Senate Bill No. 158
(By Senators McCabe, Bowman, Plymale, Tomblin, Mr. President,
Foster, Hunter, Barnes, Minard and Jenkins)
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[Introduced February 11, 2005; referred to the Committee
on Government Organization.]
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A BILL to amend and reenact §8-8-1, §8-8-2, §8-8-3, §8-8-4, §8-8-5,
§8-8-6, §8-8-7, §8-8-8, §8-8-9, §8-8-10, §8-8-11, §8-8-12,
§8-8-13, §8-8-14, §8-8-15, §8-8-16, §8-8-17, §8-8-18, §8-8-19,
§8-8-20, §8-8-21, §8-8-22, §8-8-23, §8-8-24, §8-8-25, §8-8-26,
§8-8-27 and §8-8-28 of the Code of West Virginia, 1931, as
amended, all relating to the authority of existing
municipalities in West Virginia to consolidate; providing for
the procedure which must be followed by municipalities in
order to accomplish a consolidation; setting forth the rights
and obligations of a municipality following a consolidation;
and the effect of a consolidation upon the consolidating
municipalities and the newly consolidated entity.
Be it enacted by the Legislature of West Virginia:
That §8-8-1, §8-8-2, §8-8-3, §8-8-4, §8-8-5, §8-8-6, §8-8-7,
§8-8-8, §8-8-9, §8-8-10, §8-8-11, §8-8-12, §8-8-13, §8-8-14,
§8-8-15, §8-8-16, §8-8-17, §8-8-18, §8-8-19, §8-8-20, §8-8-21,
§8-8-22, §8-8-23, §8-8-24, §8-8-25, §8-8-26, §8-8-27 and §8-8-28 of
the Code of West Virginia, 1931, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 8. CONSOLIDATION OF MUNICIPALITIES.
§8-8-1. Legislative findings and declarations.
The Legislature hereby finds and declares that it is in the
public interest to encourage municipalities to consider
consolidation as a means of promoting growth and development, and
as a means of promoting more efficient provision of local services
and more effective public administration; that the existing laws of
this State are inadequate to encourage local consideration of
consolidation in many instances where such action might be
desirable; and, that the State should provide financial assistance
to encourage such consideration in those instances where it may be
appropriate, and where voluntarily agreed to by the municipalities
involved.
The Legislature further declares that, since political and
administrative consolidation of separate municipalities is an act
of high public importance to which are attached many unforeseen
difficulties and obstacles, the successful completion of a plan of consolidation, once approved by a vote of the residents of the
municipalities involved, shall constitute a public purpose of this
State; and, therefore, that the grant of powers under this article
is intended to be as broad as is consistent with the Constitution
of West Virginia and with general law relating to local government,
and shall be construed as liberally as possible in regard to the
consolidated municipality's right to organize its structure of
government, subject to the general mandate of performing services
and to the provisions of the plan of consolidation approved by the
voters.
§8-8-2. Authority to consolidate.
Any two or more adjoining municipalities in this State may
consolidate and become one municipality only in the manner provided
in this article.
§8-8-3. Petition and resolution.
Upon the presentation to the governing body of a municipality
of a petition, signed in their own handwriting by ten percent of
the qualified voters thereof, requesting consolidation with one or
more municipalities and setting forth the name by which it is
proposed the consolidated municipality be known, the governing body
shall forthwith adopt a resolution proposing such consolidation.
Alternatively, the governing body of a municipality, upon its
own initiative and without the submission of a petition signed by ten percent of qualified voters, may adopt a resolution proposing
consolidation with one or more municipalities upon its initial
finding and determination that such consolidation would be in the
best interests of the municipality. Such initial finding and
determination shall be set forth in the resolution proposing
consolidation which is adopted by the municipality.
§8-8-4. Order for establishment of municipal consolidation
committee.
The governing body of the municipality proposing consolidation
shall present a copy of the resolution adopted proposing such
consolidation to the county commission of the county wherein the
municipality or the portion thereof greatest in population is
located. If the county commission receives a copy or copies of a
like resolution or resolutions from the governing body or bodies of
one or more municipalities also proposing such consolidation, it
shall be the duty of the county commission to call, by written
order, for the creation and establishment of a municipal
consolidation committee. The order shall state that the committee
will be charged with making a recommendation as to the advisability
of consolidation, and if it determines consolidation to be
advisable, to formulate a plan of consolidation for the
municipalities considering such action.
The order shall forthwith be filed in the office of the clerk of the county commission, and true copies shall at once be served
upon the municipal clerk or municipal recorder of each of the
municipalities concerned.
When two or more adjoining municipalities in different
counties in this State desire to consolidate and become one
municipality, the county commission or clerk thereof referred to in
this article shall be the commission or clerk of the county wherein
the consolidating municipality having the greatest population is
located or if such consolidating municipality is itself located in
more than one county, the county wherein the portion thereof
greatest in population is located.
§8-8-5. Establishment of municipal consolidation committee.
A municipal consolidation committee shall be formed and come
into legal existence immediately upon the entry of an order by the
county commission establishing the same. The municipal
consolidation committee shall be comprised of two representatives
of each municipality proposing consolidation together with one
member of the county commission. The governing body of each
municipality proposing consolidation shall appoint one
representative to serve on the committee. The county commission
shall appoint one of its members to serve on the committee. The
county commission shall appoint one member from each municipality
to serve on the committee. The appointment of committee members shall be made within ten days of the formation of the committee.
As soon as possible and in any event no later than ten days
after the appointment of all its members, the committee shall
organize and hold its first meeting. The committee shall elect
from its membership a chair and a vice-chair. The committee shall
fix its time and places of meeting, adopt such rules for the
conduct of its business as it may deem necessary and advisable, and
appoint a secretary, who need not be a member of the Committee. A
majority of the total membership of the committee shall constitute
a quorum for the transaction of business, but no recommendation of
said committee shall have any legal effect unless adopted by a
majority of the committee members.
§8-8-6. Duties and function of municipal consolidation committee.
It shall be the duty and function of the municipal
consolidation committee to study the question and feasibility of
consolidating the municipalities proposing the same into a single
new municipality. The committee shall prepare a report setting
forth its findings and recommendations. Should the committee
determine to recommend the consolidation of the participating
municipalities into a single municipality, the committee shall in
such report recommend a plan of consolidation which shall, at a
minimum, set forth:
(a) The name, type, plan or form of government of the proposed new municipality;
(b) Details of adjustment of the indebtedness and other
obligations of the consolidating municipalities;
(c) The transfer of property and assets of the consolidating
municipalities to the proposed new municipality;
(d) Any adjustments or changes in offices, positions, or
employment, including the abolition thereof that may be
necessitated by the consolidation;
(e) The number and manner of election of the members of the
governing body of the proposed new municipality; and
(f) Those ordinances, resolutions, rules of the consolidating
municipalities which are to be of force and effect in the proposed
new municipality.
§8-8-7. Compensation of members; reimbursement of expenses.
Members of the municipal consolidation committee shall serve
without compensation, but shall be reimbursed for necessary
expenses incurred by them in the performance of their official
duties.
§8-8-8. Budget; facilities and employees.
(a) The committee shall prepare a proposed budget for its
activities showing anticipated expenses and anticipated receipts of
funds from all sources, which shall be submitted to the governing
bodies of the consolidating municipalities for their review. The governing bodies shall approve a budget for the committee within
thirty days of submission thereof. To the extent that funds from
other sources are not adequate to cover the expenses of the
Committee, expenses approved by the governing bodies of the
consolidating municipalities shall be paid equally by each
consolidating municipality.
(b) The consolidating municipalities shall make available to
the committee such facilities and such professional, technical and
clerical assistance as said municipalities may jointly agree.
(c) Within the limits of available funds, the committee may
appoint consultants and such other clerical and professional
assistants as it may require, who shall serve at the pleasure of
the committee. The committee may fix a reasonable compensation to
be paid for such services.
(d) All expenditures of funds by the committee shall be
subject to audit in the same manner as municipal expenditures.
§8-8-9. Final report of municipal consolidation committee.
(a) The municipal consolidation committee shall publish and
file its final report and recommendations within one year from the
date all of its members are appointed. A copy of such final report
signed by the chairman of the committee shall be filed with the
Secretary of State, the county clerk and with the municipal clerk
or municipal recorder of each consolidating municipality. The municipal clerks or municipal recorders as the case may be shall
deliver a copy of such final report to each member of the governing
body of their respective municipalities. The county clerk shall
deliver a copy of the final report to the county commission. The
committee shall cause a reasonable number of copies of the final
report to be printed and made available to the general public upon
request.
(b) Included in such final report shall be a statement, if
any, by any member of the committee dissenting from the findings
and recommendations set forth in the final report.
(c) If the committee recommends consolidation, it shall
prepare an official abstract of its report and recommendations and
plan of consolidation consisting of a concise statement, which
shall be objective in content and presentation, and shall be
descriptive of the substance of the plan. Within seven days of the
time the committee publishes and files its final report, the
committee shall commence publication of the official abstract as a
Class II legal advertisement in accordance with the laws of the
State, with the publication area being the consolidating
municipalities, together with notice of:
(1) The time, place and purpose of the special election;
(2) The manner in which copies of the committee's final report
and recommendations may be obtained;
(3) The fact that if the voters favor the consolidation by a
majority vote in each of the consolidating municipalities, the
plan of consolidation shall become binding and legally enforceable
between or among such municipalities.
§8-8-10. Discharge of municipal consolidation committee.
The municipal consolidation committee shall be discharged:
(a) On the date of the filing of its final report and
recommendations, if such report recommends against the
consolidation of the consolidating municipalities;
(b) On the date of the certification of the results of the
special election, if such certification establishes that the
consolidation recommended by the committee has not been approved by
the voters of each of the consolidating municipalities; or
(c) If the plan of consolidation is approved by the voters of
the consolidating municipalities, on the one hundred twentieth day
following the date of consolidation, during which interval the
committee shall serve as an advisory body to the governing body of
the consolidated municipality.
§8-8-11. Recommendations in final report.
In its final report the municipal consolidation committee may
recommend:
(a) That a special election be held to submit to the
registered voters of the consolidating municipalities the question of whether or not the consolidating municipalities shall be
consolidated into a single new municipality pursuant to the plan of
consolidation set forth in the report; or
(b) That the consolidating municipalities not be consolidated
into a single new municipality. In which case, the committee may,
if it deems appropriate, make alternative findings and
recommendations to the governing bodies of the consolidating
municipalities, in lieu of political consolidation, concerning the
consolidation or regionalization of separate municipal services and
functions pursuant to any of the statutes of this State.
§8-8-12. Order for elections.
If the final report of the municipal consolidation committee
recommends that a special election be held, it shall be the duty of
the county commission to call, by written order, a special election
to be held within such municipalities for a determination, by the
qualified voters of the respective municipalities, upon the
question of consolidation. The order shall set the date for the
special elections, which date shall be not less than thirty nor
more than sixty days from the date of the order, and shall be the
same date in each of the municipalities concerned.
The order shall state the names of the municipalities, the
object of the special elections, that the proposed consolidation
would take place in accordance with the plan of consolidation adopted by the municipal consolidation committee, a directive as to
where copies of the plan of consolidation could be obtained for
review, and the name by which it is proposed the consolidated
municipality be known.
The order shall forthwith be filed in the office of the clerk
of the county commission, and true copies shall at once be served
upon the municipal clerk or municipal recorder of each of the
municipalities concerned.
§8-8-13. How special elections are held; limitation on submission
of question again.
Except as otherwise provided in this article, the special
elections shall be held as are regular municipal elections, and the
provisions of law governing regular municipal elections shall apply
to those held under this article. The question of the
consolidation of the same municipalities shall not be submitted to
the voters thereof more often than once in two years.
§8-5-14. Ballots or ballot labels; expenses of special elections.
The ballots, or ballot labels where voting machines are used,
shall be in substantially the following form:
Shall ______________________ (name the municipalities) be
consolidated and become one municipality in accordance with the
plan of consolidation adopted by the Municipal Consolidation
Committee on ________________ (insert date plan adopted), which consolidated municipality shall be known as ________________? (name
of the proposed new municipality).
/ / For Consolidation
/ / Against Consolidation
The expenses of the elections shall be borne by the separate
municipalities.
§8-8-15. Counting and canvassing by county commission; certificate
of results.
The county commission shall furnish sealed ballot boxes or
voting machines to the proper officers of the municipalities
wherein the special elections are to be held. The municipal
officers responsible for the custody of the ballots or voting
machines shall, immediately upon the closing of the polls, transmit
the ballot boxes, sealed and unopened, or the voting machines to
the county commission. The county commission shall proceed to
count and canvass the votes cast, and shall forthwith certify over
their signatures the results of the canvass, showing distinctly in
their certificate the number of votes for and the number of votes
against the consolidation in each of the municipalities, and also
the number of qualified voters in each municipality who voted on
the question.
§8-8-16. Endorsement of certificate; filing; publication.
If a majority of the legal votes cast by the qualified voters of each of the municipalities are shown by such certificate to have
been cast in favor of the consolidation, the county commission
shall endorse said certificate to that effect and shall cause the
same to be filed forthwith in the office of the clerk of the county
commission, and to be published as a Class I legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code, and the publication area for such publication shall
be each of the municipalities so voting.
§8-8-17. Effective date of consolidation.
The consolidation shall be effective on the first day of the
fiscal year next succeeding the date of the special elections
unless the first day of such fiscal year is less than ninety days
from and after the date of such special elections, in which event
the consolidation shall be effective on the first day of the second
fiscal year succeeding the date of such special elections.
§8-8-18. New municipality; charter and ordinances of new
municipality.
When the consolidation becomes effective, the consolidated
municipalities shall constitute and be one municipality under the
name set forth in the initiatory petitions and the special election
order.
Unless the plan of consolidation provides otherwise, the
charter, if any, of the consolidating municipality having the greatest population shall, when the consolidation becomes
effective, be and remain the charter for the whole of the
consolidated territory, until supplanted.
Unless the plan of consolidation provides otherwise, the
ordinances, resolutions, orders and rules in force in the
consolidating municipality having the greatest population when the
consolidation becomes effective, shall extend to and be in force
throughout the new municipality, until they are supplanted, and the
ordinances, resolutions, orders and rules of the other
municipalities shall cease to be operative.
§8-8-19. Ward representation.
If the charter, if any, applying to the new municipality
provides for ward or other territorial representation, in whole or
in part, in the membership of the governing body, every ward or
similar division in the new municipality shall be entitled to
representation upon the governing body of the new municipality.
The commission provided for in section twenty of this article shall
give careful attention to the provisions of this section before
proceeding with its prescribed duties.
§8-8-20. Commission on wards and election districts.
Within one week after the filing and publication provided in
section sixteen of this article, a joint commission shall be formed
consisting of the mayor and the recorder of each municipality, and three inhabitants of each municipality appointed by the governing
body thereof.
The commission shall be called together by the mayor of the
consolidating municipality greatest in population, on a date and at
a time and place fixed by him or her, but not later than ten days
from the formation of the commission. The commission shall
organize by selecting a chairman and clerk. The clerk shall keep
a record of all proceedings and expenses and shall file the same,
not more than fourteen days after the commission has filed its
report and certificate hereinafter prescribed, in the office of
the
clerk of the county commission, together with an affidavit as to
the truth and correctness thereof.
The commission shall fix and determine the ward lines (if the
charter of the new municipality provides for the same) and election
districts of the new municipality. The commission shall, within
forty-five days from the date of its organization, make a report
and certificate over the signatures of a majority of its members,
and shall file the same in the office of the clerk of the county
commission. The certificate shall set forth and accurately
describe the ward lines, if any, and election district lines fixed
by the commission, and shall contain a proper map of the new
municipality with such lines set out thereon. The clerk of the
commission shall cause a copy of the certificate to be filed in the office of the Secretary of State.
The lines fixed and determined by the commission shall be
those of the new municipality until changed in accordance with law.
Wards, if any, shall be formed of contiguous territory. No
election district shall be in more than one ward. In dividing the
new municipality into wards and election districts, the commission
shall have regard for, and shall take into consideration, the
election laws of this State, as well as the population in all wards
and election districts, and shall divide and arrange the same so
that each will contain, as nearly as possible, an equal number of
inhabitants.
A notice setting forth the ward lines, if any, and election
district lines as fixed by the commission shall be published by the
clerk thereof as a Class I legal advertisement in compliance with
the provisions of article three, chapter fifty-nine of this code,
and the publication area for such publication shall be each of the
municipalities concerned. The notice shall be published within
seven consecutive days next succeeding the filing of the
certificate with the clerk of the county commission. The expenses
of the publication shall be paid by the new municipality. Upon the
completion of the publication, the wards, if any, and election
districts of the consolidating municipalities shall be superseded.
The commission shall appoint, in accordance with the charter of the new municipality, if any, election officials to serve at the
election provided for by section twenty one of this article.
The commission may employ an engineer and an attorney to
assist in performing its duties. The Commission may provide for
compensation to be allowed to its clerk, engineer and attorney,
which shall be paid by the new municipality. The commission
members shall not receive compensation for their services, but all
reasonable and necessary expenses actually incurred by them in the
performance of their duties, when itemized and sworn to by the
chairman and clerk, shall be paid by the new municipality.
§8-8-21. Election of new officers.
Notwithstanding any provision to the contrary in the charter,
if any, which shall apply to the new municipality, the initial
officers of the new municipality shall be those officers set forth
in the plan of consolidation adopted by the municipal consolidation
committee. The first election of officers for the new municipality
shall proceed as set forth in the plan of consolidation adopted by
said committee. If the plan of consolidation does not set forth
the initial officers of the new municipality and establish the
procedures for the first election of officers, an election shall be
held on the first Tuesday in June next preceding the date when the
consolidation becomes effective for the election of officers for
the new municipality. The officers shall be elected and the election shall be conducted otherwise in accordance with the
charter, if any, which shall apply to the new municipality and as
though the consolidation had become effective and if there be no
charter, then in accordance with the provisions of article five of
this chapter governing regular municipal elections.
Individuals elected to office at the election held under the
provisions of this section shall take office upon the day the
consolidation becomes effective, for the term specified by the
charter, if any, applying to the new municipality, and if there be
no charter, then for such term as may be permitted under said
article five of this chapter.
§8-8-22. Officers and employees of old municipalities.
When the consolidation becomes effective, the terms of office
of all officers and officials of the consolidating municipalities,
elected or appointed, shall, either continue or cease and be at an
end according to the terms and provisions of the plan of
consolidation.
Unless the plan of consolidation provides otherwise, policemen
and firemen of the consolidating municipalities shall, when the
consolidation becomes effective, continue as policemen and firemen
of the new municipality. They shall be subject to the orders and
control of the mayor of the new municipality, until the heads of
the police and fire departments are chosen and placed in charge thereof.
Tenure of office and pension laws applicable to the employees
of the consolidating municipalities shall not be affected by the
provisions of this article.
§8-8-23. Succession to rights and properties of superseded
municipalities.
The new municipality shall, when the consolidation becomes
effective, be vested with all the rights and properties of the
municipalities of which it was formed, and shall be responsible and
liable for all contracts, debts and obligations of such
municipalities. However, the lands and property in a municipality
superseded under this article shall not be taxed or assessed for
the debts or obligations of another municipality thus superseded.
The lands and properties in each of the constituent and superseded
municipalities shall be taxed and assessed for the debts and
obligations of its superseded government until the same shall be
paid and satisfied.
§8-8-24. Taxes and obligations of superseded municipalities.
The taxes and assessments levied or imposed by one of the
superseded municipalities and remaining outstanding and unpaid, and
all other moneys due and owing such municipality, when the
consolidation becomes effective shall be collected by the new
municipality and shall be applied to the purposes for which raised or owing, and if not raised or owing for a specific purpose, shall
be applied to the reduction or payment of the bonded or other
indebtedness, if any, of the superseded municipality.
Proceedings pending to enforce the payment or collection of
taxes and assessments in any of the superseded municipalities shall
be carried to completion by the proper officers of the new
municipality; and all taxes and assessments theretofore levied and
assessed by any of the superseded municipalities shall be valid and
effectual as if originally levied and assessed by the new
municipality. The governing body of the new municipality is
authorized to perform all necessary acts to confirm and effectuate
such levies and assessments.
§8-8-25. Transfer of funds and property.
Immediately upon the installation of the new municipal
government, the officers having custody of the funds of the
superseded municipalities shall deliver all funds in their
possession into the custody of the proper fiscal officer of the new
municipality in accordance with the provisions of the plan of
consolidation, who shall acknowledge delivery by giving his or her
receipt therefor.
All personal property, books, papers, vouchers or other
documents belonging to the superseded municipalities shall be
transferred to the proper officers of the new government in accordance with the plan of consolidation. A complete inventory
shall be made of all assets, real and personal, received by the new
government.
The Tax Commissioner shall cause an audit and settlement of
the accounts of the officers of the superseded municipalities to be
made forthwith.
§8-8-26. Permits and licenses issued by superseded municipalities.
Permits and licenses granted to any place or person by any of
the superseded municipalities shall, subject to their conditions,
remain in full force and effect and be recognized by the new
municipality until the expiration of the term for which they were
granted. However, this section shall not be construed to prevent
the revocation of any such permit or license before its expiration
in any manner provided by law.
§8-8-27. Legal proceedings pending at time of consolidation.
No suit, action or proceeding pending in any court or before
any board or department, wherein one of the superseded
municipalities is a party, or in which it is interested, or by the
determination of which it might be affected, shall abate by reason
of the consolidation, but the new municipality shall be substituted
in the place and stead of such superseded municipality, and the
suit, action or proceeding shall continue as if the consolidation
had not taken place.
§8-8-28. State funding for municipal consolidation.
(a) There is hereby created a special revenue account in the
State Treasury, designated the "Municipal Consolidation Reserve
Fund", which is an interest-bearing account that may be invested
and reinvested as other funds of the state, with the interest
income a proper credit to the fund.
(b) The fund shall consist of moneys appropriated by the
Legislature. These moneys shall be held in reserve and
appropriated by the Legislature only for the purpose of paying all
costs and expenses incurred by municipalities under the provisions
of this article, to otherwise provide financial support to the
efforts of municipalities to consolidate under this article, and to
provide financial incentives which encourage municipalities to
undertake consolidation pursuant to the provisions of this article.
(c) Annually the Secretary of Revenue shall provide a report
to the Governor and the Legislature on the amount of reserves
established pursuant to the provisions of this section.
NOTE: The purpose of this bill is to revise the current
procedure for consolidating West Virginia municipalities in order
to give such municipalities more flexibility in shaping the newly
consolidated government and provide financial support and
incentives to municipalities in order to encourage municipal
consolidation.
These sections are completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
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