H. B. 2315
(By Delegate Manuel)
[Introduced February 1, 1995; referred to the
Committee on Political Subdivisions then the
A BILL to amend chapter eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article three-a, relating
to municipal corporations; establishing the optional right
to adopt home rule charter plans of government; purpose and
short title; definitions; procedure; government study
commission; election of commission; commissioners and
qualifications; voting and certification; organization of
commission and function; vacancies; members to serve without
compensation; commission findings and recommendations;
discharging commission; report to voters; election adoption form; submission to voters; prohibition on alternate
government study commission; majority vote for home rule
charter; no change during five-year period; amendment of
home rule charter; initiative, ordinance or referendum;
limitations on home rule charter power; home rule
municipalities may sue and be sued; recording new charter;
holding over in office; transition; term of office of
existing council; existing ordinances and resolutions and
effect of inconsistencies; ratification of proceedings;
retention of existing form of government; repeal of
inconsistent articles or sections; invalidity and
severability; and effective date.
Be it enacted by the Legislature of West Virginia:
That chapter eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article three-a, to read
ARTICLE 3A. HOME RULE CHARTER PLAN ACT.
PART I. PRELIMINARY PROVISION.
§8-3A-1. Purpose and short title.
The purpose of this article is to provide an alternative form of municipal self-government than that provided by the
remaining portions of chapter eight of this code. This article
shall be known and may be cited as the "Home Rule Charter Plan
As used in this article:
"Councilman" means the members of a governing body, by
whatever name such members may be called.
"Governing body" means the mayor and council together, the
council, the board of directors, the commission or other board or
body of any municipality, by whatever name called, as the case
may be, charged with the responsibility of enacting ordinances
and determining the public policy of such municipality; and in
certain articles dealing with intergovernmental relations also
means the county commission of any county or governing board of
other units of government referred to in said articles.
"Government study commission" or "commission" means the body
composed of voters of the municipality elected under the
provisions of this article.
"Home rule charter" means a written document defining the powers, the structure, privileges, rights and duties of the
municipal government and limitations thereon. The charter shall
also provide for the composition and election of the governing
body, which in all cases shall be chosen by popular elections.
"Local municipality" means an incorporated city, town or
"Municipality" means and includes any Class I, Class II and
Class III city and any Class IV town or village, heretofore or
hereafter incorporated as a municipal corporation under the laws
of this state.
"Nonresident" means any person or entity not a resident
within the meaning of this article.
"Optional forms" means a general description including all
forms of local government, other than that provided herein,
authorized pursuant to this chapter.
"Optional plans" means optional municipal powers, procedures
and administrative structures as provided by this chapter.
"Rate of taxation" means the amount of tax levied by a
municipality on a permissible subject of taxation.
"Resident" means any person, or any corporation, partnership, association, joint stock association or other
(1) Living in or maintaining a permanent or fixed place of
abode in a municipality; or
(2) Conducting or engaging in a business for profit within
"Subject of taxation" means any person, business,
corporation, partnership, entity, real property, tangible or
intangible personal property, property interest, transaction,
occurrence, privilege, transfer, occupation or any other levy
which is determined to be taxable by the Legislature of the state
of West Virginia. The term shall not be construed to mean the
rate of tax which may be imposed on a permissible subject of
"Voters" means the registered voters of any municipality
involved in proceedings relating to the adoption or repeal of
forms of government.
PART II. PROCEDURE FOR ADOPTION OF A HOME
RULE CHARTER PLAN OF GOVERNMENT.
§8-3A-3. Government study commission; petition.
(a) Whenever authorized by ordinance of the governing body,
or upon petition of the registered voters of any municipality to
the governing body of the municipality, an election shall be held
in the municipality upon the following question:
"Shall a government study commission of (seven, nine or
eleven) members be elected to study the existing form of
government of the municipality; to consider the advisability of
the adoption of a home rule charter; and if advisable, to draft
and to recommend a home rule charter"?
The petition calling for such election shall be in the form
required by subsection (b) hereof, and shall be signed by voters
of the municipality comprising five percent of the number of
voters voting for the office of governor in the last
gubernatorial general election within the municipality.
Within five days after the final enactment of an ordinance
authorizing such election, the municipal clerk or recorder shall
file a certified copy of the ordinance with the governing body,
together with a copy of the question to be submitted to the
voters. At the next municipal or general or primary election
occurring not less than the thirteenth Tuesday after the filing of the ordinance or the petition with the governing body, it
shall cause the appropriate question above stated to be submitted
under the provisions of this code.
(b) A referendum petition under this section shall be filed
not later than the thirteenth Tuesday prior to the election, and
the petition and the proceedings therein shall be in the manner
and subject to the provisions of the election laws which relate
to the signing, filing and adjudication of nomination petitions
insofar as such provisions are applicable, except that no
referendum petition may be signed or circulated prior to the
twentieth Tuesday before the election nor later than the
thirteenth Tuesday before the election and no candidates's
nomination petition may be signed or circulated prior to the
thirteenth Tuesday before the election nor later than the tenth
Tuesday before the election and shall be filed on or before the
tenth Tuesday before the election.
§8-3A-4. Election of commission.
A governmental study commission of seven, nine or eleven
members as designated in the question shall be elected by the
qualified voters at the same election the question is submitted to the voters. Each candidate for the office of government study
commissioner shall be nominated and placed upon the ballot
containing the question in the manner provided by and subject to
the provisions of this code which relate to the nomination of
candidates nominated by nomination papers filed for other offices
elective by the voters of a municipality, except that each
candidate shall be nominated and listed without any political
designation or slogan, and, no nomination paper may be signed or
circulated prior to the thirteenth Tuesday before the election,
nor later than the tenth Tuesday before the election. No
signature may be counted unless it bears a date within this
period. Each voter shall be instructed to vote on the question
and regardless of the manner of his vote on the question, to
vote for the designated number of members of a government study
commission who shall serve if the question is or has been
determined in the affirmative. If an insufficient number of
nominating papers is filed to fill all of the designated
positions on the study commission, the question of establishing
a commission shall be placed on the ballot, however, unless a
sufficient number of study commission members are elected by receiving at least as many votes as signatures are required to
file a nomination petition, then the question of creating a study
commission shall be deemed to have been rejected.
§8-3A-5. Commissioners; qualifications.
(a) Candidates for the government study commission shall be
registered voters of the municipality. Each candidate shall be
nominated by nomination papers signed by a number of qualified
voters of the municipality equal to at least two percent of the
number of voters voting for the office of governor in the last
gubernatorial general election within the municipality or two
hundred registered voters whichever is less and filed with the
governing body not later than the tenth Tuesday prior to the date
of the election.
(b) Each nominating paper shall set forth the name, place of
residence and post office address of the candidate thereby
nominated, that the nomination is for the office of government
study commissioner, and that the signers are legally qualified to
vote for such candidate. Each voter may sign nomination papers
for as many candidates for government study commissioner as, and
no more than, he could vote for at the election. Every voter signing a nominating paper shall add to his signature his place
of residence, post office address and street number, if any.
(c) Each nominating paper shall, before it may be filed with
the governing body, contain under oath or affirmation of the
candidate an acceptance of such nomination in writing, signed by
the candidate therein nominated, upon or annexed to such paper,
or if the same person be named in more than one paper, upon or
annexed to one of such papers. Such acceptance shall certify
that the candidate is a registered voter of the municipality,
that the nominee consents to stand as a candidate at the
election, and that if elected he agrees to take office and serve.
(d) Each nomination paper shall be verified by an oath or
affirmation of one or more of the signers thereof, taken and
subscribed before a person qualified under the laws of the state
of West Virginia to administer an oath, to the effect that the
paper was signed by each of the signers thereof in his proper
handwriting, that the signers are, to the best knowledge and
belief of the affiant, registered voters of the municipality, and
that the nomination paper is prepared and filed in good faith for
the sole purpose of endorsing the person named therein for election as stated in the paper.
§8-3A-6. Vote; certification.
The result of the votes cast for and against the question as
to the election of a government study commission shall be
returned by the election officers, and a canvass of such election
had, as is provided by law in the case of other public questions
put to the voters of a single municipality. The votes cast for
members of the commission shall be counted, and the result
thereof returned by the election officers, and a canvass of such
election had, as is provided by law in the case of election of
members of the municipal council. The designated number of
candidates receiving the greatest number of votes shall be
elected and shall constitute the commission: Provided, That if
a majority of those voting on the question vote against the
election of a commission, none of the candidates are elected. If
two or more candidates for the last seat are equal in number of
votes, they shall draw lots to determine which one is elected.
§8-3A-7. Oath of commissioner.
As soon as possible, and in any event no later than ten days
after its certification of election, the members of a government study commission hereafter elected shall make oath or affirmation
to support the Constitution of the United States and the
Constitution of this state, and to perform the duties of the
office with fidelity. Those previously elected to such
government study commission shall, within thirty days of the
effective date hereof, make such an oath or affirmation unless a
report has been filed, prior to the effective date of this
article, by the commission of which they are members.
§8-3A-8. Organization of government study commission.
As soon as possible, and in any event no later than fifteen
days after its certification of election, the government study
commission shall organize and hold its first meeting and elect
one of its members as chairman, another member as vice chairman,
fix its hours and place of meeting, and adopt such rules for the
conduct of its business as it may deem necessary and advisable.
A majority of the members of the commission constitutes a quorum
for the transaction of business, but no recommendation of the
commission has any legal effect unless adopted by a majority of
the whole number of the members of the commission.
In case of any vacancy in the government study commission,
the remaining members of such commission shall fill it by
appointing thereto some other properly qualified voter.
§8-3A-10. Function of commission.
It is the function and duty of the government study
commission to study the form of government of the municipality,
to compare it with other available forms under the laws of this
state, to determine whether or not in its judgment the government
of the municipality could be strengthened, made more clearly
responsible or accountable to the people, or whether its
operation could become more economical or efficient under a
changed form of government to that of a home rule charter
§8-3A-11. Members to serve without compensation.
Members of the government study commission shall serve
without compensation, but shall be reimbursed by the municipality
for their reasonable and necessary expenses actually incurred in
the performance of their duties. Council shall appropriate
moneys necessary for such purpose.
Within the limits of such appropriations and other public and privately contributed funds and services as shall be made
available to it, the commission may appoint one or more
consultants and clerical and other assistants to serve at the
pleasure of the commission and may fix a reasonable compensation
to be paid such consultants and clerical and other assistants.
§8-3A-12. Public hearings.
The government study commission shall hold one or more
public hearings, may hold private hearings and sponsor public
forums, and generally shall provide for the widest possible
public information and discussion respecting the purpose and
progress of its work.
§8-3A-13. Commission findings and recommendations.
(a) The government study commission shall report its
findings and recommendations to the citizens of the municipality
within nine calendar months from the date of its election except
that it shall be permitted an additional nine months if it elects
to prepare and submit a proposed home rule charter and an
additional two months if it chooses to elect its municipal
council by wards. It shall publish or cause to be published
sufficient copies of its final report for public study and information, and shall deliver to the municipal clerk or recorder
sufficient copies of the report to supply it to any interested
citizen upon request. If the commission recommends the adoption
of a home rule charter, the report shall contain the complete
plans as recommended.
(b) There shall be attached to each copy of the report of
the commission, as a part thereof, a statement sworn to by the
members of the commission listing in detail the funds, goods,
materials and services, both public and private, used by the
commission in the performance of its work and the preparation and
filing of the report. In addition, the list shall identify
specifically the supplies of each item thereon.
(c) A copy of the final report of the commission with its
findings and recommendations shall be filed with the secretary of
(d) All the records, reports, tapes, minutes of meetings and
written discussions of the government study commission shall,
upon its discharge, be turned over to the municipal clerk or
recorder for permanent safekeeping and made available for public
inspection at any time during regular business hours.
§8-3A-14. Discharging the commission.
(a) The government study commission shall be discharged upon
the filing of its report: Provided, That if the commission's
recommendations require further procedure in the form of a
referendum on the part of the people of the municipality, the
commission shall not be discharged until such procedure has been
finally concluded. At any time prior to sixty days before the
date of such referendum, the commission may modify or change any
recommendation set forth in said final report by publishing an
(b) Whenever a commission issues an amended report pursuant
to subsection (a) above, the amended report supersedes the final
report and the final report ceases to have any legal effect under
(c) The procedure to be taken under the amended report shall
be governed by all provisions of Part II of this article
applicable to the final report of a commission submitted pursuant
to section thirteen of this article.
§8-3A-15. Commission report to voters.
The government study commission shall report and recommend in accordance with the question presented to the voters as
provided in section three hereof:
(1) That a referendum be held to submit to the qualified
voters of the municipality the question of adopting a home rule
charter as prepared by the commission and as authorized by this
(2) That the form of government of the municipality remain
§8-3A-16. At-large or ward election.
(a) If the commission recommends the adoption of a home rule
charter, it shall specify the number to be on the municipal
council, all offices to be filled by election, and whether
elections shall be on an at-large, ward or combination ward and
(b) Notwithstanding any other provisions of this article, if
an approved home rule charter adopted pursuant to the provisions
of this article specifies that the election of the municipal
council shall be on an at-large, ward or combination ward and
at-large basis, which basis differs from the existing basis and
therefore requires eliminating wards or establishing revised or new wards, then election of municipal officials may not take
place on the new basis until the municipal election following the
next primary election taking place later than one hundred eighty
days after the election at which referendum on the question of a
new form of government has been approved by the voters. The new
form of government may not go into effect until the first Monday
in January following the election of municipal officials on the
new basis. New or revised wards shall be established by the
government study commission and included in the proposed charter.
§8-3A-17. Adoption form.
The question to be submitted to the voters for the adoption
of a home rule charter authorized by this article shall be
submitted in the following form or such part thereof as shall be
"Shall the Home Rule Charter contained in
the report, dated of the Government YES
Study Commission, prepared in accordance with the
Home Rule Charter Law, be adopted by the
(insert type and name of municipality)
"Shall the (Home Rule Charter) of the
(insert type and name of municipality)
be repealed, and the form of government
recommended in the report of the
Government Study Commission, dated NO
, be adopted as
authorized by the Home Rule Charter
§8-3A-18. Submission of home rule charter question to voters.
If the government study commission recommends that the
question of adopting a home rule charter authorized by this
article be submitted to the voters of the municipality, the
municipal clerk or recorder, shall within five days thereafter
certify a copy of the commission's report to the governing body
of the municipality, which shall cause the question of adoption
or rejection to be placed upon the ballot or voting machines at
such times as the government study commission shall in its report
specify. The governing body shall cause the question to be
submitted to the people at the next primary, municipal or general
election, occurring not less than sixty days following the filing
of a copy of the government study commission's report with the governing body, at such times as the government study
commission's report shall direct. At such election, the question
of adopting the home rule charter recommended by the government
study commission shall be submitted to the voters of the
municipality by the governing body in the same manner as other
questions are submitted to the voters of a municipality under the
provisions of this code. The governing body shall frame the
question to be placed upon the ballot as herein provided, and if
it deems appropriate an interpretative statement to accompany
§8-3A-19. Prohibition on alternative government study
(a) No ordinance may be passed and no petition may be filed
for the election of a government study commission pursuant to
section three of this article while proceedings are pending under
any other petition or ordinance filed or passed under the
authority of this article, nor on the same question if it has
been defeated within four years after an election has been held
pursuant to any such ordinance or petition passed or filed.
(b) For the purpose of this section, proceedings shall be considered as having started (i) in the case of an ordinance upon
the final vote of council in favor of the ordinance,
notwithstanding the fact that the ordinance cannot take effect
until a certain number of days thereafter; or (ii) in the case of
a petition, as soon as it is properly signed by one third of the
number of registered voters required for such petition and
written notice thereof filed in the office of the county
commission and in the office of the municipal clerk or recorder,
who shall cause the same to be immediately posted in a
conspicuous place in the office, open to public inspection.
§8-3A-20. Majority vote for home rule charter.
Whenever the legally qualified voters of any municipality by
a majority of those voting on the question vote in favor of
adopting a change in their form of government pursuant to this
article, the proposed form of home rule charter shall take effect
according to its terms and provisions of this article.
§8-3A-21. No change; five-year period.
The voters of any municipality which has adopted a home rule
charter pursuant to this article may not vote on the question of
changing the form of government until five years after the home rule charter became effective.
§8-3A-22. Amendment of home rule charter.
(a) The procedure for amending a home rule charter shall be
through the initiative procedure and referendum or ordinance of
the governing body as hereinafter provided in this article.
(b) Changes in the method of election of a municipal
governing body from at-large elections to elections by ward,
maintain at-large elections or a combination of at-large
elections and elections by ward may be implemented by amending a
home rule charter without creation of a government study
(c) If two or more questions appear on the ballot at the
same election and such questions are in conflict and more than
one receives the approval of the voters, the questions which
receive the largest number of affirmative votes shall prevail
over the others.
(d) If the referendum on the question results in the
approval by the voters to amend the home rule charter to provide
for the election of the governing body of such municipality
either by wards or partially by wards and partially at-large or in a change in the number of members of the governing body, the
initial apportionment of the wards shall be made by an
apportionment commission consisting of seven members, all of whom
shall reside in such municipality. Two members of the
apportionment commission shall be appointed by the mayor of such
municipality. Two members of the apportionment commission shall
be appointed by the governing body of such municipality; one
shall be appointed by the mayor from a list of at least three
qualified persons recommended by the municipal committee of the
political party whose mayoral candidate received the highest
number of votes cast in the most recent mayoral election; one
shall be appointed by the mayor from a list of at least three
qualified persons recommended by the municipal committee of the
political party whose mayoral candidate received the second
highest votes in the most recent mayoral election. The seventh
member of the commission shall be elected at-large by a majority
vote of the other six members and shall serve as chairman of the
§8-3A-23. Amendment of home rule charter by initiative petition
or ordinance and referendum.
A referendum on the question of amendment of a home rule
charter may be initiated by voters of the municipality, and a
referendum on the question of amendment of a home rule charter
may be initiated by an ordinance of the governing body.
§8-3A-24. Referendum petition; limitations.
A petition containing a proposal for referendum on the
question of amending a home rule charter signed by voters
comprising ten percent of the number of voters voting for the
office of governor in the last gubernatorial general election in
the municipality, or an ordinance of the municipal governing body
proposing amendment of a home rule charter, shall be filed with
the clerk or recorder not later than the thirteenth Tuesday prior
to the next primary, municipal or general election. The petition
and the proceedings therein shall be in the manner and subject to
the provisions of the election laws which relate to the signing,
filing and adjustment of nomination petitions insofar as such
provisions are applicable, except that no referendum petition may
be signed or circulated prior to the twentieth Tuesday before the
election nor later than the thirteenth Tuesday before the
election. The name and address of the person filing the petition shall be clearly stated on the petition.
The clerk or recorder shall review the initiative petition
as to the number and qualifications of signers. If the petition
appears to be defective, the clerk or recorder shall immediately
notify the persons filing the petition of the defect. When the
clerk or recorder finds that the petition as submitted is in
proper order, they shall send copies of the initiative petition
without signatures thereon to the governing body of the
municipality and to the secretary of state. The initiative
petition as submitted to the clerk or recorder, along with a list
of signatories, shall be open to inspection in the office of the
clerk or recorder.
§8-3A-25. Procedure upon determination of proper form.
A referendum on the question of the amendment of a home rule
charter shall be held when the clerk or recorder finds that the
initiative petition or ordinance of the governing body is in
proper order and the referendum shall be governed by the
provisions of this code. The governing body upon certification
from the clerk or recorder shall cause the question to be
submitted to the voters of the municipality at the next primary, general or municipal election occurring not less than the
thirteenth Tuesday following the filing of the initiative
petition or ordinance with the clerk or recorder. At such
election, the question shall be submitted to the voters in the
same manner as other questions are submitted under the provisions
of this code. The governing body shall frame the questions to be
placed upon the ballot.
§8-3A-26. Procedure as to election; results.
All elections provided in this article shall be conducted by
the election officials for such municipality in accordance with
this code. The election officials shall count the votes cast and
make return thereof to the city clerk or recorder. The result of
any such election shall be computed in the same manner as is
provided by law for the computation of similar returns.
Certificates of the result of any such election shall be filed
with the municipal council.
§8-3A-27. Notice of election; posting and publication.
At least thirty days' notice of each election herein
provided for shall be given by the clerk or recorder of the
municipality. A copy of such notice shall be posted at each polling place of the municipality on the day of the election, and
shall be published in at least one newspaper of general
circulation in the municipality once a week for three consecutive
weeks during the period of thirty days prior to the election.
PART III. GENERAL POWER AND LIMITATIONS OF
HOME RULE CHARTER MUNICIPALITY.
§8-3A-28. Powers of municipality adopting home rule charter.
A municipality which has adopted a home rule charter may
exercise any powers and perform any function not denied by the
Constitution of the state of West Virginia, by its home rule
charter or by the Legislature at any time. All grants of
municipal power to municipalities governed by a home rule charter
under this article, whether in the form of specific enumeration
or general terms, shall be liberally construed in favor of the
§8-3A-29. Limitations on home rule charter power.
(a) With respect to the following subjects the home rule
charter adopted in accordance with the provisions of this article
may not give any power or authority to the municipality contrary
to, or in limitation or enlargement of, powers granted by acts of the Legislature which are applicable to a class or classes of
(1) The filing and collection of municipal tax claims or
liens and the sale of real or personal property in satisfaction
(2) The procedures in the exercise of the powers of eminent
domain, and the assessment of damages and benefits for property
taken, injured or destroyed.
(3) Boundary changes of municipalities.
(4) The registration of voters and the conduct of elections.
(5) Defining or providing for the punishment of any felony
Unless prohibited by the Constitution of the state of West
Virginia, the provisions of any other act of the Legislature, the
provisions of this article or its home rule charter, a
municipality which has adopted a home rule charter has the power
and authority to enact and enforce local tax ordinances upon any
subject of taxation that could be enacted by the Legislature of
this state, at any rate of taxation determined by the governing
body. No home rule municipality may establish or levy a rate of taxation upon nonresidents which is greater than the rate which
such municipality would have been authorized to levy on
nonresidents but for the adoption of a home rule charter. The
governing body of a home rule municipality is not subject to any
limitation on the rates of taxation imposed upon residents.
(b) No municipality may (i) engage in any proprietary or
private business except as authorized by the Legislature, (ii)
exercise powers contrary to, or in limitation or enlargement of
powers granted by acts of the Legislature which are applicable in
every part of the state of West Virginia, (iii) be given the
power to diminish the rights or privileges of any former
municipal employee entitled to benefits or any present municipal
employee in his or her pension or retirement system, (iv) enact
or promulgate any ordinance or regulation with respect to
definition, sanitation, safety, health, standards of identity or
labeling pertaining to the manufacture, processing, storage,
distribution and sale of any foods, goods or services subject to
any state laws or regulations unless such municipal ordinance or
regulation is uniform in all respects with such state laws and
regulations. Nothing herein contained shall be construed to in any way affect the power of any municipality to enact and enforce
ordinances relating to building codes or any other safety,
sanitation or health regulation pertaining thereto, nor (v) enact
any provision inconsistent with any statute heretofore enacted by
the Legislature affecting the rights, benefits or working
conditions of any employee of a political subdivision of the
state of West Virginia.
(c) Acts of the Legislature in effect on the effective date
of this article that are uniform and applicable in every part of
the state remain in effect and are not changed or modified by
this article. Acts of the Legislature enacted after the
effective date of this article that are uniform and applicable in
every part of the state supersede any municipal ordinance or
resolution on the same subject.
(d) Nothing contained herein may limit or take away any
right of a municipality which adopts a home rule charter from
levying any tax which it had the power to levy had it not adopted
a home rule charter.
(e) No provision of this article or any other act of the
Legislature may limit a municipality which adopts a home rule charter from establishing its own rates of taxation upon all
authorized subjects of taxation.
§8-3A-30. Municipalities may sue and be sued; seal.
Municipalities adopting a home rule charter may sue and be
sued, have a corporate seal, contract and be contracted with,
buy, sell, lease, hold and dispose of real and personal property,
appropriate and expend moneys, and adopt, amend and repeal such
ordinances and resolutions as may be required for the good
§8-3A-31. Clerk or recorder to record new charter.
The municipal clerk or recorder of the municipality shall
forthwith cause the new charter as approved by the qualified
voters to be recorded in the ordinance books of the
municipality. He shall also file a certified copy thereof in the
office of the secretary of the state and with the clerk of the
county commission wherein the municipality is situate.
§8-3A-32. Holding over in office.
All elective officials of the municipality in office at the
time of the adoption of a home rule charter shall continue in
office until their terms expire.
§8-3A-33. Procedure for repeal of home rule charter.
The procedure for repeal of a home rule charter is the same
as for adoption of a home rule charter. Whenever the voters of
any municipality, by a majority vote of those voting on the
question, vote in favor of repeal of a home rule charter and the
establishment of a particular form of government, such
municipality shall be governed under the form of government
selected by the voters, from the first Monday of January
following the municipal election at which the elective officials
of the form of government selected by the voters have been
elected. The government study commission shall provide in its
report for the new form of government to be established.
The elective officials of the municipality under a new form
of government selected by the voters shall be elected at the
first municipal election held after the referendum on the repeal
of a home rule charter or at such later date as may be specified
by the commission in its report.
§8-3A-34. Transition to home rule charter plan.
Whenever the voters of a municipality adopt the home rule
charter provided by this article at any election for that purpose, such municipality shall be governed under the provisions
of such plan, the provisions of general law applicable to that
class of municipality and this article from the first Monday in
January following the municipal election, occurring after the
next succeeding primary election, except as provided in
subsection (b), section sixteen of this article.
§8-3A-35. Existing council; term of office.
(a) Any elected municipal official in office at the time of
the adoption of the home rule charter plan provided by this
article shall continue in office only until the new home rule
charter plan of government goes into effect as provided in
section thirty-four of this article except as otherwise provided
in subsections (c) and (d) of this section.
(b) At the municipal election next succeeding the adoption
of the home rule charter plan provided for in this article, if
four or less councilmen are elected, they shall serve for terms
of four years. If five are elected, the four successful
candidates receiving the highest percentage of votes cast for the
office to which they are elected shall serve for terms of four
years, and the candidate receiving the next highest percentage of votes shall serve for a term of two years. If six or more
councilmen are elected, the five candidates receiving the highest
percentage of the votes cast for the office to which they are
elected shall serve for terms of four years, and the remaining
successful candidates receiving the next highest percentage of
votes shall serve for terms of two years. Thereafter, all
councilmen shall be elected for terms of four years: Provided,
That where the term of office for councilmen under the adopted
home rule charter plan is different from the term of office for
councilmen under an existing form of government the terms of
office for councilmen so elected shall be established so that at
each subsequent regular municipal election at which councilmen
are elected, the number of councilmen to be elected shall be as
nearly equal as possible to the number of councilmen to be
elected at every other regular municipal election at which
councilmen are elected.
(c) If an elected municipal clerk or recorder is in office
at the time of the adoption of a home rule charter plan under the
provisions of this article, such clerk or recorder, as the case
may be, may not be elected or appointed to take office until after the resignation, death, removal or expiration of the term
of the clerk or recorder.
At the expiration of the term of the clerk or recorder in
office at the time of the adoption of a home rule charter plan
under the provisions of this article, such clerk or recorder, as
the case may be, shall be elected or appointed for the full term
for the office as provided by the home rule charter.
(d) Any member of a municipal governing body in office at
the time of the adoption of a home rule charter plan shall remain
in office, continuing as an at-large or ward councilman, as the
case may be, until the expiration of his term in office, and
shall receive the compensation provided by law at that time:
Provided, That if that councilman was elected on an at-large
basis, the newly adopted home rule charter plan provides for a
total number of at-large councilmen equal to or exceeding the
total number of at-large councilmen under the existing form of
government; or, if that councilman was elected on a ward basis,
the ward from which that councilman was elected remains unchanged
and continues to encompass the exact same geographical area under
the newly adopted home rule charter plan as under the existing form of government, and the number of councilmen to be elected
from that ward under the newly adopted home rule charter plan is
equal to or exceeds the number elected from that ward under the
existing form of government. Any such councilman may, by writing
filed with the municipal clerk or recorder, direct that any
portion of his annual compensation for serving in office be
returned to the municipal treasury. For the purpose of this
section, a mayor who is also a member of the council under an
existing plan shall be considered as a member of the council, and
after the new plan goes into effect, his duties shall be only
those of a member of council as prescribed by the new plan.
(e) At the municipal election next succeeding the adoption
of the home rule charter plan provided in this article, the
number of councilmen prescribed by the terms in the plan less the
number of councilmen then in office whose terms do not expire on
the first Monday of January next following, as may be determined
by subsection (d) of this section shall be elected.
(f) If any vacancies in council occurring by reason of
resignation, death or removal exist ninety days or more before
such election they shall be filled for the remainder of the term of the person originally elected to that office.
§8-3A-36. Existing ordinances and resolutions; effect of
On the effective date of a home rule charter plan adopted
pursuant to this article, all ordinances and resolutions of the
municipality to the extent that they are not inconsistent with
the provisions of this article shall remain in full force and
effect until modified or repealed by law.
§8-3A-37. Ratification of proceedings.
All actions and proceedings of a legislative, executive or
judicial character, which are pending upon the effective date of
a home rule charter plan adopted pursuant to this article, may
continue and the appropriate officer or employee under such home
rule charter plan shall be substituted for the officer or
employee theretofore exercising or discharging the function,
power or duty involved in such action or proceeding.
PART IV. GENERAL.
§8-3A-38. Retention of existing form of government.
In case the voters of any municipality disapprove a proposal
to adopt a home rule charter the municipality shall retain its existing form of government.
§8-3A-39. Repeal of inconsistent portions.
All articles and parts of articles of this code dealing with
home rule charters are repealed insofar as they are inconsistent
§8-3A-40. Invalidity; severability.
If any provisions of this article, or the application of
such provision to any person or circumstances, shall be held
invalid, the remainder of the article and the application of such
provision to persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby.
§8-3A-41. Effective date.
This article shall be effective as of the first day of July,
one thousand nine hundred ninety-five.
NOTE: The purpose of this bill is to give municipalities
the option to adopt home rule charter plans of government.
This article is new; therefore, strike-throughs and
underscoring have been omitted.