When the president of a county planning commission successfully defends an ethics complaint, can or must the county commission reimburse her legal fees under W. Va. Code § 11-8-31a?
Plain-English summary
In 2014 a Jefferson County citizen filed an ethics complaint with the West Virginia Ethics Commission against the president of the Jefferson County Planning Commission. The Ethics Commission dismissed the case. The president then asked the Jefferson County Commission to reimburse her legal fees under W. Va. Code § 11-8-31a, which authorizes a "governing body" to reimburse "an official" who "successfully defended against an action seeking his or her removal from office" or "an action seeking the recovery of moneys alleged to have been wrongfully expended." The County Commission asked the prosecutor; the prosecutor asked the AG.
The AG answered three sub-questions:
1. Is the planning commission president an "official" of a "governmental entity"? Yes. The Jefferson County Planning Commission is a "governmental entity" because it has "regulatory powers over land planning" and serves in an advisory capacity to the Jefferson County Commission (W. Va. Code § 8A-2-1), and its members are appointed by the County Commission. The "president" is an "office" filled by annual election of the planning commission members; the president presides at meetings, can call special meetings, and certifies official actions. That fits the dictionary meaning of "official", a person who holds an office or position of authority.
2. Does § 11-8-31a require the County Commission to reimburse, or just permit it? It permits, with discretion shaped by a mandatory three-part test. § 11-8-31a says the governing body "is hereby authorized to reimburse," and "shall have authority to determine if such reimbursement is warranted." That sounds discretionary on its face. But in syllabus point 6 of State ex rel. Smith v. Mingo Cnty. Comm'n (2011), the Supreme Court of Appeals held that any governing body deciding a § 11-8-31a request must apply the three-part test from Powers v. Goodwin (1982): (a) the underlying action arose from the discharge of an official duty in which the government has an interest; (b) the officer acted in good faith; and (c) the agency seeking to indemnify has the express or implied power to do so. The AG noted Smith's syllabus point 6 was technically not necessary to the disposition in Smith, but West Virginia syllabus points "announce new points of law" (State v. McKinley) and the Court's deliberate inclusion makes it controlling.
3. Is an Ethics Commission complaint "an action seeking the recovery of moneys alleged to have been wrongfully expended" under § 11-8-31a(b)? No. § 11-8-31a(b) is contextually keyed to suits authorized by neighboring sections of the same article: § 11-8-28 (suits by the prosecutor or AG to recover money expended in violation of §§ 11-8-25 and 11-8-26) and § 11-8-30 (recovery from officials who negligently participated in an illegal expenditure). An ethics complaint, even if it alleges that money was wrongfully expended, seeks "a sanction of the individual under the State's ethics laws," not "recovery of [the] moneys alleged to have been wrongfully expended." Different remedy, different statutory category.
Putting these together: the Jefferson County Commission could consider reimbursing the planning commission president, but it had to apply the Powers three-part test and could not treat the ethics-complaint defense as automatically falling within § 11-8-31a(b)'s "wrongful expenditure" category.
Currency note
This opinion was issued in 2016. 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.
The Ethics Act and surrounding statutes have been amended in subsequent sessions. Anyone working a present-day reimbursement question should pull current versions of W. Va. Code §§ 11-8-31a, 11-8-28, 11-8-30, and the Ethics Act, and check for later case law applying or distinguishing Smith and Powers.
Common questions
Q: What does W. Va. Code § 11-8-31a actually say?
A: It authorizes "[t]he governing body of the governmental entity of which a person is an official . . . to reimburse such person for the reasonable amount of such person's attorney fees" in two scenarios: "(a) [w]herein such person has successfully defended against an action seeking his or her removal from office, or (b) [w]herein such person has successfully defended against an action seeking the recovery of moneys alleged to have been wrongfully expended." It also says "such governing body shall have authority to determine if such reimbursement is warranted and the reasonableness of the amount sought to be recovered."
Q: What is the three-part Powers test?
A: From Powers v. Goodwin, 170 W. Va. 151 (1982), as syllabuspointed in Smith, 228 W. Va. 474, 721 S.E.2d 44 (2011), syl. pt. 6: reimbursement is warranted where (1) the underlying action arose from the discharge of an official duty in which the government has an interest, (2) the officer acted in good faith, and (3) the agency seeking to indemnify the officer has the express or implied power to do so. All three must be satisfied.
Q: Why does the county commission have to apply Powers when § 11-8-31a doesn't mention it?
A: Because Smith held in syllabus point 6 that "[w]hen determining whether reimbursement for attorney's fees is warranted under West Virginia Code § 11-8-31a (2008), a governing body should apply the three-part test established in syllabus point three of Powers v. Goodwin." The Court read the statute as building "on the framework established in Powers." The AG observed that this holding was not strictly necessary to Smith's disposition, but the Court chose to make it a syllabus point, which under State v. McKinley signals the Court's intent to "announce new points of law."
Q: Is the planning commission president really an "official"?
A: Per the AG, yes. The bylaws of the Jefferson County Planning Commission establish "president" as an "office" filled annually by an election of members. The president presides at hearings and meetings, can call special meetings, and "is authorized to certify by signature or otherwise any official and valid action of the Planning Commission." That fits the plain meaning of "official" as a person who "holds an office" or has a "position of authority."
Q: Is the planning commission a "governmental entity"?
A: Yes. Under W. Va. Code § 8A-2-1, planning commissions have "regulatory powers over land planning" and serve "in an advisory capacity" to the governing bodies that create them. The Jefferson County Planning Commission's members are appointed by the County Commission for three-year terms.
Q: Why isn't an ethics complaint a "wrongful expenditure" action under § 11-8-31a(b)?
A: Context. § 11-8-31a(b) sits in the same article as § 11-8-28 (which authorizes the prosecuting attorney or AG to "institute" a "suit . . . to recover the money expended" by a fiscal body in violation of the article) and § 11-8-30 (which authorizes a recovery proceeding against an "official" who "negligently participates in an illegal expenditure"). Both of those are explicitly recovery actions targeting public money. An ethics complaint, even one alleging wrongful expenditure of public funds, seeks an Ethics Act sanction (penalties, censure), not the return of the money. So it does not trigger the § 11-8-31a(b) category.
Q: Could the planning commission president still get reimbursed even if § 11-8-31a(b) doesn't apply?
A: Possibly, but the route is § 11-8-31a more generally combined with the Powers analysis. The opinion does not opine on whether ethics-complaint defense fits § 11-8-31a(a)'s "removal from office" branch (it usually does not, since dismissal of an ethics complaint typically does not threaten removal directly), nor whether the County Commission could find authority elsewhere. The County Commission would need to walk through Powers and identify which statutory hook supports reimbursement.
Q: What if the County Commission refuses to reimburse?
A: Smith itself involved a mandamus action where the county commission was unable to consider the request because of a quorum-defeating conflict of interest. The Supreme Court applied the Powers test directly. The AG flagged but did not decide whether a mandamus would lie when a governing body simply refused or misapplied Powers; a different case would test that.
Background and statutory framework
The reimbursement statute. W. Va. Code § 11-8-31a authorizes a "governing body" of "the governmental entity of which a person is an official" to reimburse "the reasonable amount of such person's attorney fees" in (a) successful defense against removal-from-office actions, or (b) successful defense against actions seeking recovery of allegedly wrongfully expended moneys. The governing body has authority to determine warrant and reasonableness.
Companion recovery statutes. § 11-8-28 authorizes the prosecuting attorney or AG to sue to recover money expended by a fiscal body in violation of §§ 11-8-25 and 11-8-26. § 11-8-30 authorizes recovery against an official who "negligently participates in an illegal expenditure," brought by the political subdivision, a taxpayer, the state tax commissioner, or a person prejudiced.
The Powers test. Powers v. Goodwin, 170 W. Va. 151 (1982): syllabus point 3 establishes the three-part test for indemnification of public officials' legal fees. (1) Underlying action arose from the discharge of an official duty in which the government has an interest. (2) The officer acted in good faith. (3) The agency has express or implied power to indemnify.
Mandatory application by governing bodies. State ex rel. Smith v. Mingo Cnty. Comm'n, 228 W. Va. 474 (2011), syl. pt. 6: governing bodies considering § 11-8-31a requests must apply the Powers three-part test. The Court reasoned that § 11-8-31a "build[s] on the framework established in Powers."
Significance of syllabus points. State v. McKinley, 234 W. Va. 143 (2014): "[T]he Court uses original syllabus points to announce new points of law or to change established patterns of practice by the Court."
Planning commissions. W. Va. Code § 8A-2-1 establishes municipal and county planning commissions with regulatory powers over land planning and an advisory role to the creating governing body.
Ethics jurisdiction. W. Va. Code § 6B-1-1 et seq. (Ethics Act) defines and enforces ethical standards for state and local public officials and employees. The Ethics Commission has primary jurisdiction over alleged violations.
Case the AG declined to apply. Baldau v. Jonkers, 229 W. Va. 1 (2011), addressed a court order directing individual defendants to pay attorney fees, not § 11-8-31a reimbursement by a governing body. The AG declined to extend it to this question.
Citations
- W. Va. Code §§ 5-3-2; 11-8-28; 11-8-30; 11-8-31a; 8A-2-1; 6B-1-1 et seq.
- State ex rel. Smith v. Mingo Cnty. Comm'n, 228 W. Va. 474 (2011)
- Powers v. Goodwin, 170 W. Va. 151 (1982)
- State v. McKinley, 234 W. Va. 143 (2014)
- Baldau v. Jonkers, 229 W. Va. 1 (2011)
Source
- Landing page: https://ago.wv.gov/media/17891/download?inline
- Original PDF: https://ago.wv.gov/media/17891/download?inline
Original opinion text
State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General
March 22, 2016
(304) 558-2021
Fax (304) 558-0140
The Honorable Ralph A. Lorenzetti, Jr.
Prosecuting Attorney
Office of the Prosecuting Attorney of Jefferson County
Post Office Box 729
Charles Town, WV 25414
Dear Prosecutor Lorenzetti:
You have asked for an Opinion of the Attorney General regarding whether the Jefferson County Commission may, or is required to, reimburse the legal expenses incurred by the president of the Jefferson County Planning Commission in defending against an ethics complaint. 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 Attorney General's Office.
In your letter, you address the possible reimbursement of the president of the Jefferson County Planning Commission under West Virginia Code § 11-8-31a for legal expenses incurred in responding to an ethics complaint. You explain that in August 2014, a citizen of Jefferson County filed an ethics complaint with the West Virginia Ethics Commission against the president of the Planning Commission for Jefferson County. The West Virginia Ethics Commission dismissed the case. Now, your letter states, the president of the Planning Commission is seeking to have the Jefferson County Commission reimburse legal expenses he incurred successfully defending against the ethics complaint. You note that West Virginia Code § 11-8-31a permits a "governing body" to reimburse the attorney's fees expended by an "official" in successfully defending against certain types of actions. In full, that statutory provision states:
The governing body of the governmental entity of which a person is an official is hereby authorized to reimburse such person for the reasonable amount of such person's attorney fees in any case:
(a) Wherein such person has successfully defended against an action seeking his or her removal from office, or
(b) Wherein such person has successfully defended against an action seeking the recovery of moneys alleged to have been wrongfully expended.
In either case such governing body shall have authority to determine if such reimbursement is warranted and the reasonableness of the amount sought to be recovered.
W. Va. Code § 11-8-31a.
Your letter raises the following specific legal questions, which we address in turn below:
(1) Is the president of the Jefferson County Planning Commission an official of a governmental entity under West Virginia Code § 11-8-31a? (2) Does West Virginia Code § 11-8-31a require a governing body to reimburse an official for attorney's fees when he or she has successfully defended against an action seeking the recovery of moneys alleged to have been wrongfully expended? (3) Is an ethics complaint filed with the West Virginia Ethics Commission "an action seeking the recovery of moneys alleged to have been wrongfully expended" under West Virginia Code § 11-8-31a?
Question One: Is the President of the Jefferson County Planning Commission an Official of a Governmental Entity Under West Virginia Code § 11-8-31a?
We conclude first that the Jefferson County Planning Commission is a "governmental entity" within the meaning of West Virginia Code § 11-8-31a. The Jefferson County Planning Commission, like other planning commissions, has "regulatory powers over land planning" and serves "in an advisory capacity" to other governmental bodies. W. Va. Code § 8A-2-1 ("A governing body of a municipality may, by ordinance, create a planning commission . . . [to] serve in an advisory capacity to the governing body or governing bodies that created it and have certain regulatory powers over land planning."). Indeed, the members of the Jefferson County Planning Commission are appointed (to three-year terms) by the Jefferson County Commission. Bylaws of the Jefferson County Planning Commission, §§ 2.1, 2.2.
We also conclude that the president of the Jefferson County Planning Commission is an "official" of that governmental entity. The plain meaning of "official" is "a person who [has] a position of authority in a company, organization, or government" or "a person who holds an office." Merriam Webster Online, Official. Under the bylaws of the Jefferson County Planning Commission, the president readily satisfies that definition. The "president" is an "office" established by the bylaws, filled annually by an election of the members of the Planning Commission. Id. §§ 3.1-3.6. Moreover, the "president" is a "position of authority," as the president "preside[s] at all public hearings and meetings," "may call special meetings," and "is empowered to certify by signature or otherwise any official and valid action of the Planning Commission." Id. § 3.2.
Question Two: Does West Virginia Code § 11-8-31a Require a Governing Body To Reimburse an Official for Attorney Fees When He or She Has Successfully Defended Against an Action Seeking the Recovery of Moneys Alleged To Have Been Wrongfully Expended?
We believe that the West Virginia Supreme Court of Appeals would conclude that a governing body is required to apply to any reimbursement decision under West Virginia Code § 11-8-31a the three-part test the Court adopted in State ex rel. Smith v. Mingo Cnty. Comm'n, 228 W. Va. 474, 721 S.E.2d 44 (2011). On its face, the statute does little more than grant governing bodies the "authority to determine if such reimbursement is warranted." W. Va. Code § 11-8-31a. In Smith, the Court noted that the statute "provides no criteria on which to base such a determination," and expressly "h[e]ld" that the applicable criteria is found in Powers v. Goodwin, 170 W. Va. 151, 291 S.E.2d 466 (1982), a case that pre-dates the statute. Smith, 228 W. Va. at 482, 721 S.E.2d at 52. In the sixth syllabus point in Smith, the Court held that "[w]hen determining whether reimbursement for attorney's fees is warranted under West Virginia Code § 11-8-31a (2008), a governing body should apply the three-part test established in syllabus point three of Powers v. Goodwin, 170 W. Va. 151, 291 S.E.2d 466 (1982)." Syl. Pt. 6, Smith, 228 W. Va. 474, 721 S.E.2d 44. The Powers three-part test provides that reimbursement is warranted where: (1) the underlying action "arise[s] from the discharge of an official duty in which the government has an interest"; (2) "the officer . . . acted in good faith"; and (3) "the agency seeking to indemnify the officer must have either the express or implied power to do so." Smith, 228 W. Va. at 482, 721 S.E.2d at 52. Though the Legislature passed West Virginia Code § 11-8-31a just three years after Powers, the Court concluded that "§ 11-8-31a appears to build on the framework established in Powers." Smith, 228 W. Va. at 481, 721 S.E.2d at 51.
While the facts of Smith are different from the question you pose, the Court's holding in the sixth syllabus point of that case unmistakably applies. Smith concerned a mandamus action seeking reimbursement of legal fees, and the Court's primary holding was that a mandamus action was permissible because the governing body was "unable to consider the issue" due to a conflict of interest that prevented a quorum. 228 W. Va. at 480, 721 S.E.2d at 50. The Court further concluded that any court faced with such a mandamus petition should apply the Powers three-part test to determine whether the petitioner has "established a clear legal right to the relief sought." Id. at 482, 721 S.E.2d at 52. Separately, however, the Court also specifically held that any governing body considering a request for reimbursement under West Virginia Code § 11-8-31a must similarly apply the Powers three-part test. Syl. Pt. 6, Smith, 228 W. Va. 474, 721 S.E.2d 44. Though that holding was not necessary to the question in Smith or the outcome of that case, we cannot ignore the Court's deliberate decision to include the holding as a syllabus point. See State v. McKinley, 234 W. Va. 143, 153, 764 S.E.2d 303, 313 (2014) ("[T]he Court uses original syllabus points to announce new points of law or to change established patterns of practice by the Court."). We do note that the Court in Smith did not address whether an official seeking reimbursement from a governing body could bring a mandamus action if the governing body failed to apply or improperly applied the Powers three-part test.
Question Three: Is an Ethics Complaint Filed with the West Virginia Ethics Commission "an Action Seeking the Recovery of Moneys Alleged To Have Been Wrongfully Expended" Under West Virginia Code § 11-8-31a?
Finally, we do not believe that an ethics complaint filed with the West Virginia Ethics Commission constitutes "an action seeking the recovery of moneys alleged to have been wrongfully expended" under West Virginia Code § 11-8-31a(b). That clause appears to be in reference to the actions authorized by several immediately preceding provisions of the West Virginia Code. See, e.g., W. Va. Code § 11-8-28 ("Whenever a fiscal body expends money or incurs obligations in violation of sections twenty-five and/or twenty-six of this article, suit shall be instituted by the prosecuting attorney of the county or the attorney general of the State, in a court of competent jurisdiction to recover the money expended or to cancel the obligation, or both."); id. § 11-8-30 ("A person who in his official capacity negligently participates in an illegal expenditure may be proceeded against for the recovery of the amount illegally expended. The political subdivision concerned, a taxpayer of the subdivision, the state tax commissioner or a person prejudiced may bring the proceeding."). To be sure, an ethics complaint could be brought alleging that an individual violated the Ethics Act by wrongfully expending certain funds. But such a complaint would not be "an action seeking the recovery of [the] moneys alleged to have been wrongfully expended," but rather an action seeking a sanction of the individual under the State's ethics laws. W. Va. Code § 11-8-31a(b) (emphasis added).
Sincerely,
Patrick Morrisey
Attorney General
Elbert Lin
Solicitor General
Erica N. Peterson
Assistant Attorney General