Can a West Virginia county design its own sick-leave policy for county employees, including a leave-donation program, even if state employee policy doesn't have the same features?

Plain-English summary

Hardy County wanted to know if it could design its own county-employee sick-leave policy, including a leave-donation program (where one employee can give some of their accrued sick days to a co-worker who has run out), even though the State of West Virginia's policy for state employees did not include leave donation.

Attorney General Patrick Morrisey said yes. W. Va. Code § 7-5-21 says county commissions are "authorized to grant county employees annual and sick leave benefits" and the statute is intentionally open-ended. The state's regulatory sick-leave policy for state employees, W. Va. Code St. R. § 143-1-14.4, applies only to state employees. Counties were not bound to mirror it.

Two interpretive moves anchored the conclusion:

1. Plain meaning. Section 7-5-21 just authorizes counties to grant leave; it does not prescribe form or content. Where a delegating statute "contains no indication that its application is limited," the Court presumes the Legislature did not intend a limit (Yatauro v. Calhoun County Board of Education).
2. In pari materia comparison. Looking at neighboring statutes shows that when the Legislature wants to constrain how counties handle leave for a particular group, it knows how to do it. Section 7-14B-19(c) lets county commissions establish correctional-officer sick-leave policies (broad authority again). Section 7-14-17b(a), by contrast, mandates paid sick leave for deputy sheriffs accrued under a fixed formula. The contrast confirmed that the more general Section 7-5-21 was not implicitly constrained.

The bottom-line carve-out: deputy sheriffs are governed by the more specific Section 7-14-17b(a), and that more specific statute controls (UMWA v. Kingdon).

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What did the AG say about leave donation specifically?
A: The opinion did not analyze the mechanics of leave donation, but treated it as an ordinary feature a county commission could include in its sick-leave policy under § 7-5-21's broad grant of authority. Nothing in the cited statutes prohibited employee-to-employee donation of accrued leave.

Q: Are deputy sheriffs different?
A: Yes. W. Va. Code § 7-14-17b(a) imposes a mandatory paid sick-leave program for deputy sheriffs accrued under a fixed formula. The county commission cannot reduce it or design it differently. The opinion did not say whether deputy sheriffs could receive donated leave on top of statutory accrual, just that the floor is statutory.

Q: Does this opinion apply to other types of leave (vacation, FMLA, parental)?
A: Section 7-5-21 by its own terms covers "annual and sick leave," which the opinion focused on. Other leave types may be covered by federal law (FMLA), the West Virginia Parental Leave Act, or other specific statutes. The opinion did not address those.

Q: Could a county pay less generously than the state's policy?
A: That was not the question, but the opinion's logic suggests yes, with two caveats: any constitutional limits (equal protection, etc.) plus any specific mandatory minimums for particular employee classes (like the deputy-sheriff floor).

Background and statutory framework

County commissions are creatures of statute with only the powers expressly conferred or necessarily implied. State ex rel. County Court v. Arthur lays out that framing. The Legislature has expressly conferred "plenary power and authority" to provide group insurance under § 7-5-20 and to "grant" sick leave under § 7-5-21.

The opinion's clean separation of statutes:

• § 7-5-21: General authority. County commissions may "grant" sick leave.
• § 7-14B-19(c): Correctional officers. Same broad delegation.
• § 7-14-17b(a): Deputy sheriffs. Mandatory paid sick leave under fixed formula. The narrower, controlling rule for that class.

The interpretive moves came from the standard West Virginia toolkit: plain meaning (Hammons), the presumption that statutes mean what they say (Martin v. Randolph), the inference that omitted limits weren't intended (Yatauro), in pari materia (Miller v. Wood), specific-controls-general (UMWA v. Kingdon), and the Legislature-knows-how-to-impose-limits canon (Hunter H., Liberty Mutual v. Morrisey).

Citations and references

Statutes and rules:
- W. Va. Code § 5-3-2 (AG advice to prosecutors)
- W. Va. Code § 7-5-20 (group insurance)
- W. Va. Code § 7-5-21 (annual and sick leave)
- W. Va. Code § 7-14B-19(c) (correctional officers)
- W. Va. Code § 7-14-17b(a) (deputy sheriff sick leave formula)
- W. Va. Code St. R. § 143-1-14.4 (state employee sick leave policy)

Cases:
- State ex rel. Cty. Court v. Arthur, 150 W. Va. 293, 145 S.E.2d 34 (1965)
- Hammons v. W. Va. Office of Ins. Comm'r, 235 W. Va. 577, 775 S.E.2d 458 (2015)
- Martin v. Randolph Cty. Bd. of Educ., 195 W. Va. 297, 465 S.E.2d 399 (1995)
- Yatauro v. Calhoun Cty. Bd. of Educ., 2016 WL 5030280 (W. Va. Sept. 16, 2016) (mem. decision)
- Miller v. Wood, 229 W. Va. 545, 729 S.E.2d 867 (2012)
- Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d 907 (1975)
- UMWA by Trumka v. Kingdon, 174 W. Va. 330, 325 S.E.2d 120 (1984)
- In re Hunter H., 231 W. Va. 118, 744 S.E.2d 228 (2013)
- Liberty Mut. Ins. Co. v. Morrisey, 236 W. Va. 615, 760 S.E.2d 863 (2014)

Source

• Landing page: https://ago.wv.gov/media/17716/download?inline
• Original PDF: https://ago.wv.gov/media/17716/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

March 29, 2019

The Honorable Lucas J. See
Hardy County Prosecuting Attorney
204 Washington Street, Room 104
Moorefield, WV 26836

Dear Prosecutor See:

You have asked for an Opinion of the Attorney General concerning the authority of county governments to adopt sick leave policies for their employees. This Opinion is being issued pursuant to West Virginia Code § 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." To the extent this Opinion relies on facts, it is based solely on the factual assertions in your correspondence with the Office of the Attorney General.

The State of West Virginia promulgates a sick leave policy for state employees, but not for public employees generally. W. Va. Code St. R. § 143-1-14.4. Your letter asks whether benefits policies for county employees must be consistent with the State's policies. Specifically, you ask whether a county commission can adopt a medical leave policy that allows county employees to donate sick leave to another employee, even if the State's policy does not include a similar provision.

Your letter raises the following legal question:

Can a county commission adopt benefits policies for its employees, specifically, sick-leave policies, that differ from the policies that apply to state employees?

We conclude that, with limited statutory exceptions, the Legislature has granted counties general authority to adopt employee benefits programs consistent with the needs of the county and their employees, and that there is no requirement for a county sick-leave policy to mirror state policies.

Discussion

A county commission is "a corporation 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. Cty. Court v. Arthur, 150 W. Va. 293, 145 S.E.2d 34 (1965). One of the powers that has been "expressly conferred" to county commissions is authority to provide medical benefits for their employees and to adopt implementing policies. Counties have "plenary power and authority" to secure group life and health insurance policies for their employees, for example. W. Va. Code § 7-5-20. And with respect to sick leave policies, county commissions are similarly "authorized to grant county employees annual and sick leave benefits." Id. § 7-5-21.

The general grant of authority in Section 7-5-21 is straightforward, and its text does not suggest that the Legislature intended to dictate the details of sick leave policies on the county level. By providing only that county commissions may "grant county employees annual and sick leave," the statute does not require commissions to grant these benefits in any particular form, much less the same form in which the State grants leave to state employees. A court would very likely conclude that this plain-text reading resolves the question: Where "the text, given its plain meaning, answers the interpretative question, the language must prevail and further inquiry is foreclosed." Hammons v. W. Va. Office of Ins. Comm'r, 235 W. Va. 577, 584, 775 S.E.2d 458, 465 (2015) (citation omitted).

Two principles of statutory interpretation bolster this reading. First, the Supreme Court of Appeals has applied the general principle that statutes are presumed to mean what they say, without more, see Martin v. Randolph Cty. Bd. of Educ., 195 W. Va. 297, 312, 465 S.E.2d 399, 415 (1995) (citation omitted), to the context of delegated statutory powers. Where a grant of authority "contains no indication that its application is limited" or "provision . . . which limits [a body]'s authority to act," courts will presume that "the Legislature did not intend to limit [its] authority." Yatauro v. Calhoun Cty. Bd. of Educ., 2016 WL 5030280, at *4-5 (W. Va. Sept. 16, 2016) (mem. decision) (citation omitted). Applied to the open-ended language of Section 7-5-21, this principle strongly suggests that county commissions have discretion to craft the details of employee sick leave policies.

Second, reading all statutes governing public employee sick leave policies together further supports this reading. See Syl. pt. 7, Miller v. Wood, 229 W. Va. 545, 729 S.E.2d 867 (2012) ("[S]tatutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent." (quoting Syl. pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d 907 (1975))). While Section 7-5-21 refers to policies for "county employees" generally, two statutes contain specific direction for certain subsets of employees. West Virginia Code § 7-14B-19(c) provides that "[c]orrectional officers may accumulate yearly sick leave in accordance with policy to be established by the county commission." Like Section 7-5-21, this grant of authority is broad, and plainly reflects the Legislature's intent that the county commission may set its own policies in this area.

The statute authorizing sick leave for deputy sheriffs is more specific. It provides that "[t]he county commission of each county shall allow the sheriffs deputies sick leave with pay," and that such leave must be "computed" according to a fixed formula. W. Va. Code § 7-14-17b(a). There are two notable distinctions between this statute and the more general sick leave statutes in Sections 7-5-21 and 7-14B-19(c): County commissions are required to provide paid sick leave to deputy sheriffs ("shall allow"), as opposed to having discretion to adopt sick leave policies, and sick leave for deputy sheriffs must be accrued under a statutorily set formula. Id. To the extent your request relates to deputy sheriffs, this more specific statute controls. See Syl. pt. 1, UMWA by Trumka v. Kingdon, 174 W. Va. 330, 325 S.E.2d 120 (1984) (recounting the "general rule of statutory construction [which] requires that a specific statute be given precedence over a general statute relating to the same subject matter"). For all other employees, however, this statute confirms county commissions' broad authority: The fact that the Legislature imposed express constraints on the type of sick leave policies county commissions may adopt for deputy sheriffs underscores that there are no similar implicit limits in the more general sick leave statutes. For example, in a case construing the Grandparent Adoption Act, W. Va. Code § 48-10-902, the Supreme Court of Appeals refused to apply an exception to the general rules governing adoption any further than the specific context described in the statute, there, visitation rights for grandparents where a child is adopted by another relative. The court reasoned that the specific statutory language "reveals that our Legislature knew how to make an exception to the severing effect of adoption", and conversely that the Legislature did not intend for such an exception to apply more broadly. In re Hunter H., 231 W. Va. 118, 123, 744 S.E.2d 228, 233 (2013); see also Liberty Mut. Ins. Co. v. Morrisey, 236 W. Va. 615, 625, 760 S.E.2d 863, 873 (2014) ("If [the Legislature] had wanted the statute to apply to salvage/recycled OEM crash parts, [it] could have easily done so, as it did with aftermarket crash parts.").

We therefore conclude that when delegating authority to county commissions to create sick leave policies, the Legislature did not mandate consistency between these policies and those that apply to state employees. With the exception of policies for deputy sheriffs, where Section 7-14-17b(a)'s requirements govern, county commissions are free to design sick leave policies according to their own needs and priorities.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

Thomas T. Lampman
Assistant Attorney General