Impeachment trial to begin as new audit released
CHARLESTON — When the West Virginia Senate meets this week, it will be the first time the body has met to remove an elected official from office in 142 years.
This time, the Senate will make triple history when it considers articles of impeachment against all three remaining elected justices of the West Virginia Supreme Court of Appeals.
It’s a set of circumstances Senate President Mitch Carmichael, R-Jackson, and Senate Minority Leader Roman Prezioso, D-Marion, could never have predicted.
“Certainly no one imagines that when you begin a legislative session that it will end in impeachment of anyone,” Carmichael said. “But having said that, we certainly respect the responsibility that has been placed on us by the people of West Virginia to ensure that our public officials are performing their tasks in a manner that is commiserate with the expectations of the people.”
“I never thought I’d be in a position like this,” Prezioso said. “We never thought this would go further than the impeachment process in the House because their retirement is at stake and why would you want to risk your retirement? We never thought anything would get this far and certainly not like the situation we’re in now with the Supreme Court.”
Prezioso was a member of the House of Delegates in 1989 when the House impeached the late state Treasurer A. James Manchin, who resigned before the Senate could try him.
“I remember the inquiry that the House Judiciary Committee had and when it came to us for the vote,” Prezioso said. “We thought then that that was amazing.”
TRIAL OF THE (21ST) CENTURY
Tuesday will start with a pre-trial conference presided over by Acting Chief Justice Paul Farrell, a Cabell County circuit judge. The Supreme Court justices will be represented by their attorneys. Several members of the House, appointed as impeachment managers, will act as prosecutors. The Senate’s job is to sit as jury.
“We don’t expect that to take very long,” Carmichael said. “We expect to wrap that up in a day. Then the trial dates will be set, and the order of the trials will be set by the presiding officer. Justice Farrell has a great reputation and we expect that he will move the trial along in a professional, first-class manner.”
The House adopted 11 articles of impeachment Aug. 14 against all sitting justices. Chief Justice Margaret Workman is charged with two articles of impeachment and Justice Beth Walker is charged in one article. Justice Allen Loughry faces seven articles of impeachment. Justice Robin Davis, who was charged in three articles, announced her resignation that same day.
“When there is something that is amiss, we have every obligation to review and analyze the evidence and make decisions upon — in this case — guilt or innocence,” Carmichael said.
While the trials will ultimately be held in the Senate chamber, this will not be a typical session. There will be no Senate president, no minority leader, no parties — every senator will be on equal footing as jurors.
It won’t have the same standards as a criminal trial, such as proving guilt beyond a reasonable doubt. It will take two-thirds of senators to decide simply to convict or not convict a justice on an article of impeachment. If the vote is to convict, the minimum sentence is removal from office, though senators can also vote to prohibit the justice from running for any office in the future.
The weight of such decisions is not lost on Carmichael.
“All of us take this responsibility very seriously,” Carmichael said. “We know that we are empaneled as a jury. We will be impartial. We will be transparent. We will be professional. No one will reveal, discuss, or have any predispositions about the evidence prior to its presentment.”
In preparation for Tuesday, Prezioso sought the counsel of Kevin Baker, the attorney to the Senate Democrats, as well as other attorneys.
“Here’s what I’ve been advised by my attorneys: don’t worry about the outcome, worry about reviewing the evidence,” Prezioso said. “Look at all the evidence and make a choice and make a decision based on that evidence, not on the outcome of the trial.”
EVIDENCE CONTINUES TO MOUNT
The Post Audit Division of the Legislative Auditor’s Office on Friday released additional information regarding the spending by the Supreme Court, adding new evidence for consideration in the impeachment trial.
The report focuses on three issues: the spend-down of millions of surplus dollars over four years, spending approximately $3.4 million on office renovations during the same time period, and nearly a decade of violating state code to pay 10 senior status judges more than what statute allowed.
According to the report, the Supreme Court spent down a $29 million budget surplus between fiscal years 2012 and 2015. During those four years, that $29 million was spent down to $333,514.
Most of the money — more than $6.3 million — in fiscal year 2012 was funneled into pay increases for judges, justices, and magistrates, as well as renovations. Another $7.4 million was spent from surplus funds in fiscal year 2013, with most of the spending spread out among salary increases, computer services, and renovations.
In fiscal year 2014, the court returned $4 million to the state’s general fund during a tough budget year, but still managed to spend an additional $9.4 million of surplus money. The largest expenditures that year included salary increases, computer services, attorney legal services, and renovations. More than $1.7 million couldn’t be accounted for. Fiscal year 2015 was the first year there were no renovations, and salary increases came in below $1 million for the first time.
In the next issue focused on by the report, the justices spent more than $3.4 million on renovations to their offices and other areas of the Supreme Court between 2012 and 2016.
The single largest renovation expenditure was Davis’ office, coming in at $503,668 according to invoices the court supplied to the Post Audit Committee. Of the remaining justices on the bench, Loughry comes in second with $367,915, followed by Walker with $130,655, and Workman with $112,780.
Total renovations for just the justice’s offices alone was more than $1.9 million. That number could be more, as the court wasn’t able to supply all invoices to auditors for court renovations, or improvements to leased spaces the court uses in Charleston.
WHO JUDGES THE JUDGES
On the final issue investigated by post audit staff, the report goes into detail on the overpayment of senior status judges, who are retired judges who remain on call to fill vacancies.
These judges are prohibited by state law from making more than active circuit judges. Prior to 2011 that amount was $116,000, but after that it was capped at $126,000. If the senior status judge’s combined compensation and retirement reaches the cap, they either have to forego receiving their retirement annuity or forego additional assignments.
To get around state code, the report said various chief justices of the Supreme Court would convert certain senior status judges from employees to independent contractors to get around the cap. That practice ceased in 2017, but justices still allowed senior status judges to exceed the cap. This cost taxpayers $271,000 between 2011 and 2014.
“The Court’s Director of Finance indicated that it was common knowledge that the Court engaged in this practice to get around the statutory cap and allow a Senior Status Circuit Court Judge to continue to receive their retirement while serving,” according to the report. “Quoting the Director of the Division of Finance, ‘I was told so they would not stop receiving their pension.'”
One senior status judge, former Supreme Court justice Thomas McHugh, returned any compensation that went above the cap. “Justice McHugh thought that it was wrong to accept the payments while continuing to receive retirement benefits, indicating that at least one judge was aware of the limits established and that the practice of being paid in excess of those limits was not proper,” the report continued.
In order to not run afoul of the Internal Revenue Service during a 2017 audit, Loughry — as chief justice — tried to use an administrative order to legitimize the court’s overpayment practices.
TIPPING THE SCALES
The new audit adds more weight to the articles of impeachment. All three remaining justices are charged as one for not having travel policies prior to 2016, not reporting taxable fringe benefits to the IRS, providing no supervision of spending and purchasing card use, having no policy on home offices, having no inventory system and not putting projects out for bid. Both Loughry and Workman are charged for overpaying senior status judges in violation of state code.
Loughry alone is charged for his office renovations, using state vehicles and fuel cards for personal use, taking an antique desk and a couch donated to the court to his own home, having state computers set up in his home for use by his wife and son, and lying under oath to a legislative committee.
Loughry also is facing a 25-count federal indictment. He is accused of several counts of wire fraud, as well as obstruction of justice, witness tampering, and lying to investigators. He faces trial on these federal charges in October. The state Judicial Investigation Commission also charged Loughry in a 32-count complaint for violations of the Judicial Code of Conduct.
While the acting chief justice will set the trial dates and the order, Prezioso suspects they will act on Workman and Walker first, focusing on Loughry last.
“I think Loughry is going to be the last one,” Prezioso said. “From what I understand, they’re going to wait on the federal court to convene in October and base their decision on that. That will make it an easy decision if he is convicted in federal court.”
“We’re anxious to move forward and get this behind us one way or the other,” Carmichael said. “We’ll make sure it’s done in a public, transparent manner. The people of West Virginia, and America, and anyone looking at it on the world will see this as conducted in a very world-class, professional manner.”
(Adams can be contacted at email@example.com)