Can a West Virginia constitutional officer like the Commissioner of Agriculture sign long-term real estate leases in the final days of his term, after his successor has been elected? And can the new commissioner unilaterally tear up those leases?

Plain-English summary

Kent Leonhardt was elected Commissioner of Agriculture in November 2016. Between his election and his swearing-in, his predecessor signed two long-term leases of state farm property: a 35-year lease to Sweet Springs Resort Park Foundation for 650 acres (signed January 4, 2017) and a 30-year lease to Mason County Building Commission for 128.6 acres (signed January 13, 2017). Both were signed for "economic development" purposes under W. Va. Code § 19-12A-5(d)(1). After taking office, Commissioner Leonhardt asked the AG two questions: was his predecessor allowed to do this on the way out, and can he undo it?

Question 1: Was the outgoing Commissioner allowed to sign these leases? Yes.

The West Virginia Constitution sets four-year terms commencing on a fixed date. Until that date, the incumbent has full authority to "discharge of their duties at the time fixed for the commencement of their terms" (State v. Jones, 1917; State ex rel. Tomblin v. Bivens, 1966). Outgoing officers routinely sign documents and grant pardons until their final day; the AG cites then-Governor Tomblin's pardon issued the same week before he left office.

The express statutory authority is § 19-12A-5(d)(1), which "authorize[s] and authorize[s]" the Commissioner to lease state agricultural land "for purposes including agricultural production or experimentation, public necessity, or other purposes permitted by the management plan." There is no time-of-term restriction in the statute. The AG specifically reads the absence of restriction as significant: "if a Commissioner were to have any authority to enter into long-term leases for real property, here, 30 years and 35 years respectively, it will often be the case that those leases will remain in effect long after the Commissioner who entered into them has left office." That kind of long-term authority is part of the statutory grant.

The AG considered Wyoming's contrary public-policy rule. In Figuly v. City of Douglas (D. Wyo. 1994), a federal court applied Wyoming Supreme Court doctrine that "allow[ing] a prior government or official to bind his successors by creating contracts or other commitments which extend beyond his term would be contrary to [a] critical facet of democracy." The West Virginia Supreme Court of Appeals quoted this in passing in Boggess v. City of Charleston (2014), but only as dicta in a case about overtime calculations, where the Court ultimately held there was no contract at all to be bound by. The AG concluded West Virginia has not adopted the Wyoming rule, and even Wyoming's rule has unclear contours, especially as applied to land leases (Wyoming's own cases focused on personnel decisions). The opinion's bottom line: the Commissioner's predecessor was within his constitutional and statutory authority.

The AG flagged but did not adopt one limit. Minor v. City of Stonewood (2014) voided a five-year police-chief employment contract entered by an outgoing mayor because the mayor lacked statutory authority to commit future levy funds. State ex rel. Bache & Co. v. Gainer (1970) upheld a Governor's contract because it was authorized, vested with discretion, and not specifically limited. The pattern is that outgoing officers are bound by their statutory authority, just like everyone else; if the statute did not give them the power, the contract is void. Here, § 19-12A-5(d)(1) expressly gave that power.

Question 2: Can the new Commissioner cancel the leases unilaterally? No.

The general rule is that contracts are interpreted by their plain terms (Zimmerer v. Romano; Cotiga Dev.). Both leases include identical cancellation language: "the lease can be cancelled without further obligation if the legislature fails to appropriate sufficient funds or otherwise acts to impair the lease or cause it to be cancelled." That gives a cancellation pathway only via legislative action, not via executive fiat.

The AG points out that other state-contract statutes (§ 5A-10-5, § 5B-2-11, § 18B-19-12) make this kind of legislative-failure-to-appropriate clause statutorily required, but only § 18B-19-12 also gives the State a separate executive cancellation right. The agriculture-property statute does not. Under the canon expressio unius (Bischoff v. Francesca; Harbert), naming one specific cancellation pathway implies the exclusion of others. The Commissioner has no executive cancellation authority.

What can the new Commissioner do? Two things. (1) He can propose legislative rules that the Legislature could adopt to cancel the leases under the legislative-impairment clause. (2) The Legislature could on its own initiative pass a statute to cancel them.

A footnote acknowledges a constitutional wrinkle. If the leases did not contain the legislative-cancellation clause, legislative cancellation would have to navigate the federal and state Contracts Clauses (U.S. Const. art. I, § 10, cl. 1; W. Va. Const. art. III, § 4; Shell v. Metro. Life Ins.). Because the leases here expressly authorize legislative cancellation, the cancellation does not impair contractual rights and no constitutional issue arises (First Trust Co. v. State, Minn. Ct. App. 1989).

Currency note

This opinion was issued in 2017. 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 mean any outgoing constitutional officer can sign whatever they want in their final days?
A: Per this opinion, an outgoing officer can sign anything within their statutory authority, regardless of the lame-duck context. The limit is statutory, not the calendar. Minor v. Stonewood shows what happens when the underlying statutory authority is missing: the contract is void.

Q: What if the lease did not have the legislative-cancellation clause?
A: The Commissioner still could not cancel unilaterally. The Legislature could try, but would face Contracts Clause review. The footnote in this opinion suggests that without an express cancellation pathway, legislative attempts to undo the lease would have to pass standard Contracts Clause analysis.

Q: Can the Legislature simply repeal § 19-12A-5(d)(1) and undo all leases?
A: Repealing the statute prospectively is one thing; rescinding existing leases retroactively raises the same Contracts Clause concerns as any other state-contract impairment. The opinion does not work this out in detail.

Q: Is there a holdover-period rule for outgoing officers?
A: Article VII, § 1, sets fixed terms commencing on the first Monday after the second Wednesday of January. § 19-1-2 specifically provides that the Commissioner "shall hold office for a term of four years and until his successor is elected and qualified." Until the successor takes office on the constitutionally prescribed date, the predecessor exercises full authority.

Q: Could the leases be challenged on a different ground, like fraud or violation of fiduciary duty?
A: This opinion only addresses the lame-duck question and the cancellation-by-successor question. Other possible attacks (fraud in the inducement, breach of fiduciary duty by the outgoing Commissioner, ultra vires conduct outside the management plan) are not analyzed. The new Commissioner could presumably pursue those if facts supported them.

Background and statutory framework

Constitutional terms. W. Va. Const. art. VII, § 1: executive officers serve four-year terms commencing on a fixed date; the Commissioner of Agriculture is part of the executive department. State v. Jones (1917) and Tomblin v. Bivens (1966) confirm that incumbents serve in full until their successor's qualification date.

Commissioner authority over state farm property. § 19-12A-1A(a) abolished the farm management commission and made the Department of Agriculture its successor, transferring "all powers, duties and responsibilities" to the Commissioner. § 19-12A-5(d)(1) authorizes the Commissioner to lease state-controlled land "for purposes including agricultural production or experimentation, public necessity, or other purposes permitted by the management plan."

No West Virginia adoption of Wyoming public-policy rule. Boggess v. City of Charleston (2014) merely quoted Wyoming's Figuly in passing and ultimately held no contract existed. Wyoming's rule itself, even as applied in Figuly, is limited to personnel and unclear at the edges.

Contract cancellation language across state statutes.
- § 5A-10-5: requires standard "Legislature fails to appropriate" cancellation language in certain state leases.
- § 5B-2-11: same.
- § 18B-19-12: same, plus an additional "right to cancel . . . upon . . . written notice to the lessor."

The agriculture-property leases mirror the standard "appropriation" cancellation language without the additional § 18B-19-12 written-notice cancellation right. Expressio unius applies.

Contracts Clause backdrop. U.S. Const. art. I, § 10, cl. 1; W. Va. Const. art. III, § 4. Shell v. Metro. Life Ins. (W. Va. 1989) (W. Va. Contracts Clause interpreted in line with federal). Where a contract expressly authorizes legislative cancellation, no Contracts Clause issue arises (First Trust Co. v. State, Minn. Ct. App. 1989).

Citations and references

Statutes and constitutional provisions:
- W. Va. Const. art. VII, § 1 (executive department terms)
- W. Va. Const. art. III, § 4 (state Contracts Clause)
- U.S. Const. art. I, § 10, cl. 1 (federal Contracts Clause)
- W. Va. Code § 5-3-1 (AG advisory authority)
- W. Va. Code § 19-1-2 (Commissioner of Agriculture term)
- W. Va. Code § 19-12A-1A(a) (transfer of farm management commission powers)
- W. Va. Code § 19-12A-5(d)(1) (lease authority)
- W. Va. Code §§ 5A-10-5, 5B-2-11, 18B-19-12 (parallel state-contract cancellation provisions)

Cases:
- State v. Jones, 81 W. Va. 182 (1917)
- State ex rel. Tomblin v. Bivens, 150 W. Va. 733 (1966)
- Minor v. City of Stonewood, 2014 WL 1672941 (W. Va. 2014)
- State ex rel. Bache & Co. v. Gainer, 154 W. Va. 499 (1970)
- Boggess v. City of Charleston, 234 W. Va. 366 (2014)
- Figuly v. City of Douglas, 853 F. Supp. 381 (D. Wyo. 1994)
- Zimmerer v. Romano, 223 W. Va. 769 (2009)
- Cotiga Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484 (1963)
- Bischoff v. Francesca, 133 W. Va. 474 (1949)
- Harbert v. Cnty. Court of Harrison Cnty., 129 W. Va. 54 (1946)
- Shell v. Metro. Life Ins. Co., 181 W. Va. 16 (1989)
- First Trust Co., Inc. v. State, 449 N.W.2d 491 (Minn. Ct. App. 1989)

Source

• Landing page: https://ago.wv.gov/media/17826/download?inline
• Original PDF: https://ago.wv.gov/media/17826/download?inline

Original opinion text

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

April 26, 2017

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

The Honorable Kent A. Leonhardt
Commissioner
West Virginia Department of Agriculture
1900 Kanawha Blvd. E.
Charleston, WV 25305

Dear Commissioner Leonhardt:

You have asked for an Opinion of the Attorney General concerning whether the Commissioner of Agriculture ("Commissioner") may enter into legally binding contracts on behalf of the Department of Agriculture during the interim period between the date that his or her successor is elected and the date of the successor's inauguration. 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 agriculture." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence with the Office of the Attorney General.

Your correspondence raises the following legal questions, which are addressed in turn below:

(1) Is a Commissioner who has not been reelected required to abstain from signing agreements, leases, memorandums of understanding or other instruments that obligate resources belonging to the Department of Agriculture in the transition period before his successor is sworn in, or is his authority unaffected during such transition period?

(2) Does a Commissioner have authority to unilaterally cancel long term leases for real property entered into by his or her predecessor Commissioner?

Background

Your correspondence concerns actions taken by your predecessor Commissioner, who entered into two long-term leases for real property in the final days of his administration after your election as his successor. The leases at issue both involve institutional farm property under the control of the Department of Agriculture, and were entered into for the stated purpose of economic development under the authority granted by West Virginia Code § 19-12A-5(d)(1). The first lease, between the Department of Agriculture and the Sweet Springs Resort Park Foundation, Inc. for 650 acres of real property and a term of thirty-five years, was signed by both parties on January 4, 2017. The second lease, between the Department of Agriculture and the Mason County Building Commission for 128.6 acres of real property and a term of thirty years, was signed by both parties on January 13, 2017.

Discussion

Question One: Is a Commissioner of Agriculture who has not been reelected required to abstain from signing agreements, leases, memorandums of understanding or other instruments that obligate resources belonging to the Department of Agriculture in the transition period before his successor is sworn in, or is his authority unaffected during such transition period?

We conclude that the Commissioner possessed the constitutional authority to enter into the leases in question during the period between the election of his successor and the time that his successor took office.

Under the West Virginia Constitution, the standard powers of an elected official remain for the entirety of the elected term. The Constitution provides that "[t]he[] terms of office [of the executive department, including the Commissioner,] shall be four years and shall commence on the first Monday after the second Wednesday of January next after their election." W. Va. Const. art. VII, § 1. With respect to the Commissioner specifically, West Virginia Code § 19-1-2 provides that "[t]he commissioner of agriculture shall be elected by the qualified voters of the State at the same time and in the same manner as other state officers are elected, and shall hold office for a term of four years and until his successor is elected and qualified." W. Va. Code. § 19-1-2.

The West Virginia Supreme Court of Appeals has held that the election and qualification requirements allow elected officials to "enter upon the discharge of their duties at the time fixed for the commencement of their terms." State v. Jones, 81 W. Va. 182, 94 S.E. 120, 121 (1917) (emphasis added); see also State ex rel. Tomblin v. Bivens, 150 W. Va. 733, 747, 149 S.E.2d 284, 292 (1966) (power and authority to perform and discharge duties continues until the expiration of the elected term and until a successor has been elected and qualified). Executive officials therefore often exercise their standard powers until their final day of office, such as issuing executive orders or pardons. See, e.g., Recovering addict, non-profit employee receives pardon, WSAZ-TV (Apr. 5, 2017) (discussing outgoing Governor Earl Ray Tomblin's pardon of a felony conviction).

Here, the express authority for the outgoing Commissioner's decision to enter the land leases at issue is found in West Virginia Code § 19-12A-5, entitled "Powers, duties and responsibilities of [the] commission[er]." The relevant provision "authorize[s] and empower[s]" the Commissioner to "[l]ease to public or private parties, for purposes including agricultural production or experimentation, public necessity, or other purposes permitted by the management plan, any land, easements, equipment, or other property." W. Va. Code § 19-12A-5(d)(1); see also W. Va. Code § 19-12A-1A(a) (abolishing the farm management commission, naming the Department of Agriculture as the successor to all real and personal property, and transferring all powers, duties and responsibilities of the farm management commission, "commission" in the statutes, to the Commissioner).

We do not interpret your correspondence as alleging that the former Commissioner, by entering into these leases, acted outside the scope of authority permitted by West Virginia Code § 19-12A-5. Cf. Minor v. City of Stonewood, No. 13-0758, 2014 WL 1672941, at *1-3 (Apr. 25, 2014) (voiding five-year employment contract appointing a new Chief of Police because the outgoing Mayor did not have statutory authority necessary to expend future levy funds); State ex rel. Bache & Co. v. Gainer, 154 W. Va. 499, 509-10, 177 S.E.2d 10, 16-17 (1970) (contract between Governor and financial advisor was valid and binding on the State, because the relevant statutes "expressly authorized [the Governor] to issue and sell bonds," "vested [the Governor] with discretion as to the manner in which he exercises his authority," and "d[id] not prescribe any specific directions, restrictions or limitations" to his discretion to obtain services to assist in managing the State's bonds). Nor does the statute appear to place any limitation on the lease term to which a Commissioner may agree. Indeed, if a Commissioner were to have any authority to enter into long-term leases for real property, here, 30 years and 35 years respectively, it will often be the case that those leases will remain in effect long after the Commissioner who entered into them has left office.

At least one other State has placed a public policy limitation on the ability of certain elected officials to enter into contracts that extend beyond those officials' terms. In Boggess v. City of Charleston, the Supreme Court of Appeals of West Virginia noted in dicta a decision from a Wyoming federal court, which discussed that Wyoming's highest court had repeatedly held that "allow[ing] a prior government or official to bind his successors by creating contracts or other commitments which extend beyond his term would be contrary to [a] critical facet of democracy." Boggess v. City of Charleston, 234 W. Va. 366, 375, 765 S.E.2d 255, 264 (2014) (quoting Figuly v. City of Douglas, 853 F. Supp. 381, 384 (D. Wyo. 1994)). In Boggess, however, the Supreme Court of Appeals did not adopt Wyoming's public policy nor was it necessary to the outcome of the case. The Boggess Court held that the use of a particular formula by the City of Charleston to calculate overtime did not create an enforceable contract, but was instead a policy choice that future administrations could alter or amend. Id. at 377, 765 S.E.2d at 266. The Court did not purport to hold that elected officials, let alone constitutional officers like the Commissioner, were barred from entering into any contracts during their terms that extended beyond the end of their terms.

The Wyoming public policy itself is limited. The Wyoming federal court underscored that "it would be neither practical nor desirable for all government contracts to terminate upon the completion of the term of the officials which made them." Figuly, 853 F. Supp. at 384. The precise contours of that limitation are unclear. Figuly itself, similar to Boggess, concerned the ability of a new administration to make personnel changes put in place by a prior administration. Id. at 382-83. The decisions in both Boggess and Figuly appear to be motivated at least in part by the need of each administration to make its own employment decisions and set its own personnel policies. It is unclear whether Wyoming would extend its rule to long-term leases for real property. In any event, West Virginia has not adopted the rule in any form, let alone in the specific context of land leases.

For all these reasons, we conclude that the outgoing Commissioner was empowered to enter into the real property leases under the authority granted to the Commissioner by West Virginia Code section 19-12A-5(d)(1), because entering into the leases was an appropriate exercise of his standard powers within his elected term.

Question Two: Does a Commissioner of Agriculture have authority to unilaterally cancel long term leases for real property entered into by his or her predecessor Commissioner?

We conclude that the Commissioner does not have any inherent authority to unilaterally cancel existing contracts entered into on behalf of the State by prior administrations. Nevertheless, the contracts themselves provide one possible alternate avenue for cancellation or revocation, through an act of the State Legislature.

We have been unable to locate any authority that would provide the Commissioner with inherent authority to cancel his predecessor's contract unilaterally. That said, the Commissioner might still possess revocation or cancellation authority if the parties had agreed to such authority in the text of the contract itself. The general rule of contract interpretation is that "[a] valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent." Syl. Pt. 4, Zimmerer v. Romano, 223 W. Va. 769, 679 S.E.2d 601 (2009) (quoting Syl. Pt. 1, Cotiga Dev. Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1963)). The two lease agreements at issue, however, do not purport to provide the Commissioner with any authority to unilaterally revoke the agreements. To the contrary, an identical provision in both leases recognizes that "the lease can be cancelled without further obligation if the legislature fails to appropriate sufficient funds or otherwise acts to impair the lease or cause it to be cancelled." This provision contrasts with provisions in other state contracts that provide the State with an automatic right of cancellation for long term leases. Cf. W. Va. Code § 18B-19-12 (mandating any lease executed under this statute to "contain, in substance" a provision granting the State entity, as lessee, "the right to cancel the lease without further obligation . . . upon . . . written notice to the lessor"). Under traditional principles of contract interpretation, the explicit mention of one specific avenue for cancellation appears to foreclose other avenues not specifically mentioned. See Syl. Pt. 3, Bischoff v. Francesca, 133 W. Va. 474, 56 S.E.2d 865 (1949) (quoting Harbert v. Cnty. Court of Harrison Cnty., 129 W. Va. 54, 64, 39 S.E.2d 177, 186 (1946) ("In the interpretation of written instruments 'the express mention of one thing implies exclusion of another, expressio unius est exclusio alterius.'").

Based on the language in the two leases at issue, the Commissioner does not have authority to cancel the leases unilaterally, but may be able to propose legislative rules that could be adopted by the State Legislature to cancel the existing leases. In the alternative, the Legislature could on its own initiative enact a statute to that effect.

Sincerely,

Patrick Morrisey
Attorney General
Thomas M. Johnson, Jr.
Deputy Solicitor General
Katlyn Miller
Assistant Attorney General