Can a West Virginia county commission buy a building it currently leases for its 911 center, and then lease part of the building to a private for-profit business?

Plain-English summary

Grant County's 911 center sits in a building leased from the county's Development Authority. The county commission was thinking about buying the building outright, then leasing part of it to a private for-profit company (presumably to recoup some of the purchase cost). The prosecutor asked: is the purchase legal, and is the for-profit lease legal?

The AG split the answer cleanly:

• Buying the building is allowed. West Virginia gives county commissions broad express power to buy property for public purposes (W. Va. Code §§ 7-3-2, 7-3-5, 7-3-7) and that power is "liberally construed" under § 7-3-12. On top of that, the implied-powers doctrine adds a second layer: § 24-6-4 lets a county commission establish an emergency telephone system, and you cannot run a 911 center without a building. The fact that the building is currently leased doesn't change anything: deciding whether to convert a lease into ownership is exactly the kind of decision the legislature trusts the commission to make.

• Leasing part of the building to a for-profit business is not allowed. County commission leasing power is narrowly drawn. § 7-1-3k lets a commission lease to nonprofit organizations for specified purposes. § 7-1-3hh lets a commission lease to the federal government, the state, or state agencies for a public purpose. That is the entire menu. A lease to a private for-profit company doesn't fit either category, and the implied-powers doctrine won't stretch to fill the gap.

This pattern (broad authority to buy public property, narrow authority to lease it out) shows up repeatedly in West Virginia AG opinions. The AG cites its own 2018 and 2014 letter opinions reaching the same conclusion in different fact patterns.

What this means for you

County commissions considering buying a 911 center building

The opinion concludes the Grant County Commission may purchase the data-center building to operate a 911 center. The AG relies on two layers of authority: the express acquisition powers in W. Va. Code §§ 7-3-2, 7-3-5, and 7-3-7 (to be "liberally construed" under § 7-3-12), and the implied power to acquire a building "reasonably necessary" to operate an emergency telephone system under § 24-6-4. The opinion notes that an existing lease on the same building does not change the analysis: the choice between leasing and owning is within the commission's discretion under Meador v. Cnty. Court.

The opinion separately concludes that the commission may not lease part of the building to a for-profit entity. County commission leasing power is enumerated in two places: § 7-1-3k (leases to nonprofit organizations for enumerated purposes) and § 7-1-3hh (leases to federal, state, or state-instrumentality lessees for a public purpose). A for-profit lease fits neither, and the AG concludes the implied-powers doctrine cannot expand that list because, under State ex rel. W. Va. Parkways Auth. v. Barr, where a power is expressly conferred a commission may act only "in the mode prescribed."

County prosecutors

The opinion treats § 7-1-3k and § 7-1-3hh as the exclusive statutory homes for county-commission leasing of real property, applying the expressio unius canon cited in Manchin v. Dunfee and McAllister v. Nelson on "if any reasonable doubt exists ... the power must be denied" rule. The opinion notes that a separate statutory body, the county building commission, has broader leasing authority and that prior AG analysis of the Sundale Nursing Home matter (2024 WL 3380828) addresses the building-commission variant.

911 center directors

The opinion confirms that a county commission's authority to operate a 911 center under § 24-6-4 carries with it the implied power to acquire a building for that purpose, given § 24-6-2's definition of an "answering point" as a "facility" and § 24-6-5(3)'s requirement that the facility be "operated constantly."

Common questions

Q: The county already runs the 911 center under a lease. Why does buying need any extra justification?

A: Buying real estate is a different power from leasing it. The lease was authorized by § 24-6-4's general establish-and-operate-a-911-system power. The purchase is authorized by §§ 7-3-2, 7-3-5, 7-3-7. Both are valid; both rest on slightly different statutory hooks. The opinion stitches them together to confirm the conversion from lease to ownership is straightforwardly legal.

Q: Could the commission buy the whole building and leave unused space vacant?

A: The opinion does not directly address vacant space, but it notes (citing Keatley v. Summers Cnty. Ct.) that the commission's predecessors could not "buy more land ... simply with a view of making a profit by resale of a portion thereof." Beyond that, the opinion does not analyze occupancy of acquired property.

Q: What about leasing to a different public entity, like a state agency?

A: The opinion identifies § 7-1-3hh as authorizing leases to the federal government, the state of West Virginia, and "any agency or instrumentality thereof," provided the lease is "for a public purpose." Beyond that statutory category, the opinion does not address particular public-sector lessees.

Q: Does this opinion apply to municipal (city) governments?

A: No. The opinion is about county commissions and the statutes (Chapter 7) that govern them. The municipal-government statutes in Chapter 8 are not analyzed here.

Background and statutory framework

West Virginia organizes county-commission powers under the framework established by W. Va. Const. art. IX, § 11 and Chapter 7 of the Code. The opinion's analysis turns on two patterns:

Acquisition is broad.

• § 7-3-2: commissions "may, by purchase or otherwise, acquire as much land as may be requisite or desirable for county purposes."
• § 7-3-5: commissions may "make or enter into a contract ... for the erection, construction, equipment, leasing, and renting of a courthouse, hospital, other public buildings."
• § 7-3-7: commissions are "authorized and authorized to acquire real estate for, construct, equip, furnish and maintain a courthouse, hospital or other public buildings or jail."
• § 7-3-12: these powers are to be "liberally construed."

The Supreme Court of Appeals' century-old framing in Keatley v. Summers Cnty. Ct. is that commissions have "discretion ... without limitation" in real-estate acquisition for public purposes.

Leasing out is narrow.

• § 7-1-3k: a commission "may lease county-owned buildings, lands, and other properties" to "nonprofit organizations" for specified purposes.
• § 7-1-3hh: a commission may lease "any of [its] real or personal property" to the federal government or to the state of West Virginia or its agencies, "for a public purpose."

The opinion combines two interpretive moves to lock down the limits:

1. Expressio unius (Manchin v. Dunfee): when the legislature lists permitted lessees, it impliedly excludes everyone else.
2. The rule quoted from McAllister v. Nelson: "If any reasonable doubt exists as to whether [a county commission] has a power, the power must be denied."

The implied-powers doctrine that authorizes the purchase has a definite ceiling, drawn from State ex rel. W. Va. Parkways Auth. v. Barr: "where a power is expressly conferred, a county commission can only act in the mode prescribed." Because the legislature expressly enumerated permissible leases, implied power cannot expand that list. The expression of two specific lessee categories implies the exclusion of all others.

The 911-center analysis layers on the implied-powers doctrine the opinion attributes to Arthur, alongside § 24-6-4. § 24-6-2 defines a 911 "answering point" as "a facility," and § 24-6-5(3) requires the facility to be "operated constantly." Without a building, the legislature's command cannot be carried out. So the power to operate a 911 center implies the power to acquire a building for that purpose, even setting aside the express grants in Chapter 7.

The opinion's prior-letter precedents are useful to flag because they collectively map out the same rule in different settings:

• 2018 Letter, 2018 WL 3390019: a county commission may not lease to a "private, for-profit business" even with a permissible co-lessee on the same lease.
• 2014 Letter, 2014 WL 1875639: a county commission has no express or implied power to "lease property to a private individual for private residential purposes."
• 2024 Sundale Nursing Home Letter, 2024 WL 3380828: the AG notes that a county building commission may be permitted to lease a building despite the involvement of a for-profit entity because different statutory language gives building commissions broader leasing powers.

Citations

• W. Va. Code §§ 5-3-2; 7-1-3; 7-1-3aa; 7-1-3cc; 7-1-3hh; 7-1-3k
• W. Va. Code §§ 7-3-2; 7-3-5; 7-3-7; 7-3-12
• W. Va. Code §§ 7-15-4; 24-6-2; 24-6-4; 24-6-5(3)
• W. Va. Const. art. IX, § 11
• State ex rel. State Line Sparkler of W.V., Ltd. v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992)
• Cnty. Comm'n of Greenbrier Cnty. v. Cummings, 228 W. Va. 464, 720 S.E.2d 587 (2011)
• Keatley v. Summers Cnty. Ct., 70 W. Va. 267, 73 S.E. 706 (1911)
• Meador v. Cnty. Court, 141 W. Va. 96, 87 S.E.2d 725 (1955)
• State ex rel. Lambert v. Cortellessi, 182 W. Va. 142, 386 S.E.2d 640 (1989)
• State ex rel. W. Va. Parkways Auth. v. Barr, 228 W. Va. 27, 716 S.E.2d 689 (2011)
• Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984)
• McAllister v. Nelson, 186 W. Va. 131, 411 S.E.2d 456 (1991)

Source

• Landing page: https://ago.wv.gov/media/17406/download?inline
• Original PDF: https://ago.wv.gov/media/17406/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
(304) 558-2021
Fax (304) 558-0140

Patrick Morrisey
Attorney General

September 6, 2024

The Honorable John G. Ours
Grant County Prosecuting Attorney
5 Highland Avenue
Petersburg, WV 26847

Dear Prosecutor Ours:
You have asked for an Opinion of the Attorney General about a county commission's power to own and lease property. This Opinion is being issued under West Virginia Code Section 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." When this Opinion relies on facts, it depends solely on the factual assertions in your correspondence and discussions with the Office of the Attorney General.

You explain that the Grant County Commission currently operates a 911 center in a building it leases from the Grant County Development Authority. Your letter asks whether the Grant County Commission could purchase the building and later lease part of it to a for-profit entity.

Thus, you raise the following legal questions:
(1) May the Grant County Commission purchase the building from the Grant County Development Authority to operate a 911 center? (2) If the Grant County Commission can purchase the building, may the Commission lease a portion of it to a for-profit entity?

We conclude that the Grant County Commission may purchase the building to operate a 911 center. County commissions have broad express powers to purchase property for purposes like this one. County commissions can also operate emergency telephone systems, and the power to buy a building in which to operate it would be an implied extension of that power, too.

But we conclude that the Grant County Commission could not later lease part of the building to a for-profit entity. County commissions may lease property only in certain specific circumstances. A lease to a for-profit entity is not one of those circumstances.

DISCUSSION

I. The Grant County Commission May Purchase The Data Center Building To Operate A 911 Center.

As with all county commissions, the Grant County Commission is "created by statute, and possessed only of such powers as are expressly conferred by the Constitution and legislature, together with such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given." Syl. pt. 1, State ex rel. State Line Sparkler of W.V., Ltd. v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992); see generally W. Va. Const. art. IX, § 11. But though county commissions have limited powers, when they do have a power, the commissions are "vested with a wide discretion" in its execution. Cnty. Comm'n of Greenbrier Cnty. v. Cummings, 228 W. Va. 464, 469, 720 S.E.2d 587, 592 (2011).

The building purchase you describe would fall within the county commission's express powers. West Virginia Code § 7-3-2 says that the "county commission ... may, by purchase or otherwise, acquire as much land as may be requisite or desirable for county purposes, and may suitably enclose, improve, and embellish the lands so acquired." Likewise, West Virginia Code
§ 7-3-5 provides that the county commission may "make or enter into a contract, ... for the erection, construction, equipment, leasing, and renting of a courthouse, hospital, other public buildings." (emphasis added). And West Virginia Code § 7-3-7 explains that "[a]ny county commission is likewise authorized and empowered to acquire real estate for, construct, equip, furnish and maintain a courthouse, hospital or other public buildings or jail." (emphasis added). These provisions are to be "liberally construed." W. Va. Code § 7-3-12. Altogether, they reflect what the Supreme Court of Appeals said more than a century ago: county commissions enjoy "discretion ... without limitation" when it comes to purchasing real estate. Keatley v. Summers Cnty. Ct., 70 W. Va. 267, 270, 73 S.E. 706, 708 (1911).

Even if we were to put these broad express powers aside, we would conclude that the Legislature has impliedly empowered the county commission to buy the building to house the 911 center. Among their powers, county commissions are responsible for providing local emergency services, such as law enforcement, fire protection, and ambulances. For instance, county commissions are tasked with "the superintendence and administration of the internal police and fiscal affairs of their counties." W. Va. Const. art IX, § 11. The Legislature also requires county commissions to provide emergency ambulance services "where such service is not otherwise available." W. Va. Code § 7-15-4. And as part of their emergency service duties, county commissions may establish and operate a 911 center. See id. § 24-6-4 (empowering county commissions with the power to "establish ... an emergency telephone system within [their] jurisdiction"); see also id. § 7-1-3cc.

Here, the power to establish and operate a 911 center necessarily implies the power to do such things as are "reasonably necessary to perform that function." State ex rel. Cnty. Court v. Arthur, 150 W. Va. 293, 297, 145 S.E.2d 34, 37 (1965). And establishing and operating a 911 center would be impossible if there was no building in which the center could operate. Indeed, the law envisions a county's "answering point" for 911 calls to be "a facility." W. Va. Code § 24-6-2. And that facility should be "operated constantly." Id. § 24-6-5(3). Thus, "[w]hile no statute expressly authorizes" the Grant County Commission "to purchase" the building in this case, "such authority is implied as necessary and reasonable incident to" creating an emergency telephone system. Arthur, 150 W. Va. at 297, 145 S.E.2d at 37.

It does not matter that the 911 center is currently operated under a lease, either. Like their broad power to purchase property generally, county commissions have the express power to operate emergency telephone systems. This broad delegation gives the Grant County Commission "wide discretion" in how to execute this power. Syl. pt. 1, Meador v. Cnty. Court, 141 W. Va. 96, 87 S.E.2d 725 (1955). Deciding whether to buy property that's presently leased is within that discretion. See State ex rel. Lambert v. Cortellessi, 182 W. Va. 142, 149, 386 S.E.2d 640, 647 (1989).

Thus, we conclude that the Grant County Commission may purchase the building in question to operate a 911 center.

II. The Grant County Commission May Not Lease Part Of The Data Center To A For-Profit Entity.

County commissions have far more circumscribed authority to lease to others. In fact, a county commission may only lease under certain situations described in two statutory provisions. First, they may lease "county-owned buildings, lands, and other properties" to "nonprofit organizations" for certain enumerated purposes. W. Va. Code § 7-1-3k (emphasis added). And second, they may lease "any of [their] real or personal property" to the federal government or "to the state or any agency or instrumentality thereof," provided the lease is "for a public purpose."
§ 7-1-3hh.

A county commission's implied authority to lease property is also limited. Specifically, a commission's implied power to lease its property cannot exceed its express authority. See syl. pt. 4, State ex rel. W. Va. Parkways Auth. v. Barr, 228 W. Va. 27, 716 S.E.2d 689 (2011) (holding that where a power is "expressly conferred," a county commission can only act "in the mode prescribed"). So county commission leasing power is constrained because the Legislature specifically listed permissible leases. See syl. pt. 3, Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984) (noting that "the express mention of one thing implies the exclusion of another"). And "[i]f any reasonable doubt exists as to whether" a county commission "has a power, the power must be denied." Syl. pt. 1, McAllister v. Nelson, 186 W. Va. 131, 411 S.E.2d 456 (1991).

The leasing arrangement described in your letter does not fit into any of the expressly listed leasing powers of commission. And the power to lease property to a for-profit entity, seemingly for economic gain, is neither "reasonably" nor "necessarily" implied in the exercise of the Grant County Commission's express powers. Putting all this together, we conclude that the Grant County Commission cannot lease the data center building, if it chooses to purchase it, to a for-profit entity. Cf. Keatley, 70 W. Va. at 270, 73 S.E. at 708 (explaining that predecessors to county commissions could not "buy more land ... simply with a view of making a profit by resale of a portion thereof").

In prior opinions, we said much the same. In a 2018 Opinion Letter, we explained that "any lease" by a county commission to a "private, for-profit business" would "exceed [the statutory] limits," even where a permissible public lessee was a co-lessee. Off. of the W. Va. Att'y Gen., Opinion Letter on the Authority of a County Commission to Lease Real Property (June 6, 2018), 2018 WL 3390019, at 2. Similarly, in a 2014 Opinion Letter, we wrote that a county commission had neither the express nor implied power to "lease property to a private individual for private residential purposes." Off. of the W. Va. Att'y Gen., Opinion Letter on the Authority of County Commissions to Lease Real Property to Private Individuals (May 6, 2014), 2014 WL 1875639, at 1-2. Although we also recently wrote that a county building commission could be permitted to lease a building despite the involvement of a for-profit entity, we stressed that building commissions wield broader leasing powers because of differences in the statutory language establishing them. See generally Off. of the W. Va. Att'y Gen., Opinion Letter on The Sale of Sundale Nursing Home (June 18, 2024), 2024 WL 3380828.

Thus, the county commission cannot enter the lease arrangement with a for-profit entity, as described in your letter. That said, because the Commission's powers derive from statutes, the Legislature would always be free to amend the law and permit commissions to lease property under the circumstances your letter describes.

Sincerely,

Patrick Morrisey
West Virginia Attorney General

Michael R. Williams
Solicitor General

Caleb A. Seckman
Assistant Solicitor General