Senate Bill No. 32
(By Senator Deem)
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[Introduced January 13, 1999;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact section three, article thirteen-a,
chapter sixteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to providing
for the payment of attorney's fees and other legal costs in
the event a plaintiff prevails in a legal proceeding against
a public service district.
Be it enacted by the Legislature of West Virginia:
That section three, article thirteen-a, chapter sixteen of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 13A. PUBLIC SERVICE DISTRICTS FOR WATER, SEWERAGE AND
GAS SERVICES.
§16-13A-3. District to be a public corporation and political subdivision; powers thereof; public service boards.
From and after the date of the adoption of the order creating any public service district, it is a public corporation
and political subdivision of the state, but without any power to
levy or collect ad valorem taxes. Each district may acquire,
own, and hold property, both real and personal, in its corporate
name, and may sue,
may and be sued:
Provided, That in the event
a citizen brings an action against a public service district and
prevails by obtaining an award of damages, or the granting of
prohibition or mandamus or by an order permanently enjoining an
activity of the district, the public service district is liable
for the payment of reasonable attorneys' fees and other
reasonably incurred legal costs. Additionally, each district may
adopt an official seal and
may enter into contracts necessary or
incidental to its purposes, including contracts with any city,
incorporated town, or other municipal corporation located within
or without its boundaries for furnishing wholesale supply of
water for the distribution system of the city, town, or other
municipal corporation, and contract for the operation,
maintenance, servicing, repair, and extension of any properties
owned by it or for the operation and improvement or extension by
the district of all or any part of the existing municipally owned
public service properties of any city, incorporated town, or other municipal corporation included within the district:
Provided, That no contract shall extend beyond a maximum of forty
years, but provisions may be included therein for a renewal or
successive renewals
thereof of the contract and shall conform to,
and comply with, the rights of the holders of any outstanding
bonds issued by the municipalities for the public service
properties.
The powers of each public service district shall be vested
in, and exercised by, a public service board consisting of not
less than three members, who shall be persons residing within the
district, who possess certain educational, business, or work
experience which will be conducive to operating a public service
district. Each board member shall, within six months of taking
office, successfully complete the training program to be
established and administered by the public service commission in
conjunction with the division of environmental protection and the
bureau of public health. Board members
shall may not be or
become pecuniarily interested, directly or indirectly, in the
proceeds of any contract or service, or in furnishing any
supplies or materials to the district nor shall a former board
member be hired by the district in any capacity within a minimum
of twelve months after
the board member's term has expired or
such the board member has resigned from the district board. The
members shall be appointed in the following manner:
Each city, incorporated town, or other municipal corporation
having a population of more than three thousand but less than
eighteen thousand is entitled to appoint one member of the board,
and each city, incorporated town, or other municipal corporation
having a population in excess of eighteen thousand shall be
entitled to appoint one additional member of the board for each
additional eighteen thousand population. The members of the
board representing
such the cities, incorporated towns, or other
municipal corporations shall be residents thereof and shall be
appointed by a resolution of the governing bodies thereof and
upon the filing of a certified copy or copies of the resolution
or resolutions in the office of the clerk of the county
commission which entered the order creating the district, the
persons so appointed become members of the board without any
further act or proceedings. If the number of members of the
board so appointed by the governing bodies of cities,
incorporated towns or other municipal corporations included in
the district equals or exceeds three, then no further members
shall be appointed to the board and the members so appointed are
the board of the district except in cases of merger or consolidation where the number of board members may equal five.
If no city, incorporated town, or other municipal
corporation having a population of more than three thousand is
included within the district, then the county commission which
entered the order creating the district shall appoint three
members of the board, who are persons residing within the
district and
residing within the state of West Virginia, which
three members become members of the board of the district without
any further act or proceedings except in cases of merger or
consolidation where the number of board members may equal five.
If the number of members of the board appointed by the
governing bodies of cities, incorporated towns, or other
municipal corporations included within the district is less than
three, then the county commission which entered the order
creating the district shall appoint such additional member or
members of the board, who are persons residing within the
district, as is necessary to make the number of members of the
board equal three except in cases of merger or consolidation
where the number of board members may equal five, and the member
or members appointed by the governing bodies of the cities,
incorporated towns or other municipal corporations included
within the district and the additional member or members appointed by the county commission as aforesaid, are the board of
the district. A person may serve as a member of the board in one
or more public service districts.
The population of any city, incorporated town, or other
municipal corporation, for the purpose of determining the number
of members of the board, if any, to be appointed by the governing
body or bodies thereof, is the population stated for
such the
city, incorporated town, or other municipal corporation in the
last official federal census.
Notwithstanding any provision of this code to the contrary,
whenever a district is consolidated or merged pursuant to section
two of this article, the terms of office of the existing board
members shall end on the effective date of the merger or
consolidation. The county commission shall appoint a new board
according to rules promulgated by the public service commission.
Whenever districts are consolidated or merged no provision of
this code prohibits the expansion of membership on the new board
to five.
The respective terms of office of the members of the first
board shall be fixed by the county commission and shall be as
equally divided as may be, that is approximately one third of the
members for a term of two years, a like number for a term of four years, the term of the remaining member or members for six years,
from the first day of the month during which the appointments are
made. The first members of the board appointed as aforesaid
shall meet at the office of the clerk of the county commission
which entered the order creating the district as soon as
practicable after the appointments and shall qualify by taking an
oath of office:
Provided, That any member or members of the
board may be removed from their respective office as provided in
section three-a of this article.
Any vacancy shall be filled for the unexpired term within
thirty days, otherwise successor members of the board shall be
appointed for terms of six years and the terms of office shall
continue until successors have been appointed and qualified. All
successor members shall be appointed in the same manner as the
member succeeded was appointed. The district shall provide to
the public service commission, within thirty days of the
appointment, the following information: The new board member's
name, home address, home and office phone numbers, date of
appointment, length of term, who the new member replaces, and if
the new appointee has previously served on the board. The public
service commission shall notify each new board member of the
legal obligation to attend training as prescribed in this section.
The board shall organize within thirty days following the
first appointments and annually thereafter at its first meeting
after the first day of January of each year by selecting one of
its members to serve as chair and by appointing a secretary and
a treasurer who need not be members of the board. The secretary
shall keep a record of all proceedings of the board which shall
be available for inspection as other public records. Duplicate
records shall be filed with the county commission and shall
include the minutes of all board meetings. The treasurer is
lawful custodian of all funds of the public service district and
shall pay same out on orders authorized or approved by the board.
The secretary and treasurer shall perform other duties
appertaining to the affairs of the district and shall receive
salaries as
shall be prescribed by the board. The treasurer
shall furnish bond in an amount to be fixed by the board for the
use and benefit of the district.
The members of the board, and the chair, secretary and
treasurer thereof, shall make available to the county commission,
at all times, all of its books and records pertaining to the
district's operation, finances and affairs, for inspection and
audit. The board shall meet at least monthly.
NOTE: The purpose of this bill is to provide for the
recoupment of attorneys' fees and other legal costs against a
public service district when a citizen prevails as a plaintiff
against the district in a legal proceeding.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.