Dan Greear speaks March 25 at the Pullman Plaza Hotel in Huntington. (Photo by Chris Dickerson)
HUNTINGTON – While saying a recently passed piece of legislation is a good first step to reigning in state Attorney General Darrell McGraw's controversial distribution of settlement money, Attorney General candidate Dan Greear says it isn't enough.
Speaking March 25 at the monthly meeting of the Huntington Cabell Republican Women, Greear said House Bill 104, passed during the recent Special Session, does not prevent McGraw from employing his normal practice of distributing settlement money, but it only requires him to disclose that information to the Legislature.
Greear praised Gov. Joe Manchin and the Legislature for taking the first step, but said the bill did not go nearly far enough. It requires the AG to notify the Legislature and others of any settlement reached for more than $250,000.
"The Attorney General should be solving legal problems, not creating them," Greear said during the meeting at the Pullman Plaza Hotel. "Once again, McGraw is forcing the Legislature to pass legislation to try to curb his abuses.
"Considering all the problems our state faces, the Legislature should not be forced to fix the messes of a constitutional officer.
"House Bill Greear is a warning shot, but it doesn't do much else."
Greear said the support the bill received shows there are problems with how McGraw operates his office.
"This bill was supported by Democrats and Republicans alike," he said. "I believe the bi-partisan support says a great deal about the dissatisfaction with McGraw, but much more must be done to reign in his abuses."
McGraw's chief deputy AG said she thinks the Legislature did the right thing in how it crafted HB104.
"I think the Legislature recognized that there is a separation of powers," Fran Hughes said Thursday. "The AG is the chief legal officer of the state and that there might be implications under the law for separations of powers if the Legislature starts abrogating that role as chief legal officer.
"The citizens of West Virginia have elected Darrell McGraw as their chief legal officer, not the Legislature. I think there was a recognition there. But as far as providing notice to the Legislature, we have no problem with that."
Hughes said she doesn't understand Greear's attack.
"I can't understand why somebody running for Attorney General would set up a situation where they would want to damage the office of Attorney General and their constitutional role," Hughes said.
Greear said he thinks it is time for something new in West Virginia, particularly in the AG's office.
"We can make a tremendous change in this state by defeating Darrell McGraw," he said. "This isn't a Democrat or Republican issue. It's an issue or right or wrong.
"This is an election we're going to win. West Virginia is ready to make a change in this office."
Greear said "high-ranking Democrats" have told him they're ready to see McGraw replaced.
"They can't beat him in a Democratic primary," Greear said. "They know it will have to be a Republican to do it. I think I am the best candidate to that.
"As Republicans, we ought to be sick of almost defeating Darrell McGraw. We've done that three times now. This is the year we defeat him.
"But I need your help," Greear told the group. "Tell your friends and neighbors and make sure they understand the importance of this race."
Greear, a former House of Delegates member who represented Kanawha County, said McGraw should've given the OxyContin settlement money to those agencies represented instead of it going to attorneys and then given out to "worthwhile and worthy" organizations and charities.
"Let's say I represented you in a lawsuit," said Greear, who also is an attorney. "I call you and say, 'Guess what? I got a $100,000 settlement for you.' First, you'd probably wonder why I didn't ask you about settling before I did it. But anyway, then I tell you, 'But I'm going to donate that $100,000 to my favorite charity on your behalf.
"That, essentially, is what our state Attorney General did with the OxyContin money."
Legislators and McGraw have disagreed over his past spending of settlement dollars. And twice in recent months, the federal Centers for Medicare and Medicaid Services, which supplies about 75 cents of every dollar the State spends on Medicaid, has notified the state's Department of Health and Human Resources that it will be withholding Medicaid funds because it does not believe it was given what it was owed from two of McGraw's lawsuit settlements.
A $4.1 million withhold, currently being appealed, results from the $10 million agreement with Purdue Pharma, reached in 2004 over the company's painkiller OxyContin. Another $634,525 potential withhold relates to a settlement with Dey Inc., which McGraw's office claimed inflated the prices of the prescription drugs it manufactured, thereby defrauding the state's Medicaid program.
Commenting on how the AG would be required to notify the Legislature about any settlement for more than $250,000, Greear asked, "How about just returning it to the state and the agencies?"
Greear also said the Attorney General shouldn't be spending hundreds of thousands of dollars on trinkets and TV ads.
Greear, a Republican who will square off against Hiram Lewis in the May primary to challenge McGraw in the fall, also said he wouldn't employ McGraw's tactic of "political payback" by deputizing campaign contributors as Special Assistant AGs in cases requiring outside counsel.
"The Attorney General's office has 69 attorneys in the office," Greear said. "We would go outside on very rare and narrow circumstances. And when we will do that, we will create a competitive bid process like the one that every other purchasing department in state government has to go through."
McGraw and Hughes previously have saidthat the OxyContin/Purdue Pharma settlement was intentionally structured in a way that prevented the Legislature from receiving any funds.
Sen. Jesse Guills, R-Greenbrier, a member of the Senate Finance Committee asked McGraw in a January meeting who would be responsible for paying the federal government back if it comes to that.
"If we lose this contest, who will pay the $4.1 million?" Guills asked.
"The burden is back on the Legislature," McGraw replied.
Guills also asked where that money would come from.
"Perhaps sharper pencils than mine can find 0.005 percent of that money," McGraw said, referring to $2 billion figure he's secured in settlements since becoming AG.
McGraw said his office had three options when reaching the OxyContin settlement.
"We could take the money agreeable to the judge and the drug company," he said. "We could've turned it over to the DHHR, and the money would have gone back to the federal government. Bye-bye.
"Or we could've given it to the Legislature, which would have been obliged to give it to the DHHR. Bye-bye."
McGraw had another dicey encounter with lawmakers when he met with the House Budget Committee. Del. John Doyle, D-Jefferson, criticized McGraw's actions.
"The minute your office or any office gets money for the State of West Virginia, that money is instantly the property of the taxpayers of West Virginia," Doyle said, according to a report in the Charleston Daily Mail. "Therefore, the Legislature must decide how it is spent."
Trial lawyers hired by McGraw to represent the State in the settlement received more than $3 million in attorneys fees.
Hughes said she thinks the entire issue over McGraw and settlement money is a red herring created by the U.S. Chamber of Commerce, which owns The West Virginia Record.
"Literally, less than 1 percent of all monies we have brought into the state were not given to the Legislature," she said. "They (the Chamber) knew this would be a popular issue with the Legislature, and they've exploited it.
"If you're talking about something that less than 1 percent of everything you do and you compare that to everything we've brought to the table … we're responsible for balancing the budget for the last eight years."