If a state employee on 'arrears pay' is appointed to fill a vacant elected office, like State Auditor, do they get switched to 'current pay'?

Plain-English summary

When State Auditor Glen B. Gainer III left office mid-term, his General Counsel Lisa A. Hopkins was appointed to fill the unexpired term. Hopkins had been paid on an "arrears" cycle as General Counsel. Elected officials in West Virginia have historically been on a "current" cycle. So Hopkins asked: when an arrears-pay employee gets appointed into a normally-current-pay elected office, do they switch to current pay?

The AG said no. W. Va. Code § 6-7-1 sets a default that all state full-time and part-time officials, officers, and employees are paid at least twice per month, and that since July 1, 2002, "all new officials, officers and employees of the state . . . statutory officials, contract educators with higher education and any exempt official who does not earn annual and sick leave, except elected officials, shall be paid one pay cycle in arrears." It then says, "after July 1, 2014, all state employees paid on a current basis will be converted to payment in arrears."

The statute thus defaults everyone to arrears with one exemption: "elected officials." The interpretive question is whether someone appointed to fill an elected office is an "elected official."

The AG concluded no. The Legislature elsewhere uses "appointee" to label a person filling a vacancy in an elected office. W. Va. Code § 3-10-1, the statute Hopkins was appointed under, refers to the person filling a State Auditor vacancy as "th[e] appointee." Under Osborne v. United States, the Legislature is presumed to "ha[ve] a purpose in the use of every word." The Legislature's choice to use "elected officials" rather than "elected officials and persons appointed to elected office" is meaningful. An earlier AG opinion (2013 WL 1287949) had also distinguished between qualifications for election and qualifications for appointment.

So the answer was that Hopkins kept her arrears-pay status. The opinion did not address whether the Legislature could change this by amendment, or whether Hopkins could be moved to current pay if some other statutory hook applied.

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.

W. Va. Code § 6-7-1 has been amended in subsequent legislative sessions, and the analysis depends entirely on the specific statutory language. Anyone facing a current arrears-vs-current pay question should pull the current text of § 6-7-1 and consult any later AG opinions interpreting it.

Common questions

Q: What is the difference between arrears pay and current pay?
A: Arrears pay means the employee is paid for work already completed in a prior pay cycle, so the paycheck typically lags the work period by one pay cycle. Current pay means the employee is paid in the same cycle as the work. Arrears is the standard private-sector practice; current pay was historically used in West Virginia for elected officials and certain pre-2002 state employees.

Q: Why does the difference matter for someone like Auditor Hopkins?
A: Practically, the lag affects cash flow and timing of the first and last paychecks. A move from arrears to current would have resulted in an extra paycheck in transition (or a missing one in the reverse direction). It also affects payroll-system handling.

Q: Why is the "elected officials" exemption in § 6-7-1 narrow?
A: The default rule moves everyone to arrears. The exemption preserves current pay only for actual elected officials. The AG read this as a deliberate, narrow choice. The statute could have said "elected officials and persons appointed to elected office," but it did not. Under Osborne, every word of a statute is presumed purposeful.

Q: Why does "elected officials" not include appointees to elected office?
A: Because the Legislature uses "appointee" in W. Va. Code § 3-10-1 to describe a person filling a vacancy in the State Auditor's office. The 2013 AG opinion (2013 WL 1287949) similarly distinguished qualifications for election from qualifications for appointment. Statutory terminology matters.

Q: Did the case law clarify this?
A: Not directly. The Supreme Court of Appeals had interpreted § 6-7-1 only once, in State ex rel. Graney v. Sims (1958), and not on this question. There was no directly controlling precedent. The AG built its conclusion on the statutory-text analysis and on the cross-reference to § 3-10-1.

Q: Could the appointed Auditor's pay still change due to other rules?
A: The opinion did not address other rules. § 6-7-1 itself ends with: "Nothing contained in this section is intended to increase or diminish the salary or wages of any official, officer or employee." So the move to arrears is about timing, not amount. The State Auditor's salary was set by other statutes.

Q: What happens when the appointee later runs and wins election to the same office?
A: The opinion does not address that scenario. Once the appointee becomes an elected official by winning an election for the same office, the "elected officials" carve-out would presumably begin to apply prospectively. But the cleanest answer is to consult the current statute and operating policy at the time of any such transition.

Background and statutory framework

The payroll statute. W. Va. Code § 6-7-1 sets the state payroll regime. Default: at least twice per month, under State Auditor procedures. As of July 1, 2002, "all new officials, officers and employees of the state, a state institution of higher education and the Higher Education Policy Commission, statutory officials, contract educators with higher education and any exempt official who does not earn annual and sick leave, except elected officials, shall be paid one pay cycle in arrears." As of July 1, 2014, "all state employees paid on a current basis will be converted to payment in arrears." Final clause: "Nothing contained in this section is intended to increase or diminish the salary or wages of any official, officer or employee."

The vacancy statute. W. Va. Code § 3-10-1 fills vacancies in certain elected offices, including the State Auditor. The statute refers to the person who fills the vacancy as "th[e] appointee." For example, "if the vacancy occurs after the primary cutoff date . . . then th[e] appointee shall hold the office until the end of the term of office."

Mandatory construction of "shall." State v. Bostic, 229 W. Va. 513 (2012), syl. pt. 5: "shall" without contrary statutory indication is mandatory.

Legislative-purpose canon. Osborne v. United States, 211 W. Va. 667 (2002): "[I]t is presumed the legislature had a purpose in the use of every word, phrase and clause found in a statute and intended the terms so used to be effective."

Earlier AG opinion on the same distinction. W. Va. Att'y Gen. Op., 2013 WL 1287949 (Mar. 4, 2013), distinguished qualifications required for election from qualifications required for appointment.

Citations

• W. Va. Code §§ 5-3-1; 6-7-1; 3-10-1; 3-10-3
• State ex rel. Graney v. Sims, 144 W. Va. 72 (1958)
• State v. Bostic, 229 W. Va. 513 (2012)
• Osborne v. United States, 211 W. Va. 667 (2002)
• W. Va. Att'y Gen. Op., 2013 WL 1287949 (Mar. 4, 2013)

Source

• Landing page: https://ago.wv.gov/media/17901/download?inline
• Original PDF: https://ago.wv.gov/media/17901/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
May 23, 2016

The Honorable Lisa A. Hopkins
West Virginia State Auditor
1900 Kanawha Blvd., East
State Capitol, Bldg. 1, Suite W-100
Charleston, WV 25305

Dear Auditor Hopkins:

You have asked for an Opinion of the Attorney General regarding whether an individual who previously held a position in state government categorized for "arrears pay" status must be converted to "current pay" status because that individual has been appointed to fill a vacancy in an elected office. 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 auditor." 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 explain that you were appointed to fill the unexpired term of State Auditor Glen B. Gainer III. See W. Va. Code §§ 3-10-1, 3-10-3. You explain that your previous position as General Counsel to the State Auditor was categorized as "arrears pay" status, but that elected officers historically have been treated as "current pay" employees. Your question is whether your salary payment must be converted from "arrears pay" to "current pay."

Your letter raises the following specific legal question:

Must an individual appointed to fill the unexpired term of an elected official be paid on a current basis?

The relevant statutory provision is West Virginia Code § 6-7-1. In pertinent part, the provision reads:

All full-time and part-time salaried and hourly officials, officers and employees of the state, state institutions of higher education and the Higher Education Policy Commission shall be paid at least twice per month, and under the same procedures and in the same manner as the State Auditor currently pays agencies: Provided, That on and after July 1, 2002, all new officials, officers and employees of the state, a state institution of higher education and the Higher Education Policy Commission, statutory officials, contract educators with higher education and any exempt official who does not earn annual and sick leave, except elected officials, shall be paid one pay cycle in arrears. . . . Provided, however, That, after July 1, 2014, all state employees paid on a current basis will be converted to payment in arrears. . . . Nothing contained in this section is intended to increase or diminish the salary or wages of any official, officer or employee.

W. Va. Code § 6-7-1. The West Virginia Supreme Court of Appeals has interpreted this provision only once and has never addressed the question you pose. See State ex rel. Graney v. Sims, 144 W. Va. 72, 105 S.E.2d 886 (1958). There are also no previous Opinions of the Attorney General addressing your question.

We read Section 6-7-1 to establish a default rule, subject to two significant exemptions, for the payment of certain persons by the State. The default rule is that "officials, officers and employees of the state, state institutions of higher education and the Higher Education Policy Commission" "shall be paid at least twice per month" and under the procedures of the State Auditor that were "current[]" at the time that statutory language was written. See Syl. pt. 5, State v. Bostic, 229 W. Va. 513, 729 S.E.2d 835 (2012) ("It is well established that the word 'shall,' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation." (internal quotations omitted)). The statute then creates two exemptions from that default rule. First, those officials and officers who took office after July 1, 2002, with the notable exception of some or all "elected officials", must "be paid one cycle in arrears." Second, all "state employees" must also be paid "in arrears."

Under this reading, we believe that the State must pay on an "arrears basis" any individual recently appointed to fill the unexpired term of an elected office. With only one exception, the statutory text requires that any official or officer who took office after July 1, 2002, and all state employees regardless of date of hire, must be paid in arrears. The only exception is for "elected officials," but we do not believe that exception applies to a person appointed to an elected office. In the West Virginia Code, the Legislature refers to such an appointed person not as an "elected official," but rather as an "appointee." For example, West Virginia Code § 3-10-1 provides that if a vacancy in the office of the State Auditor occurs after the primary cutoff date, "then th[e] appointee shall hold the office until the end of the term of office." Longstanding principles of statutory interpretation require that we give meaning to the Legislature's specific choice of every word. See, e.g., Osborne v. United States, 211 W. Va. 667, 673, 567 S.E.2d 677, 683 (2002) ("[I]t is presumed the legislature had a purpose in the use of every word, phrase and clause found in a statute and intended the terms so used to be effective"); cf. W. Va. Att'y Gen. Op., 2013 WL 1287949 at *2 (Mar. 4, 2013) (distinguishing between qualifications required for election and those required for appointment).

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Erica N. Peterson
Assistant Attorney General