By Matthew Young, RealWV
CHARLESTON, W.Va. – The legality of Governor Jim Justice’s use of millions in coronavirus relief funding came into question on Friday as members of the Senate Finance Committee met to hear testimony from various state leaders familiar with the matter.
Committee Chairman, Sen. Eric Tarr, R-Putnam, began the hearing by stating: “I’ve been receiving a lot of questions at the finance office that bears answering,” as he referenced the transfer of $28 million of CARES Act coronavirus relief money into Gov. Jim Justice’s Gifts, Grants, and Donations (GGD) Fund.
Tarr stated that $3.8 million, of the $28 million transfer, was set aside for a renovation project performed on Marshall University’s baseball field. He expressed concern this was a potential inappropriate use of CARES Act funding, saying, “That’s something this committee needs to get to the bottom of.”
J. Berkeley Bentley, general counsel to Gov. Justice, was the first to provide testimony.
According to Bentley, there was limited federal direction regarding the allocation of coronavirus relief funding (CRF), and Justice was well within his authority to transfer the monies into the GGD fund.
“The amounts in the gifts and grants fund lawfully and appropriately can be used for such economic development projects,” Bentley told the committee. “He (Justice) directed that that be done.”
Bentley explained that the period of time when state governments were eligible to spend CRF funds was from March 1, 2020 through Dec. 31, 2021, noting that West Virginia did not receive its initial allocation of CRF funding until April 16, 2020.
“The (CARES) act clearly contemplates reimbursement of expenses incurred during the initial phase,” Bentley said, referring to the period of time between March 1 and April 16, 2020.
Bentley further explained that regardless of what particular government fund the monies were transferred to, the transfer itself was a federally allowable reimbursement of coronavirus-related expenses incurred by the state.
“Without that (allowance for reimbursement), the (CARES) act itself would be rendered meaningless,” Bentley added. “The transfer was handled completely legally and completely appropriately.”
Tarr, who was seemingly unsatisfied with Bentley’s explanation, said, “The governor put this ($28 million of CRF funds) into a discretionary account (GGD) and used it to put astroturf on a baseball field. What part of that is appropriate?”
“The [GGD] fund is available for any number of lawful purposes,” Bentley replied.
However, W.Va. State Auditor John “JB” McCuskey, who testified after Bentley, stated that the Governor’s request to transfer $28 million to the GGD fund was “not usual.”
“Our office processes thousands of transfer requests per week,” McCuskey said. “But this was a large number, and I was unfamiliar with the fund prior to that request. So we asked for a legal and an accounting opinion – which we received [from the governor’s office].”
McCuskey added that after a thorough review of those opinions, his determination was that the Auditor’s office could not supplant the legal opinions provided by the Governor’s office “as long as there is a rational basis for them.”
“We decided, at the end of the day, to make sure we effectuated what the governor’s office wanted, but to keep a record and an accounting of what happened and why,” McCuskey noted.
Sen. Randy Smith, R-Tucker, told McCuskey, “I hate to say it, but a lot of this looks like a campaign,” before asking if the funds transfer is in any way an ethical violation.
“That would be a question for the Commissioner of the Ethics Commission,” McCuskey replied, prompting Smith to follow with: “Doesn’t the governor appoint the head of the Ethics Commission?”
“In so far as why I’m here, our office’s role is to ensure that there is an accounting of what happened so that people in rooms like this can go back and be sure that what happened was correct,” McCuskey said. “We were provided with very expensive legal counsel and guidance from the governor’s office on something that we saw to be a little strange, and I feel that this is the way the process is supposed to play out.”
“But I can’t answer your question on the ethics side,” McCuskey concluded.
In total, Friday’s hearing lasted well over four hours without resolution. RealWV will provide continual updates of this situation as additional details become available.