Gov. Jim Justice may fly in the state plane from his home in Lewisburg to destinations other than Charleston to participate in official business, and while in those locations, may take part in campaign activities before making the return flight home, the West Virginia Ethics Commission determined Thursday.
In an advisory opinion unanimously approved by the commission, the governor has to meet several criteria to assure his travel does not violate the Ethics Act’s prohibition against using public office for private gain.
- The primary purpose of the trip must be bona fide state business.
- The official travel cannot be a pretext for participating in campaign or other non-state activities.
- Any costs incurred during the non-state portion of the trip, including meals, lodging or pilots’ pay during down time, must be paid by the source of the secondary, non-state business.
The commission stressed it was in no way addressing a current legal challenge before the state Supreme Court contending that, by living in Lewisburg, Justice is violating a requirement in the state constitution that the governor reside at the seat of state government.
However, Justice’s residency was at the heart of the advisory opinion, since the state plane is generally hangared at Yeager Airport, in Charleston.
“Some days, he’s here for a couple of days; some days, he’s there for a couple of days,” Brian Abraham, general counsel to the governor, told the commission. “That was the purpose of this inquiry — if he happens to be in Lewisburg, and the plane needs to pick him up there, is that permissible?”
Abraham stressed that Justice has never sought permission to commute between Lewisburg and Charleston on the state plane, a commute he makes frequently, driving himself in his personal SUV.
Commissioner Larry Tweel, a Huntington attorney, suggested Justice should request a second advisory opinion on whether it is permissible to fly the state plane between Charleston and Lewisburg to pick up or drop off the governor.
“The issue, as I see it, is whether or not it is proper to fly the airplane from Charleston to Lewisburg on a regular basis, given that the [Governor’s Mansion] is in Charleston,” he said. “I would encourage counsel and the governor to ask our opinion on the concept of having the plane most frequently fly from Charleston to Lewisburg to pick up the governor to go to some other location.”
According to flight logs provided by the state Aviation Division, the state King Air plane made 13 trips to Lewisburg en route to or returning from other destinations for travel by Justice and/or first lady Cathy Justice in the past six months.
On nine occasions — Sept. 4, Sept. 6, Sept. 9, Sept. 15, Sept. 18, Oct. 9, Oct. 21, Nov. 8 and Nov. 20 — the plane flew from Charleston to Lewisburg the day before the scheduled day of travel, with no passengers listed on the flight logs.
On four other occasions — Oct. 23, Nov. 1, Jan. 28 and Feb. 15 — travel was completed in the same day, generally with the first leg of each trip being a flight from Charleston to Lewisburg, and the last leg of each trip being Lewisburg to Charleston.
There were two exceptions:
- A Nov. 11 trip to Parkersburg with Justice, intergovernmental affairs director Rebecca Blaine, and assistant to the governor Pam Rhodes originated in Charleston, then flew to Lewisburg on the return trip to drop off Justice before returning to Charleston.
On a Feb. 15 trip to Martinsburg, the flight originated in Charleston and stopped in Lewisburg to pick up Justice, but on the return trip, flew directly to Charleston without a stop in Lewisburg. That evening, the Greenbrier East girls basketball team, which Justice coaches, played at Parkersburg South High School.
Abraham argued that by approving of Justice’s travel to and from Lewisburg, the advisory opinion implicitly approves of flights between Charleston and Lewisburg to facilitate that travel.
Department of Administration Secretary Alan McVey, whose department oversees the state Aviation Division, told commissioners that while state aircraft are hangared in Charleston, they are frequently dispersed to other locations in the state. A gubernatorial flight departure from Charleston might well require flying the plane in from another location, he said.
Commission Chairman Robert Wolfe argued that, as chief executive, the governor should be given wide latitude when it comes to travel.
Wolfe said that, if Justice were in Lewisburg when a state of emergency was declared in Wheeling, it would be ridiculous to require him to drive to Charleston to board the state plane for the flight north.
Wolfe added the Legislature has authority to pass laws imposing further restrictions on gubernatorial travel if it believes governors are abusing their travel privileges.
In the request for an advisory opinion, attorneys for Justice stressed that he uses state aircraft much less frequently than his predecessors, flying an average of 1.59 times per month. By comparison, then-Gov. Joe Manchin used state aircraft 8.65 times a month, on average, during his tenure, they stated.
Since West Virginia law is silent on regulating gubernatorial travel, commission attorneys relied on precedents set in laws and ethics opinions in Kentucky, Oklahoma and New York in drafting their opinion. Kentucky law, they noted, prohibits use of state planes for personal travel, but specifically exempts the governor for security reasons.