Can a West Virginia county commission give out gift cards to residents who fill out a public survey?

Plain-English summary

West Virginia Attorney General John B. McCuskey concluded that the Hampshire County Commission can lawfully spend public funds on gift cards to reward residents who complete county-administered surveys, as long as a real public purpose supports each survey topic and the gift card's value is proportional to the benefit the county gets from the information.

This is a follow-up to an earlier opinion from the same office. The Commission wanted to know whether it could hand out gift cards in exchange for public input on a proposed electric transmission line (the MidAtlantic Resiliency Link, or MARL), and separately on land-use planning, economic development, substance abuse treatment and prevention, and parks and recreation. The opinion works through each topic using the "public purpose doctrine," which bars counties from making a pure gift of public money but allows spending that serves a genuine public interest even when private individuals incidentally benefit.

What this means for you

County commissions and county attorneys

The opinion holds that a county commission can pay for gift cards as survey incentives when three things line up: there is legislative authorization (express or reasonably implied) for the county to act on the subject of the survey, funds have been appropriated for that purpose, and the survey serves a genuine public purpose. Applying that test, the opinion found authorization for land-use surveys (through the county's zoning and comprehensive-plan powers), substance-abuse surveys (through the county's public-health spending power), and economic-development, parks, and recreation surveys (through the County Development Authority and County Parks and Recreation Commission).

County commissions considering utility or transmission-line issues

The opinion holds that a county commission has no direct authority over electric transmission siting, which West Virginia law assigns to the Public Service Commission, but it can still fund survey-based public input on a project like the MARL line when the commission has formally intervened in the related PSC proceeding to represent its residents' interests.

Residents and community groups being asked to complete county surveys

The opinion holds that any gift card offered for completing a public survey has to carry a value "proportional to the value of the information received," so this is not a blank check for large cash incentives; the request in this case described only "low or modest" gift card values.

Common questions

Q: Can a West Virginia county government pay people gift cards to fill out a survey?
A: Yes, according to this opinion, as long as the topic is one the county has authority to act on, funds are properly appropriated, and the gift card's value is proportional to the public benefit of the survey information.

Q: Does a county commission have authority over decisions about a proposed power transmission line?
A: Not directly. The opinion concludes that siting decisions for projects like the MARL transmission line belong to the West Virginia Public Service Commission, but a county commission that has formally intervened in the PSC case can still gather and use public input through incentivized surveys.

Q: Is there a limit on how much a gift card can be worth?
A: The opinion does not set a dollar figure, but it holds that the gift card's value must stay proportional to the value of the public benefit derived from the survey program.

Background and statutory framework

County commissions in West Virginia manage the "fiscal affairs" of their counties as prescribed by law, but the state constitution bars them from taking on debts or liabilities, which has been read to prohibit a "free donation" of public funds for a purely private purpose. The opinion draws on a 1967 AG opinion letter's three-part test for permissible prize or incentive spending: legislative authorization, appropriated funds, and a genuine public purpose.

The opinion then walks through each survey topic Hampshire County asked about. It finds no direct county authority over electric utility siting (that belongs to the Public Service Commission), but finds authority over public health spending, economic development (through the County Development Authority), parks and recreation (through the County Parks and Recreation Commission), and land-use planning (through the county's zoning and comprehensive-plan powers).

Citations and references

Statutes:
- W. Va. Const. art. IX, § 11 (county commission fiscal affairs power)
- W. Va. Const. art. X, § 6 (prohibition on the state or counties taking on debts or liabilities)
- West Virginia Code § 16-2-14 (county public health spending)
- West Virginia Code §§ 7-12-1 to 7-12-16 (County Development Authority)
- W. Va. Code §§ 7-11-1 to 7-11-6 (County Parks and Recreation Commission)
- W. Va. Code § 8A-2-1(c) (County Planning Commission advisory role)

Cases:
- State ex rel. State Line Sparkler of WV, Ltd. v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992), on the scope of county commission powers
- State ex rel. Bd. of Governors of W. Va. Univ. v. Sims, 140 W. Va. 64, 82 S.E.2d 321 (1954), appropriations for a purely private purpose are void
- Yates v. Taylor Cnty. Ct., 47 W. Va. 376, 35 S.E. 24 (1900), county courts cannot make a free donation from the public treasury
- State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965), on the meaning of "public purpose"

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/37723/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
June 10, 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 previously requested an opinion from the Attorney General regarding certain
scholarship and gift-card programs. In response, this Office issued an opinion explaining the
Hampshire County Commission's power to issue certain scholarships and outlined relevant legal
principles for gift-card programs. Based on a lack of information provided, however, we were
unable to analyze the exact contours of the Commission's ability to issue gift cards in exchange
for information gleaned from public survey participation.
You have since requested a "more definite opinion" from the Attorney General about the
Hampshire County Commission's lawful scope of expenditures for gift cards for public purposes.
This Opinion is issued under West Virginia Code § 5-3-2, and supplements the previous opinion
dated April 29, 2026. As always, this Opinion depends solely on the factual assertions in your
correspondence and discussions with the Attorney General's Office.
Your follow-up letter explains that the Hampshire County Commission is considering
distribution of gift cards in exchange for completed public surveys on proposals pending before
the Commission. Specifically, the Commission seeks input from residents on a proposed electric
transmission line, the MidAtlantic Resiliency Link (MARL). Though this transmission line is
the most pressing issue before the Commission, you also want to know whether gift cards can be
used for participation in surveys on a variety of policy issues, including land-use, economic
development, substance-abuse treatment and prevention, public recreation, and park development.
With these additional details, your letter raises again the question:
1. Does the public purpose doctrine, or any provision of the West
Virginia Code, permit the Hampshire County Commission to use
public funds to purchase gift cards as incentives for residents to
complete county-administered surveys or participate in countyrelated programs of high public importance, or would such
incentives constitute an improper gift of public funds?
Based on the additional details you have provided we now conclude that the Hampshire
County Commission can issue gift cards in exchange for information on the public issues described
in your letter.
DISCUSSION
I.

Foundational Principles

To begin, some table-setting of the relevant legal standards will help.
You will recall that an analysis of county commission "powers" begins with what "the
Constitution and legislature" "expressly" or "reasonably and necessarily impl[y]." Syl. pt. 1, State
ex rel. State Line Sparkler of WV, Ltd. v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992) (cleaned
up). And county commissions have the power to administer the "fiscal affairs" of their counties
as "prescribed by law." W. VA. CONST. art. IX, § 11.
A limit on that fiscal power is the West Virginia Constitution's prohibition on the
government's taking on "debts or liabilities." W. VA. CONST., art. X, § 6. Grounded in this
prohibition is an understanding that "[a]n appropriation by the [county commission] 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); see also Off. of the W. Va. Att'y Gen., Opinion Letter Concerning Use
of Funds from Special Excess Levies (Mar. 31, 2017), 2017 WL 1377945, at 3 (applying the
standard to county commissions). So, county commissions cannot make a "free donation," or gift,
"out of the public treasury." See Yates v. Taylor Cnty. Ct., 47 W. Va. 376, ___, 35 S.E. 24, 29
(1900) (Dent, J., concurring); see also 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 (defining "gift" as
"a voluntary transfer of [] property by one to another, without any consideration or compensation
therefor." (cleaned up)).
All that is not to say that West Virginia places a blanket prohibition on distributing public
funds to individuals. These distributions happen every day. The State makes payments to eligible
students for scholarships, see, e.g., W. VA. CODE §§ 18C-7-1 to 18C-7-7, welfare benefits for needy
families, see, e.g., id. §§ 9-9-1 to 9-9-22, pensions for former public employees, see, e.g., id. §§ 510-1 to 5-10-55, and cash bonuses to veterans, W. VA. CONST. amends. VI & VII. The prohibition
is on using public funds for "purely private purposes," not a private person. Syl., Woodall v. Darst,
71 W. Va. 350, 77 S.E. 264 (1912), abrogated on other grounds by State ex rel. Sahley v. Thompson,
151 W. Va. 336, 343, 151 S.E.2d 870, 874 (1966).
This Office, and the Supreme Court of Appeals of West Virginia, have not considered
whether gift cards in exchange for public survey information is permissible. However, we find
this situation analogous to other times when the government gives a benefit (like cash prizes or
awards) in consideration for a reciprocal action (participation in a government activity). In those
situations, we have "generally recognized as valid" appropriations to individuals "when there is
specific legislative authority for the granting of such prize or award, and a recognizable public
purpose being served." Op. Letter, 1967 WL 93385, at 4.
Several federal examples applying this kind of standard come to mind. 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., B310981 (Comp. Gen. Jan. 25, 2008), https://tinyurl.com/3upam8re, prizes in drawings connected
to customer satisfaction surveys, Nat'l Telecomm. & Info. Admin., B-286536 (Comp. Gen. Nov.
17, 2000), https://tinyurl.com/592xa99z, twenty-five dollar prizes as Army recruiting gifts, Nat'l
Telecomm. & Info. Admin., B-230062 (Comp. Gen. Dec. 22, 1988), https://tinyurl.com/4su2r4b4,
and refreshments or light meals to incentivize focus group participation, Nat'l Telecomm. & Info.
Admin., B-304718 (Comp. Gen. Nov. 9, 2005), https://tinyurl.com/8kmxw87y.
Putting the pieces together, a county commission may distribute gift cards in exchange for
public survey information when they are (a) "specifically authorized by the Legislature; (b) there
have been public funds appropriated therefor by the Legislature; [and,] (c) there is some genuine
'public purpose' being served." Op. Letter, 1967 WL 93385, at 5.
II.

Authorization, Appropriation, and Purpose

Your follow-up letter specifically asks whether the Commission has authority to exchange
gift cards for public survey information about the MARL Project, substance abuse treatment and
prevention, economic development, public recreation, park development, and land-use. Seeing as
gift cards are a county expenditure, we must consider whether they are authorized under the "fiscal
affairs" power as "prescribed by law." W. VA. CONST. art. IX, § 11.
To start, we can find no express or implied authorization for county commissions to expend
funds on the MARL electric transmission line for energy purposes. The only mention of energy,
electricity, or utilities connected to county commissions we can find deals with internal county
energy savings contracts, W. VA. CODE § 7-1-3oo, and county-initiated infrastructure projects, id.
§ 7-20-11. Instead, the Legislature has largely assigned state utility regulation for electricity
transmission and energy policy to the West Virginia Public Service Commission, the Office of
Energy, and the West Virginia Public Energy Authority. See, e.g., id. §§ 24-2-1, 5B-2F-2, 5D-1-5.
Siting decisions of the kind at issue here are specifically assigned to the Public Service
Commission. Id. §§ 24-2-11, 24-2-11a. The county commission thus lacks the authority to
address this issue for energy, electricity, or utility purposes.
That said, the PSC is "charged with the responsibility for appraising and balancing the
interests of current and future utility service customers, the general interests of the state's
economy[,] and the interests of the utilities subject to its jurisdiction and decisions." W. VA. CODE
§ 24-1-1(b). PSC fulfills that mandate by "identify[ing], explor[ing], and consider[ing] the
potential benefits or risks associated with emerging … concepts," and "hold[ing] hearings
regarding such concepts." Id. § 24-1-1(c). That responsibility explains why public PSC hearings
soliciting Hampshire County resident opinions on the MARL project are already slated, Schedule
of Hearings Set for June 2026, W. VA. PUB. SERV. COMM'N, https://tinyurl.com/yh3zux5u (select
"Monthly Calendars"; then choose "June" from the "Month" dropdown and click
"Get Calendar") (last accessed June 9, 2026), and the public has been actively engaged in public
comments on the issue, see Case No. 26-0075-E-CN Docket, W. VA. PUB. SERV. COMM'N,
https://tinyurl.com/453kyhce (last accessed June 9, 2026).
We are aware that county commissions have intervened in similar Public Service
Commission proceedings in the past. See, e.g., Commission Order, Suddenlink Commc'ns, Case
No. 21-0515-CTV-SC-GI (W. Va. Pub. Serv. Comm'n July 30, 2021),
https://tinyurl.com/3h554b67; Commission Order, Mountaineer Gas Co., Case No. 23-0280-G42T (W. Va. Pub. Serv. Comm'n Mar. 31, 2023), https://tinyurl.com/y3hxzpr8. In each case, the
county commission participated to express the public interests of its residents. And here, the
Hampshire County Commission intervened in the PSC MARL Project based on interests like
"public health and safety," "economic development, and the overall quality of life of its residents."
Petition to Intervene, NextEra Energy Transmission MidAtlantic, Inc., Case No. 26-00075-E-CN
(W. Va. Pub. Serv. Comm'n Feb. 10, 2026), https://tinyurl.com/3cwc8xa3; Commission Order,
NextEra Energy Transmission MidAtlantic, Inc., Case No. 26-00075-E-CN (W. Va. Pub. Serv.
Comm'n Mar. 18, 2026), https://tinyurl.com/392sp4tj (accepting the petition to intervene).
We recognize that gift card incentives might increase the amount of information the county
gleans on the issue, see Joshua Van Otterloo et al., Gift Card Incentives and Non-Response Bias in
a Survey of Vaccine Providers: The Role of Geographic and Demographic Factors, 6 PLOS ONE
1 (2011), and that information may aid the PSC in fulfilling its statutory mandate, especially when
a county commission is an intervening party with a right to "be heard on the argument of the case,"
W. VA. CODE R. § 150-1-12.6.1. So, we find it may be reasonable and necessary for an intervening
county commission to issue gift cards for public survey information related to a PSC proceeding
when it concerns the county's own legitimate public interests.
As to substance abuse treatment and prevention, West Virginia law recognizes the broad
powers of county commissions to address local health needs. For instance, West Virginia Code
§ 16-2-14 empowers county commissions to "appropriate and spend money from the county or
municipal general funds for public health purposes." Likewise, Section 8-32-4 further declares
that "the support of public or nonprofit health institutions dedicated to making available to the
general public health and mental health services is for the general welfare of the public and is a
public purpose for which funds of a municipality or county commission may be lawfully
expended." Substance abuse treatment and prevention fall firmly within the realm of public health,
so the Commission has the express power to address that issue, and elicit information through
gift cards in support of that power.
On to economic, public recreation, and park development. Each of these general interests
fall under a county commission's authority, though somewhat indirectly. County commissions
oversee economic development through the County Development Authority. See W. VA. CODE
§§ 7-12-1 to 7-12-16. The County Development Authority may "expend funds" for purposes like
"promot[ing], develop[ing,] and advanc[ing] the business prosperity and economic welfare of the
… county," and the Legislature expressly sanctions these interests as legitimate public purposes.
See id. §§ 7-12-2, 7-12-7(a)(12). The Legislature also authorizes county commissions to make
"[c]ontributions … from time to time" to the County Development Authority. Id. § 7-12-12.
County commissions "may direct" how those funds are to be used, and should get an accounting
of those expenditures quarterly. Id.
Similarly, county commissions oversee public recreation and park development through
the County Parks and Recreation Commission. W. VA. CODE §§ 7-11-1 to 7-11-6. This
commission has the power to "receive all income and other funds" from the county commission.
Id. § 7-11-2. And it is authorized to "do any and all things which may be … convenient to carry
out and effectuate," id., the "establishing, improving, developing, administering, operating, and
maintaining a county public parks and recreation system or public recreational facilities," id. § 711-1. Assuming the information gleaned from public surveys will advance the legitimate public
purposes of the County Development Authority and County Parks and Recreation Commission,
the Hampshire County Commission can earmark funds for gift cards that incentivize public survey
participation generally.
Finally, we come to land use. The county commission regulates land use directly by
adopting a comprehensive plan, W. VA. CODE § 8A-3-3(b), enacting subdivision and land
development ordinances, id. § 8A-4-1(a)(1), and establishing zoning ordinances, id. § 8A-7-5(a),
requiring plans and plats for land development, id. § 8A-1-1(b)(8)(B), issuing improvement
location permits for construction, id. § 8A-1-1(b)(8)(C), and more. These powers affect the
"public welfare," promote orderly development of the community, growth that is economically
sound, and supportive of community livability. See generally id. § 8A-1-1. And county
commissions are "authorized to carry out the[se] objectives and overall purposes." Id. § 8A-2-1.
County commissions also oversee a County Planning Commission which "serve[s] in an
advisory capacity." W. VA. CODE § 8A-2-1(c). The planning commission creates the
comprehensive plan that the county commission may adopt. And the "major objective of the
planning process is providing information to and coordination among divergent elements in the …
county" to ensure that "comprehensive plans and future development are compatible." Id. § 8A3-2(c). This includes studying factors like "population density, health, general welfare, historic
sites, mobility transportation, food supply, education, water and sanitation requirements, public
services, accessibility for the disabled and future potential for residential, commercial, industrial
or public use." Id. § 8A-3-2(b). The county commission must appropriate money to the planning
commission to "defray the reasonable expenses" it incurs. Id. § 8A-2-10(a). To solicit appropriate
information, we believe it is likely reasonable and necessary to marshal information from the
general populace in the form of public surveys.

Though this Article does not use the words, "public purpose," those words do not hold talismanic effect. The action
must serve a real and legitimate public interest. See State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740,
748-51, 755-56, 143 S.E.2d 351, 358-59, 362 (1965). We do not doubt that establishing, improving, developing,
administering, operating, and maintaining county public parks and recreation systems and facilities is in the traditional
public interest. Indeed, debt issued to these purposes are done "for a public purpose." W. VA. CODE § 7-11-2.

County commissions therefore may set aside funds for gift cards to incentivize public
participation for information on county land-use planning.
Two notes. First, in distributing funds, please remember the proper fund distribution
mechanisms we explained in our previous Opinion. Second, your letter does not detail the
monetary value you plan for these gift cards, but you allude to their carrying low or modest values.
No gift card, "even if authorized by statute and/or appropriation, should be of a value
disproportionate to the value of the public benefit to be derived from the program of which the
[gift card] is a part." Op. Letter, 1967 WL 93385, at *5. Gift cards should thus carry a value that
is proportional to the value of the information received.
In sum, the Hampshire County Commission may distribute funds to incentivize public
participation in public surveys for information on the MARL project, county substance abuse
treatment and prevention, land use, and economic, parks, and recreation development.
Sincerely,

John B. McCuskey
West Virginia Attorney General
Matthew K. Niu
Caldwell Fellow