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PSD attorney's contract challenged in court

Thursday October 18, 2007
The Pocahontas Times

By Drew Tanner, Staff Writer

A circuit court judge is taking a close look at the contract between the Pocahontas County Public Service District and its attorney, Tom Michael.

Based out of Lost Creek, Michael has been working with the PSD to secure the necessary permits and funding for the regional sewage treatment plant proposed for Slaty Fork and Snowshoe.

Michael has also found himself fending off legal challenges to the $18 million project.

Plans call for the new plant to be built along U.S. 219 near Sharp's Country Store, adjacent to Big Spring Fork of Elk River. The discharge from the plant would enter near the confluence of the Elk River's Big Spring and Old Field forks.

The project faces opposition from the Sharp family—on whose land the facility itself would be located—and a number of conservation and angling groups who object to locating the plant in an area known for its caves, springs and trout fishing.

Before Chief Circuit Judge James Rowe, Friday, Michael described Leyzorek's recent actions as a "collateral" attack on the project. As an intervenor in the project's proceedings before the Public Service Commission, Leyzorek raised identical issues, Michael argued.

When the PSC ruled against Leyzorek and in favor of the project, he took advantage of the opportunity to file exceptions with the PSC ruling, Michael noted.

Among Leyzorek's recent filings in Pocahontas County Circuit Court is a motion to have Michael disqualified as counsel for the PSD. The same motion is also before the PSC as it prepares to reopen its proceedings on the project

Leyzorek, acting as his own counsel, argued that a conflict of interest exists with Michael representing the PSD and defending the project in circuit court, because his contract says that he is to be paid once the project is completed.

Rowe was, at first, hesitant to dissect the PSD's contract with Michael, saying it was not the place of the court to "delve into the privileged content" of attorney-client discussions.

"That should send chills down the back of anyone who cares about our Constitution, as you purport to do in the filings I've read from you over the years," Rowe said to Leyzorek.

With a public body and public money involved, however, Leyzorek pressed the issue.

"He has a pecuniary interest in the project," he contended.

Michael noted that if a contingent fee disqualifies an attorney from representing a client, "there are a lot of attorneys in trouble."

Such contracts are common in personal injury cases, but Rowe, admitting that he was unfamiliar with such contracts being used by public utilities, said he wanted more time to look into the matter.

Having represented several utilities in his career, Michael said that he has often worked on a fee-contingent basis.

While the project has seen considerable delays due to legal and procedural challenges, Michael is likely to be paid for some of his services sooner, rather than later.

In April, the West Virginia Infrastructure and Jobs Development Council approved a $2.5 million advance on the $9.5 million it has pledged toward the project. Much of that money is to pay for engineering costs, as well as the services Michael has rendered so far, which total $194,000, according to the application filed with the IJDC.

The judge continued the hearing until November 16. Rowe noted that the motion to disqualify Michael is a "threshold" issue that must be addressed before he can consider Leyzorek's other motion, an injunction that calls for the court to halt the PSD's takeover of the resort's wastewater operations and alleges that the PSD's treasurer is not properly bonded.

Another circuit court challenge brought by Tom Shipley and a handful of Slaty Fork residents and landowners was dismissed last month by Circuit Judge Joseph Pomponio.

Last week's Pocahontas Times reported that the case was still pending, but the dismissal order was filed at the courthouse September 13.

In his order, Pomponio noted that Shipley should and did take his concerns before the West Virginia Public Service Commission when the project was before that body for approval.

When Shipley appealed the PSC's final ruling in favor of the project to the West Virginia Supreme Court of Appeals, that court declined to hear the matter.