By RYAN QUINN
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 last 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.
Last 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.