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Steeple chase

Morning fog burns off the hills around Charleston on Monday revealing (from left) the St. John’s Episcopal Church steeple, the Kanawha United Presbyterian Church steeple and the Basilica of the Co-Cathedral of the Sacred Heart’s steeple.

Delegates Nelson and Robinson say their experiences are best to replace Palumbo in Senate 17 race

While tenured state Sen. Corey Palumbo is making his exit from politics, for now, two other experienced state delegates are competing to take his place representing Kanawha County in the West Virginia Senate.

It will be the first time since 2008 that voters are guaranteed to select a new person to represent West Virginia’s 17th Senatorial District.

Republican Eric Nelson and Democrat Andrew Robinson, both of Charleston, are hoping to be that new face in the Senate in 2021.

Nelson, a financial consultant and manager by trade, has been elected to the House in every election since 2010. He notably served as chairman of the House Finance Committee from 2015 to 2018.

He is the chairman of the House Banking Committee and vice chairman of the Pensions and Retirement Committee, and he says his financial and business experience makes him the best person for the seat. Nelson is one of four delegates who represent House District 35, which includes Central and Western Kanawha County to its county line with Putnam County.

Voters elected Robinson to the House in 2016 and 2018. He is a real estate appraiser and broker by trade. He is the minority chairman of the House Committee on Prevention and Treatment of Substance Abuse and the Political Subdivisions Committee. Robinson said his work establishing the Ryan Brown Fund, which allocates money to substance-abuse recovery in the state, is his biggest legislative accomplishment.

Robinson is one of three delegates who represent House District 36, which includes all of Southern Kanawha County.

The candidates disagree on how Gov. Jim Justice has administered the use of $1.2 billion West Virginia received from Congress in the CARES Act in March. The lump sum was a one-time payment meant for state and local governments to use to cope with the pandemic.

Nelson supports the governor, saying, “I wouldn’t do it any different,” when it comes to the people from whom the governor is taking advice for using the CARES money.

However, Nelson said, he would prefer that the Legislature has a greater say in where such money goes.

“I’m not in favor of a special session right now, because it would be too politicized and nothing would get done in a positive manner,” he said. “But going forward, should the Legislature have much greater control of any disbursements? Absolutely.”

Robinson said one person should not be in charge of $1.25 billion and that the West Virginia Constitution gives the Legislature the power of the purse, not the governor. He said the governor doling out the money during an election year has made it inherently political.

“I think it’s very dangerous to have that large of a sum of money being spent and passed out by one individual,” Robinson said. “I tend to [believe] this is an election, and money is being handed out as poking, trying to boost some support. One of the big issues I also have is items can slip past one person.”

The issues

Both men said that, for West Virginia to strengthen its economy and outgrow harmful stereotypes, lawmakers must pass laws that protect vulnerable populations and provide a system of support for people who would come to the state, particularly growing families.

Nelson and Robinson told the Gazette-Mail they would support the Fairness Act, if voters send them to the Senate.

The Fairness Act would make it illegal for employers or landlords to fire someone or kick them out of a rental property based on the employees’ and tenants’ sexual orientation or gender identity.

The Fairness Act was introduced in the House and Senate during the 2020 legislative session, but it never gained traction.

During the session, Robinson thrice voted in support of measures to advance the House version of the Fairness Act. Nelson thrice voted against those measures. The bill died in the House Industry and Labor Committee without consideration by delegates.

Since the cornonavirus pandemic has further highlighted weak and non-existent internet access throughout West Virginia, both candidates said it is a priority for them to provide more access and reliability to broadband networks in the state.

Nelson and Robinson cite their support in the Legislature for measures that gave private broadband companies tax breaks, the ability to establish broadband lines on existing public utility poles and greater right-of-way along public property — all with with the goal of enticing them to extend their network in underserved parts of the state.

Laying the groundwork for private companies to extend and strengthen their broadband networks is key to making the internet more accessible in West Virginia, Nelson said.

“It cut down certain regulations that had been impediments as it related to laying fiber,” Nelson said. “You’ve gotta build the base before you have the ability to invest.”

Robinson said the previous measures approved by the Legislature were good, but he added that, until broadband is made a public utility and those companies are held accountable by the Public Service Commission, there is no incentive, financial or otherwise, for them to extend their networks and ensure quality service.

He said the state needs to take initiative to establish partnerships to jump-start construction on the networks.

“Are individuals going to get services just because AT&T got a tax break? I don’t think so,” Robinson said. “What we have to do is really invest in concrete infrastructure, and that’s put fiber in the ground, put conduit in the ground, so we can update fiber at a later time.”

When it comes to drawing people to West Virginia, Nelson said there’s a need to expand more into solar energy. He also noted his co-sponsorship of a bill during the 2020 legislative session that would have provided 12 weeks of paid family leave to state employees, who have 12 weeks of unpaid leave under existing law.

“It shows the intent of us, as leaders, of what we want to provide our own employees,” Nelson said. “It is a great example for others to see.”

Robinson said West Virginia needs to be more inclusive to attract people and business to the state, and he said the state needs to find a sweet spot of giving tax incentives to businesses without dumping the burden on West Virginians.

“Our tax structure is an interesting thing we can get into,” Robinson said. “While we have to be sensitive to what our large companies need, we can’t shift that off to the employees and make them pay the tax to give the tax break to the larger company.”

Tentative settlements reached for six families in Clarksburg VAMC murders

Six families have reached tentative settlement agreements with the Louis A. Johnson VA Medical Center, in Clarksburg, over a string of patient murders at the facility by a former night-shift nurse.

Tony O’Dell, a Charleston attorney representing several of the late veterans’ families, said in a statement there are caps for settlement amounts for medical malpractice civil lawsuits in West Virginia, but the families are pleased to be paid what’s permitted under the law.

The settlements, which have not been finalized, are pending court approval: George Nelson Shaw Sr., $975,000; John Hallman, $950,000; Felix McDermott, $775,000; Robert Kozul Sr., $775,000; Russell Posey Sr., $700,000.

The family of late veteran Archie Edgell, represented by Morgantown attorney Dino Colombo, also has reached a tentative settlement, O’Dell said, but the amount is not yet available.

Sen. Joe Manchin, D-W.Va., said in a news release Saturday the settlements are further evidence that the Clarksburg VAMC was negligent in the slayings that happened at the facility. He also called for the Veterans Affairs Office of the Inspector General to release the findings of the investigation into the killings and the hospital’s response.

“It has been over two years since we learned about these murders, and no one at the VA or in the Clarksburg VAMC leadership have been held accountable for these terrible actions,” Manchin said. “The West Virginia veteran community needs answers. I strongly urge VA Inspector General [Michael] Missal to quickly conclude and publish the Office of Inspector General’s report.”

In a statement, O’Dell and his law firm thanked Manchin and his push for the report to be released.

“Tiano O’Dell PLLC thanks Senator Manchin for all he has done to support these families and to push for much needed answers and systemic changes, as they anxiously await the US Veteran’s Affairs Administration’s Office of Inspector General’s Report,” he said. “Tiano O’Dell PLLC continues to investigate up to 12 other cases, and these families deserve answers, as do the veterans who currently rely on the Louis A. Johnson VA Medical Center for much needed care.”

O’Dell said there are several veterans who died under similar circumstances at the facility, and patient information from the hospital is currently being gathered.

Reta Mays pleaded guilty on July 14 to killing seven veterans: Raymond Golden, Robert Edge Sr., Kozul, Edgell, Shaw, McDermott and one unnamed veteran. Mays worked the night shift in Ward 3A of the hospital, caring for veterans who were not in a condition to be discharged but did not require intensive care.

Mays injected the veterans with insulin when it was not prescribed, which caused their blood glucose levels to fall drastically; many died days later.

Mays faces up to life in prison for each veteran’s death.

Justice: 'Way premature' to lift state of emergency despite favorable risk map

Gov. Jim Justice said Monday it’s “way premature” to consider lifting a six-month-old state of emergency for the COVID-19 pandemic, even though West Virginia’s color-coded risk assessment map shows 46 of the 55 counties are either lowest-risk green or low-risk yellow.

“We are nowhere close to lifting our state of emergency,” Justice said during Monday’s COVID-19 briefing. “We’ve got to stay as diligent as we possibly can. We’ve got to stay on our game.”

West Virginia law gives governors broad powers during states of emergency, including the ability to amend or rescind rules and regulations; to assume procurement and appropriations authority; to suspend state laws; and to exercise all other powers and duties “necessary to promote and secure the safety and protection of the civilian population.”

The governor’s powers even extend to the authority to “suspend or limit the sale, dispensing or transportation of alcoholic beverages,” an authority Justice has exercised on two occasions during the pandemic by ordering all bars closed in Monongalia County.

It also gives Justice authority to order the wearing of face masks in public and commercial indoor settings, a power he referred to Monday, saying, “I know everybody’s tired, and everybody’s sick and tired of wearing their masks.”

Justice declared a state of emergency regarding the COVID-19 pandemic on March 16. Twelve days earlier, he had declared a state of preparedness, which gives the governor the same broad powers as a state of emergency, but only for 30 days.

Asked Monday if the state’s risk assessment map indicates the pandemic emergency has passed, Justice said, “We cannot drop our guard. As far as lifting this emergency thing, it’s way premature right now.”

The risk assessment map, which measures counties’ risk level by either infection rate or positivity rate — whichever is lower — on Monday showed 35 counties in green, indicating the virus has been contained. An additional 12 counties were yellow, indicating a low risk of transmission.

Only nine counties were red, orange or gold, denoting various levels of risk requiring higher levels of restrictions of public school activities.

In sharp contrast, the latest Harvard Global Health Services risk assessment map, using data from Saturday, had three counties in highest-risk red and 20 counties in high-risk orange.

The Harvard Global map, based on a rolling seven-day average of infections per 100,000 population, had no West Virginia counties in lowest-risk green Monday, and had 32 counties in yellow.

Also during the Monday briefing:

n Dr. Clay Marsh, vice president for health sciences at West Virginia University and the state’s COVID-19 czar, cited a national news article and evidence from West Virginia’s public schools to say classrooms are not COVID-19 super-spreader hot spots.

“What we’re finding is, around the country, the rate of transmission in schools is really, really low,” Marsh said, citing reported transmission rates of less than 1% among students, and less than 2% among teachers.

In West Virginia, he said, there is no direct evidence of classroom spread of COVID-19 and that outbreaks in schools have been linked to outsiders and school sports.

“With the appropriate approaches being used in schools, it appears the classroom is a safe place to be,” he said.

As of Monday, the West Virginia Department of Education website lists outbreaks of two or more cases at 21 public schools, for a total of 62 cases.

n Justice veered into politics on a couple of occasions Monday, including blaming House Democrats for the ongoing congressional impasse on passage of a new COVID-19 economic stimulus package.

“It’s so ridiculous, it’s just off the charts,” Justice said of the impasse. “They want to call it politics, but it’s just children in a sandbox.”

The Democrat-run House of Representatives passed the stimulus package, known as the Heroes Act, on May 15, but the bill has languished in the Republican-controlled Senate. President Donald Trump last Tuesday declared a halt to stimulus negotiations until after the Nov. 3 general election, but has since pivoted in the face of bipartisan criticism.

Justice also commented on his gubernatorial debate Tuesday evening with Democratic Party challenger Ben Salango, saying he hopes it doesn’t turn into “a food fight or a spectacle.”

“I hope it is respectable, and educational for our voters,” Justice said, adding that he has not done much preparation for the statewide televised debate, noting, “I’ll think about it between now and tomorrow.”

Barrett confirmation hearing day one: Courts aren't designed to 'right every wrong' in society, Barrett says in opening

WASHINGTON — Supreme Court nominee Amy Coney Barrett made her formal introduction before the Senate Judiciary Committee on Monday, pledging to be a justice who will apply the law “as written” and paying tribute to justices across the ideological spectrum who came before her: Justices Antonin Scalia, Sandra Day O’Connor and Ginsburg.

Barrett hewed close to her prepared remarks, which were made public on Sunday, in which she stressed her philosophy that courts were not a place where every right or wrong in society should be corrected.

“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people,” Barrett told the Senate Judiciary Committee. “The public should not expect courts to do so, and courts should not try.”

She noted that Scalia — for whom she clerked — believed that a judge must apply the law as written and not as he or she wished it were.

“It was the content of Justice Scalia’s reasoning that shaped me,” Barrett said.

As for her female predecessors, Barrett praised O’Connor — the first woman to sit on the Supreme Court — as a “model of grace and dignity” and paid tribute to Ginsburg’s storied career.

“I have been nominated to fill Justice Ginsburg’s seat, but no one will ever take her place,” Barrett said. “I will be forever grateful for the path she marked and the life she led.”

She told the committee that a Supreme Court seat was “not a position I had sought out” and that she “thought carefully” before accepting the nomination. Senate documents show she accepted it Sept. 21, three days after Ginsburg’s death.

Barrett also nodded to her family, sitting behind her except for her youngest child, Benjamin, who is staying with friends. Earlier Monday, Benjamin was calling out the names of his siblings as he saw them on television, Barrett said.

“The confirmation process — and the work of serving on the court if I am confirmed — requires sacrifices, particularly from my family,” Barrett said. “I chose to accept the nomination because I believe deeply in the rule of law and the place of the Supreme Court in our nation.”

Sen. Lindsey Graham, R-S.C., opened Barrett’s confirmation hearing Monday by acknowledging that the proceedings will surely be contentious but urging senators to hold a respectful process, saying: “Let’s remember, the world is watching.”

Graham, the committee’s chairman, also paid tribute to the woman whose seat Barrett would fill, the late Justice Ruth Bader Ginsburg, and noted that she was confirmed nearly unanimously in 1993 despite a legal resume of fighting for liberal causes.

“There was a time in this country where someone like Ruth Bader Ginsburg was seen by almost everybody as qualified for the position ... understanding that she would have a different philosophy than many of the Republicans who voted for her,” Graham said.

He also defended working on a Supreme Court confirmation so close to an election, acknowledging that it has never been done beyond July of an election year but that a president is elected for four years.

“This is a vacancy that has occurred through the tragic loss of a great woman, and we’re going to fill that vacancy with another great woman,” Graham said.

Sen. Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, wasted no time painting the GOP’s move to quickly confirm Barrett as an attempt to upend the Affordable Care Act and its protections for people with preexisting medical conditions.

Democrats over the past several days have agreed to hammer the health care issue over and over during the Barrett hearings, convinced they could turn voters away from the GOP and Trump simultaneously.

“Health care coverage for millions of Americans is at stake in this nomination,” the Democrat from California said, noting that the Supreme Court is set to hear arguments on the constitutionality of the Affordable Care Act in mid-November.

Democrats have insisted that Barrett recuse herself from the case, arguing that she cannot rule impartially on a law that the president who nominated her has said he wants axed.

Trump, Feinstein pointed out, said eliminating the Affordable Care Act would be “a big win for the USA.” And she noted that Barrett previously criticized Chief Justice John Roberts Jr. for how he ruled to uphold the health care law, saying he “pushed the [ACA] beyond its plausible meaning to save the statute.”

“I hope you will clarify that in this hearing,” Feinstein said.

Sen. Kamala Harris of California, the Democratic Party’s vice-presidential nominee, echoed the health care message of other Senate Democrats and warned that confirming Barrett to the Supreme Court would precipitate the demise of the Affordable Care Act.

Harris argued that, because Republicans have failed legislatively to repeal the increasingly popular Affordable Care Act, “now they are trying to bypass the will of the voters and have the Supreme Court do their dirty work.”

Harris was appearing remotely from her office in the Hart Senate Office Building.

Three years before she sat in a Senate hearing room as a Supreme Court nominee, Barrett disparaged the legal reasoning of the nation’s chief justice when he wrote the majority opinion in a major case that upheld the Affordable Care Act.

In an essay published in a journal of Notre Dame Law School, where she was a professor, Barrett contended that judges should respect the text of statutes and that Roberts pushed the health care law “beyond its plausible meaning to save the statute.”

In the 2012 case, the first time the high court considered the constitutionality of the 2010 law that reshaped much of the U.S. health care system, ACA opponents argued that Congress had overstepped its bounds of the Commerce Clause when it included a tax penalty for people who disregarded the law’s requirement that most Americans carry health insurance. Roberts wrote that this part of the law fell within Congress’s legitimate taxing authority.

The court majority, Barrett wrote in her 2017 essay, “expresses a commitment to judicial restraint by creatively interpreting ostensibly clear statutory text.”

The Supreme Court upheld the ACA on different grounds in 2015. It is scheduled to hear oral arguments in a third case challenging the law on Nov. 10, a week after the November elections.

Democrats believe their most effective political play is to frame the battle over Barrett as a fight over health care, knowing they have little power to halt her confirmation before Nov. 3.

“We do not have some secret, clever procedural way to stop this sham. Let’s be honest,” Sen. Amy Klobuchar, D-Minn., said at a post-hearing news conference with other Democratic senators. “And as good as we are, it’s probably not going to be some brilliant cross-examination that is going to change the trajectory of this nomination.”