Can a West Virginia county commission make its volunteer fire departments submit to a financial audit, and withhold their share of levy funds if they refuse?

Plain-English summary

Mineral County's Commission had been requiring volunteer fire departments to sign an MOU as a condition of receiving levy funds. The MOU committed VFDs to submit to an annual financial review by an independent accountant, with levy funds going into a designated account. The Commission later told VFDs that the review had to cover all fire-related accounts, not just the levy account. One VFD pushed back. The Commission asked the prosecuting attorney whether it had the legal authority for this requirement. He asked the AG.

The AG said no. County commissions are creatures of statute under State Line Sparkler (1992), with only the powers expressly conferred or necessarily implied. Section 7-1-3d gives commissions the power to levy for and provide aid to fire protection, but says nothing about audits. Where one provision spells out a power and a related provision is silent, State ex rel. Matthews v. Anderson (1944) treats the silence as deliberate. McCallister v. Nelson (1991) puts a thumb on the scale: any reasonable doubt about commission power must be resolved against the commission. A 1968 AG opinion (Russell C. Dunbar) had already reached the same conclusion: § 7-1-3d authorizes financial aid to VFDs but contains "no provision made for the audit of such funds."

Section 8-15-7a (effective July 2025) settles the issue from the other side. It puts the duty to audit VFD finances on the Legislative Auditor, mandatory at least once every five years and more often "if cause to believe" mismanagement exists. Under the inclusio unius canon (Gibson v. Northfield, 2005; Christopher J. v. Ames, 2019), the explicit assignment of audit power to the Legislative Auditor implies that no parallel audit power belongs to county commissions. The AG also pointed to § 7-17-17, which requires county fire boards (a different entity) to make quarterly and annual reports to the commission. No similar reporting requirement exists for VFDs. Under Riffle v. Ranson (1995), that omission is intentional.

The MOU does not save the Commission. County commissions lack general contracting authority and can only contract in modes the Legislature prescribes (Arthur, 1965). Section 7-17-14 (which lets a county fire board contract for services in connection with obtaining funds) does not extend to commissions. The Commission cannot create an audit power by drafting it into a contract. Likewise, withholding levy funds for non-compliance with an unenforceable condition is not a legitimate use of the levy authority.

The AG closed with two affirmative remedies. Section 8-15-7a lets a commission refer concerns to the Legislative Auditor, who can initiate an audit on cause. Section 6-9-11(a) gives the State Auditor power to make annual or special compliance examinations of "local government offices," and a VFD operating under a municipality's governing body would seem to fit that definition. The Commission can also engage in public calls for financial disclosure if it has concerns; transparency through political pressure is not foreclosed.

What this means for you

If you are a county commissioner

Stop using audit conditions and levy withholding as use over VFDs. The Mineral County practice was both procedurally improper (no statutory power) and substantively at risk: a VFD that sued for withheld levy funds would likely win, and the County could face refund or attorney's fee exposure.

Use the lawful tools. If you have specific concerns about a VFD's finances:

• Refer to the Legislative Auditor under § 8-15-7a. The threshold is "cause to believe" mismanagement is occurring, which is broad. Document specific concerns in a referral letter.
• Ask the State Auditor under § 6-9-11(a) to conduct a compliance examination.
• Make public requests for financial disclosure. Sunlight pressure is legitimate even when audit authority is not.

The MOU framework is salvageable on issues other than auditing. Conditions on how levy funds are spent, deposited, or reported in summary form (rather than audited) may be defensible if they are tied to a specific statutory grant. But "give us all your records or we cut your funding" is not.

If you are a county prosecutor advising a commission

This opinion is your direct answer for any future commissioner who asks whether they can audit a VFD. The 1968 AG opinion already said no; this 2025 opinion confirms it under the current statutory framework. If your commission already has signed MOUs, advise them to stop enforcing the audit clause and to release any withheld levy funds before a VFD sues.

If you are a volunteer fire department chief or treasurer

You are within your rights to refuse a county commission's audit demand, even if your department signed an MOU agreeing to it. The MOU exceeds the commission's statutory authority, and contracts cannot create powers that statute denies.

That said, do not refuse all transparency. If the commission has concerns, the proper channel is a Legislative Auditor referral, and a clean, well-documented financial record protects your department. Consider:

• Maintain a separate, clearly labeled levy-funds account so receipts and expenditures are easily traceable.
• File the annual report (if any) that your bylaws or insurance policies require, and offer a summary of levy expenditures voluntarily.
• Cooperate fully with any Legislative Auditor or State Auditor examination.

If you are a Legislative Auditor staff member

Expect more referrals from county commissions after this opinion, since it explicitly redirects them to your office. The "cause to believe" threshold is broad, but a commission referral with a paper trail of concerns is a reasonable starting basis. Build a triage process so referrals do not pile up while real audit work continues.

If you are at the State Auditor's Office

The AG opinion identifies your office as a parallel accountability route under § 6-9-11(a). If county commissions begin requesting compliance examinations of VFDs, your authority depends on whether the VFD is "subject to the governing body" of a municipality (§ 8-1-2(b)(1), § 8-1-4). VFDs vary in structure; some are clearly municipal, others are independent nonprofits. Internal guidance on which VFDs fit § 6-9-11(a) will help your office handle requests consistently.

If you are a state legislator

If you want county commissions to have audit authority over VFDs, the Legislature has to grant it. The current statutory architecture (audit authority to the Legislative Auditor, no audit authority to county commissions) is deliberate. A bill amending § 7-1-3d to authorize audits as a condition of levy disbursements, or amending § 8-15-7a to share audit authority with commissions, would close the gap.

Common questions

Q: Can a county commission really not audit a VFD that's getting levy funds?
A: Right. Section 7-1-3d gives commissions the levy-and-fund power, not an audit power. The AG read § 8-15-7a as putting audit authority on the Legislative Auditor exclusively, with the omission from § 7-1-3d treated as deliberate.

Q: What about an MOU the VFD already signed agreeing to audits?
A: The MOU cannot create authority the Legislature has withheld. Under Banker v. Banker (W. Va. 1996), it is "improper to arbitrarily read into statutes that which they do not say." A contract cannot supply what the statute lacks.

Q: Can a commission withhold levy funds if a VFD refuses?
A: No. Withholding levy disbursements is enforcement of a power the commission does not have. The Commission's power is to levy and disburse, not to use that disbursement as use for unrelated demands.

Q: How does a commission ensure VFDs spend money properly without audit power?
A: The AG points to two routes: refer concerns to the Legislative Auditor under § 8-15-7a, and ask the State Auditor for a compliance examination under § 6-9-11(a). Public requests for disclosure are also available.

Q: Is this rule different for county fire boards?
A: Yes. Under § 7-17-17, county fire boards (a separate entity) must make quarterly and annual reports to the commission. The AG cited the contrast as evidence that the Legislature knows how to require fire-related reporting when it wants to, and chose not to for VFDs.

Q: Does this apply to other audit-style demands by county commissions?
A: The reasoning generalizes. If you find a county commission making a demand for which no express statutory authority exists, McCallister v. Nelson (1991) requires you to read any reasonable doubt against the power. Counties cannot expand their authority by drafting MOUs or attaching conditions to disbursements.

Q: Are there constitutional concerns?
A: The AG did not reach constitutional issues, but withholding statutory entitlements as use for unrelated demands raises due-process and unconstitutional-conditions concerns in many contexts. A VFD that sued for withheld funds could plausibly add constitutional theories on top of the statutory-authority argument.

Background and statutory framework

West Virginia county commissions' authority is hemmed in by State ex rel. State Line Sparkler v. Teach (1992): they have only the powers "expressly conferred by the Constitution and legislature, together with such as are reasonably and necessarily implied." State ex rel. W. Va. Parkways Auth. v. Barr (2011) restates the implied-power test: implied authority must be "reasonably and necessarily implied in the full and proper exercise of" express power.

The fire-protection statutes form a clean structure. Section 7-1-3d(a)(1) lets commissions levy for fire stations; § 7-1-3d(b) lets them render financial aid to "any one or more public fire protection facilities" for fire-prevention purposes. Section 8-15-7a (effective July 2025) places VFD financial review with the Legislative Auditor, mandatory at least every five years and authorized more often on cause. Section 7-17-17 establishes a separate accountability mechanism for county fire boards (a different entity from VFDs).

The interpretive moves that drive the conclusion are familiar. Gibson v. Northfield Insurance (2005) and Christopher J. v. Ames (2019) apply the inclusio-unius/disparate-treatment canon: when the Legislature provides for X in one statute and is silent about it in another, the silence implies a deliberate exclusion. State ex rel. Matthews v. Anderson (1944) and State ex rel. Riffle v. Ranson (1995) extend the same logic to fact-specific authority disputes. State v. Elder (1968) requires that plain language be accepted without further interpretation. McCallister v. Nelson (1991) tilts ambiguity against the commission.

The contracting analysis runs through Arthur (1965) and Banker (1996). County commissions can only contract in the modes the Legislature prescribes (the Code lists specific contract-types in §§ 7-1-3a, -3cc, -3gg). Section 7-17-14, which permits county fire boards to contract for services in connection with obtaining funds, does not apply to county commissions. So an MOU dressing up an audit power as a contract term is not a valid exercise of contracting authority.

The remedies the AG points to round out the framework. Section 8-15-7a is the primary one: any commission with concerns can refer to the Legislative Auditor. Section 6-9-11(a) gives the State Auditor's office authority to make compliance examinations of "local government offices," which includes "any other authority, board, commission, district, office, public authority, public corporation or other instrumentality" of a county or municipality. VFDs operating under municipal governing bodies appear to fit. Public calls for disclosure remain available as a non-coercive accountability tool.

A 1968 AG opinion to Hon. Russell C. Dunbar reached the same conclusion under the predecessor statutory regime: no audit power flows from the levy-and-aid authority. The 2025 opinion expressly cites and follows that 1968 opinion.

Citations and references

Statutes:
- W. Va. Code § 7-1-3d (County levy for fire stations and aid)
- W. Va. Code § 8-15-7a (Legislative Auditor VFD reviews)
- W. Va. Code § 7-17-17 (County fire board reporting)
- W. Va. Code § 6-9-11 (State Auditor compliance examinations)

Cases:
- State ex rel. State Line Sparkler of WV, Ltd. v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992)
- State ex rel. W. Va. Parkways Auth. v. Barr, 228 W. Va. 27, 716 S.E.2d 689 (2011)
- State ex rel. Matthews v. Anderson, 127 W. Va. 147, 31 S.E.2d 779 (1944)
- State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968)
- McCallister v. Nelson, 186 W. Va. 131, 411 S.E.2d 456 (1991)
- Gibson v. Northfield Ins. Co., 219 W. Va. 40, 631 S.E.2d 598 (2005)
- Christopher J. v. Ames, 241 W. Va. 822, 828 S.E.2d 884 (2019)
- State ex rel. Riffle v. Ranson, 195 W. Va. 121, 464 S.E.2d 763 (1995)
- State ex rel. County Court v. Arthur, 150 W. Va. 293, 145 S.E.2d 34 (1965)
- Banker v. Banker, 196 W. Va. 535, 474 S.E.2d 465 (1996)

Related opinion:
- W. Va. Op. Att'y Gen., Letter to Hon. Russell C. Dunbar (April 3, 1968), 1968 WL 94102

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/37595/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
John B. McCuskey
Attorney General

Phone: (304) 558-2021
Fax: (304) 558-0140
September 4, 2025

The Honorable Charlie B. Johnson III
Mineral County Prosecuting Attorney
150 Armstrong Street
Keyser, W. Va. 26726
Dear Prosecutor Johnson:
You have asked for an Opinion of the Attorney General about the Mineral County
Commission's authority to require volunteer fire departments to submit to financial review as a
condition of receiving levy funds. This Opinion is being issued under West Virginia Code Section
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." When this Opinion
relies on facts, it depends solely on the factual assertions in your correspondence and discussions
with the Office of the Attorney General.

You explain that the Mineral County Commission requires local volunteer fire departments
to sign a Memorandum of Understanding as a condition to receive levy funds. That MOU says
the VFDs must allow an independent accountant to conduct annual financial reviews following
agreed-upon procedures. Under these procedures, the VFD must deposit levy funds into a
designated account. The MOU does not say where VFDs must deposit other funds disbursed by
the County Commission—such as State Fire Protection Funds. Each VFD signed this MOU, and
your letter suggests that the County Commission has withheld levy funds when a VFD has failed
to comply with the MOU.

You further explain that the County Commission recently informed the VFDs that all
fire-related accounts, not just levy accounts, must be included in the financial review. One VFD
has objected to this requirement. That VFD will allow the County Commission to review only its
levy account, which is also the account into which it deposited the State Fire Protection Funds. In
response, the County Commission requested this opinion.

With these facts in mind, your letter raises the following legal questions:
(1) Does the County Commission have legal authority to require a
financial review of volunteer fire departments' levy accounts and
other accounts receiving public funds?
(2) May the County Commission lawfully withhold levy disbursements
from departments that refuse to comply with the financial review
requirement?
(3) If such requirements are not legally permissible, what would be a
recommended, legally acceptable method to ensure proper
accountability of levy funds disbursed to independent volunteer fire
departments?

We conclude first that the County Commission may not require a financial review of either
levy accounts or other financial accounts. We also conclude that the County Commission may not
lawfully withhold levy disbursements. Finally, the County Commission may request that the
Legislative Auditor perform an audit of any VFD about which the County Commission has
concerns.

DISCUSSION

I. The County Commission Does Not Have Legal Authority To Require Financial
Review Of Any VFD Accounts or Withhold Disbursements.

To determine whether the County Commission has the power to audit VFDs' accounts, we
start with the basic principle that county commissions are "created by statute, and possessed only
of such powers as are expressly conferred by the Constitution and legislature, together with such
as are reasonably and necessarily implied in the full and proper exercise of the powers so … given."
Syl. pt. 1, State ex rel. State Line Sparkler of WV, Ltd. v. Teach, 187 W. Va. 271, 418 S.E.2d 585
(1992). So to require the financial reviews here, the County Commission must have either the
express or necessarily implied power to do so.

County commissions do not possess an express audit power over VFDs. Your letter does
not identify any statute "clearly and unmistakably" providing that authority "with directness and
clarity," and we also have not located any. Express, Black's Law Dictionary (12th ed. 2024).

We conclude the County Commission has no implied power to conduct such audits, either.
For implied audit authority to exist, such power must be "reasonably and necessarily implied in
the full and proper exercise of" a county commission's express power. Syl pt. 4, State ex rel. W.
Va. Parkways Auth. v. Barr, 228 W. Va. 27, 716 S.E.2d 689 (2011). Several statutes guide our
analysis.

Start with West Virginia Code Section 7-1-3d(a)(1), which provides that county
commissions may "[l]evy for and erect, maintain, and operate fire stations." The statute allows
county commissions to "render financial aid to any one or more public fire protection facilities in
operation in the county for the general benefit of the public in the prevention of fires." Id. § 7-1-3d(b). Thus, county commissions are authorized to levy for and provide funding to fire
departments, including VFDs.

Nothing about this language implies that the County Commission holds the power to
condition those funds on an audit. That silence is meaningful. See State ex rel. Matthews v.
Anderson, 127 W. Va. 147, 31 S.E.2d 779, 781 (1944) (finding that county court did not have
claimed authority over ballots where relevant statutes were "silent" as to the claimed authority).
And "[w]here the language of a statute is clear and without ambiguity the plain meaning is to be
accepted without resorting to the rules of interpretation." Syl. pt. 2, State v. Elder, 152 W. Va.
571, 165 S.E.2d 108 (1968). Even if some ambiguity could be found, that ambiguity must be
resolved against the County Commission. Syl. pt. 1, McCallister v. Nelson, 186 W. Va. 131, 411
S.E.2d 456 (1991) ("If any reasonable doubt exists as to whether" a county commission "has a
power, the power must be denied."). Indeed, for reasons like this, we determined in a prior opinion
that "Code 7-1-3d … authorizes financial aid to be rendered by a county court to any public fire
protection facility within the county (including [VFDs])" but has "no provision made for the audit
of such funds." W. Va. Op. Att'y Gen., Opinion Letter to the Honorable Russell C. Dunbar (April
3, 1968), 1968 WL 94102, at *3.

Next, West Virginia Code Section 8-15-7a specifically reserves (as of July 2025) "the
authority and the duty to make a regular review of the finances of each [VFD]" to the West Virginia
Legislative Auditor. The Legislative Auditor completes VFD audits "at least once every five
years." Id. The statute permits more frequent audits as well if the Legislative Auditor has cause to
believe they are necessary. Id. The audits would cover accounts with levy funds, too, as the statute
calls for review of "all income of the [VFD], regardless of the source of funds."

The "[e]xplicit direction for" the Legislative Auditor to have this power, and the "absence"
of such direction for county commissions "implies an intent to negate it in the second context."
Gibson v. Northfield Ins. Co., 219 W. Va. 40, 47, 631 S.E.2d 598, 605 (2005) (cleaned up). After
all, "it is generally presumed that the Legislature acts intentionally and purposely in the disparate
inclusion or exclusion" of language in related statutes. Christopher J. v. Ames, 241 W. Va. 822,
831, 828 S.E.2d 884, 893 (2019) (cleaned up). This distinction is especially significant given that
the Legislature chose to empower county commissions with audit power elsewhere, further
reinforcing the significance of the omission here. See, e.g., W. VA. CODE § 3-1-44 (providing that
election expenses "are to be audited by the county commission").

Finally, the Legislature speaks explicitly when it wants relevant entities to detail and report
fire-related expenses. For example, county commissions may contribute to the "county fire
board." W. VA. CODE § 7-17-17. The fire board must then deposit those funds "in such bank or
banks as the county fire board may direct" and "withdraw[] therefrom in such manner as the county
fire board may direct." Id. In that case, the county fire board "shall keep strict account of all its
receipts and expenditures and shall each quarter make a quarterly report to the county commission
and municipalities containing an itemized statement of its receipts and disbursements during the
preceding quarter." Id. County fire boards also must report on their finances annually. Id. No
similar statutory requirements apply to VFDs. Again, we must "assume the omission was
intentional." State ex rel. Riffle v. Ranson, 195 W. Va. 121, 128, 464 S.E.2d 763, 770 (1995).

Further, the County Commission cannot use the MOU to create a power that doesn't exist.
Remember county commissions "are limited in their authority." Barr, 228 W. Va. at 32, 716
S.E.2d at 694. And unlike the county fire board, county commissions lack general contracting
authority or the specific authority to contract for services "in connection with obtaining funds."
W. VA. CODE § 7-17-14. Indeed, the Legislature frequently specifies what kinds of contracts
county commissions may enter. See, e.g., W. VA. CODE §§ 7-1-3a (power to contract for
construction of streets and sewers), 7-1-3cc (power to contract with telephone companies), and 7-1-3gg (power to enter agreements to lease equipment and materials). A contract for VFD audits
isn't one. And because the power to contract is expressly granted on some subjects, county
commissions can only exercise that power "in the mode prescribed." Syl. pt. 1, State ex rel. County
Court v. Arthur, 150 W. Va. 293, 145 S.E.2d 34 (1965).

Put simply, it is improper to "arbitrarily … read into [statutes] that which [they] do[] not
say." Banker v. Banker, 196 W. Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996). And no statutory
or constitutional provision—expressly or otherwise—gives the County Commission the power to
require VFDs to submit to a financial review as a term of levy disbursement. So they cannot.

It follows, then, that the County Commission also cannot withhold levy disbursements for
VFDs who do not comply with that improper condition.

II. The County Commission Can Take Steps Going Forward To Ensure
Accountability.

Lastly, you have asked how the County Commission might—short of an audit—ensure that
VFDs are spending their funds appropriately.

The statute again provides the answer: if the County Commission suspects a VFD of
impropriety, the County Commission could contact the Legislative Auditor. See W. VA. CODE § 8-15-7a. While these audits occur no less than once every five years, the Legislative Auditor needs
only "cause to believe that loss, mismanagement, misuse, or waste" is occurring to initiate an audit.
Id. Though you do not suggest that any specific VFD is guilty of such abuses, this statutorily
prescribed audit process is the most direct route to accountability.

You may also seek assistance from the State Auditor's Office. The Legislature empowered
that office to "[m]ak[e] annual or special financial and compliance examinations or audits of local
government offices." W. VA. CODE § 6-9-11(a)(1). Local government offices include "any other
authority, board, commission, district, office, public authority, public corporation or other
instrumentality of a county … or municipality." Id. § 6-9-11(a). Because the volunteer fire
department is always subject to the "governing body" of a municipality, id. § 8-1-2(b)(1), § 8-1-4,
it would appear to constitute a "local government office" subject to the State Auditor's broader
powers.

We focus on these two legal avenues to ensure accountability, but the County Commission
might also find other ways to bring to light financial malfeasance, including public calls for
financial disclosure.

Sincerely,

John B. McCuskey
West Virginia Attorney General
Holly J. Wilson
Principal Deputy Solicitor General
Caleb A. Seckman
Assistant Solicitor General