Can a West Virginia county commission collect overdue emergency ambulance service fees by filing a civil lawsuit or by referring the debt to a collections agency?

Plain-English summary

The Tucker County Commission passed a 2017 ordinance imposing a $50 annual special emergency ambulance service fee on every property owner and business in the county under W. Va. Code § 7-15-17. The ordinance, which took effect November 8, 2017, says fees are due September 1 each year, and that any fee unpaid by May 1 of the following year can be collected either through a civil lawsuit or by referral to a collections agency. The Tucker County Prosecuting Attorney asked the Attorney General whether both collection methods were lawful.

The AG said yes to both.

Civil lawsuits. Randy Waugh/Waugh's Mobile Home Park v. Morgan Cty. EMS Bd., 236 W. Va. 468 (2015), is directly on point. The West Virginia Supreme Court of Appeals there held that a county commission could delegate fee-collection power to its ambulance authority and that the authority could enforce that power through civil action. The opinion takes the obvious step: if a commission can delegate the power to sue to its authority, it must possess that power in the first place. Randy Waugh also confirmed that county commissions have statutory authority to pass ordinances "provid[ing] for the imposition and collection of emergency ambulance service fees." A 2013 AG opinion (2013 WL 5984531) had previously held that an ambulance authority does not have freestanding suit authority absent delegation, but expressly left the commission's own authority intact, which Randy Waugh later confirmed.

Collections agency referrals. This option had not been litigated, but the AG was confident it was lawful. The reasoning ran in three steps:

1. Threshold. § 7-15-17 says collection happens "by ordinance." Tucker County's ordinance includes the collections-agency option. The threshold is met.

2. No statutory limit on the manner of collection. § 7-15-17 says a county commission may "impose upon and collect from the users of the emergency ambulance service within the county" a special fee. Nothing in § 7-15-17 or related provisions prescribes how collection has to happen. Once the express power to "collect" exists, the commission has implied authority for any reasonable means consistent with that power, under the standard county-powers framework: "such powers as are expressly conferred . . . together with such as are reasonably and necessarily implied" (State ex rel. W. Va. Parkways Auth. v. Barr; State Line Sparkler v. Teach). The opinion treats civil suits and collections-agency referrals as equivalent for purposes of this implied-powers analysis. Both are reasonable, conventional means of pursuing unpaid debts; neither has any statutory bar.

3. Liberal construction. The Emergency Ambulance Service Act is to be "liberally construed to accomplish its purpose," W. Va. Code § 7-15-18, which is to "promote[] the health and welfare of the citizens and residents of this State" (§ 7-15-2). A reading of § 7-15-17 that would force the commission into civil court for every unpaid $50 fee but bar the more efficient collections-agency option would frustrate the Act's stated purpose. The liberal-construction directive cuts toward letting commissions use the full set of conventional tools.

Two cautions. The AG flagged two limits that any commission using a collections agency should keep in mind:

• Fee-sharing prohibition. All proceeds from the fee must be deposited in the special fund established by § 7-15-17 and used only for emergency ambulance service purposes (Randy Waugh at 236 W. Va. 476). That likely means the commission cannot let a collections agency take a percentage of recovered fees as compensation, because that would divert proceeds from the dedicated fund. The opinion does not say definitively, but it warns the issue exists. A flat-fee or per-account payment structure paid out of general revenue, rather than a percentage of recoveries, is a cleaner setup.
• Vetting. The opinion "strongly urge[s]" the commission to confirm any collections agency it uses is properly licensed and bonded under W. Va. Code § 47-16-4.

The opinion is narrow. It addresses only the lawfulness of the two collection methods. It does not bless any specific fee structure, any particular ordinance language, the constitutionality of the fee against takings or due-process challenges, or the propriety of the May 1 trigger date. Those questions, if they arise, are separate.

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 this opinion mean the Tucker County ordinance is generally valid?
A: It addresses only the collection-method question. The opinion assumed the ordinance was otherwise valid, citing Clay Cty. Citizens for Fair Taxation and City of Huntington v. Bacon for the general proposition that a county commission can impose ambulance service fees on county residents. Other potential challenges, exemptions, fee amount, equal protection, would be separate matters.

Q: Why did the prosecutor need an AG opinion if Randy Waugh already exists?
A: Randy Waugh approved an ambulance authority's civil suit, not a county commission's. The opinion confirms that the commission's own collection authority is at least as broad. The novel question was the collections-agency option, which had no Supreme Court of Appeals decision behind it. The opinion gives the commission a reasoned basis to use the agency without first testing it in litigation.

Q: Can the commission garnish wages or place liens?
A: The opinion does not address those collection mechanics. § 7-15-17 grants generic "collection" authority and does not specifically authorize wage garnishment or liens, which are typically creatures of separate statutes (e.g., judgment-execution rules). Whether the commission can use those tools after winning a civil judgment is a separate question; whether a collections agency can use them on the commission's behalf is even further afield.

Q: What about the late fees and interest mentioned in the ordinance?
A: § 7-15-17 contemplates "collection" of "fees." Adding late fees or interest may require separate statutory authority, depending on whether they are characterized as compensation for delayed payment or as additional fees. The opinion does not analyze them; it treats the ordinance as a backdrop.

Q: What if a property owner refuses to pay because they live near a private ambulance service or have private medical insurance?
A: That is a substantive challenge to the fee, not to the collection method. Clay Cty. Citizens for Fair Taxation upheld the imposition of an emergency ambulance fee on each county household, suggesting such challenges are unlikely to succeed at the imposition stage. The collection-method opinion stays out of that fight.

Q: Could the county use a third-party tax collector (like the Sheriff) to collect these fees?
A: The opinion does not address this. Randy Waugh confirmed the commission can delegate to its ambulance authority. Whether it can delegate to the Sheriff or other county officers is not analyzed. The opinion's focus on civil action and collections agencies leaves that route unaddressed.

Background and statutory framework

Emergency Ambulance Service Act. W. Va. Code Chapter 7, Article 15. Enacted 1975 to expand emergency ambulance coverage statewide (§ 7-15-2; Randy Waugh, 236 W. Va. at 475). § 7-15-4 lets a county commission create an ambulance authority. § 7-15-17 authorizes the special emergency ambulance service fee. § 7-15-18 directs that the Article be "liberally construed to accomplish its purpose."

The fee provision. § 7-15-17 lets a county commission, "by ordinance," "impose upon and collect from the users of the emergency ambulance service within the county" a "special emergency service fee." The Act dedicates fee proceeds to a special fund for emergency ambulance service purposes only (Randy Waugh at 236 W. Va. 476).

Validation under prior cases. Clay Cty. Citizens for Fair Taxation v. Clay Cty. Comm'n, 192 W. Va. 408 (1994), upheld imposition of an emergency ambulance service fee on each household in the county. City of Huntington v. Bacon, 196 W. Va. 457 (1996), reaffirmed Clay. Randy Waugh (2015) extended the analysis to confirm county commissions' ordinance authority and authorized civil suits for unpaid fees by delegated authorities.

Implied powers framework. A county commission has only powers "expressly conferred" plus those "reasonably and necessarily implied in the full and proper exercise of the powers so expressly given" (State ex rel. W. Va. Parkways Auth. v. Barr; State ex rel. State Line Sparkler of WV, Ltd. v. Teach). Where the express power is "collect[]" (§ 7-15-17), the means of collection follow as implied authority unless the statute restricts them, which § 7-15-17 does not.

Fund-dedication rule. Randy Waugh at 236 W. Va. 476 confirmed that ambulance service fee proceeds must go into the special fund and may only be used for emergency ambulance service. The 2018 opinion treats this as the limit on percentage-of-recovery contracts with collections agencies, suggesting (without holding) that fee-sharing arrangements would conflict with the dedication rule.

Collections-agency licensing. W. Va. Code § 47-16-4 sets license and bonding requirements for collections agencies operating in West Virginia. The 2018 opinion treats compliance as a precondition, not a federal-style preemption issue.

Earlier AG opinion. 2013 WL 5984531 (Nov. 8, 2013) held that an ambulance authority does not have freestanding civil suit authority but "expressly left open the question whether a county commission [may] delegate its statutory power" to do so. Randy Waugh answered that question in the affirmative two years later.

Citations and references

Statutes:
- W. Va. Code § 5-3-2 (AG advisory authority)
- W. Va. Code § 7-15-2 (Act intent)
- W. Va. Code § 7-15-4 (county may create authority)
- W. Va. Code § 7-15-17 (special ambulance service fee)
- W. Va. Code § 7-15-18 (liberal construction)
- W. Va. Code § 47-16-4 (collections agency licensing)

Cases:
- Randy Waugh/Waugh's Mobile Home Park v. Morgan Cty. Emergency Med. Servs. Bd., Inc., 236 W. Va. 468 (2015)
- Clay Cty. Citizens for Fair Taxation v. Clay Cty. Comm'n, 192 W. Va. 408 (1994)
- City of Huntington v. Bacon, 196 W. Va. 457 (1996)
- State ex rel. W. Virginia Parkways Auth. v. Barr, 228 W. Va. 27 (2011)
- State ex rel. State Line Sparkler of WV, Ltd. v. Teach, 187 W. Va. 271 (1992)

Earlier AG opinions:
- 2013 WL 5984531 (Nov. 8, 2013) (ambulance authority lacks freestanding civil suit authority absent delegation)

Source

• Landing page: https://ago.wv.gov/media/17791/download?inline
• Original PDF: https://ago.wv.gov/media/17791/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
State Capitol
Building 1, Room 26-E
Charleston, WV 25305-0220
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140
July 18, 2018

Raymond K. LaMora III
Tucker County Prosecuting Attorney
211 First Street, Suite 207
Parsons, WV 26287

Dear Prosecutor LaMora:

You have asked for an Opinion of the Attorney General concerning the Tucker County Commission's ability to collect unpaid special emergency ambulance service fees. 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.

In your letter, you explain that the Tucker County Commission ("Commission") exercised its authority under West Virginia Code § 7-15-17 by issuing an ordinance that requires county property owners and businesses to pay an annual special ambulance service fee. The ordinance provides that the Commission may collect unpaid, overdue fees by filing a civil action or referring the matter to a collections agency. You included a copy of the ordinance with your letter, which represents that it went into effect on November 8, 2017.

Your letter raises the following legal question:

Does a county commission have authority to collect overdue special emergency ambulance service fees pursuant to an ordinance that allows the commission to initiate a civil action or use a collections agency?

We conclude that both options are acceptable means by which a county commission may exercise its statutory authority to collect special emergency ambulance service fees from county residents.

Discussion

In 1975, the Legislature enacted the Emergency Ambulance Service Act to help expand emergency ambulance coverage across West Virginia. W. Va. Code § 7-15-2; see also Randy Waugh/Waugh's Mobile Home Park v. Morgan Cty. Emergency Med. Servs. Bd., Inc., 236 W. Va. 468, 475, 781 S.E.2d 379, 386 (2015). A central provision of this Act imbues county commissions with the power, and often the obligation, to create an emergency ambulance authority. W. Va. Code § 7-15-4. In turn, West Virginia Code § 7-15-17 provides that a county commission may, through ordinance, "impose upon and collect from the users of the emergency ambulance service within the county" a "special emergency service fee." See also Clay Cty. Citizens for Fair Taxation v. Clay Cty. Comm'n, 192 W. Va. 408, 409, 452 S.E.2d 724, 725 (1994) (upholding imposition of an emergency ambulance service fee upon each household within a county); City of Huntington v. Bacon, 196 W. Va. 457, 468-69, 473 S.E.2d 743, 754-55 (1996) (reaffirming Clay).

The ordinance at issue here does just that. Through the ordinance, the Commission imposed an annual special emergency ambulance service fee upon all property owners and businesses within Tucker County. This $50 fee is due by September 1 each year beginning September 1, 2018. The ordinance further provides that the Commission may initiate actions to collect any fees that remain outstanding on or after May 1 the year after the fees come due, together with late fees and interest. Specifically, the Commission may either engage a collections agency or pursue a civil action in its effort to collect overdue fees.

Turning first to the civil action option, there is no doubt that this is a permissible, legal method to collect delinquent special emergency ambulance service fees. In Randy Waugh, the Supreme Court of Appeals held that the Morgan County Commission had authority to delegate power to collect special emergency ambulance service fees to its ambulance authority, and that the ambulance authority could exercise this power by bringing a civil action. 236 W. Va. at Syl. Pt. 6, 781 S.E.2d at 381. Because county commissions have authority to delegate fee collection to other entities, it necessarily follows that they possess that power in their own right. Indeed, our high court emphasized that county commissions have statutory authority to pass ordinances that "provide[] for the imposition and collection of emergency ambulance service fees." Id. at 475, 781 S.E.2d at 386 (emphasis added). This conclusion is also consistent with a pre-Randy Waugh opinion from this Office, which reasoned that an ambulance authority lacks freestanding authority to bring a civil action to collect unpaid emergency ambulance fees, but expressly left open the question "whether a county commission [may] delegate its statutory power" to do so. Opinion of Attorney General Regarding Collection of Unpaid Emergency Ambulance Service Fees, 2013 WL 5984531, at *3 (W. Va. A.G. Nov. 8, 2013) (emphasis added).

Although use of a collections agency to collect ambulance service fees has not been tested in court, we are confident that this approach is also a valid exercise of the Commission's statutory authority. First, the Commission established this option through ordinance, satisfying the threshold requirement in West Virginia Code § 7-15-17 that a county commission may "collect" ambulance service fees "by ordinance" only. Nothing in Section 7-15-17 or other relevant statutes constrains the manner by which commissions may collect unpaid fees. Further, it is well-established that a county commission possesses "such powers as are expressly conferred by the Constitution and the legislature, together with such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given." Syl. Pt. 4, State ex rel. W. Virginia Parkways Auth. v. Barr, 228 W. Va. 27, 716 S.E.2d 689 (2011). We see no reason why resort to the courts would be a valid avenue to exercise a county commission's express authority under Section 7-15-17 to collect ambulance service fees, but engaging a collections agency would not. Both remedies can be fairly described as "reasonably and necessarily implied in the full and proper exercise of" the Commission's express power. Id.; see also Syl. Pt. 1, State ex rel. State Line Sparkler of WV, Ltd. v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992).

Further, the Emergency Ambulance Service Act is to be "liberally construed" to accomplish its purpose of "promot[ing] the health and welfare of the citizens and residents of this State." W. Va. Code § 7-15-2(b), (e), (d); see also id. § 7-15-18 (providing that "[t]he provisions of this article shall be liberally construed to accomplish its purpose"). An interpretation of Section 7-15-17 that unduly limits the means by which the Commission may exercise its authority to "collect" ambulance service fees would run against this principle and frustrate the Legislature's goal of empowering county commissions to establish enforceable systems to fund county emergency ambulance services. Accordingly, we conclude that the ordinance allowing the Commission to refer unpaid fees to a collections agency is a valid exercise of its power under Section 7-15-17.

Finally, although additional questions that may arise from the collections process itself are outside the scope of your request, we note that the ordinance must be applied consistent with other applicable laws. For example, because all proceeds from the collected fees must be deposited into a special fund and used for specific purposes only, see West Virginia Code § 7-15-17; Randy Waugh, 236 W. Va. at 476, 781 S.E.2d at 387, any fee arrangement between the Commission and a collections agency likely could not include sharing portions of those fees. We also strongly urge the Commission to ensure that any collections agency it may choose to employ is properly vetted and complies with the license and bonding requirements of West Virginia Code § 47-16-4.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

Gordon L. Mowen, II
Assistant Attorney General