Silas B. Taylor,
Deputy Attorney General
Charleston, West Virginia
Attorney for the Appellant
Larry A. Winter
David D. Johnson, III
Spilman, Thomas & Battle
Charleston, West Virginia
Attorney for the Appellee,
Fahlgren Martin, Inc.
Clarence E. Hall, II
Prosecuting Attorney of Boone County
Special Attorney General of
the State of West Virginia
Madison, West Virginia
Richard M. Riffe
Assistant Prosecuting Attorney of Boone County
Madison, West Virginia
General Counsel to the
Department of Administration
of the State of West Virginia
Charleston, West Virginia
Attorneys for the Appelles,
Chuck Polan and Ron Riley
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. West Virginia Code § 5A-3-13 (1993) provides that "[c]ontracts shall be approved as to form by the attorney general. A contract that requires more than six months for its fulfillment shall be filed with the state auditor."
2. "The powers and duties of the Attorney General are
specified by the constitution and by rules of law prescribed
pursuant thereto." Syllabus point 1, Manchin v. Browning, 170
W.Va. 779, 296 S.E.2d 909 (1982).
3. The West Virginia Constitution and W.Va. Code § 5A-3-
13 (1993) grant the Attorney General the duty to approve a contract
as to form only. If a contract is legal, then he is required by
statute to approve the contract as to form, regardless of any
perceived wrongful acts. The Attorney General can list perceived
illegalities, in writing, for the Purchasing Division and the
Prosecuting Attorney to deal with once the contract is returned to
Purchasing's office. The Attorney General cannot hold a contract
in his office awaiting the outcome of a trial, investigation, or
other proceedings. The Attorney General has no investigative
powers in connection with the contract. He cannot sue on the
contract on behalf of the State unless otherwise authorized by
4. The term "form," as used in W.Va. Code § 5A-3-13
(1993), means the legality of all the matters contained in the
contract document as it relates to the Constitution, statutes, and
the contract law of this State. The term "form" does not include
any matters extrinsic to the actual contract.
5. In order for a petition for a writ of mandamus to be
upheld, three requirements must first be met. The relator must
show "(1) a clear right to the relief sought; (2) a legal duty on
the part of the respondent to do the thing relator seeks; and
(3) the absence of another adequate remedy." Syllabus point 2, in
part, Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981).
This case is before the Court on the petition of the
appellee, Fahlgren Martin, Inc., in which it submits that the writ
of mandamus granted by the Circuit Court of Kanawha County on June
14, 1993, should be affirmed. This case revolves around the
bidding process for the advertising and related services contract
for the West Virginia Lottery during 1993. Also at issue, although
indirectly, is the 1991 Lottery advertising contract.
In order to address the issue of mandamus, we must first
look at the circumstances surrounding the 1991 contract. In
response to the Lottery's newspaper advertisements requesting bids
for the 1991 Lottery advertising contract, six advertising agencies
presented proposals to a seven-member evaluation committee in
April, 1991. The evaluation committee was chaired by the Deputy
Director of Marketing for the West Virginia Lottery, Tamara L.
Gunnoe, several Lottery employees, an independent consultant, and
an employee of Scientific Games, Inc., which was under contract to
supply the Lottery with the lottery games.
Although the evaluation committee was to use a scoring
system for each of the presenting agencies, subsequent information
reveals that Fahlgren Martin, Inc., was not the recipient of the
best score nor the lowest bidder. There was evidence that the
Director of the Lottery, Elden "Butch" Bryan, had ordered the
committee to make certain they recommended Fahlgren Martin, Inc.,
as the most "responsible" bidder to the Lottery Commission.
Nonetheless, through various maneuverings and intentional
misrepresentations by the evaluating committee and the Lottery
Director, Fahlgren Martin, Inc., was awarded the bid.
In April, 1993, the Director of the Lottery, Elden
"Butch" Bryan, was indicted on five felony counts by a federal
grand jury. Among other counts, Bryan was indicted for federal
mail fraud, which set out that the purpose of the scheme underlying
the alleged mail fraud was to award the advertising contract for
the Lottery to Fahlgren Martin, Inc., and to "subvert and conceal
the results of a West Virginia Lottery bid and evaluation process
to achieve that end." Following testimony that Bryan ordered that
the bid results be falsified, he was convicted on five felony
Immediately prior to the indictments, the 1993 Lottery advertising contract came up for the bidding process. There is no evidence that there was any irregularity in awarding the 1993 contract. However, two of the three Lottery employees who comprise the 1993 bid evaluation committee also were involved in the illegal 1991 evaluation process, as well as the same Lottery Director. In the 1993 process, Fahlgren Martin, Inc., received the highest score. Thereafter, a bid justification slip was prepared on March 17, 1993, by the Lottery Commission and the Purchasing Division of the Department of Administration. The bid justification slip stated that, in reliance upon documents submitted by the Lottery, the Purchasing Division "finds the scores to be mathematically correct and to have been submitted in accordance with purchasing regulations. Therefore we concur that the contract award be made to Fahlgren Martin, Inc."
On March 19, 1993, Administration Assistant Director
Curtis formalized the Purchasing Division's approval by executing
the first page of the purchase order. That purchase order and the
underlying documents were forwarded to the Attorney General for his
review, pursuant to W.Va. Code § 5A-3-13 (1993). The Code section
requires that the Attorney General approve the contract as to form.
While that review process was underway, the indictments discussed
above were returned.
Thereafter, on May 5, 1993, the Attorney General advised
Mr. Polan, Secretary of the Department of Administration, and Mr.
Riley, the Supervisor of the Department of Purchasing, a division
of the Department of Administration, that approval of the 1993
contract would be withheld pending resolution of the federal
indictment against Bryan. The Attorney General stated that "until
the criminal issue has been resolved . . . it would be remiss of
this office to approve the contract and the purchase change request
for the fiscal year 1993."
On May 14, 1993, Fahlgren Martin, Inc., filed a petition
for a writ of mandamus in the Circuit Court of Kanawha County. On
May 14, 1993, a show cause order was ordered by the Circuit Court
of Kanawha County, returnable June 11, 1993. In the petition
before this Court, Fahlgren Martin, Inc., noted that the Attorney
General then attempted to initiate massive discovery concerning the
procurement of both the 1991 and 1993 contracts. "Specifically,
[Attorney General] McGraw attempted to take the depositions of
numerous persons, both parties and nonparties, and to compel the
production of voluminous documents. Although [Attorney General]
McGraw states that Fahlgren Martin, Inc., 'consistently opposed
[his] efforts to develop the pertinent facts' Fahlgren Martin,
Inc., actually sought only to prohibit discovery by [Attorney
General] McGraw concerning evidence which was immaterial to the
mandamus proceeding below." On June 4, 1993, Fahlgren Martin,
Inc.'s motion to prohibit or limit discovery was granted by the
circuit court. Thus, Attorney General McGraw was forbidden by the
Circuit Court of Kanawha County from engaging in discovery
pertaining to the process of the evaluation of bids for the 1991 or
the 1993 contract.
On June 11, 1993, a hearing was held on Fahlgren Martin,
Inc.'s petition for a writ of mandamus. Fahlgren Martin, Inc.,
contends that at that hearing, the evidence presented by Attorney
General McGraw pertained only to the issue of whether the Attorney
General was entitled to withhold approval of the form of the 1993
contract pending a full blown investigation by his office
concerning the legality of the procedures used in the awarding of
that contract. The Attorney General's office was permitted to
proffer that evidence, which included an avowal as to the substance
of anticipated testimony.
On June 14, 1993, the circuit court entered the order
from which the Attorney General appeals, granting the peremptory
writ of mandamus as prayed for by Fahlgren Martin, Inc.See footnote 1 The writ
of mandamus commanded the Attorney General to approve the 1993
contract as to form and required both Mr. Riley and Mr. Polan to
finalize and give full force and effect to the 1993 contract with
Fahlgren Martin, Inc.. On June 15, 1993, the Attorney General
filed a motion for a stay of execution pending appeal, which was
granted by this Court. For reasons set forth below, we affirm the
June 14, 1993, order of the Circuit Court of Kanawha County
granting Fahlgren Martin, Inc.'s petition for a writ of mandamus.
The procedure to provide services to the State by
contract is set forth in W.Va. Code § 5A-3-1 et seq. (1993). West
Virginia Code § 5A-3-10 provides for the purchase and contract for
commodities, printing, and services based, if possible, on
competitive bids, when contracts exceed ten thousand dollars. West
Virginia Code § 5A-3-11 provides for "purchasing in open market on
competitive bids, if possible, for commodities, printing and
services of ten thousand or less."
West Virginia Code § 5A-3-10 and 11 provide several basic
steps which are required in the taking of bids for services.
First, the bid request must be advertised.See footnote 2 Second, W.Va. Code
§ 5A-3-11 provides the lowest responsible bidder should be awarded
the contract, taking into consideration "the qualities of the
articles to be supplied, their conformity with specifications,
their suitability to the requirements of the government and the
delivery terms . . . ."See footnote 3 Third, if the bids do not reach
specifications, any or all bids may be rejected and the required
items or services may be purchased on the open market if certain
criteria are met. Fourth, duplicate copies of the bid proposals
are required to be submitted to the Purchasing Division and to the
State Auditor. The copies should be identical, and if there is any
deviation, the bids may be rejected. Fifth, after the award of the
contract or order, the director or specified person is to indicate
upon the successful bid and its copy in the state auditor's office
that it was the successful bid. Next, the copy is then to be
maintained as a public record.
After the winning bid is determined, the contract is sent
to the Attorney General. West Virginia Code § 5A-3-13 (1993)
states that "contracts shall be approved as to form by the Attorney
General. A contract that requires more than six months for its
fulfillment shall be filed with the state auditor." If the
Attorney General approves the contract as to form, then it is
returned to the Purchasing Division for finalization. Once the
contract is back in the Purchasing Division, it is determined
whether there are funds available to pay for the contract. Once
the funds are requisitioned, then the contract is completed and a
purchase order is issued. The right of the Purchasing Division, as
alleged in oral argument, to cancel a contract once it has been
approved by the Attorney General is not an issue before this Court,
and we do not make any findings in that regard.
In the case now before us, the contract process for the
1993 Lottery advertising contract had reached the stage where it
was sent to the Attorney General for approval as to form. Because
of the federal indictment involving the 1991 advertising contract,
the Attorney General halted the 1993 advertising contract when it
reached his office and refused to approve the contract as to form
until the criminal trial of the Lottery Director in federal court
had been concluded. The Attorney General also indicated that he
intended to start an investigation into the circumstances
surrounding the award of the 1991 and 1993 advertising contracts.
Fahlgren Martin, Inc., contended that the Attorney General exceeded
his statutory authority by attempting to investigate the 1993
Lottery advertising contract, attempting to take depositions, and
by refusing to approve the contract as to form. Thus, it filed the
petition for a writ of mandamus in the Circuit Court of Kanawha
County to force the Attorney General to approve the contract as to
The primary issue before this Court is to determine what
authority the Attorney General is granted by constitution and
statute to review contracts which come before him pursuant to W.Va.
Code § 5A-3-13. The Attorney General contends that he has the
authority, based upon his oath of office and the Constitution, to
halt any contract which he believes to be illegal and to
investigate any wrongful acts inherent in the contract. By
contrast, the opposing parties contend that the legislature was
very specific in its limitation of the Attorney General's authority
and that the Attorney General is acting outside that authority.
For the reasons stated below, we hold that the Attorney General has
no authority to act upon contracts submitted to him pursuant to
§ 5A-3-1, et seq., other than to review its form.
West Virginia Code § 5A-3-13 provides that "[c]ontracts shall be approved as to form by the Attorney General. A contract that requires more than six months for its fulfillment shall be filed with the state auditor." In State ex rel. Bache & Co. v. Gainer, 154 W.Va. 499, 177 S.E.2d 10 (1970), the Court stated that this Code section applies to contracts for commodities and printing purchased by the Director of Purchasing and to properties and supplies of the State. It does not apply to an agreement, such as a financial advisor's agreement, which relates to payment for services rendered in connection with the sale of bonds. A contract for advertising comes within this section, as do all contracts for service not otherwise exempted by statute or court opinion.See footnote 4
The duties of the Attorney General are set forth in
Article VII, § 1 of the West Virginia Constitution, which states
that the Attorney General "shall perform such duties as may be
prescribed by law." (Emphasis added.) This Court has previously
examined what powers are inherent in the office of Attorney General
in Manchin v. Browning, 170 W.Va. 779, 296 S.E.2d 909 (1982). In
Manchin, the Secretary of State sought a writ of mandamus to compel
then Attorney General Browning to provide "agreeable legal
representation" for the petitioner in federal court. The Court
granted the writ after conducting an extensive review of the
history of the Attorney General's office, both in England and in
the United States, from 1776. Justice McGraw, now Attorney General
McGraw, wrote for the court and concluded that the plain language
of Article VII, § 1 of the West Virginia Constitution,
when viewed against the historical backdrop of the development of the office of Attorney General in the Virginias, leads us to conclude that the Attorney General of West Virginia does not possess the common law powers attendant to that office in England and in British North America during the colonial period . . . . The framers of the first Virginia Constitution in effect abrogated any common law executive powers the holder of [the Attorney General's] office may have had. . . .
Id. at 915.
In this case, Attorney General McGraw argues that Manchin
does not apply and that his duty to determine if there is any
illegality involved in the contract was based upon his oath of
office and the Constitution.See footnote 5 We cannot agree with this
assessment. In Manchin, Justice McGraw explained that:
[b]y the provisions of our present
constitution, the Attorney General is once
again an officer of the executive department.
However, his return to the executive
department did not revive the common law
powers of his office. The people of West
Virginia specifically expressed their intent
that the Attorney General should not exercise
those powers by providing that he 'shall
perform such duties as may be prescribed by
law.' Under settled rules of construction, the
word 'shall' when used in constitutional
provisions is ordinarily taken to have been
used mandatorily, and the word 'may' generally
should be read as conferring both permission
and power. State ex rel. Trent v. Simms, 138
W.Va. 244, 77 S.E.2d 122 (1953). The phrases
'prescribed by law' and 'provided by law' mean
prescribed or provided by statutes. Lawson v.
Kanawha County Court, 80 W.Va. 612, 92 S.E.
786 (1917). The plain effect of the provision
is to limit the powers of the Attorney General
to those conferred by law laid down pursuant
to the constitution. Consequently we conclude
that the powers and duties of the Attorney
General are specified by the constitution and
by rules of law prescribed pursuant thereto.
Id. at 915.
After examining other jurisdictions, the Court in Manchin
determined that "[t]he same reasoning has compelled numerous
jurisdictions to hold that the Attorney General has no common law
powers and duties where the constitutional provision which creates
the office makes no specific grant of powers other than requiring
him to perform such duties as are 'prescribed by law.'" Id. at
916. The Court concluded that "[t]he powers and duties of the
Attorney General are specified by the constitution and by rules of
law prescribed pursuant thereto." Id. at syl. pt. 1. Although the
facts behind this case and Manchin are different, the reasoning set
forth in Manchin remains valid: because the Attorney General has
no common law authority, his power is limited to what is conferred
by law through statute and the Constitution. Because the
Constitution confers only those powers "prescribed by law," we turn
to the statute to see what powers have been granted by the
West Virginia Code § 5-3-1 (1979) provides the duties of
the Attorney General:
The attorney general shall give his written opinion and advice upon questions of law, and shall prosecute and defend suits, actions, and other legal proceedings, and generally render and perform all other legal services, whenever required to do so, in writing, by the governor, the secretary of state, . . . .
The legislature's limitation of the Attorney General's power is
most evident in the statute creating the Purchasing Division, W.Va.
Code § 5A-3-13. By stating that the contract shall be approved by
the Attorney General "as to form only," it is obvious that the
legislature intended that the Attorney General determine whether
the form of the contract itself was proper. Further, the Attorney
General's interpretation of the word "form" is erroneous. The term
"form," as used in W.Va. Code § 5A-3-13, means the legality of all
the matters contained in the contract document as it relates to the
Constitution, statutes, and the contract law of this State. The
term "form" does not include any matters extrinsic to the actual
contract. Any other interpretation would contradict W.Va. Code
§ 5A-3-13. In fact, the legislature has refused, on four separate
occasions since 1990, to enact legislation which would give the
Attorney General investigatory and criminal prosecutorial powers.See footnote 6
As the Court noted in Manchin, the Attorney General's statutory duty "does not authorize the Attorney General 'to assert his vision of state interest.' Motor Club of Iowa v. Dept. of Transportation, 251 N.W.2d 510, 514 (Iowa 1977)." 296 S.E.2d at 920. We believe this statement to be precisely on point. The legislature has done nothing since Manchin to authorize otherwise. As disappointing as it might be to any Attorney General, who is viewed as the chief legal officer for the State, the powers of the Attorney General are strictly defined by Constitution and statute.See footnote 7
This Court does not have the right to create powers which, based
upon constitutional and legislative history, were never intended.
Both the statute and the legislature have limited the Attorney
General's power in cases involving state contracts.See footnote 8
The oath of office for State officials requires that
government officials swear or affirm to uphold the Constitutions of
the United States and West Virginia. The Preamble to the West
Virginia Constitution seeks to "promote, preserve and perpetuate
good government" in the State of West Virginia for the common
welfare, freedom and security of its citizens. However, contrary
to the Attorney General's assertion, the constitutional intent to
promote good government does not grant the Attorney General the
power or duty to investigate or prosecute potential illegalities in
a contract. We conclude that neither the West Virginia
Constitution nor the oath of office grants any additional powers
which would contradict the statute or the legislature's refusal to
grant the Attorney General any authority to prosecute or
investigate alleged illegality in contracts which come before him.
Consequently, our Constitution and statutes limit the
power of the Attorney General to seek out possible wrongdoing in
State government. This may be a flaw in our system of government,
although it is not this Court's place to make that determination.
Nevertheless, it is a fact, and the Attorney General should not be
criticized if and when such conditions exist and he is unable to
act because of his limited powers. It is unfortunate that it must
be the federal prosecutor who is called upon when it is necessary
to investigate and prosecute wrongdoing in State government, when
State and county agencies exist which certainly have similar
powers, but refuse to, or do not, act. Certainly, the Attorney
General does not fall into that category, because he is without
power to act in such situations.
In order for a petition for a writ of mandamus to be
upheld, three requirements must first be met. The relator must
show "(1) a clear right to the relief sought; (2) a legal duty on
the part of the respondent to do the thing relator seeks; and (3)
the absence of another adequate remedy." Syl. pt. 2, in part,
Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981).
In this case, the petitioner has shown a clear right to
the relief sought and a legal duty on the part of the Attorney
General. Although it is argued that the mandamus was premature
because another adequate remedy exists in the Purchasing Division's
ability to reject the contract at any time, we find the Department
of Administration's role to be largely irrelevant in discussing the
ripeness of the mandamus order. While part of the mandamus order
is addressed to Mr. Polan and Mr. Riley, the main focus of the
mandamus and this opinion is aimed at the Attorney General. Thus,
it is the Attorney General's legal duties and other remedies with
respect to the Attorney General which are at issue. Here, the only
way to get the contract approved by the Attorney General's office
was to require, as did the June 14, 1993, mandamus order of the
Circuit Court of Kanawha County, that the Attorney General approve
the contract as to form and send it back to Purchasing.
Purchasing's official duties continue once the contract is back in
their hands. Until that time, Purchasing's ability to reject the
contract is irrelevant to the Attorney General's duty to approve
the contract as to form. Therefore, we disagree with the assertion
that this mandamus action is premature.
That said, we now focus our attention on the Department
of Administration. Although the majority of this opinion is
devoted to the Attorney General, the Department of Administration
is not innocent in this scenario. Under W.Va. Code § 5A-3-10 and
11, the Department of Administration is in charge of the bidding
process and is duty bound to see the process is performed according
to statute. The delegation of their obligation to control the
bidding process to the agency, the Lottery Commission in this case,
is nothing short of a dereliction of duty. It is no wonder that
possible corruption occurs when the chief watchdog of the State
contract process does nothing but rubber stamp the agency's
preference. Granted, the agency's opinion is important and should
be solicited, but the agency should not run the process. However,
during oral argument, counsel for Purchasing informed the Court
that the lax procedures in effect at the time of the 1991 and 1993
contracts had been corrected and that Purchasing would strictly
adhere to the statutory bidding process. We trust that is so, and
that Purchasing will continue to do so in the future. After all,
that is the purpose for their existence.
In order to remain within the statutory and
constitutional requirements, the Attorney General must follow only
a few simple steps. If the Attorney General has a reasonable
belief that a problem exists regarding the form of a contract, the
contract should be returned to Purchasing with the problems noted
in writing for the Purchasing Division to review. If there is no
problem with the form of the contract, as defined above, it
must be approved and returned to Purchasing. If the Attorney
General notices something that he believes to be illegal or
improper outside the contract instrument itself, then he can notify
Purchasing, in writing, of what he believes to be illegal, or
notify the Prosecuting Attorney of Kanawha County of his concerns.
He still must sign that contract if nothing is wrong with the form,
as form is defined in this opinion.
The Attorney General is not being required to approve an
illegal contract. The Attorney General approves only what he has
a duty to review -- the technical correctness of the contract. The
term "form," as used in W.Va. Code § 5A-3-13, means the legality of
all the matters contained in the contract document as it relates to
the Constitution, statutes, and the contract law of this State.
The term "form" does not include any matters extrinsic to the
actual contract. He has no power to approve or disapprove anything
else in the contract, and consequently, he is not approving an
The act of approving contracts as to form must be
performed within a reasonable amount of time from the date the
Attorney General receives the contract from the Department of
Administration. It is hoped that this act of approval will be done
promptly in the future so as not to require the Court to set a time
limit within which the Attorney General must act. State government
should not be delayed because of arbitrary acts of any government
In summary, we conclude that the West Virginia
Constitution and the statute grants the Attorney General the duty
to approve a contract as to form only. He has no authority to
withhold approval if the contract as presented to him on its face
-- within the boundaries of the contract document -- does not
violate the Constitution or the laws of this State. If a contract
meets the definition of form as set forth above, then he is
required by statute to approve the contract, regardless of any
perceived wrongful acts. The Attorney General may list perceived
illegalities, in writing, for Purchasing or the Prosecuting
Attorney to deal with once the contract is returned to Purchasing.
The Attorney General cannot hold a contract in his office awaiting
the outcome of a trial, investigation, or other proceedings. He
has no investigative powers in connection with the contract. The
Attorney General cannot sue on the contract on behalf of the State
unless otherwise authorized by statute.
In this case, the Attorney General must send the Fahlgren
Martin, Inc., contract, approved as to form, back to the Purchasing
Division, if he has not already done so, and Purchasing must also
approve the contract. We affirm the June 14, 1993, order of the
Circuit Court of Kanawha County in toto. We do not address the
issue of whether Purchasing has the authority, as it asserts, to
cancel a contract at any time after it has performed the duties
outlined by the mandamus order. Once Purchasing performs the duty
set forth in the peremptory writ, it may proceed as it sees fit.
That question was not before the Kanawha County Circuit Court and
is not properly before this Court.See footnote 9
Accordingly, we affirm the Circuit Court of Kanawha County's June 14, 1993, order granting the writ of mandamus.
Footnote: 1Respondents Chuck Polan, Secretary of the Department of Administration, and Ron Riley, Director of Purchasing, did not appeal even though the peremptory writ of mandamus was awarded against them as well. When this matter first came on for argument before this Court, we ordered that Mr. Polan and Mr. Riley make a written response to the appealed order. A second argument date was set on November 4, 1993, to give Mr. Polan and Mr. Riley an opportunity to respond.
Footnote: 2There are special regulations for boards of education and contracts for school buses and the purchase of products from nonprofit workshops.
Footnote: 3This case is somewhat different. Determining a winning advertising agency is more subjective in nature and less amenable to merely determining the lowest bid. However, the same procedure should be followed with the winning bid being awarded to the lowest responsible bidder based on low price, quality, services provided, manpower, etc.
Footnote: 4West Virginia Code § 5A-3-14 states that a copy of all purchase orders shall be transmitted to the Director of the Finance Division so that the proper account could be encumbered before it was sent to the vendors. Except in emergencies, the Code provides that the contract or order should not be awarded until it had been certified to the director by the secretary or director of the budget that the unencumbered balance in the appropriation was sufficient to pay for the cost of the contract. In this case, the money comes from Lottery proceeds, and sufficient funds remain to pay for the contract.
Footnote: 5Article 4, § 5 of the West Virginia Constitution sets forth the oath of every person elected or appointed to office in this State. "Every person elected or appointed to any office, before proceeding to exercise the authority, or discharge the duties thereof, shall make oath or affirmation that he will support the Constitution of the United States and the Constitution of this State, and that he will faithfully discharge the duties of his said office to the best of his skill and judgment; and no other oath, declaration, or test shall be required as a qualification, unless herein otherwise provided."
Footnote: 6From 1990 to 1993, the legislature examined bills which would expand the power and authority of the Attorney General. These bills, however, were left to die in committee and no action has ever been taken which would grant the Attorney General prosecutorial powers. See H.B. 4582 (1990); H.B. 2497 (1991); H.B. 4165 (1992); H.B. 2766 (1993).
Footnote: 7In Manchin, the Attorney General asserted that he was the "chief law officer of the State." The Court disagreed, determining that the Attorney General had no legislative mandate as a "law enforcement officer." Instead, the Court stated that "[i]n this context the Attorney General is more properly designated as the chief legal officer of the state, with the law as his area of special expertise. The Attorney General, as a complement to the Governor, is the chief 'law-trained' officer of the state . . . . By the nature of his office, he is the general lawyer for the state, an office which he could not hold if he did not have the proper legal qualifications and were not admitted to the bar." Id. at 917. The Governor was designated as the chief law officer of the State. This Court's decision in Manchin reflects the legislature's intent to limit the power of the Attorney General to that of the State's lawyer, rather than the State's law enforcement officer. Likewise, Manchin emphasizes that the Attorney General's office is not intended to "sniff out" illegality and enforce the
Footnote: 8We do not address the Attorney General's authority in cases involving antitrust allegations, which is provided for by statute.
Footnote: 9Lest the Attorney General's office cry foul and claim we are pushing through a tainted contract, we point out that at no point in this process has any evidence been presented to show that the 1993 contract was based upon a wrongful act. Unlike the 1991 contract, there is no evidence that the ratings process was tampered with by any Lottery employee. Vague, unspecified allegations do not a criminal act make. If the Attorney General has evidence of a wrongful act, it should be referred, in writing, to Purchasing or to the Kanawha County Prosecutor to be dealt with as needed. Further, we assume that the form of that contract is technically correct, because otherwise this Court is confident that Attorney General McGraw would have brought it to the attention of