Exclusive: Jackson County got $3.2M for 91 employees. 10% went to lawyers. We asked why.

The Jackson County Commission meets every Wednesday at 9 a.m. in the courthouse.

When Jackson County received $3.2 million in CARES ACT money to help with payroll, a local law firm received $324,190 as part of their cut.

Jackson County Commission had already approved this money at their Dec. 9 meeting, where the Law Offices Harris and Holmes, operated by Kevin C. Harris and Eric J. Holmes, negotiated a 10 percent commission off the total amount of money the county received for their services in helping the county secure CARES Act funds.

That agreement prompted a concerned resident to leave an anonymous tip for the West Virginia State Auditor’s Office, which began taking a closer look into the money involved.

As the coronavirus pandemic continued nationwide, the U.S. Department of Treasury allocated $150 billion to help state, local and tribal governments across the country cover expenses.

Through the Coronavirus Aid, Relief and Economic Security Act, which is also known as the CARES Act, West Virginia received $1.25 billion. These funds were meant to cover public health emergency expenses, money that wasn’t accounted for in budgets approved prior to March 27, 2020, and any other expenses incurred after March 1, 2020.

In West Virginia, applying for the grant involved an online portal where applicants answered 35 questions related to costs involving payroll, emergency medical care, medical sheltering and COVID-19 compliance measures. 

In records submitted to the state, Jackson County requested over $3.2 million to cover the county’s payroll for 91 employees which included overtime. On Dec. 16, the Jackson County Commission submitted a revised budget plan to the auditor’s office to increase money in its general fund by $984,173.

Dick Waybright, president of the Jackson County Commission, said once the funds went toward payroll, the remaining monies were set aside for the EMS, 911 and the Jackson County Sheriff’s Office.

Jeff Waybright, senior deputy state auditor, who has no relation to Dick Waybright, said the CARES Act funding could have gone toward whatever the county wanted, within reason.

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Anthony Woods, deputy state auditor, said the county had to meet certain criteria to have payroll reimbursed. “Those folks had to be substantially dedicated to responding to COVID-19," Woods said.  

Once the funds were in, the county clerk wrote checks to reimburse payroll expenses to the departments affected by the pandemic. 

When the money was made available, Jackson County Clerk Cheryl Bright wrote checks allotting $369,477 for the 911 fund, $1,564,059 for the EMS fund, $984,173 for the general county fund and $324.190 for the Law Offices of Harris & Holmes, PLLC. 

While the auditor’s office found no wrongdoing after launching an “unofficial investigation,” they still questioned whether the decision to allocate a large portion of public funds to a private local law firm was ethical. 

HOW THE DEAL WAS STRUCK 

It’s unknown when exactly conversations between the law firm and the commission began. Emails between Holmes and the county date back to Nov. 25, 2020, where he tells a county employee that he is working to get funding for law enforcement, EMS and 911.

Records also show that City of Ripley Clerk Tom Armstead had emailed state officials on Dec. 1, 2020, confirming that Jackson County had submitted its CARES Act application.

Dick Waybright said he couldn’t remember if the discussion for the law firm to handle the funding started with “side talk” or during a commission meeting.

Harris and Holmes didn’t speak directly to reporters for this story, but pointed the newspaper to their attorney Ancil Ramey, who spoke on their behalf.

Ramey said discussions would have begun prior to Dec. 9, 2020, about retaining the law firm to handle the grants.

“Obviously there would have been discussions regarding the terms of representation prior to execution of the contract. There has to be, otherwise you don’t know what to put in the contract. So, there is nothing unusual about that,” Ramey said. 

He didn’t know how long the law firm and the county commission had worked on negotiating a price, but Dick Waybright said the law firm asked for a 10 percent commission and the commission agreed. 

Dick Waybright also confirmed that the project for someone to file the CARES funding wasn’t bid out. 

“We just didn’t have anybody to do it this time,” Dick Waybright said. “[Holmes] just mentioned that they could do it and so we decided to go with them to get it done real quick because we were running out of time.” 

It was already December, and the application deadline was set for the end of the month. 

The funds were approved Dec. 9, 2020. The county commission and law firm signed off on a contract that very day and it was also announced at the commission meeting. 

But, when the letter of approval of arrived, it was addressed to the Jackson County Commission and Tom Armstead, who is not a county employee. 

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According to documents from the auditor’s office, Armstead had exchanged emails with state officials Dec. 1, 2020, notifying them that Jackson County’s application had been submitted. 

At the time, Armstead worked as a clerk and treasurer for the City of Ripley where he had helped secure $700,000 in CARES Act funding. 

Ripley City Council voted to gift Armstead $5,000 as an “appreciation bonus” on Dec. 15, 2020, which came out of the city’s general fund, Ripley City Mayor Carolyn Rader confirmed.

“I don’t do it for praise. I just do it for the city and it’s an honor to work for you,” Armstead said at the meeting.

Armstead said he worked on his own to gather information and submit between eight and 10 applications for the city.  He said he was swamped toward the end of 2020 working on the applications. 

Rader said it was common for Tom Armstead, the city clerk and treasurer, to work on a Saturday because he couldn’t get all the COVID-19 funding applications out during the week. And it wasn’t the first time the city had given an employee a bonus. 

“I think if they do something over and beyond their job description, and the time involved, that sometimes we will give that [bonus],” she said.

Armstead was emailed a list of questions clarifying his role in the grant process with the county but did not respond.

Dick Waybright said he doesn't know why the approval letter for the county's CARES funding was addressed to Armstead or his involvement in the county's COVID money. 

Armstead wasn't paid by the county, Dick Waybright said, to help with COVID funding. 

When asked about Holmes' role with the county, Waybright said he isn't a Jackson County employee. 

"Harris & Holmes PLLC is a private firm and none of their attorneys are employees of the county," Dick Waybright said in an email. "It is paid by invoices using an hourly rate where the representation involves no contingencies as to monetary recovery, but also represents the county in certain instances where there are contingencies as to a monetary recovery."

Ramey was asked to clarify whether Armstead had worked with Harris and Holmes on the grant application, he did not. 

“Mr. Armstead has not been employed by Harris & Holmes nor has he individually served as an independent contractor for Harris & Holmes. Mr. Armstead was not paid anything by Harris & Holmes,” Ramey said. 

He added that the law firm is the entity that prepared the grant documents submitted to the state. 

“As to Mr. Armstead’s role in that project, I have absolutely no idea,” Ramey said. 

Because the Law Offices of Harris & Holmes were hired on a contingency basis, they didn’t maintain time records but did devote “dozens of hours to the project.”  

“Time records weren’t maintained and wouldn’t be maintained in a contingency arrangement like this,” Ramey said. 

He wouldn’t disclose whether the law firm had done similar work around the state with other cities or counties.

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Reporters also asked Harris to clarify his role with the city, as he had been referred to as the city attorney by various officials.

Ripley City Mayor Carolyn Rader said the city pays Harris a monthly salary for his attorney services but was unsure whether the paychecks were made out specifically to Harris or the Law Office of Harris & Holmes. Rader said if Harris is unavailable for a legal counsel, she reaches out to Holmes for services, who serves as the Jackson County attorney.

Ramey, attorney for both Harris and Holmes, said his clients are private attorneys and are not employees of either city or county and do a “considerable amount of work on a contingency basis” as they did to secure CARES Act funding. 

“It is common for lawyers and law firms to represent governmental entities on an hourly basis where the representation involves no contingencies as to any monetary recovery, but also represent those same entities on a contingency basis where there are contingencies as to a monetary recovery,” he said. “The assertion by anyone that a lawyer’s representation of a local government on a contingency basis in a matter in which monetary recovery is uncertain is somehow illegal or unethical is false and, in my judgment, defamatory.”

Ramey said neither of his clients are employees of the city or county and Harris is neither a city employee nor is Holmes a county employee. They do not receive a salary and are not paid a retainer. They are paid on an hourly basis for their work. 

THE ETHICS OF THE FUNDS 

While the state auditor’s office found no evidence of wrongdoing, they questioned the ethics of the law firm.

Woods, the deputy state auditor, said the investigation was unofficial because no criminal activity was detected.

“Being paid that amount of money to do such a simple application doesn’t seem to do the citizens of that county a service,” Woods said. “It seems a little bit high for what they were doing, and it just seems like the best interest of the county might not have been in their minds.” 

According to the American Bar Association, a lawyer may not “charge, or collect an unreasonable fee.” 

Joshua Weishert, who is a law professor at West Virginia State University, said lawyers have ethical duties for how much they charge a client. 

“You can contractually agree to any fee, and that contract will hold up in court,” he said. “But in terms of your ethical responsibilities as a lawyer, that fee has to be reasonable.” 

But what is considered reasonable?

“That is more ambiguous,” he said, and there isn’t a set of factors that a court or ethical board would consider to what is or isn’t a reasonable fee, but it requires close review. 

“But you have an ethical duty to charge a reasonable fee regardless of what your client is willing to pay,” he said.

Ramey said the contingency fee contract between the county commission and the law firm did not violate any law, code of conduct or ethical rules. 

“Under the rules that are applicable to lawyers in West Virginia, the rules of professional conduct, that this was an appropriate contingency fee, and it certainly is my opinion that the amount of the fee was not unreasonable under the circumstances given the time constraints under which the lawyers were operating and the contingent nature of there being any recovery,” he said. “It sounds to me as if somebody’s got a political ax to grind.” 

Dick Waybright said in an email that he thought the law firm’s fee was “in line with other professional service fees” because of the tight deadline. 

GETTING THE DOCUMENTS

When USA TODAY Network reporters became aware of the state auditor’s unofficial investigation, the team reached out to Jackson County Commission, City of Ripley and The Law Offices of Harris & Holmes with questions. 

Early May, reporters requested agenda and meeting minutes dated from December 2020 through May 2021 from the Jackson County Commission and were informed they’d arrive via email. They eventually arrived three months after the request was made.

Several counties in West Virginia have commission meeting minutes and agendas available online.

Under the West Virginia Freedom of Information Act, custodians of public record are given no more than five days to provide information from a FOIA request or deny the request.

On May 24, reporters sent a FOIA request to Jackson County to obtain copies of the commission’s agendas, email exchanges involving the law firm, CARES Act, city contracts and other information relevant to the investigation. A similar FOIA was sent to the City of Ripley.

But officials from both Jackson County and the City of Ripley stalled in providing relevant information.

At Jackson County, Administrative Assistant Julia Gump acknowledged the request, but an update came two months later, and Gump told reporters that the commission’s office was working on the FOIA request but had no time estimate on when it would be completed.

On July 26, Jackson Newspapers tried accessing the meeting minutes in the county clerk’s office where they were charging $1.50 for the first two pages of documents and $1 for additional pages. The price is determined in West Virginia code 59-1-10, Jackson County clerk Cheryl Bright told the reporter. 

To print and leave with the public records would have cost $123. 

After the difficulties accessing the public records, the state’s auditor’s office provided documents at no cost to Jackson Newspapers that gave more insight into how the county distributed its CARES Act funds.

Regarding the request sent to the City of Ripley, a person at the front desk official told reporters the FOIA request was sent to Mayor Rader.

When contacted on July 26, Rader left a voicemail saying she never received a FOIA request, but upon returning her call, she apologized and said the FOIA request was in her junk mail and that she had sent the request to her city attorney, Kevin Harris, who has already acknowledged the FOIA request on May 28.

On July 26, a second FOIA request was sent to the City of Ripley for records of payment from the City to Harris for his services. Harris responded to the FOIA request stating that payments from the City of Ripley to himself “do not exist and therefore cannot be provided.” 

The response was on a Harris & Holmes letterhead. When reporters asked Harris to clarify his relationship with the city as an attorney, the relationship between the firm and the city and why the FOIA request came from the firm’s letterhead and not from the City of Ripley attorney, he responded on Aug. 6, stating he interpreted the reporter’s request for clarification as a FOIA request instead of a list of general questions.

He responded again on Aug. 9 regarding the FOIA request from May 24. Harris and said he was working on providing the information requested on May 24 and that some information may be redacted or withheld due to attorney-client confidentiality. 

On Aug. 10, Harris provided documents pertaining to Armstead’s pay from the City of Ripley which showed hid pay, the $5,000 bonus he was gifted at the city council meeting and $1,000 for Nov. 25.

Rader said the $1,000 was for an employee incentive that everyone who works for the city received before Christmas.

On Aug. 12, reporters received Jackson County Commission agenda items from November 2020 through March 2021, a breakdown of how CARES Act funds were spent and a copy of the attorney-client employment contract between the county commission and law firm about the grant applications. 

In the letter, Holmes said there were no pay stubs between him and the Jackson County Commission and no contracts between the City of Ripley clerk and the county. 

Don Smith, the executive director of the West Virginia Press Association, believes the county may be citing the state code incorrectly.  

“I have never seen anyone have to FOIA to get meeting agendas and minutes,” Smith said.

Smith said he was saddened and shocked by the county’s response to Jackson Newspaper’s requests for the county commission meeting minutes and agendas. He said the West Virginia Press Association has “fought” to get agendas before meetings but never after.

“Those are two of the most public of records and, by their design, are meant for the public to have access,” Smith said. “To charge a fee and withhold the information goes against open and transparent government.”

Smith said he’s seen elected officials in West Virginia and across the country make it difficult for people to obtain public records. This can be done by charging fees and lengthy request processes.

When it comes to officials responding to FOIA requests past the five-day deadline in the state, Smith said it’s complicated.

“The five-day period is for a response to the request, not necessarily to provide the material. Reporters want the material in five days, not a response,” he said. “Elected officials often work to gather the material before responding and go over five days with no ill intent, though they are in violation. And then there are elected officials who don't want to answer the request and try to 'chill' all inquiries by not answering.” 

Editor's note: This story has been updated to correctly reflect that the commission meeting minutes and agendas were shared three months after the FOIA request was submitted.