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Housing Fund won't disclose lawyer invoices; agency has paid $330K in legal costs

CHARLESTON, W.Va. -- The West Virginia Housing Development Fund doesn't want to say how it has spent $330,000 on outside legal fees during an ongoing federal investigation of state Treasurer John Perdue, who serves on the state housing agency's board.

The Housing Development Fund is keeping secret months of billing records that would show what individual private attorneys are charging and what they're doing.

Housing agency executives said releasing the lawyers' invoices "would constitute an unreasonable invasion of privacy," according to a letter sent to the Gazette. The newspaper requested the bills under the state Freedom of Information Act.

"The Housing Fund's legal invoices contain work performed by our attorneys and is therefore considered attorney-client privileged and a permitted exemption under FOIA," said Erica Boggess, the agency's acting executive director.

Last month, Boggess said the Housing Development Fund has spent nearly $25,000 for legal advice on whether the agency should release documents in response to public records requests.

Asked last week whether Housing Development Fund executives consulted with outside lawyers on whether to release the attorneys' bills, Boggess said, "The Housing Development Fund is always concerned with full compliance of any FOIA request. We consult with legal counsel, as needed, regarding any FOIA."

In a recent email to the Housing Development Fund, Gazette lawyer Pat McGinley disputed the agency's assertion that the invoices could be withheld.

McGinley said the Housing Development Fund could have redacted, or blacked out, any confidential communications between agency executives and outside lawyers. But McGinley said the agency didn't have the right to withhold entire invoices, which would disclose such information as lawyers' hourly rates and payments to individual attorneys.

"In my view the assertion of the personal privacy exemption is frivolous based upon West Virginia FOIA case law," wrote McGinley, a law professor at West Virginia University. "A public body has an overarching obligation to disclose the amounts and purposes of the expenditure of taxpayer monies, and the [West Virginia] FOIA mandates that claims of exemption underlying withholding of such information be narrowly construed."

The FBI and U.S. Attorney's Office are investigating Perdue's sale of an 11-acre property in Mason County to Charleston developer Douglas E. Pauley. Perdue serves on the Housing Fund's board of directors.

In December 2010, the agency awarded Pauley a $3.67 million federal stimulus grant. Pauley paid Perdue $215,000 for the property, located about six miles north of Point Pleasant. Perdue has said he did nothing wrong.

In recent months, Housing Development Fund officials have been responding to federal prosecutors' subpoenas and questions.

Boggess has said that the agency paid the bulk of its legal fees to the Jackson Kelly law firm, whose Charleston attorneys have been advising agency administrators and in-house lawyers during the federal investigation.

Other payments went to six private lawyers representing agency staff members and Perdue's top aide, Danny Ellis, who attends Housing Development Fund board meeting as Perdue's delegate.

In addition to Ellis, the outside lawyers are representing former executive director Joe Hatfield and four agency administrators: Sherry Bossie, Mary Mason, Michelle Wilshire and Nancy Parsons.

Boggess said Ellis, Hatfield and the four employees are potential witnesses, not targets of the investigation.

The Gazette requested the outside lawyers' billing records on April 19, after Boggess told the newspaper that Jackson Kelly had charged $24,750 for "FOIA matters" since the federal investigation became public in late October.

The Housing Development Fund responded to the Gazette's FOIA letter on March 24 -- nearly five weeks after the request. State law requires agency's to respond to such public records requests within five days.

Agency executives have declined to disclose Jackson Kelly's hourly rate for legal services.

The Housing Fund has received at least 15 FOIA requests since October. The Gazette filed 13 of those request.

If Jackson Kelly charged $350 an hour -- a typical rate in Charleston -- the firm's lawyers would have had to bill for 70 hours for the cost of the 15 FOIA requests to total $24,750.

Boggess has said Jackson Kelly lawyers charged the agency for advice on whether releasing documents would interfere with the federal investigation.

The newspaper has contacted Jackson Kelly lawyers about the legal fees, but the Housing Development Fund's in-house general counsel, Tracy Webb, has instructed the attorneys not to speak to the Gazette about the bills.

Since October, the Housing Development Fund has released hundreds of pages of records to the Gazette, but also denied numerous documents, citing exemptions to FOIA law.

The agency has previously released invoices from out-of-state lawyers hired by the agency for advice on other legal matters.

Reach Eric Eyre at ericeyre@wvgazette.com or 304-348-4869.


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