Can a West Virginia county commission accept funds from a private oil-and-gas industry group to digitize and put online the county's property and mineral records, with the records remaining freely available to the public?
Official title
Opinion of the Attorney General's Office Regarding the Authority of a County Commission to Accept Private Funds for Digitization an Online Placement of Property and Mineral Records in a County Clerk's Office
Plain-English summary
Marcellus Shale development was driving demand for property and mineral records at the Lewis County Clerk's office. The West Virginia Oil and Natural Gas Association (WVONGA) proposed donating the cost of digitizing the county's records and putting them online. Under the structure WVONGA proposed: the county would publicly bid for a digitization vendor and select the most competitive bidder; WVONGA would directly contract with and pay the winning vendor; the county would supervise the work, control quality, and ensure software compatibility; and the digital files would be available to the public on equal terms (no special access for WVONGA or its members).
The AG had answered closely related questions for Tyler County one year earlier (July 11, 2013, regarding a similar WVONGA proposal). After that opinion, WVONGA had funded the digitization of Tyler County's records under a similar arrangement. The AG saw no reason to deviate.
The four-part framework the AG had laid out applied here too: (1) the donation must be intended to benefit the county or commission as a whole, not any individual official, under W. Va. Code § 6B-2-5(c); (2) no private party may retain exclusive or advantageous access (the records must be available to the public on equal terms); (3) the county must avoid soliciting the donation; (4) the digitization contract, if it exceeds $15,000, must be awarded through public competitive bidding even if a private intermediate party formally contracts with the vendor.
Lewis County's proposal satisfied each of these requirements on its face. The AG noted, however, that the ultimate lawfulness depended on facts not in front of the office: the actual cost of the project, whether any preliminary services would themselves cross the $15,000 bidding threshold, whether the county had its own bidding rules, and the actual contract terms.
Currency note
This opinion was issued in 2014. 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: How does this opinion relate to the July 11, 2013 Tyler County opinion?
A: This is the second application of the same framework. The 2013 Tyler County opinion (regarding the same WVONGA initiative) laid out the four conditions. WVONGA then funded Tyler County's project. Lewis County wanted to follow the same template. The AG's analysis here is essentially a confirmation that the framework applies as it did before.
Q: Why does competitive bidding apply when a private donor pays the vendor directly?
A: Because the county is the substantive contracting party, even if the formal contract is between WVONGA and the vendor. The county provides the records, sets quality standards, supervises the work, and accepts the deliverables. Form does not control over substance. § 7-1-11(a) requires competitive bidding for county purchases of "commodities and printing" over $15,000, and "commodities" in § 5A-1-1 includes "contractual services."
Q: What kinds of contracts are exempt from competitive bidding under § 7-1-11(a)?
A: Below-threshold purchases ($15,000 or less) can be made in the open market. Emergency purchases also are exempt. The county can also promulgate its own competitive bidding rules under § 7-1-11(b), which may add detail beyond the statutory floor.
Q: Why does the AG flag the "preliminary review stage" cost as potentially crossing the threshold?
A: Because the county's first step in a project like this is often an internal assessment: how many records, what condition, what software, what staff coverage. That preliminary work may itself involve services from an outside vendor (consultants, scanning samples, software audits). If that preliminary work alone exceeds $15,000, it would itself need to go through competitive bidding before the main digitization contract is awarded.
Q: What if the county has restrictive local bidding rules?
A: § 7-1-11(b) lets the county adopt its own competitive bidding procedures. Local rules may set a lower threshold, require additional documentation, or extend the requirements to services that the state statute would otherwise allow open-market. The county must follow its own rules along with the state minimum.
Q: Could the donor pre-select the vendor?
A: That would conflict with the public-bidding requirement. The competitive bidding process needs to determine the vendor based on the bids received. A pre-selection by the donor would short-circuit that. The AG framework requires the county to run the bidding and select the most competitive bidder; the donor then contracts with whoever the county selects.
Q: Are there ethics implications for individual county officials touring vendor facilities or attending dinners during the bidding process?
A: That falls outside this opinion but raises § 6B-2-5(c) gift concerns. The vendor is an interested party, and individual officials accepting things of value from a vendor during a procurement period would face heightened scrutiny.
Q: What if WVONGA wanted private access to the digitized records before public release?
A: That would violate the second condition. The AG was explicit: "no private party may retain exclusive or advantageous access to the county records as a result of the donation." Equal access on equal terms is the rule.
Background and statutory framework
The framework comes from the AG's July 11, 2013 Tyler County opinion. Four conditions:
-
Entity-level gift acceptance only. § 6B-2-5(c) bars individual public officials and employees from accepting gifts from interested parties. The Ethics Commission has interpreted that to permit governmental entities to accept gifts that benefit the public generally (Advisory Op. 90-175 supp.). So a donation to the commission or county as a whole is permissible if it serves a public benefit; donations earmarked for individual officials are not.
-
No exclusive or advantageous access. § 6B-2-5(b) prohibits public officials from using office or resources for "another's" private gain. Granting any private party special access to public records, with or without a tied donation, violates that prohibition.
-
Avoid solicitation. § 6B-2-5(c) extends the gift restrictions to solicitations. The Ethics Commission reads the prohibition strictly even for governmental agencies (Advisory Op. 2012-08), in part because of the "potential for a coercive solicitation."
-
Competitive bidding for digitization contracts over $15,000. § 7-1-11(a) requires competitive bidding for any county purchase of "commodities and printing" exceeding $15,000. § 5A-1-1 defines "commodities" to include "contractual services." The intermediate-private-party structure does not avoid the rule, because the county's substantive role makes it a "de facto contracting for service."
Application to Lewis County. WVONGA's proposed unsolicited donation, county-supervised vendor selected through competitive bidding, equal public access, satisfied all four conditions on the face of the proposal.
Citations
- W. Va. Code § 5-3-2 (AG advisory authority)
- W. Va. Code § 6B-2-5(b), (c) (ethics gift and private gain rules)
- W. Va. Code § 7-1-11 (county competitive bidding)
- W. Va. Code § 5A-1-1 (definitions)
- W. Va. Ethics Comm'n Advisory Op. 90-175 (supp.)
- W. Va. Ethics Comm'n Advisory Op. 2012-08
- W. Va. Ethics Comm'n Advisory Op. 2005-02
- Opinion of the Attorney General's Office Regarding the Use of Private Funds to Increase the Availability of Property and Mineral Records (July 11, 2013)
Source
- Landing page: https://ago.wv.gov/media/18031/download?inline
- Original PDF: https://ago.wv.gov/media/18031/download?inline
Original opinion text
State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General
(304) 558-2021
Fax (304) 558-0410
July 3, 2014
The Honorable Lea Anne Hawkins
Prosecuting Attorney
Office of the Prosecuting Attorney of Lewis County, West Virginia
117 Court Ave, Room 201
Weston, WV 26452
Dear Prosecutor Hawkins,
You have asked for an Opinion of the Attorney General about using private, donated funds to digitize and place online property and mineral records in the Lewis County Clerk's Office. This Opinion is being issued pursuant to West Virginia Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely on the factual assertions set forth in your correspondence with the Office of Attorney General.
Your letter raises the following legal question:
Whether a County Commission may accept funds from a private entity so that an outside vendor, selected through public competitive bidding and subject to the County Clerk's oversight, may digitize and place online property and mineral records held by the County Clerk's Office?
Background
Your request derives from the increased demand for access to property and mineral records held by the Lewis County Clerk's Office. As explained in an attachment to your letter, the Clerk's Office does not possess the facilities and staff to meet current demand for public access, particularly in light of the pending development of the Marcellus Shale in Lewis County. As a result, the West Virginia Oil and Natural Gas Association ("WVONGA") has proposed donating to the County the cost of digitizing the County's property and mineral records and making them publicly accessible via the Internet.
Your letter states that WVONGA has proposed financing digitization of the county's property and mineral records by a contractor that the County would select through public competitive bidding and supervise. Under this proposal, WVONGA would agree to donate to the County and the public the cost of digitizing the County's property records, assuming the total project cost is acceptable to its interested stakeholders. The County would first review its current infrastructure and determine what steps are required to achieve digitization. Next, the County would publicly solicit competitive bids for the digitization of the records pursuant to West Virginia Code § 7-1-11(a) and select the most competitive bid. WVONGA would then contract directly with the winning bidder to perform the digitization services.
Although not itself a party to the underlying contract, the County would control and supervise the winning bidder's scanning process and its creation of online access. The contract would specify that: (1) the winning bidder would scan all property and mineral records on-site in the Lewis County Clerk's Office at times and in locations directed by the County; (2) the winning bidder would report missing record book pages to the County Clerk; (3) the winning bidder would provide Lewis County with digital copies of all loose-leaf and bound records in a digital format that is compatible with the County's existing software; and (4) the finished digital images will be compatible with the County's existing software. The contract would also include quality control measures, means for the County to charge a fee for print copies of records, and measures to avoid disrupting the ordinary business of the Courthouse during the digitization process.
Your letter stresses that WVONGA would not be involved in direct supervision of the performance of the contract. Neither WVONGA nor any of its members would receive or retain an individual copy of these digital records. Nor would they receive any access to the records on terms different from the general public.
As the attachment to your letter notes, these are not entirely new issues. This Office has previously issued an Opinion regarding the private donation of the costs of digitizing a county's property and mineral records. See Opinion of the Attorney General's Office Regarding the Use of Private Funds to Increase the Availability of Property and Mineral Records, Office of the West Virginia Attorney General (July 11, 2013) [hereinafter "Opinion"]. Thereafter, WVONGA donated the cost of digitizing Tyler County's property and mineral records through an arrangement similar to that proposed here.
Discussion
In the Opinion requested by the Prosecuting Attorney of Tyler County last year, this Office previously concluded that a county may accept funds from a private entity to digitize the county clerk's property and mineral records under certain conditions. First, under state ethics rules, the donation must be intended to confer a benefit upon the county or county commission as a whole, not upon any individual employee. Opinion at 2-3. Second, no private party may retain exclusive or advantageous access to the county records as a result of the donation. Id. at 3. Third, all county entities and officials should avoid soliciting such a monetary donation. Fourth, under state law, the award of a contract for the digitization of records likely must occur through competitive bidding. Id. at 3. In most situations, state law requires counties to award contracts for a project exceeding $15,000 through public competitive bidding, even if an intermediary private party is the nominal contracting party and the donor of funds for the project. Id.; see also W. Va. Code § 7-1-11.
From the facts you provided, it appears that the proposal satisfies these principles. We understand that WVONGA is interested in providing an unsolicited donation to the County Clerk's Office to digitize and place online property and mineral records held by the Office and it will provide online access to the public on an equal basis. WVONGA would not receive any individual copies of the records or special access to the records. Digitization would also occur through public competitive bidding and contract performance would be subject to direct oversight and control by the County Clerk. As a result, no violations are apparent from the facts your letter presents.
The ultimate lawfulness of any project will depend, however, on facts that we do not have before us. Your letter does not provide a copy of a proposed contract or bid, describe whether the County's initial review stage might require services subject to competitive bidding, or explain whether the County has promulgated any competitive bidding rules that might apply. As such, our Opinion is limited to the facts you have provided us.
Sincerely,
Patrick Morrisey
Attorney General
Elbert Lin
Solicitor General
Julie Marie Blake
Assistant Attorney General