Can a West Virginia county fire board use the county fire service fee revenue under W. Va. Code § 7-17-12 to pay salaries and personnel costs for firefighters, including paid firefighters?

Plain-English summary

Berkeley County's prosecutor asked the AG whether the fire service fee that the county fire board collects under W. Va. Code § 7-17-12 can be used to pay salaries and other personnel costs for firefighters, especially paid firefighters.

Attorney General Patrick Morrisey said yes. The Article 17 framework gives county fire boards broad spending authority. Three statutory provisions did most of the work:

• § 7-17-12 dedicates fee revenue "to the county fire board for the purposes provided in this article."
• § 7-17-20 says the article's purpose is "to provide for the improvement, development and advancement of fire protection services within the counties," and that the article "shall be liberally construed as giving to the county fire board full and complete power reasonably required to give effect to the purposes hereof."
• § 7-17-10 lists the board's powers. The board may "[e]xpend its funds" (subsection (9)), "[g]enerally do any and all things necessary or convenient for the purposes of improving fire service protection" (subsection (4)), and "employ and fix compensation for personnel necessary for [its] operation" (subsection (2)). Section 7-17-3 also lets a board, with county-commission approval, contract "with any municipal fire department for fire protection services rendered to the county."

The opinion drew sharp contrast with the municipal-volunteer fire framework in W. Va. Code Chapter 8, Article 15. Section 8-15-8b lists fifteen specific things on which a municipal volunteer fire department's revenue may be spent, and Section 8-15-8 limits municipalities to "providing a firehouse, fire-fighting equipment, necessary paid personnel and incidental requirements." Article 17 has nothing similar. The Legislature knew how to impose itemized restrictions when it wanted to. Its silence in Article 17 was deliberate (Phillips v. Larry's Drive-In Pharmacy; Mangus v. Ashley; Sebelius v. Cloer).

The opinion also addressed the only express compensation restriction in Article 17: § 7-17-8 prohibits paying "member[s] of the board" for board service. The fact that the Legislature carved that one prohibition out reinforces that it did not silently bar paying firefighters generally. Section 7-17-19 separately requires the board to pay workers' compensation premiums for eligible employees, "an odd result if a board were required to pay fees incidental to employment yet could not pay an individual's salary."

A footnote noted that compensation for volunteer firefighters specifically might raise separate issues under the West Virginia Wage Payment and Collection Act, the federal Fair Labor Standards Act, and a 2008 DOL opinion letter (FLSA2008-15). The opinion left those issues for another day.

The single passing reference in Scott v. Marion County Commission to the fee's purpose being to "subsidize rural, volunteer fire departments" did not change the analysis. Scott was about who counts as "qualified voters" under § 7-17-12, not about how the funds may be spent, and it described a typical pattern (most counties use volunteers) without holding that all-volunteer status is required.

Currency note

This opinion was issued in 2018. 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's the county fire service fee?
A: A special fee that residents who receive county firefighting services pay. The county commission imposes it by ordinance after a petition from qualified voters under § 7-17-12. Putnam County Fire Service Board v. Kelly and Scott v. Marion County Commission describe the procedure.

Q: Where does the money go?
A: To the county fire board, dedicated to the "purposes provided in this article" (§ 7-17-12). Article 17 says the purpose is improving and developing county fire protection (§ 7-17-20), and gives the board broad authority to spend, employ personnel, and contract.

Q: Can a board pay full-time firefighter salaries?
A: Yes. The opinion read § 7-17-10's grants of power, including expending funds, doing what is "necessary or convenient" for fire protection, employing personnel, and fixing compensation, as full authority to fund firefighter salaries from fee revenue.

Q: What about paying volunteer firefighters a stipend or hourly wage?
A: That's a separate question. The opinion's footnote flagged that compensating volunteers can implicate the West Virginia Wage Payment and Collection Act and the federal FLSA, including the DOL's 2008 opinion letter on volunteer firefighters. Programs that pay volunteer firefighters need to be designed carefully to avoid converting volunteers into employees for FLSA purposes.

Q: Can the county fire board contract with a municipal fire department to provide service in unincorporated parts of the county?
A: Yes. Section 7-17-3 expressly authorizes a county fire board, with county-commission approval, to "contract[] with any municipal fire department for fire protection services rendered to the county."

Q: Why are county fire boards different from municipal volunteer fire departments?
A: The Legislature has set up two different funding structures. Municipal volunteer fire revenue under W. Va. Code § 8-15-8b is restricted to fifteen enumerated uses. County fire board revenue under Article 17 has no such itemized list. The opinion does not speculate about why; it observes that the Legislature knew how to impose limits and chose not to.

Q: Are there limits on what the board can do with fee money?
A: A few. (1) Section 7-17-8 forbids paying board members for their board service. (2) Section 7-17-19 requires the board to pay workers' compensation premiums. (3) Spending must be "consistent with a board's statutory powers and authority," meaning it must reasonably advance the purpose of improving fire protection within the county. (4) Spending must comply with general law (procurement, audit, conflict-of-interest rules).

Background and statutory framework

Article 17 of Chapter 7 sets up two layers of county fire-protection structure:

• County fire associations (§ 7-17-3): Comprised of members of county fire departments. Discuss fire-protection services and address county-level fire-protection issues.
• County fire boards (§ 7-17-6): Formed after a vote of the fire association and commission approval. Establish "the funding priorities for the fire departments forming the fire association."

Funding sources for boards (§ 7-17-16, § 7-17-12):

• County commission and municipal contributions.
• The fire service fee imposed by ordinance after voter petition.

Board powers under § 7-17-10 include:

• (1) (paraphrased) Sue and be sued.
• (2) Employ personnel and fix compensation.
• (3) Contract with persons, agencies, departments, firms, or corporations.
• (4) Generally do any and all things necessary or convenient for improving fire service protection.
• (9) Expend funds; expenditures are declared a public purpose.

The opinion contrasts this open-ended structure with the highly itemized municipal volunteer fire framework in W. Va. Code §§ 8-15-4 to -8c. The contrast was the centerpiece of the analysis.

Two interpretive canons did most of the work: the courts will not "add to statutes something the Legislature purposefully omitted" (Phillips), and "courts must presume that a legislature says in a statute what it means and means in a statute what it says there" (Mangus). The federal Sebelius v. Cloer analog reinforces the inference from differential treatment.

Citations and references

Statutes:
- W. Va. Code § 5-3-2 (AG advice to prosecutors)
- W. Va. Code § 7-17-1 (legislative findings)
- W. Va. Code § 7-17-3 (county fire associations; municipal contracts)
- W. Va. Code § 7-17-6 (county fire boards)
- W. Va. Code § 7-17-8 (no compensation for board members)
- W. Va. Code § 7-17-10 (board powers)
- W. Va. Code § 7-17-12 (fire service fee dedication)
- W. Va. Code § 7-17-16 (commission/municipality funding)
- W. Va. Code § 7-17-19 (workers' compensation premiums)
- W. Va. Code § 7-17-20 (liberal construction)
- W. Va. Code §§ 8-15-4 to -8c (municipal volunteer fire framework)
- W. Va. Code §§ 8-15-9 to -27 (municipal paid fire departments)
- W. Va. Code § 8-15-8b(1)-(15) (volunteer fire revenue restrictions)
- W. Va. Code § 8-15-8 (municipal volunteer support)
- W. Va. Code § 21-5-1 et seq. (West Virginia Wage Payment and Collection Act)

Cases:
- Scott v. Marion Cty. Comm'n, 180 W. Va. 483, 377 S.E.2d 476 (1988)
- Putnam Cty. Fire Serv. Bd., Inc. v. Kelly, 192 W. Va. 37, 449 S.E.2d 508 (1994)
- Phillips v. Larry's Drive-In Pharmacy, Inc., 220 W. Va. 484, 647 S.E.2d 920 (2007)
- Mangus v. Ashley, 199 W. Va. 651, 487 S.E.2d 309 (1997)
- Sebelius v. Cloer, 569 U.S. 369 (2013)

Federal guidance referenced:
- U.S. DOL, Wage and Hour Division Opinion Letter FLSA2008-15 (Dec. 18, 2008) (volunteer firefighter compensation)

Source

• Landing page: https://ago.wv.gov/media/17761/download?inline
• Original PDF: https://ago.wv.gov/media/17761/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

May 7, 2018

Catie Wilkes Delligatti
Prosecuting Attorney
Berkeley County
380 West South St., Suite 1100
Martinsburg, WV 25401

Dear Prosecutor Delligatti:

You have asked for an Opinion of the Attorney General about the permissible use of funds raised through the county fire service fee established in W. Va. Code § 7-17-12. This Opinion is issued pursuant to W. Va. 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.

Your letter raises the following legal question:

In what manner, and to what extent, may the fire service fees imposed under W. Va. Code § 7-17-12 be used to pay salaries and attendant costs of fire protection personnel employed by fire departments?

We conclude that using Section 7-17-12 fire service fees for expenses related to fire protection personnel is consistent with the statutory text and the Legislature's directive that these fees may be used broadly to accomplish the purposes of a county fire board.

DISCUSSION

West Virginia Code Chapter 7, Article 17, allows for the creation of county-wide fire associations and county fire boards. W. Va. Code §§ 7-17-3, 6; see also Scott v. Marion Cty. Comm'n, 180 W. Va. 483, 484, 377 S.E.2d 476, 476 (1988). County fire associations are comprised of members of county fire departments, and are designed to "discuss fire protection services to address fire protection problems at the county level." W. Va. Code § 7-17-3. County fire boards, which are formed after a vote of a county fire association and by approval of the county commission, are tasked with establishing "the funding priorities for the fire departments forming the fire association." Id. § 7-17-6. The Legislature's creation of these entities reflects its determination that "fire protection and saving lives and property are important to the health and welfare of the citizens of the State and that it is desirable for county governments to provide fire protection services to county residents." Id. § 7-17-1.

In addition to any funding from a county commission or municipality, W. Va. Code § 7-17-16, county fire boards are funded through a "fire service fee." Id. § 7-17-12. This fee is established by county-commission ordinance after a petition from qualified voters, and is paid by the residents who receive county firefighting services. Id.; see Putnam Cty. Fire Serv. Bd., Inc. v. Kelly, 192 W. Va. 37, 40, 449 S.E.2d 508, 511 (1994). While the procedure for setting and implementing fire service fees has been the subject of litigation, see, e.g., Kelly, 192 W. Va. at 40, 449 S.E.2d at 511; Scott, 180 W. Va. at 484, 377 S.E.2d at 476, the Supreme Court of Appeals has not had occasion to address the purposes for which the funds raised from this fee may be used. Nevertheless, we conclude that there is no statutory limitation on using the funds for the purposes described in your letter.

Section 7-17-12 provides that "[a]ny fees imposed under this article are dedicated to the county fire board for the purposes provided in this article." W. Va. Code § 7-17-12. Consistent with this broad authority, Section 7-17-20 makes clear that the article's "purpose" is "to provide for the improvement, development and advancement of fire protection services within the counties," and directs that "this article shall be liberally construed as giving to the county fire board full and complete power reasonably required to give effect to the purposes hereof." Id. § 7-17-20 (emphasis added). Together, these provisions make clear that a county fire board has discretion to apportion its funds, including revenue raised from the fire service fee, in any manner reasonably designed to advance the development and quality of firefighting services at the county level.

No other provision of Article 17 limits these general principles in the specific context of salaries and other costs for fire protection personnel. To the contrary, Section 7-17-10, which sets forth the enumerated powers of a county fire board, confirms that fire service fee revenues may be used to pay personnel costs. A county fire board may "[e]xpend its funds" when executing any of "the powers and authority herein given," and these expenditures are "determined and declared as a matter of legislative finding to be for a public purpose and use, in the public interest and for the general welfare of the people of West Virginia." W. Va. Code § 7-17-10(9). A board's "powers and authority" include power to "[g]enerally do any and all things necessary or convenient for the purposes of improving fire service protection within the area to be served." Id. § 7-17-10(4) (emphasis added). Boards also have express authority to "employ and fix compensation for personnel necessary for [their] operation," id. § 7-17-10(2), and to "contract[] with any person, agency, governmental department, firm or corporation," id. § 7-17-10(3) (emphasis added). And with approval of the county commission, a board may even contract with "any municipal fire department for fire protection services rendered to the county." Id. § 7-17-3 (emphasis added).

The only limitation on compensation in Article 17 is a prohibition on compensating "member[s] of the board" for their board-related services. W. Va. Code § 7-17-8. This bar on compensation for some individuals but not others further indicates that the Legislature did not intend to limit boards' ability to compensate fire protection personnel. See Phillips v. Larry's Drive-In Pharmacy, Inc., 220 W. Va. 484, 491, 647 S.E.2d 920, 927 (2007) (courts will not "add to statutes something the Legislature purposefully omitted"); Mangus v. Ashley, 199 W. Va. 651, 658, 487 S.E.2d 309, 316 (1997) ("courts must presume that a legislature says in a statute what it means and means in a statute what it says there"); cf. Sebelius v. Cloer, 569 U.S. 369, 378 (2013) ("where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (alteration and citation omitted)). Indeed, Section 7-17-19 requires a board to pay workers compensation premiums for all eligible employees; it would be an odd result if a board were required to pay fees incidental to employment yet could not pay an individual's salary.

To be sure, the Supreme Court of Appeals noted in Scott that the purpose of the fire service fee is to "allow counties to subsidize rural, volunteer fire departments." 180 W. Va. at 484, 377 S.E.2d at 476 (emphasis added). But this language does not alter our conclusion. Scott considered the definition of "qualified voters" for purposes of Section 7-17-12, not permissible uses of the fire service fee. Thus, while Scott's passing reference to the purpose of Section 7-17-12 reflects the reality that most counties use all-volunteer fire departments, it does not hold that they must do so. As discussed above, nothing in the statutory text supports this limitation.

Further, the Legislature has chosen to treat county fire associations different than municipal fire departments. West Virginia Code Chapter 8, Article 15 contains separate requirements for municipal "Volunteer Fire Companies" and "Paid Fire Departments". See W. Va. Code § 8-15-4 to -8c; id. § 8-15-9 to -27. In the volunteer context, it also provides specific limits on the use of municipal funding. For example, revenues for municipal volunteer fire departments "may be expended only for the items listed in [the statute]," such as protective equipment and capital improvements. Id. § 8-15-8b(1)-(15) (emphasis added). Similarly, a municipality may only "contribute to the support of its volunteer fire company by providing a firehouse, fire-fighting equipment, necessary paid personnel and incidental requirements to maintain such company upon an efficient basis." Id. § 8-15-8 (emphasis added). Article 17, by contrast, neither separates paid and volunteer county fire departments, nor contains any similar limits on permitted expenses. The reason for this disparate treatment is not clear, the Legislature may, for example, have given county fire boards greater latitude to use fire service fee revenues in light of the requirement that such fees be imposed only in response to a petition signed by qualified voters, W. Va. Code § 7-17-12. What is clear from the relevant statutes, however, is that the Legislature knows how to restrict spending so as to retain the volunteer nature of a particular fire department, yet declined to do so at the county level.

In sum, a plain-text reading of Article 17 makes clear that county fire boards have discretion to spend fire service fee revenues for any purposes consistent with a board's statutory powers and authority, including salaries and other costs for fire protection personnel.[^1] Similarly, consistent with the requirements of W. Va. Code §§ 7-17-10(3), 3, a county fire board may use these funds to contract for services provided by municipal firefighters for the benefit of county residents.

[^1]: Restrictions on compensation for "volunteer" firefighters (as opposed to full- or part-time firefighters) may implicate additional concerns, such as the applicability of the West Virginia Wage Payment and Collection Act, W. Va. Code § 21-5-1, et seq., and compliance with the Fair Labor Standards Act and related regulations, see Department of Labor, Wage and Hour Division, Opinion Letters, FLSA2008-15, December 18, 2008. These issues are beyond the scope of this Opinion.

Sincerely,

Patrick Morrisey
Attorney General

Gordon L. Mowen, II
Assistant Attorney General