³ÉÆ·ÈËÊÓƵ

The state was charged over $490,000 in expenses for outside counsel in eight legal matters since the start of 2020, according to invoices and other documents obtained by the Gazette-Mail via a Freedom of Information Act request.

Invoices show the state retained outside legal counsel to represent itself, its agencies and then-Gov. Jim Justice in a wide range of cases. The cases include those alleging the state allowed deplorable living conditions in its correctional facilities and that Justice violated state law by not living where he was supposed to and not producing public records that could determine how involved he was in day-to-day state operations amid concerns he was an absentee chief executive.

The Attorney General’s Office has more than 130 employees, including 48 assistant attorneys general, as of an , spanning consumer protection, education, tax and revenue, and health and human resources. The Legislature approved a $5.8 million fiscal year 2025 budget for the office.

But the office’s written determinations under then-Attorney General and current Gov. Patrick Morrisey appointing outside counsel on behalf of then-Gov. Justice cited immediate needs for legal services and conflicts of interest the office said created a need for help beyond the state’s regular payroll.

Morrisey’s deputy press secretary, Drew Galang, noted in an email Thursday the Attorney General’s Office has an attorney-client relationship with the governor and other state constitutional officers. When cases arise against the governor, the Attorney General’s Office and the governor’s general counsel determine the most appropriate course of action, Galang observed, adding that in instances where potential conflicts exist or dual representation is appropriate, outside counsel may be required to best represent the governor.

Galang did not comment on specific cases highlighted by the Gazette-Mail, including one the state defendants agreed to pay $4 million-plus to settle.

Justice’s Senate communications director, Will O’Grady, did not respond to a request for comment.

$252K+ for counsel in inhumane corrections conditions case

The state incurred expenses of more than $252,000 on a class-action lawsuit filed on behalf of people incarcerated at state prisons, jails and juvenile centers throughout West Virginia to stop what inmate plaintiffs said was pervasive and unconstitutional conditions of overcrowding, understaffing and deferred maintenance.

The state incurred the expenses over a 14-month period starting in October 2023 after retaining Charleston-based law firm Hissam Forman Donovan Ritchie PLLC, according to state invoices reviewed by the Gazette-Mail. Hissam Forman Donovan Ritchie stepped in following a request for proposals issued by Morrisey as attorney general and due Aug. 25, 2023, 17 days after the lawsuit was filed.

U.S. District Judge Irene Berger found the plaintiffs didn’t have the right to sue in their effort to force Justice and then-Department of Homeland Security Secretary Mark Sorsaia to address overcrowding understaffing and maintenance, in part, by compelling them to spend budget surplus funds to make all needed deferred maintenance repairs at state correctional facilities and hire and pay enough correctional staff to cover facilities. Berger granted the defendants’ motion to dismiss the case.

But the plaintiffs appealed the case to a federal appeals court, where it’s pending and oral argument was held in March.

The Governor’s Office was billed $150-$425 per hour per attorney.

Partner Michael Hissam, former assistant U.S. attorney for the Southern District of West Virginia, charged the highest rate at $425 per hour.

Hissam declined to comment.

$80K+ for counsel in Southern Regional Jail conditions case

State officials incurred more than $80,000 in legal expenses charged by Hissam Forman Donovan Ritchie over 12 months starting in October 2023 for its work in a class-action case filed alleging inhumane conditions at the state-run Southern Regional Jail and Correctional Facility in Raleigh County.

Attorney General’s Office General Counsel Steven Travis issued a written determination appointing Hissam Forman Donovan Ritchie outside counsel on Justice’s behalf in September 2023 after concluding it was in the public interest to do so because:

• The governor was in immediate need of legal services
• The law firm had the required specialized expertise and already represented the governor in legal matters raising substantially similar claims
• It wasn’t feasible for the Attorney General’s Office to provide requested legal services without assistance from outside counsel

The eight plaintiffs, who have been Southern Regional inmates, alleged pervasive overcrowding, faulty plumbing resulting in a lack of running water and limited or no access to drinking water, black mold in inmate cells and showers, and rodent and insect infestations at the Southern Regional Jail.

In November 2023, state defendants reached a $4 million-plus agreement with the plaintiffs to settle their claims against them. The defendants included then-Division of Corrections and Rehabilitation Commissioner William Marshall III and former leaders of the Department of Homeland Security, the division’s parent agency. Marshall was named the new director of the federal Bureau of Prisons by President Donald Trump last month.

The agreement set up a fund to be distributed to class members based on their length of incarceration at Southern Regional Jail, with settlement payments ranging from $150 to $500, depending on the number of authorized claimants — almost exactly the same amount of money Hissam Forman Donovan Ritchie billed the state per hour for its attorneys’ work on the case.

The agreement followed a finding from U.S. Magistrate Judge Omar Aboulhosn that state officials intentionally destroyed evidence in the case that had been requested by the plaintiffs.

Aboulhosn found the officials’ efforts constituted “a dereliction of duty� and asked that a copy of his order be distributed to the U.S. attorney to consider whether an investigation of the Division of Corrections and Rehabilitation, an agency within the Department of Homeland Security, was warranted.

Abraham denied Aboulhosn’s conclusion that state officials destroyed paper evidence and asserted that officials already provided information that Brad Douglas, who had most recently served as Division of Corrections and Rehabilitation executive officer, failed to confirm had been preserved in hearing testimony blasted by Aboulhosn.

The Justice administration fired Douglas and Phil Sword, who was Homeland Security general counsel and an assistant attorney general in the Attorney General’s Office, following Aboulhosn’s order.

$71K+ for counsel in case over where Justice resided

State officials incurred over $71,000 in legal expenses from December 2018 to February 2021 for defense of Justice in a case alleging Justice had run afoul of the West Virginia Constitution by residing in Greenbrier County instead of the seat of government in Charleston.

Travis issued a written determination in September 2018 appointing Charleston-based Carey Scott Douglas & Kessler PLLC (now Carey Douglas Kessler & Ruby) outside counsel on the governor’s behalf for the case then pending in the state Supreme Court of Appeals.

In November 2020, the court determined that when the West Virginia Constitution says the requirement to “reside� somewhere as it would apply to the governor means making that place “home base� while serving in office.

Justice had stated he was splitting time between Charleston and his home in Lewisburg. He served as head coach of the Greenbrier East High School girls basketball team during high school basketball season, overlapping with the state’s annual 60-day regular legislative session.

Justice later agreed to live in Charleston consistent with the Supreme Court’s definition of ‘reside’ but continued coaching the girls basketball team and drawing criticism that he didn’t spend sufficient time in the state’s seat of government.

$51K+ on counsel defending Justice over FOIA concerns

The state incurred over $51,000 in legal expenses from May to December 2023 in a case alleging Justice violated state law by not providing records as required by the state Freedom of Information Act.

The lawsuit was filed in Kanawha County Circuit Court in May 2023 on behalf of Diana Astiz, research director for the Democratic Senatorial Campaign Committee. The filing was made just over three weeks after Justice declared his U.S. Senate candidacy on April 27, his 72nd birthday. The lawsuit alleged Justice violated the law by refusing to provide lists of official meetings scheduled for him and his most senior staff.

The complaint cited reporting that Justice had been an absentee governor who rarely met with his cabinet and was usually not at the statehouse or involved in day-to-day state operations.

In December 2023, Kanawha County Circuit Court Judge Jennifer Bailey granted a Governor’s Office motion for summary judgment. Bailey found calendars and notes of Justice and his senior staff were maintained exclusively for personal convenience and not used or controlled by the office for conducting official business, meaning they were beyond the reach of the Freedom of Information Act.

But Bailey’s order didn’t come before the state racked up $51,000 in bills issued by Hissam Forman Donovan Ritchie at rates of $125 to $425 per hour for legal work.

A written determination from Travis authorizing the appointment of Hissam Forman Donovan Ritchie as outside counsel to represent Justice in the case cited a potential conflict of interest for the Attorney General’s Office and need for appointment of counsel as quickly as possible due to a request for an expedited hearing.

Travis said in the written determination that the appointment was authorized in consultation with Justice.

State got outside counsel for Mountain Valley Pipeline

A written determination from Travis appointed national law firm Frost Brown Todd LLP as outside counsel on behalf of Justice. The firm prepared a brief in cases related to an emergency application to throw out a federal appeals court’s holds on construction of the Mountain Valley Pipeline.

The cases featured challenges from environmental groups, including the West Virginia Rivers Coalition, West Virginia Highlands Conservancy and Indian Creek Watershed Association, to the 303.5-mile gas pipeline crossing 11 West Virginia counties into Virginia.

But Congress controversially cleared a path for the pipeline’s construction and eventual operation by mandating its completion through the Fiscal Responsibility Act, a 2023 debt limit deal. The law prohibited judicial review of the project, which had been bogged down for years by legal challenges rooted in its environmental failures.

After the deal gave the U.S. Court of Appeals for the District of Columbia Circuit jurisdiction over any claim challenging the legislation fast-tracking approval of the pipeline, the federal appeals court dismissed the cases for which the state tapped Frost Brown Todd to prepare a brief, citing a lack of jurisdiction.

Frost Brown Todd billed the Governor’s Office $13,569 for brief-related services through October 2023 the following month.

Travis said in the determination appointing Frost Brown Todd there wasn’t enough time for the customary bidding process because the brief preparation Justice sought involved time-sensitive legal services the Attorney General’s Office couldn’t provide.

Outside counsel tapped for right-to-work law defense

Invoices also showed the state was billed over $4,900 for work from June 2019 to April 2020 by Charleston-based Kay Casto & Chaney PLLC in response to a challenge from unions of the state’s 2016 right-to-work law designed to restrict unions from collecting dues from nonunion employees, even those who benefit from union contract negotiations.

The state Supreme Court of Appeals in April 2020 upheld the right-to-work law.

In July 2016, then-Senior Deputy Attorney Gen. J. Robert Leslie signed off on appointing Kay Casto & Chaney outside counsel to defend state officials in the litigation challenging the right-to-work legislation after the Attorney General’s Office determined its representation of then-Gov. Earl Ray Tomblin and former Labor Commissioner John Junkins could raise potential conflict-of-interest issues.

Kay Casto & Chaney typically charged the state $220 per hour for its services.

‘Betrayal of the trust’ from taxpayers

The state’s hundreds of thousands of dollars in legal expenses on outside counsel have piled up amid a state fiscal squeeze building up to what Morrisey identified as a $400 million budget shortfall projected for fiscal year 2026 before the start of the 2025 regular legislative session ending last month.

That projection followed years of flat budgets from Justice.

West Virginia’s 17.1% decrease in general fund expenditures from fiscal years 2024 to 2025 easily was the largest decline in the U.S. in that span, according to a National Association of State Budget Officers .

Following years of flat budgets not keeping up with inflation and criticism the state has chronically underfunded state agencies while over-relying on tax cuts to seek economic growth, the state’s first-year governor and former three-term attorney general has presented himself as an opponent of government waste.

“Government waste is not just a drain on our finances. It’s a betrayal of the trust that taxpayers place in their leaders,� Morrisey said during his Jan. 13 inaugural address. “West Virginians work too hard to see their money squandered on inefficiency and bureaucracy.�