Can a county commission fire members of a county hospital board of trustees in the middle of their term without holding a public hearing?

Plain-English summary

The Grant County Commission wanted to remove two members from the Grant Memorial Hospital Board of Trustees. The County Commission argued that under Williams v. Brown (1993), citing Barbor (1920), it could remove the trustees at will without a public hearing. The county prosecutor disagreed and asked the AG.

The AG sided with the prosecutor.

W. Va. Code § 7-3-15 provides that "the administration and management of any county public hospital . . . shall be vested in a board of trustees, consisting of not less than five members appointed by the county court." After initial staggered terms, "the term of each new appointee shall be six years." Critically, the statute then says: "Any trustee may be removed by the county commission for incompetency, neglect of duty or malfeasance in office after an opportunity to be heard at a public hearing before the county commission."

Two things matter. First, the statute fixes a six-year term, not at-pleasure tenure. Second, it lays out an explicit removal procedure: just cause (incompetency, neglect of duty, or malfeasance) and a public hearing. By contrast, the hospital trustees can themselves "remove at pleasure all professional, technical and other employees" of the hospital, showing that the Legislature knows how to grant at-will removal authority when it wants to.

Williams v. Brown and Barbor are inapposite. Williams dealt with assistant attorneys general, who under W. Va. Code § 5-3-3 (1961) "shall serve at the pleasure of the attorney general" with no fixed term. Barbor dealt with the manager of a county poor farm, who under that statute also served at the county's "pleasure" with no fixed term. In both cases, the Court inferred at-will removal because the appointing-authority text said "pleasure" and the position carried no fixed term. The hospital trustees statute does the opposite: fixed term plus express for-cause removal procedure.

A footnote noted a third pattern the AG had recently confronted: an ambulance authority statute that authorized fixed-term appointment but was silent on removal (W. Va. Att'y Gen. Op., 2015 WL 7431400 (Nov. 12, 2015)). There the AG had concluded the county commission lacked authority to remove members mid-term but could still file charges in circuit court under W. Va. Code § 6-6-7. The hospital trustees statute is even clearer because it spells out the removal procedure on its face.

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 county-public-hospital and county-officer-removal statutes have been amended in subsequent legislative sessions, and case law on for-cause removals continues to develop. Before relying on the analysis here, pull the current text of W. Va. Code §§ 7-3-15, 7-3-14, and 6-6-7, and check for later AG opinions or Supreme Court decisions.

Common questions

Q: What does W. Va. Code § 7-3-15 actually say about removal?
A: "Any trustee may be removed by the county commission for incompetency, neglect of duty or malfeasance in office after an opportunity to be heard at a public hearing before the county commission." Three for-cause grounds, plus a public-hearing procedural requirement.

Q: What grounds count as "incompetency, neglect of duty or malfeasance in office"?
A: The opinion does not define these terms in detail. They are common just-cause categories in West Virginia removal statutes. Whether specific facts meet the standard is a separate question that would have to be addressed in the actual hearing record. Conclusory accusations without evidence will not suffice.

Q: Why don't Williams v. Brown and Barbor v. County Court support at-will removal here?
A: Both involved statutes that combined two features: (1) explicit "serve at the pleasure" language giving the appointing authority discretion, and (2) no fixed term. Under those conditions, the Court inferred at-will removal. § 7-3-15 has neither feature. It fixes six-year terms and lists for-cause grounds plus a public hearing procedure.

Q: Does the public hearing have to follow specific procedures?
A: § 7-3-15 only requires "an opportunity to be heard at a public hearing before the county commission." Notice of the charges, an opportunity to respond, and a public meeting are the core elements. Specific procedural details (notice timing, evidence rules, etc.) are not in the statute. The county commission must act consistently with the broader Open Meetings law and procedural-due-process expectations.

Q: What if the trustee resigns before the hearing?
A: The opinion does not address resignation. A trustee who resigns is no longer in office; the county commission can then appoint a replacement under the regular vacancy procedures.

Q: What if the county commission has another statutory route to remove a trustee?
A: The footnote points to W. Va. Code § 6-6-7, which lets a county commission file charges in circuit court for the removal of "any person holding any county, school district or municipal office" for "official misconduct, malfeasance in office, incompetence, neglect of duty or gross immorality or for any of the causes or on any of the grounds provided by any other statute." That is a circuit-court route, not a commission-level removal. § 7-3-15's procedure is the more direct path for hospital trustees.

Q: Does the same logic apply to other at-cause-only boards?
A: The framework does. When a statute (a) fixes a definite term and (b) limits removal to specified for-cause grounds with procedure, the at-will inference from Williams and Barbor does not apply. Each board's enabling statute should be read carefully for its specific term and removal language.

Background and statutory framework

The hospital trustees statute. W. Va. Code § 7-3-15 vests management of a county public hospital in a board of trustees of at least five members appointed by the county commission. Initial staggered terms (two-year, four-year, six-year), then fixed six-year terms. Removal: "Any trustee may be removed by the county commission for incompetency, neglect of duty or malfeasance in office after an opportunity to be heard at a public hearing before the county commission." Hospital employees (in contrast) are removable "at pleasure" by the trustees themselves.

The at-pleasure inference. Williams v. Brown, 190 W. Va. 202 (1993), syl. pt. 4: where statute provides assistant attorneys general "shall serve at the pleasure of the attorney general" (W. Va. Code § 5-3-3 (1961)) and "carries no fixed term," "an at-will removal power is implied" (citing State ex rel. Archer v. County Court (1965)). Barbor v. Cnty. Court of Mercer Cnty., 85 W. Va. 359 (1920), syl. pt. 4: "Where a statute conferring the power to appoint fixes no definite term of office, but provides that tenure shall be at the pleasure of the appointing body, the implied power to remove such appointee may be exercised at its discretion."

The fallback removal procedure. W. Va. Code § 6-6-7(a) authorizes filing charges in circuit court for removal of "[a]ny person holding any county, school district or municipal office," including for "official misconduct, malfeasance in office, incompetence, neglect of duty or gross immorality or for any of the causes or on any of the grounds provided by any other statute."

Earlier AG application. W. Va. Att'y Gen. Op., 2015 WL 7431400 (Nov. 12, 2015): held that where a statute authorized fixed-term appointment but was silent on removal, the county commission lacked authority to remove members mid-term but could still use § 6-6-7 to file charges in circuit court.

Citations

• W. Va. Code §§ 5-3-2; 7-3-14; 7-3-15; 6-6-7; 5-3-3 (1961)
• Williams v. Brown, 190 W. Va. 202 (1993)
• Barbor v. Cnty. Court of Mercer Cnty., 85 W. Va. 359 (1920)
• State ex rel. Archer v. County Court, 150 W. Va. 260 (1965)
• W. Va. Att'y Gen. Op., 2015 WL 7431400 (Nov. 12, 2015)

Source

• Landing page: https://ago.wv.gov/media/17906/download?inline
• Original PDF: https://ago.wv.gov/media/17906/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 8, 2016

The Honorable Jeffrey R. Roth
Prosecuting Attorney
Office of the Prosecuting Attorney of Grant County
5 Highland Avenue
Petersburg, WV 26847

Dear Prosecutor Roth:

You have asked for an Opinion of the Attorney General regarding whether the Grant County Commission must hold a public hearing in order to remove two members from the Grant Memorial Hospital Board of Trustees. 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 explain that a dispute has arisen over the Grant County Commission's attempt to dismiss two members of the board of trustees of Grant Memorial Hospital. It is your view that West Virginia Code § 7-3-15 prohibits the Commission from removing the board members without a public hearing. According to your letter, the County Commission disagrees, relying on the West Virginia Supreme Court of Appeals' decision in Williams v. Brown, 190 W. Va. 202, 437 S.E.2d 775 (1993), which cites Barbor v. County Court, 85 W. Va. 359, 101 S.E. 722 (1920).

Your letter raises the following specific legal question:

Is a county commission required to hold a public hearing in order to remove members from the board of trustees of a county public hospital?

The relevant statutory provision is West Virginia Code § 7-3-15. In pertinent part, the provision reads:

The administration and management of any county public hospital, clinic, long-term care facility or other related facility acquired, equipped, furnished, improved or extended under section fourteen of this article shall be vested in a board of trustees, consisting of not less than five members appointed by the county court. Prior to the issuance of any bonds under the provisions of section fourteen of this article, the county court shall appoint two of such trustees for a term of two years, two trustees for a term of four years, and one trustee for a term of six years from the first day of the month during which appointed. Upon the expiration of such initial appointments, the term of each new appointee shall be six years, except that any person appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed only for the remainder of such term. . . . Any trustee may be removed by the county commission for incompetency, neglect of duty or malfeasance in office after an opportunity to be heard at a public hearing before the county commission. . . .

Such board of trustees shall provide for the employment of and shall fix the compensation for and remove at pleasure all professional, technical and other employees, skilled or unskilled, as it may deem necessary for the operation and maintenance of the hospital, clinic, long-term care facility or other related facility

W. Va. Code § 7-3-15. Grant Memorial Hospital is a public hospital owned by the Grant County Commission as authorized by West Virginia Code § 7-3-14.

The statute plainly states that a county commission has authority to remove members of the hospital board of trustees only for "incompetency, neglect of duty or malfeasance" and only after a public hearing. After the expiration of the initial appointments to the board, members of the board of trustees of a public hospital are appointed by the county commission to serve defined terms of six years. W. Va. Code § 7-3-15. The statute then states that "[a]ny trustee may be removed by the county commission for incompetency, neglect of duty or malfeasance in office after an opportunity to be heard at a public hearing before the county commission." W. Va. Code § 7-3-15. In notable contrast, the statute grants the board of trustees the power to "remove at pleasure" all employees of the facility that is run by the board. Though the West Virginia Supreme Court of Appeals has not interpreted these removal provisions, we think the statutory text is clear as to the limits on the county commission's mid-term removal power over members of a county hospital board of trustees.

The cases relied upon by the County Commission, Williams v. Brown, 190 W. Va. 202, 437 S.E.2d 775 (1993), and Barbor v. Cnty. Court of Mercer Cnty., 85 W. Va. 359, 101 S.E. 721 (1920), are not to the contrary. While those cases provided that the appointees could be removed at the pleasure of the appointing official (and thus without a public hearing), the statutes at issue in those cases were different in critical respects. As highlighted in each opinion, those cases both turned on the fact that the relevant statutes explicitly stated that appointees served "at the pleasure" of the appointing official and contained no fixed term of service.

In Williams, the statute provided that assistant attorneys general "shall serve at the pleasure of the attorney general." Syl. Pt. 4, Williams v. Brown, 190 W. Va. 202, 437 S.E.2d 775 (citing W. Va. Code § 5-3-3 (1961)). The court reasoned that the Legislature's use of that phrase "indicate[d] the intent . . . to give the Attorney General unfettered control over the hiring and firing of assistant attorneys general." Id. at 205, 437 S.E.2d at 778. It explained further: "[A]n at-will removal power is implied when the employer has the power of appointment and the office carries no fixed term." Id. at 205, 437 S.E.2d at 778 (citing State ex rel. Archer v. County Court, 150 W. Va. 260, 144 S.E.2d 791 (1965)).

Similarly, in Barbor, the statute did not specify a term of office for the manager of the county poor farm, but instead stated that the individual served at the county commission's pleasure. 85 W. Va. at 359, 101 S.E. at 722. Thus, the court concluded that the individual could be terminated at will. It summarized: "[w]here a statute conferring the power to appoint fixes no definite term of office, but provides that tenure shall be at the pleasure of the appointing body, the implied power to remove such appointee may be exercised at its discretion." Syl. Pt. 4, Barbor v. Cnty. Court of Mercer Cnty., 85 W. Va. 359, 101 S.E. 721.

The statute here does not resemble the statutes in those cases. In this case, the statute specifies a definite term of office for members of the board of trustees. It also does not state that a member can be terminated at will, but rather expressly sets forth the scope of the county commission's power to remove a member.

In a recent Opinion, we confronted a third factual circumstance: where the relevant statute authorized the county commission to appoint ambulance authority board members for a fixed term but was silent as to the commission's authority to remove members. W. Va. Att'y Gen. Op., 2015 WL 7431400 (Nov. 12, 2015). We concluded that the county commission itself lacked authority to remove the board members mid-term, but we did note that the county commission could still follow the procedure set forth in West Virginia Code § 6-6-7 to file charges with a circuit court for the removal of "[a]ny person holding any county, school district or municipal office," in the event of "official misconduct, malfeasance in office, incompetence, neglect of duty or gross immorality or for any of the causes or on any of the grounds provided by any other statute." W. Va. Code § 6-6-7(a).

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Erica N. Peterson
Assistant Attorney General