Can a West Virginia county school board pay its professional-exempt employees extra for taking on extra duties (tutoring, mentoring, robotics tournaments, building administrator) outside their regular contracts?

Plain-English summary

The Ohio County Board of Education has been paying professional-exempt school employees (teachers, principals, supervisors, librarians) extra money when they take on duties beyond their regular contracts: tutoring, mentoring student teachers, running robotics tournaments, filling in as building administrator, handling operations emergencies, covering after a colleague leaves unexpectedly. The board wanted to formalize the practice with a written guideline. The prosecutor asked: is this legal?

The AG's answer: yes, but you have to use the right statutory bucket for each duty.

Constitutionally, the practice is fine. West Virginia's salary clause (no salary increase or decrease for public officers during their term) only applies to actual "public officers," which the AG defines as positions with a fixed term, fixed salary, and exercise of sovereign power. The board's plan exempts the superintendent and assistant superintendent (who are public officers under Springer). Everyone else is a "mere employee" and the salary clause doesn't reach them.

The extra-compensation clause is broader, but it does not bar pay for "newly imposed" duties or for compensation that was negotiated in advance. The kinds of duties Ohio County is paying for (tutoring, robotics, emergency coverage) are not duties the original contract anticipated. Pay for those duties is "extra pay for additional consideration," not forbidden extra compensation.

Statutorily, each duty has a category and each category has procedural rules. West Virginia law splits additional school-employee work into three groups, each with its own statute:

• Extracurricular assignments (§ 18A-4-16): regularly-scheduled activities outside normal working hours (e.g., tutoring sessions held after school every Tuesday). Need: agreement in writing, separate from the employment contract; mutually-agreed annual hours cap; board approval. Service-personnel hiring follows the seniority process from § 18A-4-8b; if the assignment continues the next year, the same person has the option to keep it.
• Supplemental duties (§ 18A-2A-1) (teachers only): duties expected during the educational day but outside the regular contract (e.g., student-teacher mentoring during school hours). Need: an agreement other than the employment contract. If duties extend beyond the eight-hour contract day, also need superintendent preapproval. Carveout for unanticipated emergencies: agreement still needed but no preapproval.
• Extra-duty assignments (service personnel, § 18A-4-8b) and additional noninstructional duties (teachers, § 18A-4-5a): irregular, periodic duties (field trips, athletic events, banquets, festival trips, also robotics tournaments and one-off school functions). Service personnel: senior-most have priority, then rotate. Teachers: the board can withdraw the supplement without showing financial necessity (Robbins), but must apply pay decisions uniformly across teachers performing like duties (Weimer-Godwin).

The board's "overtime pay for professionals" label doesn't matter; what matters is which statute actually governs each duty.

What this means for you

County boards of education and superintendents

The opinion concludes the board's proposed extra-compensation scheme is permissible under W. Va. Const. art. VI, § 38 and W. Va. Code § 6-7-7, given that the board has excluded the superintendent and assistant superintendent (the only positions among the affected employees that qualify as "public officers" under Springer v. Board of Education). For non-officer employees, the opinion treats payment for "newly imposed" duties beyond the original contract as "extra pay for additional consideration," which the salary clause and extra-compensation clause do not bar.

The opinion further concludes that compliance turns on which of three statutory categories each duty falls into:

• Extracurricular assignments (§ 18A-4-16): activities outside regularly scheduled working hours on a regularly scheduled basis. The opinion identifies four requirements: mutually agreed maximum annual hours; board approval of the hours cap; written contract signed by both parties; contract separate from the employment contract.
• Supplemental duties (§ 18A-2A-1): duties other than those assigned under the contract that are expected during the educational day. The opinion concludes this provision applies only to teachers, based on its location in the "Teachers Bill of Rights" subchapter (citing Florida Dep't of Revenue v. Piccadilly Cafeterias on subchapter headings as interpretive tools). The opinion identifies an agreement-other-than-the-contract requirement and, where duties exceed the eight-hour day, a superintendent-preapproval requirement, with a carveout removing preapproval for unanticipated emergencies.
• Extra-duty assignments (§ 18A-4-8b for service personnel) / additional noninstructional duties (§ 18A-4-5a for teachers): irregular jobs that occur periodically. For service personnel, seniority drives priority. For teachers, the opinion cites Robbins (board may withdraw supplement without financial-necessity showing) and Weimer-Godwin (once additional compensation is paid to certain teachers, it must be paid in the same amount to other teachers performing like assignments and duties).

Teachers and service personnel

The opinion holds that constitutional pay for additional duties is permissible. Procedural requirements depend on which statutory category applies: extracurricular assignments require a separate written contract and an agreed annual hours cap; supplemental duties (teachers) require an agreement other than the employment contract; extra-duty assignments for service personnel follow the § 18A-4-8b seniority cycle; teacher noninstructional supplements under § 18A-4-5a are subject to Robbins (withdrawable) and Weimer-Godwin (uniform across teachers performing like duties).

School HR attorneys and county prosecutors

The opinion ties its constitutional analysis to the 2015 Temporary Salary Enhancement Opinion (2015 WL 4977862) and layers the school-statute compliance map on top. The opinion's reliance on subchapter headings (Piccadilly Cafeterias, Util. Air v. EPA) is the principal interpretive move limiting § 18A-2A-1's "supplemental duties" to teachers rather than all "school personnel."

Common questions

Q: Can the superintendent or assistant superintendent get extra pay for extra duties?

A: No, and the board's proposal sensibly excludes them. The superintendent and assistant superintendent are public officers under Springer (fixed term, fixed salary, sovereign power). The salary clause prohibits any salary change during their term. Even with new duties, you cannot add to their pay until a new contract term.

Q: What about additional duties tied to a brief emergency, like covering for a sick administrator?

A: § 18A-2A-1 includes an "unanticipated emergencies" carveout. The opinion explains that, in those situations, an agreement is still required but does not need to be preapproved by the superintendent.

Q: The opinion specifically calls out tutoring, robotics, and emergency coverage. How does the AG categorize them?

A: The opinion includes these among examples of "additional duties beyond those originally contemplated" that fall into the "extra pay for additional consideration" category for purposes of the constitutional analysis. The opinion does not assign each one to a specific statutory bucket; the categorization in part II turns on the schedule and nature of each particular assignment.

Q: Can the board roll back a supplement that has been paid for years?

A: The opinion cites Robbins for the proposition that "a local board may withdraw or cancel these special supplements" without showing financial necessity. It also cites Weimer-Godwin's uniformity rule. The opinion does not separately address rollback procedure.

Background and statutory framework

West Virginia public-school employment is governed by Chapter 18A. The opinion's analysis runs through three statutory categories of additional work, each defined by a specific statute and each with its own requirements.

Extracurricular assignments (§ 18A-4-16): activities that occur "at times other than regularly scheduled working hours" "on a regularly scheduled basis," including instructing, coaching, chaperoning, escorting, providing support services, or caring for student needs. Both teachers and service personnel are covered. Requirements: mutually agreed maximum hours per assignment per year; board approval of the hours cap; written, signed contract separate from the employment contract.

Supplemental duties (§ 18A-2A-1): teacher-only category. Defined as duties "other than [those] assigned under an employee's contract that [are] generally expected to be performed during an educational day." Limited by location in the "Teachers Bill of Rights" subchapter to teachers, including supervisors, principals, and librarians (broader than just classroom teachers, but narrower than all school personnel). Requirements: agreement other than the employment contract; if duties extend beyond the eight-hour contracted day, superintendent preapproval; emergency carveout removes the preapproval requirement but not the agreement requirement.

Extra-duty assignments / additional noninstructional duties:

• For service personnel, § 18A-4-8b: irregular jobs that occur periodically, like field trips, athletic events, proms, banquets, band festival trips. Seniority-based assignment cycle: most senior service employees get priority, with rotation through service ranks.
• For teachers, § 18A-4-5a: counties may provide additional compensation for duties beyond regular instructional duties when those noninstructional duties are not part of the regular school day. Robbins permits withdrawal without financial necessity, but withdrawal must be uniform. Weimer-Godwin requires equal pay for like duties.

Constitutional analysis layered on top:

• Salary clause (W. Va. Const. art. VI, § 38, second sentence): "the salary of any public officer [shall not] be increased or diminished during his term of office." Applies to "public officers" only, which means positions with fixed term, fixed salary, and sovereign power. Mere employees are excluded (State ex rel. Key v. Bond, 1923).
• Extra-compensation clause (W. Va. Const. art. VI, § 38, first sentence): "[n]o extra compensation shall be granted or allowed to any public officer, agent, servant or contractor, after the services shall have been rendered or the contract made." Applies to all public employees, but with two carve-outs: (a) compensation that was the "originally agreed-upon compensation" (negotiated upfront), and (b) "extra pay for additional consideration": pay for newly imposed duties that go beyond the original contract (Springer v. Board of Education).

The 2015 Temporary Salary Enhancement Opinion (2015 WL 4977862) is the AG's prior treatment of the constitutional analysis. This opinion adopts that framework and adds the statute-by-statute compliance map.

Citations

• W. Va. Code §§ 5-3-2; 6-7-7
• W. Va. Code §§ 18-1-1; 18A-1-1; 18A-2A-1; 18A-4-5a; 18A-4-8b; 18A-4-16
• W. Va. Const. art. VI, § 38
• Harbert v. Harrison Cnty. Ct., 129 W. Va. 54, 39 S.E.2d 177 (1946)
• State ex rel. Key v. Bond, 94 W. Va. 255, 118 S.E. 276 (1923)
• Springer v. Bd. of Educ. of Ohio Cnty., 117 W. Va. 413, 185 S.E. 692 (1936)
• State ex rel. Bd. of Governors of W. Va. Univ. v. Sims, 136 W. Va. 789, 68 S.E.2d 489 (1952)
• Smith v. Bd. of Educ. of Logan Cnty., 176 W. Va. 65, 341 S.E.2d 685 (1985)
• Robbins v. McDowell Cnty. Bd. of Educ., 186 W. Va. 141, 411 S.E.2d 466 (1991)
• Weimer-Godwin v. Bd. of Educ. of Upshur Cnty., 179 W. Va. 423, 369 S.E.2d 726 (1988)
• Florida Dep't of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33 (2008)
• Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014)

Source

• Landing page: https://ago.wv.gov/media/17476/download?inline
• Original PDF: https://ago.wv.gov/media/17476/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

August 14, 2024

The Honorable Scott R. Smith
Ohio County Prosecuting Attorney
Ohio County Courthouse
1500 Chapline Street
Wheeling, WV 26003

Dear Prosecutor Smith:
Your office has asked for an Opinion of the Attorney General about compensating
professional-exempt employees for additional job duties performed outside their existing
contractual arrangement. This Opinion is being issued under West Virginia Code § 5-3-2.

You explain that the Ohio County Board of Education has compensated its employees for
additional duties performed outside their existing contractual arrangement for several years. Most
recently, the Board has determined that it would be better to have a Board-approved guideline in
place. The proposed guideline would be considered by the Board only if the practice is deemed
permissible and would apply to professional-exempt employees with contracts ranging between
200 and 261 days. The guideline would expressly exempt both the superintendent and the assistant
superintendent from eligibility.

With these facts in mind, your letter raises the following legal question:
Is compensation for additional duties performed by professional employees outside their
existing contractual agreements prohibited by the West Virginia Constitution, Article VI, § 38,
West Virginia Code § 18A-2A-1, and/or West Virginia Code § 6-7-7?

We conclude that, under the facts you have described, the Board's plan to provide extra
compensation for additional duties is permissible under the West Virginia Constitution, Article VI,
§ 38 and West Virginia Code § 6-7-7. We further conclude that West Virginia Code § 18A-2A-1
and other statutory provisions impose various requirements with which the Board must comply
when it provides additional compensation.

Discussion

I. The Board May Compensate School Employees For Additional Duties Without Violating The West Virginia Constitution Or West Virginia Code Section 6-7-7.

Article 6, Section 38 of the West Virginia Constitution includes two separate prohibitions
relating to the pay of public employees. As relevant here, the provision states: "[1] [n]o extra
compensation shall be granted or allowed to any public officer, agent, servant or contractor, after
the services shall have been rendered or the contract made ... [2] [n]or shall the salary of any
public officer be increased or diminished during his term of office." W. Va. Const. art. VI, § 38.

Take the second prohibition, called the salary clause, first. Our 2015 Opinion explains that
the salary clause's prohibition is quite limited. It bars additional compensation only for public
officers, positions that have a fixed term, a fixed salary, and involve an exercise of sovereign
power. "[M]ere employee[s]" are beyond the clause's reach. State ex rel. Key v. Bond, 94 W. Va.
255, 118 S.E. 276 (1923).

The salary clause does not bar the Board's proposed additional compensation scheme.
Your request clarifies that the superintendent and assistant superintendent, public officers covered
by the prohibition (Springer v. Bd. of Educ. of Ohio Cnty., 117 W. Va. 413, 418, 185 S.E. 692, 694
(1936)), will be ineligible for additional compensation. Thus, those eligible for additional
compensation are "mere employees," to whom the prohibition does not apply.

The first prohibition, the extra-compensation clause, is broader. It applies to any "public
official, agent, employee, or contractor." The "ban on extra compensation [also] falls unevenly
on contractual and non-contractual employees." So, while contractual employees cannot receive
extra compensation after "the contract [is] made," non-contractual (at-will) employees cannot
receive extra compensation after their services "have been rendered."

But what qualifies as impermissible "extra compensation" is the same for contractual and
non-contractual employees. First, "an employer does not grant extra compensation when it pays
an employee the originally agreed-upon compensation." So, negotiating for the possibility of
additional compensation at the outset of employment does not violate the clause. Second, "extra
pay for additional consideration" is not extra compensation. Thus, an employee receiving
additional pay for "newly imposed" duties is not "extra compensation." Springer.

Here, the Board's compensation scheme is not forbidden extra compensation. The
examples your letter provides of "additional duties beyond those originally contemplated," such as
providing additional tutoring services, leading robotics programs, handling operations
emergencies, and filling in after an unanticipated employee departure, all seem to fall firmly into
the "extra pay for additional consideration" category.

II. The Board Must Comply With Various Statutory Provisions In Providing Additional Compensation.

West Virginia Code § 18A-2A-1 and other statutory provisions set forth various
requirements for how a school board can provide additional compensation. The starting point for
ensuring the Board's compliance with these provisions is determining which category each
additional duty falls into.

The West Virginia Code creates three categories of additional work: an extracurricular
assignment, a supplemental duty, or an extra-duty assignment (also called an additional
noninstructional duty). Each category imposes different requirements that the Board must comply
with.

1. Extracurricular Assignments.

Extracurricular assignments are "activities that occur at times other than regularly
scheduled working hours" "on a regularly scheduled basis." W. Va. Code § 18A-4-16. These
activities include "instructing, coaching, chaperoning, escorting, providing support services or
caring for the needs of students." Both "teachers and service personnel" can be given
"extracurricular assignments."

Extracurricular assignments are subject to several requirements. First, the employee and
superintendent must "mutually agree upon the maximum number of hours" per extracurricular
assignment per year. Second, the maximum hours agreed to by the employee and superintendent
is "subject to board approval." Third, the terms of the extracurricular assignment must be "in
writing and signed by both parties." And fourth, the extracurricular contract must be separate
from the employment contract.

2. Supplemental Duties.

Supplemental duties are any "duty other than [one] assigned under an employee's contract
that [are] generally expected to be performed during an educational day." W. Va. Code
§ 18A-2A-1. But supplemental duties may sometimes "exceed[] the eight[-]hour contracted day."

First, only teachers may perform supplemental duties. The supplemental duties provision
is found in Article 2a, entitled "Teachers Bill of Rights." Though "a subchapter heading cannot
substitute for the operative text of the statute," "statutory titles and section headings are tools
available for the resolution of a doubt about the meaning of a statute." Florida Dep't of Revenue
v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008).

Second, supplemental duties performed exclusively during the eight-hour workday "may
be governed by an agreement." But if these duties are governed by an agreement, the agreement
must be one "other than the employee's contract."

Third, supplemental duties that occur outside the workday require an agreement governing
the supplemental duty and must be "preapproved by the county superintendent or by his or her
designee." The statute's text does provide a carveout for duties that arise from "unanticipated
emergenc[ies]": in those situations, an agreement is still required but does not need to be
preapproved.

3. Extra-duty Assignments.

Extra-duty assignments are "irregular job[s] that occur periodically," such as "field trips,
athletic events, proms, banquets and band festival trips." W. Va. Code § 18A-4-8b. The
extra-duty assignment provision is found in Section 8b, entitled "Seniority rights for school service
personnel." Based on the provision's statutory location, only service personnel can have extra-
duty assignments. The most senior service personnel are given "priority in accepting extra-duty
assignments," followed by other service employees "according to the length of their service."

Although the term "extra-duty assignments" refers to only service personnel, other
provisions of the West Virginia Code indicate that teachers can be compensated for similar duties.
See W. Va. Code § 18A-4-5a. Counties "may provide additional compensation for any teacher
assigned duties in addition to the teacher's regular instructional duties wherein such
noninstructional duties are not a part of the scheduled hours of the regular school day."

Unlike other types of salary modification, "a local board may withdraw or cancel these
special supplements" without showing financial necessity for doing so. Syl. pt. 7, Robbins v.
McDowell Cnty. Bd. of Educ., 186 W. Va. 141, 411 S.E.2d 466 (1991). And "once a county board
of education pays additional compensation to certain teachers, it must pay the same amount of
additional compensation to other teachers performing like assignments and duties." Syl. pt. 1,
Weimer-Godwin v. Bd. of Educ. of Upshur Cnty., 179 W. Va. 423, 369 S.E.2d 726 (1988).

In sum, the Board may provide additional compensation to employees who take on extra
responsibilities but must do so in compliance with these statutory requirements.

Sincerely,

Patrick Morrisey
Attorney General

Michael R. Williams
Solicitor General

Spencer J. Davenport
Assistant Solicitor General