One of the more interesting aspects of Gov. Jim Justice’s refusal to comply with the constitutional requirement that he (and other constitutional officers) reside at the seat of government is the argument that he and his defenders make, contending that advances in transportation and technology have made the mandate obsolete.
Conversely, one could argue that the Founding Fathers could not have anticipated that the single-shot muskets of their day would evolve into highly efficient weapons of war that could kill or maim dozens in a matter of seconds. Or that the citizen militias they depended on for defense in their time would evolve into the largest, best equipped, most heavily armed military force in the world.
Had they had that foresight, they might well have written the Second Amendment very differently, if at all. (The same foresight can’t be applied to the authors of the right to bear arms amendment to the West Virginia Constitution, which was adopted in 1986.)
Justice’s notion that he should be given the opportunity to pick and chose which parts of the state constitution should apply to him piqued my interest: What other parts of the constitution arguably have been rendered obsolete over time?
The first that comes to mind is Article 4-10, which prohibits state officials from fighting duels. That provision was pretty much already obsolete when the constitution was ratified in 1872, although I must say it would certainly make statehouse reporting much livelier if dueling came back in fashion.
Can you imagine if, instead of taking Justice to court over the residency issue, Delegate Isaac Sponaugle challenged him to a duel over the matter?
A quick run-through of the constitution uncovered a lot of constitutional provisions that are outdated or no longer applicable:
n Article 2-6: Treason is punishable by death. West Virginia abolished capital punishment in 1965.
n Article 4-11: Provisions for how additional territory may be admitted to the state. Can’t imagine that any of our neighboring states would be willing to cede property to us for the foreseeable future.
n Article 9-2: Provides for election of county constables, and appointment of county coroners and overseers of the poor. According to the West Virginia Encyclopedia, before the New Deal, overseers of the poor were in charge of county poor farms or poor houses, where the indigent, disabled and elderly were sent to live. Have to say, I’m somewhat surprised our current legislative leadership hasn’t resurrected the concept.
Meanwhile, a number of inactive provisions in the Constitution pertain to railroads.
Article 11-5 prohibits the Legislature from passing laws granting rights to construct and operate street railroads in cities or towns without the consent of the local authorities. (Presumably referring to streetcar lines that were commonplace in West Virginia cities through the 1930s.)
Article 11-9 gives the Legislature authority to set caps on fares for both passenger and freight service at “reasonable maximum rates.”
Given that Amtrak is getting ready to jack up business class fares on the Cardinal by 70 to 90 percent, this might be a good time to revisit that provision.
Most interestingly, Article 11-10 says the Legislature shall require railroads with track running through or within a half-mile of towns or villages with populations of 300 or more to build and operate railroad stations in those communities.
Amending the constitution is an arduous proposition, requiring passage of a Joint Resolution by two-thirds votes in both houses, followed by a ratification vote by state voters.
(Language prohibiting integrated public schools stayed in the constitution for four decades after Brown v. Board of Education, in part over fear that the state would suffer embarrassment if voters defeated an amendment to remove it. The amendment to repeal that and other archaic language from the constitution ultimately was adopted in 1994, passing by a 58-to-42 percent margin.)
However, if Justice and his supporters believe that the residency requirement is obsolete, instead of ignoring it, or fighting it in court, they should work to amend it out of the constitution. A constitution that Justice swore an oath to uphold, by the way.
Speaking of playing fast and loose with the rules, without fanfare on Monday, Justice appointed Transportation Secretary Byrd White to also serve as commissioner of the Division of Highways.
Under state law, that means a pay boost for Justice’s longtime friend and business associate, from $95,000 (the salary in Code for Transportation Secretary) to $120,000 (the pay scale in Code when the secretary also serves as commissioner of Highways).
However, as noted here previously, White does not meet the qualifications to be commissioner of Highways, spelled out in state Code 17-2A-2 as requiring that the commissioner “shall be a person who is experienced in highway planning, finance, construction, maintenance, management and supervision.”
White is an accountant and former country club manager. His only real experience with highways has been the on-the-job training he has received in the last six months as Transportation Secretary.
White, in turn, effectively demoted acting commissioner of Highways Jimmy Wriston to deputy commissioner of Highways, although an internal memorandum indicates he has delegated authority to Wriston to “carry out the powers, duties and responsibilities of the commissioner.”
While it looks like a demotion on paper, for Wriston, it avoids the sticky issue of having to take a pay cut, since by Code, the salary of the commissioner of Highways is set at $92,500.
That would put a crimp on Wriston who, according to the auditor’s office, has not made less than $100,000 a year in total compensation since 2011.
Wriston, who also works as a consulting engineer for the State Rail Authority, was paid $131,480 last year.
To recap, Justice has promoted a friend to a position for which he is not qualified under the law in order to get him a $25,000 pay raise, and taken steps to avoid making the person who is really doing the work of Highways commissioner take a rather substantial pay cut to comply with the law.
Did I leave anything out? Oh, state Code 17-2A-2 also requires that the commissioner of Highways “shall reside at and maintain his office headquarters at the state Capital.”
White lives in Beaver, Raleigh County, but that puts him about 56 miles closer to complying with the residency requirement than his boss.
Quote of the week: “Our July numbers didn’t come in very good, and August is going to maybe be halfway okay, but we’re still struggling.” – Gov. Justice, warning attendees of the West Virginia Chamber of Commerce’s Business Summit at The Greenbrier that the state’s economic rocketship ride is experiencing some turbulence, which he blamed on downturns in coal and natural gas markets.
July revenue collections weren’t just not very good, they were downright ugly, missing estimates by $33 million (-10 percent) and coming in below July 2018 numbers by $29 million (-9 percent). And that follows a June that also missed revenue estimates by $9 million.
Which begs the question, are three straight down months an anomaly, as Justice implied at The Greenbrier, or were the previous 14 months of revenue collections (mostly) outperforming expectations the anomaly?
That there have been no real systemic changes to the economy could be coming home to roost. We’ll be waiting on Senate Finance to release the August numbers this week.
Just a hunch, but I suspect that Senate inaction on the Manchin-Toomey bill could be the tipping point that convinces Sen. Joe Manchin that he is wasting his time in Washington, and to heed multiple calls to run for governor.
Finally, regarding last week’s column on my thoughts on ways to strengthen enforcement and application of the state Ethics Act, a reader called to ask whether it would be possible for groups to volunteer to assist the Ethics Commission staff with tabulation of the various financial and lobbyist spending disclosures.
I noted last week that, with a limited staff and budget, the commission has its hands full simply processing what are literally stacks of documents, giving them a cursory review, and putting them into some sort of order.
In theory, under the reader’s suggestion, volunteers could do the basic functions to tabulate the forms, giving commission staff time to more thoroughly review the documents for inaccuracies, omissions or failure to provide full disclosure of expenses or business interests.
Perhaps it could be a project for a political science or journalism class.
On the other hand, having volunteers in the commission offices could prove chaotic, and the old rule might apply that it takes twice as long to show a new person how to perform a task as it does to do it yourself.
At any rate, I relayed the proposal to Ethics Commission executive director Rebecca Stepto, who has taken it under advisement, saying she wanted to discuss it with commission staff. Stay tuned.