AG on ethics bill: ‘Crisis’ could ensue

A pair of rulings by the state’s Supreme Court, one as recent as last year, appear to back a move this week by the House of Delegates, which approved an ethics bill for the state’s top legal officer, despite a protest from the attorney general’s office that doing so will provoke a “constitutional crisis.”

[cleeng_content id="227764518" description="Read it now!" price="0.49" t="article"]The Attorney General Ethics and Accountability Act, HB4490, requires the attorney general to recuse himself and appoint outside counsel if he or a family member has been employed by another party involved in a case before the attorney general’s office within the last five years.

The vote split 52-44 along party lines, with Democrats favoring the measure. One Democrat and three Republicans did not cast ballots.

Republicans charged that the bill was a partisan attack on Attorney General Patrick Morrisey, a Republican, and that it was an unconstitutional extension of the Legislature’s authority over the elected attorney general.

Democrats have countered that the bill came in response to allegations that Morrisey did not properly deal with a conflict of interest with Cardinal Health, a health care company that former Attorney General Darrell McGraw brought a suit against in 2012, and which has long employed Morrisey’s wife as a lobbyist in addition to making donations to Morrisey’s campaign. They argued that the bill is entirely constitutional.

Republican Delegate John Shott said the bill’s conflict of interest provisions were unconstitutional.

“The power to set the rules and the procedures of our court system are set exclusively by the Supreme Court,” he said. “We absolutely have no authority to do that.”

In a statement, Morrisey’s spokesperson Beth Ryan also criticized the bill.

“This bill targets one person in state government while not imposing similar standards on legislators or other Constitutional offices,” Ryan said. “House Bill 4490, as it currently stands, will cost the state many millions of dollars, jeopardize existing investigations and lawsuits, and compromises the attorney general’s ability to fight for the Second Amendment and jobs in West Virginia.”

She also reiterated the claim that the bill violated provisions of the state constitution.

“If this bill passes, it will plunge the state into a constitutional crisis.”

However, in 2002, the West Virginia Supreme Court of Appeals dealt with the question of the Legislature’s authority over the Attorney General after then-Attorney General Darrell McGraw, who Morrisey unseated in 2012, challenged the constitutionality of other state officers employing outside counsel who were not working for the attorney general’s office.

The court found that it was not unconstitutional for state officers to employ outside counsel in all cases, but that they could not do so in a way that stripped the attorney general of the power to represent state agencies or cut funding to the office to the degree that it was incapable of performing these duties.

The court found that the Legislature could not “limit, reduce, transfer, or reassign the duties and powers of the office of the attorney general in such a fashion as to prevent that office from performing its inherent constitutional functions.” Allowing other constitutional officers to employ their own counsel, the court found in that case, would strip an important constitutional function from the office: namely, the power to act as the state’s chief legal officer.

“The attorney general of the state of West Virginia is the state’s chief legal officer, which status necessarily implies having the constitutional responsibility for providing legal counsel to state officials and state entities,” the ruling states.

Nevertheless, the ruling supports the ability of the state Legislature to impose additional duties on the Attorney General.

“We do not deny the power of the Legislature to prescribe duties for these officers, which power carries with it by implication the right to change such duties from time to time as the public welfare may demand,” it states.

In 2013, the Supreme Court reiterated that the state constitution “expressly authorizes the Legislature to establish duties of the attorney general’s office.”

The ruling seems to support several provisions of the House’s bill, including one that declares that the attorney general must recuse himself from representing state offices when he backs policies that differ from those backed by other state agencies.

“[T]he attorney general was required to advocate the policy position of the state officer in that litigation, even when the officer’s policy position differed from that preferred by the attorney general,” the 2013 ruling states.

An original version of the bill did not have a five-year limitation on the employment condition and would have required the attorney general to appoint outside counsel in cases where the other party had contributed to the attorney general’s political campaign. It would have also restricted the attorney general’s ability to file amicus briefs in federal lawsuits. Those requirements were weakened or removed by an amendment offered by Delegate Tim Manchin, a Democrat.

Manchin said the bill was made necessary by the attorney general’s “hybrid” role.

“One, he is an an elected officer of the state of West Virginia,” he said. “Two, he serves as chief legal counsel for the State of West Virginia in civil matters.”

Two amendments sponsored by Republicans, which would have extended the powers of the attorney general to conduct criminal investigations and prosecutions, failed to pass.

Delegate Stephen Skinner, a Democrat, said the bill could finally accomplish goals the Legislature has been seeking for more than a decade, especially forcing the attorney general to return funds gained through civil litigation to the state’s coffers.

Skinner said the bill, in authorizing that settlement funds be returned to the Legislature’s general fund, does something that the Attorney General favors.

“In the last 10 years, 12 bills have been introduced to address the attorney general’s use of funds to regulate the ethics of the office,” Skinner said. “This is the closest to date that any legislation has come to addressing the concerns about how the funds recovered by the attorney general are spent.”

But Republicans maintain the bill is bad policy.

Republican Delegate Paul Espinosa called the bill a “blatantly partisan attack” because it applied only to the attorney general and not to other branches of government.

Delegate Isaac Sponaugle, a Democrat and lead sponsor of the legislation, said that applying these rules to other offices would not make any sense, since they deal with legal representation – something other branches of the executive do not provide.

“These are rules of ethics for the profession of law,” he said. “They are separate and unique to that profession.”

Delegate Barbara Fleischauer said the bill responded specifically to allegations of a mishandled conflict of interest between Morrisey and Cardinal Health.

“The reason this conflict provision is needed is because of some behavior by the current attorney general,” she said. “He met with representatives of that company after he had become attorney general. The reason these conflict provisions are needed is that there are some of us who aren’t sure that he is going to keep his duty of loyalty and to aggressively represent the state, or if maybe he is more loyal to the company that paid his wife … millions of dollars.”

Sponaugle said Morrisey’s current conflict of interest policy, which allows him to determine when he has a conflict, was insufficient to protect the office from the appearance of impropriety.

“He has a policy that says, ‘I make the determination of whether I have a conflict of interest,’ and so it has allowed him to be attacked by everybody in the state in the press saying he is trying to cover up these conflicts,” he said. “Whereas, if this was law today his personal reputation would not be being attacked. He would recuse himself.”

The bill now moves to the Senate where it will first face examination by the Judiciary Committee.

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