The emergency wasn’t a flood or a snowstorm or one of the usual catastrophes that might result in such a declaration. Instead, it was what most state leaders agree is a serious ongoing problem, the pay rate and staffing levels of state corrections officers.
The emergency declaration and executive order empowered Military Affairs and Public Safety Secretary Jeff Sandy to use all of his divisions, including the National Guard, to augment staffing at West Virginia’s prisons and jails.
Justice cited the well-documented challenges of recruiting and retaining correctional officers, and stated that “excessive amounts of overtime are not conducive to safe working practices and environments.”
Observers acknowledge the emergency declaration is unusual in the sense that it isn’t in response to a catastrophic situation that suddenly arose. Instead, it’s a response to a chronic problem that has its roots in policy and priorities.
Whether the governor’s emergency powers would extend to an area like corrections staffing is also a murky subject.
House Minority Leader Tim Miley agrees that the pay scale and staffing for corrections officers is a persistent problem.
“Because of the pay scale of officers, there is a staffing turnover problem that apparently has reached a boiling point,” Miley, D-Harrison, said in a telephone interview.
Miley described the governor’s emergency powers as broad when directing state agencies to act on behalf of public health and safety.
But he said this cause stands out to him because it’s so different from the norm.
“You can’t predict a natural disaster,” Miley said. “The case for declaration of an emergency that everyone knew had been brewing for a long time just reflects the lack of preparation with dealing with the issue.”
Miley acknowledged that staffing for West Virginia’s prisons and jails stretches back much farther than the Justice administration.
He also said that although pay for corrections officers is a significant problem, pay for public employees more broadly needs to be improved.
Dire situation with jails staffing
Concerns over staffing in West Virginia’s prisons and jails have received significant attention through this past fall.
Starting salary for West Virginia corrections officers has stayed the same since 2009 — $22,584. That’s the lowest in the nation and about $2,000 below the federal poverty level for a family of four.
The result, state leaders say, is that new hires are trained, stay on for a short amount of time and then leave for better opportunities. Those who remain take on higher amounts of overtime than can be sustained, state officials say.
The issue came to a head in early November after the escape of an inmate from the South Central Regional Jail. State officials said staffing problems at the jail may have contributed to the security breakdown.
The State of Emergency declaration allows for using members of the National Guard to augment staffing at prisons and jails.
Speaking this past week on MetroNews’ “Talkline,” Justice administration chief of staff Mike Hall and Sandy said the National Guard members account for about half of 93 people from a few agencies that are being used to fill in on roles at prisons and jails. The other participating agencies include Homeland Security, Capitol Police and the state Fire Marshal’s Office.
Over the longer term, the Justice administration hopes to address the staffing problem by making salaries more desirable.None will directly interact with prisoners, they said, but instead will reduce the overall workload in other areas.
The Justice administration proposes to bump starting salaries for corrections officers to $30,000 over the next three years. The administration says it intends to put forth that proposal, including increases on a scale, as the legislative session begins next week.
Governor Justice is likely to make a pitch for that salaries plan during his State of the State address this week, while he has the Legislature’s undivided attention.
But is it an emergency?
“It is unusual, I’ll grant that,” said Senate Judiciary Chairman Charles Trump, R-Morgan. “I’ve taken that as an effort by the governor to create awareness and momentum, probably directed toward the Legislature but also toward the general public that we have a serious problem there that needs to be addressed.
“I’d be shocked if we don’t hear about that from the governor during his State of the State address. I’m sure he will.”
Trump speculated that the State of Emergency declaration, in part, was another way to get the point across.
“My view of it is, he is seeking to draw public attention and the attention of members of the Legislature to what he considers to be a very important issue,” Trump said.
“I agree, it is a very serious problem and I expect the Legislature is going to work very hard in cooperation with him to try to address it during the coming regular session.”
Prior administrations have gone through plenty of emergencies. The Tomblin administration dealt with statewide flooding in 2016, the 2012 derecho that knocked out power to thousands, Hurricane Sandy and the 2014 Kanawha Valley chemical leak that tainted the water supply for more than 500,000 people.
There were so many emergencies, the Tomblin administation put together a presentation on what constitutes a State of Emergency. It was presented to the State Bar Association and included interpretations of material straight out of the applying section of state code, 15–5-6.
The presentation concludes three basic scenarios may trigger a State of Emergency declaration:
- Insurrection and invasions, such as terrorism, enemy attack and sabotage.
- Disasters such as fires, floods, blizzards, earthquakes, tornados and derechos.
- Large-scale threats beyond local control. Although the lawyers in the Tomblin administration mentioned an unexpected phenomenon like the Elk River chemical spill, they also mentioned the Boy Scout Jamboree, which is a scheduled activity but one that requires security and organization far beyond what’s normal.
The presentation then poses an interesting question: “Can an overcrowded prison give rise to a ‘State of Emergency?'”
It’s not exactly the same question as whether inadequate prison staffing constitutes a state of emergency, but it’s in the ballpark.
The presentation by Tomblin’s counsel provides a one-word answer: “No.”
The basis was a state Supreme Court case in 1986. Then-Gov. Arch Moore had issued two executive orders directing the Commissioner of the Department of Corrections to accept no additional inmates in his custody until overcrowding at Huttonsville could be remedied.
The Supreme Court invalidated the orders in the case of Dodrill v. Scott, which held that “the overcrowded condition of our State’s penal facilities is not a situation subject to the emergency powers of the Governor.”
Writing for the majority, Justice William Brotherton quoted from state law about what does constitute an emergency:
“In view of the existing and increasing possibility of the occurrence of disasters of unprecedented size and destructiveness, resulting from enemy attack, sabotage or other hostile action, or from flood, earthquakes or other natural or man-made causes and in order to insure that preparations of this State will be adequate to deal with such disasters, and generally to provide for the common defense and to protect the public peace, health and safety to preserve the lives and property of the people of the state, it is hereby declared to be necessary…”
And then, Brotherton concluded, “These provisions of the Code do not contemplate prison overcrowding as a state of emergency.”
How broad are the governor’s emergency powers?
The health and safety provisions in the law are sufficiently broad that the current staffing situation with state corrections facilities could fall under the governor’s powers, said House Judiciary Chairman John Shott.
“When you look at the statute, he has really broad emergency powers. It’s really in the context of public health and I think that section deals with Homeland Security,” Shott said in a telephone interview. “There is language that could be interpreted to extend to this type of situation.
Shott continued, “I think you could broadly interpret these sections of the code to give the governor pretty broad powers. It’s not clear that he doesn’t have the authority and it’s certainly arguable that he does.”
Shott, like the others in this story, agreed that the situation with corrections staffing is very serious and deserving of legislative attention.
“I do think there are certainly factors that indicate there’s a reasonable probability that some public disorder that could occur if something is not done to deal with that situation,” Shott said. “The situation is dire and something needs to be done, and hopefully we’ll address it legislatively.”
Shott allowed that Governor Justice has had a broader view of what constitutes an emergency than his predecessors.
Justice called out the National Guard to help out in Huntington after a recent streak of violence. Last year, he didn’t officially declare emergency but had the emergency Capitol dome light lit to signify his view that possible cuts to DHHR would constitute a public health disaster. That one particularly irked Shott.
“He’s been liberally using those emergency powers,” Shott said. “I think it shows he’s not bashful about using those powers.”