Hopkins, 052316 WVAGO, AGO 052316

• Case Date: May 23, 2016
• Court: West Virginia

The Honorable Lisa A. Hopkins AGO 052316 No. 052316 West Virginia Attorney General Opinions State of West Virginia Office of the Attorney General May 23, 2016           Patrick Morrisey, Attorney General.           Elbert Lin Solicitor General.           Erica N. Peterson Assistant Attorney General.          The Honorable Lisa A. Hopkins          West Virginia State Auditor          1900 Kanawha Blvd., East          State Capitol, Bldg. 1, Suite W-100          Charleston, WV 25305          Dear Auditor Hopkins:          You have asked for an Opinion of the Attorney General regarding whether an individual who previously held a position in state government categorized for "arrears pay" status must be converted to "current pay" status because that individual has been appointed to fill a vacancy in an elected office. This Opinion is being issued pursuant to 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." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence with the Attorney General's Office.          In your letter, you explain that you were appointed to fill the unexpired term of State Auditor Glen B. Gainer III. See W.Va. Code §§3-10-1, 3-10-3. You explain that your previous position as General Counsel to the State Auditor was categorized as "arrears pay" status, but that elected officers historically have been treated as "current pay" employees. Your question is whether your salary payment must be converted from "arrears pay" to "current pay."          Your letter raises the following specific legal question:

Must an individual appointed to fill the unexpired term of an elected official be paid on a current basis?

         The relevant statutory provision is West Virginia Code § 6-7-1. In pertinent part, the provision reads:

All full-time and part-time salaried and hourly officials,

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