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Introduced Version Senate Bill 158 History

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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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