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EXHIBIT

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August 6, 2018

John B. McCuskey, State Auditor
State Capitol, Building 1, Suite W-100
1900 Kanawha Boulevard,
Charleston,

Dear

Mr.

East

WV 25305
Purchase of meals by Supreme Court

Re:

McCuskey:

Thank you for your letter
Supreme Court of Appeals'

of July 26, 2018, outlining

use of a state purchasing

the position

of your office concerning

card to pay for working

We are aware of the Advisory
subject, which, although

instructive,

W. Va. Const., art. Vllli 93 establishes
judiciary.

Opinions

issued by the West Virginia

do not apply to the judicial
the Court's

power

(1998): "Not
administrative

only

does our Constitution

business, but it is a fortiori

explicitly

to control

See also Syllabus Point 2, State ex rel. Lambert

S.E.2d 891 (1997).

This latter

properly

submitted

Commission.

for resolution

The JIC conciuded

Judicial Conduct.

You employed

to the Judicial Investigation

that "there

is no probable

and effectively

disagree with

above, the Court has both express and implied
that determination

as to the judicial

JIC, that the expenditure
there is a commensurate

personal

policy

meals during

authority

the control

v. Stephens,

over

its own

in order to maintain
200 W. Va. 802, 490

issue concerning

the

Court was

not the West Virginia

utilized

docket

that "members

branch of government,

with

Commission,

on argument

your statement

Court may not use public funds to purchase

lunches"

business of the

cause to believe that you violated

an already well-established

make the Court run more efficiently
days."
We respectfully

is why the "working

on the

In this regard,

203 W. Va. 275, 507 S.E.2d 376

must have such control

its independence."

factor

Ethics Commission

the administrative

vest the judiciary

that the judiciary

the course of a day, for

branch of government.

See, e.g., Syllabus Point 1, State ex rel. Farley v. Spaulding,

the

lunches for the Justices and

their staff members on days when the Justices worked together throughout
example, argument docket days and administrative
conference days.

and employees
a non-travel

under the West Virginia

conference

of the Supreme

workday."
Constitution

subject to the limitation,

of public funds must be "consistent with [the Court's]
benefit to the governmental
body and to the public."'

Ethics

the Code of

by other State agencies to

and administrative

""'

4

As noted
to make

as set forth

by the

public mission and where

s

 Page Two
August

2, 2018

Letter:

John

B. McCuskey,

State

Auditor

We also respectfully disagree with your statement that the Court's use of a p-card to purchase
working lunches is "contrary to the policies and procedures of the purchasing card program,
and
generally prohibited under law." None of the Advisory Opinions noted above support this sweeping
conclusion; indeed, none of the opinions cited in your letter even mention the p-card issue. Further,
nothing in the p-card regulations supports the conclusion that a card cannot be used to purchase
a
working lunch. Finally, the use of a p-card in these circumstances furthers the important goal of
transparency, as the paperwork submitted for the purchase of working lunches contains not only a copy
of the invoice but also the name of every individual who received a lunch. In short, there is and was
nothing secret about the Court's working lunches.
As you probably know from the media reports to which you allude in your letter, the issue of
working lunches is now moot, inasmuch as the Court has ceased the practice. However, we appreciate
your offer to work cooperatively with us on other issues as they arise, and will most certainly take you
up on that.

Please feel

With

kindest

free

to contact

regards,

me

if you have any questions

or concerns.

I remain

Very Truly

Barbara
Interim

Yours,

H. Allen
Administrative

Director

BHA/mg
cc:

Margaret
Robin

L. Workman,

Jean Davis, Justice

Elizabeth
Teresa

ChiefJustice

D. Walker,

Tarr,

Justice

Esq., Judicial

Investigation

Commission

In this regard, in Advisory Opinion 2012-27, the Ethics Commission concluded that a state licensing board could
purchase meals for members and staff "who are required to be present at the meetin@ as part of their job duties,
when the meal is provided for the benefit of the Board, i.e., to accomplish its work." Furthe5 in Advisory Opinion
2018-02, the Commission reviewed (and in some cases distinguishes) a number of its prior opinions and stated,
inter alia, that "[tlhe decision to purchase the meal must be based upon a legitimate government reason, i.e., that
the agency is having a working lunch or dinner in order that agency business may be conducted most efficiently
and effectively."