The Special Session That Wasn’t
Either as a reporter or a staff member, I have been under the golden dome of the State Capitol Building for going on 15 years in January. I have seen many things, but I have never seen the confusion that was caused last week for one day over how to call a special session in December following the November election but prior to the start of the new legislative session.
It seems simple in concept: The governor has the authority to call lawmakers into special session (called an extraordinary session in the state Constitution, because it is outside the traditional 60-day regular legislative session). Lawmakers then gavel in to consider the items the governor places on the special session agenda; they pass or reject those items; and then the Legislature adjourns sine die.
The Governor’s Office presumably notified legislative leadership that they intended to call a special session for Dec. 7 to consider one bill to expand an economic development program for a yet-unnamed project in southern West Virginia. According to a late press release Friday night from Brian Abraham, chief of staff to Gov. Jim Justice, leadership had been involved in the discussions.
A letter from House staff went out to Republican House members Wednesday night (Democratic members of the House said they found out from alternative sources) alerting them of the possible special session. Lawmakers began to take to social media Wednesday night talking about the possibility of the session. Text messages from reporters to lawmakers also provided further confirmation.
By Thursday morning though, it seemed apparent that there was going to be an issue with calling a special session in December: Would this be a lame duck special session with the current (and outgoing) legislative members, or the newly elected members of the Legislature?
The state Constitution is pretty clear that the terms for new lawmakers begin Dec. 1. It is sometimes different from every two-year period to the next, but what often happens is lawmakers will hold informal swearing-in ceremonies in their districts or wait until December legislative interim meetings to be sworn in. But all lawmakers get formally sworn in on the second Wednesday in January following an election, which will be Jan. 8 next month.
But if you’re going to call a special session in December, which looks like something that has only happened twice in state history, do you seat and officially swear in the newly elected members? The clerks of the House of Delegates and Senate spent Thursday morning trying to figure that out. I can tell you House Clerk Steve Harrison – who had planned for a quiet transition as he retires next month – had multiple books open on his desk trying to get to the bottom of that question.
In the end, it was the Secretary of State’s Office that had the answer to the question. According to the state Constitution, the Legislature gavels in on that second Wednesday in January and opens and publishes the certified election results. But state code requires the Secretary of State’s Office to bring those certified results to lawmakers at the next legislative session following an election.
County clerks are required to transmit their certified election results to the Secretary of State’s Office either as soon as possible or 30 days following the election, which was Friday. So, had Gov. Justice called a special session for Saturday, that would have required the Secretary of State’s Office to present the certified legislative results during that special session, which means that newly elected lawmakers would have been sworn in and seated.
But as some county clerks had likely only mailed their certified results to the Secretary of State’s Office Friday, the likelihood they would have arrived in time for the proposed Saturday special session would have been next to zero. So, in the end, the Governor’s Office confirmed Thursday night that there would be no special session.
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If you read Abraham’s statement, you’d think that the state missed a big opportunity by passing this one bill that would have expanded a program to allow for high-impact economic development projects that also included a renewable energy microgrid, similar to what is being done in Jackson County by BHE Renewables. But some things remain confusing.
For example, lawmakers are meeting today for two-day legislative interim meetings and new member orientations. Also, if my sources are to be believed, this unnamed southern West Virginia project was still securing private investment. So why couldn’t a special session call wait until Monday or Tuesday when lawmakers and staff would already be paid to be in Charleston? Special sessions cost $35,000 per day, which is why most special sessions now happen while legislative interim meetings are going on.
But also, if this project is so important that a special session was needed now, why not call it? Unless the plan was to call a lame-duck special session with the current Legislature because the Governor’s Office had concerns whether the next Legislature would actually pass this proposed bill.
Some members of the current Republican legislative supermajority are not big fans of backing any bills that could be seen as supporting “green” energy projects. And more of those kinds of Republican lawmakers are incoming. It is also possible that those in the outgoing Justice administration were concerned that such a bill introduced during the February regular session would not have the support of incoming Gov. Patrick Morrisey.
But if — as Abraham said in his statement last week — the bill will be tweaked to address concerns and introduced in the 2025 regular session, then what was all the rush about?