Can a West Virginia county accept private donations to digitize property and mineral records and extend courthouse hours, and does it have to use competitive bidding for the digitization?

Official title

Opinion of the Attorney General's Office Regarding the Use of Private Funds to Increase the Availability of Property and Mineral Records

Plain-English summary

Marcellus Shale development was driving a surge in demand for property and mineral records at the Tyler County Clerk's office. The clerk's facilities were "grossly inadequate," and the county commission was looking at ideas like extended hours and digitization. Industry groups were willing to fund the work. The prosecutor asked three questions.

First, can the commission accept the private donation? Yes, with conditions. Under W. Va. Code § 6B-2-5(c), individual public officials and employees cannot accept gifts from interested parties (those doing or seeking to do business with the county or whose activities are regulated by it). Mineral-rights stakeholders donating money to a county clerk's office plainly fit that description, so no individual official could accept. But the West Virginia Ethics Commission has held that the gift restriction does not apply to a governmental agency taking a gift "as an entity" if the gift "inures to the benefit of the public generally or is in furtherance of the operation of the office" (Advisory Op. 90-175 supp.). A toaster or coffee pot for a county clerk's office, in the Ethics Commission's example, is allowed; so is a privately funded digitization project. The big constraint is solicitation: the gift restriction extends to soliciting, and the Ethics Commission reads that strictly. Better that the donation arrive unsolicited.

Second, can a private donor get exclusive access to the records in exchange for the donation? No. Tying access to a donation would be a clear quid pro quo violating § 6B-2-5(b). Even without a direct connection to a donation, granting exclusive private access to public records would itself be using public office for private gain. If the county extends courthouse hours after the regular workday, the public at large must have equal access during those extended hours.

Third, must the digitization work go through competitive bidding? Probably yes. W. Va. Code § 7-1-11(a) requires competitive bidding for any county purchase of "commodities and printing" over $15,000, and the statutory definition of "commodities" includes "contractual services." Even if the structure on paper has the donor contracting with a vendor and then donating the digitized records to the county, the county's hands-on involvement (selecting the vendor's standards, providing the records, ensuring software compatibility, supervising progress) makes it "a de facto contracting for service by the County." The estimated project cost was not in the record, but if it exceeded $15,000, competitive bidding applied.

The opinion explicitly noted it could not give a final answer without more facts about the specific contract terms, intermediate-party structure, and any local bidding rules.

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 can a county accept a gift but an individual official cannot?

A: W. Va. Code § 6B-2-5(c) was written to prevent personal corruption, not to forbid government from accepting useful donations. The line is between an individual official receiving something of value (which creates the personal incentive the Ethics Act targets) and the public entity itself receiving something that benefits the public generally. The Ethics Commission has repeatedly drawn that line. Public agencies can take entity-level gifts as long as the benefit flows to the public, not to any individual.

Q: Does the unsolicited-only requirement come from the statute or from the Ethics Commission?

A: From the statute, with Ethics Commission gloss. § 6B-2-5(c) prohibits public officials and employees from "solicit[ing] any gift unless the solicitation is for a charitable purpose with no resulting direct pecuniary benefit conferred upon the official or employee or his or her immediate family." The Ethics Commission has read that prohibition to extend to governmental agencies' solicitations for their own operational needs (Advisory Op. 2012-08), in part because of "the potential for a coercive solicitation."

Q: What kind of "exclusive access" would be a problem?

A: Anything that lets a private party use the records in a way the public cannot. Examples: a donor who gets first access to the digitized files before the public, who gets to download bulk copies the public cannot, who gets advance notice of new filings, or who can use the records during extended hours when others cannot. The opinion was strict: even without a direct quid pro quo, granting any private actor exclusive use of public records would itself be using public office for private gain.

Q: What if the donor's contractor digitizes records and donates the files to the county, with the donor itself never in the contractual chain with the county?

A: The opinion treated that structure as still likely to count as a "de facto contracting for service" by the county. The county is the one who provides the records, ensures software compatibility, supervises the process, and accepts the finished product. Form does not control over substance. If the work crosses the $15,000 threshold, competitive bidding probably applies.

Q: What is the threshold for competitive bidding?

A: $15,000 under § 7-1-11(a). Below that, the county may purchase in the open market. Above that, "a purchase of and contract for commodities and printing . . . shall be based on competitive bids, except in the case of emergency."

Q: Can the county extend courthouse hours specifically to serve a private industry?

A: It can extend hours generally, but the extended hours must be available to the public at large. The opinion was explicit: "if the Commission or County Clerk establishes longer office hours and/or makes records available after typical public hours, the County should allow the public at large to have equal access during the extended availability."

Q: This sounds like it was a Marcellus Shale issue. Is the answer different for other industries?

A: No. The legal framework applies to any private donation for public-records services. The Ethics Act and the bidding statute do not single out energy development. The factual setup happens to involve oil and gas because that is what was driving the demand surge in 2013 in this corner of West Virginia. The same analysis would apply to title companies, genealogy researchers, real estate brokers, or any other interested party.

Q: Was this the first opinion to address private-funded digitization in West Virginia?

A: Yes for the AG's office, on these facts. The opinion was followed up about a year later by another AG opinion (July 3, 2014, regarding Lewis County) confirming the framework and applying it to a similar arrangement.

Background and statutory framework

The Ethics Act framework. W. Va. Code § 6B-2-5(c) makes it unlawful for "[a] public official or public employee" to "knowingly accept any gift" from "an interested person." An "interested person" includes anyone "doing or seeking to do business of any kind with" or "engaged in activities which are regulated or controlled by" the public agency. The same subsection prohibits soliciting any gift, with a narrow exception for charitable solicitations producing no direct pecuniary benefit to the official.

The Ethics Commission's gloss. Advisory Op. 90-175 (supp.) interpreted § 6B-2-5(c) to cover individual public servants, not governmental entities, and approved a county clerk's office accepting a coffee pot or toaster from a law firm "if the acceptance of such gifts inures to the benefit of the public generally or is in furtherance of the operation of the office." Advisory Op. 2012-08 reads the solicitation prohibition strictly: "[a]s a general rule, the Commission is hesitant to approve a governmental agency's solicitation for its own operational needs." Advisory Op. 2005-02 narrows the charitable-purpose exception: "the overriding purpose of the solicitation must be to provide a benefit to the public as opposed to defraying the internal administrative costs of the [Agency]."

The exclusive-access ban. § 6B-2-5(b) prohibits a public official or employee from "knowingly and intentionally us[ing] his or her office . . . for his or her own private gain" or "another's." Granting exclusive access to public records, with or without a payment in exchange, fits squarely within "another's" private gain. Tying access to a donation makes it a clearer quid pro quo problem under the same provision.

The bidding rule. § 7-1-11(a) lets county commissions make purchases of commodities and printing of $15,000 or less in the open market, but anything above $15,000 "shall be based on competitive bids, except in the case of emergency." "Commodities" is defined in § 5A-1-1 to include "supplies, material, equipment, contractual services, and any other articles or things used by or furnished to a department, agency or institution of state government." Section 7-1-11(b) lets a county promulgate its own bidding procedure rules.

Application. The opinion approved unsolicited entity-level donations for digitization and extended hours, ruled out exclusive private access either as a quid pro quo or as a stand-alone violation of § 6B-2-5(b), and concluded that competitive bidding most likely applied to digitization contracts over $15,000 even when structured through an intermediary. The lawfulness of any specific arrangement, the AG noted, depended on facts not before the office.

Citations

• W. Va. Code § 5-3-2 (AG advisory authority)
• W. Va. Code § 6B-2-5(b), (c) (private gain prohibition; gift acceptance/solicitation)
• W. Va. Code § 7-1-11(a), (b) (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

Source

• Landing page: https://ago.wv.gov/media/18101/download?inline
• Original PDF: https://ago.wv.gov/media/18101/download?inline

Original opinion text

PATRICK MORRISEY
ATTORNEY GENERAL

July 11, 2013

The Honorable D. Luke Furbee
Prosecuting Attorney
Office of the Prosecuting Attorney of Tyler County, West Virginia
225 Main Street
P.O. Box 125
Middlebourne, WV 26149

Dear Prosecutor Furbee,

You have asked for an Opinion of the Attorney General pertaining to the use of private funds to increase the availability of property and mineral records in the Tyler 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 letter to the Attorney General's Office.

You state that the Tyler County Commission ("Commission"), County Clerk, and interested County officials have been meeting to try and address the logistical problems arising from the increased demand for property and mineral records in the Clerk's Office. According to your letter, Marcellus Shale drilling and production has led to greater desire for access to these public records, and the present facilities and accommodations at the County Courthouse are "grossly inadequate." You further explain that County officials have discussed several ideas "aimed at alleviating the problem and increasing the viability of the county's facilities," including the potential digitization of County records and extended Courthouse hours.

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

(1) Is it permissible for the Commission to accept funds from a private entity for the actual cost of providing extended hours of operation for the Courthouse and record room, or for the digitization of County records?
(2) Is it ever permissible for the Commission or County Clerk to grant a private individual or entity exclusive access to County records?
(3) Is it permissible for the Commission to contract with and furnish payment to a third party to digitize County records, without resorting to competitive bidding procedures?

Question One: Is it permissible for the Commission to accept funds from a private entity for the actual cost of providing extended hours of operation for the Courthouse and record room, or for the digitization of County records?

As a threshold matter, it is clear that the Commission may accept a monetary donation from private entities for the extended operation of the Courthouse and/or for the digitization of County records, so long as the donation is given to the Commission or County as a whole and not to any individual County official or employee. West Virginia Code § 6B-2-5(c) prohibits any County official or employee from accepting any monies or gifts from an interested person or entity to the County. See W. Va. Code § 6B-2-5(c). Based upon the facts you have presented, the private entities that would donate the funds would appear to constitute interested parties, as they are likely to be parties "doing or seeking to do business of any kind with" the County or parties "engaged in activities which are regulated or controlled by" the County. Id. § 6B-2-5(c)(1)(A)-(B). Accordingly, no individual County official or employee could accept the sort of private donation that your letter contemplates.

The prohibition on accepting money or gifts, however, extends only to individual public servants and not to the Commission or County as a whole. The West Virginia Ethics Commission ("Ethics Commission") has determined that "[a] governmental agency may accept gifts as an entity if the acceptance of such gifts inures to the benefit of the public generally or is in furtherance of the operation of the office." West Virginia Ethics Commission Advisory Opinion 90-175 (supplemental opinion), at 2 (A.O. 90-175 (supp.)). In A.O. 90-175 (supp.), the Ethics Commission determined that a county clerk's office could lawfully accept a coffee pot or toaster from an area law firm for use by all of the employees in the office. The Ethics Commission concluded that West Virginia Code § 6B-2-5(c) "pertains to individual public officials and public employees receiving gifts," and that "[t]here is no prohibition against a governmental entity accepting a gift." A.O. 90-175 (supp.), at 2.

One further restriction is that any monetary donation should probably not be solicited. West Virginia Code § 6B-2-5(c) also prohibits public officials or employees from "solicit[ing] any gift unless the solicitation is for a charitable purpose with no resulting direct pecuniary benefit conferred upon the official or employee or his or her immediate family." W. Va. Code § 6B-2-5(c). The Ethics Commission has interpreted that prohibition to generally extend to governmental agencies, see Ethics Commission Advisory Opinion 2012-08, at 3 ("As a general rule, the Commission is hesitant to approve a governmental agency's solicitation for its own operational needs."), and it has construed narrowly the exception for charitable solicitations, see Ethics Commission Advisory Opinion 2005-02 ("[T]he overriding purpose of the solicitation must be to provide a benefit to the public as opposed to defraying the internal administrative costs of the [Agency]."). In the view of the Ethics Commission, efforts by public agencies to seek outside monetary assistance "raise the potential for a coercive solicitation." A.O. 2012-08, at 4.

In sum, the Commission may accept an unsolicited monetary donation from a private entity to digitize records or extend office hours, if that donation is intended to benefit the Commission or County as a whole. According to the representations in your letter, it appears that the contemplated donations would benefit the County as a whole. And while not referenced in your letter, we understand that the proposed donation was not solicited by any public servant or entity.

Question Two: Is it ever permissible for the Commission or County Clerk to grant a private individual or entity exclusive access to County records?

Under the facts you have presented, neither the Commission nor the County Clerk may lawfully grant a private individual or entity exclusive access to County records. If the exclusive access were tied to the payment of a donation, the access would clearly constitute a prohibited quid pro quo. See W. Va. Code § 6B-2-5(b) (prohibiting "[a] public official or public employee [from] knowingly and intentionally use his or her office . . . for his or her own private gain"). But even if the exclusive access were not connected to a donation, the granting of that sort of special beneficial right to public resources would itself be (unless otherwise authorized by law) a violation of the Ethics Act. See id. (additionally prohibiting the use of public office or resources for the private gain "of another"). Thus, if the Commission or County Clerk establishes longer office hours and/or makes records available after typical public hours, the County should allow the public at large to have equal access during the extended availability.

Question Three: Is it permissible for the Commission to contract with and furnish payment to a third party to digitize County records, without resorting to competitive bidding procedures?

Applicable state law requires that the Commission use competitive bidding to enter into any contract that exceeds $15,000 for the purpose of digitizing County records. Specifically, West Virginia Code § 7-1-11(a) provides: "County commissions may make a purchase of commodities and printing of fifteen thousand dollars or less in amount in the open market, but a purchase of and contract for commodities and printing over fifteen thousand dollars shall be based on competitive bids, except in the case of emergency." W. Va. Code § 7-1-11(a). For purposes of the statute, "commodities" means "supplies, material, equipment, contractual services, and any other articles or things used by or furnished to a department, agency or institution of state government," and "printing" means "printing, binding, ruling, lithographing, engraving and other similar services." Id. § 5A-1-1; see also id. § 7-1-11(c). The statute also authorizes "[t]he county commission of any county . . . to promulgate rules governing the procedure of competitive bids[.]" Id. § 7-1-11(b).

The existence of an intermediate private party would likely not change this requirement. Your other questions suggest that the Commission may be contemplating an arrangement in which one private party contracts with another private party and then donates the completed digitization to the County. But this scenario could constitute a de facto contracting for service by the County, as the County still would be an integral part in the process directing the service and digitization. The County must provide the records to be digitized, make sure the selected digitization is compatible with existing software, and ensure timely completion of the project. This involvement is akin to a public contract.

Ultimately, the lawfulness of any contract will depend on facts that we do not have before us. Your letter does not provide the estimated cost of the contemplated project, discuss whether and how an intermediate private party would be involved, or explain whether the County has promulgated any competitive bidding rules that might apply. If and when additional facts become known, please feel free to contact our Office for a specific review of the proposed conduct.

Sincerely,

Patrick Morrisey
Attorney General

Martin J. Wright
Deputy Attorney General