If you sit on a city planning commission, a sheriff's civil service commission, or another local board, can you also serve on the county building commission, or does W. Va. Code § 8-33-3 disqualify you?

Plain-English summary

The Wood County Building Commission had three members. All three were also serving on other government boards: the Parkersburg Planning Commission, the Wood County Sheriff's Civil Service Commission, the Wood County Recreation Commission, and the West Virginia Industrial Council. The Wood County prosecutor asked the AG whether the disqualification clause in W. Va. Code § 8-33-3 prevented those members from continuing on the Building Commission.

The AG's answer: yes. Under § 8-33-3, all three are disqualified.

The statute, in plain text. § 8-33-3 says no member of a building commission "shall hold any office (other than the office of notary public) or employment under the United States of America, the state of West Virginia, any county or political subdivision thereof, or any political party." The breadth comes from the "or employment" language. A lot of dual-office statutes only bar holding two "offices"; § 8-33-3 also reaches "employment." That difference is decisive here.

The legal architecture: officer vs. employee. When West Virginia courts ask whether a position is a public "office" rather than mere employment, they apply the multi-factor test from State ex rel. Carson v. Wood, 154 W. Va. 397 (1970). The factors include sovereign authority, public oversight, fixed duties, and so on. The Supreme Court of Appeals applied this test most recently in Cales v. Town of Meadow Bridge (May 2017), holding that a member of a municipal sanitary board did not meet the threshold for "public officer" because, among other things, the position did not make the petitioner "a representative of the sovereign."

The key inference. Cales matters here for what it implies. The Court treated the question as binary: officer or employee. Either way, the person was a state actor in some category. The statute § 8-33-3 reaches both categories. So the disqualification analysis collapses: it does not matter how the Carson factors come out, because either result triggers § 8-33-3.

The AG also walks through the other categories of state action recognized in Brady v. Smith, 139 W. Va. 259 (1954): officials, agents, employees, and independent contractors. The board members are clearly not "agents" (which under State ex rel. Key v. Bond are limited to "temporary" and "intermittent" duties; the planning, civil service, recreation, and industrial council positions all have fixed tenures and ongoing duties under their respective statutes). They are clearly not "independent contractors." That leaves officer or employee, both barred.

Comparison to dual-office cases the Court has decided. City of Bridgeport v. Matheny (2009) and Carr v. Lambert (1988) both involved dual-office disqualification statutes that reached only public office. § 8-33-3 is broader: office or employment. So even where the Carson factors might leave a position on the employee side of the line, § 8-33-3 still applies.

Practical consequence for Wood County. The three current Building Commission members must either resign their other positions or vacate the Building Commission. The narrow notary-public exception in § 8-33-3 obviously does not save them.

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 § 8-33-3 also bar a federal employee, like a postal worker, from serving on a building commission?
A: Yes. The statute expressly includes "the United States of America" in its list of barred employers/offices. The reach is federal as well as state and local.

Q: I am a notary public and want to serve on a city building commission. Am I disqualified?
A: No. Notary public is the express exception in § 8-33-3.

Q: I am a private contractor that does work for a county. Am I disqualified?
A: Probably not. § 8-33-3 reaches "office" and "employment." Brady v. Smith identifies independent contractors as a separate category, not employees. The opinion specifically notes that members of governmental boards are not plausibly independent contractors, but that does not mean an actual independent contractor is barred. As always, check the specific contract relationship and the Carson factors before relying on this.

Q: Does this rule apply to municipal building commissions and county building commissions equally?
A: Yes. § 8-33-3 governs municipal and county building commissions alike.

Q: I want to run for a building commission seat but I have a part-time city job. What should I do?
A: You either resign the city job before joining the building commission or accept that § 8-33-3 will disqualify you. The disqualification appears to operate as a vacancy if you take the building commission seat while still in the other role.

Q: How is this different from the conflict-of-interest rules in W. Va. Code § 61-10-15?
A: § 61-10-15 deals with pecuniary interests in contracts, a conflict-of-interest rule. § 8-33-3 is a flat dual-position bar, not interest-based. You can be conflict-free under § 61-10-15 and still be disqualified under § 8-33-3.

Background and statutory framework

§ 8-33-3 (building commission membership disqualification). No member shall hold "any office (other than the office of notary public) or employment under the United States of America, the state of West Virginia, any county or political subdivision thereof, or any political party."

The Carson officer/employee test. State ex rel. Carson v. Wood, 154 W. Va. 397 (1970), set out the multi-factor test West Virginia uses to decide whether a position is a "public office" (with attendant procedural protections) or "mere employment." Factors include source of authority, sovereign function, public oversight, and fixed duties.

The Cales application. Cales v. Town of Meadow Bridge, 2017 WL 2415300 (W. Va. May 30, 2017). Member of a municipal sanitary board failed the Carson test for "public officer" status because, among other reasons, he did not represent the sovereign. The Court treated the question as binary, officer or employee, both being categories of state action.

Other dual-office cases for comparison. City of Bridgeport v. Matheny, 223 W. Va. 445 (2009), and Carr v. Lambert, 179 W. Va. 277 (1988). Both addressed dual-office statutes that reached only "office," not "employment."

Categories of state action. Brady v. Smith, 139 W. Va. 259 (1954), recognizes four categories: officials, agents, employees, and independent contractors. State ex rel. Key v. Bond, 94 W. Va. 255 (1923), defines agents as having "temporary" and "intermittent" duties.

The boards in question and their statutory ongoing-duty character.
- Parkersburg Planning Commission: W. Va. Code §§ 8A-2-3, -11.
- Sheriff's Civil Service Commission: §§ 7-14-3, -6.
- Recreation Commission: §§ 7-11-2, -3.
- West Virginia Industrial Council: § 23-2C-5.

Each statute creates fixed-tenure, ongoing positions, foreclosing the "agent" characterization.

Citations and references

Statutes:
- W. Va. Code § 5-3-2 (AG advisory authority)
- W. Va. Code § 8-33-3 (building commission disqualification)
- W. Va. Code §§ 8A-2-3, -11 (planning commission)
- W. Va. Code §§ 7-14-3, -6 (sheriff's civil service commission)
- W. Va. Code §§ 7-11-2, -3 (recreation commission)
- W. Va. Code § 23-2C-5 (West Virginia Industrial Council)

Cases:
- City of Bridgeport v. Matheny, 223 W. Va. 445 (2009)
- Carr v. Lambert, 179 W. Va. 277 (1988)
- Cales v. Town of Meadow Bridge, 2017 WL 2415300 (W. Va. May 30, 2017)
- State ex rel. Carson v. Wood, 154 W. Va. 397 (1970)
- Brady v. Smith, 139 W. Va. 259 (1954)
- State ex rel. Key v. Bond, 94 W. Va. 255 (1923)

Source

• Landing page: https://ago.wv.gov/media/17846/download?inline
• Original PDF: https://ago.wv.gov/media/17846/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
July 18, 2017

Honorable Pat Lefebure
Wood County Prosecuting Attorney
Donald F. Black Courthouse Annex
317 Market Street
Parkersburg, WV 26101

Dear Prosecutor Lefebure:

You have asked for an Opinion of the Attorney General concerning the scope and applicability of West Virginia Code § 8-33-3, which governs, inter alia, the membership of municipal and county building commissions. 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 upon the factual assertions set forth in your correspondence with the Office of the Attorney General.

In your letter, you ask about the effect of a prohibition in West Virginia Code § 8-33-3 on the current members of the Wood County Building Commission. That provision states, in pertinent part, that "no member of [a building commission] shall hold any office (other than the office of notary public) or employment under the United States of America, the state of West Virginia, any county or political subdivision thereof, or any political party." You explain that the three current members of the Wood County Building Commission are "members of other boards," including the "Parkersburg Planning Commission, [the] Wood County Sheriff's Civil Service Commission, [the] Wood County Recreation Commission, and the West Virginia Industrial Council."

Your letter raises the following legal question:

Does West Virginia Code § 8-33-3 prevent the identified individuals, who serve on other State, county, or municipal boards, from serving as members of a building commission?

We conclude that West Virginia Code § 8-33-3 prohibits the identified individuals from serving as members of the Wood County Building Commission. Under the plain statutory language, an individual cannot serve on a building commission if he or she either serves as a government employee or holds a federal, state, or local office (other than notary public). Notably, this prohibition sweeps more broadly than similar statutory prohibitions considered in previous Supreme Court of Appeals cases, in which individuals were barred from serving on certain boards if they otherwise occupied public office. See, e.g., City of Bridgeport v. Matheny, 223 W. Va. 445, 675 S.E.2d 925 (2009); Carr v. Lambert, 179 W. Va. 277, 367 S.E.2d 225 (1988). We believe the high court would find the language of West Virginia Code § 8-33-3, which includes both public office and employment, to clearly cover the identified individuals.

We are guided by a recent case addressing the status of an individual on a municipal board. In Cales v. Town of Meadow Bridge, --- S.E.2d ---, 2017 WL 2415300 (May 30, 2017), the Court considered whether a member of a municipal sanitary board is a public officer for purposes of the procedural protections against removal set forth in West Virginia Code § 6-6-7. Applying a multi-factor test from State ex rel. Carson v. Wood, 154 W. Va. 397, 175 S.E.2d 482 (1970), "for determining whether a position is an office or mere employment," the Court found that the petitioner "fell short of establishing that the position was an 'office.'" Cales, 2017 WL 2415300, at 8. Among other points, the Court stressed that being a member of the sanitary board did not make the petitioner "a representative of the sovereign." Id. at 10.

This recent case suggests that the Supreme Court of Appeals views members of governmental boards as either officers or employees. That is the binary question that Carson answers. As the court explained, the Carson case "recognized that there is a legal distinction between a 'public officer' and a 'public employee,' and "announced [a] test for determining whether a position is an office or a mere employment." Cales, 2007 WL 2415300, at *8; see also Carson, 154 W. Va. at 410-11, 175 S.E.2d at 490-91 (setting forth "the criteria to be considered in determining whether a position is an office or a mere employment"). So in choosing to apply the Carson test to discern the status of the board member in Cales, the Supreme Court of Appeals appears to have determined that individuals serving on a State, county, or municipal board fall into one of two categories: public officers or public employees.

For the purpose of this Opinion, this lesson from Cales is largely dispositive. According to your letter, all three identified individuals are "members of other boards." And if members of a governmental board are either officers or employees, then all three individuals fall within the prohibitory language of West Virginia Code § 8-33-3. Because the prohibition broadly covers both public officers and public employees, it is irrelevant how exactly the Carson analysis would come out. It is sufficient that the reasoning in Cales suggests the Supreme Court of Appeals would find these individuals to fall within one category or the other.

This conclusion is bolstered by the fact that the individuals, as members of the identified boards, appear clearly not to be public agents or independent contractors. The Supreme Court of Appeals has suggested that state actors can fall into four categories: officials, agents, employees, and independent contractors. Cf. Syl., Brady v. Smith, 139 W. Va. 259, 79 S.E.2d 851 (1954) (noting that the State Road Commissioner can act "through his officers, agents and employees, or through the instrumentality of an independent contractor"). The identified individuals do not appear to be agents, because agents have only "temporary" and "intermittent" duties, see Syl., State ex rel. Key v. Bond, 94 W. Va. 255, 118 S.E. 276 (1923), whereas all the identified boards have fixed tenures and ongoing duties, see W. Va. Code §§ 8A-2-3, -11 (planning commission); W. Va. Code §§ 7-14-3, -6 (sheriff's civil service commission); W. Va. Code §§ 7-11-2, -3 (recreation commission); W. Va. Code § 23-2C-5 (West Virginia Industrial Council). Nor is it plausible to suggest that members of a governmental board constitute independent contractors not subject to government control. That leaves two possible categories, officials or employees, which, again, are both covered by the broad prohibition set forth in West Virginia Code § 8-33-3.

Sincerely,

Patrick Morrisey
Attorney General
Elbert Lin
Solicitor General
Zachary Viglianco
Assistant Attorney General