Morrisey weighs in on Tyler County struggle

CHARLESTON – A log jam at the Tyler County records room where title searchers are tracing land and mineral ownership because of the Marcellus Shale natural gas boom may be aided by an opinion by the West Virginia attorney general.

Tyler County Prosecutor Luke Furbee asked Attorney General Patrick Morrisey about whether the county commission can accept private donations to extend the hours of operation at the record room of the county clerk or digitize the records stored there as long as the donation is unsolicited and given to the county as a whole and not to an individual.

Abstractors, lawyers and others have flooded the office, doing title searches for the Marcellus Shale rights, so much so that it has created a backlog.

“Tyler County and other counties in the state’s Marcellus Shale region are seeing a great deal of use of their records rooms as lawyers, title abstractors and others try to trace land and mineral ownership,” Morrisey said. “And, at least in the case of Tyler County, the records room simply isn’t big enough to accommodate all of those who want access to the records. When the Tyler County prosecutor wrote us seeking an opinion on whether the county could use donated funds to expand access, we were happy to have an opportunity to offer our guidance.”

Furbee said because the facilities and accommodations at the courthouse were “grossly inadequate” to handle the influx, county officials have weighed the idea of extending the office’s hours or digitizing the records. He also asked whether it was permissible for the county to grant exclusive access to county records to a private individual or entity and if the county could enter into a contract with a third-party entity to digitize its records without having to go through the competitive bidding process.

Morrisey issued an opinion and said the county cannot grant exclusive access to county records to a private individual or entity, regardless of whether that entity made a donation. State law is clear that the public at large should have equal access to records during any extended availability the county may decide to adopt, he said.

Furbee said his concern was the exclusivity issue, that “it would probably be afoul of the ethics act.”

Morrisey also said the county must follow competitive bidding requirements for any contract that exceeds $15,000, even if an intermediate private party is paying for the work.

“Your other questions suggest that the commission may be contemplating an arrangement in which one private party contracts with another private party and then donates the completed digitization to the county. But this scenario could constitute a de facto contracting for services by the county, as the county would be an integral part in the process,” Morrisey’s letter to the county stated. “The county must provide the records to be digitized, make sure the selected digitization is compatible with existing software and ensure timely completion of the project. This involvement is akin to a public contract.”

Tyler County Commission President John Stender said advertisements for bids to convert the records to a digital form will be placed next week.

The oil companies have already agreed to pay the costs of keeping the courthouse open additional hours, he said. The courthouse is open from 8 a.m. to 8 p.m. Monday through Thursday and 8 a.m.-4 p.m. on Friday.

The cost for the last 45 days has been about $44,400, he said.