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. Contractor service may be permissible only after a detailed analysis of the role, the funding source, the contract's authorization, and the legislator's connection to that authorization. Without details, the office could not give a clean yes or no.

What this means for you

If you are a sitting West Virginia legislator considering executive-branch work

Stop at the employee path. Article VI, § 13 disqualifies you from your seat the moment you accept "employment under this state." Resigning the seat first is the only way to take a state-employee role.

Contractor work is a fact-by-fact question. Before signing anything, gather and review:

• Will the role have full-time-equivalent duties, set hours, supervision, or other employee-like attributes? If yes, the de facto employment doctrine likely captures it.
• Is the contractor compensation more than reimbursement of expenses? Even a modest per diem or honorarium can trigger the "lucrative office" issue under § 13 and § 15.
• Was the contract authorized by any law passed during your current term? If yes, § 15 forbids you from being "interested, directly or indirectly" in it.
• Is there an Ethics Act issue under § 6B-2-5(d)? Get a Commission advisory opinion before signing.

A common-law incompatibility analysis under Wysong (1943) is also part of the picture. If the contractor work would put you in a position to be supervised by, contract with, or oversee an entity you also vote for in the Legislature, the conflict may be disqualifying.

If you are an executive agency that wants to hire or contract with a legislator

Document the legal analysis before the engagement. The agency's general counsel should evaluate § 13, § 15, § 6B-2-5(d), and common-law incompatibility. Treat contractor relationships with a presumption of risk, especially if the role has employee-like characteristics or the contract was authorized in the legislator's current term.

Consider whether an actual employee posting fits the work. If the work is full-time and supervised, that is an employee role and a sitting legislator is barred from filling it under § 13.

For non-employee contracts, route a written advisory opinion request to the Ethics Commission before issuing the contract. The Commission has authority over the Ethics Act provisions and can flag § 6B-2-5(d) concerns.

If you are the State Auditor's Office

This opinion sets up the framework. When evaluating legislator-related expenditures or contracts, run the four-prong checklist (employee status under § 13, lucrative office under § 13/§ 15, contract authorization under § 15, Ethics Act under § 6B-2-5(d)). For contracts that look like contractor relationships, apply the de facto employment test from Asia Pulp & Paper: if the role has full-time-equivalent duties, treat it as employment for analysis purposes.

If you are a state ethics commission staffer

Expect inquiries from legislators considering contractor roles. The AG's opinion specifically calls out the Ethics Act at § 6B-2-5(d) but did not exhaustively analyze it. Be prepared to issue advisory opinions that walk through the constitutional and statutory layers.

If you are a candidate for the Legislature currently working for an executive agency

Plan your transition. If you are an employee, you cannot retain employee status after taking your legislative seat (§ 13). If you are a contractor, evaluate the four-prong checklist before assuming you can keep the contractor role through your term.

If you are a private attorney advising a legislator

This opinion is your roadmap. The cited authorities (Rist, Parker v. Riley, Dawkins v. Meyer, Wysong, Asia Pulp & Paper) and the four constitutional and statutory provisions form the core analysis. The AG's caution is warranted: there is no safe harbor, only a series of risk-flagging doctrines that have to be applied to the specific role, compensation, and timing.

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." Resigning the state job before taking the seat is the standard path.

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 Ethics Commission can issue advisory opinions on its application.

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 classic example is a person trying to hold both a legislative seat and a position they are supposed to oversee or be overseen by from the legislative side.

Q: Can I serve on a legislatively created board if I am a legislator?
A: Maybe, if the board has been established for legislator membership and does not pay compensation that would make it a lucrative office. The analysis still requires care.

Q: Can I do unpaid volunteer work for an executive agency?
A: Volunteer work without compensation is more likely to be permissible because it does not implicate the lucrative-office prong. But the de facto employment analysis can still apply if the role has substantial duties and supervision.

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