When a vacancy opens up on a three-member West Virginia county commission, who picks the replacement, must they be from the same magisterial district as the previous commissioner, and must they be from the same political party?

Official title

Opinion of the Attorney General's Office Regarding the Process for Filling a Vacancy on a County Commission

Plain-English summary

The Pocahontas County prosecutor anticipated that one of three county commission seats might soon be vacant. Three questions: Can the remaining two commissioners pick the replacement? Must the replacement be from the same magisterial district as the prior commissioner? Must the replacement be from the same political party?

The AG worked through each.

The remaining commissioners pick. W. Va. Const. art. IX, § 9 says two of three commissioners are a quorum. § 3-10-7 says any vacancy "shall be filled by the county commission of the county, unless the number of vacancies . . . deprive that body of a quorum." With one vacancy, two remain, the body has a quorum, and it must fill the seat. If the two cannot agree within thirty days, the statute hands the choice to "the county executive committee of the vacating county commissioner's political party." The fallback prevents deadlock.

The same magisterial district requirement does NOT apply. The constitution restricts elected commissioners to different districts ("no two of said commissioners shall be elected from the same magisterial district," art. IX, § 10, emphasis on "elected"). § 7-1-1b sets bright-line residency tests for "candidates" filing certificates of announcement. § 6-5-4 says elected commissioners must reside in the district they were elected to. But none of these provisions reaches an appointee filling a vacancy. § 3-10-7 sets one and only one requirement for an appointee: same political party. Under expressio unius est exclusio alterius (Martin v. Hamblet), naming one requirement implies excluding others. The legislature knew how to write district-residency requirements when it wanted to (see school boards in art. XII, § 6, which says "[n]o more than two of the members of such board may be residents of the same magisterial district," and § 3-5-6, which uses the broader "elected or serve" language). For county commission vacancies, the legislature did not.

The same-party requirement DOES apply. § 3-10-7 says it twice: persons appointed "shall be of the same political party as the officeholder vacating the office," and the executive committee fallback selects "from the membership of the vacating county commissioner's political party."

A footnote noted that Senate Bill No. 527 (2013) had recently amended this section but did not take effect until July 12, 2013, and was therefore not addressed.

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: Why is a two-member quorum enough?

A: W. Va. Const. art. IX, § 9 sets the rule: "any two of whom shall constitute a quorum for the transaction of business." § 7-1-1(b) repeats it. Two of three is enough to act, including to fill a vacancy. The framers picked that rule to keep the commission functional even when one seat is open.

Q: What happens if the remaining two commissioners deadlock?

A: § 3-10-7 has a thirty-day fallback. If they "cannot agree upon a person to fill a vacancy in the office of county commissioner within thirty days of the date the vacancy first occurred, the county executive committee of the vacating county commissioner's political party shall select and name a person to fill the vacancy from the membership of the vacating county commissioner's political party." The legislature built in a tie-breaker.

Q: Why doesn't the district residency rule apply to appointees?

A: Two reasons the AG gave. First, expressio unius est exclusio alterius: § 3-10-7 lists exactly one requirement for appointees (same party), and naming one excludes others. Second, the constitution and surrounding statutes consistently use "elected" when imposing the district residency rule. Compare art. IX, § 10 ("no two of said commissioners shall be elected from the same magisterial district") with art. XII, § 6 ("[n]o more than two of the members of such board may be residents of the same magisterial district"). The legislature and constitutional drafters knew how to write the broader version when they wanted it.

Q: Could the commission pick someone from any district then?

A: Yes. The AG was direct: a new commissioner appointed to fill a vacancy "need not be selected from the same district as the commissioner being replaced." Whether to do so is a discretionary choice. Some counties may prefer to maintain district representation for political reasons even though the law does not require it.

Q: Is the same-party requirement constitutional?

A: The opinion did not reach a constitutional challenge. The text of § 3-10-7 is unambiguous; the AG just applied it. The legislature has the constitutional authority to set vacancy-filling rules under art. IV, § 7 and § 8.

Q: What if the replacement appointee then runs for election later?

A: That is a different question. The candidacy residency requirements in § 7-1-1b apply when someone files a certificate of announcement to run for election. An appointee who plans to run must satisfy the district-residency rule by the deadline for filing the certificate, regardless of where the appointee lived at the time of appointment.

Q: Does this work the same way for other types of county officers?

A: Some yes, some no. § 3-10-8 covers sheriffs and uses similar mandatory-appointment, same-party language. Other offices have their own provisions. The AG opinion of January 31, 2013 (sheriff vacancy in Jefferson County) reaches similar conclusions on appointment timing for sheriffs.

Background and statutory framework

The constitution. W. Va. Const. art. IX, § 9 establishes county commissions of three members with two-member quorums. Art. IX, § 10 says elected commissioners must come from different magisterial districts. Art. IV, § 7 sets the vacancy-fill framework but defers to "general law" for the procedure. Art. IV, § 8 affirms the legislature's general power over public-office terms and procedures.

The statutes. § 3-10-7 is the operational rule for county commission vacancies: "Any vacancy in the office of the county commissioner or clerk of county commission shall be filled by the county commission of the county, unless the number of vacancies in a county commission deprive that body of a quorum, in which case the Governor of the state shall fill any vacancy in the county commission necessary to create a quorum thereof. Persons appointed shall be of the same political party as the officeholder vacating the office and shall continue in office until the next general election is certified, or until the completion of the term if the term ends on the thirty-first day of December following the next general election: Provided, That in the event a quorum of the county commission cannot agree upon a person to fill a vacancy in the office of county commissioner within thirty days of the date the vacancy first occurred, the county executive committee of the vacating county commissioner's political party shall select and name a person to fill the vacancy from the membership of the vacating county commissioner's political party."

§ 6-5-4 says an elected commissioner "shall, during his continuance in office, reside in the county or district for which he was elected."

§ 7-1-1b imposes residency tests on candidates: a "candidate for county commission shall be a resident from the magisterial district for which he or she is seeking election" by the certificate-filing deadline (or by appointment date in vacancy-in-nomination cases). Note this targets candidates, not appointees.

The interpretive canon. Martin v. Hamblet, 737 S.E.2d 80 (W. Va. 2012): "expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another." The legislature's express mention of a same-party requirement, without mentioning a same-district requirement, implies that it intentionally omitted the latter.

The contrast with school boards. W. Va. Const. art. XII, § 6 uses broader language: "[n]o more than two of the members of such board may be residents of the same magisterial district within any school district." § 3-5-6 says no more than two members "may be elected or serve" from the same district. The phrase "or serve" reaches appointed members too. Compare with § 3-10-7's silence on district for commissioner appointments.

Application. The AG's three answers: (1) yes, the two remaining commissioners pick (with a thirty-day fallback to the party executive committee); (2) no, the appointee does not have to be from the same magisterial district; (3) yes, the appointee must be from the same political party.

Citations

• W. Va. Const. art. IV, § 7, § 8; art. IX, § 9, § 10, § 11, § 13; art. XII, § 6
• W. Va. Code § 5-3-2 (AG advisory authority)
• W. Va. Code § 3-5-7, § 3-5-19, § 3-10-7
• W. Va. Code § 6-5-4
• W. Va. Code § 7-1-1, § 7-1-1b
• State ex rel. Neal v. Barron, 146 W. Va. 602 (1961)
• Martin v. Hamblet, 737 S.E.2d 80 (W. Va. 2012)
• Harbert v. Harrison Cnty. Court, 129 W. Va. 54 (1946)
• Burkhart v. Sine, 200 W. Va. 328 (1997)
• Martin v. Randolph Cnty. Bd. of Educ., 195 W. Va. 297 (1995)
• State ex rel. Johnson v. Robinson, 162 W. Va. 579 (1979)

Source

• Landing page: https://ago.wv.gov/media/18091/download?inline
• Original PDF: https://ago.wv.gov/media/18091/download?inline

Original opinion text

PATRICK MORRISEY
ATTORNEY GENERAL

May 20, 2013

The Honorable Eugene M. Simmons
Prosecuting Attorney
Office of the Prosecuting Attorney of Pocahontas County, West Virginia
900 Tenth Avenue
Marlinton, WV 24954

Dear Prosecutor Simmons,

You have asked for an Opinion of the Attorney General pertaining to the appointment of a county commissioner in the event of a vacancy. 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 letter dated May 16, 2013, to the Attorney General's Office. In that letter, you suggest that one of the three seats on the Pocahontas County Commission ("Commission") may soon be vacant.

Your letter raises a number of legal questions, each addressed in turn below:

(1) May a new commissioner to fill a vacancy on the Commission be selected by the remaining two commissioners?
(2) If so, must the new commissioner be selected from the district from which the previous commissioner was serving?
(3) Must the new commissioner be from the same political party as the previous commissioner?

Question One: May a new commissioner to fill a vacancy on the Commission be selected by the remaining two commissioners?

A county commissioner is an elected office defined by the Constitution of West Virginia. The Constitution establishes that each county commission shall be composed of three commissioners, two of whom shall constitute a quorum for the transaction of business. Const. art. IX, § 9; see also W. Va. Code § 7-1-1(b). The commissioners are to be elected "by the voters of the county, and hold their office for a term of six years," but "no two of said commissioners shall be elected from the same magisterial district." Const. art. IX, § 10.

The Constitution, however, expressly leaves to the Legislature the power to determine how vacancies are to be filled. "When vacancies occur prior to any general election" for a state or county officer, those vacancies "shall be filled by appointments, in such manner as may be prescribed herein, or by general law." Const. art. IV, § 7 (emphasis added).

Pursuant to this authority, the Legislature has enacted a statutory provision that speaks to the filling of vacancies on county commissions. Article 10 of chapter 3 of the West Virginia Code addresses generally the filling of vacancies, and section 7 addresses specifically vacancies on county commissions:

Any vacancy in the office of the county commissioner or clerk of county commission shall be filled by the county commission of the county, unless the number of vacancies in a county commission deprive that body of a quorum, in which case the Governor of the state shall fill any vacancy in the county commission necessary to create a quorum thereof. Persons appointed shall be of the same political party as the officeholder vacating the office and shall continue in office until the next general election is certified, or until the completion of the term if the term ends on the thirty-first day of December following the next general election: Provided, That in the event a quorum of the county commission cannot agree upon a person to fill a vacancy in the office of county commissioner within thirty days of the date the vacancy first occurred, the county executive committee of the vacating county commissioner's political party shall select and name a person to fill the vacancy from the membership of the vacating county commissioner's political party.

W. Va. Code § 3-10-7.

This provision makes clear that a single vacancy on the Commission can (and indeed must) be filled by the two remaining commissioners unless they cannot agree. Under the statute, a vacancy on a county commission "shall be filled" by the county commission, provided that there is a quorum. Under the Constitution, the two remaining commissioners constitute a quorum. But if the two commissioners cannot agree upon a replacement within thirty days of the vacancy, "the county executive committee of the vacating county commissioner's political party shall select and name a person to fill the vacancy from the membership of the vacating county commissioner's political party."

Question Two: Must the new commissioner be selected from the district from which the previous commissioner was serving?

It is clear from the Constitution that elected county commissioners must be from different magisterial districts. The Constitution expressly states that "no two of said commissioners shall be elected from the same magisterial district." Const. art. IX, § 10 (emphasis added). It further sets forth a detailed procedure for resolving "any election" in which "two or more persons residing in the same district . . . receive[d] the greatest number of votes cast." Id.

The West Virginia Code similarly emphasizes in several provisions the residency requirement of elected county commissioners. West Virginia Code § 3-10-7 elaborates upon the above-described constitutional procedure for resolving an "election" in which two seats are open and the two candidates with the highest votes reside in the same magisterial district. West Virginia Code § 6-5-4 provides that a county commissioner "shall, during his continuance in office, reside in the county or district for which he was elected."

Most prominently, West Virginia Code § 7-1-1b was enacted four years ago to clarify the residency requirements for "candidate[s] for county commission" elections. The provision sets forth two bright-line tests for residency. A candidate for the office of county commissioner "shall be a resident from the magisterial district for which he or she is seeking election" either by the last day to file a certificate of announcement for the election or, in the circumstance where an individual must be appointed as a candidate for an election, at the time of that appointment. Id. § 7-1-1b(b) (emphasis added).

By contrast, however, there is no reference to residency in the statutory language that relates to the temporary filling of a vacancy on a county commission. As discussed above, West Virginia Code § 3-10-7 states only that "[a]ny vacancy . . . shall be filled by the county commission," provided that there is a quorum and that the remaining commissioners do not disagree. The provision expressly requires that "[p]ersons appointed shall be of the same political party as the officeholder vacating the office," but it makes no mention of any residency requirement. Id. Unlike the statutory and constitutional provisions relating to elected county commissioners, nothing in the discussion of appointed county commissioners says anything about the individual's district of residence.

Under longstanding principles of statutory construction, the conspicuous absence of any residency requirement for an appointed, rather than elected, county commissioner must be interpreted as an intentional omission. The law clearly requires that elected county commissioners must be from different magisterial districts. But a new commissioner appointed to fill a vacancy need not be selected from the same district as the commissioner being replaced.

First, the "familiar maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies." Martin v. Hamblet, 737 S.E.2d 80, 84 (W. Va. 2012). This is not a situation where the Legislature has simply neglected to set forth any requirements for the appointment of a county commissioner. To the contrary, the statute expressly sets forth one, and only one, qualification for an appointed commissioner: he must be from the same political party as the officeholder vacating the office. The Legislature's decision to identify this single requirement implies the exclusion of any other.

Second, the Supreme Court of Appeals has made clear that "[t]he Legislature is presumed to know existing laws relating to the same subject, and to understand the situation with which it undertakes to deal." Harbert v. Harrison Cnty. Court, 129 W. Va. 54, 75 (1946). It cannot be ignored that the residency requirement is discussed only in the context of elected county commissioners. The Legislature sought to provide separate requirements for election to an office than for appointment to fill a vacancy.

This reading of the statute is bolstered further by the constitutional and statutory provisions relating to school board membership, which are phrased more broadly. Whereas the Constitution provides that no two county commissioners "shall be elected from the same magisterial district," Const. art. IX, § 10 (emphasis added), it states more expansively with respect to district school boards that "[n]o more than two of the members of such board may be residents of the same magisterial district within any school district," Const. art. XII, § 6. Similarly, West Virginia Code § 3-5-6 provides that no more than two members of a county board of education "may be elected or serve from the same magisterial district." The phrase "or serve" is a significant addition that does not appear in any of the statutory or constitutional language relating to the residency of county commissioners.

Question Three: Must the new commissioner be from the same political party as the previous commissioner?

The plain terms of West Virginia Code § 3-10-7 require that a commissioner appointed to fill a vacancy be from the same political party as the commissioner he replaces. The statute twice makes the point. It expressly requires that "[p]ersons appointed shall be of the same political party as the officeholder vacating the office." W. Va. Code § 3-10-7. Furthermore, it provides that where the remaining commissioners cannot agree on a replacement within thirty days, "the county executive committee of the vacating county commissioner's political party shall select and name a person to fill the vacancy from the membership of the vacating county commissioner's political party." Id.

Sincerely,

Patrick Morrisey
Attorney General