Chris Dickerson Feb. 20, 2014, 4:42pm
CHARLESTON, W.Va. (Legal Newsline) - West Virginia Attorney General Patrick Morrisey has sent a letter to House Speaker Tim Miley expressing "significant concerns" he has regarding the proposed Attorney General Ethics and Accountability Act.
Morrisey said House Bill 4490 "creates a constitutional crisis and puts at risk the core functions of the Attorney General's Office by changing the legal standards under which we can pursue claims and represent the state."
In his letter, the first-term Republican AG told House Speaker Tim Miley, a Democrat, the bill is "blatantly partisan and overbroad." It passed the House Judiciary Committee on Monday by a 13-7 vote.
In the letter and a press release, Morrisey spelled out his primary concerns with the bill.
"It establishes new legal standards for one office, but does not require legislators, the Governor, Supreme Court of Appeals justices or other members of the Board of Public Works to adhere to the same rules," he wrote. "The bill puts at risk ongoing investigations by our Office that target corruption and violations of our state's consumer protection laws.
"The legislation also would gut the Attorney General's Consumer Protection Division because funding would be dramatically reduced under HB 4490," he continued. "House Bill 4490 unconstitutionally seeks to grind to a halt the Office's efforts to protect the Second Amendment, fight for coal jobs and take on President Obama's overreach by limiting the Office's ability to independently decide whether to file amicus briefs.
"I urge Speaker Miley to take appropriate steps to halt the bill and prevent West Virginia from being thrown into a constitutional crisis."
Neither Miley nor House Judiciary Chairman Tim Manchin have returned calls seeking comment, but Miley issued a press release Wednesday that said Morrisey should have attended the Judiciary Committee during which the bill was discussed.
"It is unfortunate that the Attorney General did not attend the Judiciary Committee meeting during which HB4490 was discussed, so that he could convey what he characterizes as deep concerns about the legislation," Miley said.
"Whenever legislation affecting a public office is considered by a committee, it is standard procedure for the officeholder to closely follow the bill's progress and attend committee meetings in order to answer members' questions."
Miley said Morrisey instead met privately with Republican members of the committee to convey his position.
He also says the legislation is intended to set a more appropriate high standard for attorneys general.
"Attorney General Morrisey is mistaken in believing our effort codify guidelines for operation of the office Attorney General is a personal attack," Miley said.
"This legislation is being pursued to address the office of Attorney General, to curtail any future Attorney General that may have conflicting views with the policy leaders of state government."
A state legal reform group has weighed in on the measure.
West Virginia Citizens Against Lawsuit Abuse said the bill seems to have forgotten what it calls the "McGraw legacy of unethical behavior."
"Members of the House Judiciary Committee are considering a politically motivated piece of legislation aimed at shackling the ability of our Attorney General to prosecute consumer protection violations," WV CALA Executive Director Greg Thomas said in a statement. "House Bill 4490 will make it impossible for the Attorney General to participate in legal actions against persons or organizations that have contributed to his campaign.
"However, contingency fee outside counsel attorneys, who in the past have contributed heavily to campaigns for attorney general and then been rewarded with highly lucrative contingency fee contracts, are able to serve as outside counsel on behalf of the State of West Virginia."
Thomas said WV CALA "continues to advocate for codifying limits on contingency fees for private attorneys hired to represent the state."
"We applaud and recommend codification of Attorney General Patrick Morrisey's self-imposed policy that limits payments to outside counsel attorneys," Thomas said. "For 20 years, former Attorney General Darrell McGraw used his office to enrich his family and favor his campaign donors, and his office spent millions on ads and trinkets to promote his family's name.
"Many of the same members of the House Judiciary Committee ignored that activity and took very little action to reign in his unethical, reckless, and embarrassing behavior. 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 on representing the State of West Virginia."
HB4490 would ban the attorney general from working on lawsuits against companies or individuals that contributed to his election campaign.
The issue started earlier this year when reports showed that Morrisey had accepted post-election campaign contributions from Cardinal Health, which his office is suing. And Morrisey's wife is a lobbyist for Cardinal in Washington.
Soon thereafter, Morrisey's office established its own conflict of interest policy in which the AG would self-report any potential conflicts to Chief Deputy AG Dan Greear, who would decide whether Morrisey should step away from the issue.
Morrisey stepped away from his office's suit against Cardinal in July. McGraw originally filed the lawsuit against Cardinal in 2012, alleging the company shipped excessive pain medication to southern West Virginia, fueling prescription drug abuse in the area.
Reports show Cardinal donated $2,500 to Morrisey's inauguration fund, and that Cardinal executives gave $4,000 to Morrisey's campaign in 2012.
Other aspects of HB4490 would not allow Morrisey to file amicus briefs without approval from the Speaker of the House, the state Senate President and the governor. It also would establish further rules for hiring outside lawyers, and it would set rules for the Legislature to determine how settlement money would be distributed.
After the bill passed the House Judiciary Committee, Morrisey's office called the bill partisan bullying.
"It is nothing but partisan politics when you draft a bill outlining a so-called 'conflicts of interest policy' that only applies to one office in state government," Morrisey spokeswoman Beth Ryan said Monday night. "Lawmakers, the governor, members of the Board of Public Works and members of the judiciary should all be subject to the same conflicts of interest standards.
"The other irony of this legislation is that it targets the only person in state government who has gone much further than ethics rules in West Virginia require to establish a model to address potential or perceived conflicts."
Ryan also said the bill "will likely cost the state many millions of dollars in outside counsel costs, and it will be subject to constitutional challenges because it irresponsibly allows private lawyers to represent the state in legal matters without any supervision whatsoever from the state."
"Private lawyers will enrich themselves at taxpayers' expense and the Attorney General's Office's new competitive bidding policy for hiring outside counsel - which has already saved the state more than $1.5 million in legal fees - would be scrapped," Ryan said. "We can no longer afford to return to the days when private attorneys and legislators acted in cahoots to enrich themselves at taxpayers' expense."
Ryan also called the proposal "a dangerous and unprecedented experiment and shows just how out of touch the West Virginia Democrat House leadership is with the public."
"Equally important, this bill seeks to restrict the Attorney General's authority and stop the Office's efforts to fight for West Virginian's Second Amendment rights, challenge the EPA and block President Obama's job-killing agenda that hurts West Virginians," she said. "Citizens want government to operate openly and honestly, not with the kind of petty partisan politicking typically seen in Washington, D.C."
Fellow Republicans were quick to come to Morrisey's defense.
"Liberal Democrats in our Legislature are more concerned with harming the Office of Attorney General than making sure our citizens and government are defended from threats inside and outside this state," state Republican Party Chairman Conrad Lucas said. "Unable to win at the ballot box, Obama supporters in the state Legislature believe that destroying the office and voting to keep it from auditing and reviewing the activities of every part of state government is a tool of revenge."
Lucas said HB4490 is "an undisguised attempt to take away the rights and duties" the state Attorney General has had for 150 years.
"It's sad," Lucas said. "For years, the Attorney General's office ran unfettered, wasting millions and suing companies to force them from the state."
That was a reference to former AG Darrell McGraw, who Morrisey defeated in 2012. Republicans frequently criticized McGraw for its use of settlement money and a propensity for suing businesses.
"Now, Patrick Morrisey uses this office to go to the U.S. Supreme Court and fight for the Second Amendment, against ObamaCare, and keeping D.C. away from shutting down our coal mines," Lucas continued. "That's the work liberals are trying to end today. Faced with an honest civil servant in Patrick Morrisey, Democrats fear for their elected offices.
"Taxpayers will come to the polls this November, ready to install more new, honest leaders like Patrick Morrisey. We proudly stand with Attorney General Patrick Morrisey, with freedom, and with the Constitution of this state."