If a West Virginia State Election Commission member receives a daily per-diem allowance, can he or she also keep a job in the state classified service, or does the per diem turn the position into a 'paid public office' that bars classified employment?

Official title

Opinion of the Attorney General's Office Regarding Whether a Member of the West Virginia State Election Commission with Employment Status as a Classified State Employee Receiving a Per Diem Is Considered a Paid Public Office as Contravened by West Virginia Code

Plain-English summary

The Secretary of State asked the AG a personnel question: in 2010 the legislature amended W. Va. Code § 3-1A-1 to give State Election Commission (SEC) members a flat per-diem allowance (replacing the prior reimbursement-of-actual-expenses provision). One sitting commissioner was also a classified state employee. W. Va. Code § 29-6-20(e)(3) says no classified employee may "hold any paid public office." The question split into two parts.

First, was SEC membership a public "office" or just employment? The AG ran the five-factor Carson v. Wood / Fraley v. Civil Service Commission test. (1) Was the position created by law? Yes, by W. Va. Code § 3-1A-1 et seq. (2) Was it designated an office? Yes, § 3-1A-2 says no SEC member appointed by the governor shall hold "any public office other than that of membership on the commission" (emphasis on the word "office"). (3) Are qualifications prescribed? Yes, in § 3-1A-2. (4) Are duties, tenure, salary, bond, and oath prescribed? Yes for terms (§ 3-1A-3) and duties (§ 3-1A-5); per-diem rather than salary; no bond or oath specified. (5) Is the holder a representative of the sovereign? Yes, SEC members are appointed by the governor with senate consent, distribute educational materials in the SEC's name, and promulgate rules with statewide effect. SEC membership is a public office.

Second, was it now a paid public office? The amendment changed the compensation mechanism from actual expense reimbursement to a flat per-diem from § 4-2A-7 (the legislature's per-diem schedule). The State Auditor had begun treating the per-diem as taxable income, distributing W-4 and I-9 forms to commissioners. IRS rules treat a flat per-diem unaccompanied by a duty to substantiate or repay excess as compensation. The AG concluded the position was now a paid public office, even when an individual member declined to accept the allowance: "the legal definition of an office is determined by reference to the statute which establishes it, not to the actions of the individual who holds it."

The bottom line: as of June 11, 2010 (the effective date of the amendment), no classified state employee may sit on the SEC.

Currency note

This opinion was issued in 2010. 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's the difference between a "public office" and "employment" in West Virginia law?

A: Carson v. Wood (1970) and Fraley v. Civil Service Commission (1987) established a five-factor test: (1) created by law, (2) designated an office, (3) prescribed qualifications, (4) prescribed duties/tenure/salary/bond/oath, and (5) representation of the sovereign. The more boxes a position checks, the more likely it is an office. A pure employment relationship (someone hired at-will to do a defined job) usually fails most of the factors.

Q: Why does it matter whether SEC membership is an office?

A: Because § 29-6-20(e)(3) is the trigger. That provision bars classified state employees from holding "any paid public office." If SEC membership were just employment, the bar wouldn't apply. The "public office" classification is what activates the dual-service restriction.

Q: Why did changing actual expenses to a flat per-diem matter?

A: Actual-expense reimbursement is not compensation; it just makes the official whole for out-of-pocket costs. A flat per-diem regardless of actual expenses is functionally compensation (the IRS and the State Auditor treat it that way). So the substitution converted SEC membership from an unpaid public office (which a classified employee could hold) into a paid public office (which a classified employee cannot).

Q: Could a commissioner avoid the problem by refusing to accept the per-diem?

A: No. The AG was explicit: "the legal definition of an office is determined by reference to the statute which establishes it, not to the actions of the individual who holds it." If the statute makes the position paid, individual members cannot opt out by refusing the money. The classification of the office is fixed by statute, not by personal choice.

Q: Is this rule unique to election commissioners?

A: No. § 29-6-20(e)(3)'s prohibition extends to "any paid public office" held by any classified state employee. The same analysis would apply to any state board or commission whose membership is treated as a public office and whose members receive a flat per-diem allowance.

Q: Does this prevent classified employees from any government volunteer role?

A: No. Volunteer roles, advisory committee seats without statutory creation, and similar arrangements typically don't satisfy the Carson/Fraley factors. The bar is targeted: it covers paid public offices, not informal civic participation.

Q: What if a classified employee takes leave or resigns to serve?

A: That removes the conflict. The bar is on simultaneous holding. Resigning the classified position (or taking unpaid leave) frees the person to serve on the SEC. But the analysis only matters during overlap; if there is no overlap, the rule does not apply.

Q: Does the AG's opinion bind a court considering this question?

A: No. AG opinions are persuasive, not binding precedent. The actual force comes from § 29-6-20(e)(3) plus the Carson/Fraley test, which any court would apply for itself.

Background and statutory framework

The triggering statute. W. Va. Code § 29-6-20(e)(3) prohibits classified state employees from "hold[ing] any paid public office." The provision sits in a larger article on civil service neutrality, designed to prevent political patronage from bleeding into the classified service.

The Carson/Fraley test. State ex rel. Carson v. Wood (1970) and Fraley v. Civil Service Commission (1987) supplied a syllabus-point five-factor framework for distinguishing office from employment: (1) creation by law, (2) designation as an office, (3) prescribed qualifications, (4) prescribed duties, tenure, salary, bond, and oath, and (5) representation of the sovereign. Both opinions applied the test to identify the relevant position. Carson concluded that the Director of Office Services of the State Road Commission was not a political office; Fraley concluded that the County Coroner was a political office.

The SEC's statutory profile. W. Va. Code §§ 3-1A-1 et seq. created the State Election Commission. § 3-1A-1 sets up its membership (Secretary of State plus four governor-appointed members) and per-diem mechanism (originally actual-expense reimbursement; after the 2010 amendment, the legislature's per-diem schedule under § 4-2A-7). § 3-1A-2 sets qualifications and disqualifications. § 3-1A-3 sets terms. § 3-1A-5 confers powers (rule-making, voter education, manuals for election officials). § 3-1A-2 also bars members from holding "any public office other than that of membership on the commission," which the AG read as a designation of office.

The 2010 amendment. H.B. 4301, effective June 11, 2010, substituted a per-diem allowance under § 4-2A-7 for the prior actual-expense reimbursement. The opinion noted the "obvious drafting error" in the enrolled committee substitute (H.B. 4130) and clarified that the legislative intent was to replace the reimbursement mechanism with the per-diem mechanism.

The Auditor's response. The State Auditor distributed I-9, W-4, and WV/IT-104 forms to SEC members and began treating the per-diem as taxable income. The AG noted the Auditor's treatment was consistent with IRS Revenue Ruling 2006-56, which treats flat per-diem allowances as compensation when the recipient is not required to substantiate actual expenses or repay excess.

The dual-service ban. Combining the office classification with the per-diem-as-compensation conclusion, the AG concluded that SEC membership had become a paid public office. § 29-6-20(e)(3) accordingly barred any classified state employee from serving simultaneously.

Citations

• W. Va. Code § 29-6-20(e)(3); §§ 3-1A-1 to 3-1A-5; § 4-2A-7; § 61-12-14
• W. Va. Const. art. IV, § 5; art. IX, § 2
• State ex rel. Carson v. Wood, 154 W. Va. 397, 175 S.E.2d 482 (1970)
• Fraley v. Civil Service Comm'n, 177 W. Va. 729, 356 S.E.2d 483 (1987)
• Carr v. Lambert, 179 W. Va. 277, 367 S.E.2d 225 (1988)
• State v. Macri, 199 W. Va. 696, 487 S.E.2d 891 (1997)
• 35 W. Va. Op. Att'y Gen. 252 (1933)
• IRS Revenue Ruling 2006-56

Source

• Landing page: https://ago.wv.gov/media/18141/download?inline
• Original PDF: https://ago.wv.gov/media/18141/download?inline

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

State of West Virginia
Office of the Attorney General
Darrell V. McGraw, Jr., Attorney General
(304) 558-2021
Fax (304) 558-0140

August 2, 2010

The Honorable Natalie E. Tennant
West Virginia Secretary of State
Building 1, Suite 157-K
1900 Kanawha Blvd., East
Charleston, West Virginia 25305

Dear Secretary Tennant:

We have received your letter of July 26, 2010, requesting a formal opinion "regarding whether a member of the West Virginia State Election Commission with employment status as a classified state employee, receiving a per diem, is considered a 'paid public office' as contravened by West Virginia Code § 29-6-20(e)(3)." (Emphasis in original.)

RELEVANT STATUTORY PROVISIONS

§ 29-6-20. Favoritism or discrimination because of political or religious opinions, affiliations or race; political activities prohibited.

(e) Notwithstanding any other provision of this code, no employee in the classified service shall:

(3) ... hold any paid public office. ...

§ 3-1A-1. Election commission continued; composition; chairperson; per diem; traveling expense.

The "State Election Commission," heretofore created, is continued and is composed of the Secretary of State, and four persons appointed by the Governor, by and with the advice and consent of the Senate. The commission shall from this membership elect a chairman for a term of two years. Each member of the commission shall be reimbursed for all reasonable and necessary expenses actually paid the per diem and expense reimbursement established for the Legislature in section seven, article two-a, chapter four of this code in the performance of his or her duties as a member of the commission.

DISCUSSION

Your question presents two issues for resolution: first, whether membership on the West Virginia State Election Commission (hereinafter "SEC") is a public office as opposed to an employment; and, if so, whether it is a paid public office now that members receive a flat per diem allowance in lieu of reimbursement for actual expenses.

I.

In Syl. Pt. 5 of State ex rel. Carson v. Wood, 154 W. Va. 397, 175 S.E.2d 482 (1970), and then again in Syl. Pt. 5 of Fraley v. Civil Service Comm'n, 177 W. Va. 729, 356 S.E.2d 483 (1987), the Supreme Court of Appeals held that:

Among the criteria to be considered in determining whether a position is an office or a mere employment are whether the position was created by law; whether the position was designated an office; whether the qualifications of the appointee have been prescribed; whether the duties, tenure, salary, bond and oath have been prescribed or required; and whether the one occupying the position has been constituted a representative of the sovereign.

In Carson, application of the test led the Court to conclude that the position in question, Director of Office Services of the State Road Commission, was not a political office, as "there did not exist by law any such office . . . ." Carson, 154 W. Va. at 412, 175 S.E.2d at 497.

In Fraley, application of the test led the Court to conclude that the position in question, County Coroner, was a political office, the Court noting that the office is specifically created both by Constitution, W. Va. Const., art. IX, § 2, and by statute, W. Va. Code § 61-12-14.

Turning to the position at issue here, member of the West Virginia State Election Commission, we employ the Carson/Fraley test to determine whether the position is an office.

1. Whether the position was created by law. The SEC was created by the Legislature in West Virginia Code § 3-1A-1 et seq., and the qualifications, terms, powers and duties of the SEC's members are specifically set out in the statutes.

2. Whether the position was designated an office. West Virginia Code § 3-1A-2 provides, inter alia, that "[n]o member of the commission appointed by the governor shall be a candidate for or hold any public office other than that of membership on the commission . . . ." (Emphasis supplied.) This language indicates clearly that membership on the SEC is an office.

3. Whether qualifications for the position are prescribed. West Virginia Code § 3-1A-2 prescribes both qualifications for SEC membership and disqualifying factors.

4. Whether the duties, tenure, salary, bond and oath for the position have been prescribed or required. West Virginia Code §§ 3-1A-3 & 5, respectively, prescribe the terms of office for SEC members and their powers and duties. The position is not salaried; prior to amendment West Virginia Code § 3-1A-1 permitted reimbursement for actual expenses, and it now permits payment of a flat per diem amount. The statute contains no mention of either a bond or an oath.

5. Whether the individual occupying the position has been constituted a representative of the sovereign. Pursuant to West Virginia Code § 3-1A-1, members of the SEC are appointed by the Governor, by and with the advice and consent of the Senate. Further, pursuant to West Virginia Code § 3-1A-5(c), the SEC is empowered to distribute nonpartisan educational materials in its name, "to inform voters of election laws and procedures, and to inform voters of the effect of any public question, constitutional amendment or bond issue that is to be voted upon by all the voters of the state . . .," and to distribute manuals "to assist county commissions, ballot commissioners, circuit and county clerks and other election officials in the proper performance of their duties in the conduct of elections." Finally, pursuant to West Virginia Code § 3-1A-5(d), the SEC is empowered to promulgate legislative rules both "to standardize and make effective the administration of the provisions of article eight of this chapter . . .," and also "relating to the conduct and administration of elections as the commission may determine to be advisable." In light of these statutory provisions, it is clear that all members of the West Virginia State Election Commission are representatives of the sovereign.

After consideration of the factors set out in Carson and Fraley, as set forth above, we conclude that membership on the West Virginia State Election Commission is a public office rather than an employment.

II.

The second question for resolution is whether membership on the SEC is a paid public office, now that West Virginia Code § 3-1A-1 has been amended to provide a flat per diem allowance for members rather than reimbursement of actual expenses incurred.

Following passage of H.B. 4301, which amended West Virginia Code § 3-1A-1, the Auditor distributed the following forms to be filled out by the SEC's members:

Form I-9, Employment Eligibility Verification;
Form W-4 (2010), Employee's Withholding Allowance Certificate; and
Form WV/IT-104, Employee's Withholding Exemption Certificate.

In short, the Auditor's action indicates that the per diem allowance to SEC members will be treated (and reported) as income to the members. In this regard, the Auditor's action appears to be consistent with IRS rules governing the payment of set per diem allowance in situations where the recipient is not required to substantiate the amount of his or her actual expenses and/or to repay any excess. See generally Revenue Ruling 2006-56.

We therefore conclude that pursuant to West Virginia Code § 3-1A-1, as amended, a member of the West Virginia State Election Commission holds a paid public office. We further conclude that this is the case whether or not an individual member accepts the statutory per diem allowance; the legal definition of an office is determined by reference to the statute which establishes it, not to the actions of the individual who holds it.

CONCLUSION

As of June 11, 2010, the effective date of the amendment to West Virginia Code § 3-1A-1, membership on the West Virginia State Election Commission (SEC) is a paid public office. Therefore, an employee in the classified service cannot be a member of the SEC, as West Virginia Code § 29-6-20(e)(3) prohibits said employee from holding a paid public office.

DARRELL V. McGRAW, JR.
ATTORNEY GENERAL

BARBARA H. ALLEN
MANAGING DEPUTY ATTORNEY GENERAL