Attorney General Says Law Allows Tyler County to Receive Donation to Keep Courthouse Open Longer, Digitize Records
CHARLESTON — Attorney General Patrick Morrisey recently informed Tyler County officials that the County Commission may accept private donations to either extend the hours of operation at the County Clerk’s records room or digitize the records stored there as long as the donation is unsolicited and given to the county as a whole and not to an individual.
“The Office was pleased to assist Tyler County in evaluating the legality of an issue with great practical importance,” Attorney General Morrisey said. “Tyler County and other counties in the state’s Marcellus Shale region are seeing a great deal of use of their records rooms as lawyers, title abstractors and others try to trace land and mineral ownership. And, at least in the case of Tyler County, the records room simply isn’t big enough to accommodate all of those who want access to the records. When the Tyler County Prosecutor wrote us seeking an opinion on whether the county could use donated funds to expand access, we were happy to have an opportunity to offer our guidance.”
Tyler County Prosecutor D. Luke Furbee requested the guidance on the donation because increased activity in the Marcellus Shale region has led to a greater demand for access to public land and title records. Furbee said because the current facilities and accommodations at the courthouse were “grossly inadequate” to handle the influx of people, county officials have weighed the idea of extending the office’s hours or digitizing the records.
Furbee’s letter also asked whether it was permissible for the county to grant exclusive access to county records to a private individual or entity, and if the county could enter into a contract with a third-party entity to digitize its records without having to go through the competitive bidding process.
The Attorney General’s opinion said the county cannot grant exclusive access to county records to a private individual or entity, regardless of whether that entity made a donation. The letter said state law is clear that the public at large should have equal access to records during any extended availability the county may decide to adopt.
The letter from the Attorney General also says the county must follow competitive bidding requirements for any contract that exceeds $15,000, even if an intermediate private party is paying for the work.
“Your other questions suggest that the Commission may be contemplating an arrangement in which one private party contracts with another private party and then donates the completed digitization to the county. But this scenario could constitute a de facto contracting for services by the County, as the County would be an integral part in the process,” the letter to the county stated. “The County must provide the records to be digitized, make sure the selected digitization is compatible with existing software and ensure timely completion of the project. This involvement is akin to a public contract.”