Can a West Virginia county commission tell the county sheriff, county clerk, or other independently elected officials when their offices have to be open?

Plain-English summary

In Marion County, several elected officials closed their offices, ran skeleton crews, or gave employees paid time off on days that were not state or federal holidays. The County Commission wanted to know whether it could step in and set uniform hours for the offices in the county courthouse. The prosecutor asked the AG.

The AG's answer: no, the County Commission does not have that authority over independently elected county officials' offices.

The constitutional and statutory architecture. County commissions are creatures of the West Virginia Constitution (Art. IX, §§ 9, 11) and serve as "the central governing body of the county" (State ex rel. Dingess v. Scaggs, 156 W. Va. 588 (1973)). But their powers are limited: only those "expressly conferred by the West Virginia Constitution and our State Legislature, or powers reasonably and necessarily implied for exercise of those expressed powers" (Berkeley Cnty. Comm'n v. Shiley).

Article IX, § 11, gives commissions "the superintendence and administration of the internal police and fiscal affairs of their counties." But the Supreme Court of Appeals has consistently read "superintendence" as oversight, not absolute control. State Rd. Comm'n v. Kanawha Cnty. Court (1932) said it "implies the right of oversight" but "does not carry the thought of absolute control over . . . the fiscal affairs of the county."

The aggregate-compensation rule. This is the operative principle. State ex rel. Lambert v. Cortellessi (1989) held that the county commission "determine[s] the aggregate sum to be expended on staff compensation in each of the named county offices," but the elected official then has "complete discretion over how funds . . . are distributed or allocated among their staff." Cummings (2011) said the same: county officials are "given the responsibility of 'fixing the individual compensation of their assistants, deputies and employees,'" subject only to not exceeding the aggregate budget. A 2015 AG opinion (2015 WL 5210280) confirmed a sheriff has discretion over how to spend his budget once set.

Extending the principle to office hours. The Court has not directly ruled on office hours, but the AG infers from the budget-discretion line that day-to-day management of an elected official's office sits with that official, not the commission. If the official has discretion to "fix individual compensation" of staff, the official also has discretion over scheduling, time off, and operating hours. The "oversight" power in Article IX, § 11, does not give the commission "absolute authority" to interfere with day-to-day operation.

The outer limits the AG flags. This conclusion does not mean elected officials have unlimited discretion. Three constraints:

1. Holidays. Only the Legislature can declare legal holidays "by general legislation" (State ex rel. Morgan v. Miller; Pullano v. City of Bluefield; W. Va. Code § 2-2-1). An elected official cannot declare a "courthouse holiday" by fiat.

2. Federal and state law. FLSA, anti-discrimination laws, and various other employment statutes apply to county officials' employment decisions just as they do to anyone else.

3. Statutory chains of authority. Some elected officials operate under specific statutory frameworks that subject them to other officials' direction. For example, circuit clerks must take direction from the circuit court (Rutledge v. Workman); sheriffs need county-commission consent to appoint or hire under § 7-7-7 (Webster Cnty. Comm'n v. Clayton). These chains of authority can reach into office management indirectly.

The AG explicitly limits the opinion to the Marion County Commission's question. It does not work out the precise boundaries of officials' discretion or how those limits would be enforced. That is left for case-by-case analysis.

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: Can the county commission close the courthouse on a non-holiday and force all elected officials' offices to close with it?
A: That gets harder. The commission has authority over the building (the courthouse) but not over the offices' operations. The opinion does not directly address the building-closure scenario, but it suggests the commission cannot use building control to force office closure if the elected official wants to keep the office open.

Q: Can a county clerk decide to close the office every Friday afternoon?
A: Per this opinion, yes, that is within the clerk's day-to-day management discretion. There may be public-service implications (people cannot file documents, get certified copies, etc.), and the clerk is politically accountable for those decisions. The county commission cannot override the choice.

Q: What if an elected official is rarely in the office at all?
A: Persistent absence might raise different issues, neglect of duty (potentially actionable under W. Va. Code § 6-6-7), failure to provide a service the statutes require, or failure to meet specific statutory deadlines. The opinion focuses on routine office-hour decisions and does not address abandonment-of-duty scenarios.

Q: Can the county commission cut an elected official's budget if it disagrees with the office's hours?
A: The commission sets the aggregate budget. Cortellessi and Cummings let the official allocate within that budget. The commission cannot retaliate by line-item budget cuts targeted at the office's hours, because that would functionally interfere with the day-to-day discretion the cases protect. But the commission has wide budget-setting authority generally.

Q: Does this apply to elected school officials and other non-county elected officials?
A: This opinion is about county-courthouse offices. Other elected positions (school board, magistrate court, circuit court) have their own statutory frameworks. The principles here may inform analogous questions, but each position should be analyzed under its own statutes.

Background and statutory framework

Constitutional framework. W. Va. Const. art. IX, § 9 (county courts) and § 11 (county commission powers, "superintendence and administration of the internal police and fiscal affairs of their counties").

§ 7-1-3 (general powers of county commissions). The general powers and duties statute. Powers v. Goodwin (a different case) used this provision for indemnification authority. State Rd. Comm'n v. Kanawha Cnty. Court (1932) construed "superintendence" as oversight, not absolute control.

The aggregate-budget cases.
- Meador v. Cnty. Court, 141 W. Va. 96 (1955) (commissions have "wide discretion").
- Berkeley Cnty. Comm'n v. Shiley, 170 W. Va. 684 (1982) (commissions limited to express and necessarily implied powers).
- State ex rel. Lambert v. Cortellessi, 182 W. Va. 142 (1989) (commission sets aggregate sum; official allocates within that sum).
- Cnty. Comm'n of Greenbrier Cnty. v. Cummings, 228 W. Va. 464 (2011) (subject to not exceeding aggregate budget, county officials fix individual staff compensation).
- 2015 W. Va. Op. Att'y Gen. (Sept. 1, 2015) (sheriff's budget discretion).

Holiday rule. W. Va. Code § 2-2-1 (legal holidays); State ex rel. Morgan v. Miller, 177 W. Va. 97 (1986); Pullano v. City of Bluefield, 176 W. Va. 198 (1986). Only the Legislature can declare general legal holidays.

Chain-of-authority cases (footnote in opinion).
- Webster Cnty. Comm'n v. Clayton, 206 W. Va. 107 (1999) (sheriff's appointment authority subject to county-commission consent under § 7-7-7).
- Rutledge v. Workman, 175 W. Va. 375 (1985) (circuit clerk subject to circuit-court direction on court-related duties).

Citations and references

Statutes and constitutional provisions:
- W. Va. Const. art. IX, §§ 9, 11
- W. Va. Code § 5-3-2 (AG advisory authority)
- W. Va. Code § 7-1-3 (county commission general powers)
- W. Va. Code § 7-7-7 (county officials' staff)
- W. Va. Code § 2-2-1 (legal holidays)

Cases:
- State ex rel. Dingess v. Scaggs, 156 W. Va. 588 (1973)
- Cnty. Comm'n of Greenbrier Cnty. v. Cummings, 228 W. Va. 464 (2011)
- Meador v. Cnty. Court, 141 W. Va. 96 (1955)
- Berkeley Cnty. Comm'n v. Shiley, 170 W. Va. 684 (1982)
- State Rd. Comm'n v. Kanawha Cnty. Court, 112 W. Va. 98 (1932)
- State ex rel. Lambert v. Cortellessi, 182 W. Va. 142 (1989)
- State ex rel. Morgan v. Miller, 177 W. Va. 97 (1986)
- Pullano v. City of Bluefield, 176 W. Va. 198 (1986)
- Webster Cnty. Comm'n v. Clayton, 206 W. Va. 107 (1999)
- Rutledge v. Workman, 175 W. Va. 375 (1985)

Earlier AG opinion: 2015 W. Va. Op. Att'y Gen. 2015 WL 5210280 (Sept. 1, 2015) (sheriff's budget discretion).

Source

• Landing page: https://ago.wv.gov/media/17836/download?inline
• Original PDF: https://ago.wv.gov/media/17836/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 15, 2017

The Honorable Jeffrey L. Freeman
Prosecuting Attorney
Office of the Marion County Prosecuting Attorney
213 Jackson Street
Fairmont, WV 26554

Dear Prosecutor Freeman:

You have asked for an Opinion of the Attorney General regarding the authority of the Marion County Commission to set the hours and days of operation for certain offices in the Marion County Courthouse. 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 upon the factual assertions set forth in your correspondence with the Office of the Attorney General.

Your correspondence raises the following legal question, which is addressed below:

Whether the Marion County Commission has the authority to set the hours and days of operation for offices of other elected officials in the Marion County Courthouse, and by what mechanism it may enforce any such authority?

Your correspondence concerns the authority of the Marion County Commission to set office hours for the offices in the Marion County Courthouse, specifically the offices of other independently elected officials. According to your letter, on at least two occasions, some elected officials have chosen to close their offices, or to provide limited hours of operation, or to allow employees paid time off by running the offices with only a skeleton crew, when there has been no official State or nationwide pronouncement of a holiday. The Marion County Commission seeks the Opinion of the Attorney General regarding whether these elected officials have independent authority to set their own office hours, or if the Commission may set office hours governing the offices of these independently elected officials in the Marion County Courthouse.

We believe that the Marion County Commission does not have the authority to set the hours and days of operation for offices of elected officials within the Marion County Courthouse. As we explain below, county commissions have wide discretion over the fiscal affairs of their counties. At the same time, independently elected officials have discretion over how to conduct business in their respective offices, with which the Marion County Commission does not have authority to interfere.

County commissions are created by the West Virginia Constitution, see W. Va. Const. art. IX, §§ 9, 11, and act as "the central governing body of [each] county," State ex rel. Dingess v. Scaggs, 156 W. Va. 588, 590, 195 S.E.2d 724, 725 (1973). Though generally "vested with a wide discretion," Cnty. Comm'n of Greenbrier Cnty. v. Cummings, 228 W. Va. 464, 469, 720 S.E.2d 587, 592 (2011) (quoting Syl. Pt. 1, in part, Meador v. Cnty. Court, 141 W. Va. 96, 87 S.E.2d 725 (1955)), the powers of county commissions are limited to those "expressly conferred by the West Virginia Constitution and our State Legislature, or powers reasonably and necessarily implied for exercise of those expressed powers," Berkeley Cnty. Comm'n v. Shiley, 170 W. Va. 684, 685, 295 S.E.2d 924, 926 (1982). "The constitution and laws of this State have committed to county [commissions] certain legislative, executive and judicial powers directly connected with the local affairs of the county." Scaggs, 156 W. Va. at 590, 195 S.E.2d at 725; see, e.g., W. Va. Code § 7-1-3 (general powers and duties of county commissions).

Relevant here, the West Virginia Constitution charges county commissions with "the superintendence and administration of the internal police and fiscal affairs of their counties," subject to "such regulations as may be prescribed by law." W. Va. Const. art. IX, § 11. But while the West Virginia Supreme Court of Appeals has recognized that "[t]he word 'superintendence' in the section implies the right of oversight," it "does not carry the thought of absolute control over . . . the fiscal affairs of the county." State Rd. Comm'n v. Kanawha Cnty. Court, 112 W. Va. 98, 163 S.E. 815, 818 (1932). Thus, it is well-established that the individually elected officers under the county commission's oversight have independent authority over how to conduct the fiscal affairs of their respective offices. This means that while the county commission must "determine the aggregate sum to be expended on staff compensation in each of the named county offices," State ex rel. Lambert v. Cortellessi, 182 W. Va. 142, 146-47, 386 S.E.2d 640, 644-45 (1989), once the "aggregate sum" for a county official's staff compensation is appropriated by the county commission, the distribution and division of that sum is generally within the discretion of the county official, see, e.g., id. (county officials have complete discretion over how funds, the total amount of which is appropriated from the county commission, are distributed or allocated among their staff); Cummings, 228 W. Va. at 470, 720 S.E.2d at 593 ("Subject only to the requirement that they not exceed the aggregate amount of their respective budget, county officials are given the responsibility of 'fixing the individual compensation of their assistants, deputies and employees.'"); W. Va. Op. Att'y Gen. 2015 WL 5210280, at *3 (Sept. 1, 2015) (a sheriff has discretion over how to spend his budget once it has been appropriated by a county commission).

While the Court has never to our knowledge addressed the precise question at issue here, we believe the general principles outlined above support the conclusion that the County Commission lacks authority to dictate to each independently elected official within the county how to manage the day-to-day affairs of his or her office, including setting the hours and days of operation for employees. The Supreme Court of Appeals has long made clear that county officials have broad discretion over their budgets once an aggregate sum has been approved by the county commission; this principle would seem naturally to provide county officials with discretion over managing the day-to-day functions of their offices. The "oversight" authority of the Marion County Commission does not give it the "absolute authority" to interfere with a county official's day-to-day operation of his or her office. As such, the Commission appears to be precluded from mandating particular office hours for the offices of county officials.

This conclusion does not mean that there are no limits to what an elected official may do with respect to setting the hours and compensation for staff within their respective office. We note, for example, that only the Legislature has the power to authorize by general legislation the observance of legal holidays. State ex rel. Morgan v. Miller, 177 W. Va. 97, 104, 350 S.E.2d 724, 731-32 (1986) (citing W. Va. Code § 2-2-1 and Syl. Pt. 1, Pullano v. City of Bluefield, 176 W. Va. 198, 342 S.E.2d 164 (1986)). Both federal and state law may provide other limitations. The precise limits of local elected officials' discretion, the mechanisms by which such limits may be enforced, and whether those limits were exceeded in the instances outlined in your letter, are beyond the scope of this opinion.

Sincerely,

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

[Footnote: While certain contours of the relationship between county commissions and the various independently elected county officials are explicitly outlined, see W. Va. Code § 7-7-7, we are unaware of any constitutional provision, statute, or regulation that would provide the County Commission with authority to set the hours and days of operation for the offices of independently elected officials. Cf. Syl. Pt. 4, Webster Cnty. Comm'n v. Clayton, 206 W. Va. 107, 522 S.E.2d 201 (1999) ("The plain language of W. Va. Code § 7-7-7 (1982) (Repl. Vol. 1993) permits a sheriff [an independently elected county official] to appoint or employ individuals to assist him/her in the performance of his/her official duties only after he/she has obtained the advice and consent of the county commission to such appointment or employment."); Syl. Pt. 1, Rutledge v. Workman, 175 W. Va. 375, 332 S.E.2d 831 (1985) ("It was the intention of the framers of the judicial article (Article VIII) of the W. Va. Const. that the clerk of a circuit court, although an independently elected, public official, be subject to the direction and control of the circuit court of the county in which she serves or of the chief judge of that county's circuit court with regard to her court-related duties.")]