Can a West Virginia conservation district use its public funds to award scholarships, like a $500 scholarship to a supervisor's child or a school-tuition stipend tied to agricultural programs?

Plain-English summary

For some time, West Virginia's conservation districts had been awarding scholarships ranging from school tuition to entry fees to direct cash payments. The recipients were "individuals and groups," and the scholarships were usually "tied to agriculture or conservation activities and programs." The West Virginia Ethics Commission, in two recent advisory opinions (A.O. 2012-42 and A.O. 2013-06), had been unable to find express or implied statutory authority for the scholarships and had told districts to seek an AG opinion.

The State Conservation Agency Executive Director asked the AG: do conservation districts have the authority to award scholarships from public funds?

The AG said no.

Conservation districts have only enumerated powers. W. Va. Code § 19-21A-8 lists eleven (and a few ancillary) powers: surveys, demonstration projects, preventive measures, property acquisition, equipment and seed provision, infrastructure construction, comprehensive planning, taking over qualifying projects, contracting, suing and being sued, and requiring contributions from beneficiaries. Critically, unlike some other state authorities, conservation districts are not granted residual power "to do all things which are necessary to further the purposes and intent of this article" (compare W. Va. Code § 31-15A-12, the water development authority's residual-power clause). When the Legislature wants a body to have catch-all authority, it says so.

The one financial-aid power does not fit. § 19-21A-8(4) lets a conservation district furnish "financial or other aid to any agency, governmental or otherwise, or any occupier of lands within the district in the carrying on of erosion-control and prevention operations and works of improvement within the district." That is conditional aid: the recipient must be a land occupier within the district, and the aid must be for erosion-control work within the district. The scholarships at issue, "for various reasons" "usually tied to agriculture or conservation activities and programs," do not satisfy either condition.

The Legislature uses 'scholarship' explicitly when it means scholarship. The opinion catalogs many statutes where the Legislature created scholarships by name: line-of-duty death scholarships across multiple state retirement systems (§§ 5-10-27, 7-14D-20, 8-22A-22, 15-2-33, 15-2A-12, 16-5V-25), the Promise Scholarship (§ 18B-17-5), the Underwood-Smith Scholarship (§ 18C-4-1), the Health Sciences Scholarship Fund (§ 18C-3-3), the Division of Highways scholarship (§ 17-2A-4b), the secondary vocational-technical scholarship (§ 18-10H-3), and the Nursing Scholarship Program (§ 18C-3-4). The absence of similar express authority in the Conservation District Law is meaningful (citing Daniel v. Simms (1901): related statutes inform interpretation).

Bottom line. Districts that have been awarding scholarships have been doing so without authority. The opinion does not address what to do about scholarships already awarded, nor does it close the door on the State Conservation Committee allocating funds to districts for narrow erosion-control aid. But broad scholarship programs need legislative authorization the districts do not currently have.

Currency note

This opinion was issued in 2015. 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 Conservation District Law and related ethics statutes have been amended in subsequent legislative sessions. Anyone evaluating a current scholarship or grant program should pull current W. Va. Code § 19-21A-1 et seq. and check for any amendments expressly authorizing such expenditures, and for current Ethics Commission advisory opinions.

Common questions

Q: Why would the AG say no when conservation districts had been doing this for years?
A: Because the AG analyzes statutory authority, not historical practice. Long-standing administrative practice does not create authority where the Legislature has not granted it. The Ethics Commission had already flagged the problem and pointed districts to seek an AG opinion. The opinion confirms the Ethics Commission's concern.

Q: What is the difference between enumerated powers and residual powers?
A: Some state authorities have broad catch-all clauses ("do all things which are necessary to further the purposes and intent of this article"), which let them act outside the specific list. Conservation districts have no such clause; their authority is limited to what § 19-21A-8 specifically lists, plus narrowly defined cooperative authority under § 19-21A-8(4).

Q: Could a district make a "scholarship" that fits within § 19-21A-8(4)?
A: Possibly, but only narrowly. The recipient would have to be a land occupier within the district, and the funds would have to be for erosion-control work within the district. A scholarship for a college student to attend an agriculture program would not satisfy either prong. A targeted grant to help a farmer pay for soil-conservation training that they will then apply on their own land within the district might come closer, but the language is not naturally read as supporting tuition-style scholarships.

Q: Could the State Conservation Committee just allocate scholarship money directly?
A: § 19-21A-4(g)(1), (6) gives the State Conservation Committee authority to "allocate money" to the districts "to assist them in carrying on their operations." But that authority does not expand the districts' downstream spending authority. The Committee can give money to a district, but the district can only spend it for purposes within the district's enumerated powers.

Q: Is there a way to fix this?
A: Legislative amendment. The Legislature could amend § 19-21A-8 to add scholarship authority, define eligible recipients and uses, and impose any necessary safeguards. Until then, the safe course is to suspend scholarship programs and consult the State Conservation Committee.

Q: What about scholarships paid from private funds the district has received?
A: The opinion treats the district's funds collectively as public funds. Distinctions between sources may matter for some purposes but the opinion does not endorse a private-funds workaround. Districts considering anything like this should get specific legal advice and consult the Ethics Commission.

Background and statutory framework

Conservation Districts. W. Va. Code § 19-21A-1 et seq. establishes conservation districts to "provide for the conservation of the soil and soil resources of this state, for the control and prevention of soil erosion, for the prevention of floodwater and sediment damage and for furthering the conservation, development, utilization and disposal of water." § 19-21A-2(d).

State Conservation Committee. § 19-21A-4(g)(1), (6) authorizes the Committee to assist districts and "allocate money" to them.

Enumerated powers. § 19-21A-8 (eleven main powers): (1) surveys and research; (2) demonstration projects; (3) preventive measures and works of improvement; (4) cooperation/financial aid for erosion-control work within the district; (5) property acquisition; (6) equipment, fertilizer, seeds, seedlings; (7) construction and maintenance of necessary structures; (8) comprehensive planning; (9) taking over qualifying projects; plus ancillary powers to contract, sue and be sued, and require beneficiary contributions.

No residual-powers clause. Compare W. Va. Code § 31-15A-12 (water development authority residual power "to do all things which are necessary to further the purposes and intent of this article").

Express scholarship statutes used as comparators. Line-of-duty death scholarships in multiple state retirement systems: §§ 5-10-27; 7-14D-20; 8-22A-22; 15-2-33; 15-2A-12; 16-5V-25. Other express scholarships: § 18B-17-5 (Promise); § 18C-4-1 (Underwood-Smith); § 18C-3-3 (Health Sciences); § 17-2A-4b (Division of Highways); § 18-10H-3 (secondary vocational-technical); § 18C-3-4 (Nursing).

Ethics Commission referrals. A.O. 2012-42 (whether a Conservation District may expend public funds to award a $500 scholarship to a District supervisor's child); A.O. 2013-06 (no explicit statutory authorization for scholarships).

Related-statute canon. Daniel v. Simms, 49 W. Va. 554 (1901).

Citations

• W. Va. Code §§ 5-3-1; 19-21A-1 et seq.; 19-21A-2(d); 19-21A-4(g)(1), (6); 19-21A-8; 19-21A-8(4); 31-15A-12; 5-10-27; 7-14D-20; 8-22A-22; 15-2-33; 15-2A-12; 16-5V-25; 18B-17-5; 18C-4-1; 18C-3-3; 17-2A-4b; 18-10H-3; 18C-3-4
• Daniel v. Simms, 49 W. Va. 554 (1901)
• W. Va. Ethics Commission A.O. 2012-42; A.O. 2013-06

Source

• Landing page: https://ago.wv.gov/media/17936/download?inline
• Original PDF: https://ago.wv.gov/media/17936/download?inline

Original opinion text

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

January 20, 2015

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

Brian Farkas
Executive Director
West Virginia Conservation Agency
1900 Kanawha Boulevard East
Charleston, West Virginia 25305

Dear Mr. Farkas:

You have asked on behalf of the Commissioner of Agriculture, in his capacity as the Chairman of the State Conservation Committee, for an Opinion of the Attorney General pertaining to whether West Virginia Conservation Districts have the legal authority to award scholarships using public funds. This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advise upon questions of law, . . . whenever required to do so, in writing, by . . . any . . . 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 letter to the Attorney General's Office.

According to your letter, a question has arisen concerning scholarships that have been administered by the State's Conservation Districts. You explain that Conservation Districts have awarded scholarships to "individuals and groups" for some period of time, and "encompass such activities as school tuition, entry fees, workshop expenses or direct cash payments." These scholarships are given "for various reasons," but "are usually tied to agriculture or conservation activities and programs." In two recent opinions requested by Conservation Districts, however, the West Virginia Ethics Commission noted that it was "unable to find express or implied authority to use the Requester's public funds for the purpose of awarding scholarships." A.O. 2012-42 at 3 (addressing whether a Conservation District "may expend public funds to award a $500.00 scholarship to a District supervisor's child who resides with his parents"); accord A.O. 2013-06 at 4 n.8 (noting that the Ethics Commission has "found no explicit statutory authorization for a District to expend its public money on scholarships"). The Ethics Commission specifically recommended that an opinion be sought from this Office "as to whether Conservation Districts are authorized to grant scholarships." A.O. 2012-42 at 3.

Your letter raises the following legal question:

Are West Virginia Conservation Districts legally authorized to award scholarships using public funds?

The governing provisions of law are found in West Virginia Code § 19-21A-1 et seq. Section 2 declares it to be "the policy of the Legislature" to "provide for the conservation of the soil and soil resources of this state, for the control and prevention of soil erosion, for the prevention of floodwater and sediment damage and for furthering the conservation, development, utilization and disposal of water." W. Va. Code § 19-21A-2(d). To that end, the law recognizes the formation and existence of Conservation Districts throughout the State, which have numerous powers relating to "soil erosion and floodwater and sediment damage." Id. § 19-21A-8(1). The Conservation Districts are overseen in a way by the State Conservation Committee, which is permitted to offer assistance to District supervisors and to "allocate money" to the Districts "to assist them in carrying on their operations." Id. § 19-21A-4(g)(1), (6).

The various powers of a Conservation District are specific and comprehensively set forth. The vast majority relate to: collecting information related to soil erosion, floodwater, and sediment damage; remedying identified problems; or preventing future problems. These powers include: (1) Conducting "surveys, investigations and research" on soil erosion, floodwater, and sediment damage, as well as the conservation, development, utilization, and disposal of water, id. § 19-21A-8(1); (2) Conducting "demonstrational projects," id. § 19-21A-8(2); (3) Enacting "preventive and control measures and works of improvement within the district," id. § 19-21A-8(3); (4) Acquiring property, id. § 19-21A-8(5); (5) Making available "equipment, fertilizer, seeds and seedlings," id. § 19-21A-8(6); (6) "Construct[ing], improv[ing], operat[ing] and maintain[ing] such structures as may be necessary or convenient" to fulfill the purposes of the article, id. § 19-21A-8(7); (7) Developing "comprehensive plans for the conservation of soil resources," the prevention of soil erosion and prevention of flooding, and conservation of water resources, id. § 19-21A-8(8); and (8) Taking over and administering "any soil-conservation, flood-prevention, drainage, irrigation, water-management, erosion-control or erosion-prevention project, or combinations thereof," located within the District's boundaries, under certain conditions, id. § 19-21A-8(9).

A number of ancillary powers are also given, such as the authority to enter into contracts, id. § 19-21A-8(13), the power to sue and be sued, id. § 19-21A-8(10), and the ability to require contributions from those receiving benefits from the District's work, id. § 19-21A-8(11). Unlike some agencies or boards created by the Legislature, a Conservation District is not granted the residual power to "do all things which are necessary to further the purposes and intent of this article." W. Va. Code § 31-15A-12 (concerning the water development authority).

We do not find among the Districts' enumerated powers the authority to award the scholarships in question using public funds. A review of all of the governing Code for the Districts, as well as the legislative rules enacted pursuant to that authority, reveal only one grant of authority concerning the expenditure of funds. A Conservation District is permitted

[t]o cooperate, or enter into agreements with, and within the limits of appropriations duly made available to it by law, to furnish financial or other aid to any agency, governmental or otherwise, or any occupier of lands within the district in the carrying on of erosion-control and prevention operations and works of improvement within the district, subject to such conditions as the supervisors may deem necessary to advance the purposes of this article.

W. Va. Code § 19-21A-8(4).

This enumerated power does not resemble the language that the Legislature typically uses to authorize the awarding of scholarships. Throughout the Code, the Legislature has created and explicitly authorized "scholarships." For example, scholarships are provided for the dependent children of individuals who are killed in the line of duty while serving the State in a law enforcement or first responder capacity. See W. Va. Code §§ 5-10-27 ("a scholarship to be applied to the career development education"), 7-14D-20 (same), 8-22A-22 (same), 15-2-33 (same), 15-2A-12 (same), 16-5V-25 (same). Other expressly created scholarships include the Promise Scholarship, see W. Va. Code § 18B-17-5, the Underwood-Smith Scholarship, see W. Va. Code § 18C-4-1, and the Health Sciences Scholarship Fund, see W. Va. Code § 18C-3-3. See also W. Va. Code §§ 17-2A-4b (granting explicit authority for the award of scholarships from state funds to address the "wide and continuing need for trained personnel in the division of highways of this state"), 18-10H-3 (establishing a "scholarship program for outstanding secondary vocational-technical education graduates to pursue additional post-secondary college work in a related career or technical field"), 18C-3-4 (authorization for the administration of the Nursing Scholarship Program and setting forth its parameters). In contrast, the Conservation District's authority to expend funds does not specifically mention or authorize the awarding of scholarships.

Moreover, even if this grant of authority could be construed as permitting the awarding of scholarships, the facts set forth in your letter do not satisfy the statutory limitations. The "furnish[ing of] financial or other aid" to a private person is permitted only where the recipient is an "occupier of lands within the district" and where the funds will assist the recipient "in carrying on of erosion-control and prevention operations and works of improvement within the district." W. Va. Code § 19-21A-8(4). Your correspondence states merely that the scholarships in question are provided "for various reasons" and are "usually tied to agriculture or conservation activities and programs." Even under the most generous reading, this description does not suggest that the outlay of funds is properly restricted to "occupier of lands within the district" or to soil-conservation efforts "within the district."

In sum, we must conclude that the West Virginia Conservation Districts lack authority to award the scholarships in question using public funds. Should you have further questions, please do not hesitate to contact this Office.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General