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

Published: 2015

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WVC 5-


WVC -3-


WVC 5-3-1

§5-3-1. Written opinions and advice and other legal services;

expenditures by state officers, boards and commissions

for legal services prohibited.

The attorney general shall give written opinions and advice

upon questions of law, and shall prosecute and defend suits,

actions, and other legal proceedings, and generally render and

perform all other legal services, whenever required to do so, in

writing, by the governor, the secretary of state, the auditor, the

state superintendent of free schools, the treasurer, the

commissioner of agriculture, the board of public works, the tax

commissioner, the state archivist and historian, the commissioner

of banking, the adjutant general, the director of the division of

environmental protection, the superintendent of public safety, the

state commissioner of public institutions, the commissioner of the

division of highways, the commissioner of the bureau of employment

programs, the public service commission, or any other state

officer, board or commission, or the head of any state educational,

correctional, penal or eleemosynary institution; and it is unlawful

from and after the time this section becomes effective for any of

the public officers, commissions, or other persons above mentioned

to expend any public funds of the state of West Virginia for the

purpose of paying any person, firm, or corporation for the

performance of any legal services: Provided, That nothing

contained in this section impairs or affects any existing valid

contracts of employment for the performance of legal services heretofore made.

It is also the duty of the attorney general to render to the

president of the Senate and/or the speaker of the House of

Delegates a written opinion or advice upon any questions submitted

to the attorney general by them or either of them whenever he or

she is requested in writing so to do.

WVC 5-3-2

§5-3-2. Act as counsel for state; duties and powers as to

prosecuting attorneys; defense of national guardsmen.

The attorney general shall appear as counsel for the state in

all causes pending in the supreme court of appeals, or in any

federal court, in which the state is interested; he shall appear in

any cause in which the state is interested that is pending in any

other court in the state, on the written request of the governor,

and when such appearance is entered he shall take charge of and

have control of such cause; he shall defend all actions and

proceedings against any state officer in his official capacity in

any of the courts of this state or any of the federal courts when

the state is not interested in such cause against such officer, but

should the state be interested against such officer, he shall

appear for the state; he shall institute and prosecute all civil

actions and proceedings in favor of or for the use of the state

which may be necessary in the execution of the official duties of

any state officer, board or commission on the written request of

such officer, board or commission; he shall, when requested by the

prosecuting attorney of a county wherein a state institution of

correction is located, provide attorneys for appointment as special

prosecuting attorneys to assist the prosecuting attorney of said

county in the prosecution of criminal proceedings when, in the

opinion of the circuit judge of said county, or a justice of the

West Virginia supreme court of appeals, extraordinary circumstances

exist at said institution which render the financial resources of the office of the prosecuting attorney inadequate to prosecute said

cases; he may consult with and advise the several prosecuting

attorneys in matters relating to the official duties of their

office, and may require a written report from them of the state and

condition of the several causes, in which the state is a party,

pending in the courts of their respective counties; he may require

the several prosecuting attorneys to perform, within the respective

counties in which they are elected, any of the legal duties

required to be performed by the attorney general which are not

inconsistent with the duties of the prosecuting attorneys as the

legal representatives of their respective counties; when the

performance of any such duties by the prosecuting attorney

conflicts with his duties as the legal representative of his

county, or for any reason any prosecuting attorney is disqualified

from performing such duties, the attorney general may require the

prosecuting attorney of any other county to perform such duties in

any county other than that in which such prosecuting attorney is

elected and for the performance of which duties outside of the

county in which he is elected the prosecuting attorney shall be

paid his actual traveling and other expenses out of the

appropriation for contingent expenses for the department for which

such services are rendered; the attorney general shall keep in

proper books, a register of all causes prosecuted or defended by

him in behalf of the state or its officers and of the proceedings

had in relation thereto, and deliver the same to his successor in office; and he shall preserve in his office all his official

opinions and publish the same in his biennial report.

Upon request of any member of the West Virginia national guard

who has been named defendant in any civil action arising out of

that guardsman's action while under orders from the governor

relating to national guard assistance in disasters and civil

disorders, the attorney general shall appear as counsel for and

represent such guardsman.

WVC 5-3-2A

§5-3-2a. Consent judgments in actions against an agency of

government; notice of proposed consent judgment.

(a) It is hereby established as the policy of this state to

consent to a proposed judgment in an action against an agency of

government or its officers or employees only after or on condition

that an opportunity is afforded persons (natural or corporate) who

are not named as parties to the action to comment on the proposed

judgment prior to its entry by the court.

(1) For the purposes of this section, "agency of government"


(A) A department, division, bureau, board, commission or other

agency or instrumentality within the executive branch of state

government which may sue or be sued; or

(B) A political subdivision of this state or any board,

department, commission, district or special district, council or

other agency or instrumentality thereof whose liability or

potential liability arises from a claim which is covered by

property or liability insurance provided by the state board of risk

and insurance management of West Virginia pursuant to the

provisions of article twelve, chapter twenty-nine of this code.

(2) For the purposes of this section, "action" means a civil

proceeding initiated in a court of general jurisdiction and shall

not mean a proceeding initiated in or before, or an appeal taken

to, an administrative agency, board or commission and shall not

mean an appeal taken to a court from such an administrative

proceeding or appeal.

(3) For the purposes of this section, "judgment" means a judgment, order or decree of a court the entry of which would

require or otherwise mandate:

(A) An expansion of, increase in, or addition to the services,

duties or responsibilities of an agency of government;

(B) An increase in the expenditures of an agency of government

above the level of expenditures approved or authorized before the

entry of the proposed judgment;

(C) The employment or other hiring of, or the contracting

with, personnel or other entities by an agency of government in

addition to the personnel or other entities employed or otherwise

hired by, or contracted with or by the agency of government; or

(D) Payment of a claim based upon tort or contract by an

agency of government as defined in paragraph (B), subdivision (1)

of this subsection.

(b) To effectuate this policy, each proposed judgment which is

within the scope of paragraph (a) of this section shall be lodged

with the court as early as feasible but at least sixty days before

the judgment is entered by the court, and true copies of the

proposed order shall be served upon the attorney general of the

state, the president of the West Virginia Senate and the speaker of

the West Virginia House of Delegates. When an agency of government

proposes to consent to a judgment, it shall file with the secretary

of state, for publication in the state register, a notice of the

proposed order and include therein a request for comment on the

proposed order. The notice shall fix a date, time and place for

the receipt of written statements and documents bearing on the

appropriateness, propriety or adequacy of the proposed consent order. At the time of filing the notice of its action, the agency

of government shall also file with the secretary of state a true

copy of the proposed order. If alternative draft proposals are

being considered, the full text of the additional draft proposals

shall also be filed with the secretary of state. The agency of

government proposing to consent to the entry of judgment shall also

file with the secretary of state an estimate of the cost of

implementing the proposed judgment as the cost relates to this

state and to persons affected by the proposed judgment.

(c) Prior to entry of the judgment, or some earlier specified

date, the attorney general will receive and consider and file with

the court any written comments, views or allegations relating to

the proposed judgment.

(d) The attorney general shall reserve the right (1) to

withdraw or withhold his or her consent to the proposed judgment if

the comments, views and allegations received concerning the

proposed judgment disclose facts or considerations which indicate

that the proposed judgment is inappropriate, improper or inadequate

or (2) to support or oppose an attempt by any person to intervene

in the action. If action which could be taken by the attorney

general pursuant to the provisions of this subsection may be

materially adverse to the interests of an agency of government or

an officer or employee thereof whom the attorney general has

previously represented in the same or a substantially related

matter, the attorney general shall not proceed to act without the

written consent of the agency of government or the affected officer

or employee. In the absence of such consent, the attorney general shall provide for an independent special assistant attorney general

to be retained to consider the comments, views and allegations

received concerning the proposed judgment, and to pursue such

action as may be deemed appropriate, in accordance with the

provisions of this subsection.

(e) The attorney general may establish procedures for

implementing the policy established by this section. Where it is

clear that the public interest in the policy hereby established is

not compromised, the attorney general may permit an exception to

this policy in a specific case where extraordinary circumstances

require a period shorter than sixty days or a procedure other than

stated herein.

(f) Any agency of government which agrees to a consent

judgment after the thirtieth day of June, one thousand nine hundred

ninety-five, shall thereafter file an annual report, on or before

the first day of November, setting forth the status of the action,

the fiscal impact of the consent judgment upon the resources of the

state, and the manner in which any cost to the state is met or will

be met by appropriations authorized in the state budget. Such

report shall be filed with the president of the West Virginia

Senate and the speaker of the West Virginia House of Delegates.

WVC 5-3-3

§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

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 may require of them.

All laws or parts of laws inconsistent with the provisions

hereof are hereby amended to be in harmony with the provisions of

this section.

WVC 5-3-4

§5-3-4. Annual report to governor.

The attorney general shall annually, on or before the first

day of November, deliver to the governor a report of the state and

condition of the several causes, in which the state is a party,

pending in courts mentioned in section two of this article.

WVC 5-3-5

§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, 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 costs against the defendant, and when such fee

shall be collected it shall be paid into the state treasury and

placed to the credit of the state fund.

Note: WV Code updated with legislation passed through the 2015 Regular Session

The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.