WV 2013-18106 July 12, 2013

Does a West Virginia county commission have to provide ambulance service, and how can it pay for it?

Short answer: Yes, but with a money-availability caveat. The AG concluded that W. Va. Code § 7-15-4 requires county commissions to make emergency ambulance service available where it is not otherwise available, but only after an affirmative determination that funds are available, and only at a level commensurate with funds actually appropriated. Counties can fund ambulance service through the special emergency ambulance fee under § 7-15-17, through general current-expense levies under § 11-8-6b, or both. The Supreme Court of Appeals has reserved judgment on whether the special fee is a tax or fee.

Disclaimer: This is an official West Virginia Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed West Virginia attorney for advice on your specific situation.

Official title

Opinion of the Attorney General's Office Regarding a County Commission's Duty to Provide Emergency Ambulance Services Within the County

Plain-English summary

The Hardy County prosecutor asked two questions about the county commission's responsibility for ambulance service. The AG worked through them.

The duty exists. § 7-15-4 says county commissions "shall cause emergency ambulance service to be made available to all the residents of the county where such service is not otherwise available." § 7-15-2 sets out the legislature's underlying findings: ambulance service is a "public purpose and a responsibility of government," and adequate service "is not likely to become available to all the citizens and residents of this state unless specific requirements therefor are provided by law."

The duty is conditional. The statute imposes two limits. First, the duty kicks in only after the commission makes "an affirmative determination" that funds are available, indicated by including "a projected expenditure for such [emergency ambulance services] in the current levy estimate." Second, even with funds projected, the duty is capped: the commission "shall not be under a duty to cause such service to be provided beyond a level commensurate with the amount of funds actually available for such purpose." So the duty has a budget gate.

Funding sources. State law gives commissions two main ways to pay.

The special emergency ambulance fee under § 7-15-17. The county commission may impose by ordinance a fee on residents to fund ambulance services. The funds must go into a special fund used only for "reasonable and necessary expenses actually incurred and the cost of buildings and equipment used in providing emergency ambulance services to the residents of the county." Clay County Citizens for Fair Taxation v. Clay County Commission upheld this provision against constitutional challenge.

The general county levy under § 11-8-6b. County commissions can lay levies for "general county current expenses." A 1982 AG opinion (59 W. Va. Op. Att'y Gen. 161) treated emergency ambulance services as a proper subject of general county expense, and the AG saw no reason to revisit that.

A footnote: the Supreme Court of Appeals has reserved judgment on whether the special § 7-15-17 charge is constitutionally a "tax" or a "fee" (City of Huntington v. Bacon). The label may matter for some purposes (rules on uniformity, voter approval) but the AG opinion did not need to settle the issue to answer the funding question.

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: What does it mean to say the duty is "conditional"?

A: The county commission isn't legally compelled to provide ambulance service unless and until it has projected funds in its levy estimate. If the commission affirmatively decides funds are not available and does not project an expenditure, the statutory duty to provide does not arise. Once the commission does project funds, the level of service is then bounded by what is actually appropriated. The legislature wrote this as a way to recognize the state's fiscal reality without dictating service levels.

Q: Why is the funding question split between a fee and a levy?

A: Different mechanisms for different policy choices. The special fee under § 7-15-17 applies only to ambulance service and only to residents in counties whose commission adopts an ordinance. It is a focused funding stream. A general current-expense levy under § 11-8-6b is broader, drawing from the county's overall property-tax base for any current expense the legislature has identified as a proper county purpose. A county can use one, the other, or both.

Q: Why does the tax/fee classification matter?

A: A "tax" is generally subject to constitutional uniformity rules, voter approval requirements (in some categories), and the strict-construction rule for taxing power. A "fee" is regulatory or service-based, charged to users or beneficiaries, and analyzed under different doctrines. Clay County Citizens upheld the § 7-15-17 charge but did not definitively classify it. City of Huntington v. Bacon expressly reserved judgment on which it is. Practical question: the special charge applies to all owners or occupants in the county, not just users, which makes it look more tax-like, but the legislature has called it a "fee."

Q: What if a private ambulance company already serves the county?

A: § 7-15-4 says the commission's duty applies "where such service is not otherwise available." If a private operator covers the county adequately, the statutory duty doesn't kick in. The commission can still choose to supplement, but the statutory mandate runs to gaps in coverage.

Q: Does the commission have flexibility on service level?

A: Yes, within the budget cap. The duty is "to cause emergency ambulance service to be made available," and at a "level commensurate" with available funds. The commission can decide whether to operate a county-run service, contract with a private operator, support a volunteer squad, or set up an authority. § 7-15-4 explicitly enumerates these options. The level of staffing, response times, and coverage is a function of funding plus operational choices.

Q: Can the special fee be challenged constitutionally?

A: It has been, and survived. Clay County Citizens for Fair Taxation v. Clay County Commission upheld a $25 annual fee. Future challenges remain possible (especially on the tax/fee classification), but the basic constitutional foundation is in place.

Q: Who actually collects the fee?

A: A November 2013 AG opinion (regarding the same Hardy County prosecutor's office) addressed this and concluded that the county commission, not the ambulance authority, has the statutory power to collect the special § 7-15-17 fee. The authority "receive[s]" the funds but does not collect them.

Q: Can the county levy other taxes specifically for ambulance service?

A: § 11-8-6b authorizes general current-expense levies, and emergency ambulance service has been treated as a proper county expense. Beyond the § 7-15-17 special fee, this general levy authority is the main mechanism. The legislature has not created additional special-purpose ambulance taxing authority.

Background and statutory framework

The Emergency Ambulance Service Act of 1975 (codified in Article 15 of Chapter 7) is the framework. § 7-15-2 declares the legislative findings: a "significant part of the population" lacks adequate ambulance service; statewide adequate service "is necessary to promote the health and welfare"; "specific requirements" by law are needed to make it happen; and providing ambulance services is "a public purpose and a responsibility of government."

§ 7-15-4 imposes the duty: "[The county commission] shall cause emergency ambulance service to be made available to all the residents of the county where such service is not otherwise available." It then enumerates options ("directly through its agents, servants and employees; or through private enterprise; or by its designees; or by contracting with individuals, groups, associations, corporations or otherwise; or it may cause such services to be provided by an authority").

The duty is conditioned: it kicks in only after "an affirmative determination" of funds availability, made by including "a projected expenditure for such [emergency ambulance services] in the current levy estimate." Even then, the duty is capped at the "level commensurate with the amount of funds actually available."

Funding mechanisms.

§ 7-15-17 lets the county commission impose by ordinance a "special emergency ambulance service fee" on residents. The funds go into a special fund, used only for "reasonable and necessary expenses actually incurred and the cost of buildings and equipment." Clay County Citizens upheld this on constitutional challenge.

§ 11-8-6b lets county commissions lay levies for "general county current expenses." A 1982 AG opinion read this to include emergency ambulance service expenditures, and the 2013 opinion did not revisit the conclusion.

City of Huntington v. Bacon (1996) reserved judgment on whether the special charge under § 7-15-17 is constitutionally a tax or a fee.

Application. Hardy County's commission had a duty to provide ambulance service if it determined funds were available, capped by what was actually appropriated. It had two main funding mechanisms (the special fee and the general levy) and could use either or both. Whether to use them and at what level was discretion the legislature left to the commission.

Citations

W. Va. Code § 5-3-2 (AG advisory authority)
W. Va. Code § 7-15-2, § 7-15-4, § 7-15-17
W. Va. Code § 11-8-6b
Clay Cnty. Citizens for Fair Taxation v. Clay Cnty. Comm'n, 192 W. Va. 408, 452 S.E.2d 724 (1994)
City of Huntington v. Bacon, 196 W. Va. 457, 473 S.E.2d 743 (1996)
59 W. Va. Op. Att'y Gen. 161 (1982)

Source

Landing page: https://ago.wv.gov/media/18106/download?inline
Original PDF: https://ago.wv.gov/media/18106/download?inline

Original opinion text

PATRICK MORRISEY
ATTORNEY GENERAL

July 12, 2013

The Honorable Lucas J. See
Prosecuting Attorney
Hardy County Prosecuting Attorney's Office
204 Washington St., Room 104
Moorefield, WV 26836

Dear Prosecutor See,

You have asked for an Opinion of the Attorney General regarding a county commission's duty under West Virginia Code § 7-15-4 to provide emergency ambulance services within the County. 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." In your July 1, 2013 letter to the Office of the Attorney General, you state that the Opinion affects "immediate concerns" in Hardy County, but provide no other factual context.

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

(1) Is a county commission required by law to provide ambulance service within its county?
(2) To what extent may the burden of operational funding for ambulance service be applied to the citizens of that county?

Question One: Is a county commission required by law to provide ambulance service within its county?

West Virginia Code § 7-15-4 expressly requires a county commission to provide emergency ambulance services within its respective county. Article 15 of Chapter 7 of the West Virginia Code codifies the Emergency Ambulance Service Act of 1975. That Act recognized that: (1) "a significant part of the population of this state does not have adequate emergency ambulance service"; (2) "the establishment and maintenance of adequate emergency ambulance systems for the entire state is necessary to promote the health and welfare of the citizens and residents of this state"; (3) "emergency ambulance service is not likely to become available to all the citizens and residents of this state unless specific requirements therefor are provided by law"; and (4) providing emergency ambulance services is "a public purpose and a responsibility of government." W. Va. Code § 7-15-2. Accordingly, county commissions are tasked with "caus[ing] emergency ambulance service to be made available to all the residents of the county where such service is not otherwise available[.]" Id. § 7-15-4.

The duty of county commissions to make emergency ambulance services available, however, is subject to two limits. First, the county commission has no duty to provide emergency ambulance services unless it makes "an affirmative determination" that funds are available for the service. Id. A county commission shall make such a determination by including "a projected expenditure for such [emergency ambulance services] in the current levy estimate." Id. Second, even when a county commission has projected the availability of funds for emergency ambulance services, the county commission "shall not be under a duty to cause such service to be provided beyond a level commensurate with the amount of funds actually available for such purpose." Id. (emphasis added).

Question Two: To what extent may the burden of operational funding for ambulance service be applied to the citizens of a county?

State law clearly grants county commissions the authority to collect money from residents to pay for emergency ambulance services. West Virginia Code § 7-15-17 authorizes county commissions to impose "by ordinance" a "special emergency ambulance service fee" on their residents to pay for ambulance services. Id. § 7-15-17. These funds must "be deposited in a special fund and used only to pay reasonable and necessary expenses actually incurred and the cost of buildings and equipment used in providing emergency ambulance services to the residents of the county." Id.; see also Clay Cnty. Citizens for Fair Taxation v. Clay Cnty. Comm'n, 192 W. Va. 408, 452 S.E.2d 724 (1994) (rejecting a constitutional challenge to W. Va. Code § 7-15-17). Moreover, West Virginia Code § 11-8-6b authorizes county commissions to lay levies for "general county current expenses," W. Va. Code § 11-8-6b, and this Office has previously concluded that "[e]xpenditures for emergency ambulance service are made a proper item of county expense by Code 7-15-4," 59 W. Va. Op. Att'y Gen. 161 (1982). We have no reason to revisit that conclusion today, though we note that the Supreme Court of Appeals has reserved judgment as to whether the special emergency ambulance service fee constitutes "a tax or fee." City of Huntington v. Bacon, 196 W. Va. 457, 468 n.10, 473 S.E.2d 743, 754 n.10 (1996).

Sincerely,

Patrick Morrisey
Attorney General

Christopher S. Dodrill
Assistant Attorney General