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
fiEsr
ot
f#A*
Wk<& %
>
&£*' StiiVE"
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
Page 7
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