Can someone work for the West Virginia Division of Highways while also serving as the public-employee representative on the PEIA Finance Board?

Plain-English summary

The Secretary of Transportation asked the Attorney General whether someone employed by the Division of Highways can also serve as the public-employee representative on the PEIA Finance Board (the seat created by W. Va. Code § 5-16-4(b)(1)(B)). The question matters because W. Va. Code § 17-2A-5 forbids anyone who "holds any public office" from working for DOH "in any . . . capacity," and goes further: an existing DOH employee who takes a public office "shall be immediately vacated" from DOH employment. There are no exceptions in the statute.

So the legal question reduces to whether the PEIA Finance Board seat is a "public office" within the meaning of § 17-2A-5. The AG said yes, and the analysis ran through the standard West Virginia framework.

The Carson five-factor test. State ex rel. Carson v. Wood, 154 W. Va. 397 (1970), supplies the controlling test. The factors:

1. The position was created by law.
2. The position is designated as an office.
3. Qualifications for the position are set by statute or other law.
4. The duties, tenure, salary, bond, and oath are prescribed or required.
5. Occupying the position makes one a representative of the sovereign.

The factors are weighed holistically; none is dispositive (Carson; City of Bridgeport v. Matheny).

Applying Carson to the PEIA Finance Board seat.
- Factor 1 (created by law): satisfied. The seat exists because § 5-16-4(b)(1)(B) creates it.
- Factor 3 (qualifications): satisfied. Members must be West Virginia residents; cannot be registered lobbyists; the public-employee representative must have three years of public-body employment before appointment and remain employed by a public body throughout the term (§ 5-16-4(b)(1)-(3)).
- Factor 4 (duties, tenure, compensation): satisfied. Duties are spelled out in § 5-16-5. Terms are four years, with hold-over service until a successor qualifies. Compensation tracks legislative interim per diem rates. Members also execute written oaths of office filed with the Secretary of State, even though no statute requires it.
- Factor 2 (designated as an office): close. The statute does not flatly call the position an "office," but § 5-16-4(b)(3) provides that "no member may be removed from office" except for specific cause. City of Bridgeport analyzed similar language for police officers and treated the for-cause removal language as relevant evidence without resolving whether it definitively satisfies factor 2. The AG read § 5-16-4(b)(3) the same way: probable, not certain.
- Factor 5 (representative of the sovereign): likely not satisfied. The Finance Board can bind the State for limited purposes (it must retain an actuary under § 5-16-5(b)), but its role is mostly advisory. Proposals require Governor and Legislature approval (§ 5-16-5(b), (f)). It does not enforce laws or promulgate policy on its own. Under State ex rel. Key v. Bond and Cales v. Town of Meadow Bridge, that lack of independent power-to-bind cuts against factor 5.

Bottom line. Three or four factors satisfied, one not. Hartigan (1901) called the missing factor "[t]he most important characteristic which distinguishes an office from an employment," but Carson and the modern cases have moved away from that ranking. The AG concluded a court would likely find the PEIA Finance Board public-employee representative position to be a public office, especially given:

• the for-cause removal limitation in § 5-16-4(b)(3), which suggests the Legislature intended officer-like (not at-will-employee) status;
• the officer-employee dichotomy Cales implied for governmental board members;
• the standard civil service exemption for "members of boards" in § 29-6-4(c)(5) read against the for-cause removal limit, which the Legislature would not need if the position were ordinary at-will employment; and
• a 1961 AG opinion (49 W. Va. Op. Atty. Gen. 249) that, though decided before Carson, concluded "any member of the state board of education or any other state board" "clearly" holds public office for purposes of § 17-2A-5's predecessor provision (the State Road Commission disqualification).

That last point is doing some work: the 1961 opinion was written under the more restrictive pre-Carson test, so reaching the same conclusion under the modern, more permissive Carson analysis is, if anything, an a fortiori case.

Effect under § 17-2A-5. Because the seat is a public office, anyone holding it cannot be "employed in any . . . capacity or employment by [DOH]." A DOH employee who takes the seat has the DOH "position . . . immediately vacated" by operation of statute. Fraley v. Civil Service Commission confirmed that § 17-2A-5 means what it says.

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: Does the same logic apply to other state boards?
A: The opinion reasons in general terms. Any state board where the seat is created by statute, has statutory qualifications, has prescribed duties and term/compensation, and where members are removable only for cause, will likely satisfy enough Carson factors to count as a public office for § 17-2A-5 purposes, even if the board's authority is largely advisory. The 1961 opinion explicitly extended the analysis to "any member of the state board of education or any other state board." A more recent appointment that fails several Carson factors, for example a purely advisory committee created by executive order with no statutory grounding, might come out the other way.

Q: What if the DOH employee takes the seat by mistake or unknowingly?
A: § 17-2A-5 vacates the DOH position "immediately." The opinion did not analyze due-process or notice issues, but the statute itself does not provide a grace period. Any DOH employee evaluating board service should resolve the conflict in advance.

Q: Could the employee resign from the public-employee representative seat instead of from DOH?
A: Yes; the conflict runs in either direction. § 17-2A-5 prevents holding both at the same time. Resigning either side cures the conflict.

Q: How is the public-employee representative seat different from other PEIA Finance Board seats?
A: Under § 5-16-4(b)(1)(B), the public-employee representative must have been employed by a public body for three years before appointment and must remain so employed throughout the term. The opinion focuses on this seat because it is the seat the Secretary asked about, but the Carson factors are the same for the other Board seats and the analysis would likely reach the same conclusion for them too.

Background and statutory framework

§ 17-2A-5's bar. "[N]o person may be . . . employed in any . . . capacity or employment by [DOH] when he . . . holds any public office." If a DOH employee "become[s] a candidate for or hold[s] any public office," the DOH position "shall be immediately vacated." The statute is a successor to the rules that governed the State Road Commission (§ 17-2A-1).

The Carson framework. West Virginia courts decide what counts as a "public office" using the five-factor test from State ex rel. Carson v. Wood, 154 W. Va. 397 (1970), which itself synthesized principles from Key v. Bond, 94 W. Va. 255 (1923), and a 1933 AG opinion (35 W. Va. Op. Atty. Gen. 252). The factors are weighed together, with no single one being dispositive (City of Bridgeport; Carson). Cales v. Town of Meadow Bridge, 239 W. Va. 288 (2017), is the most recent application.

The same position can be a "public office" for one statute and not for another. Compare Carr v. Lambert (assistant prosecuting attorney is an "appointed public office" for school-board eligibility purposes) with State v. Macri (assistant prosecuting attorney is not a public officer for the Article IV, § 4 citizenship requirement). The opinion handles this by anchoring its analysis to § 17-2A-5 specifically.

The PEIA Finance Board. Created by W. Va. Code § 5-16-4, the Board sets premium and benefit policy for the Public Employees Insurance Agency. § 5-16-5 lays out powers and duties. Most decisions require Governor and Legislature approval (§ 5-16-5(b), (f)). Members are appointed for four-year terms (§ 5-16-4(a)) and compensated at legislative interim per diem rates (§ 5-16-4(c)). Members may be removed only for cause (§ 5-16-4(b)(3)).

The fifth Carson factor. Key and Cales both treat the power to bind the State as central to the "representative of the sovereign" inquiry. Christopher v. City of Fairmont asks whether the position is "subject to the supervision and policy direction" of other officials. City of Bridgeport asks whether the position involves authority "regarding the enforcement of the laws of this State." The PEIA Finance Board's primarily advisory role, with most decisions subject to Governor and Legislature override, fails all three of these formulations.

Officer/employee dichotomy. A 2017 AG opinion read Cales as suggesting that members of governmental boards are either officers or employees, with the for-cause-removal indicator pulling toward the officer side. § 29-6-4(c)(5) excludes "members of boards" from civil service coverage, which would make them "at-will" by default (Roach v. Reg'l Jail Auth.); the Legislature's choice in § 5-16-4(b)(3) to require for-cause removal pushes the position back toward office status.

Citations and references

Statutes:
- W. Va. Code § 5-3-1 (AG opinions for state officers)
- W. Va. Code § 5-16-4 (PEIA Finance Board)
- W. Va. Code § 5-16-5 (Board powers and duties)
- W. Va. Code § 17-2A-1 (DOH; predecessor State Road Commission)
- W. Va. Code § 17-2A-5 (DOH public-office disqualification)
- W. Va. Code § 29-6-4(c)(5) (civil service exemption for board members)
- W. Va. Code § 61-12-14 (county coroner)

Cases:
- Hartigan v. Bd. of Regents of W. Va. Univ., 49 W. Va. 14 (1901)
- City of Bridgeport v. Matheny, 223 W. Va. 445 (2009)
- State ex rel. Crosier v. Callaghan, 160 W. Va. 353 (1977)
- Carr v. Lambert, 179 W. Va. 277 (1988)
- State ex rel. Riley v. Rudloff, 212 W. Va. 767 (2002)
- State v. Macri, 199 W. Va. 696 (1996)
- State ex rel. Carson v. Wood, 154 W. Va. 397 (1970)
- State ex rel. Key v. Bond, 94 W. Va. 255 (1923)
- Cales v. Town of Meadow Bridge, 239 W. Va. 288 (2017)
- Fraley v. Civil Service Commission, 177 W. Va. 729 (1987)
- Christopher v. City of Fairmont, 167 W. Va. 710 (1981)
- Roach v. Reg'l Jail Auth., 198 W. Va. 694 (1996)

Source

• Landing page: https://ago.wv.gov/media/17766/download?inline
• Original PDF: https://ago.wv.gov/media/17766/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
June 6, 2018

Honorable Thomas J. Smith
Secretary of Transportation/
Commissioner of Highways
State Capitol Complex
Building 5, Room 110
Charleston, WV 25305

Dear Secretary Smith:

You have asked for an Opinion of the Attorney General about whether an individual employed by the Division of Highways ("DOH") may also serve as a member of the Public Employees Insurance Agency ("PEIA") Finance Board. This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advice upon questions of law . . . whenever required to do so, in writing, by . . . the commissioner of the division of highways . . . ." To the extent this Opinion relies on facts, it is based solely on the factual assertions provided in your correspondence with the Office of the Attorney General.

West Virginia Code Section 17-2A-5 governs eligibility for employment with DOH, providing that no one who "holds any public office" may be employed by DOH "in any . . . capacity." Section 17-2A-5 further provides that in the event a DOH employee does "hold[] any public office," that individual's "position as employee . . . shall be immediately vacated." You ask whether membership on the PEIA Finance Board, specifically, the position representing public employees established by West Virginia Code Section 5-16-4(b)(1)(B) ("public-employee representative"), triggers Section 17-2A-5's disqualification provision.

Your letter raises the following legal question:

Is the position on the PEIA Finance Board described in Section 5-16-4(b)(1)(B) a public office, such that an individual serving in this position is ineligible to become or remain employed by the Division of Highways?

For the reasons discussed below, we conclude that it is. Accordingly, an individual cannot become or remain employed by DOH while serving as the public-employee representative on the PEIA Finance Board.

Discussion

The West Virginia Supreme Court of Appeals has long characterized the question of whether a specific government position qualifies as a public office to be "simple but difficult." Hartigan v. Bd. of Regents of W. Va. Univ., 49 W. Va. 14, 38 S.E. 698, 701 (1901). The inquiry is fact-bound and statute-specific. See City of Bridgeport v. Matheny, 223 W. Va. 445, 449, 675 S.E.2d 921, 925 (2009) ("whether a position is a public office . . . may differ in accordance with the statutory or constitutional provisions under which a given position is being examined"); State ex rel. Crosier v. Callaghan, 160 W. Va. 353, 357, 236 S.E.2d 321, 324 (1977). Indeed, even when a position qualifies as a public office for purposes of one statutory or constitutional provision, the same may not be true for purposes of another. Compare Syl. pt. 2, Carr v. Lambert, 179 W. Va. 277, 367 S.E.2d 225 (1988) (partial overruling noted by State ex rel. Riley v. Rudloff, 212 W. Va. 767, 772, 575 S.E.2d 377, 382 (2002)) (assistant prosecuting attorney holds an "appointed public office" for purposes of eligibility requirements for county board of education), with Syl. pt. 4, State v. Macri, 199 W. Va. 696, 487 S.E.2d 891 (1996) (assistant prosecuting attorney is not a public officer for purposes of the citizenship requirement set forth in Article IV, § 4 of the West Virginia Constitution).

In State ex rel. Carson v. Wood, 154 W. Va. 397, 175 S.E.2d 482 (1970), the Supreme Court of Appeals set forth a five-factor framework to determine whether a position qualifies as a public office. The "criteria" underpinning these factors were first enunciated in a 1933 Attorney General Opinion, see Carson, 154 W. Va. at 411, 175 S.E.2d at 491 (quoting 35 W. Va. Op. Atty. Gen. 252, 1933 WL 29853 (July 27, 1933)), which, in turn, synthesized and elaborated on principles discussed in the Court's 1923 decision in State ex rel. Key v. Bond, 94 W. Va. 255, 118 S.E. 276, 279 (1923). The Carson framework still guides this inquiry today. See Cales v. Town of Meadow Bridge, 239 W. Va. 288, 296, 800 S.E.2d 874, 882 (2017).

The five Carson factors are whether:

1) the position was created by law;
2) the position is designated as an office;
3) the qualifications for holding the position are set forth in the statute or other law establishing the position;
4) the duties, tenure, salary, bond, and oath of the position are prescribed or required; and
5) occupying the position makes one a representative of the sovereign.

Carson, 154 W. Va. at 411, 175 S.E.2d at 491. The factors are weighed holistically: the presence or absence of any one is not dispositive, nor are any "of the various combinations thereof." Id. at 410, 175 S.E.2d at 490; see also City of Bridgeport, 223 W. Va. at 449, 675 S.E.2d at 925 (emphasizing that there need not "be positive proof supportive of an 'office' as to all the various criteria").

Factors one, three, and four are readily satisfied here. For factor one, members of the PEIA Finance Board generally, and the member who shall "represent the interests of public employees" specifically, fill positions expressly created by the Legislature. W. Va. Code. § 5-16-4(a), (b)(1)(B). The third factor is satisfied because the statute establishing the PEIA Finance Board articulates specific qualifications for appointment. All members must be residents of West Virginia and may not be registered lobbyists, for example. Id. § 5-16-4(b)(2)-(3). The public-employee representative must additionally have been employed by a public body for three years prior to appointment, and must remain employed by a public body throughout his or her tenure. Id. § 5-16-4(b)(1)(B). As to the fourth factor, the statute expressly describes members' duties and sets their tenure and compensation. E.g., W. Va. Code § 5-16-5 (articulating the PEIA Finance Board's "purpose, powers and duties"); id. § 5-16-4(a) (members are appointed for "terms of four years" but may serve until their successor is "appointed and qualified"); id. § 5-16-4(c) (members shall receive "the same compensation and expense reimbursement that is paid to members of the Legislature for their interim duties for each day or portion of a day engaged in the discharge of official duties"). It also appears that, although not statutorily required, PEIA Finance Board members execute a written oath kept on file with the Secretary of State.

The second factor, whether the Legislature expressly designated the position as an office, is less clear-cut. The existence of this factor can be significant: in Fraley v. Civil Service Commission, for example, the Court held that a county coroner occupies public office despite the absence of other Carson factors where the authorizing statute provided that a coroner "shall hold his office during the pleasure of [the] commission." 177 W. Va. 729, 733, 356 S.E.2d 483, 487 (1987) (citing W. Va. Code § 61-12-14 (1984)). The statute here is not so direct. The closest it comes to designating PEIA Finance Board members as officers is a provision stating that "no member may be removed from office by the Governor except for official misconduct, incompetence, neglect of duty, neglect of fiduciary duty or other specific responsibility imposed by this article or gross immorality" W. Va. Code § 5-15-4(b)(3) (emphasis added).

In City of Bridgeport, the Supreme Court of Appeals analyzed a similar provision. There, the Court explained that although the statute describing a police officer's position contained "no specific designation . . . regarding whether police officers hold 'office,'" it did provide for "a police officer's removal from office for the failure to discharge any of the duties set forth in the statutory provision." 223 W. Va. at 449, 675 S.E.2d at 925 (citing W. Va. Code § 8-14-3). Nevertheless, the Court stopped short of holding whether such language satisfies the second Carson factor; it based its decision instead on the presence of the remaining four factors and reiterated that there need not "be positive proof supportive of an 'office' as to all the various criteria." Id. at 449-50, 675 S.E.2d at 925-26. The discussion in Section 5-15-4 about removal "from office" thus makes it likely, but not certain, that the second Carson factor is satisfied here.

The fifth factor is likely not satisfied. This factor asks whether occupying the position makes an individual a representative of the sovereign. The parameters of this factor depend on the degree of independent authority the position conveys. In Key, the Court held that the Secretary of State's "chief clerk" was not a public officer in part because she "exercise[d] no independent power or authority," as illustrated by her lack of "authority to represent and bind the state in contractual relations with third persons." 94 W. Va. 255, 118 S.E. at 280. This concept of power to bind the State appears again in Cales, which held that the fifth Carson factor was not satisfied where a member of a municipal sanitary board could not "bind or obligate" the town council that created the position. 239 W. Va. at 298, 800 S.E.2d at 884. Other cases describe this factor by considering whether the position is "subject to the supervision and policy direction" of other officials, Christopher v. City of Fairmont, 167 W. Va. 710, 714, 280 S.E.2d 284, 286 (1981), or whether it involves authority "regarding the enforcement of the laws of this State," City of Bridgeport, 223 W. Va. at 450, 675 S.E.2d at 926.

The public-employee representative position likely does not meet the fifth Carson factor. On the one hand, the PEIA Finance Board is authorized to enter into binding contractual relationships with at least one party. W. Va. Code § 5-16-5(b) (requiring board to retain an actuary). Yet it does not appear that board members possess power more generally to "bind or obligate" the State. On the contrary, the vast majority of the Finance Board's role is advisory, its proposals are submitted to and must ultimately be approved by the Governor and Legislature. See, e.g., id. § 5-16-5(b), (f). Without authority to enforce the laws or to promulgate policy absent prior approval from the executive and legislative branches, the fifth Carson factor is very likely not satisfied.

In sum, three or four of the Carson factors are satisfied here, and one is not. Although this issue poses a close question, we conclude that a court would likely find that the public-employee representative position is a public office.

To be sure, early cases described the missing fifth factor as "[t]he most important characteristic which distinguishes an office from an employment." Hartigan, 49 W. Va. 14, 38 S.E. at 701 (internal quotation marks omitted). Hartigan, however, was decided over a century ago; in Carson and in cases since, our high court has emphasized that no one factor is dispositive. See, e.g., City of Bridgeport, 223 W. Va. at 449, 675 S.E.2d at 925; Carson, 154 W. Va. at 411, 175 S.E.2d at 491. This conclusion is also consistent with a 1961 Attorney General opinion addressing an almost identical question about which positions implicate Section 17-2A-5's "public office" disqualification. Relying on the more restrictive, earlier precedents, that is, without the benefit of Carson and more recent cases, that opinion concluded that "any member of the state board of education or any other state board" "clearly" holds public office. 49 W. Va. Op. Atty. Gen. 249, 1961 WL 64759 (1961) (emphasis added). Accordingly, it concluded that members of state boards "are excluded from accepting employment with the State Road Commission", the statutory predecessor to DOH, see W. Va. Code § 17-2A-1, "in any capacity."

A recent opinion from this Office further supports this analysis. There, we explained that the Court's opinion in Cales "suggests that . . . members of governmental boards a[re] either officers or employees." W. Va. Op. Atty. Gen., 2017 WL 3224718, at *2 (July 18, 2017). With this officer-employee dichotomy in mind, the statutory provision making PEIA Finance Board members removable only for cause, W. Va. Code § 5-16-4(b)(3), suggests that the Legislature intended to place board members on the officer side of this line. Typically, "members of boards" are exempt from the heightened job-security provisions in the civil service statutes, and thus are akin to at-will employees. See W. Va. Code § 29-6-4(c)(5); see also Roach v. Reg'l Jail Auth., 198 W. Va. 694, 699, 482 S.E.2d 679, 684 (1996) ("Employees holding positions statutorily exempt from coverage under the classified service, such as the Appellant, are deemed 'at-will' employees" (emphasis in original)). By limiting the situations in which PEIA Finance Board members may be removed, the Legislature could be viewed as choosing to shift the balance away from this default, employee-like status. Combined with the analysis above, this indicia of legislative intent further supports our conclusion that the public-employee representative position is a public office for purposes of Section 17-2A-5.

Finally, because the public-employee representative occupies public office, it follows that an individual serving in this capacity may not be employed by DOH. The text of Section 17-2A-5 is plain: "[N]o person may be . . . employed in any . . . capacity or employment by [DOH] when he . . . holds any public office." The statute provides no exceptions, and the Supreme Court of Appeals confirmed this straightforward reading in Fraley. 177 W. Va. at 734, 356 S.E.2d at 488 ("Under West Virginia Code § 17-2A-5, a person who holds public office shall not be employed by the Department of Highways."). Further, the statute provides that if a DOH employee should "become[] a candidate for or hold[] any public office," that employee's position "shall be immediately vacated." W. Va. Code § 17-2A-5. Thus, an individual may not serve as the public-employee representative on the PEIA Finance Board while becoming or remaining employed by DOH.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

Zachary Aaron Viglianco
Assistant Attorney General