Is a county solid waste authority a 'state agency' that has to follow state purchasing rules and other state-government procedures?

Plain-English summary

The West Virginia Solid Waste Management Board (SWMB) wanted to know whether the 55 county solid waste authorities have to follow state policies and procedures, like the state purchasing rules. The Board's view was yes, because county solid waste authorities satisfy the multi-factor test for "state agency" status from Blower v. West Virginia Educational Broadcasting Authority (1990).

The AG split the question.

There is no all-purposes definition of "state agency" in West Virginia. The Legislature defines the term differently for different statutes. Blower itself was a venue case interpreting "state agency" for purposes of W. Va. Code § 14-2-2, the special venue statute for suits against the State. The Court borrowed the multi-factor test from sovereign-immunity cases. Mayo v. W. Va. Secondary Sch. Activities Comm'n extended Blower once, to attorney-fee awards. The Supreme Court of Appeals has not generalized Blower to cover every statutory use of "state agency." The AG therefore refused to write an across-the-board ruling that county solid waste authorities are or are not "state agencies" for all purposes.

For the purchasing-rules question specifically, the answer is no. Chapter 5A, Article 3 applies "to all of the spending units of state government." § 5A-3-1(c). "Spending unit" is defined in § 5A-1-1(21) as a state department, bureau, division, office, board, commission, authority, agency, or institution "for which an appropriation is requested of the Governor, or to which an appropriation is made by the Legislature." County solid waste authorities flunk that second part. § 22C-4-7(b) funds county solid waste authority expenses "from the general funds in the county treasury to the extent that such expenses are not paid by fees, grants and funds received by the authority from other sources." County commissions decide the annual allocation. The Supreme Court of Appeals has called this the "financial tether" between the county commission and the county solid waste authority (State ex rel. Warner v. Jefferson Cty. Comm'n, 1996). Because the funding flows through the county treasury rather than via state appropriation, county solid waste authorities are not "spending units of state government" and the state purchasing rules do not reach them.

The AG then included a footnote applying the Blower factors anyway, just to show how mixed the result would be even if Blower did control here. Three factors point toward state-agency status: the powers of solid waste authorities were created by the Legislature; the board composition is statutorily prescribed; and they are financially dependent on public funds. Two cut the other way: they operate countywide, not statewide, and they do not deposit funds in the state treasury.

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 state purchasing chapter and the county solid waste authority chapter have both been amended in subsequent legislative sessions. Anyone making a present-day call on whether a county solid waste authority must follow particular state procedures should pull the current text of W. Va. Code §§ 5A-1-1, 5A-3-1, and 22C-4-1 et seq., and check for later AG opinions or court decisions interpreting them.

Common questions

Q: What is a "spending unit of state government" under the purchasing chapter?
A: § 5A-1-1(21) defines it as "a department, bureau, department, division, office, board commission, authority, agency or institution of the state government for which an appropriation is requested of the Governor, or to which an appropriation is made by the Legislature, unless a specific exemption from this chapter is provided in this code." Both elements matter: state-government entity, and funded through gubernatorial appropriation request or legislative appropriation.

Q: How are county solid waste authorities funded if not by state appropriation?
A: § 22C-4-7(b) provides that operating expenses come "from the general funds in the county treasury to the extent that such expenses are not paid by fees, grants and funds received by the authority from other sources." The county commission decides the annual amount. Fees and grants supplement.

Q: Doesn't the SWMB's argument that county authorities are 'state agencies' have weight?
A: It has some, depending on the legal context. The AG agreed the Blower factors do not all cut the same way. Three favor state-agency status (legislatively created powers, legislatively prescribed board composition, dependence on public funds). Two cut against (countywide rather than statewide operation, county-treasury rather than state-treasury funds). For purposes of W. Va. Code § 14-2-2 venue or sovereign immunity, a court could go either way and would have to apply Blower to that specific question. But for purposes of the state purchasing rules, the statute supplies its own definition that does not depend on Blower.

Q: What is the Blower test, exactly?
A: From Blower v. W. Va. Educ. Broad. Auth., 182 W. Va. 528, syl. pt. 1, the Court considers whether the entity (1) was substantially created by the Legislature, (2) has its governing board composition prescribed by the Legislature, (3) is financially dependent on public funds, (4) operates on a statewide basis, and (5) is required to deposit funds in the state treasury. Blower itself only resolved the term for venue purposes under § 14-2-2. Chiles (2014) and Mayo (2008) are the only Supreme Court of Appeals cases that have explicitly extended it.

Q: When does Blower apply outside venue and immunity?
A: Only once that the Court has clearly recognized: Mayo (2008), which used Blower to decide whether the Secondary Schools Athletic Commission counted as a state agency for purposes of attorney-fee awards. Chiles (2014) acknowledged this and confirmed that Blower's test "pertained to an award of attorney's fees" in Mayo.

Q: Can the Legislature make any solid waste authority a state agency simply by saying so?
A: Yes, as a matter of statutory definition. The AG's broader point is that "state agency" status is a contextual question determined by each statute that uses the term. The Legislature can include or exclude particular entities from particular regimes. The right starting place for any contested coverage question is the specific statute, then the definitional sections, and only then the Blower factors if no controlling definition is supplied.

Q: Are county solid waste authorities subject to other state statutes (open meetings, FOIA, ethics)?
A: This opinion does not decide that. Each statute has its own coverage definition. Open meetings and FOIA generally use a "public body" definition that is much broader than "state agency." Ethics Act jurisdiction reaches "all elected and appointed public officials and public employees" in state, county, and municipal entities. Authorities should not assume the answer to one coverage question controls another.

Background and statutory framework

State purchasing. W. Va. Code Chapter 5A, Article 3 establishes the Purchasing Division of the Department of Administration. § 5A-3-1(c): "The provisions of this article apply to all of the spending units of state government, except as otherwise provided by this article or by law." § 5A-1-1(21) defines "spending unit" as a state-government entity "for which an appropriation is requested of the Governor, or to which an appropriation is made by the Legislature."

County solid waste authorities. W. Va. Code § 22C-4-1 et seq. establishes county solid waste authorities. § 22C-4-3(a) calls them "a public agency in every county of the state." § 22C-4-3(b) prescribes a five-member board: one appointed by the director of the division of environmental protection, two by the county commission, one by the soil conservation district board of supervisors for the county's district, and one by the chairman of the public service commission. § 22C-4-7(b) funds them through "the general funds in the county treasury" and authorizes the county commission to "determine the amount to be allocated annually to the [county solid waste] authority." State ex rel. Warner v. Jefferson Cty. Comm'n, 198 W. Va. 667 (1996), described this as a "financial tether."

Blower test for state-agency status. Blower v. W. Va. Educ. Broad. Auth., 182 W. Va. 528 (1990), syl. pt. 1: factors include legislative creation of powers, legislatively prescribed board composition, financial dependence on public funds, statewide basis of operation, and deposit of funds in the state treasury. Blower itself decided the meaning for purposes of W. Va. Code § 14-2-2 venue.

Subsequent application of Blower. State ex rel. Stewart v. Alsop, 207 W. Va. 430 (2000); State ex rel. W. Va. Bd. of Educ. v. Perry, 189 W. Va. 662 (1993); Chiles, 234 W. Va. 125 (2014) (all venue cases). Arnold Agency v. W. Va. Lottery Comm'n, 206 W. Va. 583 (1999) (sovereign immunity). Mayo v. W. Va. Secondary Sch. Activities Comm'n, 223 W. Va. 88 (2008) (attorney's fees).

Citations

• W. Va. Code §§ 5-3-1; 5A-1-1(21); 5A-3-1(c); 14-2-2; 22C-4-1 et seq.; 22C-4-3(a); 22C-4-3(b); 22C-4-7(b)
• Blower v. W. Va. Educ. Broad. Auth., 182 W. Va. 528 (1990)
• State ex rel. W. Va. Real Estate Appraiser Licensing & Certification Bd. v. Chiles, 234 W. Va. 125 (2014)
• State ex rel. Stewart v. Alsop, 207 W. Va. 430 (2000)
• State ex rel. W. Va. Bd. of Educ. v. Perry, 189 W. Va. 662 (1993)
• Arnold Agency v. W. Va. Lottery Comm'n, 206 W. Va. 583 (1999)
• Mayo v. W. Va. Secondary Sch. Activities Comm'n, 223 W. Va. 88 (2008)
• State ex rel. Warner v. Jefferson Cty. Comm'n, 198 W. Va. 667 (1996)

Source

• Landing page: https://ago.wv.gov/media/17896/download?inline
• Original PDF: https://ago.wv.gov/media/17896/download?inline

Original opinion text

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

April 6, 2016

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

Mark Holstine, P.E.
Executive Director
Solid Waste Management Board
601 57th Street, S.E.
Charleston, WV 25304

Dear Mr. Holstine:

You have asked on behalf of the West Virginia Solid Waste Management Board (SWMB) for an Opinion of the Attorney General regarding whether a county solid waste authority is considered a "state agency," such that the authority may be required to follow "state policies and procedures, such as purchasing." 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 . . . any other state officer, board or commission." 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.

Your letter raises the following legal question:

Are county solid waste authorities state agencies, such that they should follow state policies and procedures, such as purchasing rules?

In your letter, you state that "[i]t is the SWMB's contention that the county authorities are state entities, and thus, must adhere to applicable state policies and procedures." Quoting from Blower v. West Virginia Educational Broadcasting Authority, 182 W. Va. 528, 389 S.E.2d 739 (1990), you assert that "[t]he West Virginia Supreme [Court] of Appeals has established that in 'determining whether a particular organization is a state agency, we have examined its legislative framework.'" County solid waste authorities, your letter goes on to claim, satisfy the Blower factors and thus "are also 'state agencies.'"

After a careful review of the relevant statutes and case law, we do not believe we can answer whether, in all circumstances, county solid waste authorities are "state agencies" and must follow "state policies and procedures." The Legislature has the authority to statutorily define the concept of a "state agency" differently in different contexts, and to dictate as it sees fit which particular entities are covered by which state policies or procedure. For example, the state purchasing laws specifically provide that they apply to "spending units of state government," a term that has a particular statutory definition. W. Va. § 5A-3-1(c); see also id. § 5A-1-1(21) (defining "spending unit").

While your letter suggests that the West Virginia Supreme Court of Appeals set forth a general test for state agency status in Blower v. West Virginia Educational Broadcasting Authority, 182 W. Va. 528, 389 S.E.2d 739 (1990), we do not read that case to go so far. In Blower, the Supreme Court of Appeals was faced with a very specific certified question: "whether the West Virginia Educational Broadcasting Authority (EBA) is a state agency and thus subject to the special venue provisions of W. Va. Code, 14-2-2(a)(1) (1976)." Id. at 529, 389 S.E.2d at 740. Noting that it had "not previously had occasion to formulate a test on what constitutes a state agency under W. Va. Code, 14-2-2," the court looked to previous cases that "dealt with what is a state agency for purposes of determining whether the entity is entitled to constitutional immunity." Id. at 530, 389 S.E.2d at 741. It then borrowed from those cases a multi-factor test, explaining that it saw "no reason why the same test should not apply to determine whether an organization is a state agency for purposes of the venue provisions of W. Va. Code, 14-2-2." Id. at 530-31, 389 S.E.2d at 741-42. Thus, as the court has said since Blower, we believe that the case only "set forth a test for determining whether an entity is a 'state agency' for purposes of West Virginia Code § 14-2-2." State ex rel. W. Va. Real Estate Appraiser Licensing & Certification Bd v. Chiles, 234 W. Va. 125, 128, 763 S.E.2d 663, 666 (2014).

Not only has the Supreme Court of Appeals never suggested that the Blower test answers for all purposes whether an entity is a state agency, it has only applied the test in a few specific contexts. First, the test has been applied to determine whether an entity is a state agency for purposes of the special venue provisions of West Virginia Code § 14-2-2, as in Blower itself. See, e.g., Chiles, 234 W. Va. at 128, 763 S.E.2d at 666; State ex rel. Stewart v. Alsop, 207 W. Va. 430, 434, 533 S.E.2d 362, 366 (2000); State ex rel. W. Virginia Bd. of Educ. v. Perry, 189 W. Va. 662, 664 n.1, 434 S.E.2d 22, 24 n.1 (1993). Second, the test has been applied to determine whether an entity is a state agency for purposes of sovereign immunity, as in the cases on which Blower was based. See, e.g., Arnold Agency v. W. Virginia Lottery Comm'n, 206 W. Va. 583, 592, 526 S.E.2d 814, 823 (1999). Third, the test has been extended in one case to determine whether the Secondary Schools Athletic Commission (SSAC) constitutes a state agency against which attorney's fees could be awarded. Mayo v. W. Virginia Secondary Sch. Activities Comm'n, 223 W. Va. 88, 94-97, 672 S.E.2d 224, 230-33 (2008); see also Chiles, 234 W. Va. at 130 n.9, 168 S.E.2d at 668 ("Although the issue of 'state agency' in Mayo pertained to an award of attorney's fees, rather than venue, the Blower test was applied."). We do not understand your letter to be asking about the state agency status of county solid waste authorities in any of these circumstances, and therefore do not undertake a Blower analysis.

We do note that, in any event, the Blower factors do not point clearly in one direction. The first Blower factor favors a finding that county solid waste authorities are state agencies because the powers of county solid waste authorities were "substantially created by the legislature." Syl. Pt. 1, Blower, 182 W. Va. 528, 389 S.E.2d 739; see W. Va. Code § 22C-4-1, et seq. (establishing county solid waste authorities and their powers and duties); Warner, 198 W. Va. at 669, 482 S.E.2d at 654 ("the legislature empowered the county commissions to create and establish county solid waste authorities"). The second factor, whether the "composition" of the governing board of each county solid waste authority is "prescribed by the legislature," Syl. Pt. 1, Blower, 182 W. Va. 528, 389 S.E.2d 739, also appears to favor state agency status. See W. Va. Code § 22C-4-3(b) (establishing five-member board with one member appointed by director of the division of environmental protection, two by the county commission, one by the board of supervisors for the soil conservation district in which the county is situated, and one by the chairman of the public service commission). As does the third factor, because the county solid waste authority is "financially dependent on public funds." Syl. Pt. 1, Blower, 182 W. Va. 528, 389 S.E.2d 739. But the remaining two factors cut against state agency status under Blower. County solid waste authorities do not operate on a "statewide basis," id., but rather on a countywide basis, W. Va. Code § 22C-4-3(a) ("a public agency in every county of the state"). Nor are county solid waste authorities required by statute to deposit funds in the "state treasury." Syl. Pt. 1, Blower, 182 W. Va. 528, 389 S.E.2d 739. We also note that the Supreme Court of Appeals appeared to note in Blower a difference between State and local funding and control, see id. at 530, 389 S.E.2d at 741 ("Factors to consider are . . . whether it is subject to local control . . . and its financial dependence on State coffers"), which would cut against state agency status for county solid waste authorities.

Though we cannot answer your general question about the status of county solid waste authorities in all circumstances, we can answer, in the negative, your specific question regarding the applicability of the State's purchasing rules to county solid waste authorities. The statutory authority of the Purchasing Division of the Department of Administration is found in Chapter 5A, Article 3 of the West Virginia Code. As noted above, "[t]he provisions of th[at] article apply to all of the spending units of state government, except as otherwise provided by this article or by law." W. Va. § 5A-3-1(c) (emphasis added). "Spending unit" is defined as "a department, bureau, department, division, office, board commission, authority, agency or institution of the state government for which an appropriation is requested of the Governor, or to which an appropriation is made by the Legislature, unless a specific exemption from this chapter is provided in this code." Id. § 5A-1-1(21) (emphasis added). A county solid waste authority does not constitute a "spending unit[] of state government," id. § 5A-3-1(c), under this statutory definition.

Even assuming that a county solid waste authority meets the first part of the definition for "spending unit", i.e., it is "a department, bureau, department, division, office, board commission, authority, agency or institution of the state government", it does not satisfy the latter requirement that it be funded by "an appropriation . . . requested [by] the Governor, or . . . made by the Legislature." Id. By statute, each county solid waste authority is funded not by state appropriation but rather "from the general funds in the county treasury to the extent that such expenses are not paid by fees, grants and funds received by the authority from other sources." W. Va. Code § 22C-4-7(b). County commissions have "the authority to determine the amount to be allocated annually to the [county solid waste] authority." Id. As the Supreme Court of Appeals has explained, there is a "financial tether" between county commissions and county solid waste authorities. State ex rel. Warner v. Jefferson Cty. Comm'n, 198 W. Va. 667, 673, 482 S.E.2d 652, 658 (1996); see also id. ("[A]s a matter of law the Jefferson County Commission has a duty and responsibility of financially subsidizing the functions of the [Jefferson County Solid Waste Authority]").

In sum, we cannot answer whether county solid waste authorities are state agencies in all circumstances, but as to your specific question regarding the State's purchasing rules, we believe state law clearly provides that county solid waste authorities are not covered.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Julie Warren
J. Zak Ritchie
Assistant Attorneys General