Can the Governor of West Virginia (or his chief of staff) freeze discretionary salary increases at an independent Chapter 30 licensing board, like the Board of Dental Examiners, that is funded entirely from licensure fees and does not report to a cabinet secretary?

Plain-English summary

In April 2005, the West Virginia Governor's chief of staff issued a memo to all cabinet secretaries asking that no merit or other discretionary salary advancements be granted "until further notice." The "freeze memo" was distributed through the cabinet structure to department heads.

The Board of Dental Examiners, a Chapter 30 licensing board, did not receive the memo at the time, because the Board does not report to a cabinet secretary. But years later, a member of the Governor's staff and a contracted consultant from the Governor's office began telling the Board (and apparently other Chapter 30 boards) that the freeze applied to them. The Board's then-president asked the AG whether the Governor could effectively control the Board's exercise of its statutory authority to set compensation for its employees.

The AG's answer was a clear no. The reasoning ran through several layers of West Virginia law:

1. The Board has independent statutory authority. W. Va. Code § 30-4-5(2) gives the Board sole authority to "hire, fix the compensation of and discharge the employees necessary to enforce" the Dental Practice Act.

2. The Board has its own funding stream. Under W. Va. Code § 30-4-7(a), the Board's expenses (including staff compensation) are paid from a special revenue fund of licensure fees, not from general revenue. So the Board's salary decisions do not draw on the state's general fund.

3. The Board sits outside the Governor's executive structure. The 2005 reorganization of the executive branch under W. Va. Code § 5F-1-2 created eight cabinet departments and listed which agencies and boards report to each (W. Va. Code § 5F-2-1). No Chapter 30 boards were placed under any cabinet department.

4. Board members serve fixed terms removable only for cause. Under W. Va. Code §§ 30-4-4(b)(4) and (d), the Governor appoints members but can remove them only for "neglect of duty, incompetency or official misconduct." They do not serve at the Governor's pleasure like cabinet secretaries do.

5. The freeze memo is not even an Executive Order. A "freeze memo" signed by the Governor's chief of staff is not an Executive Order. The chief of staff is not a "public officer" under W. Va. Const. art. IV, § 8 (no statutory office with oath and bond). Even when the Governor has imposed similar fiscal restrictions in the past, he has done so by Executive Order (citing Ruby v. Insurance Commission and State ex rel. Board of Education v. Caperton). The chief-of-staff memo here lacks that formal status.

6. Even an Executive Order would not bind Chapter 30 boards. State ex rel. West Virginia Board of Education v. Miller (1969) holds that Executive Orders apply only to state agencies and personnel under the Governor's control. The Board of Education was not under the Governor's control there, and the Board of Dental Examiners is not under his control here either.

The AG concluded that denying the Board the ability to adjust its employees' salaries, when those adjustments would not cause an overdraft in the Board's special revenue account, would amount to a "usurpation of the Board's power by the Governor's office." The State Budget Office must process the salary-increase paperwork as a ministerial duty.

Currency note

This opinion was issued in 2008. 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 is a "Chapter 30 board" and why is it independent?
A: West Virginia's Chapter 30 contains the licensing statutes for dozens of professions (dentistry, medicine, nursing, engineering, accounting, etc.). The Legislature created each board with its own enabling statute, gave it administrative authority over its profession, and funded it from licensure fees rather than general revenue. The boards are deliberately structured to be independent of cabinet-level control because they perform a regulatory function that benefits from professional self-governance and protection from political interference.

Q: Can the Governor remove a Chapter 30 board member?
A: Only for cause specified in the board's enabling statute. For the Board of Dental Examiners, removal grounds are "neglect of duty, incompetency or official misconduct" (W. Va. Code § 30-4-4(d)). The AG explicitly noted that removing a board member for exercising statutory salary authority "would not be legally permissible."

Q: What if the freeze memo had been a formal Executive Order?
A: According to State ex rel. West Virginia Board of Education v. Miller, an Executive Order can be applied only to state agencies and personnel under the Governor's control. The opinion concludes that Chapter 30 boards are not under the Governor's control, so even a properly issued Executive Order would not bind them on this question.

Q: Why does it matter whether the freeze was an Executive Order or a chief-of-staff memo?
A: Procedurally, an Executive Order is a formal document issued by the Governor, not by a staff member. The Governor's chief of staff is not a constitutional officer with the authority to issue binding state directives on his own. So a chief-of-staff memo lacks the formal status of an Executive Order, which makes the freeze "of questionable authority and effect" even before the Chapter 30 independence question is reached.

Q: Could the State Budget Office still refuse to process the increases?
A: No. The AG framed the State Budget Office's role as "ministerial," meaning the office processes paperwork that conforms to a duly authorized board action. So long as the Board's increase fits within its appropriated special revenue account and does not cause a deficit, the Budget Office must process the paperwork.

Background and statutory framework

The West Virginia Board of Dental Examiners was created and is governed by the West Virginia Dental Practice Act, W. Va. Code §§ 30-4-1 et seq. Like all Chapter 30 boards, it is funded through fees collected under its enabling statute, deposited into a special revenue fund (W. Va. Code § 30-4-7(a)), and used exclusively to administer the Dental Practice Act. None of the Board's expenses, including staff compensation, can be charged against the general revenue fund.

The 2005 executive-branch reorganization under W. Va. Code § 5F-1-2 created eight cabinet departments (Administration, Education and the Arts, Environmental Protection, Health and Human Resources, Military Affairs and Public Safety, Revenue, Transportation, and Commerce) and required cabinet secretaries to serve at the Governor's pleasure (§ 5F-1-2(b)). Section 5F-2-1 listed the specific agencies and boards within each department. Chapter 30 boards were intentionally excluded.

The Governor's general executive power under W. Va. Const. art. VII, § 5 ("the chief executive power shall be vested in the governor, who shall take care that the laws be faithfully executed") is foundational but limited. As the AG noted, Executive Orders are the proper formal tool for the Governor's directives, and even those can only reach agencies under the Governor's control. The chain of cases (Ruby, Caperton, Miller) shows the historical pattern: when governors have wanted to impose fiscal restrictions on the executive branch, they have used Executive Orders, and those Orders have been challenged successfully when applied to bodies (like the State Board of Education) that the constitution and statutes do not put under gubernatorial control.

State ex rel. Key v. Bond (1923) supplied the older rule that the chief of staff is not a "public officer" under W. Va. Const. art. IV, § 8 (which sets out oath and bond requirements). The chief of staff is a Governor's employee, not an officer with independent legal authority. A chief-of-staff memo therefore does not carry the same legal weight as an Executive Order, and the AG flagged that gap as an additional reason the freeze was unenforceable here.

Citations and references

Constitutional provisions:
- W. Va. Const. art. VII, § 5 (Governor's chief executive power)
- W. Va. Const. art. IV, § 8 (oath and bond of public officers)

Statutes:
- W. Va. Code § 30-4-1 et seq. (West Virginia Dental Practice Act)
- W. Va. Code § 30-4-4(b)(4), (d) (gubernatorial appointment, removal for cause)
- W. Va. Code § 30-4-5(2) (Board's hiring, compensation, discharge authority)
- W. Va. Code § 30-4-7(a) (Board's special revenue fund)
- W. Va. Code § 5F-1-2 (executive branch departments)
- W. Va. Code § 5F-2-1 (specific agencies under each department)

Cases:
- State ex rel. West Virginia Board of Education v. Miller, 168 S.E.2d 820 (W. Va. 1969) (Executive Orders bind only agencies under Governor's control)
- Ruby v. Insurance Commission, 475 S.E.2d 27 (W. Va. 1996) (Executive Order imposing 10% spending reduction)
- State ex rel. Board of Education v. Caperton, 441 S.E.2d 373 (W. Va. 1994) (Executive Order with selective spending cuts)
- State ex rel. Key v. Bond, State Auditor, 118 S.E. 276 (W. Va. 1923) (definition of "public officer")

Source

• Landing page: https://ago.wv.gov/media/18166/download?inline
• Original PDF: https://ago.wv.gov/media/18166/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
Charleston 25305
Darrell V. McGraw, Jr., Attorney General
(304) 558-2021 / Fax (304) 558-0140

July 16, 2008

David G. Edwards, DDS, President
West Virginia Board of Dental Examiners
P.O. Box 1447
Crab Orchard, West Virginia 25827-1447

Re: Applicability of the Discretionary Salary Increase "Freeze" to the Board of Dental Examiners

Dear Dr. Edwards:

On April 8, 2008, your predecessor, Dr. James W. Vargo, DDS, requested an opinion of the Attorney General on the following legal issue:

The question arises as to whether or not the Governor's Office may effectively control the Board's exercise of its authority over its budget and the Board's authority to set the compensation of its employees. In other words, may the Governor's Office refuse to allow the Board to grant discretionary salary increases to its employees?

The genesis of this request was a statement made to the Executive Director of the West Virginia Board of Dental Examiners by a member of the Governor's staff, that any discretionary raises for the Board's staff would not be approved by the State Budget Office and thus could not be implemented. The staff member's statement was based on a memorandum of April 29, 2005, hereinafter referred to as "the freeze memo," signed by the individual designated as the Governor's chief of staff and addressed to cabinet secretaries.

For the reasons discussed herein, it is the opinion of this office that the Board is not bound by the "freeze" on discretionary salary increases.

The Board of Dental Examiners

The Board is created and governed by the West Virginia Dental Practice Act, West Virginia Code §§ 30-4-1 et seq. The Governor appoints the members of the Board, who thereafter may only be removed for "neglect of duty, incompetency or official misconduct." West Virginia Code §§ 30-4-4(b)(4) and -4-4(d). The Legislature has empowered the Board with the sole authority to "[h]ire, fix the compensation of and discharge the employees necessary to enforce the provisions of [the Act]." West Virginia Code § 30-4-5(2).

As is the case with most other boards created in Chapter 30 of the West Virginia Code, the Board operates solely from funds it collects through licensure fees. The fees and other monies (except for fines) collected by the Board are deposited in a special revenue fund, which is used by the Board to administer the Dental Practice Act. West Virginia Code § 30-4-7(a). None of the Board's expenses, including staff compensation, are permitted to be charged against the general revenue fund.

The "Freeze" on Discretionary Salary Increases for State Employees

On April 29, 2005, the Governor's chief of staff issued a memorandum directed to all cabinet secretaries, memorializing the Governor's request made in a previous cabinet meeting that the secretaries not grant merit or other discretionary salary advancements to state employees until further notice.

The "freeze memo" included a cover memorandum directing the cabinet secretaries to "duplicate and distribute the attached memorandum to all department heads in each agency within your department for their information." The Board did not receive a copy of the "freeze memo," since the Board does not report to a cabinet secretary or to any state agency within the executive branch. In fact, no board created in Chapter 30 of the West Virginia Code reports to a cabinet secretary or to an agency head within the executive branch of government.

Notwithstanding the autonomous structure of Chapter 30 boards, persons acting on behalf of the Governor's office have apparently construed the "freeze memo" as applying to such boards. For example, in 2007, Joe E. Smith, on behalf of the Governor's office, responded in writing to a Chapter 30 board's request to grant merit increases to certain members of its staff. In his letter, Mr. Smith asks whether this board is aware of the restrictions imposed by the "freeze memo" and concludes by directing the board to advise the Governor's office if it is the board's intention "to ignore the express wishes of [the Governor's office]." Mr. Smith has sent identical letters to other Chapter 30 boards that have requested discretionary salary increases for their employees.

The Scope of the Governor's Authority Over the Board

The general powers of the Governor derive from Article VII, Section 5 of the West Virginia Constitution, which provides that "[t]he chief executive power shall be vested in the governor, who shall take care that the laws be faithfully executed." Although the Governor appoints the members of the Board, the Board does not administratively report to the Governor or to any executive branch agency under the control of the Governor. Indeed, inasmuch as the West Virginia Code allows Board members to be removed only for specific cause, it is clear that members of the Board, unlike cabinet secretaries and agency heads, do not serve at the will and pleasure of the Governor.

In 2005, the Legislature created eight executive branch departments currently under the control of the Governor. Each department is headed by a secretary who is appointed by the Governor with the advice and consent of the Senate, and who serves at the will and pleasure of the Governor. Moreover, the Legislature listed the specific agencies and boards which have been placed under the control of the eight executive branch departments. The Legislature did not include any Chapter 30 boards within this structure; as a result, Chapter 30 boards do not report to an agency head, a cabinet secretary or the Governor. It follows, then, that the West Virginia Board of Dental Examiners, a Chapter 30 board, is not bound by an instruction issued by the Governor's chief of staff such as the April 2005 "freeze memo."

We note that in the past when the Governor has chosen to exercise his supervisory authority over subordinate government officials with regard to fiscal matters, he has done so by Executive Order. See, e.g., Ruby v. Insurance Commission, 475 S.E.2d 27 (W. Va. 1996) (per curiam) (Governor issued Executive Order imposing 10% reduction in spending authority); State ex rel. Board of Education v. Caperton, 441 S.E.2d 373 (W. Va. 1994) (Governor issued Executive Order imposing 1.5% cut in public education expenditures and 5% cut in all non-educational and non-arts expenditures); State ex rel. West Virginia Board of Education v. Miller, 168 S.E.2d 820 (W. Va. 1969) (Governor issued Executive Order mandating job freeze on all new positions unless the position and salary therefor were approved by the Governor). The "freeze memo" authored by the Governor's chief of staff on April 29, 2005, is not an official Executive Order.

Indeed, the Governor's chief of staff does not hold a position created by law which requires him to take an oath or execute a bond; therefore, he is not a "public officer" within the meaning of Section 8, Article 4 of the West Virginia Constitution, but rather is a mere employee. See State ex rel. Key v. Bond, State Auditor, 118 S.E. 276 (W. Va. 1923). Because the Governor's freeze policy was contained only in a memorandum authored and signed by an employee, without issuance of an Executive Order by the Governor, it is of questionable authority and effect. That is not to say, however, that the conclusion of this opinion would change if an Executive Order had been entered with regard to the Governor's freeze policy. Executive Orders may only be legally applied to those state agencies and personnel which are under the Governor's control. See State ex rel. West Virginia Board of Education v. Miller (Governor's job freeze Executive Order cannot be legally applied to State Board of Education because it does not answer to the Governor). As set forth earlier in this opinion, the West Virginia Board of Dental Examiners does not fall under the Governor's control.

Conclusion

In conclusion, it is the opinion of this Office that the West Virginia Board of Dental Examiners is not bound by the so-called freeze on discretionary salary increases for state employees. Neither the Governor, his chief of staff nor the State Budget Office have authority to fix the salaries of the Board's staff. That authority specifically rests, by statute, with the Board. Moreover, given that the statutory grounds for removal of Board members by the Governor require findings of neglect of duty, incompetency, or official misconduct, it would not be legally permissible for Board members to be removed from office for exercising their clear legal authority to give raises to deserving Board staff.

Denying the Board the ability to adjust the salaries of its employees, if such adjustment would not cause an overdraft or deficit in the Board's special revenue account appropriated by the Legislature, would constitute a usurpation of the Board's power by the Governor's office. Therefore, absent an overdraft or deficit, it is incumbent upon the State Budget Office to perform its ministerial duty to process the necessary paperwork to implement discretionary salary increases for Board staff.

If you have any questions regarding this matter, please do not hesitate to contact our office.

Very truly yours,

Darrell V. McGraw, Jr.
Attorney General

Kelli D. Talbott
Anthony D. Bates II