This month’s newsletter is going to examine a question that, at face value, seems like a simple question: what qualifies an entity as a state agency? At first glance, one would likely believe that any office/entity that serves the State as a whole and is created by the Constitution of West Virginia or the West Virginia Code would qualify said office/entity as a state agency. However, the West Virginia Supreme Court of Appeals has held that a deeper analysis is necessary to make such a determination.

In the 1990 case of Blower v. Educational Broadcasting Authority, the West Virginia Supreme Court of Appeals adopted a five-part test to identify whether a given entity qualifies as a state agency. The Court specifically held the following in the first syllabus point of Blower:

In determining whether a particular organization is a state agency, we will examine its legislative framework. In particular, we look to see if its powers are substantially created by the legislature and whether its governing board's composition is prescribed by the legislature. Other significant factors are whether the organization can operate on a statewide basis, whether it is financially dependent on public funds, and whether it is required to deposit its funds in the state treasury.

The West Virginia Supreme Court of Appeals took this test and applied it in the 2008 case of Mayo v. West Virginia Secondary Schools Activities Commission, to determine whether the lower court erred in ruling that the West Virginia Secondary Schools Activities Commission (or the “WVSSAC” or “SSAC” as it is commonly referred to), is a state agency.

Taking the above-mentioned factors, the Supreme Court of Appeals reversed the lower court, holding that the WVSSAC is not a state agency. The Court found (1) that the WVSSAC’s powers were not “substantially created by the legislature” as the organization was in existence prior to the codification recognizing its existence; (2) that the Legislature has no control over the WVSSAC since the WVSSAC is composed of a governing board, bylaws and Constitution; (3) that the WVSSAC does not receive legislative appropriations, thus any reliance on public funds is indirect; and (4) that although the WVSSAC funds are “quasi-public” in nature, the funds are not required to be deposited into the state treasury.

The only factor that the Supreme Court of Appeals found in favor of finding that the WVSSAC is a state agency was that the WVSSAC operates on a statewide basis. However, the Court noted that despite that there is statewide participation in the WVSSAC, membership in the WVSSAC is not compulsory. Accordingly, the WVSSAC is not a state agency despite appearing looking like one.

Thus, what qualifies an office/entity as a state agency truly is not as simple of a determination as one might think. The factors to be weighed in making this determination are undoubtedly more nuanced.