10 Things You Need to Know if W.Va. Government Shuts Down

Jun 13, 2017

Auditor McCuskey says the letter of the law conflicts with his duty to protect West Virginians in a government shutdown
Credit WVSAO

With just days until the end of the fiscal year and no budget agreement, there’s a real possibility of a government shutdown in West Virginia.

We asked the man who pays the bills, state Auditor J.B. McCuskey, 10 questions about what he’s doing to prevent a total disaster if state government shuts down.

1.       Who gets hurt?

“Everybody. The whole state. Every one of its citizens. Every state employee. People that do business with the state,” McCuskey said.

“It would be catastrophic. We’re going to be as ready as we can be, but the end result is pain. We just can’t let it happen.”

2.       What’s at stake for McCuskey legally and personally?

The state Auditor has personal and criminal liability for how money is spent. And if there’s no budget signed by July 1, he has no document authorizing funds to be spent.

‘How do I fulfill my duties as I believe them in my oath of office – to protect the health, safety and welfare of the state and its people -- while also potentially breaking the law by paying bills without appropriations?” McCuskey said.

3.       What role would the courts play in figuring this out?

McCuskey said it is likely he would go to the Kanawha Circuit Court for guidance, if a shutdown looks imminent. He thinks a judge would tell him to keep some critical functions of government going, such as public safety and debt payment.

“The case law throughout the country in these situations indicates the financial officer in charge of making these payments has the ability to continue the financial well-being of the government,” he said.

4.       Who would he choose to pay?

“There needs to be an overarching theory as to what needs to get paid. Then we need to figure out how to do it,” he said.

“I’m not 100 percent sure it’s even logistically possible. We’re running through these scenarios in my office right now. It would be a Herculean task.”

5.       What’s the real deadline for a budget?

He said the drop dead date to receive a budget from the Legislature is not June 30 – it’s June 19 "to make sure it's checked properly and done legally."

There may be a little wiggle room there, but bad things start to happen if the budget is not passed, or at least largely agreed upon, by West Virginia Day (June 20.)

6.       What would happen if the Legislature passes a furlough bill?

A lot of the confusion goes away for McCuskey.  

“I would prefer that. The easiest for me would be to do what the legislature to tell me what to do, because that’s what I believe their role is,” he said.

The House version of the furlough bill appears to provide for back pay of furloughed employees. The Senate version appears not to. Both sides would have to come to a compromise and get the Governor to sign it.

7.       What happens to PEIA (health insurance for public employees) if there’s a shutdown?

“My presumption is, in the absence of a furlough bill, PEIA will continue benefits to everyone, but discontinue payments to vendors,” he said.

In other words, patients keep their insurance. Providers have to wait.

8.       Would state workers really be laid off if there is no furlough bill? Would they lose accrued benefits?

“I don’t think they would have to. Probably, the black letter of the law says they should, but I’m not 100 percent sure they’re laid off,” he said.

9.       Is this the political equivalent of jury nullification – where the letter of the law says one thing, but people choose to ignore it?

“The letter of the law was not intended to work in a shutdown scenario,” he said.

10.   How’d we get into this mess?

McCuskey said the number of state employees (including higher education) grew even as the number of state residents shrank. With the collapse of coal and natural gas severance taxes, we no longer have enough money to support the current size of government.

Welcome to “The Front Porch,” where we tackle the tough issues facing Appalachia the same way you talk with your friends on the porch.

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