Delegates discuss AG ethics vote

CHARLESTON – The House of Delegates passed legislation this week to define duties of the state attorney general.

One local lawmaker said this was needed while another believes the bill is too broad and can cause problems for the state and its legal representation.

House Bill 4490, also known as the Attorney General Ethics and Accountability Act, passed in the House of Delegates 52-44 with four not voting.

The bill contains two basic elements: the proper management of taxpayer settlement funds and procedures for an attorney general to follow when faced with a conflict of interest, Speaker of the House Tim Miley said in a press release.

“When you strip away personalities and politics, it comes down to the simple question: Is this good public policy? I truly believe this is,” Miley said.

The Attorney General’s office is disappointed the House of Delegates passed “unconstitutional and highly partisan legislation,” said Beth Ryan, director of communications for the Office of the West Virginia Attorney General, in a prepared statement.

”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.

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

Miley said the bill is focused on the attorney general because among the West Virginia constitutional officers, the attorney general’s position is unique.

“Being the legal representative of the state of West Virginia, the attorney general is both an executive and judicial officer who must balance constitutional duties with the attorney-client relationship,” he said.

Delegate Dan Poling, D-Wood, was the only local delegate to vote in favor of the bill. Republican Delegates Bill Anderson, Anna Border-Sheppard, John Ellem and Tom Azinger all voted against it.

Poling said a form of this bill has been introduced in the Legislature, in one form or another, for the last 10 years worked on and presented by people in both parties.

The bill creates a fund to contain attorney fees and related expenses received by the attorney general from civil litigation or administrative proceedings. That money is then appropriated by the Legislature.

”It gives the control of those funds back to the Legislature to be appropriated,” Poling said.

Officials have said that under former Attorney General Darrell McGraw money received through litigation remained under control of the attorney general.

The bill establishes a clear protocol for when an attorney general faces a possible conflict of interest, supporters said.

Poling said issues have come up regarding possible conflicts of interest Attorney General Patrick Morrisey could face. Protocols in the bill are similar to what is in place for county prosecutors when determining whether they should recuse themselves from a case where a conflict of interest is possible, he said.

”The attorney general would follow the same ethics as a prosecuting attorney,” Poling said.

Ellem said the bill was too broad and too vague in some of its definitions.

The bill would require the attorney general to disqualify himself from a case if he or a family member received economic compensation over the last five years from a particular group.

”Economic compensation was never really clearly defined,” Ellem said. ”If an attorney general’s child mowed a certain someone’s yard for money, that could be viewed as a disqualification. This bill is just too broad.”

Another aspect of the bill would allow the governor to have control over certain aspects of an attorney general’s litigation if a conflict of interest shows up.

”The bill risks the separation of powers (in the state government),” Ellem said.

Groups opposed to the bill, including West Virginia Citizens Against Lawsuit Abuse (WVCALA), said the legislation will prevent the attorney general from pursing many consumer protection violations.

”Instead, contingency fee outside attorneys hoping to reap millions from settlements, as we saw in the days of Attorney General Darrell McGraw, will represent the State of West Virginia,” said Greg Thomas, executive director of WVCALA. “It is clear that House Bill 4490 is politically motivated and does not address the serious problems of the McGraw era with outside counsel attorneys making millions through backroom contingency fee agreements to represent the State of West Virginia.”

Poling said he would have voted for this bill regardless of who was in the attorney general’s office.

”It is a good bill,” he said.

The bill was introduced in the Senate Tuesday and sent to the Senate Judiciary Committee.