See, 060618 WVAGO, AGO 060618

• Case Date: June 06, 2018
• Court: West Virginia

The Honorable Lucas J. See AGO 060618 No. 060618 West Virginia Attorney General Opinion State of West Virginia Office of the Attorney General June 6, 2018          The Honorable Lucas J. See          Prosecuting Attorney          Hardy County          204 Washington Street, Room 104          Moorefield, WV 26836          Dear Prosecutor See:          You have asked for an Opinion of the Attorney General regarding potential conflicts of interest when ambulance authority board members vote to contract with entities for which they work as either paid employees or volunteers. This Opinion is being issued pursuant to 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 is based solely on the factual assertions set forth in your correspondence with the Office of the Attorney General.          In your letter, you explain that the Hardy County Commission ("Commission") appointed the board members of an ambulance authority ("Board") pursuant to W.Va. Code § 7-15-5. Some of those board members are local emergency medical service providers who volunteer or work for either non-profit or for-profit ambulance companies. The Board is responsible for setting up and providing emergency ambulance service in Hardy County. Consistent with this task, the Board voted to enter into contracts with non-profit and for-profit entities for which some of the board members work, which are paid using part of the revenue from an ambulance-service fee the Commission assesses on local taxpayers.          Your letter raises the following legal questions, which we address in turn:

(1) Do members of an ambulance authority board have a conflict of interest under West Virginia Code § 7-15-15 if they vote to contract with either a for-profit company for which they work, or a non-profit entity for which they volunteer?

(2) Can a conflict of interest under West Virginia Code § 7-15-15 be avoided if the conflicted member recuses himself or herself from the vote?

(3) Does the Commission have authority to replace conflicted board members before the end of their term?

         We conclude that a board member who works for a for-profit ambulance service company has a conflict of interest for purposes of Section 7-15-15, regardless whether that company has a contract with the Board. A member who volunteers for a non-profit is unlikely to have a conflict of interest, however, unless the member stands to gain personally from any contract between the Board and the entity. In either circumstance, recusal from a vote involving the company or non­profit will not cure a conflict of interest. Finally, although the Commission may not unilaterally remove a conflicted board member, it may appoint an immediate replacement for any member who resigns or is otherwise removed as a result of a conflict of interest.          Question One: Conflicts Based On Board Members' Employment Or. Volunteer Activities          West Virginia Code § 7-15-15 provides that "[n]o member of any authority . . . shall have any interest in any firm, partnership, corporation, company, association or joint-stock association engaged in the business of providing ambulance service or in the manufacture, sale or lease of ambulance equipment or facilities." W.Va. Code § 7-15-15. Further, "[n]o member of any authority . . . shall contract with the authority or be interested in, either directly or indirectly, any contract with the authority . . . ." Id. Your letter asks whether a board member has a prohibited conflict under either or both of these provisions where the Board contracts with the member's for-profit employer, or with a non-profit entity for which the member volunteers.          First, we conclude that a board...