H. B. 2239
(By Delegates Frederick and Carmichael)
[Introduced January 9, 2008; referred to the
Committee on Finance.]
A BILL to amend and reenact §5-3-3, §5-3-4 and §5-3-5 of the Code
of West Virginia, 1931, as amended; and to amend and reenact
§5A-3-13 of said code, all relating to requiring the Attorney
General to report to the Governor and the Joint Committee on
Government and Finance relative to contracts entered into for
legal services with persons outside the Attorney General's
Office; requiring the Attorney General to report to the
Governor and Joint Committee on Government and Finance upon
the conclusion of contracted for legal services, including a
statement of fees involved on an hourly basis; prohibiting the
payment of fees in excess of $500 per hour; requiring the
Joint Committee on Government and Finance to study the new
provisions and to report recommendations for further changes
to the full Legislature before the two thousand eight session;
requiring the Attorney General to submit semiannual reports to the Governor and the Joint Committee on Government and Finance
concerning contracts for outside legal services; requiring the
inclusion of information in the semi-annual reports concerning
the nature of these contracts; requiring all attorneys fees or
costs awarded the Attorney General to be deposited into a
state fund; and, requiring that contracts proposed by the
Attorney General be approved as to form by the Secretary of
State.
Be it enacted by the Legislature of West Virginia:
That §5-3-3, §5-3-4 and §5-3-5 of the Code of West Virginia,
1931, as amended, be amended and reenacted; and that §5A-3-13 of
said code be amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 3. ATTORNEY GENERAL.
§5-3-3. Assistants to Attorney General.
The Attorney General may appoint such Assistant Attorneys
General as may be necessary to properly perform the duties of his
or her office. The total compensation of all such assistants shall
be within the limits of the amounts appropriated by the Legislature
for personal services. All Assistant Attorneys General so
appointed shall serve at the pleasure of the Attorney General and shall perform such duties as he
or she may require of them.
If the Attorney General seeks to obtain legal services of any
kind from any person who is neither a full-time Assistant Attorney
General on his or her staff nor a full-time employee of another
state agency, whether or not such person is designated at any time
as an Assistant Attorney General, he or she shall contract for such
services regardless of the amount of fees and expenses to be
incurred, and to the extent applicable, shall comply with the
general purchasing requirements under article three, chapter five-a
of this code. The contract shall be subject to the following
requirements: (1) The fee under the contract shall be charged only
on an hourly basis, based on a rate that shall not exceed the usual
and customary rate for such services, or five hundred dollars an
hour, whichever is lower, and which shall be paid only from the
budget for the Attorney General as approved annually by the
Legislature; (2) a statement of the reimbursement rate by the
Attorney General of expenses that may be incurred by the applicant,
including, but not limited to, items such as travel, telephone and
copying; (3) certification by the applicant of the hourly rate he
or she will charge under the contract and agreement to the
reimbursement rate for expenses set forth by the Attorney General;
(4) certification by the applicant that he or she will agree to any
relevant statutory confidentiality requirements; (5) certification
by the applicant that he or she will submit an annual budget of fees and expenses to be incurred for any matter that may extend for
more than six months; and (6) certification by the applicant that
neither he or she, nor any person in practice with the applicant,
represents nor may represent during the pendency of the contract,
a person who has a claim or punitive claim involving any matter for
which the applicant or any person in practice with the applicant
has been retained by the Attorney General. Consistent with the
general purchasing requirements, the Attorney General shall submit
a request for proposal when he or she seeks to obtain these legal
services, and the request for proposal shall include the following
elements: (1) A statement by the Attorney General as to why the
matter cannot be handled by the regular full-time staff of the
Attorney General; (2) a statement of the particular experience and
expertise required of the person or persons being sought under the
contract; and (3) the estimated total amount of time and fees to be
expended by the persons under the contract.
Nothing in this section creates or expands any rights of the
Attorney General that do not otherwise exist in this code.
All laws or parts of laws inconsistent with the provisions
hereof are hereby amended to be in harmony with the provisions of
this section.
§5-3-4. Reports to Governor and Joint Committee on Government and
Finance.
(a) The Attorney General shall
semiannually, on or before the first day of
May and November, deliver to the Governor
and to the
Joint Committee on Government and Finance a report of the state and
condition of the several causes, in which the state
or the Attorney
General is a party, pending in courts mentioned in section two of
this article,
or in any other chapter of this code, as of the
thirtieth day of December and June, immediately preceding the first
day of May and November, or closed or concluded during the
preceding six month period. This report shall also include the
terms and conditions upon which the Attorney General has engaged
any person to perform legal services of any kind, whether or not
such person has been designated an Assistant Attorney General,
including a copy of all contracts for such legal services,
including the fees and expenses to be paid to these persons; and
the amount of judgments, settlements, costs and fees awarded by the
courts to the Attorney General or persons with whom he or she has
contracted for legal services, including any Assistant Attorney
General, in cases closed or concluded during the preceding fiscal
year of the state, and that amount paid to any Assistant Attorney
General, or other persons under contract with the Attorney General
to perform legal services, for representing the state or a public
officer or employee of the state. This report shall also include
copies of reports provided in the preceding six months under
subsections (b) and (c) of this section.
(b) Whenever the Attorney General contracts for legal services for a person other than as a full-time member of his or her staff,
in accordance with section three of this article, he or she shall
immediately deliver to the Governor and to the Joint Committee on
Government and Finance a list of the persons with whom he or she
has such contracts; a list of all persons who responded to the
proposal and copies of all communication in response to the
proposal; and a review of the current and prior relationship of the
Attorney General and his or her deputies with the persons to whom
he or she has awarded the contracts.
(c) At the conclusion of any legal proceeding for which the
Attorney General has contracted for legal services from a person
who is neither a full-time Assistant Attorney General on his or her
staff or other full-time state employee, the Attorney General shall
obtain from each such person a statement of the number of hours
worked on the case, all expenses incurred, the aggregate fee amount
and a breakdown as to the hourly rate based on hours worked divided
into fee recovered, less expenses, and submit the statement to the
state auditor before payment is made.
(d) In no case may the Attorney General incur fees in excess
of five hundred dollars an hour for legal services from any person,
nor expenses beyond the reimbursement rate set forth in any request
for proposal for legal services, nor beyond the allocation for such
fees and expenses in the annual budget appropriated by the
Legislature for the Attorney General.
(e) Nothing in this section creates or expands any right of
the Attorney General that does not otherwise exist in this code.
(f) The Joint Committee on Government and Finance shall study
implementation of the provisions of this section and of section
three of this article with respect to contracts for legal services
by the Attorney General of persons who are neither full-time
Assistant Attorneys General or other full-time employees of the
state, and shall make recommendations to the full Legislature
before the regular session of two thousand eight, with respect to
any legislative change, including an analysis of the costs and
benefits of the contractual and reporting process established under
these sections.
§5-3-5. Fees to be paid into State Treasury.
On the final determination of any cause in any of the courts
mentioned in the second section of this article,
or in any other
article of this code, in which the Attorney General appeared for
the state, the clerk thereof shall certify to the Auditor the fee
of the Attorney General which was taxed
in the bill of as costs
against the defendant
or other party, and when such fee shall be
collected,
whether it be for services of an assistant or special
Assistant Attorney General or of other persons with whom the
Attorney General has contracted for legal services, it shall be
paid into the State Treasury and placed to the credit of the state
fund.
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3. PURCHASING DIVISION.
§5A-3-13. Contracts to be approved as to form; filing.
Contracts shall be approved as to form by the Attorney
General,
except that a contract proposed by the Attorney General
shall be approved as to form by the Secretary of State. A contract
that requires more than six months for its fulfillment shall be
filed with the State Auditor.
NOTE: The purpose of this bill is to require the Attorney
General to comply with certain requirements when entering into
contracts for legal services to be performed by persons other than
full-time Assistant Attorneys General or other full-time employees
of the state as well as modifying current statutes to require
greater legislative and executive supervision of these types of
contracts. Toward these ends the bill includes the following
provisions: (1) Requiring the Attorney General to report to the
Governor and the Joint Committee on Government and Finance relative
to these contracts; (2) requiring the Attorney General to report to
the Governor and Joint Committee on Government and Finance upon the
conclusion of such services, including a statement of fees involved
on an hourly basis; (3) prohibiting the payment of fees to such
persons in excess of $500 per hour; (4) requiring the joint
committee to study the new provisions and to report recommendations
for further changes to the full Legislature before the 2008
session; (5) requiring the Attorney General to submit semi-annual
reports to the Governor and the Joint Committee on Government and
Finance while requiring the inclusion of information concerning the
nature of these contracts; (6) requiring all attorney fees or costs
awarded the Attorney General to be deposited into the State Fund;
and, (7)requiring that contracts proposed by the Attorney General
be approved as to form by the Secretary of State.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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