WEST virginia legislature
2017 regular session
Committee Substitute
for
Senate Bill 441
By Senators Sypolt, Boso and Smith
[Originating in the Committee on Government Organization; reported on March 8, 2017]
A BILL to amend and reenact §8-1-5a of the Code of West Virginia, 1931, as amended, relating to municipal home rule; establishing the Municipal Home Rule Pilot Program as a permanent program identified as the Municipal Home Rule Program; providing that any ordinance, act, resolution, rule or regulation enacted pursuant to the Municipal Home Rule Pilot Program shall continue until repealed; allowing all municipalities to participate in the Municipal Home Rule Program; prohibiting municipalities participating in the Municipal Home Rule Program from passing an ordinance, act, resolution, rule or regulation that is contrary to certain laws governing the professional licensing or certification of public employees; and eliminating the automatic termination of the Municipal Home Rule Pilot Program on July 1, 2019.
Be it enacted by the Legislature of West Virginia:
That §8-1-5a of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 1. PURPOSE AND SHORT TITLE; DEFINITIONS; GENERAL PROVISIONS; CONSTRUCTION.
§8-1-5a. Municipal Home
Rule Pilot Program.
(a) Legislative findings. — The Legislature finds and declares that:
(1) The initial Municipal Home Rule Pilot Program brought innovative results, including novel municipal ideas that became municipal ordinances which later resulted in new statewide statutes;
(2) The initial Municipal Home Rule Pilot Program also brought novel municipal ideas that resulted in court challenges against some of the participating municipalities;
(3) The Municipal Home Rule Board was an essential part of the initial Municipal Home Rule Pilot Program, but it lacked some needed powers and duties;
(4) Municipalities still face challenges delivering services required by federal and state law or demanded by their constituents;
(5) Municipalities are sometimes restrained by state statutes, policies and rules that challenge their ability to carry out their duties and responsibilities in a cost-effective, efficient and timely manner;
(6) Continuing Establishing
the Municipal Home Rule Pilot Program as a permanent program available to
all municipalities statewide is in the public interest; and
(7) Increasing the powers and duties of the Municipal Home Rule Board will enhance the Municipal Home Rule Pilot Program.
(b) Continuance of
pilot program. -- The Municipal Home Rule Pilot Program is continued until
July 1, 2019. The ordinances enacted by the participating municipalities
pursuant to the l Municipal Home Rule Pilot Program may remain in effect,
subject to the requirements of this section, until the ordinances are repealed:
Provided, That any ordinance enacting a municipal occupation tax is hereby
null and void.
(b) Establishment of a permanent program and continuation of pilot plans. – The Municipal Home Rule Pilot Program is hereby established as a permanent program and shall be identified as the Municipal Home Rule Program. Any ordinance, act, resolution, rule or regulation enacted by a participating municipality under the provisions of this section during the period of the Municipal Home Rule Pilot Program shall continue in full force and effect until repealed.
(c) Authorizing participation. —
(1) Commencing July 1,
2015 July 1, 2017, thirty any Class I, Class II, and
Class III municipalities and four Class IV municipalities municipality
that are is current in payment of all state fees may participate
in the Municipal Home Rule Pilot Program pursuant to the provisions of
this section.
(2) The municipalities
participating in the pilot program on the effective date of the amendment and
reenactment of this section are hereby authorized to continue in the pilot
program, subject to the requirements of this section, and may amend current
written plans and/or submit new written plans in accordance with the provisions
of this section.
(d) Municipal Home Rule Board. — The Municipal Home Rule Board is hereby continued. Effective July 1, 2015, the Municipal Home Rule Board shall consist of the following five voting members:
(1) The Governor, or a designee, who shall serve as chair;
(2) The Executive Director of the West Virginia Development Office, or a designee;
(3) One member representing the Business and Industry Council, appointed by the Governor with the advice and consent of the Senate;
(4) One member representing the largest labor organization in the state, appointed by the Governor with the advice and consent of the Senate; and
(5) One member representing the West Virginia Chapter of the American Institute of Certified Planners, appointed by the Governor with the advice and consent of the Senate.
The Chair of the Senate Committee on Government Organization and the Chair of the House Committee on Government Organization shall continue to be ex officio nonvoting members of the board.
(e) Board’s powers and duties. — The Municipal Home Rule Board has the following powers and duties:
(1) Review, evaluate, make recommendations and approve or reject, by a majority vote of the board, each aspect of the written plan submitted by a municipality;
(2) By a majority vote of
the board, select, based on the municipality’s written plan, new Class I, Class
II, Class III and/or Class IV municipalities to participate in the Municipal
Home Rule Pilot Program;
(3) Review, evaluate, make recommendations and approve or reject, by a majority vote of the board, the amendments to the written plans submitted by municipalities;
(4) Consult with any agency affected by the written plans or the amendments to the written plans; and
(5) Perform any other powers or duties necessary to effectuate the provisions of this section.
(f) Written plan. —
Any Class I, Class II, Class III or Class IV municipality desiring to
participate in the Municipal Home Rule Pilot Program shall submit a
written plan to the board stating in detail the following:
(1) The specific laws, acts, resolutions, policies, rules or regulations which prevent the municipality from carrying out its duties in the most cost-efficient, effective and timely manner;
(2) The problems created by the laws, acts, resolutions, policies, rules or regulations;
(3) The proposed solutions to the problems, including all proposed changes to ordinances, acts, resolutions, rules and regulations: Provided, That the specific municipal ordinance instituting the solution does not have to be included in the written plan; and
(4) A written opinion, by an attorney licensed to practice in West Virginia, stating that the proposed written plan does not violate the provisions of this section.
(g) Public hearing on written plan. — Prior to submitting its written plan to the board, the municipality shall:
(1) Hold a public hearing on the written plan;
(2) Provide notice at least thirty days prior to the public hearing by a Class II legal advertisement;
(3) Make a copy of the written plan available for public inspection at least thirty days prior to the public hearing; and
(4) After the public hearing, adopt an ordinance authorizing the municipality to submit a written plan to the Municipal Home Rule Board after the proposed ordinance has been read two times.
(h) Selection of
municipalities. — On or after June 1, 2015, by a majority vote, the
Municipal Home Rule Board may select from the municipalities that submitted
written plans and were approved by the board by majority vote new Class I,
Class II, Class III and/or Class IV municipalities to participate in the
Municipal Home Rule Pilot Program.
(i) Powers and duties of
municipalities. — The municipalities participating in the Municipal Home
Rule Pilot Program have the authority to pass an ordinance, act,
resolution, rule or regulation, under the provisions of this section, that is
not contrary to:
(1) Environmental law;
(2) Laws governing bidding on government construction and other contracts;
(3) The Freedom of Information Act;
(4) The Open Governmental Proceedings Act;
(5) Laws governing wages for construction of public improvements;
(6) The provisions of this section;
(7) The provisions of section five-a, article twelve of this chapter;
(8) The municipality’s written plan;
(9) The Constitution of the United States or the Constitution of the State of West Virginia;
(10) Federal law or crimes and punishment;
(11) Chapters sixty-a, sixty-one and sixty-two of this code or state crimes and punishment;
(12) Laws governing pensions or retirement plans;
(13) Laws governing annexation;
(14) Laws governing
taxation: Provided, That a participating municipality may enact a
municipal sales tax up to one percent if it reduces or eliminates its municipal
business and occupation tax: Provided, however, That if a municipality
subsequently reinstates or raises the municipal business and occupation tax it
previously reduced or eliminated under the Municipal Home Rule Pilot Program
or the Municipal Home Rule Program, it shall eliminate the municipal sales
tax enacted under the Municipal Home Rule Pilot Program: Provided
further, That any municipality that imposes a municipal sales tax pursuant
to this section shall use the services of the Tax Commissioner to administer,
enforce and collect the tax in the same manner as the state consumers sales and
service tax and use tax under the provisions of articles fifteen, fifteen-a
and fifteen-b, chapter eleven of this code and all applicable provisions
of the Streamlined Sales and Use Tax Agreement: And provided further,
That such tax will shall not apply to the sale of motor fuel or
motor vehicles;
(15) Laws governing tax increment financing;
(16) Laws governing
extraction of natural resources; and
(17) Marriage and divorce
laws.; and
(18) Laws governing the professional licensing or certification of public employees which provide for or ensure the health, safety and welfare of the public, including the administration and oversight of those laws by state agencies to the extent required by law.
(j) Municipalities may not pass an ordinance, act, resolution, rule or regulation under the provisions of this section that:
(1) Affects persons or
property outside the boundaries of the municipality: Provided, That this
prohibition under the Municipal Home Rule Pilot Program does not limit a
municipality’s powers outside its boundary lines under other provisions of this
section, other sections of this chapter, other chapters of this code or court
decisions; or
(2) Enacts an occupation tax, fee or assessment payable by a nonresident of a municipality.
(k) Amendments to
written plans. — A municipality participating in the Municipal Home Rule Pilot
Program may amend its written plan at any time.
(l) Amendments to
ordinances, acts, resolutions, rules or regulations. — A municipality
participating in the Municipal Home Rule Pilot Program may amend any
ordinance, act, resolution, rule or regulation enacted pursuant to the
municipality’s approved written plan at any time so long as any amendment is
consistent with the municipality’s approved written plan, complies with the
provisions of subsections (i) and (j) of this section and the municipality
complies with all applicable state law procedures for enacting municipal
legislation.
(m) Reporting requirements. — Commencing December 1, 2015, and each year thereafter, each participating municipality shall give a progress report to the Municipal Home Rule Board and commencing January 1, 2016, and each year thereafter, the Municipal Home Rule Board shall give a summary report of all the participating municipalities to the Joint Committee on Government and Finance.
(n) Termination of
the pilot program. -- The Municipal Home Rule Pilot Program terminates on
July 1, 2019. An ordinance, act, resolution, rule or regulation enacted by a
participating municipality under the provisions of this section during the
period of the Municipal Home Rule Pilot Program shall continue in full force
and effect until repealed.
(o) (n) Notwithstanding any other provision of
this code to the contrary, on and after the effective date of the enactment of
this provision in 2015, no distributee under the provisions of this section may
seek from the Tax Division of the Department of Revenue a refund of revenues or
moneys collected by, or remitted to, the Tax Division of the Department of
Revenue, nor seek a change in past amounts distributed, or any other
retrospective adjustment relating to any amount distributed, to the extent that
the moneys in question have been distributed to another distributee, regardless
of whether those distributions were miscalculated, mistaken, erroneous,
misdirected or otherwise inaccurate or incorrect. For purposes of this section,
the term “distributee” means any municipality that receives or is authorized to
receive a specific distribution of revenues or moneys collected by, or remitted
to, the Tax Division of the Department of Revenue pursuant to this section.
NOTE: The purpose of this bill is to establish the municipal home rule pilot program as a permanent program, to allow all municipalities to participate in the program, and to prohibit participating municipalities from passing ordinances contrary to certain laws governing the professional licensing or certification of public employees.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.