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Morrisey would face uphill battle to collect legal fees for 'frivolous' ethics complaint

CHARLESTON, W.Va. -- Attorney General Patrick Morrisey put out a warning last week to anyone who might file an ethics complaint against him for his ongoing review of abortion regulation in West Virginia.

Morrisey said he would seek to recoup attorneys' fees if his office had to defend a "frivolous" ethics complaint.

The state Ethics Commission can order people who file "bad faith" complaints to pay legal fees. But agency staff members could not recall a single time that has happened in the commission's history.

"It's a pretty high standard to show it's a bad faith complaint," said Joan Parker, executive director of the Ethics Commission. "The Legislature drafted it this way so there wouldn't be a chilling effect against a person filing a complaint."

Last week, Morrisey, a Republican who defeated longtime Attorney General Darrell McGraw in the November election, sent letters to two stand-alone abortion clinics, demanding that they answer questions about medical procedures performed at the facilities.

The West Virginia ACLU and women's health advocates said Morrisey overstepped his legal authority, using his office for a "personal crusade" against abortion.

Also, a Charleston woman who requested anonymity said she planned to file an ethics complaint against Morrisey later this week, alleging his conduct violated the state Ethics Act.

Lesly Messina, president of the board for the abortion-rights group WV Free, said she was unaware of any history of frivolous complaints being filed with the Ethics Commission.

"Concerned West Virginia citizens who use the power of the commission to challenge perceived unethical behavior by a public servant are well within their rights to do so," said Messina, whose group does not plan to file an ethics complaint against Morrisey. "Any threats made against people who wish to exercise that right should be interpreted as an attempt to chill discourse about a public official's behavior."

On his campaign website last year, Morrisey said he is anti-abortion and "will fight to protect the unborn."

Morrisey dismissed allegations that he violated the state Ethics Act as "outrageous" last week. And he followed up with a warning: "If anyone pursues frivolous ethics claims against the Attorney General's Office, we will seek attorneys' fees. Words, facts and actions matter."

On Tuesday, Morrisey said he simply sent letters to the abortion clinics -- nothing more.

"It is well settled that the attorney general has the independent duty and authority to express his views on the state of the law in West Virginia," Morrisey said in a prepared statement. "The suggestion that the office cannot solicit voluntary responses from abortion clinics to inform its views is perplexing and can only be explained as an effort to distract from the facts at hand."

Morrisey's letters followed a lawsuit filed by a Charleston woman who alleges that medical staff at a West Side clinic botched her abortion. The Family Policy Council, an evangelical Christian group, is representing the woman and held a news conference to announce the lawsuit two weeks ago.

"A woman has made deeply troubling allegations about an abortion performed in this state against her will," Morrisey said Tuesday. "No state agency or regulations currently govern abortion clinics as a whole, and unlike in many other states, it appears that a purely elective abortion could legally be performed at any point in a pregnancy."

Under state law, the Ethics Commission must find "clear and convincing evidence that a complaint was made in bad faith" to award attorneys' fees to a public official who's the subject of an ethics complaint.

The public employee must prove that the person who filed the complaint did so "knowing that the allegations are untrue or in reckless disregard for the truth."

In addition to awarding legal fees, the Ethics Commission can order someone who files a frivolous complaint to pay the agency's investigative costs and bar the person from filing additional complaints.

However, Ethics Commission staff members said the agency has never imposed those sanctions against an individual. Instead, the agency typically dismisses complaints that allege misconduct and wrongdoing not covered by the Ethics Act. The agency receives more than 100 complaints a year.

"Quite a lot of those were dismissed," Parker said.

Morrisey's comments last week did not specify which lawyers would defend the attorney general if he were to face an ethics complaint.

The Ethics Commission advises public officials to hire outside lawyers. The agency says the West Virginia Bar's Rules of Professional Conduct restrict "attorneys representing clients with conflicting interests."

In 2008, Dunbar Mayor Roger Wolfe tried to use the city attorney to defend himself against an ethics complaint. The city attorney was disqualified from the case.

"It's been our position if a public official becomes a respondent in an ethics complaint, the attorney for that respondent's public entity is disqualified from representing the respondent," Parker said.

To get around those rules, public officials sometimes hire outside lawyers, and reimburse those attorneys with local or state funds.  

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


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