Right Call: Qualified immunity does not apply to fraud

There’s been plenty of talk lately about those who believe they are above the law. Last week, a three-judge panel from the U.S. District Court of Appeals for the 4th Circuit had to remind some Mountain State bureaucrats that, no, they are not above the law, either.

Appeals court judges J. Harvie Wilkinson III, Paul Niemeyer and Diana Motz told the U.S. District Court for the Southern District of West Virginia that it must deny a motion to dismiss former state Division of Homeland Security and Emergency Management director Jimmy Gianato and former state Chief Technology Officer Gale Given from a lawsuit over the state’s handling of broadband expansion.

Allegations against the pair include defrauding the federal government by submitting false statements and records to the U.S. Department of Commerce. Attorneys for Gianato and Given tried to argue that the two had qualified immunity, which protected them from prosecution for the performance of their duties. The lower court went for it.

But the opinion written by Niemeyer for the appeals court was clear:

“We exercise appellate jurisdiction and hold that qualified immunity does not apply to protect government officials from claims against them for fraud under the (False Claims Act). Accordingly, we vacate the district court’s immunity ruling and remand with the instruction that the district court deny Gianato and Given’s claim of qualified immunity.”

Gianato and Given are alleged to have helped carry out a scheme to get a U.S. Commerce Department grant of $126 million, and then turn over a portion of that funding to Frontier Communications. Both the state officials and Frontier are accused of then submitting falsified invoices for work that was not completed. Surely, if those allegations are false, Gianato and Given are looking forward to their opportunity to let the facts play out in court.

In the meantime, the appeals court’s order is an important reminder that even King Bureaucracy is not above the law in West Virginia, though for generations it has acted as such. Those handing out the red tape in Charleston should take note.


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