Can the West Virginia State Conservation Committee prorate the daily per diem rate for conservation district supervisors so they get paid by the hour rather than a flat $150?

Plain-English summary

West Virginia conservation district supervisors get a per diem of $30 to $150 under W. Va. Code § 19-21A-7(c). The State Conservation Committee set the rate at the $150 ceiling. Then questions came up about what counts as a "work day": some supervisors do five hours of district work, some do twelve. The Committee wanted to prorate the $150 hourly to better match actual time worked, which would effectively pay supervisors $18.75/hour (rounded down to the $30 floor for short days).

The AG said no. "Per diem" means "by the day" or "for each day." It is a daily flat rate. Hourly proration is a different concept. The statute uses the singular "a per diem" twice, sets a daily rate range, and contains no proration language. Compare other West Virginia statutes that explicitly distinguish "salary, wage or per diem" as three separate methods. The Legislature treats hourly and per diem as two different things.

The AG also surveyed how other state courts handle proration of per diem rates. Pennsylvania says hourly and per diem are mutually exclusive. Where states do allow proration, it is because the underlying statute or contract explicitly contemplates it (Newman, Myres, Fairbanks). West Virginia's statute is silent. Silence, plus the singular "a per diem," plus the broader statutory pattern, forecloses hourly proration.

The Committee retains plenty of authority over conservation district finances generally (W. Va. Code § 19-21A-4), but cannot override the daily-flat-rate structure of § 19-21A-7(c). If the Committee thinks proration would be fairer, the fix is legislative: ask the Legislature to amend § 19-21A-7(c) to add proration language.

What this means for you

State Conservation Committee

The opinion holds that "per diem" in W. Va. Code § 19-21A-7(c) means "by the day" or "for each day," and that the Committee may not prorate the per diem rate hourly. The opinion concludes the rate is a flat daily figure within the statutory range of $30 to $150, set by the Committee "based on availability of funds." The opinion preserves the Committee's broad authority over conservation district finances under § 19-21A-4 (administering funding statutes, distributing funds, adopting rules, reviewing operations, allocating money, establishing accounting procedures), and notes that "reasonable and necessary expenses" may be reimbursed separately from the per diem under § 19-21A-7(c).

The opinion specifically declines to address "the precise line between what is included within the categories of 'expenses' and 'per diem'" and the question of what activities qualify as being "engaged in the performance of [a supervisor's] duties," treating both as outside its scope.

Conservation district supervisors

The opinion concludes the per diem under § 19-21A-7(c) is a flat daily rate, currently within $30 to $150 as set by the Committee, paid for each day the supervisor is "engaged in the performance of his or her duties." The opinion does not analyze short-day versus long-day questions because the per diem is a per-day figure.

State agency compensation administrators

The opinion treats statutory "per diem" language as a daily flat rate. The opinion cites multiple cross-statute usages where the Legislature treats hourly and per diem as distinct compensation categories: §§ 5-10-22c(c), 18-7A-35b(b), 5-10D-12, 5-10-48(b), 21-5C-1(f)(18), and 15A-3-16. The opinion separately addresses § 5-11-5's "time spent in the performance of duties" language and concludes "time" refers to the day-based nature of per diem, not hours.

Statutory-interpretation attorneys

The opinion's layered method draws on plain meaning (Black's Law Dictionary; a 1970 AG opinion), the restrictive use of singular "a" (Maupin v. Sidiropolis; DeGasperin; Wikimedia Found.), repeated singular use within the same statute (Copier Word Processing Supply v. WesBanco), cross-statute usage (Jam v. Int'l Fin. Corp.), and out-of-state authority including Grubel, Newman, Myres, and City of Fairbanks v. Rice. The opinion rejects two counterarguments: § 5-11-5's "time spent" formulation and the tort-damages "per diem" doctrine from Crum v. Ward.

Common questions

Q: What does "per diem" mean technically?

A: Latin for "by the day" or "for each day." Black's Law Dictionary (11th ed. 2019) defines it that way. A 1970 West Virginia AG opinion used the same definition. In compensation contexts, per diem is a flat daily rate paid for any day the recipient performs the work, regardless of how many hours within that day.

Q: Why can't the Committee just decide that paying $18.75 an hour is "more fair"?

A: Because the statute commits to a daily flat rate, not an hourly rate. The Committee has discretion within the statutory range ($30-$150), but not to change the structure of the compensation scheme. State v. McClain: courts give effect to "the intent of the Legislature" through plain language. The Legislature's intent is daily, not hourly.

Q: Can the Committee just lower the rate to $30 to effectively limit pay for short days?

A: Yes. The statute allows the Committee to set any rate within the $30-$150 range based on availability of funds. If most supervisor work is short and $150 seems excessive, the Committee can set the rate lower. But once set, the per diem is paid as a flat daily figure, not prorated hourly.

Q: What about "reasonable and necessary expenses"? Are those covered separately?

A: Yes. § 19-21A-7(c) provides for both. Expenses are reimbursement for actual costs (mileage, meals, lodging). Per diem is a flat compensation. They are separate categories.

Q: If the supervisor only does ten minutes of district work in a day, do they still get the full per diem?

A: The opinion specifically does not address what activities qualify as "engaged in the performance of his or her duties." That threshold question is "beyond the scope" of the opinion. The Committee can develop internal policies around what counts as triggering the per diem. But once a day is a "duty day," the per diem is the full flat rate.

Q: Does the opinion address how multiple per diems would be handled?

A: The opinion uses the singular "a per diem" reading throughout but does not analyze a fact pattern in which a supervisor serves multiple districts on the same calendar day.

Background and statutory framework

West Virginia's Conservation District Law lives in W. Va. Code Chapter 19, Article 21A. The State Conservation Committee oversees the conservation districts and has authority over their finances under § 19-21A-4. § 19-21A-7(c) sets supervisor compensation:

A supervisor is entitled to reasonable and necessary expenses and a per diem of not more than $150 nor less than $30 when engaged in the performance of his or her duties. The expense and per diem rate shall be established by the state committee based on availability of funds.

The opinion's analysis runs through five layers:

1. Plain meaning of "per diem." Black's Law Dictionary: "by the day; for each day." A 1970 AG opinion (53 W. Va. Op. Att'y Gen. 375) reached the same conclusion. State v. McClain says courts give effect to legislative intent through plain language. Alan Enterprises says courts begin with the statute's "plain language."

2. The singular "a per diem." Maupin v. Sidiropolis: in this "context," the "indefinite article 'a' should be read restrictively to 'mean [just] one' thing." DeGasperin: "a" referred to a "singular" subject. Wikimedia Found.: similar reasoning. The Legislature's choice of "a per diem" rather than "per diems" or "per diem rates" signals a single flat rate.

3. Repeated singular use in the same statute. § 19-21A-7(c) uses "a per diem" once and "[t]he ... per diem rate" once more. Copier Word Processing Supply v. WesBanco: "two subsequent occasions" of singular use confirmed singular legislative intent.

4. Cross-statute usage. Multiple West Virginia statutes treat hourly and per diem as distinct:

• § 5-10-22c(c): legislative employee compensation distinguishes "salary, wage or per diem compensation."
• § 18-7A-35b(b): same distinction.
• § 5-10D-12: Public Retirement Board record types include "salary, hourly or per diem."
• § 5-10-48(b): "regular" employees by hours worked vs. "reemployed" employees who work "per diem" up to 175 days/year.
• § 21-5C-1(f)(18): minimum wage definition distinguishes regular legislative employees and those paid "per diem."
• § 15A-3-16(g), (h): "per diem" inmate charges discussed in terms of "per day" and "intervals of 24 hours."

5. Out-of-state authority. Grubel v. City of Philadelphia: "[a]n hourly wage and a per diem are two different methods of compensation." States that allow proration do so because their statute or contract explicitly contemplates it (Newman, Myres, Fairbanks). Without explicit authorization, courts treat per diem as flat daily.

The opinion considers and rejects two counterarguments:

• § 5-11-5 ("$50 per diem for actual time spent in the performance of duties"): "time spent" might suggest hours, but the AG reads it as the time-based nature of per diem (days, not hours). § 19-21A-7(c) does not even use "time spent."
• The tort "per diem" damages doctrine (Crum v. Ward): allows hourly damages calculations, but is a non-employment-based context that the courts didn't even name. Doesn't apply to statutory compensation interpretation.

The opinion ends by emphasizing the Committee's broad remaining authority over conservation district finances under § 19-21A-4: administering laws appropriating funds, distributing funds, adopting rules, reviewing district operations, allocating money, and establishing accounting procedures. None of that authority extends to changing the daily-flat-rate structure of § 19-21A-7(c) into an hourly rate.

Citations

• W. Va. Code §§ 5-3-1; 5-10-22c(c); 5-10-48(b); 5-10D-12; 5-11-5; 15A-3-16
• W. Va. Code §§ 18-7A-35b(b); 19-21A-3; 19-21A-4; 19-21A-7(c); 21-5C-1(f)(18); 51-9-10
• State v. McClain, 247 W. Va. 423, 880 S.E.2d 889 (2022)
• Alan Enterprises LLC v. Mac's Convenience Stores, 240 W. Va. 250, 810 S.E.2d 61 (2018)
• Maupin v. Sidiropolis, 215 W. Va. 492, 600 S.E.2d 204 (2004)
• DeGasperin v. Ballard, No. 16-0133, 2017 WL 663577 (W. Va. Feb. 17, 2017)
• Wikimedia Found. v. Nat'l Sec. Agency, 14 F.4th 276 (4th Cir. 2021)
• Copier Word Processing Supply v. WesBanco Bank, 220 W. Va. 39, 640 S.E.2d 102 (2006)
• Jam v. Int'l Fin. Corp., 139 S. Ct. 759 (2019)
• Grubel v. City of Philadelphia, No. 1307 C.D. 2014, 2015 WL 7736941 (Pa. Commw. Ct. Nov. 30, 2015)
• Newman v. Advanced Tech. Innovation Corp., 749 F.3d 33 (1st Cir. 2014)
• Myres v. Strom Aviation, 255 N.C. App. 309, 804 S.E.2d 785 (2017)
• City of Fairbanks v. Rice, 628 P.2d 565 (Alaska 1981)
• Crum v. Ward, 146 W. Va. 421, 122 S.E.2d 18 (1961)

Source

• Landing page: https://ago.wv.gov/media/17541/download?inline
• Original PDF: https://ago.wv.gov/media/17541/download?inline

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

State of West Virginia
Office of the Attorney General

Patrick Morrisey, Attorney General
(304) 558-2021
Fax (304) 558-0140

June 8, 2023

The Honorable Kent A. Leonhardt
Chairman
West Virginia State Conservation Committee
1900 Kanawha Blvd. E., Bldg. 1, Rm 28E
Charleston, WV 25305

Dear Chairman Leonhardt:

You have asked for an Opinion of the Attorney General regarding the provision in West
Virginia's Conservation District Law that allows the State Conservation Committee (the
Committee) to set conservation district supervisors' per diem compensation rate. This Opinion is
being issued pursuant to West Virginia Code § 5-3-1.

Under West Virginia Code § 19-21A-7(c), conservation district supervisors may be paid
a per diem of $30 to $150. Your letter explains that the Committee has set the rate at $150. But
given questions about "the duration of a 'work day,'" the Committee wants to prorate this rate
hourly "to make the rate account for actual time increments in [a] workday" instead of paying a
"flat rate of $150" in all circumstances.

Your letter raises the following legal question:
For purposes of West Virginia Code § 19-21A-7(c), may the Committee prorate conservation district supervisors' per diem rate by the hour so long as the total rate paid stays within the statutory range?

We conclude that "per diem" means "by the day" or "for each day", in contrast to an
hourly wage. The Legislature's choice to use a per diem reimbursement scheme thus means the
Committee may not prorate the per diem rate.

Discussion

In 2006, the Legislature amended the Conservation District Law's then-existing per diem
provision to read:

A supervisor is entitled to reasonable and necessary expenses and a per diem of not
more than $150 nor less than $30 when engaged in the performance of his or her
duties. The expense and per diem rate shall be established by the state committee
based on availability of funds.

W. Va. Code § 19-21A-7(c).

The Supreme Court of Appeals has not weighed in on the meaning of "per diem" in this
context. And the precise line between what is included within the categories of "expenses" and
"per diem" is beyond the scope of this Opinion. But when it comes to your question about potential
proration, the ordinary definition of the term is straightforward. Black's Law Dictionary (11th ed.
2019), translating the Latin phrase, says "per diem" means "[b]y the day; for each day." A 1970
Attorney General Opinion defined "per diem" using nearly identical dictionary definitions. See 53
W. Va. Op. Att'y Gen. 375 (1970). Nothing in Section 19-21A-7(c) suggests the Legislature
intended a more specialized meaning. "Per diem" thus means by the day or for each day.

By contrast, prorated per diem compensation is conceptually the same as hourly
compensation. Prorating a per diem takes a longer way around: it requires dividing the per diem
rate by the standard number of hours in the workday and then multiplying by the number of hours
actually worked, rather than just multiplying a set hourly rate by the number of hours worked. But
it comes out to the same thing in the end. Here, the Committee has settled on a $150 per diem.
Dividing $150 by eight hours for a standard workday is $18.75 per hour. Flexibility to prorate the
per diem would effectively mean authority to pay supervisors $18.75 an hour for anything above
Section 19-21A-7(c)'s absolute floor of $30 a day.

So a reviewing court would likely say that the plain meaning of "per diem" forecloses
proration. "The primary object in construing a statute is to ascertain and give effect to the intent
of the Legislature." State v. McClain, 247 W. Va. 423, 880 S.E.2d 889 (2022). Courts therefore
begin statutory analyses with the statute's "plain language," giving that text its ordinary and
straightforward meaning. Alan Enterprises LLC v. Mac's Convenience Stores LLC, 240 W. Va.
250, 254, 810 S.E.2d 61, 65 (2018). Here, an ordinary person would almost certainly understand
"per diem" compensation to be paid for all work done in a 24-hour period, no matter the actual
hours spent.

It's also grammatically important that this statute uses the article "a" alongside the singular
"per diem": "A supervisor is entitled to ... a per diem of not more than $150 nor less than $30."
W. Va. Code § 19-21A-7(c). In this "context," the "indefinite article 'a'" should be read
restrictively to "mean [just] one" thing. Maupin v. Sidiropolis, 215 W. Va. 492, 497-98, 600
S.E.2d 204, 209-10 (2004).

The Legislature's choice to use "per diem" in the singular, "a per diem" and "[t]he ... per
diem rate," W. Va. Code § 19-21A-7(c), confirms that reading, too. Indeed, making that choice
"on two subsequent occasions" in the statute made it more "apparent that the legislature intended
['per diem'] to have a singular meaning." Copier Word Processing Supply, Inc. v. WesBanco
Bank, Inc., 220 W. Va. 39, 48, 640 S.E.2d 102, 111 (2006).

Other tools of statutory construction beyond plain-text analysis get to the same result.
When a statutory term is unclear, courts often discern legislative intent by examining how the
Legislature uses the term in other laws. Jam v. Int'l Fin. Corp., 139 S. Ct. 759, 768 (2019).
Considering other statutes here shows that the Legislature routinely treats hourly and per diem
compensation as two distinct methods of compensation. W. Va. Code § 5-10-22c(c), for example,
differentiates between "salary, wage or per diem compensation" in the legislative employee
context. See also id. § 18-7A-35b(b) (same). The Consolidated Public Retirement Board's
record-keeping requirements for "type of pay" offer as examples "salary, hourly or per diem." Id.
§ 5-10D-12. Similar statutes abound. See, e.g., id. § 5-10-48(b); id. § 21-5C-1(f)(18). In fact,
even requirements that counties and municipalities pay a "per diem" charge for incarcerating
inmates speak in terms like "per day" and "intervals of 24 hours." Id. § 15A-3-16(g), (h).

Out-of-state authorities appear to agree with this analysis. Some state courts say hourly
and per diem compensation are mutually exclusive. See, e.g., Grubel v. City of Philadelphia, No.
1307 C.D. 2014, 2015 WL 7736941, at *4 (Pa. Commw. Ct. Nov. 30, 2015). And even when state
courts do allow per diem proration, it's often because whatever text they're interpreting explicitly
contemplates it. See, e.g., Newman v. Advanced Tech. Innovation Corp., 749 F.3d 33, 37 (1st Cir.
2014); Myres v. Strom Aviation, Inc., 255 N.C. App. 309, 313, 804 S.E.2d 785, 789 (2017); City
of Fairbanks v. Rice, 628 P.2d 565, 567 n.4 (Alaska 1981).

In short, the Legislature appears to view "per diem" compensation as a single lump sum
owed once every 24 hours.

To be sure, there are some potential counterarguments. First, at least one statute says that
certain commission members "shall be paid $50 per diem for actual time spent in the performance
of duties." W. Va. Code § 5-11-5. At first blush, someone could take the "time spent" language
to mean "hours spent." But there's no reason to assume that "time" means hours rather than days.
Especially given the use of "per diem" in other statutes, it makes more sense to conclude that the
Legislature was reflecting the intrinsic nature of per diem compensation as time-based, not
task-based. And in any event, Section 19-21A-7(c) does not talk of "time spent."

Second, the Supreme Court of Appeals has several times discussed a prohibited form of
calculating pain-and-suffering damages it calls the "per diem" method. Crum v. Ward, 146 W.
Va. 421, 427, 122 S.E.2d 18, 23 (1961). That "per diem" method does allow "hourly" damages
calculations. Yet the Court didn't come up with the label (others did), and it uses it only to explain
a certain argument in a particular, non-employment-based context.

Finally, nothing in this Opinion calls into question the Committee's broad discretion over
conservation districts and especially their finances. The Committee must administer any law
"appropriating funds for expenditures in connection with the activities of conservation districts,"
"distribute to conservation districts funds," "adopt rules" for using "such funds," review districts'
administrative procedures and operations, and "advise the districts concerning their conformance
with applicable laws and rules." W. Va. Code § 19-21A-4(10)-(11). The Committee may also
allocate any money it receives from any source to districts, id. § 19-21A-4(12), and must
"[e]stablish by rule, adequate and reasonably uniform accounting and auditing procedures," id.
§ 19-21A-4(17). So even though the Legislature set a particular method of compensation in this
context, the Committee retains significant power over districts and their finances.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General