No. 30094 - State of West
Virginia ex rel. Darrell V. McGraw, Jr., in his capacity as Attorney General
for the State of West Virginia, v. Gregory A. Burton, Cabinet Secretary of
the Department of Administration; Nichelle Perkins, Director of Personnel
and the Department of Administration; Kay Huffman Goodwin, Cabinet Secretary
of the Department of Education and the Arts; Mike Callaghan, Cabinet Secretary
of the Department of Environmental Protection; Paul Nusbaum, Cabinet Secretary
of the Department of Health and Human Resources; Joe Martin, Cabinet Secretary
of the Department of Military Affairs and Public Safety; Brian Kastick, Cabinet
Secretary of the Department of Tax and Revenue; and Fred VanKirk, Secretary
of the Department of Transportation; The Public Service Commission of West
Virginia; The West Virginia Board of Education, the West Virginia Department
of Education and the Superintendent of Schools; The West Virginia
Consolidated Public Retirement Board; and The
West Virginia
Regional Jail and Correction Facility Authority
Kaufman, sitting by temporary assignment,
I concur with the Court's opinion and recognize
the arduous task that was set before the Court with this case. Specifically,
I fully concur with the Court's finding that the Attorney General is the chief
legal counsel for the state. The Court's opinion strove to balance the everyday
workings of governmental entities, the framework of our constitution and current
legislation. The Court wanted to strike a balance between all parties and
create an atmosphere where the parties could resolve and remaining issues
outside the judicial forum.
However,
in striking a fair balance, I feel three unresolved issues remain: the constitutionality
of governmental entities hiring outside counsel despite the clear Legislative
language set forth in West Virginia Code §
5-3-1 (1994); the lack of disclosure
and accountability of outside attorneys representing the state's interest; and
the erosion of the Attorney General's role as chief legal officer as a result
of the cumulative effect of all the statutes that allow executive agencies to
independently hire outside counsel.