Racing Commission will still seek counsel from AG's office

By John O'Brien | Sep 3, 2013

CHARLESTON – The state Department of Revenue has withdrawn the portion of an agreement between the Racing Commission and the Lottery Commission that a horse racing industry advocacy group sought to invalidate.

The Charles Town Horsemen’s Benevolent and Protective Association filed a petition for a writ of mandamus with the state Supreme Court in July, and it was denied as moot on Aug. 30.

Martinsburg attorney David M. Hammer, who was representing CTHBPA, said the part of the agreement in controversy was taken out after he filed the petition.

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

The CTHBPA said the two bypassed the Attorney General’s Office.

“It was an important issue because it’s important that the Attorney General’s Office, which is neutral, provides legal advice to the Racing Commission,” Hammer said.

Attorney General Patrick Morrisey’s office had said it would look over the agreement.

Hammer – of the firm Hammer, Ferretti & Schiavoni – filed the petition with the Supreme Court on July 8. He called the original agreement a “power grab by the Executive Branch of state government.”

“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.”

Both the Lottery Commission and Racing Commission are a part of the Department of Revenue. The agreement was 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.

The agreement provided 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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