Can a sitting member of the West Virginia Legislature also work for a West Virginia executive-branch agency, either as an employee or as a contractor?

Plain-English summary

State Auditor Mark Hunt asked whether a sitting West Virginia legislator can also work for a state executive agency, either as an employee or a contractor. The auditor's letter did not provide context, so the AG answered the employee question categorically and treated the contractor question as a series of risk flags.

Article VI, § 13 of the West Virginia Constitution is unambiguous: "No person holding ... employment under this state ... shall be eligible to a seat in the Legislature." A legislator who takes an executive-branch employee job is thus disqualified from the legislative seat under this language. State ex rel. Rist v. Underwood (1999) describes this as "a fundamental tenet of the separation of powers doctrine." A California precedent, Parker v. Riley (Cal. 1941), captures the policy concern: the constitutional rule protects against legislators taking positions that "create[] the opportunity for private aggrandizement, pecuniary in nature or otherwise."

Contractor service is a closer call. Several legal doctrines could trap a contractor relationship without obvious notice:

• De facto employment. If a contractor performs the functions and duties of a full-time employee, courts use the "functional equivalent" doctrine to treat the relationship as employment. Asia Pulp & Paper (S.D.N.Y. 2005) is the cited example. Under that approach, a contractor doing employee-style work would still trigger the § 13 bar.
• Lucrative office. Article VI, § 13 also prohibits legislators from holding "lucrative office." Even modest per-diem-type compensation can convert a position into a lucrative office (Dawkins v. Meyer, Tex. 1992). Article VI, § 15 reinforces this with a separate ban on legislators being "elected or appointed to any civil office of profit under this state, which has been created, or the emoluments of which have been increased during such term, except offices to be filled by election by the people."
• Common-law incompatibility. State ex rel. Thomas v. Wysong (W. Va. 1943) describes common-law doctrines that may preclude one person from holding two offices whose duties or interests conflict.
• Contract restrictions on legislators. Article VI, § 15 prohibits a legislator from being "interested, directly or indirectly, in any contract with the state, or any county thereof, authorized by any law passed during the term for which he shall have been elected." The Ethics Act at W. Va. Code § 6B-2-5(d) layers additional limits on legislator participation in public contracts.

The AG's bottom line: caution. Employment is foreclosed. The opinion does not resolve contractor service without details of the specific relationship and the applicable legal provisions. Without details, the office could not give a clean yes or no.

What this means for you

Sitting West Virginia legislators considering executive-branch work

The opinion concludes that a sitting legislator cannot serve as an employee of a West Virginia executive agency under W. Va. Const. art. VI, § 13. For contractor work, the opinion identifies four risk doctrines without resolving them in the abstract: (1) de facto employment under the "functional equivalent" doctrine (Asia Pulp & Paper, S.D.N.Y. 2005); (2) the "lucrative office" bar under art. VI, §§ 13 and 15 (Dawkins v. Meyer, Tex. 1992); (3) common-law incompatibility (State ex rel. Thomas v. Wysong, W. Va. 1943); and (4) the art. VI, § 15 prohibition against legislators being "interested, directly or indirectly, in any contract with the state, or any county thereof, authorized by any law passed during the term for which he shall have been elected." The Ethics Act at § 6B-2-5(d) adds a statutory layer.

Executive agencies considering hiring or contracting with a legislator

Under the opinion, art. VI, § 13 forecloses employment of a sitting legislator. For contractor relationships, the opinion identifies the de facto employment, lucrative office, common-law incompatibility, and art. VI, § 15 contract-interest doctrines, along with the Ethics Act provisions at § 6B-2-5(d), as the relevant framework.

State Auditor's Office

The opinion identifies the four-pronged framework (employee status under § 13, lucrative office under §§ 13 and 15, contract authorization under § 15, Ethics Act under § 6B-2-5(d)) as the controlling analysis for evaluating legislator-related expenditures and contracts.

State Ethics Commission staff

The opinion flags § 6B-2-5(d) of the Ethics Act as a layer beyond the constitutional provisions, but does not exhaustively analyze the statute. The opinion's analysis of legislator-contractor questions is fact-dependent.

Candidates for the Legislature currently working for an executive agency

Under the opinion, art. VI, § 13 disqualifies an executive-branch employee from "a seat in the Legislature." For contractor positions, the four-pronged framework identified by the opinion applies.

Attorneys advising a legislator

The opinion's framework rests on art. VI, §§ 13 and 15, § 6B-2-5(d), and the cited authorities (Rist, Parker v. Riley, Dawkins v. Meyer, Wysong, Asia Pulp & Paper). The opinion describes the contractor analysis as fact-dependent and declines to provide a categorical answer without specific facts.

Common questions

Q: Can I keep my state job if I'm elected to the Legislature? A: No. Article VI, § 13 disqualifies you from the legislative seat if you hold "employment under this state." The opinion does not discuss the timing or procedure for leaving a state job.

Q: What if I'm a contractor, not an employee?
A: It depends on the facts. A contractor with employee-like duties may be a de facto employee under Asia Pulp & Paper. A contractor receiving compensation may hold a "lucrative office" barred by § 13 and § 15. A contractor with a contract authorized during your term may be "interested" in that contract in violation of § 15. The AG could not give a categorical answer.

Q: What's the lucrative office doctrine?
A: Article VI, § 13 of the West Virginia Constitution bars legislators from holding "any office of trust or profit, lucrative office or appointment under this state." The Texas case Dawkins v. Meyer (1992) shows how even a per diem for meeting attendance can make a position "lucrative." Even modest compensation can be a problem.

Q: Does § 15 apply to all state contracts or only some? A: Section 15 applies to contracts "authorized by any law passed during the term for which" the legislator was elected. If the contract's funding or authorization comes from a law passed during your term, you cannot be "interested, directly or indirectly" in it.

Q: What's the Ethics Act layer at § 6B-2-5(d)?
A: Section 6B-2-5(d) of the Ethics Act adds restrictions on legislators participating in public contracts. The AG flagged the provision without analyzing it in detail. The opinion does not apply that provision to a specific contract.

Q: What's "incompatibility" doctrine?
A: Common-law incompatibility, recognized in State ex rel. Thomas v. Wysong (1943), bars one person from holding two offices whose duties or interests conflict. The AG raised the doctrine as a possible issue for a contractor, without applying it to a described role.

Q: Did the AG decide whether a legislator may also serve on a state board? A: No. The opinion cites a Texas decision about a paid board seat as an example of a "lucrative office" issue, but does not decide whether a particular West Virginia board position may be held by a legislator.

Q: Does this opinion decide whether unpaid work for an executive agency is allowed? A: No. The AG answered the employee question and identified possible restrictions on contractor roles. It did not analyze volunteer or unpaid work.

Background and statutory framework

West Virginia's separation-of-powers regime in the Constitution carries unusual force in dual-service questions. State ex rel. Rist v. Underwood (W. Va. 1999) treats art. VI, § 13 as a "fundamental tenet" of separation of powers. The provision is direct: no person holding employment under the state, or holding "any office of trust or profit, lucrative office or appointment under this state, civil or military," shall be eligible to a seat in the Legislature.

Article VI, § 15 layers on additional restrictions. It bars legislators from being "elected or appointed to any civil office of profit under this state, which has been created, or the emoluments of which have been increased during such term," with an exception for offices filled by popular election. It also bars legislators from being "interested, directly or indirectly, in any contract with the state, or any county thereof, authorized by any law passed during the term for which he shall have been elected."

The Ethics Act at W. Va. Code § 6B-2-5(d) reinforces the contract restrictions with a statutory layer that the Ethics Commission administers.

The contractor-versus-employee analysis runs on multiple tracks. The de facto employment doctrine (Asia Pulp & Paper, S.D.N.Y. 2005) treats a contractor with employee-style duties as an employee for legal-classification purposes. The lucrative office doctrine (Dawkins v. Meyer, Tex. 1992) treats positions with even modest compensation as offices of profit. Common-law incompatibility (State ex rel. Thomas v. Wysong, W. Va. 1943) bars dual service when duties conflict.

The AG's response captures the practical reality: there is no safe harbor for contractor service, only a series of doctrines that must be applied to specific facts. Parker v. Riley (Cal. 1941) describes the underlying policy concern: the constitutional structure aims to prevent legislators from creating opportunities for private aggrandizement through state positions.

Citations and references

Statutes and constitution:

• W. Va. Const. art. VI, § 13 (Employment, lucrative office, dual-service bar)
• W. Va. Const. art. VI, § 15 (Civil office of profit; legislator contract interest restriction)
• W. Va. Code § 5-3-1 (AG written opinions)
• W. Va. Code § 6B-2-5(d) (Ethics Act on legislator contracts)

Cases:

• State ex rel. Rist v. Underwood, 206 W. Va. 258, 524 S.E.2d 179 (1999)
• Parker v. Riley, 113 P.2d 873 (Cal. 1941)
• Exp.-Imp. Bank of the U.S. v. Asia Pulp & Paper Co., 232 F.R.D. 103 (S.D.N.Y. 2005)
• Dawkins v. Meyer, 825 S.W.2d 444 (Tex. 1992)
• State ex rel. Thomas v. Wysong, 125 W. Va. 369, 24 S.E.2d 463 (1943)

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/37646/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
State Capitol, Bldg. 1, Rm E-26
1900 Kanawha Blvd., E.
Charleston, WV 25305

John B. McCuskey
Attorney General

(304) 558-2021
Fax: (304) 558-0140
www.wvago.gov

October 27, 2025

The Honorable Mark A. Hunt
West Virginia Auditor
1900 Kanawha Blvd. East,
Building 1, Room W-100
Charleston, WV 25305

Dear Auditor Hunt:

You requested an Opinion of the Attorney General about whether a member of the West Virginia Legislature can serve as either a contractor or an employee of a West Virginia executive agency. We are issuing this opinion under West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advice upon questions of law ... whenever required to do so, in writing, by ... the Auditor."

Your letter asks us to identify "any prohibitions—statutory, constitutional, or otherwise—on a sitting member of the West Virginia Legislature also serving as either a contractor or an employee of an agency within the executive branch of our state government." The letter does not provide further explanation.

As to the "employee" aspect of your question, the answer is clear: a sitting member of the West Virginia Legislature cannot, under any circumstances, serve as "an employee of an agency within the executive branch of our state government." Article VI, Section 13 of the West Virginia Constitution is unequivocal: "No person holding ... employment under this state ... shall be eligible to a seat in the Legislature." Working as an employee would necessarily constitute "employment under this state." W. VA. CONST. art. VI, § 13.

"This [restriction] is a fundamental tenet of the separation of powers doctrine contained in our Constitution." State ex rel. Rist v. Underwood, 206 W. Va. 258, 262, 524 S.E.2d 179, 183 (1999). As one court explained in describing its state's similar constitutional provision, it is designed "to prevent the acceptance by a legislator of any position under the state, ... which creates the opportunity for private aggrandizement, pecuniary in nature or otherwise." Parker v. Riley, 113 P.2d 873, 875 (Cal. 1941).

But without more information, we are unable to offer an opinion as to whether a "contractor" role would offend any prohibition.

West Virginia state law might impose many restrictions on a "contractor's" ability to perform certain functions. For instance, we can conceive of a contractor role that would constitute de facto state employment, which could in turn violate Article VI, Section 13. Cf. Exp.-Imp. Bank of the U.S. v. Asia Pulp & Paper Co., 232 F.R.D. 103, 113 (S.D.N.Y. 2005) (describing the "functional equivalent" doctrine, under which, "by virtue of assuming the functions and duties of full-time employee, the contractor is a de facto employee of the company"). Similarly, we could imagine a contractor role that could violate Section 13's prohibition against legislators holding "lucrative office." W. VA. CONST. art. VI, § 13; see, e.g., Dawkins v. Meyer, 825 S.W.2d 444, 446-47 (Tex. 1992) (holding that a state board member who received a modest per diem for meeting attendance held a "lucrative office"); see also W. VA. CONST. art. VI, § 15 ("No senator or delegate, during the term for which he shall have been elected, shall be elected or appointed to any civil office of profit under this state, which has been created, or the emoluments of which have been increased during such term, except offices to be filled by election by the people."). Or we could envision situations that create "incompatibility" that, under the common law, could preclude a contractor from serving in the Legislature. See, e.g., State ex rel. Thomas v. Wysong, 125 W. Va. 369, 24 S.E.2d 463, 466 (1943) (describing such common-law doctrines).

Apart from these function-focused provisions, state statutory and constitutional law both impose restrictions on a legislator's ability to contract more generally. Article VI, Section 15 of the West Virginia Constitution is perhaps the most obvious restraint; it flatly declares that no member of the Legislature may "be interested, directly or indirectly, in any contract with the state, or any county thereof, authorized by any law passed during the term for which he shall have been elected." But that provision hardly stands alone. For example, the Ethics Act places certain restrictions on the ability of legislators to enter public contracts. See W. VA. CODE § 6B-2-5(d).

All the above suggests that a person should exercise caution before purporting to act as both a "contractor" of an executive agency and a sitting legislator. But without more details about the specific nature of the "contractor" relationship your letter contemplates, we are unable to confirm every legal provision that might apply and whether any such provision would prohibit concurrent service to both the Legislature and the agency.

Sincerely,

John B. McCuskey
Attorney General