Horse racing group fighting agreement between lottery, racing commissions

By John O'Brien | Jul 8, 2013

CHARLESTON – Two West Virginia agencies are being accused of a power grab by a horse racing industry advocacy group.

The Charles Town Horsemen’s Benevolent and Protective Association filed a petition for a writ of mandamus on July 8 with the state Supreme Court as it fights an agreement between the Racing Commission and Lottery Commission.

The petition says the Racing Commission on June 18 agreed to cede much of its statutory duties to the Lottery Commission and its staff attorney.

The HBPA says the two bypassed the Attorney General’s Office.

“The Interagency Agreement marginalizes the Attorney General’s constitutional obligation to provide legal counsel and services by shifting the provision of day-to-day legal advice to in-house Lottery Commission counsel,” the petition says.

“Unlike the Attorney General, a constitutional officer who is directly elected and accountable to the people, in-house legal counsel is accountable only to the Lottery Commission.”

Attorney General Patrick Morrisey's office said it will look over the agreement.

"There are significant legal questions about what the West Virginia Racing Commission and West Virginia Lottery Commission have done," it said in a statement.

"We are reviewing the petition and will not have any further comment until we have fully analyzed all of the issues."

The HBPA is represented by Martinsburg attorney David Hammer, of Hammer, Ferretti & Schiavoni.

“What the Racing Commission has done clearly violates the West Virginia Constitution’s requirement for Separation of Powers,” Hammer said.

“The Attorney General is a constitutional officer who has the responsibility to advise State agencies. This is a power grab by the Executive Branch of state government, plain and simple.”

The petition asks the court to declare the agreement null and void. Though the court is in recess, Hammer said he is sure the petition will get the attention of the justice assigned to monitor emergency motions.

Both the Lottery Commission and Racing Commission are a part of the Department of Revenue. The agreement is predicated upon a part of state law that grants “a Cabinet Secretary the authority to ‘delegate, assign, transfer, or combine responsibilities or duties to or among employees, other than administrators or board members,’” the petition says.

“As if that were not deplorable enough, the Interagency Agreement goes even farther by taking away the Attorney General’s role of providing ‘day to day’ legal advice and ‘reorganizing’ that constitutional responsibility to in-house legal counsel for the Lottery Commission,” it adds.

Attached to the petition was a copy of the agreement. It provides for the Racing Commission to request the assistance of certain employees from the Lottery Commission to assist and consult in services as specified by the chairman or executive director of the Racing Commission.

Those services include:

-Budget analysis and expenditure schedule support;

-Recommendations concerning changes to Racing Commission accounting policies;

-Research and audit functions of the Racing Commission’s financial operations;

-Study and audit internal controls of the Racing Commission;

-Develop and perform audit procedures relating to licensing or permitting;

-Review and interpret racing statutes and rules and other relevant state and federal laws;

-Draft legislation and rule amendments;

-Provide day-to-day administrative, in-house legal advising; and

-Consult with the Racing Commission’s statutory counsel as needed regarding any administrative hearing or appeal to be litigated by statutory counsel.

The Lottery Commission was also given special investigative powers.

From the West Virginia Record: Reach John O’Brien at

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