What can a West Virginia county commission lawfully fund: agricultural scholarships, scholarships for firefighters and EMS personnel, and gift cards as survey-participation incentives?

Plain-English summary

The Hampshire County Commission was looking at three program ideas at the same time:

1. A "legacy farm" agricultural scholarship, paid through a community foundation, to help local students study agriculture and (the commission hoped) keep family farms in operation.
2. A scholarship for volunteer and employed firefighters and EMS personnel, conditioned on continued service.
3. Modest-value gift cards as incentives to get residents to participate in county surveys.

The county prosecutor asked the AG whether all three are within county authority. Each one came back with a different answer, and the analysis is a quick tour of how West Virginia limits county-commission spending.

Agricultural scholarship: no. County commissions only have powers the legislature has expressly given them, plus what is "reasonably and necessarily implied" from those powers (State Line Sparkler v. Teach). The Constitution puts agriculture under the Commissioner of Agriculture, not counties (W. Va. Const. art. VII; W. Va. Code § 19-1-4(a)). The legislature explicitly created scholarships for many fields (Hope Scholarship, Promise Scholarship, STEM, Underwood-Smith, etc.) and assigned each one to a specific administering body. Notably absent: any agricultural scholarship under county authority. The legislature's silence on county agricultural scholarships should be read as intentional. A laudable public purpose isn't enough to fill the gap; counties may "do only such things as are authorized by law" (T. Weston, Inc. v. Mineral County).

Volunteer firefighter and EMS scholarship: yes, with guardrails. West Virginia law expressly authorizes counties to train volunteer firefighters (W. Va. Code § 7-1-3aa) and EMS personnel (W. Va. Code §§ 7-15-4, 16-4C-24(b)), and to render financial aid to fire-protection facilities (§ 7-1-3d(b)). Training-focused scholarships fit those grants. Conditioning the scholarship on continued service is fine, and West Virginia precedent (Sims, STEM Scholarship statute, volunteer firefighter tax credits) shows the legislature uses similar conditions routinely. The opinion adds one important condition: if the funds are routed through a community foundation, the county must have audit controls in place so it can verify the money is being spent for the public purpose.

Same scholarship for current employed firefighters and EMS: no. This is where the Constitution's extra-compensation clause comes in (art. VI, § 38). Once an employee has been hired at an agreed-upon salary, the county cannot tack on additional compensation for work she has already agreed to do. Limited exceptions exist (pre-bargained increases, separate consideration, additional duties beyond the scope of the original job), but the AG concluded that the only constitutionally-permissible scholarships for current employees are those that take the employee outside her existing duties, and the legislature has not authorized counties to fund that kind of scholarship. So there is a statutory gap: what is constitutional isn't statutorily authorized, and what is statutorily authorized isn't constitutional.

Gift cards for survey participation: maybe. Modest-value gift cards in exchange for survey participation aren't gifts in the legal sense (the survey response is the consideration), so they don't violate the prohibition on gifts of public funds. But the AG cannot bless them in the abstract. The legality depends on what the underlying public purpose is and which statutory authorization the county is operating under. Without specifics, the opinion offers a maybe.

What this means for you

County commissions

The opinion holds that a county commission lacks statutory authority to fund an agricultural scholarship, including through a community foundation. The AG reaches this conclusion from State Line Sparkler v. Teach (commissions have only powers expressly conferred or reasonably implied), the constitutional placement of agriculture under the Commissioner of Agriculture (W. Va. Const. art. VII; W. Va. Code § 19-1-4(a)), and the Legislature's pattern of explicitly assigning each named scholarship (Hope, Promise, STEM, etc.) to a specific administering body, none of them counties. Under State ex rel. Riffle v. Ranson and Gibson v. Northfield Ins. Co., that silence is read as intentional. The opinion treats T. Weston v. Mineral County as foreclosing any "public purpose"-based attempt to fill the statutory gap.

The opinion concludes that a county commission may fund a scholarship for volunteer firefighters and EMS personnel conditioned on continued volunteer service, based on the express training authorities in W. Va. Code §§ 7-1-3aa (firefighter training), 7-1-3d(b) (financial aid to fire-protection facilities), 7-15-4 and 7-15-18 (EMS authority), and 16-4C-24(b) (EMS training grants with priority to volunteers). The opinion treats work-or-repay conditions as supported by parallel legislative precedent (STEM Scholarship, volunteer firefighter tax credits) and by State ex rel. W. Va. Bd. of Educ. v. Sims. The opinion identifies two acceptable disbursement structures: a special fund under W. Va. Code § 7-1-9, or a community-foundation route, with the latter conditioned on the county being "able to determine that the money is spent for [the] public purpose" (1980 WL 119407).

The opinion concludes that the same scholarship may not be extended to currently employed firefighters and EMS personnel. The opinion identifies a statutory-constitutional gap: the only scholarships for current employees that the extra-compensation clause (W. Va. Const. art. VI, § 38) would permit (new duties beyond the original employment scope, under Springer) are not the type the Legislature has authorized counties to fund.

The opinion concludes that modest-value gift cards in exchange for survey participation are not gifts (the survey response supplies consideration), and may be permissible if tied to a clear public purpose with statutory authorization. The opinion specifically declines to bless the Hampshire County program because the public purposes were not articulated in the request.

Volunteer fire departments and EMS agencies

The opinion concludes a county commission may fund training-focused scholarships for volunteer firefighters and EMS personnel, conditioned on continued volunteer service, with oversight on fund distribution. The opinion does not allow the same scholarship program to extend to currently employed personnel.

Community foundations distributing county money

The opinion identifies two acceptable disbursement structures from the 1980 letter (1980 WL 119407): itemized requests subject to commission approval, or lump-sum release subject to periodic audits. The opinion treats either as sufficient if the county can show audit procedures that allow it to verify the money is spent for the stated public purpose.

County prosecutors

The opinion's framework: (i) Riffle/Gibson silence-is-intentional reasoning where the Legislature has built out a parallel scheme without including counties; (ii) Springer's "new duties beyond original scope" exception to the extra-compensation clause; (iii) the 1980 letter's audit-controls standard for community-foundation disbursements; and (iv) the consideration-supplies-exchange reasoning that takes a survey-incentive arrangement outside the gift-of-public-funds bar (citing the federal NTIA opinion, B-310981 (2008)).

Common questions

Q: Why can't a county fund agricultural scholarships even though promoting agriculture sounds like a public purpose?

A: A public purpose is necessary but not sufficient. State ex rel. Hughes v. Board of Education says education beyond age 16 (including college) does qualify as a public purpose. But T. Weston, Inc. v. Mineral County says counties may "do only such things as are authorized by law, and in the mode prescribed." The legislature has not authorized counties to administer agricultural scholarships, and it has explicitly placed agricultural promotion under the Commissioner of Agriculture. Public-purpose blessings can support, but they cannot create, county authority.

Q: What is the extra-compensation clause and why does it block the employed-EMS scholarship?

A: W. Va. Const. art. VI, § 38 says "[n]o extra compensation shall be granted or allowed to any public officer, agent, servant or contractor, after the services shall have been rendered or the contract made." Once a county hires a paramedic at agreed-upon pay, the county cannot pay extra for work the paramedic has already agreed to do (or, for at-will employees, work she has already done). Harbert v. Harrison County Court calls this a safeguard for the "independence, the security, and the efficiency" of public offices. The AG cites a 2015 letter (2015 WL 4977862) that applies the clause to paramedics and other public employees, and a 2024 letter (2024 WL 4357393) that distinguishes contractual from at-will employees in timing.

Q: Could the county pay current EMS employees for training that takes them outside their current duties?

A: Constitutionally yes, statutorily no. The opinion identifies a Springer v. Board of Education exception: the clause doesn't forbid contemporaneous salary increases for new, non-incidental duties. But it then notes that the legislature has only authorized training that's "directly related to maintaining or improving the public employee's performance of his or her existing responsibilities" (1993 educational-expenses letter). The two restrictions don't overlap, so there is a statutory gap.

Q: What audit controls are actually required to disburse to a community foundation?

A: The opinion cites a 1980 letter that articulates the touchstone: the county "must be able to determine that the money is spent for [the] public purpose." Two structures qualify:

• Itemized: county approves each disbursement individually before the foundation pays.
• Lump-sum with audit: county releases the appropriation in bulk and conducts periodic audits afterward.

Either works as long as you can document the audit trail and the State Tax Department is satisfied. If you can't show audit procedures, don't release the money.

Q: Can a county commission give a gift card to a resident as a thank-you, regardless of whether they take a survey?

A: That looks more like a gift, which is harder to justify. The opinion defines a gift as a "voluntary transfer of [] property by one to another, without any consideration or compensation therefor" (1967 letter). For surveys, the survey response is the consideration; without that exchange, a thank-you gift card lacks the consideration that prevents it from being an unconstitutional gift of public funds. The State ex rel. Bd. of Governors v. Sims line of cases makes this strict.

Q: Does this opinion change the analysis for cities and municipalities?

A: No. This opinion is about county commissions specifically. Municipalities operate under W. Va. Code Chapter 8 and have a different power structure. Some of the constitutional analysis (extra-compensation, gifts of public funds) applies to municipalities too; the statutory analysis does not.

Q: Could the legislature fix the gap on current-employee scholarships?

A: Yes. The opinion specifically notes that "the Legislature would always be free to amend the law" to authorize broader county scholarship programs. The constitutional ceiling (extra-compensation clause) would still apply, but the legislature could authorize county-funded education that fits the Springer exception or that is paid pre-bargaining (i.e., baked into the original employment contract).

Background and statutory framework

West Virginia treats county commissions as creatures of statute. State ex rel. State Line Sparkler v. Teach is the canonical citation: commissions have only the powers "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 expressly given." McAllister v. Nelson sharpens the point: "If any reasonable doubt exists as to whether [a county commission] has a power, the power must be denied."

The opinion lays out four distinct legal frameworks across its four questions:

1. Where the legislature has built out a parallel scheme without including counties. State ex rel. Riffle v. Ranson tells West Virginia courts to "assume" that legislative silence is "intentional" when a parallel structure is fully fleshed out elsewhere. Gibson v. Northfield Insurance: "Explicit direction for something in one provision, and its absence in a parallel provision, implies an intent to negate it in the second context." Applied to scholarships: the legislature has named over a dozen specific programs (Hope, Promise, Underwood-Smith, STEM, Higher Education, Engineering/Science/Technology, etc.) and assigned each to a specific body, none of them counties. The omission is dispositive.

2. Where express grants and implied powers can carry a program. § 7-1-3aa authorizes county-funded training of fire personnel; § 7-1-3d(b) authorizes financial aid to fire-protection facilities; § 7-15-4 charges counties with making EMS available; § 16-4C-24(b) authorizes grants for training EMS personnel "with priority" to volunteer providers. The volunteer-firefighter/EMS scholarship fits inside these grants if narrowly tailored to training.

3. Where the state constitution puts a ceiling on otherwise-permissible spending. The extra-compensation clause is the ceiling here. Once an employment contract is made, a county can't pay extra for the same set of services. Three exceptions exist:

• Pre-bargained increases: salary adjustments based on years of service that are part of the employment terms (1990 letter on incremental salary increases).
• Separate consideration: pensions (Campbell v. Kelly), statutory sick leave (1978 letter). The exception is narrow; "scholarships" do not naturally fit.
• New duties beyond original scope: Springer v. Board of Education. Permissible, but the legislature hasn't authorized counties to spend on this kind of scholarship.

The Schwartz, Jackson, and 2024 letter line of cases applies the clause to a wide variety of public employees (county health officers, school superintendents, teachers). Firefighters and EMS personnel fall under the same clause.

4. Where consideration converts what looks like a gift into a permissible exchange. State ex rel. W. Va. Hous. Dev. Fund v. Copenhaver: public funds must be used for "public purposes." Citizens' Savings & Loan v. City of Topeka (1874): taxes cannot "be exercised in aid of enterprises strictly private." A pure gift fails. But a gift card given in exchange for completing a survey is a quid pro quo: the survey response is the consideration. The federal NTIA gift-card opinion (B-310981, 2008) and the 1967 letter on prizes and awards both treat exchange-for-consideration arrangements as outside the gift bar, provided there's a real public purpose for the underlying transaction.

The 2015 conservation-district scholarship opinion the AG cites is a close cousin to the agriculture conclusion here: even though conservation districts have a clear public-purpose mission, they didn't have express scholarship-granting authority, and the AG declined to imply it. That precedent runs the same direction as the agriculture analysis.

Citations

• W. Va. Code §§ 5-3-2; 6-7-7; 7-1-3 to 7-1-3rr (esp. 7-1-3aa, 7-1-3d(b), 7-1-3k, 7-1-9); 7-3-2; 7-7-7; 7-15-4
• W. Va. Code §§ 8A-12-2; 8A-12-12; 11-8-26; 11-13jj-1; 11-13jj-3(b); 15A-11-9
• W. Va. Code § 16-4C-24(b)
• W. Va. Code §§ 18-31-5; 18C-1-1(d); 18C-6-4(a)(2)(A)-(B); 18C-7-5; 18C-7-6
• W. Va. Code § 19-1-4(a); § 44-6A-2
• W. Va. Const. art. VI, § 38; art. VII; art. IX, § 11; art. X, § 6
• State ex rel. State Line Sparkler v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992)
• McCallister v. Nelson, 186 W. Va. 131, 411 S.E.2d 456 (1991)
• Cnty. Comm'n of Greenbrier Cnty. v. Cummings, 228 W. Va. 464, 720 S.E.2d 587 (2011)
• State ex rel. Farley v. Spaulding, 203 W. Va. 275, 507 S.E.2d 376 (1998)
• State ex rel. Riffle v. Ranson, 195 W. Va. 121, 464 S.E.2d 763 (1995)
• Gibson v. Northfield Ins. Co., 219 W. Va. 40, 631 S.E.2d 598 (2005)
• State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 474 S.E.2d 554 (1996)
• State ex rel. Hughes v. Bd. of Educ. of Kanawha Cnty., 154 W. Va. 107, 174 S.E.2d 711 (1970)
• T. Weston, Inc. v. Mineral Cnty., 219 W. Va. 564, 638 S.E.2d 167 (2006)
• State ex rel. W. Va. Bd. of Educ. v. Sims, 139 W. Va. 802, 81 S.E.2d 665 (1954)
• Citizens' Savings & Loan Ass'n v. City of Topeka, 87 U.S. (20 Wall.) 655 (1874)
• State ex rel. W. Va. Hous. Dev. Fund v. Copenhaver, 153 W. Va. 636, 171 S.E.2d 545 (1969)
• Harbert v. Harrison Cnty. Ct., 129 W. Va. 54, 39 S.E.2d 177 (1946)
• Delardas v. Cnty. Ct. of Monongalia Cnty., 155 W. Va. 776, 186 S.E.2d 847 (1972)
• Schwartz v. Cnty. Ct. of Hancock Cnty., 136 W. Va. 626, 68 S.E.2d 64 (1951)
• Jackson v. Bd. of Educ. of Kanawha Cnty., 128 W. Va. 154, 35 S.E.2d 852 (1945)
• Springer v. Bd. of Educ. of Ohio Cnty., 117 W. Va. 413, 185 S.E. 692 (1936)
• State ex rel. Patteson v. Sims, 136 W. Va. 106, 65 S.E.2d 730 (1951)
• Campbell v. Kelly, 157 W. Va. 453, 202 S.E.2d 369 (1974)
• State ex rel. Bd. of Governors of W. Va. Univ. v. Sims, 140 W. Va. 64, 82 S.E.2d 321 (1954)

Source

• Landing page: https://ago.wv.gov/media/37713/download?inline
• Original PDF: https://ago.wv.gov/media/37713/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
April 29, 2026

The Honorable Rebecca L. Miller
Hampshire County Prosecuting Attorney
Hampshire County Courthouse
50 South High Street
Romney, West Virginia 26757

Dear Prosecutor Miller:
You have asked for an Opinion of the Attorney General about the Hampshire County
Commission's lawful scope of expenditures for educational scholarships and public participation
incentives under West Virginia law. This Opinion is issued under West Virginia Code § 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." To the extent this Opinion relies
on facts, it depends solely on the factual assertions in your correspondence and discussions with
the Attorney General's Office.

Per your letter, the Hampshire County Commission is considering three initiatives. First,
a potentially recurring agricultural "legacy farm" scholarship contribution to a local community
foundation to further endow an existing scholarship fund for students to pursue post-secondary
education in agriculture-related fields, all to promote farmland preservation and sustain legacy
family farms. Second, an annual allocation to a scholarship fund administered by a qualified
community foundation to assist active volunteer and employed firefighters and EMS personnel
with tuition for postsecondary or certification programs given certain conditions. Third, offering
modest-value gift cards to promote robust participation in public surveys.

With these facts in mind, your letter raises four legal questions:

1. May the Hampshire County Commission lawfully appropriate public funds to a community foundation for the purpose of establishing or expanding a scholarship fund benefiting local students studying agriculture or related fields, when that scholarship serves a stated public goal of farmland preservation and local farm viability?
2. May the Hampshire County Commission lawfully appropriate recurring public funds to a community foundation for scholarships or tuition reimbursement to volunteer emergency services personnel (fire or EMS), conditioned on continued volunteer service in the county?
3. May such a scholarship program lawfully include county-employed EMS personnel, provided the participation is conditioned prospectively on educational advancement and continued service, without running afoul of the prohibition on extra compensation for public employees?
4. Does the public purpose doctrine, or any provision of the West Virginia Code, permit the Hampshire County Commission to use public funds to purchase modest-value gift cards as incentives for residents to complete county-administered surveys or participate in county-related programs of high public importance, or would such incentives constitute an improper gift of public funds?

In short, the Hampshire County Commission lacks statutory authority to create a
scholarship fund for agricultural purposes. And while specific and broad statutory authorizations
allow it to create a scholarship fund for volunteer firefighters and EMS personnel given certain
conditions, such a scholarship for current, contractual public employees is likely barred by the
extra-compensation clause. Finally, the county commission's ability to distribute modest-value
gift cards will depend on their specific purposes, which are not readily apparent in your letter.

DISCUSSION

I. The Hampshire County Commission Cannot Lawfully Administer an Agricultural Scholarship Program.

You first ask whether the Hampshire County Commission may lawfully administer an
agricultural scholarship program when that scholarship serves a stated public goal of farmland
preservation and local farm viability. It may not.

County commissions are "created by statute," and only possess "powers as are expressly
conferred by the Constitution and legislature," and "reasonably and necessarily implied" to
exercise those powers. Syl. pt. 1, State ex rel. State Line Sparkler of W.V., Ltd. v. Teach, 187 W. Va.
271, 418 S.E.2d 585 (1992) (cleaned up). This Office has explained that "[i]f any reasonable doubt
exists as to whether a county commission has a power, the power must be denied." Off. of the W.
Va. Att'y Gen., Opinion Letter Concerning County Commission Authority to Approve an
Assignment of Lease (June 18, 2024), 2024 WL 3380828, at *4 (cleaned up) (quoting syl. pt. 1,
McCallister v. Nelson, 186 W. Va. 131, 411 S.E.2d 456 (1991)).

Your letter has not referenced any "[c]lear[] and unmistakabl[e]" power of the county
commission to issue scholarship funds for agricultural purposes. Express, BLACK'S LAW
DICTIONARY (12th ed. 2024). On independent review, we can find no express provision in the
West Virginia Constitution or Code that confers scholarship grant-making authority on county
commissions. So, the question is whether this power is reasonably and necessarily implied within
another authorization.

One power delegated to county commissions is the administration of the "fiscal affairs of
their counties." W. Va. Const., art. IX, § 11. Though county commissions typically wield "wide
discretion" in exercising this power, it can only be used as "prescribed by law." Id.; Cnty. Comm'n
of Greenbrier Cnty. v. Cummings, 228 W. Va. 464, 469, 720 S.E.2d 587, 592 (2011) (cleaned up).

Although the county's fiscal powers are broad, they are not unlimited. Under the county
commission's fiscal power, the Legislature authorizes county commissions to expend funds on
many things such as the "establishment and regulation of" public areas like "roads, ways, streets,"
"bridges, public landings, ferries[,] and mills." W. Va. Code § 7-1-3. They may expend funds
securing public services like sewage, radio, and garbage. See id. §§ 7-1-3a to 7-1-3rr. They can
set their own budgets. Id. § 7-7-7. They can provide emergency services. Id. § 7-15-4. And they
can even establish farmland protection funds to buy land and easements. Id. §§ 8A-12-2, 8A-12-12.
But the Legislature has not authorized county commissions to expend funds on agricultural
scholarship programs.

The scholarship you describe appears to fall within the remit of the Commissioner of
Agriculture. The West Virginia Constitution gives the power of administering agricultural affairs
to the West Virginia Department of Agriculture. See W. Va. Const., art. VII. The Commissioner
of Agriculture is responsible for "[d]evis[ing] means of advancing the agricultural interests of the
state." W. Va. Code § 19-1-4(a). The Commissioner has the "authority to call upon any …
county[] to cooperate in promoting the agricultural interests of the state." Id.

By the same token, when creating scholarship programs, the Legislature typically uses
explicit language in setting requirements and assigning administering bodies. For instance, the
Legislature created the Hope Scholarship Program and committed its administration to the Board
of Education with specific requirements. See generally W. Va. Code § 18-31-5. Likewise, the
Promise Scholarship Program is administered by the West Virginia Higher Education Policy
Commission with detailed eligibility requirements. See generally id. §§ 18C-7-5, 18C-7-6.

But we can find no legislative authorizations to county commissions to administer
agricultural scholarships. And in the presence of authorizations like those above, we "should
assume" the Legislature's silence on agricultural scholarships is "intentional." State ex rel. Riffle
v. Ranson, 195 W. Va. 121, 128, 464 S.E.2d 763, 770 (1995). Indeed, "[e]xplicit direction for
something in one provision, and its absence in a parallel provision, 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). County commissions thus lack the authority to make agricultural scholarships.

That the scholarship fund would serve a stated public goal of farmland preservation and
local farm viability is of no moment. An appropriate public purpose is sometimes a necessary (but
not sufficient) condition for the expenditure of public funds, W. Va. Const., art. X, § 6, and "the
promotion, at public expense, of education beyond the age of sixteen and even in colleges and
universities is regarded as fulfillment of a public purpose," State ex rel. Hughes v. Bd. of Educ. of
Kanawha Cnty., 154 W. Va. 107, 118, 174 S.E.2d 711, 718 (1970). But even where a proposed
action serves a valid public interest, a county commission may "do only such things as are
authorized by law, and in the mode prescribed." T. Weston, Inc. v. Mineral Cnty., 219 W. Va. 564,
569, 638 S.E.2d 167, 172 (2006) (cleaned up).

In sum, the Hampshire County Commission lacks authority to fund an agricultural
scholarship despite its intended beneficial public purposes. And because we have determined that
the county does not have the power to fund these scholarships, we need not address whether these
scholarships could be routed through a community foundation.

II. Hampshire County May Create an Emergency Services Scholarship for Fire Fighters and EMS Personnel Conditioned on Continued Volunteer Service.

You also ask whether the Hampshire County Commission may fund an EMS scholarship
or tuition reimbursement for volunteer firefighters and EMS personnel conditioned on continued
volunteer service. It may with proper fund distribution oversight.

a. Volunteer Firefighting and EMS Scholarships

Your letter mentions plans for an EMS scholarship or tuition reimbursement for volunteer
firefighters and EMS personnel. Unlike the limited power to administer agricultural scholarships,
the Legislature provides county commissions authority to train volunteer firefighters and EMS
personnel.

Start with volunteer firefighters. A county commission is "authorized and empowered to
create a hazardous material accident response team" including "members of the fire departments."
W. Va. Code § 7-1-3aa. "The commission is [further] authorized to … expend its own funds for
… training of the members of the team." Id. The operation of these fire departments serves "the
general benefit of the public in the prevention of fires," "victim rescue, [and] cleanup of debris or
hazardous materials." See id. § 7-1-3d(b). Consistent with those aims, the Legislature allocates
resources specifically for training fire personnel to accomplish their mission. See id. § 15A-11-9.

Now for volunteer EMS personnel. County commissions have "complete authority for the
provision of emergency ambulance service[s]" within their boundaries. W. Va. Code § 7-15-18.
They are charged with the responsibility to "ma[k]e available to all the residents of the county"
"emergency ambulance service[s]." Id. § 7-15-4. Indeed, the Legislature has authorized grants
specifically for "training of emergency medical services providers and personnel," giving
"priority" to "volunteer emergency medical service providers." Id. § 16-4C-24(b).

We also can find no prohibition on the county commission's conditioning scholarships on
continued volunteer service. On the contrary, the West Virginia Code is replete with legislative
precedent for doing so. For example, the STEM Scholarship requires recipients to work full-time
in a STEM related field for each year the scholarship is received, otherwise the individual must
repay the funds. W. Va. Code §§ 18C-6-4(a)(2)(A) to (B). The Legislature applies the same
concept in the way volunteer firefighters receive tax credits. Id. §§ 11-13jj-1, 11-13jj-3(b). And
the Supreme Court of Appeals of West Virginia has upheld a law that granted sabbatical leave to
pursue further graduate work with intermittent salary conditioned on returning to teach. See State
ex rel. W. Va. Bd. of Educ. v. Sims, 139 W. Va. 802, 808-09, 81 S.E.2d 665, 668-69 (1954).

We therefore conclude that the proposed scholarship may be conditioned on continued
volunteer service, indeed, the conditions reconfirm that the scholarships serve an appropriate
public purpose.

b. Fund Distribution

Your letter suggests that a local community foundation will distribute the county's
scholarship funds. This approach is possible with some additional oversight.

To distribute funds for those purposes, a county commission should exercise caution not to
"expend [the] money … [i]n an unauthorized manner." W. Va. Code § 11-8-26. County
commissions have two avenues to properly allocate these funds.

First, county commissions are "authorized and empowered to create and establish …
special funds" for firefighting and EMS service scholarships. W. Va. Code § 7-1-9. These special
accounts are funded by the county commission's tax levies or through "unexpended or surplus
moneys in the county general fund." W. Va. Code § 7-1-9. And such expenditures "shall be made
only for the purpose for which the special fund was created and established." Id.

Second, county commissions may allocate funds to other agencies and private nonprofit
corporations given greater oversight. The touchstone requirement is that a government entity must
"be able to determine that the money is spent for [the] public purpose." Op. Letter, 1980 WL
119407, at *8.

III. An EMS Educational Reimbursement Runs Afoul the Prohibition on Extra Compensation for Current Public Employees.

You next ask whether the EMS scholarship scheme above may include employed EMS
personnel and be conditioned prospectively on continued employment and educational
advancement without running afoul the prohibition on extra compensation for public employees.
The Legislature has not authorized scholarships for current EMS employees that exceed the
extra-compensation clause's prohibitions.

The West Virginia Constitution and Code provide that "[n]o extra compensation shall be
granted or allowed to any public officer, agent, servant or contractor, after the services shall have
been rendered or the contract made." W. Va. Const., art. VI, § 38; see also W. Va. Code § 6-7-7.
This prohibition serves to "safeguard the independence, the security, and the efficiency" of public
offices. Harbert v. Harrison Cnty. Ct., 129 W. Va. 54, 62, 39 S.E.2d 177, 185 (1946).

The prohibition on extra compensation begins when "the [S]tate has purchased the person's
set services at an agreed-upon price." After that, counties "may not pay more for the services
contracted for or rendered." In other words, "contractual employees cannot receive extra
compensation after the[ir] contract is made, [and] non-contractual (at-will) employees, cannot
receive extra compensation after their services have been rendered."

Of course, that bar is not absolute. We see three exceptions.

First, the Clause does not prohibit "bargained-for increases in compensation that occur
prior to the start of the work." For example, annual salary adjustments based on years of service
are not impermissible bonuses.

Second, the bar on extra compensation does not hinder consideration that "exist[s]
separately and apart from[] the salary of" the employee. For example, retirement pensions are not
extra compensation. Campbell v. Kelly, 157 W. Va. 453, 472-73, 202 S.E.2d 369, 381 (1974).

Third, the Clause does not "forbid the [county commission] from granting contemporaneous
salary increases to employees who are newly expected to perform additional services." Where
new duties "are not mere incidents of the [employment], but embrace a new field, and are beyond
the scope or range of the [employment] as it … existed," increased compensation does not violate
the clause. Springer v. Bd. of Educ. of Ohio Cnty., 117 W. Va. 413, 185 S.E. 692, 694 (1936).

Given the facts that you describe in your letter, a scholarship conditioned on educational
advancement and further certification would fall into this third category and thus be constitutional
even as to current employees.

But this conclusion creates a separate problem: the only scholarships for current employees
that the Constitution allows also happen to be the type of scholarships that current statutes do not
authorize. The Hampshire County Commission may not create an EMS educational reimbursement
fund for currently employed, contract fire fighters and EMS personnel, as such a program would
either run afoul of the prohibition on extra compensation for public employees or exceed the
authority that the Legislature has granted the county to create training programs.

IV. Hampshire County Might Have Authority to Distribute Modest-Value Gift Cards in Exchange for Public Purposes.

Finally, you ask whether the law permits the Hampshire County Commission to use public
funds to purchase modest-value gift cards as incentives for residents to complete county-
administered surveys or participate in county-related programs of high public importance.

This Office has long defined a gift as "a voluntary transfer of [] property by one to another,
without any consideration or compensation therefor." Off. of the W. Va. Att'y Gen., Opinion Letter
Concerning Prizes and Awards of Reasonable Value (Feb. 16, 1967), 1967 WL 93385, at *3
(cleaned up). "An appropriation by the Legislature of public revenue for a purely private purpose
is beyond its legitimate powers of legislation and, for that reason, is null and void." State ex rel.
Bd. of Governors of W. Va. Univ. v. Sims, 140 W. Va. 64, 72, 82 S.E.2d 321, 326 (1954).

If, however, the modest-value gift cards are made for legitimate public interests, and tied
to legitimate expenditure authorizations, then there may be a way to use public funds to distribute
modest-value gift cards. For example, the United States Government Accountability Office has
allowed gift card distribution in response to public surveys related to telecommunications issues.
See Nat'l Telecomm. & Info. Admin., B-310981 (Comp. Gen. Jan. 25, 2008).

You say that the gift cards would incentivize public participation in county-administered
surveys providing valuable information for "programs of high public importance." At first blush,
it does not appear that this would violate the bar on public gifts, as the participation in the survey
provides the necessary "consideration." But we are left without the specific public purposes these
gift cards serve and therefore unable to offer a definitive endorsement.

The Hampshire County Commission lacks statutory authority to create a scholarship fund
for agricultural purposes. It can create a scholarship fund for volunteer firefighters and EMS
personnel given certain conditions. But training-focused scholarships, the only scholarships that
the Legislature seems to have allowed, would run afoul of the West Virginia Constitution's extra-
compensation clause when it comes to current, contract-based public employees. Finally, the
county commission's ability to distribute modest-value gift cards depends on their purposes and
statutory authorizations.

Sincerely,

John B. McCuskey
West Virginia Attorney General

Matthew K. Niu
Caldwell Fellow