Government Story Archives - West Virginia Public Broadcasting

Huntington, Cabell File Appeal Argument In Case Against Opioid Distributors

Following Cabell County and Huntington’s loss of their opioid lawsuit, the localities appealed that decision. Now the state supreme court is involved, and the city and the county have filed a 40-page brief with the court – asking it to see things their way.

The localities didn’t lose for lack of evidence. They lost on a general disagreement on what qualifies as a “public nuisance.” The U.S. District Court for the Southern District of West Virginia had a narrow interpretation of what constitutes a public nuisance. This differed from what both the plaintiffs and other courts have considered to be a public nuisance.

When Huntington and Cabell appealed the case, the appellate court looked to the West Virginia Supreme Court of Appeals to answer this question: Can public nuisance laws be used to successfully sue drug distribution companies?

Huntington and Cabell argued in their brief that the answer to that question is yes. And there is plenty of case law cited to support that, including a statewide opioid lawsuit that was won on a nearly identical premise and legal standard. The brief also lists other smaller lawsuits against energy and lumber companies that successfully used a public nuisance charge.

In a 1997 case against Kermit Lumber, a public nuisance legal standard was successfully used by the state of West Virginia. The court said in its decision that the term “public nuisance” does not have an exact definition, generally it has been described as the doing of, or failure to do something, that adversely affects the safety, health or morals of the public, or creates a substantial annoyance, inconvenience or injury to the public.

“The federal district court opined that West Virginia law does not recognize a public nuisance claim based on the distribution of a controlled substance. Petitioners maintain that the district court erred in reaching that conclusion,” the brief said.

Cabell and Huntington say that the more than 81 million dosage units that flooded a community of around 100,000 people, and the drug epidemic that ensued, is the responsibility of three drug manufacturers — McKesson, AmerisourceBergen and Cardinal Health. Those three companies supplied 89 percent of the Oxycontin that was sent to Cabell County.

The localities say in the brief that the unreasonable opioid distribution practices that they say caused addiction, overdose deaths, infectious diseases, crime and decimated neighborhoods interfered with public health safety, property and resources.

The brief also outlined the detrimental effect the epidemic had on babies and pregnant women in the state.

“Thousands of babies — at times up to 10 percent of all newborns in Cabell/Huntington — have been born with neonatal abstinence syndrome due to pregnant mothers opioid use,” the brief said.

The brief also lays out facts around the drug manufacturer’s failure to properly monitor the distribution of highly addictive substances, including multiple instances when federal regulators intervened with the companies warning them of lack of oversight in distribution and even taking punitive action.

“In 2005, DEA met with respondents to convey the rising problem of opioid diversion and warned them that failing to maintain effective controls against diversion would create a crisis,” the brief said.

It goes on to say that respondents did not take action to combat an influx of pills headed to small, rural areas like West Virginia, but instead took actions that incentivized employees of the drug distribution companies to continue the trend.

“Respondents (Cardinal, McKesson, AmerisourceBergen) used sales employees to conduct due diligence even though respondents compensated those workers based on how many opioids they sold,” the brief said.

West Virginia Public Broadcasting has reached out to all three companies but did not hear back in time for publication. The three companies’ brief, which will argue why the narrow interpretation of a public nuisance by the fourth circuit court should be upheld, is scheduled to be filed May 20.

Ousted Commissioner Swaps Parties, Muddying Search For Successor

Days before a West Virginia circuit court removed her from office, former Jefferson County Commissioner Jennifer Krouse unexpectedly left the Republican Party behind.

Elected as a “staunch, God-fearing conservative” in 2022, Krouse swapped political affiliations in late April and registered with the Mountain Party — West Virginia’s progressive, environmentalist affiliate of the Green Party.

Now, county officials and party representatives alike are scratching their heads over how to fill Krouse’s vacancy, and what party her replacement must come from.

A last-minute switch

Two members of the Jefferson County Commission — Krouse and state auditor candidate Tricia Jackson — were removed from office by order of a West Virginia circuit court Wednesday.

The commissioners skipped seven consecutive meetings from September to November 2023, protesting efforts to fill a vacant commission seat with candidates Krouse previously said were not “actual conservatives.”

A panel of judges ruled that this weeks-long protest amounted to “official misconduct” or a “neglect of duty,” as their absence prevented the commission from meeting quorum and conducting business.

But about one week before the court’s decision, Krouse switched political affiliations.

Under current West Virginia law, county commissioners have 30 days to fill vacant seats by a simple commission vote. Their appointee must be “a person of the same political party” as the individual who held office “immediately preceding the vacancy.”

This year, the West Virginia Legislature passed a bill amending this law so that appointees must be members of the vacating officer’s party upon election. Lawmakers repeatedly cited contentions over vacancy proceedings in the Jefferson County Commission while updating the policy.

But the new law does not take effect until January 2025, and the earlier policy still remains in place. That means Krouse’s successor must be a member of her party upon removal from office — the Mountain Party.

The Jefferson County Commission holds its public meeting May 2, the first meeting following the removal of former Commissioners Tricia Jackson and Jennifer Krouse from office.

*Photo Credit: Jefferson County Commission*

Filling vacancies (again)

Stephen Stolipher, sitting president of the Jefferson County Commission and chair of the Jefferson County Republican Executive Committee, said he is unsure why Krouse switched parties.

“She certainly has never really acted like a Republican, [but] the Mountain Party is far, far left,” he said.

Mountain Party Chair Denise Binion is not sure either. She said the ousted commissioner’s “politics don’t match the party at all.”

Krouse did not respond to written requests for comment on this story. But her decision follows months of disputes with the local Republican party, and has implications for the selection of her successor.

As it currently stands, the three remaining members of the Jefferson County Commission have until May 31 to fill the vacancies through a majority vote.

Krouse’s vacancy must be filled by a member of the Mountain Party, and Jackson’s vacancy must be filled by a member of the Republican Party, per state law.

With a general election slated for this fall, these appointees would only hold office for a few months, according to Deak Kersey, chief of staff and former legal counsel for the West Virginia Secretary of State.

To keep their positions, appointed commissioners must be voted into office in the general election immediately following their appointment. Otherwise, Kersey said they only remain in office until the county certifies the results of its November general election, when new commissioners are elected.

But the future of the Jefferson County Commission is muddied by the possibility of a judge siding with Krouse or Jackson on appeal.

The Jefferson County Commission meets in the basement of the Charles Town Library.

*Photo Credit: Jack Walker/West Virginia Public Broadcasting*

A potential appeal

Jackson has already publicly stated that her attorney will appeal the circuit court’s decision to remove her from office.

If the appeal is rejected, vacancy proceedings will continue as usual, Kersey said. However, things are more complicated if a judge decides differently.

While awaiting a result on the appeal, a circuit court judge could suspend Krouse and Jackson’s removal from office, allowing them to return to work until the decision is finalized, Kersey said.

Alternatively, Kersey said that a judge siding with the commissioners after their vacancies have been filled would likely nullify any appointments, restoring Krouse and Jackson’s positions.

If such a decision came after the general election, things would become even more complex, and Kersey said it would likely require clarification from the state’s Supreme Court.

“The court would have to give some guidance to that effect, because it would have a lot of downstream impacts,” he said.

In this case, Kersey said the election results would most likely be nullified, allowing Krouse and Jackson to serve their original, full terms — until 2029 and 2026, respectively.

Kersey said that he is unsure how long the appeal process would take, as decisions vary on a case-by-case basis. But he said courts would likely reach a decision on a quickened timeline.

Courts “treat election issues expeditiously because of the fact that we have elections every two years,” he said. “You don’t want the government putting people in places for too long that weren’t elected by the people.”

In the coming weeks, Kersey said representatives from Secretary of State Mac Warner’s office will meet with members of the commission to offer guidance on filling the current vacancies.

In the meantime, Stolipher said the commission will continue to meet on its regular, biweekly basis.

“We currently have a quorum of three members,” he said. “We’re still meeting and conducting business.”

‘Operation Smoke And Mirrors’: Largest Methamphetamine Seizure In State History

Illegal drugs seized in the operation include more than 400 pounds of methamphetamine, 40 pounds of cocaine, 3 pounds of fentanyl, 19 firearms and nearly $1 million in cash.

A major illegal drug bust announced Monday includes more than two dozen defendants from West Virginia, Virginia and Georgia who have pleaded guilty to wholesale distribution of methamphetamine, cocaine and fentanyl.

Dubbed “Operation Smoke and Mirrors,’ Southern District U.S. Attorney Will Thompson said dismantling the illegal drug network took unprecedented teamwork by local, state and federal law enforcement.

“That’s the story of this case,” Thompson said. “We’ve gotten past where people used to battle over what’s my turf, not your turf, people are really working together now. We’ve had the FBI and DEA agents working hand in hand, which when they do and then when they pool their resources, we can get incredible results such as this.”

Illegal drugs seized in the operation include more than 400 pounds of methamphetamine, 40 pounds of cocaine, 3 pounds of fentanyl, 19 firearms and nearly $1 million in cash.

Thompson said it has become a law enforcement cliche that drug seizures much less than this would “make a dent” in local supply and demand. He said he wouldn’t be presumptuous, but this bust will “have an impact.”

“You just look at the sheer numbers, the amount that has been taken off the streets,” Thomson said. “We’ve probably saved families, we probably saved people from overdoses. It’s not like you’re taking off a street level drug dealer, he’s replaced the next day. It’s taking some time for these people to get replaced, and we’re working some other operations trying to get the replacements as well. And I think we’re going to be pretty successful on that.”

The announcement comes after the May 2 sentencing of Jasper Wemh, 39, of Charleston, to 16 years and eight months in prison, to be followed by five years of supervised release.

According to court documents and statements made in court, Wemh is responsible for more than 85 pounds of methamphetamine distributed in 2022. Wemh routinely completed transactions involving multiple pounds at a time, and sold more than 20 pounds of methamphetamine during a single night on Dec. 4, 2022. Wemh stored quantities of methamphetamine, crack and cocaine at a Greenbrier Street residence in Charleston.

Thompson said Wehm was one of a handful of kingpins in a loosely knit network of drug wholesalers.

“There are some significant players,” he said. “This wasn’t one individual, this was a network that worked together. We’re not completely done with all the charges. There are several people who’ve not been to trial yet, but we’ve gotten some significant sentences out of the people who have been found guilty thus far.”

Thompson said “Operation Smoke and Mirrors” is far from finished, and the “final installment will be quite a story.”

Click here for a listing of law enforcement agencies involved and those sent to prison, their charges and sentences.

Attorney General Responsibilities And Ramp Season Is Winding Down, This West Virginia Morning

On this West Virginia Morning, as chief legal officer for West Virginia’s citizens, state office holders, agencies and boards, the attorney general’s (AG) responsibilities cover the litigation gamut. The four candidates in the upcoming primary races for AG have diverse views on how those responsibilities should be handled – and prioritized. Randy Yohe has our second story on this race.

On this West Virginia Morning, as chief legal officer for West Virginia’s citizens, state office holders, agencies and boards, the attorney general’s (AG) responsibilities cover the litigation gamut. The four candidates in the upcoming primary races for AG have diverse views on how those responsibilities should be handled – and prioritized. Randy Yohe has our second story on this race.

Also, in this show, ramp season in West Virginia may be winding down, but before the last ramp has been picked, Bill Lynch went out to see what was left.

West Virginia Morning is a production of West Virginia Public Broadcasting which is solely responsible for its content.

Support for our news bureaus comes from Shepherd University.

Eric Douglas produced this episode.

Listen to West Virginia Morning weekdays at 7:43 a.m. on WVPB Radio or subscribe to the podcast and never miss an episode. #WVMorning

Superfund Sites, Education Emergencies And The Attorney General’s Role, This West Virginia Week

On this West Virginia Week, Gov. Jim Justice declared a state of emergency for the state’s educational system. We’ll also learn more about a group of organizations asking the state Supreme Court to side with Cabell County and Huntington in their lawsuit against opioid distributors. And we’ll hear about a South Charleston landfill listed as a Superfund site.

On this West Virginia Week, Gov. Jim Justice declared a state of emergency for the state’s educational system. We’ll also learn more about a group of organizations asking the state Supreme Court to side with Cabell County and Huntington in their lawsuit against opioid distributors. And we’ll hear about a South Charleston landfill listed as a Superfund site.

We’ll also talk about new investments in energy communities spurred by tax credits and federal programs. We’ll dive into the attorney general’s role in the state and what each candidate brings to the upcoming election. And we’ll learn about a group that works to give prisoners access to books.

Emily Rice is our host this week. Our theme music is by Matt Jackfert.

West Virginia Week is a web-only podcast that explores the week’s biggest news in the Mountain State. It’s produced with help from Bill Lynch, Briana Heaney, Chris Schulz, Curtis Tate, Emily Rice, Eric Douglas, Jack Walker, Liz McCormick and Randy Yohe.

Learn more about West Virginia Week.

Broadband Funding Theft Case Sparks Fraud Alert

As the state embarks on a massive, federally-funded broadband project, a Morgantown internet service provider is facing federal broadband fund theft charges.

The criminal case alleges that Timothy Chad Henson, owner of Monongalia County internet service provider Clearfiber, Inc., defrauded the federal government for more than a quarter million dollars.

William Ihlenfeld, U.S. Attorney for the Northern District of West Virginia, said according to court documents, the United States Department of Agriculture (USDA) Community Connect Program offered grants to eligible applicants providing broadband services to rural areas. On behalf of Clearfiber, Henson applied for, and was awarded, $1.96 million to offer high-speed internet services in Monongalia and Marion counties.

Henson is charged with submitting false invoices to receive more than $340,000 in reimbursement, then transferring $322,900 into another bank account for his personal use.

“The way it works is they don’t simply give you all of the money,” Ihlenfeld said. “The grant is awarded, and then you submit invoices, and then the USDA reimburses you for those invoices that you’ve submitted. What Mr. Henson is alleged to have submitted fabricated invoices, at least 30 of them, for a variety of cable and fiber and broadband companies that operate in and around West Virginia.”

Ihnelfeld said Henson extended his fraudulent schemes outside the state as well.

“He created a document that appeared to be an invoice from a company in North Carolina,” he said. “Hensen submitted it to the USDA and then he was reimbursed for what was indicated on that invoice. The reality of it was that he didn’t actually obtain fiber optic cable from that company. He didn’t obtain services from another company down the road. Instead he fabricated the invoices. He received reimbursement from the grant and then he kept the money for himself.”

Ihlenfeld said the schemes also included ordering thousands of dollars of fiber optic cable from one company.

“Then he turned around and very quickly sold it to another company,” Ihlenfled said. “He didn’t pay the first company for the cable, so they were left holding the bag. They didn’t receive the $209,000 they should have. Hensen turned around and sold it to someone else and pocketed the money that he gained from the sale.”

Ihelnfeld said it’s not just cable companies and taxpayers victimized here, but rural customers who never got intended internet service.

“We’re back to square one with some of these homeowners who don’t have access to broadband,” Ihlenfeld said. “This has been a problem for a long time in our state and there’s a lot of money that is coming in from the federal government to try to help and address this.”

He’s referring to the $1.2 billion federally funded “last mile” broadband project, involving numerous internet service providers. Last mile programs mean helping providers install cable to hook up rural customers, going the “last mile” from established service to their homes.

Del. Daniel Linvlle, R-Cabell, and chair of the House Committee on Technology and Infrastructure, said project fraud safeguards include multiple steps to insure that invoiced work has occurred.

“As we’re actually giving out any of these grants, that money is not transferred until services are actually performed,” Linville said. “So, we’re able to say, look, as you build these things, send us the invoices, and then we will make sure that, that has actually occurred, and then send out the grant dollars for only those portions which have actually happened. We actually have spot checks that are going on as we do these grants to make 100 percent sure that we’re actually getting what it is that we’ve paid for.”

Ihlenfeld hopes the Clearfiber case creates a red flag of fraud due diligence. But, with millions of dollars coming in, and remembering the massive fraud with COVID-19 federal funds, he said he fears the worst.

“With the enormous amounts of money that are going to be thrown at broadband in West Virginia and across the country, we will see more cases, like we have here with Timothy Hansen,” Ihlenfeld said. “I think we can take steps, and the holders of the money can take steps, to make it much more difficult for fraud to occur by engaging in very thorough due diligence and not trusting any invoice and verifying every invoice, and then following up and making sure that the work is actually being done, as it’s been promised.”

Ihlenfeld said there is a tentative plea agreement reached in the case including restitution and prison time.

“He has to face the United States District Court judge who is going to be asked by the government, by me, to impose a lengthy jail sentence,” Ihlenfeld said.

Henson is scheduled for an initial appearance on May 29 before U.S. Magistrate Judge Michael John Aloi. He faces up to 10 years in federal prison.