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Education bill renews debate over vouchers
Senator questions whether the bill is a conflict of interest

CHARLESTON — On Monday afternoon, public school employees watched the West Virginia Senate from the galleries above. Other residents tuned in online to the special legislative session on education.

Sen. William Ihlenfeld was quizzing Education Committee Chairwoman Patricia Rucker about Republicans' new private school vouchers bill, when the Ohio County Democrat's questions hit a nerve.

"Senator, can legislators benefit from Senate Bill 1040?" he began.

"Can a legislator open his or her own school and benefit from these accounts?"

"Do we have legislators right now who will benefit from these accounts?"

Two Republican leaders stepped in.

Finance Committee Chairman Craig Blair, R-Berkeley, called for a "point of order."

Senate President Mitch Carmichael, R-Jackson, at first said Ihlenfeld was fine. But when Ihlenfeld specifically asked about senators who operate private schools benefiting, Carmichael said that was "a little out of line."

Ihlenfeld mostly dropped the issue.

While he didn't say so on the Senate floor, he was referencing Sen. Rollan Roberts.

Roberts, R-Raleigh, leads a private religious school, Victory Baptist Academy, near Beaver, outside Beckley.

Roberts previously, and again this week, voted for vouchers, despite the fact that they could help his own school.

West Virginia has state laws and rules meant to keep lawmakers from voting on bills that could benefit them financially. The fundamental idea is that government

officials shouldn't be able to use public office for private gain.

But the looseness of those rules and the way they're enforced allows it to happen all the time. And everyone usually ignores it.

Roberts' conflict — he said his votes have been motivated by helping students and families, not himself — hasn't been the only recent example.

House of Delegates Speaker Roger Hanshaw, R-Clay and an attorney who works for the natural gas industry, had influenced votes on gas legislation as a delegate, before he became speaker.

This week, during Senate floor debate on what is among the most controversial bills of the year, the voting-on-conflicts issue bubbled to the surface, at least for a moment.

But even the senator who raised the matter offered no amendments to try to reform the situation.

"I think the committee process is what really would have made sure that these issues that I raised during my questioning were addressed," Ihlenfeld said.

The Senate's Republican leaders didn't use regular committees during the Senate's few days in special session.

But Ihlenfeld and other senators still had a shot to amend the bill on the Senate floor, and they didn't take it.

Republicans passed a separate bill (Senate Bill 1039) Monday that would legalize charter schools, and that bill has language banning lawmakers from profiting from them. Democrats didn't propose adding a similar prohibition to the vouchers bill.

By the time he started his questioning, Ihlenfeld had already let the "second reading," when bills can be amended on the floor, fly by.

Senate Minority Leader Roman Prezioso, D-Marion, said Democrats didn't propose amendments "because there was not much hope we were going to get any of our amendments in. The second thing is, the bill is dead on arrival over in the House."

The final Senate passage vote for the vouchers bill was 18-15, with all Democrats present voting no and two Republicans, Sens. Kenny Mann, R-Monroe, and Bill Hamilton, R-Upshur, joining them.

It now heads to the House of Delegates, which is set to reconvene June 17 for the special session. The House could amend the bill.

"I've got faith in the House," Ihlenfeld said. "I've gotta have faith in the House. I don't know who else I can have faith in. I think that they will do a deep dive."

He also said, "There's a lot to be cleaned up in this ESA (education savings accounts) bill, and I hope, ultimately, that it doesn't become law, because I don't think it's good for this state."

History repeats itself

Roberts didn't speak during Monday's discussion of the vouchers bill.

When the discussion ended, he voted for it.

These vouchers, called education savings accounts, or ESAs, would give parents taxpayer money to send their children to private schools, including religious schools like Roberts'.

Parents could also use the vouchers to home-school their kids or otherwise provide them with a private education.

Roberts also voted previously Monday to speed the bill's passage, and had also voted June 1 to expedite it.

Unlike the final passage vote, those acceleration votes required more than a majority of senators approving. The Monday acceleration vote, which was successful, required four-fifths of senators to agree.

For all three votes over the recent three days in special session, Roberts didn't ask to be excused from voting under the Senate's conflict-of-interest rules.

History was repeating itself.

During the regular legislative session, Roberts voted three times to advance a bill that would've legalized similar vouchers.

He voted another three times to reject three amendments that would've removed or restricted the voucher program.

All of this he did without requesting to be excused from voting on a conflict of interest.

He said that, during the regular session, he wasn't initially aware of being able to request that exemption.

There was some media coverage of his conflict, and Roberts said an email or Facebook message asking him to recuse himself got him thinking. By the end of the regular session, he was requesting exemptions.

In February, amid West Virginia's second statewide public school workers strike, with strikers filling the state Capitol, the House killed the vouchers bill.

By the time the special legislative session on education started in earnest last weekend, Roberts again wasn't requesting the exemptions.

"It went so fast. I was going to," Roberts said Monday. "I didn't have time."

He correctly noted that Carmichael, the Senate president, moved quickly after debate ended to have the final vote. Sen. Eric Tarr, R-Putnam, stood to speak on the bill, but never got the chance.

Regarding the Monday and Saturday votes to expedite the bill, Roberts noted in an email that, "None of those with public school teacher wives used Senate Rule 43 (the rule to be excused from voting on conflicts) for the preceding procedural votes on SB 1039."

"It's my understanding that no senator uses that rule for procedural votes," Roberts wrote.

The rule doesn't distinguish between procedural and final votes on bills.

The senators married to public educators — Mann, Corey Palumbo, D-Kanawha, and Ihlenfeld himself — didn't request to be excused from votes to accelerate passage of SB 1039.

That's the separate, sweeping "Student Success Act" that includes pay raises and other benefits for public school workers, but also charter schools and other provisions that many of these workers oppose.

Those three men voted against accelerating SB 1039 and against the final Senate passage vote on it. They did ask to be excused from the final passage vote, but Carmichael told them they must vote.

That bill also now heads to the House.

Rule 43 requires each senator to vote despite conflicts of interest.

That's unless, the rule says, "he or she is immediately and particularly interested therein, meaning an interest that affects the member directly and not as one of a class, or the Senate excuses him or her."

Senators have the power to change that rule, but haven't.

In 2017, they did add a line saying a senator can ask the presiding officer whether they should be excused.

But the line they added ended with "the member may still be required to vote."

The rule still doesn't specifically penalize senators for not asking to be excused.

In the couple times during the regular session that Roberts asked to be exempted, Carmichael told him he still had to vote.

Regarding the new vouchers bill, Roberts said he provided input on it in other ways, off the Senate floor.

He said that he advocated for the vouchers to be separated from SB 1039 because the vouchers weren't proposed to be directly funded from public education dollars, unlike other things in the larger bill.

Other state money would indeed fuel the vouchers.

But since the current state school aid funding formula generally drops public education funding for public school systems when they lose students, students leaving public schools using vouchers would actually free up state money to fund those same vouchers.

Also, Roberts said he suggested instead pursuing tax credit-funded vouchers.

"That's what some delegates were telling me they supported more so, so I wanted to voice that possibility and that potential," Roberts said.

"I would probably lean that direction, personally," he said. "Then you have people submitting a form to the IRS like they do with anything else and then they would be under penalty of law if they misrepresent."

After Ihlenfeld's questioning Monday, Sen. Mike Woelfel, D-Cabell, asked Rucker about possible discrimination against gay students.

The handbook for Roberts' school says students can be expelled for being gay.

Rucker said she didn't know whether the bill would allow that discrimination by private schools receiving voucher money.

That's even though she previously said she wanted the bill to have the same anti-discrimination protections as public schools, which must accept LGBT students.

"I've got faith in the House. I've gotta have faith in the House. I don't know who else I can have faith in. I think that they will do a deep dive."

Sen. William Ihlenfeld

D-Ohio County

New ACL surgery could cut time, pain for recovering athletes
Marshall Health developing, studying 'fertilized ACL' method

TEAYS VALLEY, W.Va. — No single sinew in the human body is more notorious in the sports world — with the power to end an athlete's season in an instant — than the anterior cruciate ligament, commonly known as the ACL.

When that little strip inside the knee is ruptured, the standard return is about nine months post-surgery — a time dominated by tedious physical therapy and throbs of pain, baby steps back to the field of play. Even if they do return, it's estimated nearly 60% of athletes never return from an ACL injury with their former capability.

But a new procedure at Marshall Health may hold the potential for shortening recovery for ACL tears by months and with less pain — with sweeping ramifications for athletes and teams should future studies reinforce their early success.

Dubbed a "fertilized ACL" by the method's lead practitioner, Dr. Chad Lavender, the procedure injects a patient's own stem cells and bone graft into roughly 20-millimeter tunnels that surgeons drill into the tibia to reach the torn ligament inside the knee. An internal brace is strung over the damaged ACL and attached to bone to fortify the knee and hopefully quicken rehab.

By comparison, traditional ACL surgery typically requires a donor graft to replace the ligament, with small tunnels drilled into the bone above and below the knee to hold it in place.

Lavender has done the procedure over 30 times since Marshall Health developed it just over a year ago, and the results have been excitedly fruitful. The typical recovery time for the new procedure has instead been six to seven months, Lavender said, and patients have felt significantly less pain earlier in their rehab. The average patient pain score was 1.5 out of 10 at the two-week mark, and zero at six weeks — with many patients only taking painkillers immediately following surgery.

Lavender compared the new method with potting a plant, hence the "fertilized" term, with the mixture injected into the incision speeding recovery. Mixed to a putty-like consistency, the stem cell and bone graft mix is thought to protect the ACL grafts and increase vascularization by acting as a scaffold, while also speeding and bettering the graft's fusion to the bone.

"There are early advantages to fertilized ACL reconstruction, such as decreased pain," said Lavender, an assistant professor of orthopaedic surgery at the Marshall University Joan C. Edwards School of Medicine and lead author of the research. "And when this is combined with biologics, we may be able to accelerate rehabilitation and return to play more than previously anticipated."

So far it's proven safe with no increase in complication risk versus traditional ACL repair, but the operation is still under review — though Lavender's findings will be published for now a third time in a medical journal next month. The next step for Marshall Health to advance the technique would be to clear a three-to five-year clinical trial, which would call for around 100 local patients in the coming months.

"We're going to have to study this further for it to be implemented at a wide range, but the advantage here is that there is no increase in complication risk," Lavender said. "So that's going to make it more likely to catch on quick."

But as he flipped through the X-rays and MRIs from a handful of patients, Lavender already beamed with excitement as he recounted a handful of recovery stories.

The poster child for what a "fertilized ACL" could do became Reggie Jackson, an 18-year-old former St. Albans High School football player whose knee buckled and popped catching a screen pass against Nitro in September.

He wasn't medically cleared for the rest of the season, but the speed at which Jackson's abilities returned was astonishing. He walked at three weeks and jogged at five, he said over the phone Thursday. At eight weeks, he was playing pickup basketball, and at 10 weeks he could dunk again.

By that two-month marker, his ruptured knee was as strong or stronger than the operative one in all the tests they put him through, Lavender said.

Aaron Geething became a living comparison of the traditional versus the "fertilized" methods when he ruptured his ACL playing soccer in September. Three years earlier, the 36-year-old Charleston resident had torn the ACL in his other knee, which Lavender repaired then with the old technique.

But it was night and day comparing the two experiences, Geething recounted over the phone. His second recovery, with the new method, proved to be faster and less painful — requiring only one painkiller leaving the hospital followed by a few regular ibuprofen. That speed translated into his second round of physical therapy as well.

"That kind of confidence boost is what really gets people through their physical therapy," Geething said. "I was pushing them this time instead of them pushing me to do more reps or more weight."

For more information about the upcoming clinical trial, contact Marshall Orthopaedics at 304-691-1262.

More people eligible to have records expunged
Most nonviolent felonies, misdemeanors qualify under new WV law

CHARLESTON — Thousands of West Virginians may be able to have their nonviolent felony and misdemeanor convictions removed from their records thanks to a new state law that went into effect Friday.

Senate Bill 152, passed during the 2019 regular session, expanded a law passed in 2017 permitting people with certain convictions to petition the court to have the conviction expunged from their record. Most nonviolent felonies now qualify and age of conviction no longer matters in misdemeanor cases.

A person must wait to petition the court until they are out of prison and off parole for five years for felony convictions, and one to two years for misdemeanors. Preliminary expungement can be sought after three years. However, if eight or more years have passed upon their release, a person can obtain final expungement 90 days after filing his or her petition.

Crimes involving minors, use of a deadly weapon, driving under the influence and others are not subject to expungement under the bill.

The hope is the new law will remove barriers to employment for people whose job applications are often summarily denied due to having a criminal conviction on their record. Additionally, employers who previously could not hire people who are otherwise qualified will have a bigger pool of potential employees.

Jaimee Kimble, of Kanawha County, said she plans to petition to expunge her criminal record.

"I plan to petition because even though eight years have passed since my conviction, and I'm far from the person I was when I got in trouble, I am still stigmatized and labeled for a mistake I made when I was 21 years old," Kimble said in a news release. "I've put in so much effort to put my life on track and not re-offend, but I continue to face setbacks because of that conviction."

Sen. Glen Jeffries, D-Putnam, lead sponsor of the bill, said in the release he was pleased the law was approved in 2017.

"This is one step in giving individuals a second chance, whether with a misdemeanor or a nonviolent felony charge," he said. "There are still safeguards in place and charges that are not eligible for expungement. I believe this is the right step to help create better job opportunities and help our workforce participation in West Virginia."

Petitioners can only file for expungement once, so Lida Shepherd, with the American Friends Service Committee, said it is imperative potential petitioners know they are eligible and that they have all the necessary paperwork in order. Filing fees are also non-refundable. For petitioners in financial need, a financial affidavit can be filed along with an expungement petition. Petitioners can file using an attorney or by themselves as a pro se litigant. The expungement process can be daunting, Shepherd said in a release, and attorneys caution that there is no substitute for sound legal counsel.

Legal Aid of West Virginia, American Friends Service Committee, American Civil Liberties Union of West Virginia, Mountain State Justice, Kanawha County Public Defender Office and statewide Re-Entry Councils are collaborating on efforts to educate petitioners, lawyers and judges about the new law. Free legal clinics are also being planned.

More detailed information is available on Legal Aid of West Virginia's website at Expungement forms will be available on the West Virginia Supreme Court's website.


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