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Tuesday, February 28, 2017

Parade Memories

This Is Going to Be an Interesting law to watch!!!!!

The West Virginia House of Delegates passed an ethics reform bill Monday that seeks to shore up a ban on nepotism in state and local government.
The legislation also prohibits public officials from steering funds to nonprofit groups whose boards they serve on. In addition, the omnibus bill includes provisions that shine more light on state contracts and who stands to benefit financially from them.
“[This is] among the bills we’re considering this session in an effort to rebuild public confidence in government,” said Delegate John Shott, R-Mercer.
For years, the state Ethics Commission has held that nepotism violates ethics laws that bar public officials from using their office for private gain. But current state law doesn’t specifically address nepotism.
“The bill adds an express provision that nepotism violates the Ethics Act,” said Shott, who heads the House Judiciary Committee.
Under the bill, “a public official or employee may not knowingly or intentionally influence…show favoritism or grant patronage in the employment or working conditions with his or her relative, or a person with whom he or she resides.”
“Relatives” subject to the proposed nepotism ban include a spouse, mother, father, sister, brother, son, daughter, grandparents and all in-laws.
The legislation also closes a loophole under existing law that allows public officials to steer funds to nonprofit boards they sit on, provided they aren’t paid by the organizations.
The ethics reform bill requires public officials to recuse themselves from such funding votes, even if they’re unpaid, nonprofit board members.
“If the city council member is president of the local Little League and seeks funding for a new baseball field, the council member would have to recuse himself from the vote, if the council desires to give money to the Little League,” Shott said. “The law does not preclude the appropriation, rather it simply brings transparency and avoids an appearance of impropriety in the appropriation to the public official’s nonprofit.”
The proposed state contract disclosure rules mirror those passed in Texas last year.
The bill requires companies and consultants with state contracts to disclose the names of those who have at least a 25 percent stake in the deal. The names of lawyers, brokers and advisors also must be disclosed. The information would be reported to the Ethics Commission and be made available to the public.
“The intent is to bring transparency to those persons and businesses that are financially benefiting from state contracts,” Shott said.
The ethics reform bill next moves to the West Virginia Senate.
- See more at:

Saturday, February 25, 2017

You Gotta Love This President

Trump Executive Order
The faulty Fourth Circuit decision issued last week upholding Maryland’s Scary Gun Ban runs afoul of good jurisprudence. The ruling found that Second Amendment protections don’t extend to individuals who wish to own certain semi-automatic rifles like the AR-15, calling them, “weapons that are most useful in military service.” However, a document sent to me yesterday offers hope of correcting that in the form of a proposed executive order to be issued by President Trump.
Virginia attorney Lenden Eakin sent me the text of the proposed order and gave permission to share it. I’d like run it past the Armed Intelligentsia here at TTAG to get your take.
The simple mechanism of attorney Eakin’s proposal: by defining certain categories of rifles for militia use, the President could strike state and local bans on many of the most popular “assault rifles” and their magazines.
Mr. Eakin also notes: “An Executive Order like this could have a significant impact on the litigation to challenge Assault Weapons Bans currently making its way through the Courts. It would help the challengers.”
UPDATE:  I neglected to note in the original story how this is meant to serve as a stop-gap measure.  Ideally, only until a more permanent remedy could be achieved.  Or alternatively, until the Supreme Court, with one or more President Trump appointees, could reverse that Fourth Circuit ruling and strike scary gun bans on the whole.


– – – – – – –
By the authority vested in me as President and Commander in Chief of the Militia by the Constitution and the laws of the United States of America, and in order to ensure the ability of citizens of the United States to defend themselves, their communities and their States, as well as to ensure the safety and security of our Nation, I hereby order as follows:
Section 1.  Purpose. Both individual and community safety are critically important to the national security of the United States. Terrorism, transnational criminal activity and potential acts of war by foreign nations present a significant threat to national security and our citizens, who have the right and the duty to defend themselves, their communities, their States and the Nation.
Section 2.  Policy.  It is the policy of the executive branch to:
(a)  Support and defend the Constitution, including the Second Amendment right of citizens to keep and bear arms for Militia purposes,as well asself-defense.
(b)  Encourage citizens to be prepared to act as members of the Militia to defend communities, States and the Nation, as part of the common defense contemplated by the Constitution of the United States.
(c)  Discourage restrictions by States and political subdivisionson individual possession of firearms suitable for Militia purposes by citizens of the United States.
Section 3.  Definitions.
(a)  “Militia” has the meaning given the term in Title 10, Section 311 of the United States Code to include the Unorganized Militia, as well as the meaning given to the term “Militia” under equivalent State statutes.
(b)  “Self-Defense” shall mean the actions of citizens to defend themselves and their families from physical attack.
(c)  “Communities” shall mean neighborhoods, towns, cities, counties and other political subdivisions of citizens who live in distinct geographic areas within a State.
(d)  “State” shall mean one of the fifty States of the United States.
(e)  “Militia Purposes” shall mean training, practice and preparedness which could improve the ability of a citizen to act,and to be armed in case of a need to act, as a current or future member of a local, State or National organization commanded by government officials and responsive to a physical threat.  Appropriate organizations include those commanded by an elected county or city Sheriff; those commanded by the Governor of a State through officers of that State’s  Defense Force as authorized by Title 30, Section 109 of the United States Code, or through officers of that State’s National Guard;and organizations commanded by the President through officers of the Active or Reserve components of U.SArmed Forces.
(f)  “Militia Rifles” shall mean the firearms designated in Section 4 that are made in America and suitable for use in self-defense, community defense, defense of States and defense of the Nation.
Section 4.  Designation of Militia Rifles.  That the following firearms and accessories are authorized and appropriate for individual citizens to keep and bear for Militia purposes under the Constitution and the laws of the United States:
(a)  The AR-15 and similar semi-automatic rifles, to include flash suppressors and bayonet lugs, magazines of up to thirty round capacities, M-7  bayonets, and ammunition in 5.56 NATO or .223 Remington, in all quantities.
(b)  The M1A and similar semi-automatic rifles, to include flash suppressors and bayonet lugs,magazines of up to twenty round capacities, M-6 bayonets, and ammunition in 7.62 NATO or .308 Winchester, in all quantities.
(c)  The M1 Garand and similar semi-automatic rifles, to include flash suppressors and bayonet lugs, M-5 bayonets, and ammunition in.30-’06 Springfield, in all quantities.
(d)  Bolt action rifles in the calibers of .30-’06 Springfield; 7.62 NATO or .308 Winchester; 5.56 NATO or .223 Remington; or any substantially equivalent caliber, and ammunition appropriate for the rifles, in any quantity.
(This list could be expanded or replaced by a broad definition)
Section 5.  Pre-emption.  This Executive Order is intended to pre-empt the laws of States or political subdivisions that infringe upon the rights of citizens to keep and bear the arms designated in Section 4.
Section 6.  Judicial Notice.  That the judges of all State and Federal Courts are hereby given notice that possession of the designated Militia Rifles and accessories by citizens should not be restricted or infringed upon by State laws or the laws of a political subdivision of a State and any such law should be reviewed under the strict scrutiny standard to determine whether it is a violation of the Constitution of the United States after judicial consideration of this Order and the fact that it was issued by the Commander in Chief of the Militia.
Donald J. Trump
March __, 2017


Thursday, February 23, 2017

Re: Secret Meetings

(b) An executive session may be held only upon a majority affirmative vote of the members present of the governing body of a public agency. A public agency may hold an executive session and exclude the public only when a closed session is required for any of the following actions:

(1) To consider acts of war, threatened attack from a foreign power, civil insurrection or riot;

(2) To consider:

(A) Matters arising from the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of a public officer or employee, or prospective public officer or employee unless the public officer or employee or prospective public officer or employee requests an open meeting; or

(B) For the purpose of conducting a hearing on a complaint, charge or grievance against a public officer or employee, unless the public officer or employee requests an open meeting. General personnel policy issues may not be discussed or considered in a closed meeting. Final action by a public agency having authority for the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of an individual shall be taken in an open meeting;

(3) To decide upon disciplining, suspension or expulsion of any student in any public school or public college or university, unless the student requests an open meeting;

(4) To issue, effect, deny, suspend or revoke a license, certificate or registration under the laws of this state or any political subdivision, unless the person seeking the license, certificate or registration or whose license, certificate or registration was denied, suspended or revoked requests an open meeting;

(5) To consider the physical or mental health of any person, unless the person requests an open meeting;

(6) To discuss any material the disclosure of which would constitute an unwarranted invasion of an individual's privacy such as any records, data, reports, recommendations or other personal material of any educational, training, social service, rehabilitation, welfare, housing, relocation, insurance and similar program or institution operated by a public agency pertaining to any specific individual admitted to or served by the institution or program, the individual's personal and family circumstances;

(7) To plan or consider an official investigation or matter relating to crime prevention or law enforcement;

(8) To develop security personnel or devices;

(9) To consider matters involving or affecting the purchase, sale or lease of property, advance construction planning, the investment of public funds or other matters involving commercial competition, which if made public, might adversely affect the financial or other interest of the state or any political subdivision: Provided, That information relied on during the course of deliberations on matters involving commercial competition are exempt from disclosure under the open meetings requirements of this article only until the commercial competition has been finalized and completed: Provided, however, That information not subject to release pursuant to the West Virginia freedom of information act does not become subject to disclosure as a result of executive session;

(10) To avoid the premature disclosure of an honorary degree, scholarship, prize or similar award;

(11) Nothing in this article permits a public agency to close a meeting that otherwise would be open, merely because an agency attorney is a participant. If the public agency has approved or considered a settlement in closed session, and the terms of the settlement allow disclosure, the terms of that settlement shall be reported by the public agency and entered into its minutes within a reasonable time after the settlement is concluded;

(12) To discuss any matter which, by express provision of federal law or state statute or rule of court is rendered confidential, or which is not considered a public record within the meaning of the freedom of information act as set forth in article one, chapter twenty-nine-b of this code.

Is the School Board Having Secret Meetings???

Wednesday, February 22, 2017

Fire Department Crisis Has a "Silver" Lining

I talked with one of the main opponents to the fire fee and he affirmed his support of the fire department and believed that the decision to scuttle the Marlinton Fire Fee was actually a good thing and will lead to very nice consequences.

Here's what likely would have happened if the Marlinton Town Council had passed the ordinance but would not let people outside of the town limits vote on it:

The matter would have gone to court, probably the Supreme Court of the United States.  Opponents of taxation without representation would have jumped on this and would have won.  They would have won because the fire fee was essentially an unintended scam. 

One customer (The town of Marlinton) was trying to force the other customers (people living outside the town limits to pay $$$ for a service merely used by the town not provided by the town.  

The town council was forced to admit that it had no authority to make any other customer pay for a service that they themselves voted upon.

The basic question was "taxation without representation."  This is still a touchy issue in American over 200 years since the tea was dumped into Boston harbor.  

It wasn't merely a matter of the "fee" but the fact that people were being forced to pay for a service without getting to vote on it.

As the old say goes,  Don't pee on my shoes and tell me it is raining!

I am so glad that the town council decided to back off and throw this illegal proposal out the door.  Good going.  I am also glad that Mayor Sam likewise recognized the futility of the proposal and backed off so.  Sam Felton is a good mayor who is trying to do the right thing.  But sometimes we just don't see things the same way.

I had complained about this fee from day one.  I said that we still remembered having a tea part several years ago which caused a revolution in America.  I am glad that this proposal was scuttled in the harbor before it because law.

Now the bright side:  The MVFD can tell proceed in a legal manner which is already approved by state law.  They won't have to invent their own law which will have multiple challenges.  They will turn to the County Commission and ask them to impose a fire fee on the whole county.

True,  there will be multiple firefights and legal challenges but ultimately the law will be held that the County Commission will successfully impose the county wide tax.  It will be approved by lawfully elected commissioners and it will have support from the people.

The bright side is that ALL THE DEPARTMENTS will get equal funding for their services.  Frost will have support,  Cass will have support, Durbin will have support.  And all of this will be from the electorate who can kick out any county commissioner who votes for more taxes.  County commissioners will approve the fire tax at the risk of their careers.  AND THAT IS GOOD!

Democracy will be validated and advanced by this lawful outcome.

You can be sure that the three commissioners were sitting on pins and needles hoping that they wouldn't have to deal with this question BUT NOW THEY WILL.  Now the spotlight will turn on them and we are in for the performance of a lifetime. 

Various fire departments will advance upon the county meetings pleading for their share of the new pie.  Then there will be fighting break out among them but that is not bad.  Competition for the largess of the county will make for improved service and ALL OF US WILL BENEFIT.

The fire departments will remain as volunteer fire departments manned by people who do so out of the goodness of their hearts and the love of their neighbors.

Attending a county commission meeting will now be exciting and stimulating.  

My wife's first response upon hearing the good news was that we have to send in our voluntary donation to the fire departments.  AND WE WILL!

About Me

A local archivist who specializes in all things Pocahontas County