How does West Virginia's Emergency Ambulance Service Act of 1975 actually constrain how a county ambulance authority's board operates: appointments, terms, proxies, officers, billing, and ambulance management?

Official title

Opinion of the Attorney General's Office Regarding Whether a County Ambulance Authority's Practices Comply with the Emergency Ambulance Service Act of 1975, W.Va. Code § 7-15-1, et seq.

Plain-English summary

The Mineral County Ambulance Authority had a board structure shaped over years of practice rather than strict statutory compliance. Eight EMS squad seats, five at-large community seats, the Potomac Valley Hospital Medical Director, and one County Commissioner. Squads picked their own representatives. The Medical Director was always a member. Terms varied by seat. Members commonly sent proxies. The Commissioner asked his prosecutor to seek a definitive opinion on what the Emergency Ambulance Service Act actually required.

The AG worked through six questions.

(1) New member appointments. Only the participating government's governing body, here the Mineral County Commission, can appoint a member. Squads recommending candidates is fine; squads picking their own member to fill a seat is not. The Commission must "make each appointment at the time of each vacancy by 'ordinance or order'" (§ 7-15-4 and § 7-15-5).

(2) Terms must be staggered three-year terms. § 7-15-5 sets the structure: initial appointments are split into one-, two-, and three-year cohorts, then each successor serves three years. The Mineral County practice of giving Commission representatives only as long as they kept their other office (and giving squad representatives one or two years rather than three) did not match the statute.

(3) Proxy voting is not allowed. § 7-15-8 requires a quorum of "[a] majority of the members of the board" and a vote of "all members present." "Present" implies physical attendance. Where the legislature wanted to allow proxies (as in the Regional Jail Board, § 31-20-3, which expressly authorizes "a designated representative"), it said so. § 7-15-5's silence is meaningful.

(4) Officers. § 7-15-7 requires the board to elect a president "from among its membership" and other officers (vice-president, secretary, treasurer, and others) "who need not be members of the board." The phrase "who need not be members" modifies all the non-president positions in the sentence. So the secretary or treasurer can be a non-member. Bond requirements for non-member officers (§ 7-15-7) and references to officers separately from members in § 7-15-15 reinforce this reading.

(5) Outside billing companies are permitted under § 7-15-10(d) (employment of "such other employees and agents") and (g) (contracts for "superintendence and management services"). § 7-15-16's $10,000 competitive bidding rule applies to "supplies, equipment and materials" purchases, not to billing services.

(6) Ambulance management. The Act gives the authority "wide berth" over personal property under § 7-15-10(e). The authority can decide which ambulances go to which squads and how they are marked, including using community names without "Mineral County Ambulance Authority" branding.

The AG noted that the Act focuses on compliance with the Act itself, not other statutes or agency regulations.

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: Can a board's bylaws give EMS squads the right to designate their own representative?

A: No. The opinion was direct: "[t]o the extent the Board's bylaws provide otherwise, they are inconsistent with the Act and should not be followed." § 7-15-5 vests the appointment power exclusively in the participating government. Squads can recommend candidates, but the commission's discretion to appoint must remain intact.

Q: What if a board member can't make a meeting?

A: The member misses the meeting. § 7-15-8 requires "members present" to vote, and the statute does not allow another person to cast a vote on the member's behalf. Some statutes elsewhere expressly authorize alternates (Regional Jail Board, § 31-20-3, allows "a designated representative" to vote). § 7-15 does not. Members who consistently miss meetings should resign so the participating government can appoint a more available replacement.

Q: Can the board create non-voting "advisory" positions?

A: The Act does not prohibit advisory positions, but they cannot have voting rights or count toward quorum. The opinion's footnote noted that "[a] person serving as an officer but not appointed to the Board is properly described as a 'non-member officer,' rather than a 'non-voting member,' because members by definition are entitled to vote."

Q: Does the staggered-terms rule create a problem if appointments are out of sync?

A: It complicates things, but a participating government can rebalance over time. As terms expire, each successor goes to a three-year term. If the cycle has drifted, the commission can reset by adjusting the lengths of new appointments to restore staggered cohorts. The statute does not authorize shorter than three-year terms, but it does allow filling vacancies for "the unexpired portion of the term."

Q: Are there limits on who can serve as a non-member officer?

A: § 7-15-7 lets the board elect non-member officers "as may be required, who need not be members of the board, whose duties shall be defined and whose compensation shall be fixed by the board and paid out of the funds of the authority." § 7-15-15 imposes conflict-of-interest restrictions on officers. Beyond that, the board has discretion.

Q: Can the authority assign ambulances to squads in unequal numbers or different conditions?

A: Yes. The Act gives the authority "wide berth" over personal property under § 7-15-10(e). The authority can manage its fleet for operational efficiency, even if that means not all squads have identical assets. The constraint is only that the authority must "continue to effectively fulfill its mission."

Q: Does the authority need to put "Mineral County Ambulance Authority" on its ambulances?

A: No. The Act has no marking requirements. The authority can use community names, generic markings, or whatever serves its operational interests. The opinion was explicit: no provision "places any restrictions on how an authority is to select, allocate, replace, or mark its ambulances."

Q: What happens if a billing company keeps the proceeds for itself?

A: The opinion noted that "profits" from billing remained with the billing squad for its expenses, and assumed by "profits" the prosecutor meant "proceeds." The footnote referenced separately that under prior AG opinions, an authority may impose user fees for services rendered (separate from the special § 7-15-17 fee). The 2014 opinion did not directly address whether billing-company arrangements that keep proceeds violate the Act, but the conflict-of-interest rules in § 7-15-15 and the requirement that activities serve the authority's mission place outer limits.

Background and statutory framework

The Act, W. Va. Code §§ 7-15-1 et seq., authorizes county commissions to create ambulance authorities as public corporations. The authority is governed by a board of 5-15 members appointed by the participating government(s).

Key board provisions:

• § 7-15-4: creation of authority by ordinance or order; powers of county commission.
• § 7-15-5: appointments by participating governments; staggered three-year terms; vacancy fill for unexpired portion; one vote per member; eligibility for any resident of, or member of governing body of, a participating government.
• § 7-15-7: officers (president from membership; vice-president, secretary, treasurer "who need not be members"); regular and special meetings; bond requirements for treasurer and other officers; powers, including bylaws.
• § 7-15-8: quorum (majority of members) and voting (majority of members present).
• § 7-15-10: powers, including (d) employment of agents and (g) contracts for superintendence; (e) personal property management; (l) catchall for "all things necessary and convenient."
• § 7-15-15: conflict of interest provisions.
• § 7-15-16: competitive bidding for purchases of supplies, equipment, and materials over $10,000.

The Regional Jail comparison. § 31-20-3 expressly authorizes voting by "a designated representative" of the secretary of the department of administration on the Regional Jail Board. State ex rel. Regional Jail & Correctional Auth. v. County Comm'n of Cabell County (2007) upheld that arrangement on the express statutory authority. The contrast with § 7-15's silence makes proxy voting under the ambulance authority impermissible.

The 1985 conflict-of-interest decision. 61 W. Va. Op. Att'y Gen. 37 (1985) confirmed that volunteer squad members can serve on ambulance authority boards if they comply with conflict-of-interest provisions and are not seeking personal pecuniary gain.

Application. (1) Commission appointment only; (2) staggered three-year terms; (3) no proxy voting; (4) president must be a member, others need not; (5) billing vendors permitted; (6) wide discretion over ambulance fleet management.

Citations

• W. Va. Code § 5-3-2 (AG advisory authority)
• W. Va. Code §§ 7-15-1 et seq. (Emergency Ambulance Service Act)
• W. Va. Code § 7-15-3, § 7-15-4, § 7-15-5, § 7-15-7, § 7-15-8, § 7-15-10, § 7-15-15, § 7-15-16, § 7-15-17
• W. Va. Code § 31-20-3
• State ex rel. Regional Jail & Correctional Auth. v. County Comm'n of Cabell County, 222 W. Va. 1, 657 S.E.2d 176 (2007)
• 61 W. Va. Op. Att'y Gen. 37 (1985)
• 59 W. Va. Op. Att'y Gen. 161 (1982)

Source

• Landing page: https://ago.wv.gov/media/18036/download?inline
• Original PDF: https://ago.wv.gov/media/18036/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General
(304) 558-2021
Fax (304) 558-0140

July 8, 2014

The Honorable James W. Courrier, Jr.
Prosecuting Attorney
Mineral County
P.O. Drawer 458
Keyser, WV 26726

Dear Prosecutor Courrier,

You have asked for an Opinion of the Attorney General about whether the Mineral County Ambulance Authority's practices comply with the Emergency Ambulance Service Act of 1975, W. Va. Code § 7-15-1, et seq. 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 a number of legal issues, which are addressed in turn below:

(1) How should a new member be appointed to an ambulance authority's board?
(2) Must all ambulance authority board members be appointed for staggered three-year terms?
(3) May ambulance authority board members vote by proxy?
(4) Must an ambulance authority's officers be board members?
(5) May ambulance authority squads use private billing companies to charge users for services rendered?
(6) May an ambulance authority assign its squads different ambulances that the squads then mark in their own names?

The Opinion focuses only on the application of and compliance with the Emergency Ambulance Service Act of 1975. We do not address compliance with other aspects of West Virginia law, including other statutes or any applicable agency regulations.

Question One: How Should a New Member Be Appointed to the Ambulance Authority's Board?

You first ask about the addition of a new member when the Authority's Board already has its maximum number of members. According to your letter, the Authority Board currently has its maximum fifteen members: eight EMS squad members (one from each volunteer squad in Mineral County); five at-large community members; the Potomac Valley Hospital Medical Director ("Medical Director"); and one County Commissioner. Your letter explains that a new volunteer squad is organizing, that the bylaws require that each volunteer squad be granted a voting member, and that the formation of the new squad would therefore require removal from the Board of one non-squad member.

Under the Emergency Ambulance Service Act of 1975, county commissions may create ambulance authorities, governed by a board of members, to fulfill their statutory duty to provide ambulance service. W. Va. Code § 7-15-4. The Act provides that an "authority shall be created upon the adoption, by the governing body of each participating government, acting individually, of an appropriate ordinance or order." Id. Each ambulance authority's "management and control," as well as its "operations, business and affairs," must be lodged in a board of members. Id. § 7-15-5. By statute, an ambulance authority board may have no fewer than five members and no more than fifteen.

Members of an ambulance authority board "shall be appointed . . . by the governing bodies of the participating governments." Id. If a single county commission creates the authority, that county commission is to appoint every member of the board. If multiple counties or municipalities create the authority, they are to appoint the members between them. Based on the facts you have provided, we understand that the Mineral County Ambulance Authority was created solely by the Mineral County Commission.

The Act makes clear that no entity or individual other than the governing body of the participating governments has authority to appoint a member. The governing body must "make any replacement appointments in the case of death or resignation" (§ 7-15-5). Moreover, "[t]he governing body of the participating government" must deliver a certified order to the ambulance authority on the occasion of each appointment or reappointment.

Accordingly, only the Mineral County Commission may appoint any new member of the Mineral County Ambulance Authority's Board. Your letter suggests that the Commission appoints the Board's at-large community members and the one member representing the Commission, but that the various ambulance squads are permitted to select their own representatives and that the Medical Director is always a member. These practices do not appear to conform with the Act. To the extent the Board's bylaws provide otherwise, they are inconsistent with the Act and should not be followed.

At the same time, no provision prohibits a hospital or squad from recommending to the Commission candidates for membership or prevents the Commission from exercising its discretion to repeatedly appoint certain officials, such as ambulance squad leaders and local medical directors, to the Board. In fact, a previous Attorney General Opinion specifically concluded that individuals who are part of non-profit emergency squads may serve as members of ambulance authority boards if they comply with the Act's procedures and other requirements, such as its conflict-of-interest provisions. See 61 W. Va. Op. Att'y Gen. 37 (1985).

Question Two: Must All Ambulance Authority Board Members Be Appointed for Staggered Three-Year Terms?

The Act clearly provides that the members of an ambulance authority board "shall be appointed for terms of three years each," which must be staggered so that one-third of the members' terms expire every year. Id. § 7-15-5. At the outset, "initial appointments" are to be made such that "approximately one third of the total number of the members . . . shall be appointed for a term of one year, approximately one third of such total number . . . for a term of two years and approximately one third of such total number . . . for a term of three years." Successive appointments are to be made in a way that retains these three groups on three-year terms. Moreover, if a vacancy occurs during the middle of a term, the individual appointed to fill the vacancy may only be appointed "to fill the unexpired portion of the term." The statute does not permit terms of less than three years, or terms that are contingent upon external events, such as the expiration of other offices or employment.

The Board's structure appears to be contrary to the Act. Your letter suggests that Board members currently do not serve staggered three-year terms.

Question Three: May Ambulance Authority Board Members Vote By Proxy?

You next ask about the permissibility of voting by proxy or alternates. As you explain, many members use proxies or alternates.

The use of proxy voting or alternates is not expressly permitted by the Act and appears to run contrary to the Act's intent. § 7-15-8 requires a quorum of "[a] majority of the members of the board" and that the "vote of a majority of all members present at any meeting of the board shall be necessary to take any action." Id. § 7-15-8 (emphasis added). The term "present" strongly suggests that a member may not permit another individual to cast his or her vote in that member's absence. Furthermore, although the West Virginia Supreme Court of Appeals has previously permitted the use of alternates for the Board of the Regional Jail and Correctional Authority, that board's enabling statute "express[ly] authorize[d] . . . voting by a designated representative." State ex rel. Regional Jail & Correctional Auth. v. County Comm'n of Cabell County, 222 W. Va. 1, 12, 657 S.E.2d 176, 187 (2007). No such statutory language exists here.

Question Four: Must an Ambulance Authority's Officers Be Board Members?

The Act appears to require that the president be a member of the Board. At the start of its existence, the Board was required to elect a president "from among its membership." Id. § 7-15-7. The word "qualified" in the same provision suggests that any succeeding president must, like the first president, be a member of the Board.

The Act also appears to require the election of a vice president, secretary, and treasurer, none of whom need be members of the Board. Specifically, the statute provides that the Board shall elect "a vice president, a secretary and a treasurer and such other officers as may be required, who need not be members of the board, whose duties shall be defined and whose compensation shall be fixed by the board and paid out of the funds of the authority." Id. The natural reading of the phrase "who need not be members of the board" is to modify all the positions in the sentence: the vice-president, secretary, treasurer, and all other necessary officers.

This reading is supported by other provisions, including the bond requirement for the treasurer and "such other officers and employees" (suggesting non-members), and the conflict-of-interest provisions in § 7-15-15 referring separately to "member[s]" and "officers."

Question Five: May Ambulance Authority Squads Use Private Billing Companies to Charge Users for Services Rendered?

We conclude that an authority is permitted by the Act to use a billing provider. Under § 7-15-10(d), an authority may "employ, in its discretion, planning consultants, attorneys, accountants, superintendents, managers and such other employees and agents as may be necessary in its judgment." Furthermore, § 7-15-10(g) lets an authority "enter into contracts and agreements for superintendence and management services." We read these provisions to grant an authority the power to employ or contract with an outside billing service. § 7-15-16's competitive bidding requirement applies to "supplies, equipment and materials" purchases over $10,000, which billing services do not normally fall within.

Question Six: May an Ambulance Authority Assign Squads Different Ambulances That the Squads Then Mark in Their Own Names?

The Act entrusts an authority with broad discretion over the personal property it owns and uses for the purpose of providing emergency ambulance service. The Act empowers ambulance authorities "to hold, use, sell, lease or otherwise dispose of real and personal property of every kind and nature whatsoever" that is "necessary for the full exercise of its powers" or "may be convenient or useful for the carrying out of such powers." Id. § 7-15-10(e). We read that broad provision to grant ambulance authorities a wide berth with respect to the ownership and management of personal property, including ambulances. No provision of the Act places any restrictions on how an authority is to select, allocate, replace, or mark its ambulances, so long as the authority continues to effectively fulfill its mission.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Julie Marie Blake
Assistant Attorney General

(Footnote: A person serving as an officer but not appointed to the Board is properly described as a "non-member officer," rather than a "non-voting member," because members by definition are entitled to vote.)