Senate Bill No. 736

(By Senators Wooton, Kessler, Minard, Mitchell, Redd, Rowe, Snyder, Deem, Facemyer and McKenzie)

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[Originating in the Committee on the Judiciary;


reported April 12, 2001.]

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A BILL to amend and reenact sections one and four, article seven, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section four-a, all relating to increasing compensation of elected county officials and county commissioners; recognizing extra duties imposed upon county commissioners, sheriffs, county and circuit clerks, assessors and prosecuting attorneys in each county; setting forth effective dates; and providing for certain prosecuting attorneys to become full time.

Be it enacted by the Legislature of West Virginia:
That sections one and four, article seven, chapter seven of the code of West Virginia, one thousand nine hundred and thirty- one, as amended, be amended and reenacted; and that said article seven be further amended by adding a new section, designated section four-a, all to read as follows:
ARTICLE 7. COMPENSATION OF ELECTED COUNTY OFFICIALS.
§7-7-1. Legislative findings and purpose.
The Legislature finds and declares that the county officials' association, the county commissioners' association, the prosecuting attorneys' association, the county clerks' association, the assessors' association, the sheriffs association and the circuit clerks association approached the Legislature requesting that the state's fifty-five counties be reclassified and requested that all county officials be given increases in compensation. Inasmuch as these various county associations have better insight into the needs at the county level, the Legislature finds that there is a need to reclassify the fifty-five counties into groups which more accurately reflect the assessed valuations of property of all classes in the counties and to provide increases in compensation to the various county officials to reflect the class of county by which they are employed.
(a) The Legislature hereby further finds that it has, since the first day of January, one thousand nine hundred ninety-seven, consistently and annually imposed upon the county commissioners, sheriffs, county and circuit clerks, assessors and prosecuting attorneys in each county broad, new and additional duties by the enactment of new provisions and amendments to this code. The new and additional duties imposed upon the aforesaid county officials by these enactments are such that they would justify the increases in compensation as provided in section four of this article, without violating the provisions of section 38, article VI of the Constitution of West Virginia.
(b) The Legislature hereby further finds that there are, from time to time, additional duties imposed upon all county officials through the acts of the Congress of the United States, and that such the acts constitute new and additional duties for county officials and, as such, justify the increases in compensation as provided by section four of this article, without violating the provisions of section 38, article VI of the Constitution of West Virginia.
(c) The Legislature hereby further finds that there is a direct correlation between the total assessed property valuations of a county on which the salary levels of the county commissioners, sheriffs, county and circuit clerks, assessors and prosecuting attorneys are based, and the new and additional duties that each of these officials is required to perform as they serve the best interests of their respective counties. Inasmuch as the reappraisal of the property valuations in each county has now been accomplished, the Legislature finds that a change in classification of counties by virtue of increased property valuations will occur on an infrequent basis. However, it is the further finding of the Legislature that when such the change in classification of counties does occur, that new and additional programs, economic developments, requirements of public safety and the need for new services provided by county officials all increase, that the same constitute new and additional duties for county officials as their respective counties reach greater heights of economic development, as exemplified by the substantial increases in property valuations and, as such, justify the increases in compensation provided in section four of this article, without violating the provisions of section 38, article VI of the Constitution of West Virginia.
(d) The Legislature hereby further finds and declares that the amendments made by this act enacted to this article are intended to modify the provisions of this article so as to cause the same to be in full compliance with the provisions of the Constitution of West Virginia, and to be in full compliance with the decisions of the supreme court of appeals of West Virginia.
§7-7-4. Compensation of elected county officials and county commissioners for each class of county; effective date.

(a)(1) All county commissioners shall be paid compensation out of the county treasury in amounts and according to the schedule hereafter set forth for each class of county as determined by the provisions of section three of this article: Provided, That as to any county having a tribunal in lieu of a county commission, the county commissioners of the county may be paid less than the minimum compensation limits of the county commission for the particular class of such county.
Class I
$ 20,000

Class II
$ 15,500

Class III
$ 14,000

Class IV
$ 10,000

Class V
$ 7,000

Class VI
$ 4,000

(2) The compensation hereinabove provided shall be paid on and after the first day of January, one thousand nine hundred eighty-five, to each county commissioner. Within each county, every county commissioner whose term of office commenced prior to the first day of January, one thousand nine hundred eighty-five, shall receive the same annual compensation as commissioners commencing a term of office on or after that date by virtue of the new duties imposed upon county commissioners pursuant to the provisions of chapter fifteen, acts of the Legislature, first extraordinary session, one thousand nine hundred eighty-three.
(3) For the purpose of determining the compensation to be paid to the elected county officials of each county, the following compensations for each office by class are hereby established and shall be used by each county commission in determining the compensation of each of their county officials other than compensation of members of the commission:
County
Circuit
Prosecuting

Sheriff
Clerk
Clerk
Assessor
Attorney

Class I
$24,200
$31,300
$31,300
$24,200
$41,500

Class II
$24,200
$28,000
$28,000
$24,200
$39,500

Class III
$24,200
$28,000
$28,000
$24,200
$30,000

Class IV
$22,300
$24,000
$24,000
$22,300
$26,500

Class V$20,400
$22,000
$22,000
$20,400
$23,500

Class VI
$17,200
$17,200
$17,200
$17.200
$17,000

(4) Any county clerk, circuit clerk, joint clerk of the county commission and circuit court, if any, county assessor, sheriff and prosecuting attorney of a Class I county, any assessor of a Class II and Class III county, any sheriff of a Class II and Class III county and any prosecuting attorney of a Class II county shall devote full time to his or her public duties to the exclusion of any other employment: Provided, That any public official, whose term of office begins when his or her county's classification imposes no restriction on his or her outside activities, shall not be restricted on his or her outside activities during the remainder of the term for which he or she is elected. The compensation hereinabove provided shall be paid on and after the first day of January, one thousand nine hundred and eighty-five, to each elected county official.
(5) In the case of a county that has a joint clerk of the county commission and circuit court, the compensation of the joint clerk shall be fixed in an amount twenty-five per cent higher than the compensation would be fixed for the county clerk if it had separate offices of county clerk and circuit clerk.
(6) The Legislature finds as a fact that the duties imposed upon county clerks by the provisions of chapter sixty-four, acts of the Legislature, regular session, one thousand nine hundred eighty- two, and by chapter fifteen, acts of the Legislature, first extraordinary session, one thousand nine hundred eighty-three, constitute new and additional duties for county clerks and as such justify the additional compensation provided in this section without violating the provisions of section 38, article VI of the constitution of West Virginia.
(7) The Legislature further finds as a fact that the duties imposed upon circuit clerks by the provisions of chapters sixty-one and one hundred eighty-two, acts of the Legislature, regular session, one thousand nine hundred eighty-one, and by chapter sixty, acts of the Legislature, regular session, one thousand nine hundred eighty-three, constitute new and additional duties for circuit clerks and as such justify the additional compensation provided by this section without violating the provisions of section 38, article VI of the constitution of West Virginia.
(b)(1) Prior to the primary election in the year one thousand nine hundred ninety-two, and for the fiscal year beginning on the first day of July, one thousand nine hundred and ninety-two, or for any subsequent fiscal year if the approval set out herein is not granted for any fiscal year, and at least thirty days prior to the meeting to approve the county budget, the commission shall provide notice to the public of the date and time of the meeting and that the purpose of the meeting of the county commission is to decide upon their budget certification to the tax department auditor. Upon submission by the county commission to the chief inspector division of the department of tax and revenue auditor's office of a proposed annual budget which contains anticipated receipts into the county's general revenue fund, less anticipated moneys from the unencumbered fund balance, equal to anticipated receipts into the county's general revenue fund, less anticipated moneys from the unencumbered fund balance and any federal or state special grants, for the immediately preceding fiscal year, plus such additional amount as is necessary for payment of the increases in the salaries set out herein and related employment taxes over that paid for the immediately preceding fiscal year, and upon approval thereof by the chief inspector, which approval shall not be granted for any proposed annual budget containing anticipated receipts which are unreasonably greater or lesser than that of the immediately preceding fiscal year, for the purpose of determining the compensation to be paid to the elected county officials of each county office by class are hereby established and shall be used by each county commission in determining the compensation of each of their county officials: Provided, That as to any county having a tribunal in lieu of a county commission, the county commissioners of the county may be paid less than the minimum compensation limits of the county commission for the particular class of the county.
COUNTY COMMISSIONERS
Class I
$24,000

Class II
$18,600

Class III
$16,800

Class IV
$12,000

Class V
$8,400

(2) If the approval set out hereinabove is granted, the compensation hereinabove provided shall be paid on and after the first day of January, one thousand nine hundred ninety-three, to each county commissioner. Within each county, every county commissioner shall receive the same annual compensation by virtue of the new duties imposed upon county commissioners pursuant to the provisions of chapter one hundred seventy-two, acts of the Legislature, second regular session, one thousand nine hundred ninety, and chapter five, acts of the Legislature, third extraordinary session, one thousand nine hundred ninety.
OTHER ELECTED OFFICIALS
County
Circuit
Prosecuting

Sheriff
Clerk
Clerk
Assessor
Attorney

Class I
$29,040
$37,560
$37,560
$29,040
$59,500

Class II
$29,040
$33,600
$33,600
$29,040
$59,500

Class III
$29,040
$33,600
$33,600
$29,040
$36,000

Class IV
$26,760
$28,800
$28,800
$26,760
$31,800

Class V
$24,480
$26,400
$26,400
$24,480
$28,200

Class VI
$24,480
$26,400
$26,400
$24,480
$28,200

(3) Any county clerk, circuit clerk, joint clerk of the county commission and circuit court, if any, county assessor, sheriff and prosecuting attorney of a Class I county any assessor of a Class II and Class III county, any sheriff of a Class II and Class III county and any prosecuting attorney of a Class II county shall devote full time to his or her public duties to the exclusion of any other employment: Provided, That any public official, whose term of office begins when his or her county's classification imposes no restriction on his or her outside activities, shall not be restricted on his or her outside activities during the remainder of the term for which he or she is elected. If the approval set out hereinabove is granted, the compensation hereinabove provided shall be paid on and after the first day of January, one thousand nine hundred ninety-three, to each elected county official.
(4) In the case of a county that has a joint clerk of the county commission and circuit court, the compensation of the joint clerk shall be fixed in an amount twenty-five per cent higher than the compensation would be fixed for the county clerk if it had separate offices of county clerk and circuit clerk.
(5) Prior to the primary election in the year one thousand nine hundred ninety-two, in the case of a Class III, Class IV or Class V county which has a part-time prosecuting attorney, the county commission may find that such facts and circumstances exist that require the prosecuting attorney to devote full time to his or her public duties for the four-year term, beginning the first day of January, one thousand nine hundred ninety-three. If the county commission makes such a finding, it may be proper order adopted and entered, require the prosecuting attorney who takes office on the first day of January, one thousand nine hundred and ninety-three, to devote full time to his or her public duties and the county commission shall then compensate said prosecuting attorney at the same rate of compensation as that of a prosecuting attorney in a Class II county.
(6) For any county: (1) Which on and after the first day of July, one thousand nine hundred ninety-four, is classified as a Class II county; and (2) which prior to such date was classified as a Class III, Class IV or Class V county and maintained a part-time prosecuting attorney, the county commission may elect to maintain the prosecuting attorney as a part-time prosecuting attorney. The part-time prosecuting attorney shall be compensated at the same rate of compensation as that of a prosecuting attorney in the class for the county prior to being classified as a Class II county.
(c)(1) Prior to the primary election in the year one thousand nine hundred ninety-six, and for the fiscal year beginning on the first day of July, one thousand nine hundred ninety-six, or for any subsequent fiscal year if the approval set out herein is not granted for any fiscal year, and at least thirty days prior to the meeting to approve the county budget, the commission shall provide notice to the public of the date and time of the meeting and that the purpose of the meeting of the county commission is to decide upon their budget certification to the tax department auditor. Upon submission by the county commission to the chief inspector division of the department of tax and revenue the auditor of a proposed annual budget which contains anticipated receipts into the county's general revenue fund, less anticipated moneys from the unencumbered fund balance, equal to anticipated receipts into the county's general revenue fund, less anticipated moneys from the unencumbered fund balance and any federal or state special grants, for the fiscal year beginning the first day of July, one thousand nine hundred ninety-six, plus such additional amount as is necessary for payment of the increases in the salaries set out herein and related employment taxes over that paid for the immediately preceding fiscal year, and upon approval thereof by the West Virginia State Auditor's office auditor, which approval shall not be granted for any proposed annual budget containing anticipated receipts which are unreasonably greater or lesser than that of the immediately preceding fiscal year for the purpose of determining the compensation to be paid to the elected county officials of each county office by class are hereby established and shall be used by each county commission in determining whether county revenues are sufficient to pay the compensation mandated herein for their county officials: Provided, That as to any county having a tribunal in lieu of a county commission, the county commissioners of the county may be paid less than the minimum compensation limits of the county commission for the particular class of the county: Provided, however, That should there be an insufficient projected increase in revenues to pay the compensation and related employment taxes mandated herein, then the compensation of that county's elected officials shall remain at the level in effect at the time certification was sought.
COUNTY COMMISSIONERS

Class I$28,000
Class II$27,500
Class III$27,000
Class IV$26,500
Class V$26,000
Class VI$21,500
Class VII$21,000
Class VIII$19,000
Class IX$18,500
Class X$15,000
(2) The compensation hereinabove provided shall be paid on and after the first day of January, one thousand nine hundred ninety-seven, to each county commissioner. Within each county, every county commissioner whose term of office commenced prior to or on or after the first day of January, one thousand nine hundred ninety- seven, shall receive the same annual compensation by virtue of legislative findings of extra duties as set forth in section one of this article.
(3) For the purpose of determining the compensation to be paid to the elected county officials of each county, the following compensations for each county office by class are hereby established and shall be used by each county commission in determining the compensation of each of their county officials other than compensation of members of the county commission:
OTHER ELECTED OFFICIALS

CountyCircuitProsecuting
SheriffClerkClerkAssessorAttorney
Class I$34,000$42,000$42,000$34,000$76,000
Class II$33,500$41,500$41,500$33,500$74,000
Class III$33,250$40,500$40,500$33,250$72,000
Class IV$33,000$40,250$40,250$33,000$70,000
Class V$32,750$40,000$40,000$32,750$68,000
Class VI$32,500$37,500$37,500$32,500$45,000
Class VII$32,250$37,000$37,000$32,250$43,000
Class VIII$32,000$36,500$36,500$32,000$41,000
Class IX$31,750$36,000$36,000$31,750$38,000
Class X$29,000$32,000$32,000$29,000$35,000
(4) The compensation hereinabove provided shall be paid on and after the first day of January, one thousand nine hundred ninety-seven, to each elected county official. Any county clerk, circuit clerk, joint clerk of the county commission and circuit court, if any, county assessor or sheriff of a Class I through Class V county, inclusive, any assessor or any sheriff of a Class VI through Class IX county, inclusive, shall devote full time to his or her public duties to the exclusion of any other employment: Provided, That any public official, whose term of office begins when his or her county's classification imposes no restriction on his or her outside activities, shall not be restricted on his or her outside activities during the remainder of the term for which he or she is elected.
(5) In the case of a county that has a joint clerk of the county commission and circuit court, the compensation of the joint clerk shall be fixed in an amount twenty-five percent higher than the compensation would be fixed for the county clerk if it had separate offices of county clerk and circuit clerk.
(6) Any prosecuting attorney of a Class I through Class V county, inclusive, shall devote full time to his or her public duties to the exclusion of any other employment: Provided, That any county which under the prior provisions of this section was classified as a Class II county and elected to maintain a part-time prosecutor may continue to maintain a part-time prosecutor, until such time as the county commission, on request of the part-time prosecutor, approves and makes a finding, by proper order entered, that the prosecuting attorney shall devote full time to his or her public duties. The county commission shall then compensate said prosecuting attorney at the same rate of compensation as that of a prosecuting attorney in a Class V county: Provided, however, That any county which under the prior provisions of this section was classified as a Class II county and which did not elect to maintain a part-time prosecutor shall maintain a full-time prosecuting attorney and shall compensate said prosecuting attorney at the same rate of compensation as that of a prosecuting attorney in a Class V county: Provided further, That, until the first day of January, two thousand one, when a vacancy occurs in the office of prosecuting attorney prior to the end of a term, the county commission of a Class IV or Class V county may elect to allow the position to become part time for the end of that term, and thereafter the position of prosecuting attorney shall become full time.
(d)(1) The compensation to be paid to the elected county officials on and after the first day of January, two thousand three is set forth below: Provided, That the chief inspector's division of the auditor's office has certified that the proposed annual county budget for that fiscal year has increased over the previous fiscal year in an amount sufficient for the payment of the increase in the salaries set out herein and related employment taxes: Provided, however, That the chief inspector may not approve the budget certification for any proposed annual county budget containing anticipated receipts which are unreasonably greater or lesser than that of the previous year. For purposes of this subdivision, the term "receipts" does not include unencumbered fund balance or federal or state grants: Provided further, That as to any county having a tribunal in lieu of a county commission, the county commissioners of the county may be paid less than the minimum compensation limits of the county commission for the particular class of the county: And provided further, That should there be an insufficient projected increase in revenues to pay the compensation and related employment taxes mandated herein, then the compensation of that county's elected officials shall remain at the level in effect at the time certification was sought.
COUNTY COMMISSIONERS

Class I
$32,200

Class II
$31,625

Class III
$31,050

Class IV
$30,475

Class V
$29,900

Class VI
$24,725

Class VII
$24,150

Class VIII
$21,850

Class IX
$21,275

Class X
$17,250

(2) The compensation hereinabove provided shall be paid on and after the first day of January, two thousand three, to each county commissioner. Within each county, every county commissioner whose term of office commenced prior to or on or after the first day of January, two thousand three, shall receive the same annual compensation by virtue of legislative findings of extra duties as set forth in section one of this article.
(3) For the purpose of determining the compensation to be paid to the elected county officials of each county, the following compensations for each county office by class are hereby established and shall be used by each county commission in determining the compensation of each of their county officials other than compensation of members of the county commission:
OTHER ELECTED OFFICIALS
County
CircuitProsecuting

Sheriff Clerk
ClerkAssessor Attorney

Class I
$39,100$50,400$50,400$39,100
$87,400

Class II
$38,525
$49,800$49,800$38,525$85,100

Class III
$38,238
$48,600
$48,600$38,238$82,800

Class IV
$37,950
$48,300$48,300$37,950$80,500

Class V
$37,663
$48,000$48,000$37,663$78,200

Class VI
$37,375
$45,000$45,000$37,375$51,750

Class VII
$37,088
$44,400$44,400$37,088$49,450

Class VIII
$36,800
$43,800$43,800$36,800$47,150

Class IX
$36,512
$43,200$43,200$36,512$43,700

Class X
$33,350
$38,400$38,400$33,350$40,250

(4) The compensation hereinabove provided shall be paid on and

after the first day of January, two thousand three, to each elected county official. Any county clerk, circuit clerk, joint clerk of the county commission and circuit court, if any, county assessor or sheriff of a Class I through Class V county, inclusive, any assessor or any sheriff of a Class VI through Class IX county, inclusive, shall devote full time to his or her public duties to the exclusion of any other employment: Provided, That any public official, whose term of office begins when his or her county's classification imposes no restriction on his or her outside activities, shall not be restricted on his or her outside activities during the remainder of the term for which he or she is elected.
(5) In the case of a county that has a joint clerk of the county commission and circuit court, the compensation of the joint clerk shall be fixed in an amount twenty-five per cent higher than the compensation would be fixed for the county clerk if it had separate offices of county clerk and circuit clerk.
(6) Any prosecuting attorney of a Class I through Class V county, inclusive, shall devote full time to his or her public duties to the exclusion of any other employment: Provided, That any county which under the prior provisions of this section was classified as a Class II county and elected to maintain a part-time prosecutor may continue to maintain a part-time prosecutor, until such time as the county commission, on request of the part-time prosecutor, approves and makes a finding, by proper order entered, that the prosecuting attorney shall devote full time to his or her public duties. The county commission shall then compensate said prosecutor at the same rate of compensation as that of a prosecuting attorney in a Class V county: Provided, however, That any county which under the prior provisions of this section was classified as a Class II county and which did not elect to maintain a part-time prosecutor shall maintain a full-time prosecuting attorney and shall compensate said prosecuting attorney at the same rate of compensation as that of a prosecuting attorney in a Class V county: Provided further, That, until the first day of January, two thousand three, when a vacancy occurs in the office of prosecuting attorney prior to the end of a term, the county commission of a Class IV or Class V county may elect to allow the position to become part time for the end of that term, and thereafter the position of prosecuting attorney shall become full time.
§7-7-4a. Authorizing the option of full-time status for part-time prosecuting attorneys.

Notwithstanding any provision of this code to the contrary, in any county which has a part-time prosecuting attorney the county commission may, on the request of the prosecuting attorney, find that such facts and circumstances exist that require the prosecuting attorney to devote full time to his or her public duties. If the county commission makes such a finding, by proper order adopted and entered, it shall require the prosecuting attorney to devote full time to his or her public duties and the county commission shall then compensate the prosecuting attorney at the same rate of compensation established for a prosecuting attorney in a Class V county: Provided, That nothing contained herein may be interpreted to affect the status of a prosecuting attorney who has heretofore, by proper order so entered, become full time.

NOTE: The purpose of this bill is to authorize pay raises for elected county officials where county moneys and to authorize counties to make part-time prosecutors full time.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§7-7-4a is new; therefore, strike-throughs and underscoring have been omitted.