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Statehouse beat: A notice of intent to file suit

Walt Auvil, the attorney representing Department of Health and Human Resources attorneys Susan Perry and Jennifer Taylor, says he is ready to file a legal complaint against acting DHHR Secretary Rocco Fucillo for whistleblower law violations, defamation, and gender discrimination when the 30-day advance notification period expires Friday.

Perry, Taylor and DHHR communications chief John Law were placed on reassignment leave back on July 17, and recently received notice that their leave status had been extended for another 30 days.

Auvil said he's surprised that no one from DHHR or the Tomblin administration has contacted him since he filed the notice of intent to file suit in a letter dated Sept. 4.

It's also interesting that one of the allegations in the subpoena obtained by the prosecutor's office regarding the disputed DHHR advertising and marketing contract was that Perry and Taylor had sought to review the contract as to form.

Ironically, one of the recommendations in a legislative audit of the agency's bungling of bidding for the MMIS computer contract was that if DHHR did not agree to give up its exemption from state Purchasing rules, it should give its general counsel's office authority to review bid packages prior to any technical evaluation -- and in his response, Fucillo concurred with all of the legislative auditor's recommendations.

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Speaking of possible litigation, now that he doesn't have to worry about preparing arguments before the U.S. Supreme Court on the challenge of the state's congressional redistricting plan, I asked Thornton Cooper if he plans to go to court to challenge the validity of the sheriffs' succession amendment on the Nov. 6 ballot, because the secretary of state's office failed to publish the proposed amendment in newspapers around the state 90 days prior to the election.

Only if the amendment is adopted, Cooper said.

He noted that voters soundly rejected the same proposal to remove the two-term limit on sheriffs when it was last on the ballot in 1994.

While the state Supreme Court has ruled in past cases that missing the 90-day publication requirement does not in itself invalidate the amendment, Cooper believes he would have grounds to challenge the sheriff's amendment because the secretary of state's office not only missed the publication deadline, but also failed to publish the full text of the amendment in the legal ads, as required.

(In this case, the full text would be the current language limiting sheriffs to two consecutive terms, with strike-through lines throughout the paragraph, which in itself could be confusing to voters.)

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The last of lobbyists' financial disclosures are in at the Ethics Commission, and the deadline-filers tended to be some of the bigger spenders, pushing the May-August spending to $93,679 and the year-to-date total of spending on public officials to $454,625.

A great deal of the expenditures in the period were for lobbyists' campaign contributions, but there were some interesting disclosures.

Alison Patient, former House Finance Committee counsel and currently lobbyist for Coca-Cola, reported spending $3,047, most of which was to underwrite the costs of hosting the governor and first lady as Earl Ray Tomblin served as a grand marshal for the Coca-Cola 600 NASCAR race.

As usual, Patient provided meticulous detail of the expenses, which included lodging ($338 a room for four rooms), and meals (running between $41 and $58 per person for the overnight stay May 26-27.)

In addition to the Tomblins and two state troopers, Patient listed Hallie Mason, Tomblin's director of public policy, and Deputy Transportation Secretary Howard Mullens and his wife, Lori, as guests.

Along with meals and lodging, each member of the entourage received a commemorative race T-shirt, valued at $24, and Mrs. Tomblin, Mason and the Mullens each received race tickets valued at $190.

Under state Ethics law, public officials may not accept tickets to sporting events valued at more than $25, unless they are attending the event in an official or ceremonial capacity (as the Tomblins were doing at the race).

Ethics Commission Executive Director Theresa Kirk said there has never been an Ethics opinion to determine how far that exemption extends to the party traveling with the public official.

Kirk said it would be advisable for either Patient or the governor's office to seek an advisory opinion on the issue.

Meanwhile, Mountaineer Racetrack and Casino lobbyist Nelson Robinson listed the biggest bash of the summer on his disclosure, with spending totaling $5,333 to host about 45 legislators, Lottery and Racing commission staffers, and other public officials at the West Virginia Derby Aug. 3-4.

That included $1,431 of expenses for a VIP party Aug. 3, and $3,901 for a Derby day reception and dinner Aug. 4.

On a smaller scale, lobbyists Jan Vineyard of the Oil Marketers and Grocers Association and Steve White of White Law Offices split the $1,188 cost to a reception and dinner at the Power Alley Grill Aug. 13 while legislators were in Charleston for monthly interim meetings.

The 53 public officials who attended also received admission to the West Virginia Power game that evening, with the $7 tickets not only well within the limits of the Ethics Act, but a great bargain.Reach Phil Kabler at philk@wvgazette.com or 304-348-1220.


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