§5-3-2a. Consent judgments in actions against an agency of government; notice of proposed consent judgment


Published: 2015

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WEST VIRGINIA CODE











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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"

means:

(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.





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

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