to establishing a process to recognize and enforce Canadian domestic violence protective orders, relating to providing a short title, relating to providing definitions, relating to enforcement of Canadian domestic violence protective orders by law enforcement, relating to enforcement of Canadian domestic violence protective orders by a court, relating to registration of a Canadian domestic violence protective order, and relating to a severability clause.”

Delegate Howell, Chair of the Committee on Economic Development and Tourism, submitted the following report, which was received:

Your Committee on Economic Development and Tourism has had under consideration:

H. B. 2064, To create commercial opportunity zones to attract new businesses to West Virginia,

And reports back a committee substitute therefor, as follows:

Com. Sub. for H. B. 2064 - “A Bill to amend and reenact §8A-7-3 of the Code of West Virginia, 1931, as amended, and to add thereto a new article, designated §11-13PP-1, §11-13PP-2, §11-13PP-3, §11-13PP-4, §11-13PP-5, §11-13PP-6, §11-13PP-7, §11-13PP-8, §11-13PP-9, and §11-13PP-10, all relating to the Tourism and Commercial Opportunity Zone Tax and Tax Credit Act; providing for a short title; providing legislative findings and purpose; creating a new species and class of property directed by law; creating definitions; establishing the Tourism and Commercial Opportunity Zone tax and tax credit; providing for restrictions on investment; providing for a penalty; providing for disclosure of tax credits; providing for tax and tax credit review and accountability; creating rules; and providing for an effective date,”

And,

H. B. 2065, West Virginia Heavy Duty Truck Excise Tax Elimination Act,

And reports back a committee substitute therefor, as follows:

Com. Sub. for H. B. 2065 - “A Bill to amend and reenact §11-6F-2 and §11-13S-4 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §11-13MM-1, §11-13MM-2, §11-13MM-3, §11-13MM-4, §11-13MM-5, §11-13MM-6, §11-13MM-7, §11-13MM-8, §11-13MM-9, §11-13MM-10, §11-13MM-11, §11-13MM-12, §11-13MM-13, §11-13MM-14, §11-13MM-15, §11-13MM-16, §11-13MM-17, all relating generally to taxation for the manufacturing, sale, and use of heavy duty trucks and products associated therewith to encourage economic growth; amending the definition of manufacturing for purposes of special method for appraising qualified capital additions to manufacturing facilities for property tax purposes; amending the formula for calculating the manufacturing investment tax credit amount allowed for manufacturing investment to include heavy duty truck manufacturing; increasing the amount of such allowable credit for said industries; creating the West Virginia Heavy Duty Truck Excise Tax Elimination Act; providing for administration and enforcement of the tax credit; making legislative findings; stating legislative purpose; defining terms; specifying an amount of credit allowable based upon the amount of federal excise tax paid, providing limitations based upon qualified investment amount; providing conditions for qualification and use; defining in service or use; providing for the application of the credit to the corporate net income tax and the personal income tax, as appropriate; providing for methods of calculation of the qualified investment; providing for carry over and forfeiture of unused tax credits; providing limitations for credits being carried over; allowing transfer of qualified investment property without forfeiture under certain circumstances; requiring identification of qualified investment property and record keeping; providing penalties for failure to keep required records; providing for interpretation and construction; requiring timely filing of application for credit; specifying burden of proof; requiring periodic tax credit review and accountability reports; authorizing rulemaking; making credit subject to West Virginia Tax Procedure and Administration Act and West Virginia Tax Crimes and Penalties Act; and providing for severability; providing effective date,”

With the recommendation that the committee substitutes each do pass.

Delegate Mallow, Chair of the Committee on Fire Departments and Emergency Medical Services, submitted the following report, which was received:

Your Committee on Fire Departments and Emergency Medical Services has had under consideration:

Com. Sub. for S. B. 271, Modifying approval process requirements for First Responders Honor Board,

And reports the same back with the recommendation that it do pass, but that it first be referred to the Committee on Government Organization.

In accordance with the former direction of the Speaker, the bill (Com. Sub. for S. B. 271) was referred to the Committee on Government Organization.

Delegate Mallow, Chair of the Committee on Fire Departments and Emergency Medical Services submitted the following report, which was received:  

Your Committee on Fire Departments and Emergency Medical Services has had under consideration:  

S. B. 131, Allowing municipal fire marshals to receive service weapon upon retirement,

And reports the same back with the recommendation that it do pass, and with the recommendation that second reference to the Committee on the Judiciary be dispensed with.

In the absence of objection, reference of the bill (S. B. 131) to the Committee on the Judiciary was abrogated.

Mr. Speaker (Mr. Hanshaw), Chair of the Committee on Rules, submitted the following report, which was received:

Your Committee on Rules has had under consideration:

Com. Sub. for H. C. R. 2, Cpl. Billy F. Mann Memorial Bridge,

H. C. R. 14, Stanley and Evelyn See Memorial Bridge,

H. C. R. 16, Staff Sgt. J.J. “Junior” Spurrier Memorial Bridge,

H. C. R. 21, Michael Lee “Rube” Ruben Memorial Bridge,

H. C. R. 22, U.S. Army T/5 Doyle Bedell Taylor Memorial Bridge,

H. C. R. 24, U. S. Army PFC Herman H. Lucas Memorial Bridge,

H. C. R. 25, U. S. Marine Corps, PFC John Louis “Johnny” Brumbaugh, Jr. Memorial Bridge,

H. C. R. 26, U.S. Army SGT Samuel D. Roberts Sr. Memorial Bridge,

H. C. R. 27, Requesting Joint Committee on Government and Finance study all benefits of state employees to determine which benefits, if any, may be refused by an employee in exchange for a cash equivalent,

H. C. R. 28, Terra Dawn Lewis Memorial Road and Bridge,

And,

H. C. R. 32, The Albert “Ab” Baisden Memorial Bridge,

And reports the same back with the recommendation that they each be adopted.

Messages from the Senate

A message from the Senate, by

The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

Com. Sub. for H. B. 2596, To modify when a nonresident student’s transfer may be denied.

On motion of Delegate Householder, the House concurred in the following amendment of the bill by the Senate:

On page 2, section 16, line 26, by striking out all of subdivision (1) and renumbering the remaining subdivisions;

And,

On page 4, section 16, lines 82 through 90, by striking out all of subdivision (4) and inserting in lieu thereof a new subdivision (4), to read as follows:

“(4) An application may only be denied by a county board of education due to lack of grade level capacity, lack of programs or services due to areas identified in the county board critical need policy, or the commission of Level 3 or Level 4 inappropriate behavior as defined by West Virginia Board of Education Policy 4373 in the last year. The denial shall be in writing, sent to the parent or guardian of the nonresident student and the West Virginia Department of Education within three business days of the decision, and include the reason and explanation for the denial and information on appealing the denial of the application. If a nonresident student fails to fill out or submit an open enrollment application correctly, a county board shall provide an explanation of ways in which the application may be corrected and submitted for necessary approval.”

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 2596 – “A Bill to amend and reenact §18-5-16 of the Code of West Virginia, 1931, as amended, relating to open enrollment; clarifying the circumstances in which a county board of education shall permit the transfer of resident students; allowing appeal to State Superintendent of Schools; amending provisions pertaining to the contents of county board of education policies for open enrollment; requiring process for enrollment application to be clearly publicized and made available on the county board’s website; modifying reasons for which an application can be denied; and requiring county boards and the State Department of Education to report annually on the number of transfer approvals and denials made pursuant to open enrollment policies.”

The bill, as amended by the Senate, was then put upon its passage.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 195), and there were—yeas 88, nays 10, absent and not voting 2, with the nays and the absent and not voting being as follows:

Nays: Fluharty, Griffith, Hansen, Hornbuckle, E. Pritt, Pushkin, Rowe, Walker, Williams and Young.

Absent and Not Voting: Bridges and Hott.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2596) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

A message from the Senate, by

The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

Com. Sub. for H. B. 3055, To create a vocational math class for students interested in careers in the trades.

On motion of Delegate Householder, the House concurred in the following amendment of the bill by the Senate:

On page 1, section 13, line 12, after the word “classes” by inserting the words “and specific content”.

The bill, as amended by the Senate, was then put upon its passage.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 196), and there were—yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent and Not Voting: Bridges and Hott.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3055) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

A message from the Senate, by

The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

H. B. 3272, Relating to the operation of private trust companies in West Virginia.

On motion of Delegate Householder, the House concurred in the following amendment of the bill by the Senate:

On page one by striking out everything after the enacting clause and inserting in lieu thereof the following:

‘CHAPTER 31I. TRUST COMPANIES.

Article 1. Private Trust Companies and Private Trust Business.

§31I-1-1. Short title.

This article may be cited as the ‘Private Trust Company Act’.

§31I-1-2. Purposes; findings.

(a) The purpose of the article is to establish requirements for licensing private trust companies, to regulate persons who provide fiduciary services to family members of no more than three families and their related interests as a private trust company, and to establish the degree of regulatory oversight required of the State Auditor over such companies. The public interest served by this article is to ensure that fiduciary activities performed by a private trust company are restricted to family members and their related interests and as otherwise provided in this article.

(b) The Legislature finds that:

(1) A private trust company is not a financial institution, and licensure of such a company is not required.

(2) A private trust company may elect to be a licensed private trust company under this article if the company desires to be subject to the regulatory oversight of the State Auditor, as provided in this article, notwithstanding that the company restricts its services to family members.

(3) With respect to a licensed private trust company, the State Auditor is responsible for regulating, supervising, and examining the company as provided under this article.

(4) With respect to a private trust company that does not elect to be licensed, the State Auditor’s role is limited to ensuring that fiduciary services provided by the company are restricted to family members and authorized related interests and not to the general public. The State Auditor is not responsible for examining a private trust company regarding the safety or soundness of its operations.

§31I-1-3. Definitions.

As used in this article, unless the context requires a different meaning:

(1) ‘Applicant’ means the corporation or limited liability company on whose behalf an application for a license to operate as a licensed private trust company is submitted under §31I-1-4(e) of this code.

(2) ‘Capital account’ means the aggregate value of unimpaired capital stock based on the par value of the shares, plus any unimpaired surplus and undivided profits or retained earnings of a private trust company organized as a corporation; or the initial cash investment remitted for membership interests in a private trust company organized as a limited liability company, plus any undivided profits or retained earnings of the limited liability company.

(3) ‘Capital stock’ means the shares of stock issued to create nonwithdrawable capital for a corporation, or membership interests issued to create nonwithdrawable capital for a limited liability company.

(4) ‘Collateral kinship’ means a relationship that is not lineal but derives from a common ancestor.

(5) ‘Degrees of kinship’ means, with respect to two persons:

(A) Degrees of lineal kinship computed by counting one degree for each person in the line of ascent or descent, exclusive of the person from whom the computing begins; and

(B) Degrees of collateral kinship computed by commencing with one of the persons and ascending from that person to a common ancestor, descending from that ancestor to the other person, and counting one degree for each person in the line of ascent and in the line of descent, exclusive of the person from whom the computation begins, the total to represent the degree of such kinship.

(6) ‘Designated relative’ means a common ancestor of a family, who may be a living or deceased person, who is the individual to or through whom the family members are related, and who is so designated in the application for a license.

(7) ‘Family’ means a designated relative and family members of that designated relative.

(8) ‘Family affiliate’ means a company or other entity in which one or more family members own, control, or have the power, directly or indirectly, to vote all of the capital stock, partnership interests, membership interests, or other equity interests of the entity.

(9) ‘Family member’ means a designated relative and:

(A) Any individual within: (i) the fifth degree of lineal kinship to a designated relative of a private trust company, or the sixth degree of lineal kinship to a designated relative of a licensed private trust company, or (ii) the seventh degree of collateral kinship to a designated relative of a private trust company, or the ninth degree of collateral kinship to a designated relative of a licensed private trust company;

(B) The present or past spouse of any individual qualifying as a family member and an individual who is within the fifth degree of lineal kinship to such spouse or former spouse;

(C) A trust established by: (i) a family member if the trust is funded exclusively by one or more family members and, for these purposes, a trust to which property has been transferred as a result of a family member’s exercise of a power of appointment shall be considered established by that family member if all qualified beneficiaries of the appointee trust are family members, or (ii) an individual who is not a family member if all of the noncharitable qualified beneficiaries of the trust are family members, except that a trust composed exclusively of nonindividual qualified beneficiaries is considered to be a family member if all of the nonindividual qualified beneficiaries are charitable foundations or other charitable entities as described in paragraph (F) of this subdivision;

(D) A family affiliate or officer or former officer of a family affiliate: Provided, That in the case of a former officer, such officer must have qualified as an officer of the family affiliate at any time within the past three years;

(E) The estate of a family member or the estate of an individual who is not a family member if all of the noncharitable beneficiaries of such estate are family members, except that an estate composed exclusively of nonindividual beneficiaries is considered to be a family member if all of the nonindividual beneficiaries are charitable foundations or other charitable entities as described in paragraph (F) of this subdivision; or

(F) A charitable foundation or other charitable entity that either: (i) was created by a family member, or (ii) has a governing body consisting mostly of family members.

(10) ‘Fiduciary’ means executor, administrator, conservator, guardian, committee, or trustee.

(11) ‘Licensed private trust company’ means a private trust company that operates in accordance with this article and has been issued a license that has not been revoked or suspended by the State Auditor.

(12) ‘Lineal kinship’ means a family member who is in the direct line of ascent or descent from a designated relative.

(13) ‘Officer’ of a family affiliate means an individual, regardless of whether the individual has an official title or receives a salary or other compensation, who may participate in the major policymaking functions of a family affiliate, other than as a director. The term does not include an individual who may have an official title and exercise discretion in the performance of duties and functions, but who does not participate in determining the major policies of the family affiliate and whose decisions are limited by policy standards established by other officers, regardless of whether the policy standards have been adopted by the board of directors or other members of management. The chair of the board of directors, the president, the chief officer, the chief financial officer, the senior trust officer, and all executive vice presidents of a family affiliate, and all managers if organized as a limited liability company, are presumed to be officers unless such officer is excluded by resolution of the board of directors or members or by the bylaws or operating agreement of the family affiliate, other than in the capacity of a director, from participating in major policymaking functions of the family affiliate, and such excluded officer does not actually participate therein.

(14) ‘Operating plan’ means a plan that establishes the policies and procedures a private trust company will have in effect when the institution opens for business and thereafter:

(A) To ensure that trust accounts are handled in accordance with recognized standards of fiduciary conduct; and

(B) To assure compliance with applicable laws and regulations.

(15) ‘Private trust business’ means acting as or performing the duties of a fiduciary in the regular course of its business for family members. A person does not engage in private trust business by:

(A) Rendering services as an attorney-at-law in the performance of duties as a fiduciary;

(B) Rendering services as a certified or registered public accountant in the performance of duties as such;

(C) Acting as trustee under a deed of trust made only as security for the payment of money or for the performance of another act;

(D) Acting as a trustee in bankruptcy or as a receiver;

(E) Holding trusts of real estate for the primary purpose of subdivision, development, or sale, or to facilitate any business transaction with respect to such real estate;

(F) Engaging in the business of an escrow agent;

(G) Holding assets as trustee of a trust created for charitable purposes if:

(i) The trustee is an entity exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code; and

(ii) The trust is: (I) exempt from federal income taxes under Section 501(c)(3) of the Internal Revenue Code, (II) a charitable remainder trust described in Section 664 of the Internal Revenue Code, (III) a pooled income fund described in Section 642(c)(5) of the Internal Revenue Code, or (IV) a trust the charitable interest in which is either a guaranteed annuity or a fixed percentage distributed yearly of the fair market value of the trust property, described in Section 2055(e)(2)(B) or Section 2522(c)(2)(B) of the Internal Revenue Code;

(H) Receiving rents and proceeds of sale as a licensed real estate broker on behalf of the principal; or

(I) Engaging in securities transactions as a broker-dealer or salesman.

(16) ‘Private trust company’ means a corporation or limited liability company that:

(A) Is exclusively owned by one or more family members;

(B) Is organized or qualified to do business in this state;

(C) Engages or proposes to engage in private trust business under this article with one or more family members;

(D) Does not serve as a fiduciary for a person, entity, trust, or estate that is not a family member, except that it may serve as a fiduciary for up to 35 individuals who are not family members if the individuals are current or former employees of the private trust company or one or more trusts, companies, or other entities that are family members; and

(E) Does not transact business with the general public.

(17) ‘Qualified beneficiary’ has the meaning provided in §44D-1-103(r) of this code.

(18) ‘State Auditor’ means the West Virginia State Auditor.

(19) ‘Tax’ includes, but is not limited to, federal, state, or local income, gift, estate, generation-skipping transfer, or inheritance tax.

(20) ‘Trust institution’ means a bank or trust company chartered by a state bank supervisory agency or by the Office of the Comptroller of Currency.

§31I-1-4. Organization; minimum capital requirements; notice to State Auditor; control; application for license.

(a) No person other than a corporation or limited liability company organized under the laws of this state to engage exclusively in the private trust business shall act as a private trust company or licensed private trust company.

(b) A licensed private trust company that has one designated relative may not be organized or operated with an owners’ capital account of less than $250,000. The minimum capital account is $350,000 if two designated relatives of the licensed private trust company are named in the application for a license or in the annual license renewal. The minimum capital account is $450,000 if three designated relatives of the licensed private trust company are named in the application for a license or in the annual license renewal. A private trust company may not be organized or operated with a capital account of less than $250,000.

(c) No person shall engage in business as a private trust company or licensed private trust company without first giving written notice to the State Auditor. The notice shall identify at least one designated relative for any private trust company, and up to three designated relatives for any licensed private trust company, whose relationship to other individuals determines whether the individuals are family members. The notice shall identify the location of the principal office and additional office, if any, within this state. The notice shall be accompanied by an operating plan and such other books, records, documents, or information as the State Auditor may require. The notice shall also certify that:

(1) All provisions of law have been complied with;

(2) The private trust company or licensed private trust company is formed for no other reason than to engage in the private trust business;

(3) Family members have subscribed for capital stock, surplus, and a reserve for operation in an amount equal to or in excess of $250,000; and

(4) The private trust company or licensed private trust company is serving or will serve as trustee for one or more trusts having an aggregate of at least $50,000,000 in trust assets as further specified in §31I-1-10 of this code.

(d) All of the capital stock, membership interests, or other equity interests of a private trust company or licensed private trust company shall be and shall remain owned by, and under the voting control of, family members, including any spouses, trusts, stock corporations, limited partnerships, limited liability companies, or estates that qualify under §31I-1-3(9)(B) through (E) of this code of one or more families.

(e) An applicant seeking to operate as a licensed private trust company must file an application with the State Auditor on forms prescribed by the State Auditor, accompanied by a nonrefundable $10,000 application fee to be deposited into a special account in the State Treasury to be known as the Private Trust Company Application Fund. Expenditures from the fund shall be for the purpose of the State Auditor administering this article. Expenditures are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of §12-3-1 et seq. of this code and upon fulfillment of the provisions of §11B-2-1 et seq. of this code: Provided, That for the fiscal year ending June 30, 2024, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature. The application to operate as a licensed private trust company must also contain or be accompanied by:

(1) The name of the proposed licensed private trust company;

(2) A copy of the articles of incorporation or articles of organization and the bylaws or operating agreement of the proposed licensed private trust company;

(3) The physical address and mailing address of the proposed licensed private trust company, which must be located in this state;

(4) A statement describing in detail the services that will be provided to family members by the proposed licensed private trust company;

(5) The name and biographical information of each individual who will initially serve as a director, officer, manager, or member acting in a managerial capacity of the proposed licensed private trust company;

(6) The name and biographical information of each individual who owns or has the ability or power to directly or indirectly vote at least 10 percent or more of the outstanding shares, membership interest, or membership units of the proposed licensed private trust company;

(7) The names of the designated relatives;

(8) The amount of the initial capital account of the proposed licensed private trust company and the form in which the capital was paid and will be maintained;

(9) The type and amount of bonds or insurance that will be procured and maintained on directors, officers, managers, or members acting in a managerial capacity or employees pursuant to §31I-1-12 of this code;

(10) A statement signed by the applicant, or by the individual signing on behalf of the proposed licensed private trust company, under penalty of perjury, affirming that the following statements are true:

(A) The proposed licensed private trust company is not currently transacting business with the general public;

(B) No director, officer, manager, or member served as a director, officer, or manager, or acted in a managerial capacity, for a trust company or any other financial institution that had a license issued under the financial institutions codes or by the Federal Government or any other state, the District of Columbia, a territory of the United States, or a foreign country that was suspended or revoked within the 10 years preceding the date of the application;

(C) No director, officer, manager, or member acting in a managerial capacity has been convicted of, or pled guilty or nolo contendere, regardless of whether adjudication of guilt is entered by the court, to a violation of the financial institutions codes, or other similar state or federal laws or related rules, or to a crime involving fraud, misrepresentation, or moral turpitude;

(D) No director, officer, manager, or member acting in a managerial capacity has had a professional license suspended or revoked within the 10 years preceding the date of the application;

(E) All information contained in the application is true and correct to the best knowledge of the individual signing the application on behalf of the proposed licensed private trust company; and

(11) Any other additional information reasonably required by the State Auditor.

§31I-1-5. Operation and powers.

Every private trust company and licensed private trust company shall conduct its business in accordance with an operating plan and in accordance with generally accepted fiduciary standards. A private trust company or licensed private trust company when engaging in a private trust business shall have the same rights, powers, and privileges as a banking or trust institution pursuant to §31A-4-14 of this code, including the power to act as executor under the last will and testament or administrator of the estate of any deceased family member.

§31I-1-6. Reacquisition of shares or interests; dividends.

A private trust company or licensed private trust company shall not buy, redeem, or otherwise reacquire shares of stock or membership interests that the private trust company or licensed private trust company has issued, or declare a dividend or other distribution to its stockholders, members, or holders of equity interests, to the extent that such purchase, redemption, reacquisition, dividend, or distribution shall cause the private trust company’s or licensed private trust company’s paid-in capital, retained surplus, and reserves to be reduced below $250,000.

§31I-1-7. Offices.

(a) The office at which a private trust company or licensed private trust company begins business shall be designated initially as its principal office. The board of directors or managers of a private trust company or licensed private trust company may thereafter redesignate as the principal office another authorized office of the private trust company or licensed private trust company in this state.

(b) The board of directors or managers of a private trust company or licensed private trust company may designate, and from time to time redesignate, one additional office at which the private trust company or licensed private trust company may conduct business in this state.

(c) The private trust company or licensed private trust company shall notify the State Auditor of any such redesignation of its principal office or designation or redesignation of an additional office not later than 30 days before its effective date and shall confirm to the State Auditor any such designation or redesignation within 10 days of its occurrence.

§31I-1-8. Directors or managers.

The affairs of every private trust company or licensed private trust company shall be directed by a board of directors if a corporation, or managers if a limited liability company, consisting of not less than five nor more than 25 persons. At least one director or manager shall be a resident of this state.

§31I-1-9. Limitation on powers.

(a) In the exercise of any power held by a private trust company or licensed private trust company in its capacity as a fiduciary, the private trust company or licensed private trust company shall have a duty not to exercise any power in such a way as to deprive the estate, trust, or other entity for which it acts as a fiduciary of an otherwise available tax exemption, deduction, or credit for tax purposes, or deprive a donor of trust assets of a tax exemption, deduction, or credit or operate to impose a tax upon a donor or other person as owner of any portion of the estate, trust, or otherwise.

(b) Without limitation to subsection (a) of this section, no family member who is a stockholder or member or who otherwise holds an equity interest in, or is serving as a director, officer, manager, or employee of, a private trust company or licensed private trust company shall participate in or otherwise have a voice in any discretionary decision by the private trust company or licensed private trust company to distribute income or principal of any trust in order to discharge a legal obligation of a family member or for a family member’s pecuniary benefit, unless:

(1) The exercise of the discretion is limited by an ascertainable standard relating to the health, education, support, or maintenance of that family member;

(2) The distribution is necessary for that family member’s support, health, or education; or

(3) The instrument governing the administration of that trust clearly so provides.

§31I-1-10. Minimum trust assets under management certification.

As part of the notice to the State Auditor required of any private trust company or licensed private trust company that is required under §31I-1-4 of this code, an affidavit must also be submitted by the applicant, signed under penalty of perjury, certifying that the private trust company or licensed private trust company serves or will serve as trustee for one or more trusts having at least $50,000,000 in aggregate trust assets under management as of the date of such affidavit.

§31I-1-11. Unlawful to advertise services.

A private trust company or licensed private trust company may not advertise its services to the public.

§31I-1-12. Fidelity bonds; insurance.

(a) The directors or managers of a licensed private trust company shall procure and maintain fidelity bonds on all active officers, directors, managers, members acting in a managerial capacity, and employees of the company, regardless of whether they receive a salary or other compensation from the company, in order to indemnify the company against loss because of a dishonest, fraudulent, or criminal act or omission on their part, whether acting alone or in combination with other persons.

(b) Each fidelity bond shall be issued in an amount of at least $1,000,000.

(c) In lieu of the fidelity bonds required under subsection (a) of this section, a licensed private trust company may increase its capital account required under §31I-1-4(b) of this code by $1,000,000 so that if it has:

(1) One designated relative, then it is organized or operated with a capital account of at least $1,250,000;

(2) Two designated relatives, then it is organized or operated with a capital account of at least $1,350,000; or

(3) Three designated relatives, then it is organized or operated with a capital account of at least $1,450,000.

(d) The licensed private trust company shall also procure and maintain an errors and omissions insurance policy of at least $1,000,000 in which it is listed as the insured to cover the acts and omissions of officers, directors, managers, and members acting in a managerial capacity, regardless of whether the person receives a salary or other compensation from the company.

(e) A private trust company or licensed private trust company may also procure and maintain other insurance policies necessary or desirable in connection with the business of the company, including, but not limited to, one or more casualty insurance policies.

(f) A private trust company that is not a licensed private trust company may procure and maintain fidelity bonds as described in this section.

(g) A private trust company that is not a licensed private trust company may procure and maintain errors and omissions insurance coverage as described in this section.

§31I-1-13. Rule-making authority by State Auditor.

The State Auditor shall promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code and may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article.

CHAPTER 36. ESTATES AND PROPERTY.

ARTICLE 1A. UNIFORM STATUTORY RULE AGAINST PERPETUITIES.

§36-1A-1. Statutory rule against perpetuities.

(a) A Except as provided in subsection (e) of this section, a nonvested property interest is invalid unless:

(1) When the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or

(2) The interest either vests or terminates within 90 years after its creation.

(b) A Except as provided in subsection (e) of this section, a general power of appointment not presently exercisable because of a condition precedent is invalid unless:

(1) When the power is created, the condition precedent is certain to be satisfied or become impossible to satisfy no later than 21 years after the death of an individual then alive; or

(2) The condition precedent either is satisfied or becomes impossible to satisfy within 90 years after its creation.

(c) A Except as provided in subsection (e) of this section, a nongeneral power of appointment or a general testamentary power of appointment is invalid unless:

(1) When the power is created, it is certain to be irrevocably exercised or otherwise to terminate no later than 21 years after the death of an individual then alive; or

(2) The power is irrevocably exercised or otherwise terminates within 90 years after its creation.

(d) In determining whether a nonvested property interest or a power of appointment is valid under the provisions of subdivision (1), subsection (a), or subdivision (1), subsection (b), or subdivision (1), subsection (c) of this section, the possibility that a child will be born to an individual after the individual’s death is disregarded.

(e) As to any trust administered by a private trust company pursuant to §31I-1-1 et seq. of this code on or after July 1, 2023, this subsection shall apply to a nonvested property interest or power of appointment contained in a trust by substituting 1,000 years in place of ‘90 years’ in each place such term appears in this section, unless the terms of the trust require that all beneficial interests in the trust vest or terminate within a lesser period.”

And,

By amending the title of the bill to read as follows:

H. B. 3272 – “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §31I-1-1, §31I-1-2, §31I-1-3, §31I-1-4, §31I-1-5, §31I-1-6, §31I-1-7, §31I-1-8, §31I-1-9, §31I-1-10, §31I-1-11, §31I-1-12, and §31I-1-13; and to amend and reenact §36-1A-1 of said code, all relating to the operation of private trust companies; creating the West Virginia Private Trust Company Act; setting forth purposes and findings; defining terms; specifying requirements and limitations for and powers of private trust companies and licensed private trust companies; requiring a nonrefundable application fee; creating a special account in the State Treasury; specifying responsibilities and rule-making authority of the State Auditor; and modifying statutory rule against perpetuities.”

The bill, as amended by the Senate, was then put upon its passage.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 197), and there were—yeas 94, nays 4, absent and not voting 2, with the nays and the absent and not voting being as follows:

Nays: Dillon, Foggin, Kirby and Vance.

Absent and Not Voting: Bridges and Hott.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3272) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

Resolutions Introduced

Resolutions were introduced and severally referred as follows:

By Delegates Ward, Smith, Crouse, Hott, Ridenour, Thorne, Maynor, Marple, Dean, Lucas and Keaton:

H. C. R. 49 – “Requesting the Division of Highways name Bridge Numbers: 16-048/00-024.02 (EB & WB) (16A128, 16A129), (39.04482, -78.73543) locally known as LOST RIVER #1 EB & WB, carrying US 48 over LOST RIVER in Hardy County, the "U. S. Army 1SG  Elmer C. Lofton Memorial Bridge”; to the Committee on Technology and Infrastructure then Rules.

And,

By Delegate Toney:

H. C. R. 50 – “Requesting the Division of Highways name Bridge Number: 41-001/04-000.02 (41A010), (37.95138, -81.43833) locally known as Colcord Bridge, carrying CR 01/04 over Clear Fork in Raleigh County, the ‘U. S. Army PVT Leon “Deacon” Stover Memorial Bridge’”; to the Committee on Technology and Infrastructure then Rules.

Bills Introduced

On motion for leave, a bill was introduced and referred as follows:

By Delegates Hanshaw (Mr. Speaker) and Skaff

[By Request of the Executive]:

H. B. 3557 - “A Bill making a supplementary appropriation of public moneys out of the Treasury from the balance of federal moneys remaining unappropriated for the fiscal year ending June 30, 2023, to the Department of Veterans’ Assistance, fund 8858, fiscal year 2023, organization 0613, by supplementing and amending the appropriations for the fiscal year ending June 30, 2023”; to the Committee on Finance.

Motions

Delegate Steele moved to take from the table the motion on yesterday regarding discharging H. B. 2036 from the Committee on Health and Human Resources.

On the question that the discharge motion be taken from the table, the yeas and nays were demanded, which demand was sustained.

Having been ordered, the yeas and nays were taken (Roll No. 198), and there were—yeas 14, nays 84, absent and not voting 2, with the yeas and the absent and not voting being as follows:

Yeas: Brooks, Butler, Coop-Gonzalez, Dean, Dillon, Foster, A. Hall, Kirby, Kump, Petitto, Ridenour, Ross, Steele and Vance.

Absent and Not Voting: Bridges and Hott.

So, a majority of the members present not having voted in the affirmative, the motion was rejected.

Special Calendar

Third Reading

H. B. 2937, To reduce the business license fee for WV Volunteer Fire Departments to $250; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 199), and there were—yeas 97, nays 1, absent and not voting 2, with the nays and the absent and not voting being as follows:

Nays: Fast.

Absent and Not Voting: Bridges and Hott.

So, a majority of the members present having voted in the affirmative, the Speaker declared the bill (H. B. 2937) passed.

Delegate Householder moved that the bill take effect July 1, 2023.

On this question, the yeas and nays were taken (Roll No. 200), and there were—yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent and Not Voting: Bridges and Hott.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2937) takes effect July 1, 2023.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Com. Sub. for H. B. 3233, Relating generally to uniform and equipment allowances for the National Guard; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 201), and there were—yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent and Not Voting: Bridges and Hott.

So, a majority of the members present having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3233) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Second Reading

Com. Sub. for H. B. 3337, Prohibiting additional drug and alcohol treatment facilities and services in a certain county; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

H. B. 3340, To revise the West Virginia Tax Increment Financing Act; on second reading, coming up in regular order, was read a second time.

Delegate Kimble moved to amend the bill on page 14, section 7, on line 114, after the word “section” and the comma by striking the word “and”;

On page 14, section 7, beginning on line 115, after the word “Office” by striking the period and inserting a in lieu thereof a comma and the following:

“and obtain the formal consent of the governing body of any Class I, II, III, or IV municipality a portion of which is located within the boundaries of the development or redevelopment district.”;

And,

On page 14, section 7, beginning on line 117, by striking the words:

“No consent or approval from the local levying bodies having the power to levy taxes on property within the development or redevelopment district shall be required in order to amend such order or ordinance for the purposes herein described, aside from the county commission or the governing body of the municipality which is amending such order or ordinance.”

Delegate Petitto arose to speak to the amendment a second time, which consent was not granted, objection being heard.

On the adoption of the amendment, the yeas and nays were demanded, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 202), and there were—yeas 36, nays 61, absent and not voting 3, with the yeas and the absent and not voting being as follows:

Yeas: Adkins, Burkhammer, Butler, Cooper, Coop-Gonzalez, Crouse, Devault, Dillon, Fast, Griffith, A. Hall, Hansen, Hillenbrand, Jeffries, Jennings, Kimble, Kirby, Kump, Longanacre, Mallow, Marple, Martin, Mazzocchi, McGeehan, Nestor, Phillips, C. Pritt, Pushkin, Ridenour, Ross, Summers, Thorne, Vance, Walker, Ward and Worrell.

Absent and Not Voting: Bridges, Hott and Riley.

So, a majority of the members present not having voted in the affirmative, the amendment was rejected.

The bill was then ordered to engrossment and third reading.

At 12:15 p.m., on motion of Delegate Householder, the House of Delegates recessed until 6:00 p.m.

* * * * * * * * * *

Evening Session

* * * * * * * * * *

The House of Delegates was called to order by the Honorable Roger Hanshaw, Speaker.

Reordering of the Calendar

Pursuant to the action of the Committee on Rules, Delegate Householder announced that

Com. Sub. for S. B. 160, S. B. 246, Com. Sub. for S. B. 463, Com. Sub. for H. B. 2189, H. B. 3509, H. B. 3511, H. B. 3512, H. B. 3513, H. B. 3514, H. B. 3515, H. B. 3516, H. B. 3517, H. B. 3518 and H. B. 3524, on First Reading, Special Calendar, had been transferred to the House Calendar; and H. B. 2827, H. B. 3353, H. B. 3387, H. B. 3391 and H. B. 3431, on Second Reading, House Calendar, had been transferred to the Special Calendar.

Special Calendar

Second Reading

H. B. 2827, Make public charter schools eligible for Safe Schools Funds; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

H. B. 3353, Relating to the limitations on the financial relationships with foreign entities that have values antithetical to those of the State of West Virginia; on second reading, coming up in regular order, was read a second time.

Delegate Pushkin moved to amend the bill on page 7, line 106, following the period at the end if Section 2, by inserting the following:

“CHAPTER 6B. PUBLIC OFFICERS AND EMPLOYEES; ETHICS; CONFLICTS OF INTEREST; FINANCIAL DISCLOSURE.

ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES; DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES; CODE OF CONDUCT FOR ADMINISTRATIVE LAW JUDGES.

§6B-2-5c.  State public officials prohibited from doing business with foreign entities that possess antithetical values to the state of West Virginia.

The Legislature finds that the requirements of §5A-3-3d of this code that prohibit the state from conducting business with entities that sponsor terrorism  shall also apply to every elected or appointed public official of the state, to prohibit these officials from having a conflict of interest when serving in his or her capacity as a public official by actively investing in foreign entities prohibited by law from doing business with the State of West Virginia.  Therefore, any person serving as a public official who owns any financial interest in any foreign entity which the state is prohibited from doing business pursuant to §5A-3-3d of this code is prohibited from taking any action associated with his or her financial interests detrimental to the state, and shall place that asset in a blind trust as provided for in §6B-2-8 of this code during his or her term of office.  Any such state public official is prohibited as a matter of public policy during his or her time serving in public office from taking any action that supports any foreign entity which sponsors terrorism consistent with the provisions of §5A-3-3d of this code.”

Delegate Linville arose to inquire of the Chair regarding the germaneness of the amendment.

The Speaker ruled that the amendment was germane.

On the adoption of the amendment, the yeas and nays were demanded, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 203), and there were—yeas 19, nays 74, absent and not voting 7, with the yeas and the absent and not voting being as follows:

Yeas: Brooks, Butler, Dillon, Fluharty, Garcia, Griffith, Hansen, Hornbuckle, Kirby, Longanacre, Martin, E. Pritt, Pushkin, Rowe, Skaff, Vance, Walker, Williams and Young.

Absent and Not Voting: Bridges, Capito, Cooper, Hott, Jeffries, Kump and Pinson.

So, a majority of the members present not having voted in the affirmative, the amendment was rejected.

Delegates Fluharty, Skaff, Griffith, Rowe, Walker, Hansen, Williams, Young, E. Pritt, Pushkin, Garcia and Hornbuckle moved to amend the bill on page 2, section 3d, line 40, following the word “Vietnam” by inserting the following:

“(vi) Russian federation.”

On the adoption of the amendment, the yeas and nays were demanded, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 204), and there were—yeas 20, nays 72, absent and not voting 8, with the yeas and the absent and not voting being as follows:

Yeas: Fast, Fluharty, Garcia, Griffith, Hanna, Hansen, Holstein, Hornbuckle, Nestor, Petitto, E. Pritt, Pushkin, Ridenour, Rowe, Skaff, Steele, Vance, Walker, Williams and Worrell.

Absent and Not Voting: Bridges, Capito, Cooper, Hott, Jeffries, Kump, Pinson and Young.

So, a majority of the members present not having voted in the affirmative, the amendment was rejected.

On motion of Delegate McGeehan, the bill was amended on page 2, section 3d, line 41 by striking subsection (c) in its entirety and inserting in lieu thereof a new subsection to read as follows:

“(c) A public entity may not enter a contract with a company for goods or services unless the contract includes written certification that the company provides no direct financial benefit to a foreign entity with values antithetical to those of the State of West Virginia and is able to provide evidence to that end. For purposes of this section, “direct financial benefit” is that which is realized through the ownership of the company or ownership of any other entity that participates in ownership of the company. Such evidence should include documentation demonstrating ownership layers that conclude with individual natural persons. “

There being no further amendments, the bill was ordered to engrossment and third reading.

H. B. 3387, Extending the moratorium on the authorization of new convention and visitors bureaus for an additional two years; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

H. B. 3391, Establishing filing deadlines for appeals of property tax valuations and issues involving property tax classification and taxability to the West Virginia Office of Tax Appeals; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

H. B. 3431, Eliminating the requirement that the apprenticeship training tax credit base be limited to wages paid to apprentices in the construction trades; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

First Reading

The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:

Com. Sub. for H. B. 2252, Relating to establishing criminal penalties for human trafficking,

Com. Sub. for H. B. 2761, To allow classroom aides with 10 or more years of service and good evaluations to bid on teaching positions,

Com. Sub. for H. B. 2865, To clarify that the PSC may enter an order requiring corrective measures up to and including an acquisition of a distressed or failing utility,

Com. Sub. for H. B. 3006, West Virginia Critical Infrastructure Protection Act,

H. B. 3188, Relating to the establishment of an alert system for missing cognitively impaired persons,

Com. Sub. for H. B. 3189, The PFAS Protection Act,

Com. Sub. for H. B. 3198, Relating to obtaining title to abandoned or junked motor vehicles abandoned on the property or place of business of an automobile dealer,

Com. Sub. for H. B. 3247, Relating to abuse and or neglect of individuals with an intellectual and or developmental disability,

Com. Sub. for H. B. 3265, Remove statutory mandates that the sheriff of a county shall serve process or is responsible for cost of service or arrest by another law enforcement agency,

H. B. 3417, Including Potomac State College in the definition of community and technical college education program for participation in the “Learn and Earn Program”,

H. B. 3448, Relating generally to probation officer field training,

H. B. 3499, To permit joint tenancy with rights of survivorship when transfer on death deeds specify a joint tenancy with right of survivorship,

And,

H. B. 3555, Relating to student purchase and refunds of course material.

Leaves of Absence

At the request of Delegate Householder, and by unanimous consent, leaves of absence for the day were granted Delegates Bridges and Hott.

Miscellaneous Business

Pursuant to House Rule 94b, forms were filed with the Clerk’s Office to be added as a cosponsor of the following:

H. B. 2122: Delegate Hillenbrand;

H. B. 2026: Delegate Espinosa;

H. B. 2182: Delegate Dittman;

And,

H. B. 3551: Delegates Clark, Crouse, Fluharty, Garcia and Shamblin.

At 6:31 p.m., the House of Delegates adjourned until 11:00 a.m., Thursday, February 23, 2023.

HOUSE OF DELEGATES

STEPHEN J. HARRISON, Clerk

Building 1, Room M-212

1900 Kanawha Blvd., East

Charleston, WV 25305-0470