Can a West Virginia state college's board of governors give all employees a one-time $500 bonus after the work has already been done, or does the state constitution forbid it?

Official title

Opinion of the Attorney General Regarding the State Constitution's Prohibitions on Increasing a Public Officer's Salary and Giving State Employees Extra Compensation

Plain-English summary

Mountwest Community and Technical College's board of governors approved a one-time $500 "non-base building salary enhancement" for every full-time employee on the December 1, 2014 payroll, paid on December 16. The State Auditor refused to release the money, citing W. Va. Const. art. VI, § 38, which says no extra compensation may be granted to a public officer or employee "after the services shall have been rendered or the contract made." The college president asked the AG whether the constitution actually blocked the payments.

The AG split the analysis into two clauses. The first clause forbids increasing or decreasing the salary of a "public officer" during the term of office, but only when the salary is fixed by law. State college employees were not in that category because their pay was set by board discretion under W. Va. Code § 18B-2A-4(w), so that clause did not apply.

The second clause is broader: it forbids extra compensation "after the services shall have been rendered or the contract made." That covered the situation. The AG worked through whether the December $500 was a payment for past work (an unconstitutional bonus) or for future work (a permissible prospective raise). For at-will employees, the answer was that a one-time forward-looking payment for future services is allowed, even if it functionally looks like a bonus. For contractual employees (faculty under term appointments and the college president under a yearly contract), the answer was different. Once a contract is made, additional compensation outside the contract is forbidden during the contract term, period, unless the employee performs new and different duties outside the original scope. The bonus to those employees ran afoul of the constitution.

The AG also flagged a possible workaround for at-will employees that risked constitutional trouble: a facially prospective payment that, in substance, rewards past conduct. The AG declined to draw that line, leaving it for the courts.

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.

Common questions

Q: What does W. Va. Const. art. VI, § 38 actually say?

A: Two prohibitions in one sentence. First: "No extra compensation shall be granted or allowed to any public officer, agent, servant or contractor, after the services shall have been rendered or the contract made." Second: "Nor shall the salary of any public officer be increased or diminished during his term of office." Section 38 has been part of the West Virginia Constitution since 1872 and has parallels in many other state constitutions.

Q: What is the difference between a "public officer" and a "public employee" for these purposes?

A: West Virginia law distinguishes them. A public officer holds an office created by law, often elected or fixed-term, with statutorily defined duties (county sheriff, county commissioner, judge). Public employees, by contrast, work at the will of an appointing authority. The salary clause of § 38 applies only to public officers whose pay is fixed by law. The extra-compensation clause applies more broadly to officers, agents, servants, and contractors.

Q: Why did the salary-clause analysis come out for the college?

A: Under Rucker v. Bd. of Supervisors of Pocahontas County (1874), the salary clause applies only to salaries "definitely fixed or prescribed by law." The Mountwest board had complete discretion to set college employees' compensation under W. Va. Code § 18B-2A-4(w), with no statutory schedule binding it. So no fixed, prescribed salary, no salary clause. (Mountwest had been subject to a statutory pay schedule earlier, under § 18B-9-3, but met the conditions to fund itself off the schedule and was no longer bound.)

Q: Why is the answer different for contract and non-contract employees?

A: The constitutional ban on extra compensation has two trigger points: "after the services shall have been rendered" and "after the contract made." For at-will employees there is no contract, so only the services trigger applies, and the question is just whether the extra pay is for past work (forbidden) or future work (allowed). For contractual employees, the contract trigger does its own work: once a contract is in place, anything outside the contract during its term is "extra," even if labeled as forward-looking. The only way around it is genuinely new duties outside the contract's original scope.

Q: Could the college reframe the bonus as a base-pay increase plus an immediate base-pay decrease?

A: The AG noted the structural symmetry: there is nothing in § 38 forbidding a prospective reduction in compensation, so a prospective raise followed by an immediate offsetting cut is mechanically allowed. But the AG also flagged that a payment whose subjective purpose is to reward past conduct, even if labeled prospective, may violate the spirit of the clause. Whether courts will police that gap is a question the AG left open.

Q: Are there exceptions for retirement benefits or back pay?

A: Yes. Campbell v. Kelly held that legislative pensions are not "extra compensation" or "salary" within § 38. Courts elsewhere have held that back pay owed under contract but unpaid because of administrative error is also not "extra." Settlement payments for releasing legal claims are not extra compensation either, because the release supplies new consideration. Severance payments bargained for in advance are permissible; severance payments not previously agreed to are not.

Q: What practical takeaways did the AG draw?

A: For non-contract public employees, the legislature or appointing authority may grant any prospective salary increase, including a one-time prospective lump sum. For contract employees, no in-term salary increase, even prospective, unless tied to new duties outside the contract. Retroactive pay raises are forbidden either way. Settlement of legal claims and pension benefits are outside § 38. Deferred compensation set up in advance of the work is not "extra."

Background and statutory framework

W. Va. Const. art. VI, § 38 reads, in pertinent part: "No extra compensation shall be granted or allowed to any public officer, agent, servant or contractor, after the services shall have been rendered or the contract made. . . . Nor shall the salary of any public officer be increased or diminished during his term of office . . . ."

The salary clause is narrow. Under Rucker v. Bd. of Supervisors of Pocahontas Cnty., 7 W. Va. 661 (1874), it applies only to salaries "definitely fixed or prescribed by law." It does not apply to public employers who have discretion to set compensation by contract. It also does not apply to public employees who are not "public officers" (State ex rel. Key v. Bond), or to those who do not serve fixed terms. The narrow construction comes from a long line of precedents.

The extra-compensation clause is wider. It covers public officers, agents, servants, and contractors, and applies to salaries fixed by law and salaries set by contract. The text has two trigger points: "after the services shall have been rendered" (services trigger) and "after the contract made" (contract trigger).

For non-contractual employees, only the services trigger applies. The clause forbids retrospective pay for work already done, but does not forbid prospective pay for future work, even a one-time forward-looking lump sum (City of Orange v. Chance). The AG cited a 1990 opinion confirming the legislature can authorize statutory "incremental increases" because they apply prospectively (63 W. Va. Op. Att'y Gen. No. 37).

For contractual employees, the contract trigger does additional work. Once a contract is in place, no extra pay for "services [the employee] had contracted to perform," even if labeled as a future enhancement. The exception is bona fide new duties outside the original scope of the contract (State ex rel. Cooke v. Jarrell), which create new consideration for new pay.

The AG noted that some other states have read parallel clauses more permissively (California, Arizona) but West Virginia precedent treats § 38 as broad.

Applying that framework to Mountwest's December 2014 bonus: at-will employees were eligible for a one-time prospective enhancement and the payment was lawful as to them. Faculty under term appointment letters and the president under a yearly contract were already obligated to perform their work for the originally agreed compensation; the $500 bonus added compensation outside the contract for the same work, which the constitution forbids.

Citations

• W. Va. Const. art. VI, § 38; W. Va. Const. art. VII, § 19
• W. Va. Code § 5-3-1; W. Va. Code § 6-7-7
• W. Va. Code § 18B-2A-4(a), (w); W. Va. Code § 18B-9-3
• Harbert v. Harrison Cnty. Court, 129 W. Va. 54, 39 S.E.2d 177 (1946)
• Delardas v. Cnty. Court of Monongalia Cnty., 155 W. Va. 776, 186 S.E.2d 847 (1972); 158 W. Va. 1027, 217 S.E.2d 75 (1975)
• State ex rel. Key v. Bond, 94 W. Va. 255, 118 S.E. 276 (1923)
• Rucker v. Bd. of Supervisors of Pocahontas Cnty., 7 W. Va. 661 (1874)
• Schwartz v. Cnty. Court of Hancock Cnty., 136 W. Va. 626, 68 S.E.2d 64 (1951)
• Jackson v. Bd. of Ed. of Kanawha Cnty., 128 W. Va. 154, 35 S.E.2d 852 (1945)
• Campbell v. Kelly, 157 W. Va. 453, 202 S.E.2d 369 (1974)
• State ex rel. Cooke v. Jarrell, 154 W. Va. 542, 177 S.E.2d 214 (1970)
• City of Orange v. Chance, 325 S.W.2d 838 (Tex. Civ. App. 1959)

Source

• Landing page: https://ago.wv.gov/media/17976/download?inline
• Original PDF: https://ago.wv.gov/media/17976/download?inline

Original opinion text

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State of West Virginia
Office of the Attorney General

Patrick Morrisey
(304) 558-2021
Attorney General
Fax (304) 558-0140

August 17, 2015

Dr. Keith J. Cotroneo, President
Mountwest Community and Technical College One Mountwest Way, Suite 417
Huntington, WV 25701

Dear Dr. Cotroneo:

You have asked for an Opinion of the Attorney General about the state constitution's prohibitions on increasing a public officer's salary and giving state employees extra compensation. This Opinion is being issued under 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 head of any state educational . . . institution." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence with the Office of the Attorney General.

By statute, Mountwest Community and Technical College's board of governors has general authority to make "changes in salary or compensation" for college employees. W. Va. Code § 18B-2A-4(w). No statutory pay schedule limits the board's discretion, and all college employees are exempt from the Division of Personnel's rules. This salary-setting power follows the board's larger power to "[djetermine, control, supervise and manage the financial, business and education policies and affairs of the" college. Id. § 18B-2A-4(a).

Under this authority, the board decides whether to give college employees raises.
According to your correspondence, the board sets a pay schedule for classified staff, because no statutory pay schedule currently applies, W. Va. Code § 1 8B-9-3, 1 and the board approves annual raises for non-classified staff. And, you say, the board's usual practice is to issue the president a yearly contract and to issue faculty letters of term appointment with any annual raises (the

l
A few years ago, this pay schedule governed classified staff at the college. See W. Va. Code § 18B-9-3 ("Temporary Higher Education Classified Employee Annual Salary Schedule"). But when the college met the requirements in state code to fund the schedule, the college was relieved of the duty to abide by the schedule. See Letter from Jim Skidmore, Chancellor for the
Community & Technical College System, to Dr. Cotroneo, President, Mountwest Community and Technical College, June 15, 2012.

State Capitol Building 1, Room E-26, 1900 Kanawha Boulevard East, Charleston, WV 25305 Dr. Keith J. Cotroneo
August 17, 2015
Page 2

Council for Community and Technical Colleges' concurrence necessary for presidential raises), and the board has a standing order authorizing faculty raises during the year upon promotion to a higher rank. In short, you represent that the college has contract and non-contract employees, whose salaries and compensation are determined entirely by the discretion of the board within the board's discretion.

According to your letter, the board recently authorized a one-time salary enhancement of $500 for all college employees, but the State Auditor refused to allow the payments. Last fall, the board approved the following resolution:

Be it resolved that the Mountwest Community & Technical College Institutional Board of Governors approves of a one-time $500.00 non-base building salary enhancement for all full-time employees of the college on the payroll December 1, 2014, and that the enhancement be paid December 16, 2014.

The Auditor refused payment because of the state constitution's prohibition on after-the-fact bonuses, set forth in Article 6, Section 38 of the state constitution. You now ask whether that constitutional provision prevents the board's salary enhancements.

Section 38 of Article 6 of the state constitution includes two separate prohibitions relating to the pay of public employees. In pertinent part, the provision states:

[1] No extra compensation shall be granted or allowed to any public officer, agent, servant or contractor, after the services shall have been rendered or the contract made .... [2] Nor shall the salary of any public officer be increased or diminished during his term of office ....

W. Va. Const, art. VI, § 38. These prohibitions are echoed elsewhere in West Virginia law,2 and many states have similar provisions.3

See also W. Va. Const, art. VII, § 19 ("The officers named in this article shall receive for their services a salary to be established by law, which shall not be increased or diminished during their official terms, and they shall not, after the expirations of the terms of those in office at the adoption of this amendment, receive to their own use any fees, costs, perquisites of office or other compensation."); W. Va. Code § 6-7-7 ("No extra compensation shall be granted or allowed to any public officer, agent, servant or contractor, after the services shall have been rendered, nor shall the salary of any public officer be increased or diminished during his term of office.").
3 E.g., Ala. Const, art. IV, §§ 68, 68.01; Ariz. Const, art. IV, Pt. 2 § 17; Ark. Const, art. V, § 27; Cal. Const, art. IV, § 17; id. Art. XI, § 10; Colo. Const, art. V, § 28, art. VI, § 18; Conn. Const, art. XI, § 2; Ga. Const, art. Ill, § 6, VI; Iowa Const, art. Ill, § 31; Md. Const, art. Ill, § 35; Mich. Const. § art. XI, § 3; Miss. Const, art. IV, § 96; Mo. Const, art. Ill, § 39; id. Art. VII, § 13;
Neb. Const, art. Ill, § 19; N.M. Const, art. IV, § 27; Ohio Const, art. II, §§ 20, 29; Pa. Const, art.
Ill, § 26; S.C. Const, art. Ill, § 30; S.D. Const, art. XII, § 3; Tex. Const, art. Ill, §§ 44, 53; Va.
Const, art. IV, § 14; Wash. Const, art. II, § 25; Wis. Const, art. IV, § 26; Wyo. Const, art. Ill, §
30; see also D.C. Code, 2001 Ed. Act of 1871 Creating Legislative Assembly § 15; Puerto Rico
 Dr. Keith J. Cotroneo
August 17, 2015
Page 3

Your letter thus raises two questions under Sectio n 38, Article 6 of the West Virginia
Constitution, which we address in turn below:

Does a temporary salary enhancement for state college employees unconstitutionally (1) increase a public office r's salary or (2) provide extra compensation to a state officer, agent, servant, or contractor?

Question One: Does a temporary salary enhancement
for
state college employees
unconstitutionally increase a public officer's salary ?

Broadly speaking, Section 38 does not permit the salary of a public officer to be changed once the officer has started his or her term. The plain text states: "[T]he salary of any public officer [shall not] be increased or diminished during his term of office." W. Va. Const, art. VI, §

38. This clause "assures the people that those who
    serve them as public officers shall give their
    services during their terms for the amount of compe
    nsation for which they were willing to serve
    and have been selected, and for which they were
    expected by the people to serve at the time of
    their entrance upon the performance of their duties
    ." Harbert v. Harrison Cnty. Court , 129 W.
    Va. 54, 62, 39 S.E.2d 177, 185 (1946). The prohibition applies "to all the agencies of government," and prevents "attacks upon officia
    ls by those who may be possessed, at any time,
    of the means and the will to influence or control
    their course of conduct through added income at
    public expense." Id. at 61-63, 39 S.E.2d at 184-85
    . Where this clause applies, a change to salary
    must take effect before the officer starts his or
    her term. See 35 W. Va. Op. Att'y Gen. 152,
    1933 WL 29791 at *3 (April 3, 1933) (opining
    that the cut-off point for salary changes is the
    formal start of the officer's term).

      The West Virginia Supreme Court of Appeals, howev
                                                            er, has placed important limitations
    

    on the scope of the prohibition. The clause does
    not prohibit an in-term raise that is attendant
    upon "new and additional" job responsibilitie
    s. See Delardas v. Cnty. Court of Monongalia
    Cnty., 155 W. Va. 776, 781-82, 186 S.E.2d 847,
    851 (1972) (clause "does not inhibit an increase
    in the amount of the salary of a public officer
    during the term of his office if . . . the officer
    [receives] new and additional duties which
    are not mere incidents of his office but which
    embrace a new field, beyond the scope and range
    of the office."); Delardas v. Cnty. Court of
    Monongalia Cnty., 158 W. Va. 1027, 1032, 217
    S.E.2d 75, 78 (1975) ("[S]alary increases to
    incumbent public officials are permissible only
    when such additional compensation is based
    upon the imposition of new and additional duties
    beyond the scope and range of public officials'
    offices as they had theretofore existed and functio
    ned."). Nor does the clause apply to public
    employees who are not "public officers," see State
    ex rel. Key v. Bond, 94 W. Va. 255, 118 S.E.
    276, 278-80, 284 (1923) (differentiating public
    officers, whose salaries fall under this clause,
    from mere "servants" and "employees," whose salarie
    s do not), or those who do not serve fixed
    terms, see 47 W. Va. Op. Att'y Gen. 147, 1957
    WL 55197 at *13 (Feb. 6, 1957) (clause "does
    not embrace those officials who serve at the will
    and pleasure of the appointing authority" unlike

Const, art. VI, § 10; cf 111. Const, art. VII, § 9; Ky.
Const. §§ 161, 235; La. Const, art. VII, § 14;
Minn. Const, art. VI, § 5; Mont. Const, art. V, § 5, art. VI, § 5; N.Y. Const, art. Ill, §§ 6, 17, art.
XIII, § 7; Okla. Const, art. XXIII, § 10; Tenn.
Const, art. VI, § 7; Fla. Stat. § 215.425; Idaho Code § 59-512.
 Dr. Keith J. Cotroneo
August 17, 2015
Page 4

"those who serve for fixed terms."); 37 W. Va.
Op. Att'y Gen. 50, 1937 WL 34734 at *1 (Jan.
14, 1937) ("Where there is no fixed term the restric tion has no application.").

Relevant here, the provision also does not apply if the salary in question is not "definitely fixed or prescribed by law." Syl. Pt. 1, Rucker v. Bd. of Supervisors of Pocahontas Cnty., 7 W.
Va. 661, 663 (1874) (clause "applies only to such salaries or compensation of public officers as have been definitely fixed or prescribed by law; either by the Constitution of the State or by statute"). In a longstanding precedent that appea rs to still be good law, the West Virginia Supreme Court of Appeals held that the clause did not apply to a Prosecuting Attorney because no law specifically required a fixed salary. Rathe r, the law merely granted the Prosecuting Attorney the ability to earn certain fees, as well as an allowance from the county government.
Rucker, 7 W. Va. at 663-64. Based on that decisi on, this Office has opined that the provision did not apply where a public employer was not requir ed to fix a salary, but instead had "complete discretion to set the compensation of [a] partic ular employee by contract." W. Va. Op. Att'y Gen, 2013 WL 5508581 at *4 (Oct. 1, 2013).

In contrast, the West Virginia Supreme Court of Appeals has applied the provision where the law specifically provides for a fixed salary for a public officer, even if the law grants some measure of discretion to the employer in determ ining the precise amount. For example, where a statute expressly mandated that a "county health officer shall receive an official salary of' an amount to be fixed by the county, the county was not permitted to raise or lower "the annual salary" that the county "fixed at the time of his appointment." Schwartz v. Cnty. Court of
Plancock Cnty., 136 W. Va. 626, 634, 644-45, 68 S.E.2d 64, 68-69, 74 (1951) (quotations omitted). Likewise, where the Legislature had expressly capped the fixed salary of school superintendents, a superintendent was not allowe d to receive "the benefit or detriment of [a later] statutory provision" that changed that cap. Jackso n v. Bd. of Ed. of Kanawha Cnty., 128 W. Va.
154, 156, 159, 35 S.E.2d 852, 853-54 (1945).

Here, Section 38's prohibition on raising "the salary of any public officer . . . during his term" does not apply to the board's salary enhan cements because no law dictates that any of the college's employees have a fixed salary. Syl. Pt.
1, Rucker, 1 W. Va. at 663. The board has complete discretion to make "changes in salary or compensation" for its college employees. W.
Va. Code §§ 18B-2A-4(w), 18B-2A-4(a).
No law, statutory pay schedule, or Division of
Personnel rule requires a fixed salary or limits the board's discretion.

Question Two: Does a temporary salary enhan cementfor college employees unconstitutionally provide extra compensation to any state office r, agent, or contractor in violation of Sectio n
38?

The second prohibition under Section 38 conce rns after-arising compensation and is, in many respects, broader than the first prohibition.
While the above-described salary clause only precludes public officers from having their salarie s changed, this second prohibition states that "[n]o extra compensation shall be granted or allowe d to any public officer, agent, servant or contractor, after the services shall have been render ed or the contract made." W. Va. Const, art.
VI, § 38. And while the salary clause has been held to apply only to a salary "definitely fixed or prescribed by law," Syl. Pt. 1, Rucker v. Bd. ofSup 'rs of Pocahontas Cnty., 7 W. Va. 661, 661 (1874), the state supreme court has never so limited the extra compensation clause. Indeed, at Dr. Keith J. Cotroneo
August 17, 2015
Page 5

least two other state high courts have held that similar clauses in their state constitutions are so
"comprehensive" that they "void" any extra compen sation "whether [or not] the rate of compensation has been prescribed by law." People v.
Spruance , 6 P. 831, 835 (Colo. 1885);
State ex rel. Field v. Williams, 34 Ohio St. 218, 219-20 (1877). As the Supreme Court of Ohio has said, "[t]his language is very broad," and covers those whose "compensation for the services rendered is fixed by law, as well as persons who have perform ed or agreed to perform services in which the public is interested, in pursuance of contracts that may have been entered into in pursuance of law, and in which the price or consideration to be received by the contractor for the thing done, or to be done, is fixed by the terms of the contrac t." Field, 34 Ohio St. at 219-20.

We examine below the various aspects of the clause and conclude that it partially prohibits the contemplated salary enhancement.
We look first at the scope of "extra compensation," and then consider what is meant by "after the services shall have been rendered or the contract made." Applying those analyses, we believe that the salary enhancement would be appropriate for non-contract employees but prohibited for employees under contractual terms.

A. 1. Generally speaking, the prohibition on "extra compe nsation" means that no public official, agent, employee, or contractor may receive more than their "agreed-upon compensation." 61 W. Va. Op. Att'y Gen. 29, 1985 WL 257934 at 3 (June 28, 1985). Once the state enters a contract to employ a person or an at-will employee starts work, the state has purchased the person's set services at an agreed-upon price, after which the state may not pay more for the services contracted for or rendered. The state cannot pay an employee extra after the employee "performed the very services he had contrac ted to perform," as that would amount to paying the employee a bonus simply for having come "to work." 59 W. Va. Op. Att'y Gen.
86, 1981 WL 157182 at 1 (Feb. 3, 1981). Granting extra money after that point would be "a gratuity" and just "give away public funds." 51 W. Va.
Op. Att'y Gen. 313, 1965 WL 92445 at
*4 (May 25, 1965).

Nearly any such extra payment is unlawful—no matter how salutary a public purpose the payment may serve. Previous opinions from this Office have found unlawful extra payments to
"supplement salary deducted from other nongovernmen tal wages because of time spent on official duties," 61 W. Va. Op. Att'y Gen. 17, 1985 WL 257922 at 1 (April 19, 1985), and the retroactive award of annual or sick leave to employees who had not been entitled to accrue leave,
67 W. Va. Op. Att'y Gen. No. 3, 1998 WL 2028951 at 4 (Mar. 5, 1998).4 Other state attorneys general have found that similar provisions prohibit bonuse s at Christmas as well as severance payments not previously agreed to. E.g., Op. S.C. Att'y Gen., 2012 WL 6218333 at *1 (Dec. 4,
2012) (opining that a parallel state constitutional provision
prohibits "a Christmas bonus program

4 One narrow exception is retirement benefits, which the Supreme Court of Appeals has held for public policy reasons do not constitute "compensation" for purposes of Section 38. E.g., Syl. Pt.
5, Campbell v. Kelly, 157 W. Va. 453, 454, 202 S.E.2d 369, 371 (1974) ("Legislative pensions do not constitute 'extra compensation' nor 'salary' within the meaning of Article VI, Section 38 of the Constitution of the State of West Virginia."); 2014 WL 4071501, at *4 (W. Va. A.G. Aug.
11, 2014) (opining that changes to retiree health benefits are not extra compensation or a salary change under either clause of Section 38).
 Dr. Keith J. Cotroneo
August 17, 2015
Page 6

for reserve police officers"); Fla. Att'y Gen. Op. 2007-2 6, 2007 WL 1890763 at 1-2 (June 26,
2007) (opining that a parallel state statute forbids "severance payme
nts in lieu of notice").5
2. Of course, an employer does not grant "extra" compe
nsation when it pays an employee
the originally agreed-upon compensation. As one court has explained in discussing an equivalent provision, "[tjhere is no reason why a [public
employer] may not engage its servants
and employees upon any terms of payment accept
able to both parties" at the outset of
employment. Byrd v. City of Dallas, 6 S.W.2d 738,
740 (Tex. Comm'n App. 1928). Thus, this
Office recently opined that state employers may
incentivize good work by committing in
advance that an employee will be paid more if he
or she achieves certain outcomes. W. Va. Op.
Att'y Gen, 2013 WL 5508581 at 4 (Oct. 1, 2013).
Similarly, other state courts and attorneys
general have concluded that severance payments are
permissible if they are bargained for in
advance. See City of Omaha, v. City ofElkhorn, 752
N.W.2d 137, 147-49 (Neb. 2008); Ark. Op.
Att'y Gen. No. 2008-186, 2007 WL 1890763 at *5-6
(Feb. 12, 2009). Deferred "compensation
which accrued in strict pursuance to a contract made
before the work was done" is not "extra"
compensation. Christie v. Port of Olympia, 179 P. 2d
294, 299 (Wash. 1947) (en banc); see also
State v. Davis, 539 So. 2d 803, 811 (La. Ct. App.
1989) (ban on "extra compensation for past
services rendered" may not apply if payments in questio
n proven to be "salaries for services
rendered but for which no salary was drawn when
the services were rendered"); Mississippi
Employment Sec. Comm'n v. Culbertson, 832 So.
2d 519, 529-30 (Miss. 2002) (back pay,
previously due, but unpaid because of administrative
error, is not "extra" compensation).

     Nor does it constitute "extra" compensation if a
                                                           public employer grants extra pay for

additional consideration. A public employer can pay
an employee extra for additional duties not
germane to his or her original work. State ex rel. Cooke
v. Jarrell, 154 W. Va. 542, 547, 177
S.E.2d 214, 217 (1970); see also Syl. State ex rel.
Bd. of Governors ofW. Va. Univ. v. Sims, 136
W. Va. 789, 796, 68 S.E.2d 489, 492-93 (1952)
(retired employees may be paid above their
retirement allowance for new services); Townsend v.
Hoover City Bd. of Educ., 610 So. 2d 393,
396-97 (Ala. Civ. App. 1992) (new employment contra
ct with a raise is permissible, so long as
the raise and contract is for "a different term of
employment than the prior contracts" and
contract does "not attempt to provide [the employee]
with additional compensation for the period
during which he had already served"). So, too, are
payments to an employee under a litigation
settlement permissible as new amounts agreed upon
for releasing legal claims. W. Va. Op. Att'y
Gen, 2013 WL 5508581 at *5 (Oct. 1, 2013). A
release provides "adequate consideration to
support a binding contract" and a payment in return
is thus "not an unconstitutional gratuity."
Myers v. Nebraska Equal Opportunity Comm'n, 255
Neb. 156, 163, 582 N.W.2d 362, 367
(1998).

5 A small minority of states have taken a more liberal view of their extra compensation clauses.
E.g., Jarvis v. Cory, 620 P. 2d 598, 599, 601-07 (Cal.
1980) (holding that the state could "award a lump sum payment to certain state employees based on work already performed" if at the time services were rendered the employees "justifiably" thought their salaries could be subject to retroactive increase); 2006 Ariz. Op. Att'y Gen. No.
106-003, 2006 WL 2702207 at *4-5 (Sept.
6, 2006) (opining that a school may give teachers extra pay above a contractual amount due to an asserted public interest in retaining and recruiting public school employees).
Dr. Keith J. Cotroneo
August 17, 2015
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B. Critically, extra compensation is only prohibited under the clause at two very specific points in time. It is forbidden "[1] after the services shall have been rendered or [2] the contract made." Following the plain text and longstanding principles of statutory interpretation, we believe these two distinct limitations have significant practical import.

1. Turning first to the prohibition on extra compensation "after ... the contract [is] made," we read that language plainly to limit contractual employees to the terms of their written deals with the state. As this Office has previously opined, a public employer thus may not pay more than agreed for "services [an employee] had contracted to perform," as that would amount decito simply paying the contracted employee for "coming to work." 59 W. Va. Op. Atf y Gen. 86, 1981 WL 157182 at *1 (Feb. 3, 1981). Consistent with that conclusion, other state high courts have prohibited legislatures from "allocating] extra compensation to public employees already covered by a contract of employment" for work due to the state under the contract, Denbow v. Borough of Leetsdale, 729 A. 2d 1113, 1118 (Pa. 1999), and county officials from paying a construction contractor money "in excess of that for which he contracted" when the state would be receiving nothing more than the building project already owed under the contract, Clark v. Miller, 105 So. 502, 505 (Miss. 1925).

We do not believe, however, that the restriction on extra compensation "after ... the contract [is] made" has any applicability to non-contractual employees, e.g., at-will employees. This is clear for several reasons. First, non-contractual employees by definition have no contract, so there would be no logical way to apply the restriction. Second, the language of Section 38 plainly contemplates a distinction between contract employees and others. "[Contractors" are explicitly identified under Section 38—separate and apart from "public officer[s], agent[s], [and] servants]."

2. Instead, we conclude that the alternative restriction on extra compensation "after the services shall have been rendered" applies to non-contractual employees. As this Office has said, "[Retrospective pay increases" are "illegal" under this clause. 67 W. Va. Op. Atf y Gen. No. 3, 1998 WL 2028951 at 4 (Mar. 5, 1998). Construing similar prohibitions, other state courts have likewise held that a legislature may not provide their employees "a stated extra amount of compensation" for past services rendered, Wimberly v. White, 157 So. 472, 473 (Miss. 1934), or "giv[e] extra pay after the services were rendered" by enacting a pay raise statute that "purposes to antedate itself," Lavelle v. City of Scranton, 1880 WL 14128 2 (Pa. 1880). See also Simpson v. Cranston, 362 P. 2d 492, 496 (Cal. 1961) (in bank) (prohibiting "retroactive" right to overtime for past services completed). Of course, as noted earlier, it does not constitute "extra" compensation if a public employer gives supplemental pay to a non-contractual employee for having completed additional duties beyond what was originally contemplated.

Importantly, this service-based restriction does not prohibit a public employer from authorizing at any time extra compensation to at-will employees that is contingent upon the performance of future services, i.e., a pay raise. The text forbids extra compensation "after the services shall have been rendered"; it does not prohibit an increase in compensation before "the services are rendered." So we have said that extra compensation under this clause must be "prospective only." 67 W. Va. Op. Att'y Gen. No. 3, 1998 WL 2028951 at *4 (Mar. 5, 1998). Put another way, "when the 'services' for which compensation is paid are rendered after the date on which the terms of compensation are established, the benefits awarded are not a gratuity" Dr. Keith J. Cotroneo August 17, 2015 Page 8

forbidden under this clause. See Syl. pt. 15, City ofElkh orn, 752 N.W.2d 137. That is why this
Office has opined that the Legislature can authorize a statutor y "incremental increase" in public salaries for future years: a future salary increase is "an annual salary adjustment and not a bonus." 63 W. Va. Op. Att'y Gen. No. 37, 1990 WL 596840 at *2 (June 27, 1990). Again, courts in other states with similar provisions agree. See Hartsfleld v. Lafayette Cnty., 189 So.
177, 180 (Miss. 1939) (in banc) (striking down statute increas ing compensation to the extent it applied to "service already rendered prior to the passage of the act," but not "in its perspective views"); Edwards v. McLean, 23 Pa. Super. 43, 45 (1903) (holding that legislature may not add to "the payment of constables for services rendered" in the past, but could increase "fees to be paid in the future"); Kohen v. Bd. of Sch. Comm'rs of Mobile Cnty., 510 So. 2d 216, 218, 220
(Ala. 1 987) (school district may not pay extra for things done in the past, but may pay incentives that are "computed prospectively").

What is more, we see no distinction between one-tim e, lump-sum prospective salary enhancements for at-will employees and permanent increas es in base salary. The text says nothing about extra pay for future services, let alone regulates their "method or time of payment." City of Orange v. Chance, 325 S.W.2d 838, 840 (Tex. Civ. App. 1959) (holding that this clause permits the prospective application of a policy of allowing lump-sum payouts of accrued sick leave). Nor is there a logically sound distinct ion to be found. As a practical matter, a one-time salary enhancement could simply be re-characterize d as a prospective increase in base pay followed immediately by an equivalent reduction in base pay. And there is nothing in the clause forbidding a prospective reduction in compensation.

3. Under this analysis, the constitutional ban on extra compensation falls unevenly on contractual and non-contractual employees. Contractual employees may not receive any pay raise, prospective or retrospective, during an existing contrac t term. They can only be paid more if they have completed, or will complete, additional job duties, which constitute new consideration outside the existing contractual arrangement.
In contrast, because non-contractual employees do not have a contract term, the restrictions on their pay are backward-looking only.
They may not receive a pay raise for completed work, unless that work involved duties beyond those originally contemplated. But they may at any time receive a prospective raise of any amount or duration for future work.

While we believe that this result follows from the plain text of Section 38 and the overwhelming weight of authority from other states, we recognize the possibility for abuse on a case-by-case basis. A public employer might provide a facially prospective salary enhancement to an at-will employee but have the subjective intent that the payment be an extra reward for past conduct. Such a situation would appear to comply with the letter of the prohibition but violate its spirit.

We do not attempt to resolve that potential problem, howeve r, as it seems to be a question better left for the courts to address in a proper case or series of cases. We would not presume to tell the courts that every challenge to a prospective salary enhancement requires an inquiry into the subjective motivations of the public employer, or conversely that such an inquiry should never be permissible. That is a potentially fact-dependen t rule better suited for the courts to develop in the context of specific cases, if at all, than for this Office to create ex ante in the context of a non-adversarial request for a legal opinion.
Dr. Keith J. Cotroneo
August 17, 2015
Page 9

C. Our answer to question two thus is that under the facts presented in your correspondence, the board appears to have partially run afoul of the extra compensation clause of Section 38. Taking into account Section 38 only, the board appears to have lawfully authorized a one-time prospective salary enhancement of $500 for non-contractual employees, but to have unlawfully authorized the same enhancement for employees serving a contract term. Again, we do not answer whether the board's subjective motivations for the salary enhancement are relevant to Section 38, nor do we possess the facts that would permit a proper assessment of those motivations.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Julie Marie Blake
Assistant Attorney General
Dr. Keith J. Cotroneo
August 17, 2015
Page 9

C. Our answer to question two thus is that under the facts presented in your correspondence, the board appears to have partially run afoul of the extra compensation clause of Section 38. Taking into account Section 38 only, the board appears to have lawfully authorized a one-time prospective salary enhancement of $500 for non-contractual employees, but to have unlawfully authorized the same enhancement for employees serving a contract term. Again, we do not answer whether the board's subjective motivations for the salary enhancement are relevant to Section 38, nor do we possess the facts that would permit a proper assessment of those motivations.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Julie Marie Blake
Assistant Attorney General