Does a West Virginia county commission have to fund a sanitarian at the local health department, what minimum funding does it owe the health department, and can it skip publishing legal notices in one of two same-owner newspapers that are listed as opposite-politics papers?
Plain-English summary
Webster County Prosecutor Vandevender had advised the Webster County Commission to (a) cut its $20,000 contribution to the local Health Department down to $1,000 and (b) stop running legal advertisements in the Webster Republican on the theory that it and the Webster Echo were not really two papers of opposite politics, since they shared an owner. He asked the AG whether his advice was right.
The AG largely pushed back on both pieces. On health department funding, the AG agreed that the county is not required by statute to fund any particular position (so it does not have to pay for a sanitarian or health inspector), but stressed that "shall provide financial support" under W. Va. Code § 16-2-14 is mandatory and a token amount like $1 would not count as "support." Whether $1,000 is sufficient is a case-by-case judgment that depends on the local health department's actual needs and other available funding sources. The AG would not second-guess the prosecutor's specific dollar figure on the limited facts.
On the newspapers, the AG was firm: the requirement under W. Va. Code § 59-3-2(b) that legal notices be published in "two qualified newspapers of opposite politics" is satisfied when each paper meets the statutory qualification criteria and is certified to the Secretary of State as opposite-politics. The Webster Echo and Webster Republican were both on the Secretary of State's certified list, one as a Democratic paper and one as Republican, and shared ownership or facilities does not by itself defeat that certification. The AG cited the Charleston Gazette and the Charleston Daily Mail as a well-known example of co-owned opposite-politics papers. The single Supreme Court of Appeals case rejecting a paper's claimed political affiliation, Wolfe v. Jackson County Court, involved a much more dramatic flip in political identity than anything alleged here. The Commission therefore should run its required notices in both papers and is not justified in halving the legal-advertising line item.
Currency note
This opinion was issued in 2013. 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: Did the AG say the county must fund a sanitarian?
A: No. The AG concluded that the statute requires a county to "financially support" a local health board it has created, but does not specify any positions that must be funded. A county can fund a sanitarian if it chooses to, and the local board can request that funding, but the commission has discretion.
Q: How much money is enough for "financial support"?
A: The opinion does not give a number. It says: more than nominal (so $1 is too low), but the actual figure depends on the department's needs and what other funding (state, federal, county tax levy) is available. The AG declined to opine on whether $1,000 was enough on the limited facts.
Q: Can a county fund a local health department only through a property-tax levy?
A: No. W. Va. Code § 16-2-14 gives a county three permissible funding sources: a county tax levy (capped at three cents per $100 of assessed value), the county's general fund, and pass-through appropriations from the Department of Health and Human Resources. A county is not required to use a levy if it prefers to use general-fund money.
Q: When does the "two newspapers of opposite politics" rule come into play?
A: Only when there are at least two qualified opposite-politics newspapers in the publication area. If the area only has one qualified paper, or if the two opposite-politics papers refuse to publish at the statutory rate, the notice runs in just one paper.
Q: What is a "qualified newspaper"?
A: Under W. Va. Code § 59-3-1, the paper must (i) bear a name and have at least four pages, (ii) be a general-interest paper covering political, religious, commercial, and social events, (iii) publish at least weekly for at least 50 weeks a year, (iv) have been published regularly for at least one year, (v) be generally circulated within the publication area, and (vi) give a reasonable basis to believe a published notice would actually reach residents. The publisher files an annual affidavit with the Secretary of State certifying these facts plus the paper's political affiliation.
Q: How do I challenge a paper's claimed political affiliation?
A: It is hard. The Supreme Court of Appeals second-guessed a paper's political affiliation only once, in Wolfe v. Jackson County Court (1937), where a long-time Republican paper in a Republican-dominated county announced a Democratic conversion that the court found incredible on its face. Short of that level of evidence, courts and the AG defer to the certified affiliation on file with the Secretary of State.
Q: Can a paper that shares an owner with its rival still count as "opposite politics"?
A: Yes. The AG specifically cited the Charleston Gazette and the Charleston Daily Mail as a longstanding example of two co-owned, co-located papers that were both treated as qualified opposite-politics papers for legal advertising purposes.
Background and statutory framework
Two distinct statutory schemes are at work in this opinion.
Local health department funding. W. Va. Code § 16-2-3 makes a county commission's creation of a local board of health mandatory if no other local board covers the area ("shall create, establish and maintain"). W. Va. Code § 16-2-14 then says the appointing authorities (typically the county commission) "shall provide financial support" for the operation of the local health department, and gives them three permissible funding sources: a county levy capped at three cents per $100 of assessed value, the county general fund, and DHHR appropriations. The AG read the use of "shall" as mandatory and "may" as discretionary as to source, drawing on State v. Allen and Frye v. Frye. The AG drew a floor under the funding requirement using a basic statutory-construction principle, that a token contribution of $1 would render the word "support" meaningless, citing State ex rel. Johnson v. Robinson and Martin v. Randolph County Board of Education. Local health boards may also accept federal, state, or private funding under § 16-2-11(b)(4).
Legal advertisements. W. Va. Code § 59-3-2(b) requires Class I-O, II-O, and III-O legal advertisements to run in "two qualified newspapers of opposite politics published in the publication area" if two such newspapers exist. The newspaper qualification criteria, § 59-3-1, require general-circulation, frequency, longevity, and effective-notice characteristics, and the publisher files an annual affidavit with the Secretary of State certifying those facts and the paper's political affiliation. Wolfe v. Jackson County Court is the only case where the Supreme Court of Appeals second-guessed a paper's claimed political affiliation, and the AG read it narrowly: only "extreme circumstances" suggesting a sham conversion will overcome the affidavit. Mere shared ownership or shared production facilities is not enough.
Citations and references
Statutes:
- W. Va. Code § 16-2-3 (mandatory creation of county board of health)
- W. Va. Code § 16-2-11(b)(4) (board's authority to accept outside funding)
- W. Va. Code § 16-2-14 (financial support, county-tax cap, general-fund and DHHR funding)
- W. Va. Code § 59-3-1 (qualified-newspaper criteria)
- W. Va. Code § 59-3-2(b) (publication in two opposite-politics papers)
- W. Va. Code § 59-3-3 (annual affidavit and fees)
Cases:
- State v. Allen, 539 S.E.2d 87 (W. Va. 1999) ("shall" is mandatory)
- Frye v. Frye, 619 S.E.2d 187 (W. Va. 2005) ("may" is discretionary)
- State ex rel. Johnson v. Robinson, 251 S.E.2d 505 (W. Va. 1979) (statutory words have specific purpose)
- Martin v. Randolph County Bd. of Educ., 465 S.E.2d 399 (W. Va. 1995) (avoid rendering provisions superfluous)
- Harbert v. Harrison Cnty. Court, 39 S.E.2d 177 (W. Va. 1946) (legislature presumed to know context)
- Wolfe v. Jackson County Court, 193 S.E.2d 556 (W. Va. 1937) (rejecting sham change in political affiliation)
Source
- Landing page: https://ago.wv.gov/media/18086/download?inline
- Original PDF: https://ago.wv.gov/media/18086/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
April 30, 2013
The Honorable Dwayne C. Vandevender
Prosecuting Attorney
Office of the Prosecuting Attorney of Webster County, West Virginia
137 South Main St.
Webster Springs, WV 26288
Dear Prosecutor Vandevender,
You have asked for an Opinion of the Attorney General pertaining to certain budget line items proposed by the Webster County Commission ("Commission"). 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." It is based on the factual assertions set forth in your letter dated March 26, 2013, to the Commission and your subsequent letter dated April 19, 2013, to the Attorney General's Office.
You state that you were asked by an unidentified elected official to give a legal opinion to the Commission regarding the necessity of two of its proposed expenditures: (1) providing $20,000 to the Webster County Health Department "in lieu of hiring a sanitarian"; and (2) paying for certain legal advertisements in two local papers, the Webster Echo and Webster Republican. In your letter dated March 26, 2013, you opined that under West Virginia law, the Commission is not obligated "to provide a local sanitarian or health inspector [or] to provide any specific or minimal amount of funding for the local Health Department." You further proposed that the $20,000 the Commission allocated to the Health Department be reduced to $1,000, and that the Commission seek a special levy at the next election to provide additional funding for the local Health Department. With respect to the necessity of placing certain legal advertisements in both papers, you observed that the Webster Echo and Webster Republican have the same owner and for two weeks were very similar in content. On this basis, you concluded that the papers cannot be considered "two qualified newspapers of opposite politics" under West Virginia law. You further advised that the Commission "may reduce any line items for such legal advertising by 50%."
Your letters raise a number of questions, each addressed in turn below:
(1) Is the Commission required to provide funding to the local Health Department for the hiring of a sanitarian or health inspector?
(2) What amount of funding, if any, is the Commission required to give the local Health Department?
(3) Are the Webster Echo and Webster Republican "two qualified newspapers of opposite politics" in the same publication area such that the Commission is obligated to place certain legal advertisements in both papers?
Question One: Is the Commission required to provide funding to the local Health Department for the hiring of a sanitarian or health inspector?
The West Virginia Code specifically provides that "[a] county commission shall create, establish and maintain a county board of health if no other local board of health organized under this article is established and responsible for public health in the service area." W. Va. Code § 16-2-3 (emphasis added). In the event that a board is created, Section 16-2-14 provides that the county commission "shall provide financial support for the operation of the local health department" and further provides that funds for this support "may" (1) be raised through the levying of a county tax, (2) come from the county's general funds, or (3) be paid from appropriations made for the department of health and human resources.
W. Va. Code § 16-2-14.
The statutes thus provide some express guidance regarding the Commission's obligations to the local Health Department. By using the word "shall," the statute requires a county commission to provide "financial support" to any local health board that it creates. See State v. Allen, 539 S.E.2d 87, 96 (W. Va. 1999) ("Generally, 'shall' commands a mandatory connotation and denotes that the described behavior is directory, rather than discretionary."). However, as reflected in the use of the word "may," a county commission retains some discretion with respect to the source of the funds used for this purpose. See Frye v. Frye, 619 S.E.2d 187, 194 (W. Va. 2005) (use of the word "may" in statute evidences legislature's discretionary intent).
But no statute speaks expressly to whether a county commission must provide funding to the local health board for the hiring of a sanitarian or health inspector. Although a county commission must provide "financial support" to any local health board that it creates, the West Virginia Code does not specify what the money must support or mandate a county commission's funding of specific positions within the local health board. Nor does the Code prohibit the funding of any specific positions.
In the absence of a specific directive regarding or prohibiting the funding of particular positions, the reasonable conclusion is that the Commission may in its discretion provide funding to the local Health Department for the hiring of a sanitarian or health inspector. The Legislature's general mandate that a county commission "financial[ly] support" a local health board cannot be said to impose a specific duty on the Commission to hire a sanitarian or health inspector. Nevertheless, assuming that the county commission obtains the funding from a proper source, as set forth in Section 16-2-14, a county commission that wishes to provide financial support in the form of funding for a specific position within a local health board could permissibly do so.
Question Two: What amount of funding, if any, is the Commission required to provide to the local Health Department?
You opine in your March 26, 2013, letter that the Commission need not "provide any specific or minimal funding for the local Health Department." You have proposed that the Commission give $1,000 to the local Health Department so that it is "in compliance with the requirement to provide financial support."
There is no clear requirement that a county commission fund a local health board at any particular level. As discussed above, the West Virginia Code states only generally that a county commission must provide "financial support" to a local health board it created and does not identify a specific amount of funding necessary to meet that requirement. There are likewise no West Virginia judicial decisions addressing the sufficiency of the sum required from a county commission to comply with the statutory mandate of "financial support."
It is also apparent that the Legislature contemplated that a county commission would not necessarily be the sole source of funding for a local health board. Local health boards are expressly authorized by statute to accept State and federal funding. See W. Va. Code § 16-2-11(b)(4) (authorizing local health boards to accept money or property from "any federal, state or local governmental agency or from any private source"); see also id. § 16-2-14 (addressing "state funding"). Furthermore, the statute caps the amount of tax that a county may levy to support a local health board at 0.03% of the "assessed evaluation of the taxable property in the levying county." Id.
The Commission is obligated, however, to provide a minimal level of funding. Basic principles of statutory construction suggest that the support must be greater than a nominal sum. To allow a county commission to provide a local health board some nominal sum, such as $1.00, could hardly be considered "support" within the plain meaning of that word. See State ex rel. Johnson v. Robinson, 251 S.E.2d 505, 508 (W. Va. 1979) ("It is a well known rule of statutory construction that the Legislature is presumed to intend that every word used in a statute has a specific purpose and meaning."). Such a reading would also be at odds with the instruction that a county commission "shall create, establish and maintain a county board of health if no other local health board" exists. W. Va. Code § 16-2-3 (emphasis added); see Martin v. Randolph County Bd. of Educ., 465 S.E.2d 399, 414-15 (W. Va. 1995) ("[W]e have a deep reluctance to interpret a statutory provision so as to render superfluous other provisions of the same enactment").
As presented, there are insufficient facts to reach an opinion as to whether the $1,000 that you propose the Commission allocate to the local health board falls within the acceptable range of financial support. The absence of any specific requirement suggests that the Legislature contemplated a case-by-case analysis. See Harbert v. Harrison Cnty. Court, 39 S.E.2d 177, 191 (W. Va. 1946) (Legislature is presumed "to understand the situation with which it undertakes to deal"). A more fulsome understanding of the circumstances in Webster County and the needs of the local Health Department are required to form an opinion.
Question Three: Are the Webster Echo and Webster Republican "two qualified newspapers of opposite politics" in the same publication area such that the Commission is obligated to place certain legal advertisements in both papers?
West Virginia law requires the publication of certain legal advertisements in "two qualified newspapers of opposite politics published in the publication area" if two such newspapers exist:
A Class I-O legal advertisement shall be published one time, a Class II-O legal advertisement shall be published once a week for two successive weeks, and a Class III-O legal advertisement shall be published once a week for three successive weeks, in two qualified newspapers of opposite politics published in the publication area; or if two qualified newspapers of opposite politics are not published in the publication area or if two qualified newspapers of opposite politics published in the publication area will not publish the legal advertisement at the rates specified in section three of this article, the legal advertisement shall be published in one qualified newspaper published in the publication area[.]
W. Va. Code § 59-3-2(b) (emphasis added). As our Supreme Court of Appeals has recognized, the requirement that legal advertisements be made in papers of opposite politics flows from the Legislature's desire to have notices "reach the greatest number of people possible." Wolfe v. Jackson County Court, 193 S.E.2d 556, 557 (W. Va. 1937).
There are a number of requirements for a newspaper to be deemed "qualified" for purposes of accepting legal advertisements. It must be a paper: (1) bearing a title or name and consisting of not less than four pages without a cover; (2) being a newspaper to which the general public resorts for passing events of a political, religious, commercial and social nature, and for current happenings, announcements, miscellaneous reading matters, advertisements and other notices; (3) being issued regularly, that is, as frequently as once a week, for at least 50 weeks during the calendar year; (4) being published regularly for at least one year immediately prior to the date on which a legal advertisement is delivered for publication; (5) being generally circulated at a defined place within the publication area; and (6) giving basis for a reasonable belief that publication of a legal advertisement in that newspaper will give effective notice to the residents of the publication area. W. Va. Code § 59-3-1. The publisher of a qualified newspaper must annually file an affidavit with the Secretary of State that sets forth sufficient facts to demonstrate that the newspaper meets these criteria, as well as the average annual bona fide circulation of the newspaper. Id. § 59-3-3(d).
You have advised the Commission that you believe that the Webster Echo and Webster Republican are not "two qualified papers of opposite politics" and that it "may reduce [budget] line items for such legal advertising by 50% since we will now only be paying one fee." In support of these conclusions, you represent that: (a) in the two weeks of papers you reviewed, the content of the articles in the two newspapers was identical with the exception of the name on the front of the papers and "the last page of the second section"; (b) advertisements for both papers can be sent to the same email address; (c) both papers are owned by the same company; (d) the papers are registered with West Virginia's Secretary of State at the same physical address; (e) you believe that both papers are published from the same location; (f) the papers are being mailed with the same bulk mailing address; and (g) the newspapers have the same writers with the assistant editor for one paper also serving as the editor for the other paper.
Although not recited in your letter, the Secretary of State lists the Webster Echo and Webster Republican as "qualified newspapers" for Webster County in a publicly available list of qualified newspapers. West Virginia Secretary of State, List of Certified Newspapers 2012-2013. This list further identifies the Webster Echo as a "Democratic" paper with a circulation of 3,004, and describes the Webster Republican as a "Republican" paper with a circulation of 1,006. Both papers are listed as being published weekly and have filed the required affidavits with the Secretary of State.
Analysis. The facts recited in your letter do not call into question the two newspapers' status as "qualified papers." None of your facts dispute the length, frequency of publication, or purpose for which the paper is read. Nor do your facts suggest that either paper is a new publication, is not circulated at a defined price, or will not provide effective notice to residents of the publication area.
The facts you present likewise do not call into question whether the two papers are of opposite politics, which the papers themselves reported to the Secretary of State in their certifying affidavits. Nearly all of your observations relate to the fact that the two papers have the same ownership and appear to be registered at, published from, and mailed from the same address. But there is no statutory requirement that papers of opposite politics be owned by separate entities or individuals, or be published in different locations. Indeed, as reflected in the Secretary of State's listing and as you acknowledge, it is undisputed that the Charleston Gazette and the Charleston Daily Mail are qualified papers of opposite politics that are owned by the same entity and registered at the same address. There are other such papers on the list, too.
The Supreme Court of Appeals has only once before second-guessed a paper's representation of its political affiliation in the context of a statutory requirement that newspapers be "of opposite politics." In Wolfe, a once-Republican paper announced a change in politics and "posed as a Democratic newspaper." 193 S.E. at 559. The Court found it incredible that a long-time Republican paper "published in a Republican community and county, with all the prestige which years of party service had built up, should . . . suddenly and without change as to controlling ownership or editorship, transfer its political allegiance to a party so weak in comparative strength as [was] the Democratic Party in that county." Id. at 558. The motive must have been "to place the [newspaper] in a position where it would qualify in the matter of securing official publications." Id. Under those specific circumstances, the Court determined that it was duty-bound to "consider all the surrounding circumstances." Id. at 559. Ultimately, even though the paper made "occasional" attempts to "discuss public questions from a Democratic viewpoint" and included "a few pictures of prominent Democrats," the Court found the newspaper "not entitled to be classified as a paper opposite in politics to the regular Republican newspaper" in the county. Id. at 559.
These special circumstances do not exist here. The most unusual fact you represent is that the newspapers have the same writers with the assistant editor for one paper also serving as the editor for the other paper. That fact, standing alone, is not comparable to the circumstances the Supreme Court faced in Wolfe. If there were other facts that offered a reason to question the political bona fides of these papers, they could support a different opinion. But Wolfe suggests that in most circumstances, including this case as you have presented it, a paper's representation of its political affiliation for purposes of accepting legal advertising under West Virginia Code § 59-3-2 should not be second-guessed.
Very truly yours,
Patrick Morrisey
Attorney General