PART I. PURPOSE AND SHORT TITLE.

§8-1-1. Purpose and short title.

The purpose of this chapter is to effect a recodification of the basic municipal law of this state and of various statutory provisions relating to certain intergovernmental relations involving municipalities, counties and other units of government, to provide as much uniformity as possible between the powers, authority, duties and responsibilities of special legislative charter municipalities and all other municipalities, and to give effect to the "Municipal Home Rule Amendment" to the Constitution of this state, being section thirty-nine-(a), article six of said Constitution.

For convenience of reference, this chapter may be known and cited as the "Municipal Code of West Virginia."

Part II. Definitions.

§8-1-2. Definitions of terms.

(a) For the purpose of this chapter:

(1) “Municipality” is a word of art and shall mean and include 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;

(2) “City” is a word of art and shall mean, include, and be limited to any Class I, Class II, and Class III city, as classified in section three of this article (except in those instances where the context in which used clearly indicates that a particular class of city is intended), heretofore or hereafter incorporated as a municipal corporation under the laws of this state, however created and whether operating under: (i) A special legislative charter; (ii) a home rule charter framed and adopted or revised as a whole or amended under the provisions of former §8A-1-1 et seq. of this code, or under the provisions of §8-3-1 or §8-4-1 of this code; (iii) general law, or (iv) any combination of the foregoing; and

(3) “Town or village” is a term of art and shall, notwithstanding the provisions of §2-2-10 of this code, mean, include, and be limited to any Class IV town or village, as classified in §8-3-1 of this code, heretofore or hereafter incorporated as a municipal corporation under the laws of this state, however created and whether operating under: (i) A special legislative charter; (ii) general law; or (iii) a combination of the foregoing.

(b) For the purpose of this chapter, unless the context clearly requires a different meaning:

(1) “Governing body” shall mean 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 shall also mean the county commission of any county or governing board of other units of government referred to in said articles;

(2) “Councilmen” shall mean the members of a governing body, by whatever name such members may be called;

(3) “Mayor” shall mean the individual called mayor unless as to a particular municipality a commissioner (in a commission form of government) or the city manager (in a manager form of government) is designated or constituted by charter provision as the principal or chief executive officer or chief administrator thereof, in which event the term “mayor” shall mean as to such municipality such commissioner or city manager unless as to any particular power, authority, duty or function specified in this chapter to be exercised, discharged or fulfilled by the mayor it is provided by charter provision or ordinance that such particular power, authority, duty, or function shall be exercised, discharged, or fulfilled by the individual called mayor and not by a commissioner or city manager, in which event such particular power, authority, duty, or function shall in fact be exercised, discharged, or fulfilled in and for such municipality by the individual called mayor: Provided, That in the exercise and discharge of the ex officio justice of the peace, conservator of the peace, and mayor’s court functions specified in this chapter, the term “mayor” shall always mean the individual called mayor;

(4) “Recorder” shall mean the recorder, clerk, or other municipal officer, by whatever name called, charged with the responsibility of keeping the journal of the proceedings of the governing body of the municipality and other municipal records;

(5) “Treasurer” shall mean the treasurer or other municipal officer, by whatever name called, exercising the power and authority commonly exercised by a treasurer;

(6) “Administrative authority” shall mean the officer, commission, or person responsible for the conduct and management of the affairs of the municipality in accordance with the charter, general law, and the ordinances, resolutions, and orders of the governing body thereof;

(7) “Charter” shall mean, except where specific reference is made to a particular type of charter, either a special legislative charter (whether or not amended under the provisions of former §8A-1-1 et seq. of this code, or under article four of this chapter, and although so amended, such special legislative charter shall, for the purposes of this chapter, remain a special legislative charter), or a home rule charter framed and adopted or revised as a whole or amended by a city under the provisions of former §8A-1-1 et seq. of this code or under the provisions of article three or article four of this chapter;

(8) “Ordinance” shall mean the ordinances and laws enacted by the governing body of a municipality in the exercise of its legislative power, and in one or more articles of this chapter, ordinances enacted by a county commission;

(9) “Inconsistent or in conflict with” shall mean that a charter or ordinance provision is repugnant to the constitution of this state or to general law because such provision: (i) Permits or authorizes that which the constitution or general law forbids or prohibits; or (ii) forbids or prohibits that which the constitution or general law permits or authorizes;

(10) “Qualified elector,” “elector,” “qualified voter,” or “legal voter” shall mean any individual who, at the time he or she offers to vote or at the time he or she participates in any event or activity (such as signing a petition) under the provisions of this chapter for which he or she must be a qualified elector, elector, qualified voter, or legal voter, is a resident within the corporate limits of the municipality or within the boundaries of a territory referred to in this chapter, as the case may be, and who: (i) Has been a resident of the state for one year and of the municipality or territory in question for at 60 sixty days next preceding such election or date pertinent to any such event or activity; and (ii) in the case of a regular municipal election, special municipal election, municipal public question election, or any such municipal event or activity, is duly registered on the municipal registration books set up in the office of the clerk of the county commission of the county in which the municipality or the major portion of the territory thereof is located under the integration of the municipal registration of voters with the “permanent registration system” of the state, or, in the event there be no such integration of the municipal registration of voters, is duly registered in the county in which he or she resides to vote in state-county elections; or (iii) in the case of a territory election, general election, or any such territory event or activity, is duly registered in the county in which he or she resides to vote in state-county elections; and any charter provision or ordinance establishing a voting residency requirement different than that in this definition provided shall be of no force and effect; and in any case where a particular percentage of the qualified electors, electors, qualified voters, or legal voters is required under the provisions of this chapter in connection with any such event or activity as aforesaid, the percentage shall be determined on the basis of the number of qualified electors, electors, qualified voters, or legal voters, as of the time of such event or activity, unless it is impracticable to determine such percentage as of such time and it is provided by ordinance, resolution or order that the percentage shall be determined on the basis of the number of qualified electors, electors, qualified voters, or legal voters, as of the date of the last preceding election (whether a general election, regular municipal election, or special municipal election, and whether or not they voted at such election) held in such municipality or territory, as the case may be;

(11) “Public question” shall mean any issue or proposition required to be submitted to the qualified voters of a municipality or of a territory referred to in this chapter for decision at an election, as the case may be;

(12) “Inhabitant” shall mean any individual who is a resident within the corporate limits of a municipality or within the boundaries of a territory referred to in this chapter, as the case may be;

(13) “Resident” shall mean any individual who maintains a usual and bona fide place of abode within the corporate limits of a municipality or within the boundaries of a territory referred to in this chapter, as the case may be;

(14) “Freeholder” shall mean any person (and in the case of an individual one who is sui juris and is not under a legal disability) owning a “freehold interest in real property”;

(15) “Freehold interest in real property” shall mean any fee, life, mineral, coal, or oil or gas interest in real property, whether legal or equitable, and whether as a joint tenant or a tenant in common, but shall not include a leasehold interest (other than a mineral, coal, or oil or gas leasehold interest), a dower interest, or an interest in a right-of-way or easement, and the freehold interest of a church or other unincorporated association shall be considered as one interest and not as an individual interest of each member thereof;

(16) “County commission” shall mean the governmental body created by section 22, article eight of the Constitution of this state, or any existing tribunal created in lieu of a county commission;

(17) “Code” shall mean the Code of West Virginia, 1931, as heretofore and hereafter amended; and

(18) “Person” shall mean any individual, firm, partnership, corporation, company, association, joint-stock association, or any other entity or organization of whatever character or description.

(c) The term “intergovernmental relations” is used in this chapter to mean undertakings and activities which may be undertaken or engaged in by two or more units of government acting jointly, and in certain headings in this chapter to call attention to the fact that the provisions under such headings apply to units of government in addition to municipalities.

(d) For the purpose of this chapter, unless the context clearly indicates to the contrary, words importing the masculine gender shall include both the masculine and feminine gender, and the phrase “charter-framed and adopted or revised as a whole or amended (or words of like import) under the provisions of former chapter eight-a of this code” shall include a charter-framed and adopted or revised as a whole or amended under the provisions of former article two of former chapter eight of this code.

PART III. GENERAL PROVISIONS.

§8-1-3. Classification of municipal corporations.

Pursuant to the mandate of the "Municipal Home Rule Amendment" to the Constitution of this state, all municipal corporations are hereby classified by population into four classes, as follows:

(1) Every municipal corporation with a population in excess of fifty thousand shall be a Class I city;

(2) Every municipal corporation with a population in excess of ten thousand but not in excess of fifty thousand shall be a Class II city;

(3) Every municipal corporation with a population in excess of two thousand but not in excess of ten thousand shall be a Class III city; and

(4) Every municipal corporation with a population of two thousand or less shall be a Class IV town or village.

Transition from one to another class shall occur automatically when the requisite population qualification has been met, effective as of the effective date of the census, as specified in section four of this article.

The Legislature hereby declares its interpretation of the said "Municipal Home Rule Amendment" to be that a single classification by population of municipal corporations in this state is required which shall exclude any other classification of municipal corporations by population for any purpose. It is, therefore, the intention of the Legislature that the classification established in this section shall give effect to the Constitutional mandate and shall be the only classification by population applying to municipal corporations in this state. It is the further intention of the Legislature that subsequent legislation affecting municipal corporations in this state shall treat municipal corporations differently upon the basis of population, only in accordance with the general classification established in this section.

§8-1-4. How population determined.

For any purpose pertinent to the provisions of this chapter, population shall be determined by reference to the last preceding census taken under the authority of the United States or of the Legislature of West Virginia or by the municipality pursuant to an ordinance adopted thereby, the adoption of any such ordinance being hereby expressly authorized.

§8-1-5. Existing status of municipalities confirmed; powers, authority, duties and responsibilities conferred by law.

The corporate being of every municipality now existing is hereby confirmed and validated. Except as otherwise provided in section six of this article, any municipality shall have all of the powers, authority, duties and responsibilities conferred by law upon a municipality of the class to which it belongs.

§8-1-5a. Municipal Home Rule Program.

(a) — The Legislature finds and declares that:

(1) The initial Municipal Home Rule Pilot Program brought innovative results, including novel municipal ideas that became municipal ordinances which later resulted in new statewide statutes;

(2) The initial Municipal Home Rule Pilot Program also brought novel municipal ideas that resulted in court challenges against some of the participating municipalities;

(3) The Municipal Home Rule Board was an essential part of the initial Municipal Home Rule Pilot Program, but it lacked some needed powers and duties;

(4) Municipalities still face challenges delivering services required by federal and state law or demanded by their constituents;

(5) Municipalities are sometimes restrained by state statutes, policies, and rules that challenge their ability to carry out their duties and responsibilities in a cost-effective, efficient, and timely manner;

(6) Establishing the Municipal Home Rule Pilot Program as a permanent program is in the public interest; and

(7) Increasing the powers and duties of the Municipal Home Rule Board, subject to the limitations set forth herein, will enhance the Municipal Home Rule Program.

 (b) The Municipal Home Rule Pilot Program is established as a permanent program and shall be identified as the Municipal Home Rule Program. Any plan or amendment to a plan approved by the board during the period of the Municipal Home Rule Pilot Program is continued. Any ordinance, act, resolution, rule, or regulation enacted by a participating municipality under the provisions of this section during the period of the Municipal Home Rule Pilot Program shall continue in full force and effect unless and until repealed: Provided, That municipalities that are participants in the Municipal Home Rule Program shall update their ordinances, acts, resolutions, rules, and regulations to comply with any additions or modifications to subsection (i), subsection (j), or subsection (k) of this section.

(c) (1) Commencing July 1, 2019, any Class I, Class II, or Class III municipality that is current in payment of all state fees may apply to participate in the Municipal Home Rule Program pursuant to the provisions of this section. Also, commencing July 1, 2019, up to four applications per year from Class IV municipalities may be approved by the board for participation in the Municipal Home Rule Program pursuant to the provisions of this section, provided the Class IV municipality is current in payment of all state fees.

(2) The municipalities participating in the Municipal Home Rule Pilot Program on the effective date of the amendment and reenactment of this section are authorized to continue in the Municipal Home Rule Program, subject to the requirements of this section, and may amend current written plans and/or submit new written plans in accordance with the provisions of this section.

(3) On July 1, 2019, all municipalities currently participating in the Municipal Home Rule Pilot Program shall pay an annual assessment of $2,000 for the operation and administration of the Home Rule Board. On July 1 of each year thereafter, all municipalities participating in the Municipal Home Rule Program as of that date shall pay the annual assessment. Any participating municipality that fails to timely remit its assessment when due may be assessed a penalty of an additional $2,000 by the board.

(4) There is created in the office of the State Treasurer a special revenue account fund to be known as the Home Rule Board Operations Fund. The assessments required by the provisions of subdivision (3) of this subsection shall be deposited into the fund, and expenditures from the fund shall be made in accordance with appropriation of the Legislature under the provisions of §12-3-1 et seq. of this code, and in compliance with the provisions of §11B-2-1 et seq. of this code: Provided, That legislative appropriation is not required during fiscal year 2019.

(5) Any balance in the fund created under subdivision (4) of this subsection at the end of a fiscal year shall not revert to the General Revenue Fund but shall remain in the special revenue account for uses consistent with the provisions of this section.

(6) All costs and expenses lawfully incurred by the board may be paid from the fund created under subdivision (4) of this subsection.

(7) Notwithstanding any provision of this section to the contrary, if at the end of a fiscal year the unencumbered balance of the fund created in subdivision (4) of this subsection is $200,000 or more, then annual assessments shall be suspended until the board determines that the unencumbered balance in the fund is insufficient to meet operational expenses. The board shall notify all participating municipalities of the suspension of the annual assessment prior to the end of the fiscal year and provide an estimate of when payment of annual assessments will resume.

(d) The Municipal Home Rule Board is continued. The Municipal Home Rule Board shall consist of the following five voting members:

(1) The Governor, or a designee, who shall serve as chair;

(2) The Executive Director of the West Virginia Development Office, or a designee;

(3) One member representing the Business and Industry Council, appointed by the Governor with the advice and consent of the Senate;

(4) One member representing the largest labor organization in the state, appointed by the Governor with the advice and consent of the Senate; and

(5) One member representing the West Virginia Chapter of the American Planning Association, appointed by the Governor with the advice and consent of the Senate.

The Chair of the Senate Committee on Government Organization and the Chair of the House Committee on Government Organization shall serve as ex officio nonvoting members of the board.

(e) The Municipal Home Rule Board shall:

(1) Review, evaluate, make recommendations, and approve or reject, for any lawful reason, by a majority vote of the board, each aspect of the written plan, or the written plan in its entirety, submitted by a municipality;

(2) By a majority vote of the board, select, based on the municipality’s written plan, new Class I, Class II, Class III, and/or Class IV municipalities to participate in the Municipal Home Rule Program;

(3) Review, evaluate, make recommendations, and approve or reject, for any lawful reason, by a majority vote of the board, the amendments to the existing approved written plans submitted by municipalities: Provided, That any new application or amendment that does not reasonably demonstrate the municipality’s ability to manage its associated costs or liabilities shall be rejected;

(4) Consult with any agency affected by the written plans or the amendments to the existing approved written plans; and

(5) Perform any other powers or duties necessary to effectuate the provisions of this section: Provided, That any administrative rules established by the board for the operation of the Municipal Home Rule Program shall be published on the Municipal Home Rule Board’s website, and made available to the public in print upon request.

(f) Any Class I, Class II, Class III, or Class IV municipality desiring to participate in the Municipal Home Rule Program, or any municipality desiring to amend its existing approved written plan, shall submit a written plan to the board stating in detail the following:

(1) The specific laws, acts, resolutions, policies, rules, or regulations which prevent the municipality from carrying out its duties in the most cost-efficient, effective, and timely manner;

(2) The problems created by those laws, acts, resolutions, policies, rules, or regulations;

(3) The proposed solutions to the problems, including all proposed changes to ordinances, acts, resolutions, rules, and regulations: Provided, That the specific municipal ordinance instituting the solution does not have to be included in the written plan; and

(4) A written opinion, by an attorney licensed to practice in the State of West Virginia, stating that the proposed written plan does not violate the provisions of this section.

(g) Prior to submitting its written plan, or an amendment to an existing approved written plan, to the board, the municipality shall:

(1) Hold a public hearing on the written plan or the amendment to the existing approved written plan;

(2) Provide notice of the public hearing at least 30 days prior to the public hearing by a Class II legal advertisement: Provided, That on or before the first day of publication, the municipality shall send a copy of the notice by certified mail to the Municipal Home Rule Board and the cabinet secretary of every state department;

(3) Make a copy of the written plan or amendment available for public inspection at least 30 days prior to the public hearing; and

(4) After the public hearing, adopt an ordinance authorizing the municipality to submit a written plan or amendment to the Municipal Home Rule Board: Provided, That the proposed ordinance has been read two times, as required by §8-11-4 of this code.

(h) By a majority vote, the Municipal Home Rule Board may select from the municipalities that submitted written plans and were approved by the board by majority vote new Class I, Class II, Class III, and/or Class IV municipalities to participate in the Municipal Home Rule Program.

(i) The municipalities participating in the Municipal Home Rule Program may not pass an ordinance, act, resolution, rule, or regulation, under the provisions of this section, that is contrary to the following:

(1) Environmental law;

(2) Laws governing bidding on government construction and other contracts;

(3) The Freedom of Information Act;

(4) The Open Governmental Proceedings Act;

(5) Laws governing wages for construction of public improvements;

(6) The provisions of this section;

(7) The provisions of §8-12-5a of this code;

(8) The municipality’s written plan;

(9) The Constitution of the United States or the Constitution of the State of West Virginia;

(10) Federal law, including those governing crimes and punishment;

(11) Chapters 60A, 61, and 62 of this code or any other provisions of this code governing state crimes and punishment;

(12) Laws governing pensions or retirement plans;

(13) Laws governing annexation;

(14) Laws governing taxation: Provided, That a participating municipality may enact a municipal sales tax up to one percent if it reduces or eliminates its municipal business and occupation tax: Provided, however, That if a municipality subsequently reinstates or raises the municipal business and occupation tax it previously reduced or eliminated under the Municipal Home Rule Pilot Program or the Municipal Home Rule Program, it shall reduce or eliminate the municipal sales tax enacted under the Municipal Home Rule Pilot Program or the Municipal Home Rule Program in an amount comparable to the revenue estimated to be generated by the reinstated tax: Provided further, That any municipality that imposes a municipal sales tax pursuant to this section shall use the services of the Tax Commissioner to administer, enforce, and collect the tax required by the provisions of §11-15-1 et seq., §11-15A-1 et seq., and §11-15B-1 et seq. of this code and all applicable provisions of the Streamlined Sales and Use Tax Agreement: And provided further, That the tax does not apply to the sale of motor fuel or motor vehicles;

(15) Laws governing tax increment financing;

(16) Laws governing extraction of natural resources;

(17) Marriage and divorce laws;

(18) Laws governing professional licensing or certification, including the administration and oversight of those laws, by state agencies to the extent required by law; (19) Laws, rules, or regulations governing the enforcement of state building or fire codes;

(20) Federal laws, regulations, or standards that would affect the state’s required compliance or jeopardize federal funding;

(21) Laws or rules governing procurement of architectural and engineering services:  Provided, That notwithstanding any other provision of this section to the contrary, the change made in this subdivision applies prospectively and any ordinance enacted by the participating municipalities prior to the effective date of the amendments to this section during the 2019 regular legislative session and pursuant to the Municipal Home Rule Pilot Program remains in effect.

(22) The provisions of chapter 17C of this code; or

(23) Laws, rules, or regulations governing communication technologies or telecommunications carriers, as the term "telecommunications carrier" is defined by the Federal Communications Commission in 47 U.S.C. §153 or as determined by the Public Service Commission of West Virginia.

(24) Laws governing the sale, transfer, possession, use, storage, taxation, registration, licensing, or carrying firearms, ammunition, or accessories thereof.

(j) The municipalities participating in the Municipal Home Rule Program may not pass an ordinance, act, resolution, rule, or regulation under the provisions of this section that:

(1) Affects persons or property outside the boundaries of the municipality: Provided, That this prohibition under the Municipal Home Rule Program does not limit a municipality’s powers outside its boundary lines to the extent permitted under other provisions of this section, other sections of this chapter, other chapters of this code, or court decisions;

(2) Enacts an occupation tax, fee, or assessment payable by a nonresident of a municipality; or

(3) Imposes duties on another governmental entity, unless the performance of the duties is part of a legally executed agreement between the municipality and the other governmental entity, or is otherwise permitted by state law;

(k) Municipalities may not prohibit or effectively limit the rental of a property, in whole or in part, or regulate the duration, frequency, or location of such rental, in whole or in part.  A municipality may regulate activities that arise when a property is used as a rental: Provided, That such regulation applies uniformly to all properties, without regard to whether such properties are used as a rental: Provided, however, That nothing in this subdivision may be construed to prohibit a municipality from imposing a hotel occupancy tax as prescribed in §7-18-1 et seq. of this code.

(l) A municipality participating in the Municipal Home Rule Program may amend its written plan at any time subject to the requirements of this section.

(m) A municipality participating in the Municipal Home Rule Program may amend any ordinance, act, resolution, rule, or regulation enacted pursuant to the municipality’s approved written plan at any time as long as the amendment is consistent with the municipality’s approved written plan, as modified by any amendments adopted pursuant to this section, complies with the provisions of this section, and the municipality complies with all applicable state law procedures for enacting municipal legislation.

(n) On or before December 1 of each year, each participating municipality shall give a written progress report to the Municipal Home Rule Board, and on or before January 1 of each year, the Municipal Home Rule Board shall give a summary report of all the participating municipalities to the Joint Committee on Government and Finance.

(o) Notwithstanding any other provision of this code to the contrary, a distributee under the provisions of this section may not seek from the Tax Division of the Department of Revenue a refund of revenues or moneys collected by, or remitted to, the Tax Division of the Department of Revenue, nor seek a change in past amounts distributed, or any other retrospective adjustment relating to any amount distributed, to the extent that the moneys in question have been distributed by the Tax Division to another distributee, regardless of whether those distributions were miscalculated, mistaken, erroneous, misdirected, or otherwise inaccurate or incorrect. For purposes of this section, the term "distributee" means any municipality that has enacted a sales and use tax under this section or as otherwise permitted by law that receives or is authorized to receive a specific distribution of revenues or moneys collected by, or remitted to, the Tax Division of the Department of Revenue pursuant to this section.

§8-1-6. Application of provisions of this chapter; inconsistent or conflicting special legislative charter provisions; amendment of special legislative charters; inconsistent or conflicting ordinance provisions; status and tenure of officers and members not affected; transactions already entered into not affected.

In furtherance of the purpose of this chapter as set forth in section one of this article, each municipality is subject to the provisions contained in this chapter and may exercise the power and authority conferred by this chapter. In this regard, it is recognized that when the provisions of existing special legislative charters are compared with and are considered in the light of the provisions of this chapter, there are five basic possibilities as to the relationship between such charter provisions and the provisions of this chapter, namely: (1) As to any particular charter provisions, such charter provisions may be inconsistent or in conflict with the pertinent provisions of this chapter; (2) although relating to the same subject matter and although not inconsistent or in conflict with any provisions of this chapter, certain charter provisions may be sufficiently different from pertinent provisions of this chapter as to indicate, as a matter of practical construction, that either the charter provisions or the provisions of this chapter, but not both, should be applicable; (3) although varying in certain respects, certain charter provisions may be similar to and in essential harmony with corresponding provisions of this chapter; (4) as to any particular charter provisions, there may be no counterpart of such provisions in this chapter; and (5) as to any provisions of this chapter, there may be no counterpart charter provisions. In view of these possibilities, it becomes necessary for the Legislature to set forth certain rules of construction to be applied in addition to the usual and ordinary rules of statutory construction, and to set forth a substantive provision as to application in connection with possibility (2).

As to possibility (1), the pertinent provisions of this chapter shall supersede such conflicting or inconsistent charter provisions and shall be deemed amendments to such charters. As to possibility (2), one year from and after the effective date of this section or the effective date of any pertinent amendment to this chapter hereafter adopted, such provisions of this chapter shall supersede such charter provisions and shall be deemed amendments to such charter, unless within such one-year period an ordinance is adopted providing that such charter provisions shall be applicable, in which event such charter provisions shall be applicable so long as said ordinance remains in full force and effect. As to possibility (3), all such charter provisions shall be construed so as to conform to and be consistent with the pertinent provisions of this chapter. As to possibility (4), the charter provisions shall remain in operation and effect until amended or repealed by general law hereafter enacted or until hereafter supplanted by a new charter or revised as a whole or amended in accordance with the provisions of this chapter. As to possibility (5), the applicable provisions of this chapter shall be deemed amendments to such charter. In determining the relationship between such charter provisions and the provisions of this chapter in any situation not included in the possibilities outlined above, the relationship shall be determined in keeping with the general concepts and principles embodied in the rules of construction set forth in this paragraph. The provisions set forth above in this paragraph shall also be applicable to the relationship between the pertinent provisions of various local or special acts of the Legislature (other than special legislative charters) pertaining to municipal matters and the provisions of this chapter.

Notwithstanding any of the foregoing provisions of this section, (1) particular provisions of this chapter shall supersede pertinent charter provisions whenever it is expressly provided in this chapter that such provisions of this chapter shall govern notwithstanding any charter provisions, that such charter provisions shall be of no force and effect, that the provisions of this chapter are the only applicable provisions, or that something may be accomplished only as provided in this chapter; and (2) charter provisions shall govern chapter provisions in those instances where this chapter expressly authorizes other or contrary charter provisions.

Any ordinance provision which is inconsistent or in conflict with any provision of this chapter shall be of no force and effect.

All individuals holding any office on the effective date of this chapter, and all officers and members of any commission, board, authority or other entity, by whatever name called, serving on the effective date of this chapter, and who were elected or appointed and qualified under or pursuant to the provisions of former chapter eight or chapter eight-a of this code, any act repealed by this new chapter eight or any charter provision or ordinance provision made or adopted under or pursuant to such former chapters or acts shall continue to serve, unless a vacancy sooner occurs, until their terms expire and until their successors have been elected or appointed, as the case may be, and have qualified.

Notwithstanding any of the foregoing provisions or any other provision of this chapter (even though such other provision is stated to be paramount), transactions validly entered into, causes of action which arose, and civil actions instituted, before the effective date of this chapter and the rights, duties, obligations and interest flowing therefrom remain valid, enforceable and maintainable thereafter and may be terminated, completed, consummated, prosecuted, maintained or enforced (1) as required or permitted by any statute or other law (including the provisions of former chapters eight and eight-a of this code and the acts repealed by this chapter) repealed or amended by this chapter as though such repeal or amendment had not occurred, or (2) with like effect as though this chapter had not been enacted.

§8-1-7. Construction of powers and authority granted.

(a) The enumeration of powers and authority granted in this chapter shall not operate to exclude the exercise of other powers and authority fairly incidental thereto or reasonably implied and within the purposes of this chapter or in accordance with the provisions of the Municipal Home Rule Amendment to the Constitution of this state, the powers and authority granted by such Constitution, other provisions of this code and any existing charter. The provisions of this chapter shall be given full effect without regard to the common-law rule of strict construction and particularly when the powers and authority are exercised by charter provisions framed and adopted or adopted by revision of a charter as a whole or adopted by charter amendment under the provisions of this chapter.

(b) Any charter provision framed and adopted or adopted by revision of a charter as a whole or adopted by charter amendment under the provisions of former chapter eight-a of this code or under the provisions of this chapter which is beyond the power and authority of a municipality and any ordinance provision which is beyond the power and authority of a municipality shall be of no force and effect.

§8-1-8. References to code provisions.

Any reference in this chapter to another provision of this code and any reference elsewhere in this code or other law to a provision in this chapter shall be construed to mean the present provision or such provision as the same may be hereafter amended from time to time. Where additional provisions are added to the subject matter of any other provision so referred to, the reference shall include such additional provisions.

Wherever in this code, in any act, in general law, elsewhere in law, in any charter, in any ordinance, resolution or order of a municipality, or in any order, ordinance or resolution of a county court or other unit of government, reference is made to any section, any article, any particular provision or any term of chapter eight of this code as it existed immediately prior to the effective date of this new chapter eight or to any section, any article, any particular provision or any term of former chapter eight-a of this code, such reference shall henceforth be read, construed and understood to mean the comparable section, article, particular provision or term in this new chapter eight.

PART I. GENERAL.

§8-2-1. Requirements for incorporation; size and character of territory; population.

(a) Any part of a county or counties may be incorporated as a city, depending upon the population, either as a Class I, Class II or Class III city, or as a Class IV town or village, as classified in section three, article one of this chapter if the area proposed for incorporation meets the following conditions:

(1) The area is not currently within any municipality urban in character;

(2) For areas that are more than one square mile there must be an average of not less than five hundred inhabitants or freeholders per square mile;

(3) For areas less than one square mile there must be at least one hundred inhabitants or freeholders;

(4) The total area to be incorporated must not include an amount of territory disproportionate to its number of inhabitants; and

(5) The proponents of incorporation shall provide to the county commission a proposal which shall include:

(A) A map or maps of the area to be incorporated showing the following information:

(i) The present boundaries of nearby municipalities and the proposed boundaries of the area to be incorporated; and

(ii) The proposed extensions of water mains and sewer outfalls to serve the incorporated area, if such utilities are to be operated by the municipality. The water and sewer map must bear the seal of a registered professional engineer or a licensed surveyor.

(B) A statement that the area to be incorporated meets the applicable requirements of this article.

(C) A statement setting forth the plans of the proposed municipality for providing to the area to be incorporated each major municipal service and whether the service will be provided by the municipality or by contract with a public or private entity. The plan shall:

(i) Provide for police protection, fire protection, solid waste collection, public water and sewer services and street maintenance services to the area to be incorporated on the date of incorporation;

(ii) A statement of the impact of the incorporation on any rural fire department providing service in the area to be incorporated and a statement of the impact of the incorporation on fire protection and fire insurance rates in the area to be incorporated; and

(iii) A statement showing how the proposed incorporation will affect the proposed municipalities finances and services.

(b) The creation of any new municipality is prohibited if:

(1) The area to be incorporated is within close proximity to an existing municipality and the existing municipality is capable of more effectively and efficiently providing services to the area; or

(2) The creation of a new municipality is not in the best interest of the county as a whole.

(c) It is within the reasonable discretion of the county commission to determine the exact area or portions thereof to be included or excluded in the new municipality, considering the following:

(1) The topography of the area;

(2) The benefits of incorporation;

(3) The amount of uninhabited land required for parks and recreational use; and

(4) Normal growth and development and the present and possible future uses so as to prevent hardships and inequities.

§8-2-2. Petition; survey and map.

A proceeding to incorporate any such city, town or village shall be initiated upon petition addressed to and filed with the county court of the county in which the territory is located, or if in more than one county in which the major portion of the territory is located, indicating whether the territory sought to be incorporated will be upon incorporation, depending upon population, a Class I, Class II or Class III city or a Class IV town or village. Such petition shall be signed by at least thirty percent of the freeholders of the territory to be incorporated.

Such petition shall be verified by at least one of the petitioners and shall be accompanied by a map made by a professional engineer registered under the laws of this state, which map shall be based upon an actual and accurate survey of the territory to be incorporated showing the courses, distances and the area of the territory to be incorporated.

Such map shall be verified and shall be left at the residence or place of business within the territory to be incorporated of some individual residing or some person doing business therein, and shall be subject to examination at all reasonable hours by every person interested in such application for a period of at least ten days prior to the hearing on such petition as provided for in section three of this article.

§8-2-3. Hearing on petition; notice; dismissal.

Upon the filing of such petition, the county court shall set the same for hearing not sooner than ten days and not later than thirty days thereafter, and the petitioners shall cause notice of the filing of said petition and of the date, time and place of hearing thereon to be published as a Class II 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 the territory sought to be incorporated.

Upon the date set for hearing, the county court shall hear evidence for and against the proposed incorporation, and if it shall determine that the requirements of sections one and two of this article have not been met, it shall forthwith enter an order dismissing said petition.

§8-2-4. Census; bond; appointment and duties of enumerators.

If the court shall determine after hearing that the requirements of sections one and two of this article have been met, the petitioners shall provide bond in penalty prescribed by the court, with good and sufficient surety thereon, conditioned to pay all costs of taking a census, determining the qualification of electors, holding an election and ascertaining the results thereof, in the event a majority of the qualified electors vote against incorporation; and thereupon the court shall fix a day or days for taking a census of the inhabitants and for determining those who are qualified electors of said territory. For the purpose of taking said census, and determining the qualifications of the electors, said court shall appoint four enumerators for each five hundred inhabitants of said territory based upon the most reliable estimate obtainable: Provided, That if the territory contains less than one square mile and the county court believes the territory contains fewer than five hundred inhabitants, two enumerators shall be appointed. It shall be the duty of the enumerators so appointed to enumerate all of the inhabitants of said territory and to visit each house or dwelling therein, and to obtain the name of each known resident thereof. It shall also be the duty of the enumerators to examine the permanent registration records of the county or counties in which the territory is situate to determine which of such inhabitants are qualified electors therein and to compile and file with the county court a list of such qualified electors. Each enumerator shall receive for his services a sum per day, to be fixed by the county court, but not to exceed $10 per day, together with all reasonable and necessary expenses actually incurred in the discharge of such duties, which sum and expenses shall be paid by the county court and reimbursed to it by the city, town or village if and when the city, town or village shall become incorporated, as hereinafter provided; otherwise by the petitioners. The county court shall provide an opportunity for all qualified individuals residing in such territory, who have not been previously registered to vote, to become registered prior to the election hereinafter provided for. Upon the completion of said census and the listing of qualified electors, said enumerators shall make a report under oath to the county court that said enumeration and listing are correct, true and accurate, and do not contain the name of any individual who is not a resident of the territory, and that the list of qualified electors is true and correct, which report shall be filed with the county court within the following number of days after the appointment of said enumerators: Forty days if it is to be a Class I city, twenty days if it is to be a Class II city, ten days if it is to be a Class III city and ten days if it is to be a Class IV town or village.

Part II. Election.

§8-2-5. Special incorporation election — Voting precincts; time for election; supplies; commissioners and clerks; notice.

Upon receiving such a report from said enumerators, the county commission shall forthwith fix a date for a special incorporation election, to be held concurrently with the next regularly scheduled primary or general election if there are more than 90 days preceding such election, and, if not, then, at the next succeeding regularly scheduled primary or general election, and at which election all qualified electors of the territory shall vote upon the question of incorporation between such hours as may be fixed by order of said commission. For the purpose of holding and conducting said election, the county commission shall divide the territory into one or more precincts, consisting of not more than 500 qualified voters in each precinct; shall arrange for and provide at its expense polling places, registration books, challenges, and other election supplies as provided for by law in general elections; shall appoint three commissioners of election and two clerks from the qualified electors of said territory for each precinct so established, dividing the election officials as nearly as possible equally between those favoring incorporation and those opposed to incorporation; and shall give notice of the date and place or places of election and hours for voting by publication of such notice as a Class II-0 legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code, and the publication area for such publication shall be the territory sought to be incorporated.

§8-2-6. Same -- Qualified electors; form of ballot or ballot label; election officials; certification; canvass; declaration of results; recount.

Class I, II, or III city

(a) On the date named in the notice for the taking of the vote, each qualified elector of the territory sought to be incorporated as a Class I, II, or III city, may cast his or her vote for or against such incorporation at the precinct in which he or she resides, by depositing a ballot in a ballot box, or by use of a voting machine, to be provided by the county commission for that purpose. Each ballot, or ballot label where voting machines are used, shall be without party designation and shall have written or printed thereon the following words:

G For Incorporation

G Against Incorporation

The ballot or ballot label shall be a separate, special ballot or ballot label.

(b)The election shall be held and conducted under the supervision of the commissioners and clerks of election appointed by the county commission and shall be conducted as nearly as may be in accordance with the laws of this state governing general elections. The results of the election shall be certified as in general elections, and the returns shall be canvassed and the results declared by the county commission. If any commissioner or clerk designated to serve in the election shall fail or refuse to serve, the vacancy may be filled in like manner as vacancies in the positions are filled in general elections under the laws of this state governing general elections. A recount may be had, as in general elections, upon the party or parties desiring a recount providing adequate assurance to the county commission that the party or parties will pay all costs of the recount.

Class IV town or village

(c) Each qualified elector of the territory sought to be incorporated as a Class IV town or village may cast his or her vote for or against the incorporation at the precinct in which he or she resides, by depositing a ballot in a ballot box or by use of a voting machine to be provided by the county commission for that purpose, on the date named in the notice for the taking of the vote. Each ballot, or ballot label where voting machines are used, shall be without party designation and shall have written or printed thereon the following words:

G For Incorporation

G Against Incorporation

The form of governance:

G Plan I -- "Mayor-Council Plan"

G Plan II -- "Strong-Mayor Plan"

G Plan III -- "Manager Plan"

G Plan IV -- "Manager-Mayor Plan"

The ballot or ballot label shall be a separate, special ballot or ballot label.

(d) The election shall be held and conducted under the supervision of the commissioners and clerks of election appointed by the county commission and shall be conducted as nearly as may be in accordance with the laws of this state governing general elections. The results of the election shall be certified as in general elections, and the returns shall be canvassed and the results declared by the county commission. If any commissioner or clerk designated to serve in the election fails or refuses to serve, the vacancy may be filled in like manner as vacancies in such positions are filled in general elections under the laws of this state governing general elections. A recount may be had, as in general elections, upon the party or parties desiring the recount providing adequate assurance to the county commission that the party or parties will pay all costs of the recount.

§8-2-7. County commission order declaring boundaries of city; certificate of incorporation of town or village; dismissal of proceeding.

(a) Class I, II, or III city. -- If the proceeding be for the incorporation of a city, and it appears to the county commission, upon the returns being canvassed, that a majority of the legal votes cast on the question of incorporation were in favor of the incorporation and the commission is satisfied that all of the applicable provisions of this article have been complied with, the commission shall by order duly made and entered of record declare that the territory in question (reciting the boundaries) shall thereby become a body corporate, and shall thenceforth be known as the city of ......................, but that until a charter is framed and adopted as provided in article three of this chapter, the city shall have and exercise no powers of a municipality except the power to frame and adopt a charter as therein provided.

(b) Class IV town or village. -- If the proceeding be for the incorporation of a town or village, and it appears to the county commission, upon the returns being canvassed, that a majority of the legal votes cast on the question of incorporation were in favor of the incorporation and the commission is satisfied that all of the applicable provisions of this article have been complied with, the commission shall by order duly made and entered of record, direct the clerk of the commission to issue a certificate of incorporation in form or in substance as follows:

"It appearing to the commission that under the provisions of article two, chapter eight of the Code of West Virginia, 1931, as amended, at an election duly held on the ............ day of .............., 20......., a majority of the legal votes cast on the question of incorporation by the qualified voters of the following territory, to wit: Beginning, etc. (here recite the boundaries), were cast in favor of the incorporation of the town or village of ............................, in the County of .................., bounded as herein set forth; adopting the ..................... form of government, and it appearing to the satisfaction of the commission that all of the provisions of article two, chapter eight of the Code of West Virginia, as amended, have been complied with by the petitioners for incorporation, the town or village is declared to be a body corporate, duly authorized to exercise all of the corporate powers conferred upon towns or villages by chapter eight of the Code of West Virginia, 1931, as amended, from and after the date of this certificate. (Signed) ............................, Clerk County Commission."

(c) Thereupon, the first election of officers shall be held as provided in sections two, three and four, article five of this chapter.

(d) If, on the returns being canvassed on the question of incorporation, a majority of the legal votes cast be against incorporation, the proceeding shall be dismissed, and no subsequent proceeding for incorporation of the same or any portion of the territory shall be considered or election had within a period of three years.

PART III. JUDICIAL REVIEW.

§8-2-8. Judicial review.

A writ of error shall lie to the circuit court in accordance with the provisions of article three, chapter fifty-eight of this code from any order of a county court determining that the requirements of sections one and two of this article have been met and ordering a census or enumeration to be taken. Upon the filing of a petition for a writ of error, all proceedings shall be suspended or stayed pending final adjudication of the matters involved.

PART I. FRAMING AND ADOPTING CHARTER -- GENERAL.

§8-3-1. Charter board for cities -- Number of members; qualifications of members; nominations; ballots and ballot labels; dismissal of proceeding.

At every election on the question of incorporation of a city, under article two of this chapter, each qualified voter entitled to vote shall also be entitled to vote for a charter board consisting of eleven members if it is to be a Class I or Class II city, and of seven members if it is to be a Class III city. Members shall be elected at large and shall receive no compensation for their services, but shall be reimbursed by the city for all reasonable and necessary expenses actually incurred in the discharge of their duties. Any individual who has been a resident of the territory sought to be incorporated for at least two years prior to the date of said election and who shall have been qualified to vote in state-county elections for at least two years prior to the date of said election shall be eligible for membership on said charter board. Nominations for said charter board shall be made by petition to the county court bearing the signatures, written in their own handwriting, of not less than two hundred qualified voters of the territory. All nominating petitions shall be filed with the county court at least twenty days prior to the date of the election on the question of incorporation. In the event of a vacancy in the nominations which shall reduce the number of candidates below the number of members to be elected, the vacancy shall be filled by the county court. The ballots, or ballot labels where voting machines are used, shall be prepared by or at the direction of the clerk of the county court. The ballots or ballot labels for members of the charter board shall be separate from the ballots or ballot labels on the question of incorporation. Such ballots or ballot labels for members of the charter board shall be special ballots or ballot labels without party designation. The position of the names of the candidates upon the ballots or voting machines shall be interchanged, as provided in the general election laws of this state. The ballots or voting machine directions shall bear instructions specifying the number of candidates to be voted for, and each qualified voter entitled to vote on the question of framing a charter may cast as many votes for members of the charter board as there are members to be elected. He may cumulate all of his votes for one candidate, or distribute them among several candidates as he sees fit. The ballots or voting machine directions shall bear advice to this effect. Any voter who shall vote against incorporation may, nevertheless, vote for members of the charter board, and the ballots or voting machine directions shall bear advice to this effect.

If on the returns being canvassed on the question of incorporation, such canvassing to be done by the county court, a majority of the legal votes cast be against incorporation, the proceeding shall be dismissed as specified in section seven, article two of this chapter, and no subsequent proceeding for incorporation of the same territory or any portion thereof shall be considered or election thereon had within a period of three years thereafter.

§8-3-2. Charter board for cities -- Organization; journal; quorum; duties; time for draft of charter; form of city government.

If on the returns being canvassed on the question of incorporation of a city, such canvassing to be done by the county commission, a majority of the legal votes cast be in favor of such incorporation, then the legal votes cast for members of the charter board shall be counted and canvassed by the county commission, and the candidates in the number to be chosen who received the highest number of votes shall be declared elected. The charter board shall be convened at a suitable place within the territory, by the member receiving the highest number of votes, not less than five days nor more than ten days after the canvass of the returns. He shall notify the other members of the board in writing of the time and place of the first meeting of the charter board. At such first meeting, the board shall perfect its organization by electing a chairman and secretary from its membership and by determining the rules to govern its proceedings. Any vacancy in the membership of the board occurring before a charter is approved by the qualified voters of the incorporated territory shall be filled by appointment by majority action of the remaining members, and any vacancy occurring after approval of a charter as aforesaid shall be filled as specified in section nine of this article. A journal shall be kept by the secretary, in which journal shall be entered, upon demand by any member, the vote by ayes and nays on any question. A majority of the members of said board shall constitute a quorum. The board shall specify the manner for nominating and electing candidates for the first elective offices provided for in the proposed charter at the election to be held on the question of approval of the charter. It shall fix the date of said election and it shall do and provide all other things necessary for making nominations and holding and conducting such election. Any qualified voter and any freeholder of the incorporated territory may file with said charter board any written material bearing upon the purposes of the board, and the board shall give such material so filed such consideration as it may deem proper. The charter drafting process may be carried on through committees, but their work shall be advisory only. The charter board shall complete its draft of a charter within ninety days after its first meeting. It shall be the duty of the charter board to provide in the charter so drafted for a form of city government in accordance with one of the following plans:

Plan I -- "Mayor-Council Plan." Under this plan:

(1) There shall be a city council, elected at large or by wards, or both at large and by wards, by the qualified voters of the city; a mayor elected by the qualified voters of the city; and such other elective officers as the charter may prescribe; and

(2) The mayor and council shall be the governing body and administrative authority.

Plan II -- "Strong-Mayor Plan." Under this plan:

(1) There shall be a mayor elected by the qualified voters of the city; and a city council elected at large or by wards, or both at large and by wards, by the qualified voters of the city;

(2) The council shall be the governing body;

(3) The mayor shall be the administrative authority; and

(4) Other officers and employees shall be appointed by the mayor or by his order in accordance with this chapter, but such appointments by the mayor or by his order may be made subject to the approval of the council.

Plan III -- "Commission Government." Under this plan:

(1) There shall be, except as hereinafter in this plan provided, a commission of five members elected at large by the qualified voters of the city;

(2) The members of the commission shall be a commissioner of public affairs, a commissioner of finance, a commissioner of public safety, a commissioner of public works and a commissioner of streets: Provided, That a charter for a Class I or Class II city may, and a charter for a Class III city shall, provide for a commission of three members, viz., a commissioner of finance, a commissioner of public works and a commissioner of public safety;

(3) The members of the commission shall elect a mayor from among their membership;

(4) The commission shall be the governing body and administrative authority; and

(5) Officers and employees, other than members of the commission, shall be appointed in accordance with this chapter by the commissioners or by each commissioner with respect to his department, as the charter may prescribe.

Plan IV -- "Manager Plan." Under this plan:

(1) There shall be a council of not less than five nor more than eleven members, elected either at large or from such geographical districts as may be established by the charter, or partly at large and partly from such geographical districts, and the charter may empower the council to change, from time to time, such districts without amending the charter: Provided, That the change of such districts shall not take effect during the terms of office of the members of such council making such change;

(2) There shall be a mayor elected by the council from among its membership who shall serve as the presiding officer of the council; and a city manager who shall be appointed by the council;

(3) The council shall be the governing body; and

(4) The manager shall be the administrative authority. He shall manage the affairs of the city under the supervision of the council and he shall be responsible to such council. He shall appoint or employ, in accordance with this chapter, all subordinates and employees for whose duties or work he is responsible to the council.

Plan V -- "Manager-Mayor Plan." Under this Plan:

(1) There shall be a council of not less than five nor more than eleven members, elected either at large or from such geographical districts as may be established by the charter, or partly at large and partly from such geographical districts, and the charter may empower the council to change, from time to time, such districts without amending the charter: Provided, That the change of such districts shall not take effect during the terms of office of the members of such council making such change.

(2) There shall be a mayor elected at large by the qualified voters of the municipality as may be established by the charter, who shall serve as a member and the presiding officer of the council; and a city manager who shall be appointed by the council;

(3) The council shall be the governing body; and

(4) The manager shall be the administrative authority. He shall manage the affairs of the city under the supervision of the council and he shall be responsible to such council. He shall appoint or employ, in accordance with this chapter, all subordinates and employees for whose duties or work he is responsible to the council.

The purpose of the provisions of this section pertaining to Plan I, Plan II, Plan III, Plan IV and Plan IV is to establish basic requirements of alternative plans of structure and organization of city government. The structure and organization of a city government may be specified by the charter in respects other than those enumerated, and in elaboration of the basic requirements, insofar as such charter provisions do not conflict with the purpose and the provisions of the alternative plans prescribed.

§8-3-3. City charters -- Approval and certification by attorney general.

The draft of said charter shall, upon completion, be certified by the secretary of said charter board to the Attorney General of the state. It shall be his duty to examine the draft and advise whether it is consistent in all respects with the Constitution and general law of this state. The Attorney General, if satisfied that the proposed charter is consistent in all respects with the Constitution and general law of this state, shall so certify to the charter board within thirty days after receipt of such draft. If the Attorney General is not satisfied that the proposed charter is consistent in all respects with the Constitution and general law of this state, he shall certify, within thirty days after receipt of such draft, to the charter board in what respects the same does not conform to the Constitution or general law of this state.

§8-3-4. Same -- Hearing and notice.

When it shall have completed its draft of a charter, the charter board shall conduct a public hearing thereon. The county court shall cause notice of the date, time, place and purpose of the hearing to be given by publication thereof at least ten days prior to the date set for the hearing 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 the incorporated territory. The notice shall state where copies of the draft of the charter may be obtained. The hearing may be continued by the charter board by adjournments over a period not exceeding fourteen days.

§8-3-5. Same -- Changes; time for changes; signatures; filing.

A charter board shall have thirty days after the conclusion of the hearing required by section four of this article or receipt of the certificate of the Attorney General required by section three of this article, whichever shall occur later, to make any changes it may consider necessary or desirable in its charter draft.

At least three copies of the completed charter draft shall be signed by at least a majority of the members of the board, and two copies shall be filed with the clerk of the county court.

§8-3-6. Same —Time for election; notice; voting precincts; supplies; officials; certification; canvass; declaration of results; recount.

The proposed charter shall be submitted to the qualified voters of the incorporated territory for approval or rejection at a special election ordered by the county commission to be held concurrently with the next regularly scheduled primary or general election if there are more than 90 days preceding such election, and, if not, then, at the next succeeding regularly scheduled primary or general election, and at which election the officers provided for by said proposed charter and to be elected shall be voted upon in the manner provided in said proposed charter. The county commission shall cause notice of the date, hours, place, and purpose of such election to be given by publication thereof as a Class II-0 legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code, and the publication area for such publication shall be the incorporated territory. The first of said publications shall be made not less than 30 days prior to the date fixed for the election. Each such notice of election shall state that upon request any qualified voter and any freeholder of the incorporated territory may obtain a copy of the proposed charter from a designated person at a designated place.

For the purpose of holding and conducting said election, the county commission shall divide the incorporated territory into one or more temporary precincts, consisting of not more than 500 qualified voters in each temporary precinct; shall arrange for and provide at its expense polling places, registration books, challenges, and other election supplies as provided for by law in general elections; and shall appoint three commissioners of election and two clerks from the qualified voters of said incorporated territory for each temporary precinct so established, subject, however, to the provisions of §8-4-11 of this code. Such election shall be held and conducted under the supervision of the commissioners and clerks of election appointed by the county commission as aforesaid and shall be conducted as nearly as may be in accordance with the laws of this state governing general elections. The results of such election, both as to approval or rejection of the proposed charter and the election of officers, shall be certified as in general elections, and the returns shall be canvassed and the results declared by the county commission. In the event any commissioner or clerk designated to serve in said election shall fail or refuse to serve, such vacancy may be filled in like manner as such vacancies are filled in general elections under the laws of this state governing general elections. A recount may be had, as in general elections, upon the party or parties desiring such recount providing adequate assurance to the county commission that the party or parties shall pay all costs of such recount.

§8-3-7. Same -- Approval; effective date; certification; judicial notice; recordation.

If the proposed charter shall be approved by a majority of the legal votes cast at the election thereon, the charter shall take effect on July 1, next after the date of the election, if the interim exceeds sixty days; otherwise on July 1 of the second fiscal year after its approval. If approved as aforesaid, one of the signed copies of the charter on file with the clerk of the county court, together with a certified copy of the declaration of the results of the election showing the total legal votes cast for and against approval, shall be certified forthwith by the clerk of the county court to the Clerk of the House of Delegates, in his capacity as keeper of the rolls. The same shall be preserved by said Clerk of the House of Delegates as an authentic public record. After the effective date of a charter so filed, all courts shall take judicial notice of its provisions.

The clerk of the county court shall certify to the county court the other signed copy of the charter previously filed with him, which copy so certified shall be spread upon the records of said court for public examination.

§8-3-8. Same -- Rejection; rewriting or altering draft; new charter board.

If the proposed charter shall be rejected by a majority of the legal votes cast at the election thereon, the election of officers shall be void, except that the candidate who shall receive the highest number of legal votes cast for the office of mayor, if a mayor is to be elected, otherwise the candidate for any city office who shall receive the highest number of legal votes cast at the election, shall, within ten days thereafter, require such charter board to reconvene for the purpose of rewriting or altering the draft of the rejected charter in such manner as to it shall seem proper. Any three hundred qualified voters of said incorporated territory may, however, within ten days after the determination of the results of the election at which such charter is rejected, petition the clerk of the county court for the election of a new charter board, in which case the court shall thereupon call a new election for members of the charter board in the same manner as the original election and with nominations to be made and any vacancies to be filled in the same manner as in the first instance, as provided in section one of this article. The duties of the new charter board shall be the same as those of the former board, and as many successive charter boards may be elected as may be necessary until a charter for such territory is framed and approved by the qualified voters of the incorporated territory. The rewritten or altered proposed charter or the charter draft of a new or any succeeding charter board, as the case may be, shall be submitted to the Attorney General and the qualified voters of said incorporated territory in the same manner and with like notice and proceedings as required in the first instance, and such proceedings shall continue until the qualified voters of said incorporated territory have by a majority vote approved a charter.

PART II. CONTINUING DUTIES -- REVISING OR

AMENDING A CHARTER.

§8-3-9. Continuing duties of charter boards; revising or amending a charter.

The members of the charter board of a city elected under the provisions of this article whose draft of a charter is approved by the qualified voters of the city shall hold office for a term of six years following the approval of such charter. Any vacancy occurring during that period shall be filled temporarily by appointment by majority action of the remaining members, and a successor shall be elected at the next regular municipal election in the same manner as elective city officers, such successor to hold office for the remainder of the term.

During such six-year period as aforesaid, the board shall make a continuing study of the functioning of the city government and may, by a two-thirds vote of its members, not less than four years after such charter shall have taken effect, require the submission to the qualified voters of the city of the question of whether the charter shall be revised as a whole, such submission to be in accordance with the pertinent provisions of article four of this chapter. In the event revision as a whole is voted pursuant to such submission, the board as then constituted shall proceed to prepare a revision of the charter as a whole and the process of revision as a whole as so initiated shall be the same as that for the framing and adoption of a charter under the pertinent provisions of said article four of this chapter. During such six-year period as aforesaid, by a two-thirds vote of its members, at any time not less than one year after such charter shall have taken effect, the board may require the submission of one or more proposed charter amendments to the qualified voters of the city, in accordance with the pertinent provisions of article four of this chapter.

PART III. EXPENSES OF INCORPORATION.

§8-3-10. Expenses of incorporation.

The first governing body of any municipality incorporated under the provisions of article two of this chapter shall provide for reimbursement to the county court of all costs of incorporation, including, but not limited to, the cost of publishing notices, of taking the enumeration of inhabitants, of ascertaining the qualification of electors, and of holding, conducting and superintending the elections called for thereunder and the returning, certifying and canvassing of the results thereof. The first governing body of any city incorporated under said article two shall also provide for reimbursement of the charter board or boards and the members thereof for all reasonable and necessary expenses actually incurred in the performance of its and their duties.

§8-3A-1. Class IV town or village form of government.

In the absence of any charter or official declaration to the contrary, a Class IV town or village shall be the mayor-council form of government, as set out in section two, article three of this chapter. The Class IV town or village form of government may be changed pursuant to the provisions of section two of this article.

§8-3A-2. Changing Class IV town or village form of government.

(a) A Class IV town or village may change its form of government upon the submission of a petition containing the signatures of twenty-five percent of the qualified voters.

(b) After receipt and verification of the petition, the question shall be submitted to the voters of the Class IV town or village at the next general or primary election.

(c) A Class IV town or village shall select from the following government plans:

Plan I -- "Mayor-Council Plan". Under this plan:

(1) There shall be a town or village council, elected at large or by wards, or both at large and by wards, by the qualified voters of the town or village; a mayor elected by the qualified voters of the town or village; and such other elective officers as set by ordinance; and

(2) The mayor and council shall be the governing body and administrative authority.

Plan II -- "Strong-Mayor Plan". Under this plan:

(1) There shall be a mayor elected by the qualified voters of the town or village; and a town or village council elected at large or by wards, or both at large and by wards, by the qualified voters of the town or village;

(2) The council shall be the governing body;

(3) The mayor shall be the administrative authority; and

(4) Other officers and employees shall be appointed by the mayor or by his or her order in accordance with this chapter, but the appointments by the mayor or by his or her order may be made subject to the approval of the council.

Plan III -- "Manager Plan". Under this plan:

(1) There shall be a council of not less than five nor more than eleven members, elected either at large or from the geographical districts as may be established by ordinance, or partly at large and partly from the geographical districts, and the ordinance may empower the council to change the geographical districts without amending the ordinance: Provided, That the change of these districts may not take effect during the terms of office of the members of the council making the change;

(2) There shall be a mayor elected by the council from among its membership who shall serve as the presiding officer of the council; and a town or village manager who shall be appointed by the council;

(3) The council shall be the governing body; and

(4) The manager shall be the administrative authority and shall manage the affairs of the town or village under the supervision of the council and shall be responsible to the council. The manager shall appoint or employ, in accordance with this chapter, all subordinates and employees for whose duties or work the manager is responsible to the council.

Plan IV -- "Manager-Mayor Plan". Under this plan:

(1) There shall be a council of not less than five nor more than eleven members, elected either at large or from the geographical districts as may be established by ordinance, or partly at large and partly from the geographical districts, and the ordinance may empower the council to change these geographical districts without amending the ordinance: Provided, That the change of these geographical districts may not take effect during the terms of office of the members of the council making the change;

(2) There shall be a mayor elected at large by the qualified voters of the town or village as may be established by the ordinance, who shall serve as a member and the presiding officer of the council; and a town or village manager who shall be appointed by the council;

(3) The council shall be the governing body; and

(4) The manager shall be the administrative authority and shall manage the affairs of the town or village under the supervision of the council and shall be responsible to the council. The manager shall appoint or employ, in accordance with this chapter, all subordinates and employees for whose duties or work the manager is responsible to the council.

PART I. FRAMING AND ADOPTING CHARTER -- GENERAL.

§8-4-1. Initiation of proceedings for framing a charter.

(a) The governing body of a city may provide by ordinance for the submission to the qualified voters of the city at a general election or at a regular municipal election, or at a special municipal election if the governing body by the affirmative vote of two thirds of its members shall determine and specify that a special municipal election is necessary, of the question, "Shall a charter be framed by representatives of the people?".

(b) The governing body of a city shall, upon petition therefor bearing the signatures, written in their own handwriting, of fifteen percent of the qualified voters of the city, if a Class I or Class II city, or ten percent of the qualified voters of the city, if a Class III city, provide by ordinance for the submission to the qualified voters of the city at a general election or at a regular municipal election of the question, "Shall a charter be framed by representatives of the people?".

(c) The governing body of a city shall provide by ordinance for a special municipal election on said question if a petition bearing the signatures, written in their own handwriting, of fifteen percent of the qualified voters of the city, if a Class I or Class II city, or ten percent of the qualified voters of the city, if a Class III city, expressly requesting that a special municipal election be called for the purpose be presented to the governing body more than one hundred twenty days prior to the date of the next general election or next regular municipal election.

(d) If the question is to be submitted at a general election or a regular municipal election and not a special municipal election, then in determining the general election or regular municipal election at which the question shall be submitted, the following provisions of this subsection (d) shall govern and control:

(1) If the question is to be submitted under the provisions of subsection (a) of this section, the question shall be submitted at the next general election or next regular municipal election, whichever first occurs after the ordinance is adopted under the provisions of said subsection (a); or

(2) If the question is to be submitted under the provisions of subsection (b) of this section, the question shall be submitted at the next general election or next regular municipal election, whichever first occurs after the petition is filed under the provisions of said subsection (b), if there is at least one hundred twenty days between the filing of the petition and the date of the election, and otherwise, at the next general election or next regular municipal election occurring after said interval of at least one hundred twenty days after the filing of said petition.

(e) Any special municipal election held in accordance with the provisions of subsection (a) of this section shall be held not less than thirty nor more than sixty days after the ordinance providing for same shall have been adopted, and any special municipal election held in accordance with the provisions of subsection (b) of this section shall be held not less than thirty nor more than sixty days after the petition shall have been presented to the governing body.

§8-4-2. Charter board; number of members; qualifications of members; nominations; notice; ballots and ballot labels; election of a charter board; effect of vote on question as to charter board.

The ordinance providing for submission to the qualified voters of the city of the question of whether a charter shall be framed shall make provision for voting for a charter board concurrently with the voting on the question of whether a charter shall be framed. A charter board shall consist of eleven members in a Class I or Class II city and seven members in a Class III city. Members shall be elected at large and shall receive no compensation for their services, but shall be reimbursed by the city for all reasonable and necessary expenses actually incurred in the discharge of their duties. Any individual who has been a resident and qualified voter of the city for at least two years prior to the date of election of members shall be eligible for membership on said charter board.

In the initiatory ordinance, the governing body of a Class I or Class II city may nominate five candidates, and that of a Class III city three candidates, for membership on the charter board. Other nominations, or all of the nominations if the governing body does not make any, shall be made by petition to the governing body bearing the signatures, written in their own handwriting, of not less than two hundred qualified voters of the city. Nominating petitions may be filed at any time after the adoption of the initiatory ordinance and not less than twenty days prior to the date of the election. In the event of a vacancy in the nominations which shall reduce the number of candidates below the number of members to be elected, the vacancy shall be filled by the governing body.

Notice of any election at which the question of whether a charter shall be framed shall be voted upon shall consist of the initiatory ordinance and a brief prefatory statement setting out the date and hours of the election, naming the candidates, if any, nominated by the governing body for membership on the charter board as above provided and stating how and within what time limit other nominations may be made. The governing body shall cause such notice to be published as a Class II-0 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 the city. The first publication shall be made not less than thirty days prior to the date of the election.

Each qualified voter entitled to vote on the question of framing a charter may cast as many votes for members of the charter board as there are members to be elected. He may cumulate all his votes for one candidate or distribute them among the several candidates as he sees fit.

The ballots, or ballot labels where voting machines are used, pertaining to the question of framing a charter shall be separate from the ballots or ballot labels for members of the charter board. The position of the names of the candidates upon the ballots or voting machines shall be interchanged, as provided in the general election laws of this state. A voter who shall vote "No" on the question may, nevertheless, vote for such candidates. The ballots or voting machine directions shall bear instructions to this effect, and also instructions which shall indicate the number of candidates for which the voter may vote (which shall be the same as the number of members to be elected), and that cumulative voting is permitted. Special ballots or ballot labels without party designation shall be used at every election held under this article even though the election is held at the same time as some other election. The ballots or ballot labels shall be prepared by or at the direction of the recorder of the city.

After such an election, the legal votes on the question shall be counted and canvassed. If a majority of the legal votes cast on the question be in the negative, the proceeding shall be at an end, and the question shall not be submitted again, without a petition of the qualified voters as provided for in subsection (b), section one of this article, for at least two years. If a majority of the legal votes cast on the question be in the affirmative, the legal votes cast for members of the charter board shall be counted and canvassed and the candidates, in the number to be chosen, who receive the highest number of votes shall be declared elected.

§8-4-3. Provisions of article three made applicable; duties and responsibilities of county court under article three placed upon governing body under this article; duties and responsibilities of charter board; exceptions.

All of the pertinent provisions of article three of this chapter pertaining to the charter drafting and adoption process for a newly incorporated city shall be as fully applicable to proceedings under this article four as if such provisions were set forth in extensor herein, except that (1) the publication area for all notices required to be published shall be the city, and (2) the duties and responsibilities placed upon the county court in said article three shall be performed and discharged under this article four by the governing body of the city. A charter board elected in accordance with the provisions of this article four for the purpose of framing a charter, and the members thereof, shall be governed by the provisions of said article three relating to a charter board for a newly incorporated city, and the members thereof, and it and the members thereof shall carry out all of the duties and responsibilities imposed upon a charter board, and the members thereof, elected in accordance with the provisions of said article three, except that (1) the board, under the provisions of this article four, shall file one signed copy of the proposed charter with the clerk of the county court of the county in which the city or the major portion of the territory thereof is located and two signed copies of the proposed charter with the recorder of the city, and (2) if the proposed charter under the provisions of this article four is rejected by a majority of the legal votes cast at the election thereon, the duties and responsibilities of such board shall be at an end, nor shall a new charter board be then elected.

§8-4-4. Submission of proposed charter to qualified voters.

The proposed charter shall be submitted to the qualified voters of the city in like fashion and with like notice as provided for a proposed charter of a newly incorporated city as set forth in article three of this chapter, except that the proposed charter shall be submitted at the next regular municipal election instead of a special election, unless (1) the governing body by the affirmative vote of two thirds of its members shall determine and specify that a special municipal election is necessary, or (2) a petition bearing the signatures, written in their own handwriting, of fifteen percent of the qualified voters of the city, if a Class I or Class II city, or ten percent of the qualified voters of the city, if a Class III city, expressly requesting that a special municipal election be called for the purpose be presented to the governing body more than one hundred twenty days prior to the date of the next regular municipal election.

§8-4-5. Approval of charter; effective date; certification; judicial notice; recordation; effect of rejection.

If the proposed charter shall be approved by a majority of the legal votes cast at the election thereon, the charter shall take effect on July 1 next after the date of the election. If approved as aforesaid, one of the signed copies of the charter on file with the recorder of the city, together with a certified copy of the declaration of the results of the election showing the total legal votes cast for and against approval, shall be certified forthwith by such recorder to the Clerk of the House of Delegates, in his capacity as keeper of the rolls. The same shall be preserved by said Clerk of the House of Delegates as an authentic public record. After the effective date of a charter so filed, all courts shall take judicial notice of its provisions.

If the charter is approved as aforesaid, a certified copy of the declaration of the results of the election showing the total legal votes cast for and against approval shall be forwarded by the recorder of the city to the clerk of the county commission for filing with the signed copy of the charter previously filed with him.

Rejection of the proposed charter by a majority of the legal votes cast shall have the same effect as a majority vote against the question of framing a charter as specified in section two of this article, and no further effort shall be made to have a charter approved until the question of framing a charter is again submitted to the qualified voters of the city and is approved by a majority vote, subject to the two-year limitation set forth in said section two of this article.

§8-4-6. New charter supersedes existing charter; effect on ordinances and administrative law.

A new charter shall entirely supersede the prior charter of a city. All ordinances and administrative acts or rules theretofore adopted by the governing body or administrative agencies of a city which are in conflict with or are inconsistent with a new charter shall continue in force for sixty days after the effective date of the new charter, unless sooner modified or repealed by competent authority; but at the end of this period shall, to the extent of such conflict or inconsistency, be of no further force or effect.

Part II. Revising Or Amending A Charter.

§8-4-7. Revising or amending a charter — generally.

A special legislative charter or a charter framed and adopted or revised as a whole under the provisions of former §8A-1-1 et seq., §8-3-1 et seq., or §8-4-1 et seq. of this code, as the case may be, may be revised as a whole in like manner as a charter may be framed and adopted under the provisions of §8-4-1 et seq. of this code, except that the question submitted shall be “Shall the charter be revised as a whole by representatives of the people?”, but no such revision as a whole shall be made within four years of the effective date of such a charter or of the last preceding revision as a whole, whichever be later, as the case may be. A revision as a whole may also be initiated in the manner specified in §8-3-9 of this code or in the manner specified in said section nine considered in pari materia with the provisions of §8-3-9 of this code. If a majority of the legal votes cast on the question be in the negative or if the proposed charter revised as a whole is rejected by a majority of the legal votes cast at the election thereon, the provisions of §8-4-2 and §8-4-3 of this code relating to a negative vote on the question of framing a charter and to rejection of a proposed charter shall govern and control.

The qualified voters of a city may amend a special legislative charter or a charter framed and adopted or revised as a whole under the provisions of former §8A-1-1 et seq. of this code, §8-3-1 et seq. of this code, or under §8-4-1 et seq. of this code, as the case may be, but no amendment shall be made within one year of the effective date of such a charter or of the last preceding revision of such charter as a whole, whichever be later, as the case may be. An amendment or amendments may be initiated in the same manner provided in this article for the framing of a charter, in the manner specified in §8-3-9 of this code, or in the manner specified in said section nine considered in pari materia with the provisions of §8-4-3 of this code. The governing body of a city shall provide by ordinance for a special municipal election to pass upon a proposed charter amendment or amendments if: (1) Such governing body by the affirmative vote of two-thirds of its members shall determine and specify that a special municipal election is necessary; or (2) a petition bearing the signatures, written in their own handwriting, of 15 percent of the qualified voters of the city, if a Class I or Class II city, or 10 percent of the qualified voters of the city, if a Class III city, expressly requesting that a special municipal election be called for the purpose has been filed with the governing body more than 120 days prior to the date of the next regular municipal election. In all other cases, a proposed charter amendment or amendments shall be submitted by ordinance at the next regular municipal election. Any proposed amendment or amendments shall be set out in full in the ordinance submitting same. The date of any special municipal election for the purpose shall be fixed by the ordinance providing for same, but any such special municipal election shall be held not less than 30 nor more than 60 days after such ordinance shall have been adopted. Notice of any election at which a proposed amendment or amendments shall be voted upon shall state the date and hours thereof, and shall set out the proposed amendment or amendments at length or state that copies may be obtained by any qualified voter or any freeholder of the city from a designated person at a stated place, upon request. Such notice shall be published as in the case of a notice of an election on the question of whether a charter shall be framed, as specified in §8-4-2 of this code. A charter amendment or amendments approved, or such of them as may be approved, by a majority of the legal votes cast at the election thereon shall take effect on the date that the declaration of the results showing approval by the voters has been made by the governing body and entered in the minutes of the governing body. One copy of the amendment or amendments, together with a certified copy of the declaration of results attached thereto, shall be certified forthwith by the recorder of the city to the Clerk of the House of Delegates, as keeper of the rolls, and another to the clerk of the county commission for recording in the office of such clerk of the county commission. The same shall be preserved by said Clerk of the House of Delegates as an authentic public record. After the effective date of an amendment or amendments so filed, all courts shall take judicial notice of such amendment or amendments.

If a majority of the legal votes cast at the election thereon be against any amendment, such proposed amendment shall not be submitted again, without a petition of the qualified voters as provided for in §8-4-1(b) of this code considered in pari materia with the provisions of this section, for at least one year.

§8-4-8. Same — An alternate plan.

Whenever the governing body of any city shall deem it expedient to amend the charter of any such city (whether such charter be a special legislative charter or a charter framed and adopted or revised as a whole under the provisions of former §8A-1-1 et seq., of this code, under §8-3-1 et seq., of this code, or §8-4-1 of this code, as the case may be), it shall, by ordinance, set out in its proper record book the proposed amendment or amendments in full. The governing body shall set a date, time, and place for a public hearing thereon, which date shall be not less than 30 days after the date of the first publication hereinafter required. The governing body shall cause the proposed amendment or amendments, together with a notice of the date, time and place fixed for the hearing thereon, to be published as a Class II-0 legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code, and the publication area for such publication shall be the city. The notice shall state that the proposed amendment or amendments shall be considered on the date and at the time and place fixed by the governing body and that any qualified voter or any freeholder of the city may appear and file objections, in writing, and also that if no objections are filed the said amendment or amendments shall become operative on and after a date fixed in the notice, which date shall be not less than 10 days after the date of the hearing. If no objections are filed, or if objections are filed and are withdrawn at the time of the hearing, or within 10 days thereafter, the governing body shall, by ordinance, adopt the amendment or amendments as an amendment or amendments to the charter, and cause a copy of the amendment or amendments, ordinance, and transcript of the proceedings to be certified to the Clerk of the House of Delegates, as keeper of the rolls, and to be recorded in the office of the clerk of the county commission. The same shall be preserved by such Clerk of the House of Delegates as an authentic public record. The amendment or amendments shall take effect on the effective date specified in the notice as aforesaid. After the effective date, all courts shall take judicial notice of such amendment or amendments.

If, on the date and at the time and place set for the hearing, objections to the amendment or amendments are filed and are not withdrawn then or within 10 days thereafter, the governing body may abandon the proposed amendment or amendments to which objections have been filed, or it may submit the proposed amendment or amendments, either as a unit or separately, at the next regular municipal election, or at a special municipal election if such governing body by the affirmative vote of two-thirds of its members shall determine and specify that a special municipal election is necessary and if the date of such regular municipal election shall be more than six months from such date, for ratification or rejection. Notice of any election at which the proposed amendment or amendments shall be voted upon shall state the date and hours thereof and shall set out the proposed amendment or amendments at length or state that copies may be obtained by any qualified voter or any freeholder of the city from a designated person at a stated place, upon request. The governing body shall cause such notice to be published as a Class II-0 legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code, and the publication area for such publication shall be the city. The amendment or amendments approved, or such of them as may be approved, by a majority of the legal votes cast at the election thereon shall take effect on the date that the declaration of the results showing approval by the voters has been made by the governing body and entered in the minutes of the governing body. One copy of the amendment or amendments, together with a certified copy of the declaration of results attached thereto, shall be certified forthwith by the recorder of the city to the Clerk of the House of Delegates, as keeper of the rolls, and another to the clerk of the county commission for recording in the office of such clerk of the county commission. The same shall be preserved by said Clerk of the House of Delegates as an authentic public record. After the effective date of an amendment or amendments so filed, all courts shall take judicial notice of such amendment or amendments. If a majority of the legal votes cast at the election thereon be against any proposed amendment, the same shall not be proposed again under the provisions of this section for at least one year.

The method of charter amendment provided for in this section is not in lieu of but is in addition to the other methods prescribed in this chapter

§8-4-9. Submission of alternative provisions.

A charter revision as a whole or a charter amendment or amendments may be proposed with alternative provisions for submission to the qualified voters and the same may be voted upon separately without prejudice to the primary question of whether the proposed charter revision as a whole or the amendment or amendments shall be adopted and without prejudice to the other provisions thereof.

Part III. Elections; Expenses.

§8-4-10. Conduct of elections; general provisions concerning canvass and declaration of results; election supplies; election officials.

The governing body of a city shall canvass the returns within relatively the same time with reference to an election held under the provisions of this article and in the same manner as county commissions are required to do with respect to general elections, and shall declare the results of any such election. This requirement shall apply to any election held under the provisions of this article, whether it be a special municipal election or voting conducted in conjunction with a general election or a regular municipal election. The canvass and declaration of results shall be entered in the minutes of the governing body on the date made. Unless otherwise provided by charter provision, any such special municipal election or voting conducted in conjunction with a general election or a regular municipal election shall be held and conducted under the supervision at each precinct of three commissioners of election and two clerks who shall be appointed by the governing body and shall be conducted as nearly as may be in accordance with the laws of this state governing general elections, subject, however, in the case of a special municipal election to the provisions of §8-4-11 of this code. For any special municipal election or voting conducted in conjunction with a general election or a regular municipal election, in accordance with the provisions of this article, the governing body shall arrange for and provide at its expense registration books, challenges and other election supplies as provided by law in general elections, and polling places in any such special municipal election or with respect to any such voting conducted in conjunction with a regular municipal election. In the event any commissioner or clerk appointed by the governing body shall fail or refuse to serve, such vacancy may be filled in like manner as such vacancies are filled in general elections under the laws of this state governing general elections, except that the governing body shall act in the place and stead of the county commission. A recount may be had, as in general elections, upon the party or parties desiring such recount providing adequate assurance to the governing body that the party or parties shall pay all costs of such recount.

§8-4-11. Special election and special municipal election officials.

In any special election upon the question of the approval or rejection of a proposed charter to be held under the provisions of article three of this chapter and in any special municipal election to be held under the provisions of this article four, the proponents and opponents of the proposed charter, the question of framing or revising a charter, the proposed charter revision as a whole or the proposed charter amendment or amendments, as the case may be, shall be entitled to representation among the election officials appointed to serve at each polling place. Election officials representing the proponents and opponents shall be designated as follows:

(1) The proponents and opponents, or either, of the proposed charter, the question of framing or revising a charter, the proposed charter revision as a whole or the proposed charter amendment or amendments, as the case may be, if organized, may, not less than fifteen days prior to the date fixed for the special election or special municipal election, as the case may be, file with the county court as to a special charter election to be held under the provisions of article three of this chapter or the governing body in all other cases a list of individuals to serve as election officials to represent their organization or organizations and if a list is so filed the county court or governing body, as the case may be, shall appoint as election officials to represent such organization or organizations the individuals so nominated: Provided, That any such organization has as members at least five percent of the qualified voters of the incorporated territory or city, and any such organization, within ten days after the official notice of such special election or special municipal election, as the case may be, was published for the first time, submitted to the county court or governing body, as the case may be, a statement showing the name, officers and members thereof: Provided, however, That no individual shall be a member of more than one such organization; or

(2) If the proponents and opponents, or either, of the proposed charter, the question of framing or revising a charter, the proposed charter revision as a whole, or the proposed charter amendment or amendments, as the case may be, are not organized as aforesaid, or if no such list is filed as aforesaid, the county court or governing body, as the case may be, shall, not less than ten days prior to the date fixed for the special election or special municipal election, as the case may be, appoint as representatives of proponents and opponents, or either, as the case may be, an equal number of persons known to be in favor of the proposed charter, the question of framing or revising a charter, the proposed charter revision as a whole or the proposed charter amendment or amendments, as the case may be, and of persons known to be opposed to the proposed charter, the question of framing or revising a charter, the proposed charter revision as a whole or the proposed charter amendment or amendments, as the case may be, to act as election officials at each polling place.

§8-4-12. Expenses.

The governing body of a city shall make full provision for all expenses incurred in advertising, holding and conducting any election or voting under the provisions of this article and all other proper expenses incurred in complying with the provisions of this article, including the expenses of a charter board and the members thereof, as specified in section two of this article.

PART I. FIRST ELECTION OF OFFICERS.

§8-5-1. First election of officers of a city; terms of first officers.

The first election of officers of a city shall be held, conducted, superintended, returned, certified and canvassed in such manner as is provided in article three of this chapter for the first charter election of such city. All officers elected at such first charter election, which first charter election is held after the effective date of this article, shall be elected for a term which shall expire on the thirtieth of June of the second or fourth year following such election, as the charter may provide.

§8-5-2. First election of officers of a town or village; commissioners of election.

At the time of ordering the issuance of the certificate of incorporation of a town or village as specified in section seven, article two of this chapter, the county court shall appoint three qualified voters of such incorporated territory who shall act as commissioners of election at the first election of officers to be held in such town or village, as hereinafter provided, and, in case they shall fail or refuse to act, such election may be held, conducted, superintended, returned and certified by any three qualified voters of such incorporated territory appointed for that purpose by the qualified voters present.

§8-5-3. When first election of officers of a town or village held; notice.

The first election of officers of a town or village shall be held within sixty days from the date of the certificate of incorporation issued in accordance with the provisions of section seven, article two of this chapter, and the commissioners of election appointed at the time the order is entered directing issuance of such certificate shall cause notice to be given of the date, time and place of holding such election, which notice shall specify the officers to be voted for, and shall be published within fourteen consecutive days next preceding the date appointed for such election, as a Class II-0 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 such town or village.

§8-5-4. Conducting first election of officers of a town or village; certificate of election; terms of first officers.

Such commissioners, or the individuals acting as such, shall preside and act as commissioners of such election, and all of the laws applicable to the election of district officers shall apply to such election, if not inconsistent with the provisions of this article. Such commissioners shall, within five days after such election, issue a certificate to the individuals elected, which certificate shall be recorded among the records of such town or village. All officers elected at the first election of officers held by a town or village, which first election is held after the effective date of this article, shall be elected for a term which shall expire on the thirtieth of June of the second year following such election.

§8-5-5. Regular election of officers; establishment of longer terms.

(a) After the first election of officers of a city, town, or village, the regular election of officers shall be held on the second Tuesday in June of the appropriate year, unless otherwise provided in the charter of the city or the special legislative charters of the towns or villages.

(b) A municipal election date established by a charter provision may fall on the same day as a regularly scheduled statewide primary or general election only when the voting precinct boundaries in the municipality coincide with the voting precinct boundaries established by the county commission or when the charter provides for separate registration books. If a municipal election falls on the same day as a regularly scheduled statewide primary or general election, the municipality and county may agree to use the county election officials in the municipal elections, if practicable, or the municipality may provide for separate election officials.

(c) A municipal election date established by charter provision may fall within 25 days of a regularly scheduled statewide primary or general election only where separate registration books are provided and maintained for the municipal election.

(d) Any municipality which establishes its election date by charter provision must comply with the provisions of this section or the election date shall be the second Tuesday of June. The language of this section may not be construed to prevent any city, town, or village from amending the provisions of its charter or special legislative charter, to provide that its municipal election be held on some day other than the second Tuesday in June.

(e) Officers of a city may be elected for a four-year term at the same election at which a proposed charter, proposed charter revision, or charter amendment providing for four-year terms is voted upon. The ballots or ballot labels used for the election of officers must indicate that the officers shall be elected for four-year terms if the proposed charter, revision or amendment is approved. Officers of a town or village may be elected for a four-year term upon approval by a majority of the legal votes cast at a regular municipal election of a proposition calling for four-year terms. The ballots or ballot labels used for the election of officers must indicate that the officers shall be elected for four-year terms if the proposition is approved.

(f) Municipalities are authorized to stagger and/or change the terms of elected municipal officers. Prior to any changes being made to the terms of elected municipal officers, the procedure to stagger and/or change the terms shall be set by ordinance and must be approved by a majority of the voters.

(g) Beginning on July 1, 2022, any municipality that has not previously adopted a municipal charter may pass an ordinance that establishes a new municipal election day upon agreement with its county commission to hold any local elections, including the regular election of local officers, municipal bond elections, and municipal levy elections, on the same day as a regularly scheduled statewide primary or general election. The municipality shall publish notice of the public meeting during which the proposed ordinance shall be considered by the municipal governing body via Class II-0 legal advertisement in a publication area sufficient to reach a majority of the municipal residents, which notice shall include the public meeting date, time, and location, any proposed extension or reduction of terms of office pursuant to paragraph (f) of this section, and the proposed election day change.

(h) The ordinance proposed pursuant to paragraph (g) of this section may call for an extension or reduction of the terms of office for the purpose of aligning the terms to coincide with the same date as a regularly scheduled statewide primary or general election day, which question shall be resolved by majority vote of the participating voters in the county: Provided, That the governing body shall not propose an extension of the terms of those offices by more than 18 months: Provided, however, That nothing in this section modifies a municipality’s authority to reduce current elected officials’ terms of office in any other manner provided by law.

(i) A municipality which enters into an agreement with the county commission to hold elections at the same time as a regularly scheduled statewide primary or general election day pursuant to this section is required to share in the administrative costs of holding the election, but which costs shall not exceed the municipality’s pro rata share of voters registered in the municipality compared with the total voters registered in the county.

§8-5-5a.

Repealed.

Acts, 1987 Reg. Sess., Ch. 91.

PART III. CHARTER PROVISIONS PERTAINING TO

ELECTION OF OFFICERS.

§8-5-6. Charter provisions concerning officers and elections, etc.; provisions of general law concerning same.

The charter of every city framed and adopted or revised as a whole under the provisions of article three or article four of this chapter, as the case may be, shall provide a method and time for the filing of certificates of candidacy, nominating candidates, conducting primary and regular municipal elections, and determining and certifying the results of such elections. Except as otherwise provided in the charter of any municipality, the provisions of general law with respect to the method and time for the filing of certificates of candidacy, nominating candidates, conducting primary and regular municipal elections, and determining and certifying the results of such elections, so far as applicable, shall apply to municipal elections: Provided, That the provisions of section thirteen of this article shall be construed as mandatory.

§8-5-7. Certain officers; wards or election districts; residency and other requirements.

(a) Unless otherwise provided in the charter of a municipality, there shall be elected a mayor, a recorder and council members, who together shall form the governing body of the municipality.

(b) When a municipality has not been divided into wards or election districts, there shall be at least five council members, but when the municipality has been divided into wards or election districts, the governing body may, by ordinance, determine the number of council members to be elected from each ward or election district. When it is considered necessary, the governing body may, by ordinance, increase or decrease the number of wards or election districts and change the boundaries thereof, the wards or election districts to be made as nearly equal as may be, in population, and when the municipality is divided into wards or election districts, or there is an increase or decrease in the number of wards or election districts as aforesaid, the governing body may increase or decrease the number of council members and, in the case of an increase in the number of council members, direct an election to be held at the next regular municipal election in the additional ward or wards or election district or districts so that each ward or election district may have its full number of council members residing therein and may have equal representation on the governing body. When a municipality has been divided into wards or election districts, the governing body may, by ordinance, also provide for the election of council members at large in addition to the council members to be elected from each ward or election district. The provisions of this subsection are applicable to any municipality except to the extent otherwise provided in the charter of the municipality.

(c) Unless otherwise provided by charter provision or ordinance, the mayor, recorder and council members must be residents of the municipality and must be qualified voters entitled to vote for members of its governing body. A city manager in a manager form of government need only be a resident of the city at the time of his or her appointment.

PART V. OATH OF OFFICE; TERMS OF OFFICE; FILLING VACANCIES.

§8-5-8. Oath of office.

Every person elected or appointed to an office in any municipality shall, unless otherwise provided in the charter thereof, within twenty days after his election or appointment and before he shall enter upon the duties of his office, take and subscribe to the oath of office prescribed for district officers, which may be done before any person authorized by law to administer oaths, or before the mayor or recorder of such municipality. The oath, together with the certificate of the officer administering the same, shall be filed, recorded and preserved in the office of the recorder of the municipality, and a certified copy of such oath and certificate shall be filed and recorded in the office of the clerk of the county court of the county in which the municipality or the major portion of the territory thereof is located.

§8-5-9. Terms of office.

Except as otherwise provided in the charter of any municipality, the terms of all officers elected after the first election in municipalities holding biennial elections shall commence on July 1, following their election and shall be for two years, and in municipalities holding quadrennial elections the terms of all elected officers shall commence on July 1, following their election and shall be for four years.

All municipal officers, whether elected at the first election of officers or at regular municipal elections, or appointed, shall hold their offices until their successors are elected or appointed and qualified according to law, unless sooner removed from office according to law. Officers in office when this article becomes effective shall hold their offices subject to the provisions of the immediately preceding sentence hereof.

§8-5-10. Vacancies in elective offices; how filled.

Unless otherwise provided by charter provision or ordinance, when a vacancy shall occur from any cause in any municipal elective office, the vacancy, until the next succeeding regular municipal election and until the qualification of an elected successor, shall be filled by appointment by the governing body from among the residents of the municipality eligible under this article.

 PART IV. GENERAL PROVISIONS RELATING TO OFFICERS AND EMPLOYEES.

§8-5-11. Municipal officers and employees generally.

Subject to the provisions of the Constitution of this state, the provisions of this article, and other applicable provisions of this chapter, any city may by charter provision, and the governing body of any municipality, consistent with the provisions of its charter, if any, may by ordinance, determine and prescribe the officers or positions which are to be filled by election, appointment or employment, the number, method of selection, tenure, qualifications, residency requirements, powers and duties of municipal officers and employees, and the method of filling any vacancies which may occur.

§8-5-12. Compensation of officers and employees.

(a) Notwithstanding any charter provision to the contrary, the governing body of every municipality shall by ordinance fix or cause to be fixed the salary or compensation of every municipal officer and employee: Provided, That the salary of any officer shall not be increased or diminished during his or her term.

(b) The governing body of every municipality shall have plenary power and authority to provide by ordinance for the allowance of time off of officers and employees with pay for vacations and illness and for personnel management incentives, as additional consideration for their services and employment.

(c) No deductions or assignments of earnings shall be allowed for union, labor organization, or club dues or fees from the compensation of officers or employees covered by this section: Provided, That this subsection shall not apply to municipal employees covered by a collective bargaining agreement with a municipality which is in effect on July 1, 2021.

§8-5-12a. Public carriage for officers and employees.

Any municipal officer or employee may, or may not, in the discretion of the city manager, mayor or the governing body, be furnished with the use of publicly provided carriage to travel from his residence to his workplace and return: Provided, That such usage is subject to the supervision of such city manager, mayor or governing body and is directly connected with and required by the nature and in the performance of such officer's or employee's duties and responsibilities.

PART VII. ELECTIONS AND PETITIONS GENERALLY.

§8-5-13. Integration of municipal elections with system of permanent registration.

Notwithstanding any charter provision to the contrary, it is the duty of each city by charter provision or each municipality by ordinance to make provision for integrating the conduct of all municipal elections with the system of "permanent registration of voters" as provided in article two, chapter three of this code.

§8-5-14. Municipal executive committees; election expenses; applicability of state primary and general election laws; election days.

Except as otherwise provided by charter provision or ordinance or this code, municipal executive committees shall exercise similar functions and be governed by the same laws in regard to municipal primary elections and regular municipal elections as county executive committees in regard to county-state primary and general elections, so far as the same may be applicable. All expenses of conducting municipal primary elections and regular municipal elections shall be paid by the municipality. The provisions of chapter three of this code, referring more particularly to primary elections and general elections, shall, so far as the same can be applied and so far as not otherwise provided by charter provision or ordinance, govern the conduct of municipal primary elections and regular municipal elections, as the case may be. No municipal primary election shall be held on the day of the county-state primary election except as provided in section five of this article nor less than twenty-five days immediately preceding the regular municipal election, unless a shorter period of time is established by charter or ordinance.

§8-5-15. Tie vote.

Whenever two or more individuals shall receive an equal number of legal votes for the same office, if such number be the highest cast for such office, the individuals under whose supervision the election is held shall decide by lot which of them shall be returned as elected, and shall make their return accordingly.

§8-5-15a. Special municipal elections not otherwise provided for.

In any instance where there is no statutory, charter or lawful ordinance provision authorizing, relating to or requiring a special municipal election, the governing body of a municipality shall, upon receipt of a proper petition, as hereinafter in this section specified, requesting a special municipal election for a proper governmental purpose, as specified in such petition, forthwith adopt a resolution or ordinance, where procedure by ordinance is required, calling and providing for a special municipal election for such purpose. Such petition must bear the signatures, written in their own handwriting, of not less than twenty percent of the qualified voters of such municipality. Such special municipal election shall be held, superintended and conducted, and the results thereof ascertained, certified, returned and canvassed in the same manner and by the same individuals as elections for municipal officers. In any instance where there is a statutory, charter or lawful ordinance provision authorizing, relating to or requiring a special municipal election upon petition or otherwise, the provisions of this section shall not be applicable and such statutory, charter or lawful ordinance provision shall govern and control in all respects, including without limiting the generality of the foregoing, the requisites of any petition for such special municipal election.

§8-5-16. Judicial review.

A writ of error shall lie to the circuit court in accordance with the provisions of article three, chapter fifty-eight of this code from any order of a county court ordering an election to be held under the provisions of this chapter. Upon the filing of a petition for a writ of error, all proceedings shall be suspended or stayed pending final adjudication of the matters involved.

The order of any municipality ordering an election to be held under the provisions of this chapter shall be reviewable by the circuit court of the county in which the municipality or the major portion of the territory thereof is located upon certiorari to the governing body thereof, in accordance with the provisions of article three, chapter fifty-three of this code. Upon the filing of a petition for a writ of certiorari, all proceedings shall be suspended or stayed pending final adjudication of the matters involved.

§8-5-17. Canvassing of elections; contested elections.

All elections ordered and held by a county court under the provisions of this chapter shall be canvassed by such county court. All elections ordered and held by a municipality under the provisions of this chapter shall be canvassed by the governing body of such municipality.

Any contest of a public question election ordered and held by a county court, or by a municipality, under the provisions of this chapter, shall be heard and decided by the county court or governing body of the municipality, as the case may be, and any such contest shall be conducted in the manner to be provided in article seven, chapter three of this code for contests of an election on a public question. Any such election may be contested by a qualified elector or voter or by a freeholder interested therein.

Any contest by any candidate or candidates of an election of charter board members or of the first officers of a city, which election is held under the provisions of article three of this chapter, shall be heard and decided by the county court, and any such contest shall be conducted in the manner provided in said article seven, chapter three of this code for election contests for county or district officers in general elections.

Any contest by any candidate or candidates of an election of charter board members, which election is held under the provisions of article four of this chapter, or of officers of a municipality (other than the first officers of a city) shall be heard and decided by the governing body thereof, and any such contest shall be conducted in the manner provided in said article seven, chapter three of this code for election contests for county or district officers in general elections.

§8-5-18. Determination as to sufficiency of a petition filed under this chapter.

It shall be the right and duty of the county court, the governing body of a municipality, or other body or officer, to which or to whom any petition is presented under the provisions of this chapter, as the case may be, to determine the sufficiency of any such petition, and where no time limit is prescribed for the making of such determination, the same shall be accomplished within a reasonable period of time. Any such determination, where there is no other express right of judicial review provided, shall be reviewable by the circuit court of the county upon certiorari to the county court, governing body, or other body or officer, as the case may be, in accordance with the provisions of article three, chapter fifty-three of this code; and in the case of a governing body, the appropriate circuit court shall be the circuit court of the county in which the municipality or the major portion of the territory thereof is located.

PART VIII. CONFLICT OF INTEREST.

§8-5-19. Charter or ordinance provisions pertaining to conflict of interest; penalties for violation thereof.

Every city shall have plenary power and authority to provide by charter provision, and every municipality shall have plenary power and authority to provide by ordinance, that it shall be unlawful for the governing body, or any member thereof, or other officer or officers thereof, to be interested personally, either directly or indirectly, or as a member, manager, officer or stockholder of any partnership, business, firm or corporation, in any contract furnishing material, services or supplies to the municipality, or to any contractor, or workmen for the municipality, or in any manner whatsoever, whereby the taxpayers of such municipality shall become the paymaster, either directly or indirectly, or to adopt any other provisions, deemed appropriate, pertaining to conflict of interest or possible conflict of interest. Any violation of any such charter or ordinance provisions by any member of the governing body or other officer or officers thereof, shall be a misdemeanor, and, upon conviction thereof, such member or officer shall be fined not less than $50 nor more than $500, and shall automatically be removed from office.

§8-5-20. Triennial audits of certain associations and organizations.

(a) Any voluntary association or other membership organization, whether nonprofit or for profit, the majority of the membership of which is comprised of municipalities of this state or of persons who hold elected or appointed municipal offices in this state, and which annually receives more than $5,000 in public moneys from the various municipalities of this state to pay the membership dues of municipalities or elected or appointed municipal officials, shall file with the secretary of tax and revenue on a triennial basis, beginning July 1, 1997, an audit of the receipt and disbursement of funds. The period covered by the audit shall be the previous three years or for the years since the last such audit.

(b) Any audit required by the provisions of this section shall be performed by an independent certified public accountant.

(c) Any voluntary association or membership organization subject to the provisions of this section which fails or refuses to file an audit shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000.

PART I. GENERAL.

§8-6-1. Annexation of unincorporated territory.

(a) Unincorporated territory may be annexed to and become part of a municipality contiguous thereto only in accordance with the provisions of this article.

(b) Any farmlands or operations as described in article nineteen, chapter nineteen of this code which may be annexed into a municipality shall be protected in the continuation of agricultural use after being annexed.

(c) Any new imposition of a tax or any increase in the rate of tax upon any business, occupation or privilege following annexation shall be applied in accordance with the provisions of section five, article thirteen, chapter eight of this code.

PART II. ANNEXATION BY ELECTION.

§8-6-2. Petition for annexation.

(a) Five percent or more of the freeholders of a municipality desiring to have territory annexed thereto may file a petition in writing with the governing body thereof setting forth the change proposed in the metes and bounds of the municipality and asking that a vote be taken upon the proposed change. The petition shall be verified and shall be accompanied by an accurate survey map showing the territory to be annexed to the corporate limits by the proposed change.

(b) The petitioners shall obtain a surety bond in an amount set by the governing body sufficient to cover the cost of the election. The bond shall be forfeited if a majority of the votes cast are against the proposed annexation.

(c) The governing body shall, upon receipt of the bond, order a vote of the qualified voters of the municipality to be taken upon the proposed annexation on a date and at a time and place to be named in the order.

(d) The governing body shall, at the same time, order a vote of all of the qualified voters of the additional territory and of all of the freeholders of the additional territory whether they reside or have a place of business therein or not, to be taken upon the question on the same day at some convenient place in or near the additional territory.

(e) The governing body shall cause the order for the election to be published, at the cost of the municipality, as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. The publication area is the municipality and the additional territory. The first publication must be at least fourteen days prior to the date upon which the vote is to be taken. The order for the election shall contain an accurate description by metes and bounds of the additional territory proposed to be annexed to the corporate limits by the proposed change, a summary of the municipality's plan for providing services to the additional territory and, if practicable, shall also contain a popular description of the additional territory.

(f) The election shall be held, superintended and conducted and the results thereof ascertained, certified, returned and canvassed in the same manner by the same individuals as elections for municipal officers. The election is reviewable by the circuit court of the county in which the municipality or the major portion thereof, including the area proposed to be annexed, is located. The order may be reviewed by the circuit court as an order of a county commission ordering an election may be reviewed under section sixteen, article five of this chapter.

(g) The ballots, or ballot labels where voting machines are used, shall have written or printed on them the words:

 / / For Annexation

 / / Against Annexation

(h) Any freeholder which is a firm or corporation may vote by its manager, president or executive officer duly designated in writing by the firm or corporation.

(i) An individual who is a qualified voter and freeholder of the municipality or the additional territory shall be entitled to vote only once.

(j) For purposes of this section, the term "qualified voter of the additional territory" includes a firm or corporation in the additional territory regardless of whether the firm or corporation is a freeholder. A firm or corporation may vote by its manager, president, or executive officer duly designated in writing by the firm or corporation. In any instance where a freeholder leases or rents real property to a firm or corporation the freeholder and the firm or corporation shall determine which entity will be entitled to vote in the annexation election.

(k) When an election is held in any municipality in accordance with the provisions of this section, another election relating to the same proposed change or any part thereof shall not be held for a period of one year.

(l) If a majority of all of the legal votes cast in the municipality and a majority of all the legal votes cast in the territory are in favor of the proposed annexation, then the governing body shall proceed as specified in the immediately succeeding section of this article.

§8-6-3. Governing body of municipality to certify annexation; order.

The governing body of such municipality shall enter the results of such election in its minutes, and, when the annexation proposed is adopted, as provided in the immediately preceding section of this article, shall forward a certificate to such effect to the county court of the county wherein the municipality or the major portion of the territory thereof, including the annexed territory, is located; and such court shall thereupon enter an order in substance as follows:

"A certificate of the governing body of the municipality of ............................ was this day filed showing that an annexation has been made, in the manner required by law, to the corporate limits thereof, and that by such annexation the said corporate limits are as follows:

"Beginning at (here recite the boundaries as changed). It is, therefore, ordered that such annexation to said corporate limits be, and the same is hereby approved and confirmed, and the clerk of this court is directed to deliver to the said governing body a certified copy of this order as soon as practicable after the rising of this court."

After the date of such order, the corporate limits of the municipality shall be as set forth therein.

PART III. ANNEXATION WITHOUT ELECTION.

§8-6-4. Annexation without an election.

(a) The governing body of a municipality may, by ordinance, provide for the annexation of additional territory without ordering a vote on the question if: (1) A majority of the qualified voters of the additional territory file with the governing body a petition to be annexed; and (2) a majority of all freeholders of the additional territory, whether they reside or have a place of business therein or not, file with the governing body a petition to be annexed.

(b) For purposes of this section, the term "qualified voter of the additional territory" includes firms and corporations in the additional territory regardless of whether the firm or corporation is a freeholder. A firm or corporation may sign a petition by its manager, president or executive officer duly designated in writing by the firm or corporation. In any instance where a freeholder leases or rents real property to a firm or corporation the freeholder and the firm or corporation shall determine which entity will be entitled to sign a petition relating to the proposed annexation.

(c) The determination that the requisite number of petitioners have filed the required petitions shall be reviewable by the circuit court of the county in which the municipality or the major portion of the territory thereof, including the area proposed to be annexed is located, upon certiorari to the governing body in accordance with the provisions of article three, chapter fifty-three of this code.

(d) A qualified voter of the additional territory who is also a freeholder of the additional territory may join only one petition of the additional territory.

(e) It shall be the responsibility of the governing body to enumerate and verify the total number of eligible petitioners, in each category, from the additional territory. In determining the total number of eligible petitioners, in each category, a freeholder or any other entity that is a freeholder shall be limited to one signature on a petition as provided in this section. There shall be allowed only one signature on a petition per parcel of property and any freehold interest that is held by more than one individual or entity shall be allowed to sign a petition only upon the approval by the majority of the individuals or entities that have an interest in the parcel of property.

(f) If all of the eligible petitioners are qualified voters, only a voters' petition is required.

(g) If satisfied that the petition is sufficient in every respect, the governing body shall enter that fact upon its journal and forward a certificate to that effect to the county commission of the county wherein the municipality or the major portion of the territory thereof, including the additional territory, is located. The county commission shall thereupon enter an order as described in the immediately preceding section of this article. After the date of the order, the corporate limits of the municipality shall be as set forth therein.

§8-6-4a. Annexation without election for municipalities in counties that have an adopted countywide zoning ordinance which includes urban growth boundaries.

(a) This section applies to municipalities in counties that have adopted a countywide zoning ordinance with designated urban growth boundaries and, prior to January 1, 2009, have adopted local impact fees pursuant to the provisions of §7-20-1 et seq. of this code that want to annex additional property without an election.

(b) For purposes of this section only:

(1) “Contiguous” means property that is next to, abutting, and having a boundary that is coterminous with the municipality’s designated urban growth boundary. The length of a street, highway, road, or other traffic or utility easement, streams, rivers, or other natural topography are not to be used to determine if a property is contiguous: Provided, That the width of a street, highway, road, or other traffic or utility easement, streams, rivers, or other natural topography may be used to determine contiguous boundaries.

(2) “Urban growth boundary” means a site-specific line, delineated on a zoning map or a written description in a zoning ordinance identifying an area around and outside the corporate limits of a municipality within which there is a sufficient supply of developable land within the boundary for at least a prospective 20-year period of municipal growth based on demographic forecasts and the time reasonably required to effectively provide municipal services to the identified area. The urban growth boundary may be called by any name chosen by the county commission, but the word “boundary” shall be used in the name of the boundary. The boundary shall be established by the county commission in agreement with each individual municipality regarding that municipality’s boundary. If the county commission and municipality cannot agree upon the location or size of the boundary, either party may file for declaratory judgment relief in the circuit court which shall submit the dispute to mediation or arbitration prior to final resolution by the circuit court. Once a county has adopted an urban growth boundary by its designation on an adopted county zoning map, the gross area inside the boundary may not be reduced without written consent of the municipality. The county commission shall review each urban growth boundary at a period not to exceed 10 years or upon request of the individual municipality.

(c) Procedure for a municipality to annex property within an urban growth boundary. —

(1) If the proposed property to be annexed by a municipality is entirely within the municipality’s designated urban growth boundary, then the municipality may annex without an election the proposed property pursuant to the provisions of §8-6-4 of this code. Agreement with the county commission is not required.

(2) If the proposed property to be annexed by minor boundary adjustment by a municipality is entirely within the municipality’s designated urban growth boundary, then the municipality may annex without an election the proposed property if the provisions of §8-6-5 of this code are followed, except that agreement with the county commission is not required.

(d) Procedure for a municipality to annex property within urban growth boundaries of two or more municipalities. —

If the proposed property to be annexed by a municipality is partially or wholly within another municipality’s urban growth boundary, then the municipality may annex without an election the proposed property pursuant to the provisions of §8-6-4 of this code if the two municipalities have executed an intergovernmental agreement regarding the annexation of the subject property. Agreement with the county commission is not required.

(e) Procedure for a municipality to annex contiguous property outside an urban growth boundary. —

(1) If the proposed property to be annexed by a municipality is outside the municipality’s designated urban growth boundary, then the municipality may annex without an election the proposed property pursuant to the provisions of §8-6-4 of this code, if:

(A) The proposed property to be annexed is contiguous to the municipality, as defined in this section; and

(B) The municipality has the county commission’s agreement.

(2) Prior to the agreement of the county commission to the annexation of the proposed property, the county commission shall:

(A) Hold a public hearing;

(B) Place a notice on the subject property, which notice shall be the same as that required for property to be rezoned; and

(C) At least 15 days prior to the public hearing, publish a notice of the date, time, and place of the public hearing as a Class I legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code.

(f) Procedure for a municipality to annex noncontiguous property outside an urban growth boundary. —

(1) If the proposed property to be annexed by a municipality is entirely outside the municipality’s designated urban growth boundary and is not contiguous to the municipality, as defined in this section, then the municipality may annex without an election the proposed property pursuant to the provisions of §8-6-4 of this code if the municipality has the county commission’s agreement and, prior to the agreement of the county commission to the annexation of the proposed property, the county commission shall:

(A) Hold a public hearing;

(B) Place a notice on the subject property, which notice shall be the same as that required for property to be rezoned; and

(C) At least 15 days prior to the public hearing, publish a notice of the date, time, and place of the public hearing as a Class I legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code.

(2) After the public hearing and on-site notice, if the county commission finds, by a written record, that the proposed annexation is for the good of the county as a whole, then the county commission may agree to the annexation.

(g) Prior to the county commission entering an order for any annexation pursuant to this section, the annexed property shall be surveyed by a licensed professional surveyor and a metes and bounds description of the annexed property must be provided to the county commission of the county in which the property is located.

(h) After a municipality has annexed property pursuant to this section and the property has been surveyed, the county commission shall enter an order. After the order is entered, the corporate limits of the municipality include the annexed property.

§8-6-5. Annexation by minor boundary adjustment.

(a) If a municipality desires to increase its corporate limits by making a minor boundary adjustment, the governing body of the municipality may apply to the county commission of the county wherein the municipality or the major portion of the territory thereof, including the territory to be annexed, is located for permission to effect annexation by minor boundary adjustment. The municipality shall pay the costs of all proceedings before the commission: Provided, That:

(1) A minor boundary adjustment may not exceed 105 percent of the existing total municipal boundary;

(2) A minor boundary adjustment may not exceed 120 percent of the current area of the municipality; and

(3) A minor boundary adjustment made in this manner is limited to one boundary annexation within a two-year period, regardless of subdivisions (1) and (2) of this subsection.

(b) In addition to any other annexation configuration, a municipality may incorporate by minor boundary adjustment: (i) Territory that consists of a street or highway as defined in §17C-1-35 of this code and one or more freeholders; or (ii) territory that consists of a street or highway as defined in §17C-1-35 of this code which does not include a freeholder, but which is necessary for the provision of emergency services in the territory being annexed.

(c) A county commission may develop a form application for annexation for minor boundary adjustment. An application for annexation by minor boundary adjustment shall include, but not be limited to:

(1) The number of businesses located in and persons residing in the additional territory;

(2) An affidavit of each business located in, each person residing in, and each freeholder of the additional territory stating that he, she, or it has consented to be included in the annexation, in such form as the county commission deems sufficient. If the municipality cannot obtain an affidavit from a business, resident, or freeholder within 90 days after sending the affidavit form and a letter explaining the purpose of the affidavit via certified mail, return receipt requested, to the best available address for the business, resident, or freeholder, such business, resident, or freeholder shall be considered to have consented to the annexation;

(3) An accurate map showing the metes and bounds of the additional territory;

(4) A statement setting forth the municipality’s plan for providing the additional territory with all applicable public services such as police and fire protection, solid waste collection, public water and sewer services, and street maintenance services, including to what extent the public services are or will be provided by a private solid waste collection service or a public service district;

(5) A statement of the impact of the annexation on any private solid waste collection service or public service district currently doing business in the territory proposed for annexation in the event the municipality should choose not to utilize the current service providers;

(6) A statement of the impact of the annexation on fire protection and fire insurance rates in the territory proposed for annexation;

(7) A statement of how the proposed annexation will affect the municipality’s finances and services; and

(8) A statement that the proposed annexation meets the requirements of this section.

(d) Upon receipt of a complete application for annexation by minor boundary adjustment, the county commission shall determine whether the application meets the threshold requirements for consideration as a minor boundary adjustment including whether the annexation could be efficiently and cost effectively accomplished under §8-6-2 or §8-6-4 of this code. If the county commission determines that the annexation could be cost effectively and efficiently accomplished under §8-6-2 or §8-6-4 of this code, that the application lacks sufficient evidence that all affected parties of the additional territory consent to the annexation, or that the application otherwise fails to meet the threshold requirements for consideration as a minor boundary adjustment, it shall enter an order denying the application, which order shall include the reasons upon which it is based.

(e) If the application meets the threshold requirements, the county commission shall order publication of a notice of the proposed annexation to the corporate limits and of the date and time set by the commission for a hearing on the proposal. Publication shall be as in the case of an order calling for an election, as set forth in §8-6-2 of this code. A like notice shall be prominently posted at not less than five public places within the area proposed to be annexed.

(f) In making its final decision on an application for annexation by minor boundary adjustment, the county commission shall, at a minimum, consider the following factors:

(1) Whether the territory proposed for annexation is contiguous to the corporate limits of the municipality. For purposes of this section, “contiguous” means that at the time the application for annexation is submitted, the territory proposed for annexation either abuts directly on the municipal boundary or is separated from the municipal boundary by an unincorporated street or highway, or street or highway right-of-way, a creek or river, or the right-of-way of a railroad or other public service corporation, or lands owned by the state or the federal government;

(2) Whether the proposed annexation is limited solely to a Division of Highways right-of-way or whether the Division of Highways holds title to the property in fee;

(3) Whether affected parties of the territory to be annexed oppose or support the proposed annexation. For purposes of this section, “affected parties” means freeholders, firms, corporations, and qualified voters in the territory proposed for annexation and in the municipality, and a freeholder whose property abuts a street or highway, as defined in §17C-1-35 of this code, when: (i) The street or highway is being annexed to provide emergency services; or (ii) the annexation includes one or more freeholders at the end of the street or highway proposed for annexation;

(4) Whether the proposed annexation consists of a street or highway as defined in §17C-1-35 of this code and one or more freeholders;

(5) Whether the proposed annexation consists of a street or highway as defined in §17C-1-35 of this code which does not include a freeholder, but which is necessary for the provision of emergency services in the territory being annexed;

(6) Whether another municipality has made application to annex the same or substantially the same territory; and

(7) Whether the proposed annexation is in the best interest of the county as a whole.

(g) If the county commission denies the application for annexation by minor boundary adjustment, the commission may allow the municipality to modify the proposed annexation to meet the commissions objections. The commission must order another public hearing if significant modifications are proposed.

(h) The final order of the commission shall include the reasons for the grant or denial of the application.

(i) The municipality applying for annexation or any affected party may appeal the commission’s final order to the circuit court of the county in which the municipality or the major portion thereof, including the area proposed to be annexed, is located. The county commission may participate in any appeal taken from its order in the same manner and to the same extent as a party to the appeal. The order may be reviewed by the circuit court as an order of a county commission ordering an election may be reviewed under §8-5-16 of this code.

(j) If the final order of the county commission is a denial of the application for annexation, the municipality may appeal as set forth in this section, but the municipality may not present the commission with another application for annexation relating to the same proposed change or any part thereof for a period of two years after issuance of the final order of the commission, unless such application is directed by the circuit court as the result of an appeal.

PART V. DUTIES AS TO AD VALOREM TAXES FOR MUNICIPAL PURPOSES

ON PROPERTIES IN NEWLY ANNEXED AREAS.

§8-6-6. Duties as to ad valorem taxes for municipal purposes on properties in newly annexed areas.

Upon the effective date of any annexation under the provisions of this article, it shall be the duty of the governing body of the municipality to notify the county assessor of such annexation, and upon being so notified, it shall be the duty of such assessor to see to it that the properties situate within the newly annexed area are assessed with the municipal ad valorem taxes for the current fiscal year and subsequent fiscal years or the ensuing and subsequent fiscal years, depending upon the date of notification to such assessor.

PART I. GENERAL.

§8-7-1. Decrease of corporate limits.

The corporate limits of a municipality may be decreased only in accordance with the provisions of this article.

Part II. Decrease of Corporate Limits by Election.

§8-7-2. Procedure to decrease corporate limits.

A petition to decrease the corporate limits of a municipality may be filed with the governing body thereof by five percent or more of the freeholders in the territory proposed for elimination, setting forth the change proposed in the metes and bounds of the municipality, and asking that a vote be taken upon the proposed change. The petition shall be verified and shall be accompanied by an accurate survey map showing the territory which would be eliminated from the corporate limits by the proposed change: Provided, That within 90 days after notice of the petition shall have been given by publication of a Class II-0 legal advertisement pursuant to §59-3-1 et seq. of this code, cost to be paid by the petitioners each business and freeholder within the territory proposed for elimination may file a sworn statement objecting to the change to the metes and bounds of the municipality. If a business or freeholder files a timely objection, that property shall remain within the territory or the municipality and shall be removed from the metes and bounds description and survey map submitted to the qualified voters as provided in this section. The governing body, upon bond in penalty prescribed by the governing body with good and sufficient surety being given by petitioners, and conditioned to pay the costs of such election if a majority of the legal votes cast are against the proposed change in boundary, shall thereupon order a vote of the qualified voters of such municipality to be taken upon the proposed change on a date and at a time and place therein to be named in the order, not less than 20 nor more than 30 days from the date thereof. The governing body shall cause the order to be published, at the cost of the municipality, as a Class II-0 legal advertisement in compliance with §59-3-1 et seq. of this code, and the publication area for such publication shall be the municipality. The first publication shall be at least 14 days prior to the date upon which the vote is to be taken. The order so published shall contain an accurate description by metes and bounds of the territory which would be eliminated from the corporate limits by the proposed change, and, if practicable, shall also contain a popular description of the territory.

The election shall be held, superintended, and conducted, and the results thereof ascertained, certified, returned, and canvassed in the same manner and by the same individuals as elections for municipal officers. The ballots, or ballot labels where voting machines are used, shall have written, or printed on them the words:

[ ] For Decrease of Corporate Limits

[ ] Against Decrease of Corporate Limits

When an election is held in any municipality in accordance with the provisions of this section, another such election relating to the same proposed change or any part thereof shall not be held for a period of one year.

If a majority of all of the legal votes cast within such municipality are in favor of the proposed change, then the governing body shall proceed as specified in the immediately succeeding section of this article.

§8-7-3. Governing body of municipality to certify decrease in corporate limits; order.

The governing body of such municipality shall enter the results of such election in its minutes, and, when the decrease proposed is adopted, as provided in the immediately preceding section of this article, shall forward a certificate to such effect to the county court of the county wherein the municipality or the major portion of the territory thereof is located; and such court shall thereupon enter an order in substance as follows:

"A certificate of the governing body of the municipality of ..................... was this day filed showing that a decrease has been made, in the manner required by law, in the corporate limits thereof, and that by such decrease the said corporate limits are as follows:

"Beginning at (here recite the boundaries as changed). It is, therefore, ordered that such decrease in said corporate limits be, and the same is hereby approved and confirmed, and the clerk of this court is directed to deliver to the said governing body a certified copy of this order as soon as practicable after the rising of this court."

After the date of such order, the corporate limits of the municipality shall be as set forth therein.

PART III. DECREASE OF CORPORATE LIMITS BY MINOR

BOUNDARY ADJUSTMENT.

§8-7-4. Decreasing corporate limits by minor boundary adjustment.

In the event a municipality desires to decrease its corporate limits by making a minor boundary adjustment, the governing body of such municipality may apply to the county court of the county wherein the municipality or the major portion of the territory thereof is located for permission to effect such decrease in the corporate limits by minor boundary adjustment.

Such application shall disclose the number of individuals residing in the territory which would be eliminated from the corporate limits by the proposed change, and shall have attached thereto an accurate map showing the metes and bounds of such territory.

If satisfied that the change sought is only a minor boundary adjustment, the county court shall order publication of a notice of the proposed decrease in the corporate limits and of the date and time set by the court for a hearing on such proposal. Publication shall be as in the case of an order calling for an election, as set forth in section two of this article. A like notice shall be prominently posted at not less than five public places within the territory which would be eliminated from the corporate limits by the proposed change.

If the freeholders of such territory who are present or are represented at the hearing are not substantially opposed to the proposed boundary change, the court may enter an order decreasing the corporate limits of the municipality as requested, which order may be reviewed by the circuit court as an order of a county court ordering an election may be reviewed under section sixteen, article five of this chapter. After the date of such order, the corporate limits of the municipality shall be as set forth therein, unless judicial review is sought under the provisions of said section sixteen. If the proposed change is substantially opposed at the hearing by any such freeholder, the court shall dismiss the application. Dismissal of any such application shall not preclude proceedings in accordance with the provisions of sections two and three of this article. The municipality shall pay the costs of all proceedings under this section.

§8-8-1.

Repealed.

Acts, 2006 Reg. Sess., Ch. 39.

§8-9-1. Who to preside at meetings of governing body; quorum; interested member of governing body not to vote.

Unless otherwise provided by charter provision, the governing body of every municipality shall be presided over at its meetings by the mayor, or, in his absence, by the recorder, or, in the absence of both the mayor and the recorder, by one of its members selected by a majority of the members of the governing body present. A majority of the members of the governing body shall be necessary to constitute a quorum for the transaction of business. No member of the governing body of any municipality shall vote upon any ordinance, order, measure, resolution or proposition, in which he may be interested other than as a citizen of such municipality.

§8-9-2. Mayor and recorder may vote; tie vote.

The mayor and recorder shall, unless otherwise provided by charter provision, have votes as members of the governing body, and, in case of a tie, the presiding officer at the time shall cast the tie-breaking vote, unless he has previously voted.

§8-9-3. Governing body to keep records; minutes of proceedings; voting.

The governing body of a municipality shall keep an accurate record of all of its proceedings, ordinances, orders, bylaws, acts, resolutions and rules which shall be indexed and open to inspection.

At each meeting of the governing body, a journal of the proceedings of the last meeting shall be read, and corrected, if erroneous, and signed by the presiding officer: Provided, That the reading of the journal of the proceedings of the last meeting may be dispensed with by majority vote of the governing body if the members have received and examined a copy or synopsis of the journal prior to the meeting at which the journal is signed. Any member may request the yeas and nays be taken on any question and recorded in the journal.

§8-9-4. Reporting of fraud and misappropriation of funds.

(a) Whenever a governing body of a municipality, or any of a municipality’s boards, committees, or any other entities of any kind or nature authorized in this chapter, obtains information that an employee, officer or member of municipality, or any of a municipality’s boards, committees, or any other entities of any kind or nature authorized in this chapter may have misappropriated funds, engaged in fraud, or otherwise violated a law relating to the public trust, municipality, or any of a municipality’s board, committee, or any other entity authorized in this chapter shall timely report such information or allegation in writing to the county prosecutor’s office.

(b) The reporting of such information under subsection (a) of this section shall not prevent, relieve or replace a report to a law-enforcement agency, if appropriate or warranted.

PART I. MAYOR.

§8-10-1. Powers and duties of mayor.

When not otherwise provided by charter provision or general law, the mayor of every municipality shall be the chief executive officer of such municipality, shall have the powers and authority granted in this section, and shall see that the ordinances, orders, bylaws, acts, resolutions, rules and regulations of the governing body thereof are faithfully executed. He shall have jurisdiction to hear and determine any and all alleged violations thereof and to convict and sentence persons therefor. He shall also, until January 1, 1977, be ex officio a justice and conservator of the peace within the municipality, and shall, within the same, have and exercise all of the powers, both civil and criminal, and perform all duties vested by law in a justice of the peace, except that he shall have no jurisdiction in civil cases or causes of action arising without the corporate limits of the municipality. He shall have, until January 1, 1977, the same power to issue attachments in civil suits as a justice of county has, though the cause of action arose without the corporate limits of municipality, but he shall have no power to try the same and such attachments shall be returnable and be heard before some justice of his county. Upon complaint he shall have authority to issue a search warrant in connection with the violation of a municipal ordinance. Any search warrant, warrant of arrest or other process issued by him may be directed to the chief of police or any member of the police department or force of the municipality, and the same may be executed at any place within the county or counties in which the municipality is located. He shall have control of the police of the municipality and may appoint special police officers whenever he deems it necessary, except when otherwise provided by law, and subject to the police civil service provisions of article fourteen of this chapter if such civil service provisions are applicable to his municipality, and it shall be his duty especially to see that the peace and good order of the municipality are preserved, and that persons and property therein are protected; and to this end he may cause the arrest and detention of all riotous and disorderly individuals in the municipality before issuing his warrant therefor. He shall have power to issue executions for all fines, penalties and costs imposed by him, or he may require the immediate payment thereof, and in default of such payment, he may commit the party in default to the jail of the county or counties in which such municipality is located, or other place of imprisonment within the corporate limits of such municipality, if there be one, until the fine or penalty and costs shall be paid, but the term of imprisonment in such case shall not exceed thirty days. He shall, from time to time, recommend to the governing body such measures as he may deem needful for the welfare of the municipality. The expense of maintaining any individual committed to a county jail by him, except it be to answer an indictment, or, until January 1, 1977, be under the provisions of sections eight and nine, article eighteen, chapter fifty of this code, shall be paid by the municipality and taxed as part of the costs of the proceeding.

§8-10-1a. Authority to hire special counsel; consent to other representation.

Notwithstanding any charter provision to the contrary, the governing body of every municipality shall have plenary power and authority by ordinance to authorize the mayor to employ within the limit of funds available for such purpose, in lieu of or in addition to the municipal attorney or municipal solicitor and any assistant municipal attorneys or assistant municipal solicitors, an attorney or firm of attorneys as special municipal counsel to represent the municipality in connection with any legal matter or matters. The ordinance authorizing such employment shall be the consent on behalf of the municipality to such attorney or firm of attorneys to represent other clients in other legal matters involving such municipality, but at the time of representation of any such other client in any such other legal matter in controversy directly involving such municipality, such attorney or firm of attorneys shall file with the recorder as a public record a statement of disclosure identifying such other client and the nature of the matter in controversy directly involving such municipality.

§8-10-1b. Authority to appoint police chief; reinstating to previous rank.

(a) Unless otherwise provided by charter, the mayor of a Class III city or Class IV town or village that has a paid police department that is not subject to the civil services provisions set out in article fourteen of this chapter, may appoint a chief of police.

(b) A Class III city or Class IV town or village may provide by ordinance whether the individual appointed chief of police who held a position as a member of the paid police department prior to his or her appointment as chief of police shall be reinstated to the officer's previous rank following his or her term as chief of police.

§8-10-2. Municipal court for municipalities.

(a) Notwithstanding any charter provision to the contrary, any city may provide by charter provision and any municipality may provide by ordinance for the creation and maintenance of a municipal court, for the appointment or election of an officer to be known as municipal court judge and for his or her compensation, and authorize the exercise by the court or judge of the jurisdiction and the judicial powers, authority and duties set forth in section one of this article and similar or related judicial powers, authority and duties enumerated in any applicable charter provisions, as set forth in the charter or ordinance. Additionally, any city may provide by charter provision and any municipality may provide by ordinance, that in the absence of or in the case of the inability of the municipal court judge to perform his or her duties, the municipal court clerk or other official designated by charter or ordinance may act as municipal court judge: Provided, That the municipal court clerk or other official designated by charter or ordinance to act as municipal court judge shall comply with the requirements set forth in subsections (b) and (c) of this section, as well as any other requirements that the city by charter provision or the municipality by ordinance may require.

(b) Any person who makes application for appointment to, or who files to become a candidate in any election for municipal judge, shall first submit to a criminal background check, to be conducted by the State Police. The cost of the criminal background check shall be paid by the applicant or candidate. The result of each background check conducted in accordance with this section shall be forwarded to the municipal court clerk or recorder whose duty it is to review the results and confirm the eligibility of the applicant or candidate to serve as a municipal judge. No person convicted of a felony or any misdemeanor crime set forth in articles eight, eight-a, eight-b, eight-c or eight-d, chapter sixty-one, of this code is eligible to become a municipal judge.

(c) Any person who assumes the duties of municipal court judge who has not been admitted to practice law in this state shall attend and complete the next available course of instruction in rudimentary principles of law and procedure. The course shall be conducted by the municipal league or a like association whose members include more than one half of the chartered cities and municipalities of this state. The instruction must be performed by or with the services of an attorney licensed to practice law in this state for at least three years. Any municipal court judge shall, additionally, be required to attend a course, on an annual basis for the purpose of continuing education: Provided, That the forgoing additional education requirement does not apply to municipal judges who are attorneys admitted to practice in this state. The cost of any course referred to in this section shall be paid by the municipality that employs the municipal judge.

(d) Only a defendant who has been charged with an offense for which a period of confinement in jail may be imposed is entitled to a trial by jury. If a municipal court judge determines, upon demand of a defendant, to conduct a trial by jury in a criminal matter, it shall follow the procedures set forth in the rules of criminal procedure for magistrate courts promulgated by the Supreme Court of Appeals, except that the jury in municipal court shall consist of twelve members.

§8-10-2a. Payment of fines by electronic payments, credit cards, cash, money orders, or certified checks.

A municipal court may accept electronic payments, credit cards, cash, money order, or certified checks for all costs, fines, forfeitures, restitution, or penalties electronically, by mail, or in person. Any charges made by the credit company shall be paid by the person responsible for paying the cost, fine, fee, restitution, or penalty.

§8-10-2b. Payment plan; failure to pay will result in late fee and judgment lien; suspension of licenses for failure to pay fines and costs or failure to appear in court.

(a) Upon request and subject to the following requirements, the municipal court clerk or, upon a judgment rendered on appeal, the clerk shall establish a payment plan for a person owing costs, fines, forfeitures, restitution, or penalties imposed by the court for a motor vehicle violation as defined in §17B-3-3a of this code, a criminal offense as defined in §17B-3-3c of this code, or other applicable municipal ordinances, so long as the person signs and files with the clerk an affidavit stating that he or she is financially unable to pay the costs, fines, forfeitures, restitution, or penalties imposed:

(1) A $25 administrative processing fee shall be paid at the time the payment form is filed or, in the alternative, the fee may be paid in no more than five equal monthly payments;

(2) Unless incarcerated, a person must pay in full the costs, fines, forfeitures, restitution, or penalties or enroll in a payment plan upon the entry of the order assessing the costs, fines, forfeitures, restitution, or penalties; and

(3) If the person is incarcerated, he or she must pay in full the costs, fines, forfeitures, restitution, or penalties or enroll in a payment plan within 30 calendar days after release.

(b) The West Virginia Supreme Court of Appeals shall develop a uniform payment plan form and financial affidavit for requests for the establishment of a payment plan pursuant to subsection (a) of this section. The forms shall be made available for distribution to the offices of municipal clerks, and municipal clerks shall use the payment plan form and affidavit form developed by the Supreme Court of Appeals when establishing payment plans.

(c)(1) The payment plan shall specify: (A) The number of payments to be made; (B) the dates on which such payments are due; (C) the amount due for each payment; (D) all acceptable payment methods; and (E) the circumstances under which the person may receive a late fee, have a judgment lien recorded against him or her, or have the debt sent to collections for nonpayment; and

(2) The monthly payment under the payment plan shall be calculated based upon all costs, fines, forfeitures, restitution, or penalties owed within the court, and shall be two percent of the person’s annual net income divided by 12, or $10, whichever is greater: Provided, That if this calculation results in a payment plan lasting more than three years, the monthly payments shall be set by dividing the total amount owed by 36.

(3) The court may review the reasonableness of the payment plan, and may on its own motion or by petition, waive, modify, or convert the outstanding costs, fines, forfeitures, restitution, or penalties to community service if the court determines that the individual has had a change in circumstances and is unable to comply with the terms of the payment plan.

(d)(1) The clerk may assess a $10 late fee each month if a person fails to comply with the terms of a payment plan and if any payment due is not received within 30 days after the due date, and the person:

(A) Is not incarcerated;

(B) Has not brought the account current;

(C) Has not made alternative payment arrangements with the court; or

(D) Has not entered into a revised payment plan with the clerk before the due date.

(2) If after 90 days, a payment has not been received, the clerk may do one or both of the following: (A) Record a judgment lien as described in subsection (f) of this section; or (B) consign the delinquent costs, fines, forfeitures, restitution, or penalties to a debt collection agency contained on the Tax Commissioner’s list of eligible debt collection agencies established and maintained pursuant to §14-1-18c of this code, an internal collection division, or both: Provided, That the entire amount of all delinquent payments collected shall be remitted to the court and may not be reduced by any collection costs or fees: Provided, however, That the collection fee may not exceed 25 percent of the delinquent payment amount. The clerk may send notices, electronically or by U.S. mail, to remind the person of an upcoming or missed payment.

(e)(1) If after 90 days of a judgment a person fails to enroll in a payment plan and fails to pay their costs, fines, forfeitures, restitution, or penalties, the clerk may assess a $10 late fee and shall notify the person of the following:

(A) That he or she is 90 days past due in the payment of costs, fines, forfeitures, restitution, or penalties imposed pursuant to a judgment of the court;

(B) That he or she has failed to enroll in a payment plan;

(C) Whether a $10 late fee has been assessed; and

(D) That he or she may be the subject of a judgment lien or have his or her debt sent to a collection agency if the overdue payment of costs, fines, forfeitures, restitution, or penalties is not resolved within 30 days of the date of the notice issued pursuant to this subsection.

(2) If after 30 days from the issuance of a notice pursuant to subdivision (1) of this subsection a payment has not been received, the clerk may do one or both of the following:

(A) Record a judgment lien as described in subsection (f) of this section; or

(B) Consign the delinquent costs, fines, forfeitures, restitution, or penalties to a debt collection agency contained on the Tax Commissioner’s list of eligible debt collection agencies established and maintained pursuant to §14-1-18c of this code, an internal collection division, or both: Provided, That the entire amount of all delinquent payments collected shall be remitted to the court and may not be reduced by any collection costs or fees: Provided, however, That the collection fee may not exceed 25 percent of the delinquent payment amount.

(f) To record a judgment lien, the clerk shall notify the prosecuting attorney of the county of nonpayment and shall provide the prosecuting attorney with an abstract of judgment. The prosecuting attorney shall file the abstract of judgment in the office of the clerk of the county commission in the county where the defendant was convicted and in any county in which the defendant resides or owns property. The clerk of the county commission shall record and index these abstracts of judgment without charge or fee to the prosecuting attorney and when recorded, the amount stated to be owed in the abstract constitutes a lien against all property of the defendant: Provided, That when all the costs, fines, fees, forfeitures, restitution, or penalties for which an abstract of judgment has been recorded are paid in full, the clerk of the municipal court shall notify the prosecuting attorney of the county of payment and provide the prosecuting attorney with a release of judgment, prepared in accordance with the provisions of §38-12-1 of this code, for filing and recordation pursuant to the provisions of this subdivision. Upon receipt from the clerk, the prosecuting attorney shall file the release of judgment in the office of the clerk of the county commission in each county where an abstract of the judgment was recorded. The clerk of the county commission shall record and index the release of judgment without charge or fee to the prosecuting attorney.

(g) Any driver’s license suspension entered by the Division of Motor Vehicles prior to July 1, 2016, for the failure to appear or otherwise respond in court or for nonpayment of costs, fines, forfeitures, restitution, or penalties is null and void. A person whose driver’s license was suspended on or after July 1, 2016, but prior to July 1, 2020, solely for the nonpayment of costs, fines, forfeitures, restitution, or penalties, if otherwise eligible, shall have his or her license reinstated:

(1) Upon payment in full of all outstanding costs, fines, forfeitures, restitution, or penalties and a $25 reinstatement fee paid to the Division of Motor Vehicles; or

(2) Upon establishing a payment plan pursuant to subsection (a) of this section and the payment of a $25 administrative fee. The clerk shall notify the Division of Motor Vehicles that a payment plan is in effect, and upon receipt of the notification, the division shall waive the reinstatement fee.

(h) If a person charged with a motor vehicle violation as defined in §17B-3-3a of this code or criminal offense fails to appear or otherwise respond in court, the municipal court clerk shall notify the Division of Motor Vehicles of the failure to appear: Provided, That notwithstanding any other provision of this code to the contrary, for residents of this state, the municipal court clerk shall wait at least 90 days from the date of the person’s failure to appear or otherwise respond before notifying the Division of Motor Vehicles thereof. Upon notice, the Division of Motor Vehicles shall suspend the person’s driver’s license or privilege to operate a motor vehicle in this state until such time that the person appears as required.

PART III. RECORDER AND MUNICIPAL CLERK.

§8-10-3. Powers and duties of recorder.

It shall be the duty of the recorder of every municipality to keep the journal of the proceedings of the governing body thereof, and he shall have charge of and preserve the records of the municipality. Unless otherwise provided by charter provision or general law, whenever the mayor is unable because of illness or absence from the municipality to perform the duties of his office, and during any vacancy in the office of mayor, the recorder shall perform the duties of the mayor and be invested with all of his power and authority.

§8-10-4. Powers and duties of recorder or clerk relating to warrants, oaths, sureties and bonds.

Any municipality may provide by charter provision and ordinance, or notwithstanding a charter provision to the contrary, a municipality may provide by ordinance, that the governing body may vest in the recorder, assistant recorder, municipal clerk or deputy municipal clerk, the authority to issue warrants for arrest, to administer oaths, and to accept and approve sureties and bonds, and any such ordinance shall provide for the appointment of such person by confirmation of the governing body and for the removal of such authority by action of the governing body: Provided, That such person may only issue warrants, administer oaths, or accept and approve sureties and bonds, in the absence of the mayor, or if there be a police court or municipal judge, in the absence of such police court or municipal judge.

§8-11-1. Ordinances to make municipal powers effective; penalties imposed under judgment of mayor or police court or municipal judge; right to injunctive relief; right to maintain action to collect fines; additional assessment of costs.

(a) To carry into effect the powers and authority conferred upon any municipality or its governing body by the provisions of this chapter, or any past or future act of the Legislature of this state, the governing body has plenary power and authority to:

(1) Make and pass all needful ordinances, orders, bylaws, acts, resolutions, rules and regulations not contrary to the Constitution and laws of this state; and

(2) Prescribe reasonable penalties for violation of its ordinances, orders, bylaws, acts, resolutions, rules and regulations, in the form of fines, forfeitures and confinement in the county or regional jail or the place of confinement in the municipality, if there is one, for a term not exceeding thirty days.

(b) The fines, forfeitures and confinement shall be recovered, imposed or enforced under the judgment of the mayor of the municipality or the individual lawfully exercising the mayor's functions, or the police court judge or municipal court judge of a city, if there is one, and may be suspended upon reasonable conditions as may be imposed by the mayor, other authorized individual or judge.

(c) Any municipality may also maintain a civil action in the name of the municipality in the circuit court of the county in which the municipality or the major portion of the territory of the municipality is located to obtain an injunction to compel compliance with, or to enjoin a violation or threatened violation of, any ordinance of the municipality, and the circuit court has jurisdiction to grant the relief sought. A certified transcript of a judgment for a fine rendered by a municipal court may be filed in the office of the clerk of a circuit court and docketed in the judgment lien book kept in the office of the clerk of the county commission in the same manner and with the same effect as the filing and docketing of a certified transcript of judgment rendered by a magistrate court as provided for in section two, article six, chapter fifty of this code. The judgment shall include costs assessed against the defendant.

(d) In addition to any other costs which may be lawfully imposed, an additional cost shall be imposed in an amount of not less than $42 for a traffic offense constituting a moving violation, regardless of whether the penalty for the violation provides for a period of incarceration, and for any other offense for which the ordinance prescribing the offense provides for a period of incarceration. Of the $42 imposed as an additional cost, $2 are administrative costs to be retained by the municipality, and $40 shall be paid into the regional jail and correctional facility development fund in the State Treasury in accordance with section one-a of this article.

(e) Execution shall be by fieri facias issued by the clerk of the circuit court in the same manner as writs are issued on judgments for a fine rendered by circuit courts or other courts of record under the provisions of section eleven, article four, chapter sixty-two of this code.

§8-11-1a. Disposition of criminal costs into State Treasury account for Regional Jail and Correctional Facility Authority fund.

The clerk of each municipal court, or other person designated to receive fines and costs, shall at the end of each month pay into the Regional Jail and Correctional Facility Authority fund in the State Treasury an amount equal to $40 of the costs collected in each proceeding involving a traffic offense constituting a moving violation, regardless of whether the penalty for the violation provides for a period of incarceration, or any other offense for which the ordinance prescribing the offense provides for a period of incarceration: Provided, That in a case where a defendant has failed to pay all costs assessed against him or her, no payment may be made to the Regional Jail and Correctional Facility Authority fund until the defendant has paid all costs which, when paid, are available for the use and benefit of the municipality.

§8-11-1b. Additional costs in certain criminal proceedings.

In each criminal case before a mayor or in the municipal court of a municipality in which the defendant is convicted, whether by plea or at trial, under the provisions of a municipal ordinance which has the same elements as an offense described in section two, article five, chapter seventeen-c of this code or section eighteen-b, article seven, chapter twenty of this code, there shall be imposed, in addition to other costs, fines, forfeitures or penalties as may be allowed by law, costs in the amount of $55. The clerk of each municipal court, or other person designated to receive fines and costs, shall, for purposes of further defraying the cost to the municipality of enforcing the provisions of the ordinance or ordinances described in this section and related provisions, deposit these moneys in the General Revenue Fund of the municipality. The provisions of this section shall be effective after June 30, 2004.

§8-11-2. Validity of ordinances delegating discretion.

The fact that an ordinance vests in the governing body or some other body or officer a discretion to do, or refuse to do, a given thing, shall not invalidate such ordinance when it would be impracticable to lay down by ordinance for all cases a uniform guide for exercising such discretion. This section shall not be construed to mean that a delegation of discretion in any other case shall necessarily invalidate an ordinance. However, if, in any case, a delegated discretion is exercised in an arbitrary or discriminatory manner, such ordinance, as so applied, shall be unlawful and void.

§8-11-3. Cases requiring enactment of ordinance.

In the following enumerated cases, the action of a governing body shall, except where otherwise provided in this code, be by ordinance:

(1) Levying taxes or providing for the collection of fees of any kind;

(2) Requiring a license to do business;

(3) Relating to offenses and penalties;

(4) Authorizing the issuance of bonds or other forms of indebtedness;

(5) Providing for a public improvement;

(6) Providing for the purchase of private property by the municipality or for the sale of property belonging to the municipality;

(7) Laying out or vacating a public street, avenue, road, alley or way;

(8) Relating to planning and zoning;

(9) Granting franchises to public utilities;

(10) Providing for a contractual or other agreement with another jurisdiction; and

(11) Relating to such other matters as the charter may require.

The action of a governing body shall also be by ordinance in any other case in which an ordinance is required by the provisions of this code.

§8-11-4. Ordinance procedures.

(a) Notwithstanding any charter provision to the contrary, which was in effect on the effective date of this section, it may not be necessary, except where otherwise provided in this code, for the governing body of any municipality to publish in a newspaper any proposed ordinance prior to the adoption thereof or any enacted ordinance subsequent to the adoption thereof, and any and all ordinances of every municipality shall be adopted in accordance with the following requirements, except where different or additional requirements are specified in other provisions of this code, in which event such other different or additional requirements shall be applicable:

(1) A proposed ordinance shall be read by title at not less than two meetings of the governing body with at least one week intervening between each meeting, unless a member of the governing body demands that the ordinance be read in full at one or both meetings. If such demand is made, the ordinance shall be read in full as demanded.

(2) At least five days before the meeting at which a proposed ordinance, the principal object of which is the raising of revenue for the municipality, is to be finally adopted, the governing body shall cause notice of the proposed adoption of the proposed ordinance to be published as a Class I-0 legal advertisement in compliance with §59-3-1 et seq. of this code, and the publication area for the publication shall be the municipality. The notice shall state the subject matter and general title or titles of the proposed ordinance, the date, time, and place of the proposed final vote on adoption, and the place or places within the municipality where the proposed ordinance may be inspected by the public. A reasonable number of copies of the proposed ordinance shall be kept at such place or places and be made available for public inspection. The notice shall also advise that interested parties may appear at the meeting and be heard with respect to the proposed ordinance.

(3) A proposed ordinance may not be materially amended at the same meeting at which finally adopted. A proposed ordinance to increase water and/or sewer service rates shall contain language that: (i) The rate increase may not be effective until 45 days following the passage of the ordinance; and (ii) the rate increase shall take effect for service rendered on or after the effective date.

(b) Notwithstanding any charter provision to the contrary, which was in effect on the effective date of this section, the governing body of any municipality may adopt, by ordinance, building codes, housing codes, plumbing codes, sanitary codes, electrical codes, fire prevention codes, or any other technical codes dealing with general public health, safety or welfare, or a combination of the same, or a comprehensive code of ordinances, in the manner prescribed in this subsection. Before any such ordinance shall be adopted, the code shall be either printed or typewritten and shall be presented in pamphlet form to the governing body of the municipality at a regular meeting, and copies of the code shall be made available for public inspection. The ordinance adopting the code may not set out the code in full, but shall merely identify the code. The vote on adoption of the ordinance shall be the same as on any other ordinance. After adoption of the ordinance, the code or codes shall be certified by the mayor and shall be filed as a permanent record in the office of the recorder, who may not be required to transcribe and record the code in the ordinance book as other ordinances are transcribed and recorded. Consistent with the provisions of subsection (a) of this section, it is not necessary that any such ordinance, either as proposed or after adoption, be published in any newspaper, and it is not necessary that the code itself be so published, but before final adoption of any such proposed ordinance, notice of the proposed adoption of the ordinance and code shall be given by publication as herein provided for ordinances the principal object of which is the raising of revenue for the municipality, which notice shall also state where, within the municipality, the code or codes will be available for public inspection.

(c) By a charter framed and adopted, revision of a charter as a whole, or a charter amendment or amendments, as the case may be, subsequent to the effective date of this section, a city may require any or all ordinances to be published in a newspaper prior to the adoption thereof, may expressly adopt the provisions of this section, may specify other additional requirements for the enactment of ordinances, or may prescribe a procedure for the enactment of ordinances in greater detail than prescribed in this section, but a city may not, except in an emergency as specified in subsection (d) of this section or except as otherwise provided in this code, lessen or reduce the requirements of this section.

(d) The governing body of a municipality may enact an ordinance without complying with the rules prescribed in this section only: (1) In the case of a pressing public emergency making procedure in accordance with the provisions of this section dangerous to the public health, safety, or morals, and by affirmative vote of two thirds of the members elected to the governing body; or (2) when otherwise provided in this code. The nature of any such emergency shall be set out in full in the ordinance.

§8-11-5. Prejudgment alternative disposition of certain traffic offenses.

(a) Municipal courts are hereby authorized to establish a prejudgment alternative disposition procedure for traffic offenses over which the court has jurisdiction.

(b) Under a prejudgment disposition procedure authorized by subsection (a) of this section, if a person is found guilty of a traffic offense, the municipal court may, with the person's consent, withhold for a reasonable time not to exceed one hundred eighty days the entry of a judgment of conviction so that the person may attend a driver safety education course designated by the municipal court. If the person attends said course, the municipal court, if satisfied with the person's participation in the course, shall, without entering a judgment of conviction, dismiss the proceeding against the person.

(c) It shall be a condition of any prejudgment alternative disposition authorized by the provisions of this section that the person pay any fine assessed by the court and pay all fees and costs required to be paid by any provision of this code where a person is convicted of a criminal traffic offense. No municipal court shall utilize any prejudgment alternative disposition procedure unless it collects such fees and costs as are required by any provision of this code and transmits the moneys collected as required by law. No municipal court shall utilize any prejudgment alternative disposition procedure unless it conforms with the requirements of this section.

(d) The procedure authorized by the provisions of this section shall not be available to any person who:

(1) Holds a commercial driver's license issued by this state in accordance with chapter seventeen-e of this code, or who holds a commercial driver's license issued by any other state or jurisdiction;

(2) Is arrested while operating a commercial motor vehicle as defined in chapter seventeen-e of this code; or

(3) Is arrested for driving under the influence of alcohol or drugs or any other offense for which a mandatory period of confinement in jail is required.

PART I. GENERAL CORPORATE POWERS OF MUNICIPALITIES.

§8-12-1. General corporate powers of all municipalities.

Except as otherwise provided in this chapter, every municipality shall have plenary power and authority:

(1) To have and use a common seal;

(2) To contract and be contracted with;

(3) To institute, maintain and defend any civil action or other proceeding in any court;

(4) To take, purchase, hold and lease as lessee (on an annual fiscal year basis where tax revenues are to be used to make the rental payments required under any such lease, with or without an option to renew such lease each year for another such period), for any municipal purpose, real or personal property within or without the corporate limits of the municipality, and to acquire by condemnation real or personal property within or without the corporate limits of the municipality for the purposes set forth in and in accordance with the provisions of chapter fifty-four of this code, subject, however, to any limitations or qualifications set forth in this chapter eight; and

(5) To take by gift, donation, grant, bequest or devise and to hold and administer, real or personal property within or without the corporate limits of the municipality, absolutely, in trust or otherwise, for any public, charitable or municipal purpose, and to do all things necessary, useful, convenient or incidental to carry out the purpose of such gift, donation, grant, bequest, devise or trust, and to manage, sell, lease or otherwise dispose of the same in accordance with such terms and conditions as may be prescribed by the donor, grantor or testator and accepted by the municipality.

PART II. HOME RULE POWERS FOR CITIES.

§8-12-2. Home rule powers for all cities.

(a) In accordance with the provisions of the "Municipal Home Rule Amendment" to the Constitution of this state, and in addition to the powers and authority granted by (i) such Constitution, (ii) other provisions of this chapter, (iii) other general law, and (iv) any existing charter, any city shall have plenary power and authority by charter provision not inconsistent or in conflict with such Constitution, other provisions of this chapter or other general law, or by ordinance not inconsistent or in conflict with such Constitution, other provisions of this chapter, other general law or any existing charter, to provide for the government, regulation and control of the city's municipal affairs, including, but not limited to, the following:

(1) The creation or discontinuance of departments of the city's government and the prescription, modification or repeal of their powers and duties;

(2) The transaction of the city's business;

(3) The incurring of the city's obligations;

(4) The presentation, ascertainment, disposition and discharge of claims against the city;

(5) The acquisition, care, management and use of the city's streets, avenues, roads, alleys, ways and property;

(6) The levy, assessment, collection and administration of such taxes and such special assessments for benefits conferred, as have been or may be specifically authorized by the Legislature;

(7) The operation and maintenance of passenger transportation services and facilities, if authorized by the Public Service Commission, and if so authorized, such transportation system may be operated without the corporate limits of such city, but may not be operated within the corporate limits of another municipality without the consent of the governing body thereof;

(8) The furnishing of all local public services;

(9) The government, protection, order, conduct, safety and health of persons or property therein;

(10) The adoption and enforcement of local police, sanitary and other similar regulations; and

(11) The imposition and enforcement of penalties for the violation of any of the provisions of its charter or of any of its ordinances.

(b) By charter provision, a civil service system may be provided for all or any class of city employees in addition to those classes for which a civil service system is made mandatory by general law.

(c) Any city is hereby authorized and empowered to require, for the purpose of inquiring into and investigating matters of concern to the city or its inhabitants, the attendance and testimony of witnesses and the production of evidence. In case of the failure or refusal of a witness to appear and testify or to produce evidence, the governing body may invoke the aid of the circuit court of the county in which the city or the major portion of the territory thereof is located. Upon proper showing, the circuit court shall issue an order requiring the witness to appear and give testimony and produce evidence concerning the matter in question. A person who fails or refuses to obey the order of the circuit court may be punished by the court as for contempt. A claim that any such testimony or evidence may tend to incriminate the person giving the testimony or evidence shall not excuse the witness, but such testimony or evidence shall not be used against the witness in any criminal prosecution.

(d) Any city is hereby authorized and empowered to provide for a sealer of weights and measures who shall exercise his powers in accordance with the provisions of article one, chapter forty-seven of this code.

§8-12-3. Creation by charter provision of certain independent city boards.

In selecting or changing to a form of government based on any of the four plans set forth in section two, article three of this chapter, a city may by charter provision withdraw from the governing body and administrative authority of the city the municipal powers and authority and duties pertaining to a city gas system, city electric system, any municipal public works in accordance with the provisions of article sixteen of this chapter, a city waterworks system in accordance with the provisions of article nineteen of this chapter, a city sewage treatment and disposal works, or a combined city waterworks and sewerage system in accordance with the provisions of article twenty of this chapter, or any combination of the foregoing, and confer such powers and authority and duties upon one or more independent boards created by charter provision, whose members shall be elected by the qualified voters of the city, or appointed, in the manner provided by charter provision. Unless and until abolished by other charter provision, such board or boards so created shall have complete and exclusive jurisdiction of the exercise and discharge of the municipal powers and authority and duties so conferred upon it or them, independent of control by the governing body and administrative authority of the city. Such boards shall have the powers and authority and perform the duties conferred and required by general law.

The provisions of this section shall be construed as conferring additional powers and authority upon cities, and shall not be construed as affecting any powers and authority heretofore conferred upon any city by general, special or local law or by special legislative charter, or parts thereof; however, whenever a board is established by charter provision in accordance with the provisions of this section in connection with a municipal public works, a city waterworks system, or combined city waterworks and sewerage system, as aforesaid, such board shall act in lieu of the governing body of the city with respect thereto, and the provisions of said articles sixteen, nineteen and twenty of this chapter authorizing the establishment of a board with respect to any such public works, waterworks system or combined waterworks and sewerage system shall not be applicable.

§8-12-3a. Cities authorized to create department of development and transfer planning functions of certain independent agencies to such department; authorizing related ordinances and resolutions.

(a) In extension of the power and authority set forth in section two of this article and notwithstanding any provision of this code or any charter provision to the contrary, any city shall have plenary power and authority by charter provision or ordinance to establish a department of development for such city and to transfer to such department (1) all or any limited part of the planning functions of such city's housing authority, as provided for in article fifteen, chapter sixteen of this code; (2) all or any limited part of the planning functions of such city's urban renewal authority, as provided for in article eighteen, chapter sixteen of this code; (3) all or any limited part of the planning functions of such city's planning commission, as provided for in article twenty-four of this chapter; and (4) all or any limited part of the powers, privileges, rights, duties, responsibilities and obligations related to such planning functions.

(b) Any city adopting any such charter provision or ordinance shall also have plenary power and authority to enact such other ordinances and adopt such resolutions as may be deemed necessary or desirable to (1) implement and make effective the provisions of subsection (a) of this section; and (2) provide for the implementation of the plans prepared by such city's department of development.

§8-12-4. Power to provide by charter for initiative, referendum and recall.

Any city may by charter provision provide for any or all of the following:

(1) The initiation of ordinances by petition bearing the signatures, written in their own handwriting, of not less than ten percent of the qualified voters of such city;

(2) The submission to the qualified voters of such city of a proposed ordinance at a regular municipal election or special municipal election upon petition bearing the signatures, written in their own handwriting, of not less than ten percent of the qualified voters of such city or upon resolution of the governing body of such city; and

(3) The holding of a special municipal election to submit to the qualified voters of such city the question of the recall of an elected officer upon petition bearing the signatures, written in their own handwriting, of not less than twenty percent of the qualified voters of such city. Not more than one recall election shall be held with respect to an officer during his term of office.

§8-12-5. General powers of every municipality and the governing body thereof.

In addition to the powers and authority granted by: (i) The Constitution of this state; (ii) other provisions of this chapter; (iii) other general law; and (iv) any charter, and to the extent not inconsistent or in conflict with any of the foregoing except special legislative charters, every municipality and the governing body thereof shall have plenary power and authority therein by ordinance or resolution, as the case may require, and by appropriate action based thereon:

(1) To lay off, establish, construct, open, alter, curb, recurb, pave or repave and keep in good repair, or vacate, discontinue and close, streets, avenues, roads, alleys, ways, sidewalks, drains and gutters, for the use of the public, and to improve and light the same, and have them kept free from obstructions on or over them which have not been authorized pursuant to the succeeding provisions of this subdivision; and, subject to such terms and conditions as the governing body shall prescribe, to permit, without in any way limiting the power and authority granted by the provisions of article sixteen of this chapter, any person to construct and maintain a passageway, building or other structure overhanging or crossing the airspace above a public street, avenue, road, alley, way, sidewalk or crosswalk, but before any permission for any person to construct and maintain a passageway, building or other structure overhanging or crossing any airspace is granted, a public hearing thereon shall be held by the governing body after publication of a notice of the date, time, place and purpose of the public hearing has been 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 the publication shall be the municipality: Provided, That any permit so granted shall automatically cease and terminate in the event of abandonment and nonuse thereof for the purposes intended for a period of ninety days, and all rights therein or thereto shall revert to the municipality for its use and benefit;

(2) To provide for the opening and excavation of streets, avenues, roads, alleys, ways, sidewalks, crosswalks and public places belonging to the municipality and regulate the conditions under which any such opening may be made;

(3) To prevent by proper penalties the throwing, depositing or permitting to remain on any street, avenue, road, alley, way, sidewalk, square or other public place any glass, scrap iron, nails, tacks, wire, other litter or any offensive matter or anything likely to injure the feet of individuals or animals or the tires of vehicles;

(4) To regulate the use of streets, avenues, roads, alleys, ways, sidewalks, crosswalks and public places belonging to the municipality, including the naming or renaming thereof, and to consult with local postal authorities, the Division of Highways and the directors of county emergency communications centers to assure uniform, nonduplicative addressing on a permanent basis;

(5) To regulate the width of streets, avenues and roads, and, subject to the provisions of article eighteen of this chapter, to order the sidewalks, footways and crosswalks to be paved, repaved, curbed or recurbed and kept in good order, free and clean, by the owners or occupants thereof or of the real property next adjacent thereto;

(6) To establish, construct, alter, operate and maintain, or discontinue, bridges, tunnels and ferries and approaches thereto;

(7) To provide for the construction and maintenance of water drains, the drainage of swamps or marshlands and drainage systems;

(8) To provide for the construction, maintenance and covering over of watercourses;

(9) To control and administer the waterfront and waterways of the municipality and to acquire, establish, construct, operate and maintain and regulate flood control works, wharves and public landings, warehouses and all adjuncts and facilities for navigation and commerce and the utilization of the waterfront and waterways and adjacent property;

(10) To prohibit the accumulation and require the disposal of garbage, refuse, debris, wastes, ashes, trash and other similar accumulations whether on private or public property: Provided, That, in the event the municipality annexes an area which has been receiving solid waste collection services from a certificated solid waste motor carrier, the municipality and the solid waste motor carrier may negotiate an agreement for continuation of the private solid waste motor carrier services for a period of time, not to exceed three years, during which time the certificated solid waste motor carrier may continue to provide exclusive solid waste collection services in the annexed territory;

(11) To construct, establish, acquire, equip, maintain and operate incinerator plants and equipment and all other facilities for the efficient removal and destruction of garbage, refuse, wastes, ashes, trash and other similar matters;

(12) To regulate or prohibit the purchase or sale of articles intended for human use or consumption which are unfit for use or consumption, or which may be contaminated or otherwise unsanitary;

(13) To prevent injury or annoyance to the public or individuals from anything dangerous, offensive or unwholesome;

 (14) To make regulations guarding against danger or damage by fire;

 (15) To arrest, convict and punish any individual for carrying about his or her person any revolver or other pistol, dirk, bowie knife, razor, slingshot, billy, metallic or other false knuckles or any other dangerous or other deadly weapon of like kind or character: Provided, That with respect to any firearm a municipality may only arrest, convict and punish someone if they are in violation of a state law proscribing certain conduct with a firearm;

 (16) To arrest, convict and punish any person for importing, printing, publishing, selling or distributing any pornographic publications;

 (17) To arrest, convict and punish any person for keeping a house of ill fame, or for letting to another person any house or other building for the purpose of being used or kept as a house of ill fame, or for knowingly permitting any house owned by him or her or under his or her control to be kept or used as a house of ill fame, or for loafing, boarding or loitering in a house of ill fame, or frequenting same;

 (18) To prevent and suppress conduct and practices which are immoral, disorderly, lewd, obscene and indecent;

 (19) To prevent the illegal sale of intoxicating liquors, drinks, mixtures and preparations;

 (20) To arrest, convict and punish any individual for driving or operating a motor vehicle while intoxicated or under the influence of liquor, drugs or narcotics;

 (21) To arrest, convict and punish any person for gambling or keeping any gaming tables, commonly called "A, B, C," or "E, O," table or faro bank or keno table, or table of like kind, under any denomination, whether the gaming table be played with cards, dice or otherwise, or any person who shall be a partner or concerned in interest, in keeping or exhibiting the table or bank, or keeping or maintaining any gaming house or place, or betting or gambling for money or anything of value;

 (22) To provide for the elimination of hazards to public health and safety and to abate or cause to be abated anything which in the opinion of a majority of the governing body is a public nuisance;

 (23) To license, or for good cause to refuse to license in a particular case, or in its discretion to prohibit in all cases, the operation of pool and billiard rooms and the maintaining for hire of pool and billiard tables notwithstanding the general law as to state licenses for any such business and the provisions of section four, article thirteen of this chapter; and when the municipality, in the exercise of its discretion, refuses to grant a license to operate a pool or billiard room, mandamus may not lie to compel the municipality to grant the license unless it shall clearly appear that the refusal of the municipality to grant a license is discriminatory or arbitrary; and in the event that the municipality determines to license any business, the municipality has plenary power and authority and it shall be the duty of its governing body to make and enforce reasonable ordinances regulating the licensing and operation of the businesses;

 (24) To protect places of divine worship and to preserve peace and order in and about the premises where held;

 (25) To regulate or prohibit the keeping of animals or fowls and to provide for the impounding, sale or destruction of animals or fowls kept contrary to law or found running at large;

 (26) To arrest, convict and punish any person for cruelly, unnecessarily or needlessly beating, torturing, mutilating, killing, or overloading or overdriving or willfully depriving of necessary sustenance any domestic animal;

 (27) To provide for the regular building of houses or other structures, for the making of division fences by the owners of adjacent premises and for the drainage of lots by proper drains and ditches;

 (28) To provide for the protection and conservation of shade or ornamental trees, whether on public or private property, and for the removal of trees or limbs of trees in a dangerous condition;

 (29) To prohibit with or without zoning the location of occupied house trailers or mobile homes in certain residential areas;

 (30) To regulate the location and placing of signs, billboards, posters and similar advertising;

 (31) To erect, establish, construct, acquire, improve, maintain and operate a gas system, a waterworks system, an electric system or sewer system and sewage treatment and disposal system, or any combination of the foregoing (subject to all of the pertinent provisions of articles nineteen and twenty of this chapter and particularly to the limitations or qualifications on the right of eminent domain set forth in articles nineteen and twenty), within or without the corporate limits of the municipality, except that the municipality may not erect any system partly without the corporate limits of the municipality to serve persons already obtaining service from an existing system of the character proposed and where the system is by the municipality erected, or has heretofore been so erected, partly within and partly without the corporate limits of the municipality, the municipality has the right to lay and collect charges for service rendered to those served within and those served without the corporate limits of the municipality and to prevent injury to the system or the pollution of the water thereof and its maintenance in a healthful condition for public use within the corporate limits of the municipality;

 (32) To acquire watersheds, water and riparian rights, plant sites, rights-of-way and any and all other property and appurtenances necessary, appropriate, useful, convenient or incidental to any system, waterworks or sewage treatment and disposal works, as aforesaid, subject to all of the pertinent provisions of articles nineteen and twenty of this chapter;

 (33) To establish, construct, acquire, maintain and operate and regulate markets and prescribe the time of holding the same;

 (34) To regulate and provide for the weighing of articles sold or for sale;

 (35) To establish, construct, acquire, maintain and operate public buildings, municipal buildings or city halls, auditoriums, arenas, jails, juvenile detention centers or homes, motor vehicle parking lots or any other public works;

 (36) To establish, construct, acquire, provide, equip, maintain and operate recreational parks, playgrounds and other recreational facilities for public use and in this connection also to proceed in accordance with the provisions of article two, chapter ten of this code;

 (37) To establish, construct, acquire, maintain and operate a public library or museum or both for public use;

 (38) To provide for the appointment and financial support of a library board in accordance with the provisions of article one, chapter ten of this code;

 (39) To establish and maintain a public health unit in accordance with the provisions of section two, article two, chapter sixteen of this code, which unit shall exercise its powers and perform its duties subject to the supervision and control of the West Virginia Board of Health and State Bureau for Public Health;

 (40) To establish, construct, acquire, maintain and operate hospitals, sanitarians and dispensaries;

 (41) To acquire, by purchase, condemnation or otherwise, land within or near the corporate limits of the municipality for providing and maintaining proper places for the burial of the dead and to maintain and operate the same and regulate interments therein upon terms and conditions as to price and otherwise as may be determined by the governing body and, in order to carry into effect the authority, the governing body may acquire any cemetery or cemeteries already established;

 (42) To exercise general police jurisdiction over any territory without the corporate limits owned by the municipality or over which it has a right-of-way;

 (43) To protect and promote the public morals, safety, health, welfare and good order;

 (44) To adopt rules for the transaction of business and the government and regulation of its governing body;

 (45) Except as otherwise provided, to require and take bonds from any officers, when considered necessary, payable to the municipality, in its corporate name, with such sureties and in a penalty as the governing body may see fit, conditioned upon the faithful discharge of their duties;

 (46) To require and take from the employees and contractors such bonds in a penalty, with such sureties and with such conditions, as the governing body may see fit;

 (47) To investigate and inquire into all matters of concern to the municipality or its inhabitants;

 (48) To establish, construct, require, maintain and operate such instrumentalities, other than free public schools, for the instruction, enlightenment, improvement, entertainment, recreation and welfare of the municipality’s inhabitants as the governing body may consider necessary or appropriate for the public interest;

 (49) To create, maintain and operate a system for the enumeration, identification and registration, or either, of the inhabitants of the municipality and visitors thereto, or the classes thereof as may be considered advisable;

 (50) To require owners, residents or occupants of factory-built homes situated in a factory-built rental home community with at least ten factory-built homes, to visibly post the specific numeric portion of the address of each factory-built home on the immediate premises of the factory-built home of sufficient size to be visible from the adjoining street: Provided, That in the event no numeric or other specific designation of an address exists for a factory-built home subject to the authorization granted by this subdivision, the municipality has the authority to provide a numeric or other specific designation of an address for the factory-built home and require that it be posted in accordance with the authority otherwise granted by this section.

 (51) To appropriate and expend not exceeding twenty-five cents per capita per annum for advertising the municipality and the entertainment of visitors;

 (52) To conduct programs to improve community relations and public relations generally and to expend municipal revenue for such purposes;

 (53) To reimburse applicants for employment by the municipality for travel and other reasonable and necessary expenses actually incurred by the applicants in traveling to and from the municipality to be interviewed;

 (54) To provide revenue for the municipality and appropriate the same to its expenses;

 (55) To create and maintain an employee benefits fund which may not exceed one tenth of one percent of the annual payroll budget for general employee benefits and which is set up for the purpose of stimulating and encouraging employees to develop and implement cost-saving ideas and programs and to expend moneys from the fund for these purposes;

 (56) To enter into reciprocal agreements with governmental subdivisions or agencies of any state sharing a common border for the protection of people and property from fire and for emergency medical services and for the reciprocal use of equipment and personnel for these purposes;

 (57) To provide penalties for the offenses and violations of law mentioned in this section, subject to the provisions of section one, article eleven of this chapter, and such penalties may not exceed any penalties provided in this chapter and chapter sixty-one of this code for like offenses and violations;

 (58) To participate in a purchasing card program for local governments authorized and administered by the State Auditor as an alternative payment method; and

(59) To enter into agreements with one or more other municipalities, and with county commissions to combine and share selected governmental services by combining operations, equipment, and employees into a unified government service.

§8-12-5a. Limitations upon municipalities’ power to restrict the purchase, possession, transfer, ownership, carrying, transport, sale, and storage of certain weapons and ammunition.

(a) Neither a municipality nor the governing body of any municipality may, by ordinance or otherwise, limit the right of any person to purchase, possess, transfer, own, carry, transport, sell, or store any deadly weapon, firearm, or pepper spray, or any ammunition or ammunition components to be used therewith nor to so regulate the keeping of gunpowder so as to directly or indirectly prohibit the ownership of the ammunition in any manner inconsistent with or in conflict with state law.

(b) For the purposes of this section:

(1) “Deadly weapon” has the meaning provided in §61-7-2 of this code.

(2) “Firearm” has the meaning provided in §61-7-2 of this code.

(3) “Municipally owned or operated building” means any building that is used for the business of the municipality, such as a courthouse, city hall, convention center, administrative building, or other similar municipal building used for a municipal purpose permitted by state law: Provided, That “municipally owned or operated building” does not include a building owned by a municipality that is leased to a private entity where the municipality primarily serves as a property owner receiving rental payments.

(4) “Municipally owned recreation facility” means any municipal swimming pool, recreation center, sports facility, facility housing an after-school program, or other similar facility where children are regularly present.

(5) “Pepper spray” means a temporarily disabling aerosol that is composed partly of capsicum oleoresin and causes irritation, blinding of the eyes, and inflammation of the nose, throat, and skin that is intended for self-defense use.

(c)(1) A municipality may enact and enforce an ordinance or ordinances that prohibit or regulate the carrying or possessing of a deadly weapon, firearm, or pepper spray in municipally owned or operated buildings.

(2) A municipality may enact and enforce an ordinance or ordinances that prohibit a person from carrying or possessing a deadly weapon, firearm, or pepper spray openly or that is not lawfully concealed in a municipally owned recreation facility: Provided, That a municipality may not prohibit a person with a valid concealed handgun license from carrying an otherwise lawfully possessed firearm into a municipally owned recreation facility and securely storing the firearm out of view and access to others during their time at the municipally owned recreation facility.

(3) A person may keep an otherwise lawfully possessed deadly weapon, firearm, or pepper spray in a motor vehicle in municipal public parking facilities if the vehicle is locked and the deadly weapon, firearm, or pepper spray is out of view.

(4) A municipality may not prohibit or regulate the carrying or possessing of a deadly weapon, firearm, or pepper spray on municipally owned or operated property other than municipally owned or operated buildings and municipally owned recreation facilities pursuant to subdivisions (1) and (2) of this section: Provided, That a municipality may prohibit persons who do not have a valid concealed handgun license from carrying or possessing a firearm on municipally owned or operated property.

(d) It shall be an absolute defense to an action for an alleged violation of an ordinance authorized by this section prohibiting or regulating the possession of a deadly weapon, firearm, or pepper spray that the person: (1) Upon being requested to do so, left the premises with the deadly weapon, firearm, or pepper spray or temporarily relinquished the deadly weapon, firearm, or pepper spray in response to being informed that his or her possession of the deadly weapon, firearm, or pepper spray was contrary to municipal ordinance; and (2) but for the municipal ordinance the person was lawfully in possession of the deadly weapon, firearm, or pepper spray.

(e) Any municipality that enacts an ordinance regulating or prohibiting the carrying or possessing of a deadly weapon, firearm, or pepper spray pursuant to subsection (c) of this section shall prominently post a clear statement at each entrance to all applicable municipally owned or operated buildings or municipally owned recreation facilities setting forth the terms of the regulation or prohibition.

(f) Redress for an alleged violation of this section may be sought through the provisions of §53-1-1 et seq. of this code, which may include the awarding of reasonable attorney’s fees and costs, if the petitioner prevails.

(g) For the purposes of §61-7-14 of this code, municipalities may not be considered a person charged with the care, custody, and control of real property.

(h) This section does not:

(1) Authorize municipalities to restrict the carrying or possessing of deadly weapons, firearm, or pepper spray, which are otherwise lawfully possessed, on public streets and sidewalks of the municipality; or

(2) Limit the authority of a municipality to restrict the commercial use of real estate in designated areas through planning or zoning ordinances.

§8-12-5b. Municipal authority to enact ordinance; ordinance provisions defining terms; restricting certain activities in relation to obscene matters and establishing penalties for violations.

(a) Notwithstanding the provisions of section one, article eleven, chapter eight of this code, in addition to all other powers which municipalities now possess by law, every municipality and the governing body thereof may adopt the ordinance provided in subsection (b) of this section.

A municipality when adopting this ordinance, may delete therefrom such portions of paragraph (A), subdivision (4), subsection (b) of this section that it deems appropriate.

(b) The ordinance which municipalities may adopt pursuant to the power granted them under subsection (a) of this section shall be:

Section 1. Definitions.

For purposes of this ordinance:

(1) "Knowingly" means to have knowledge of or to be aware of the content or character of obscene matter.

(2) "Matter" means any book, magazine, newspaper or other printed or written material, or any picture, drawing or photograph, motion picture, or other visual representation, or live conduct, or any recording, transcription or mechanical, chemical or electrical reproduction, or any other articles, equipment, machines or materials.

(3) "Individual" means any human being regardless of age.

(4) "Obscene" means matter which the average individual applying contemporary community standards would find (i) taken as a whole, appeals to the prurient interest; (ii) depicts or describes in a patently offensive way ultimate sexual acts, normal or perverted, actual or simulated; and (iii) the matter, taken as a whole, lacks serious literary, artistic, political or scientific value, and which either:

(A) Depicts or describes patently offensive representation of masturbation, excretory functions, lewd exhibition of the genitals, sodomy, fellatio, cunnilingus, bestiality, sadism, masochism; or

(B) Depicts or describes nudity or sexual acts of persons, male or female, below the age of eighteen years.

(5) "Person" means any individual, partnership, firm, association, corporation or other legal entity.

(6) "Prepare" means to produce, publish or print.

(7) "Public display" means the placing of material on or in a billboard, viewing screen, theatre, marquee, newsstand, display rack, window, showcase, display case or similar public place so that material can be purchased or viewed by individuals.

Section 1a. Injunctive relief.

The circuit court shall have jurisdiction to issue an injunction to enforce the purposes of this ordinance upon petition by the attorney for the municipality or a representative thereof or any citizen of the municipality who can show a good faith and valid reason for making such application. No bond shall be required unless for good cause shown.

Section 2. Activities prohibited; penalties.

Any person who knowingly sends or causes to be sent or causes to be brought into the municipality of (name of municipality) for sale or public display, or prepares, sells or makes a public display, or in the municipality of (name of municipality) offers to prepare, sell or make a public display, or has in his possession with the intent to sell or make a public display of any obscene matter to any individual, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $500 or imprisoned not more than thirty days or both fined and imprisoned. A person convicted of a second or subsequent offense under this ordinance is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned not more than six months or both fined and imprisoned.

Section 3. Employees acting within scope of employment shall not be prosecuted.

No employee shall be guilty of a violation of this ordinance when such employee is a projectionist, ticket taker, usher, or when such employee prepares, sells or makes a public display of obscene matter while acting within the scope of his regular employment, unless such employee has a proprietary interest in such obscene matter or is a shareholder or officer of a corporation which has a proprietary interest in such obscene matter.

Section 4. Exceptions.

Nothing in this ordinance shall be construed so as to apply to any person exercising a right secured by the Constitution or laws of this state or of these United States.

§8-12-5c. Authority to enact ordinance restricting the location of businesses offering exotic entertainment.

(a) For the purposes of this section, the term "exotic entertainment" has the same meaning ascribed to it in section three-jj, article one, chapter seven of this code.

(b) In the event a municipality has not created or designated a planning commission in accordance with the provisions of article twenty-four of this chapter, every municipality and the governing body of the municipality may, in addition to all other powers of municipalities, adopt an ordinance that limits the areas of the municipality in which businesses may offer exotic entertainment. Any such ordinance shall be subject to the provisions of section fifty, article twenty-four of this chapter: Provided, That in the event of the partial or total loss of any existing business structure due to fire, flood, accident or any other unforeseen act, that business structure may be repaired or replaced and the business use of that structure may continue notwithstanding the existence of any ordinance authorized by this section. Any such repair or replacement will be limited to restoring or replacing the damaged or lost structure with one reasonably similar, or smaller, in size as measured in square footage, and any enlargement of the business structure will subject the structure to any existing ordinance authorized by this section.

(c) Any person adversely affected by an ordinance enacted pursuant to the authority granted in subsection (b) of this section is entitled to seek direct judicial review with regard to whether the ordinance impermissibly burdens his or her right to establish a business offering exotic entertainment.

§8-12-5d. Regulation of amateur radio antennas.

(a) Any municipal ordinance or order concerning the regulation or placement of amateur radio antennas must:

(1) Comply with all Federal Communications Commission regulations and its rulings and orders;

(2) Reasonably accommodate amateur radio communications; and

(3) Represent the minimum practicable regulation to accomplish the municipality's legitimate purpose.

(b) Nothing in this section shall be deemed to prohibit a municipal governing body from taking action to protect or preserve historic buildings, structures, sites and districts that have been established by federal, state or local law.

§8-12-5e. Authority to enter into energy-savings contracts.

(a) As used in this section:

(1) "Energy-conservation measures" means goods or services, or both, to reduce energy consumption operating costs of municipality facilities. They include, but are not limited to, installation of one or more of the following:

(A) Insulation of a building structure and systems within a building;

(B) Storm windows or doors, caulking or weather stripping, multiglazed windows or doors, heat-absorbing or heat-reflective glazed and coated window or door systems, or other window or door modifications that reduce energy consumption;

(C) Automatic energy control systems;

(D) Heating, ventilating or air conditioning systems, including modifications or replacements;

(E) Replacement or modification of lighting fixtures to increase energy efficiency;

(F) Energy recovery systems;

(G) Cogeneration systems that produce steam or another form of energy for use by any agency in a building or complex of buildings owned by the municipality; or

(H) Energy-conservation maintenance measures that provide long-term operating cost reductions of the building's present cost of operation.

(2) "Energy-savings contract" means a performance-based contract for the evaluation and recommendation of energy operations conservation measures and for implementation of one or more energy-conservation measures.

(3) "Qualified provider" means a person, firm or corporation experienced in the design, implementation and installation of energy-conservation measures.

(b) Municipalities are authorized to enter into performance-based contracts with qualified providers of energy-conservation measures for the purpose of significantly reducing energy operating costs of municipality buildings, subject to the requirements of this section.

(c) Before entering into a contract or before the installation of equipment, modifications or remodeling to be furnished under a contract, the qualified provider shall first issue a proposal summarizing the scope of work to be performed. A proposal must contain estimates of all costs of installation, modifications or remodeling, including the costs of design, engineering, installation, maintenance, repairs or debt service, as well as estimates of the amounts by which energy operating costs will be reduced. If the municipality finds, after receiving the proposal, that the proposal includes one or more energy-conservation measures, the installation of which is guaranteed to result in a net savings of a minimum of five percent of the then current energy operating costs which savings will, at a minimum, satisfy any debt service required, the municipality may enter into a contract with the provider pursuant to this section.

(d) An energy-savings contract must include the following:

(1) A guarantee of a specific minimum net percentage amount of at least five percent of energy operating costs each year over the term of the contract that the municipality will save;

(2) A statement of all costs of energy-conservation measures, including the costs of design, engineering, installation, maintenance, repairs and operations; and

(3) A provision that payments, except obligations upon termination of the contract before its expiration, are to be made over time.

(e) A municipality may supplement its payments with federal, state or local funds to reduce the annual cost or to lower the initial amount to be financed.

(f) Any energy-savings contract entered into for the purpose of achieving one or more energy-conservation measures, as authorized by this section, shall be subject to a competitive bidding process as provided by municipal ordinance enacted pursuant to section ten-b, article twelve of this chapter.

(g) An energy-savings contract may extend beyond the fiscal year in which it first becomes effective: Provided, That such a contract may not exceed a fifteen-year term: Provided, however, That the long-term contract will be void unless the agreement provides that the municipality shall have the option during each fiscal year of the contract to terminate the agreement.

(h) Municipalities may enter into a "lease with an option to purchase" contract for the purchase and installation of energy-conservation measures if the term of the lease does not exceed fifteen years and the lease contract includes the provisions contained in subsection (f) of this section and meets federal tax requirements for tax-exempt municipal leasing or long-term financing.

(i) The municipality may include in its annual budget for each fiscal year any amounts payable under long-term energy-savings contracts during that fiscal year.

§8-12-5f. Regulation of taxicabs and taxi stands.

(a) Notwithstanding the provisions of article two, chapter twenty-four-a of this code, the governing body of a Class I or Class II municipality that includes a land grant university enrolling at least twenty thousand students may, by ordinance, regulate taxicabs and taxi stands within the corporate limits of the municipality.

(b) The regulations shall be limited to the following:

(1) Requirements for the condition of the taxicabs;

(2) The location of taxi stands;

(3) Background checks for taxi drivers;

(4) Drug testing for taxi drivers;

(5) Violations of regulations adopted pursuant to this section for which citations may be issued and penalties imposed;

(6) The requirement that a taxicab company place a sign, visible to passengers, in the taxicab which contains contact information which passengers may use to make complaints about the taxicab company or its taxi drivers. The municipality may assist passengers in resolving complaints, and shall forward complaints to the public service commission in the event that further action is needed; and

(7) Requirements for safety inspections of the taxicabs.

(8) Requirements to improve reliability of service.

(c) This section is not intended to increase the number of operators or owners of taxicabs and taxi stands.

§8-12-5g. Authorizing municipalities to hold motor vehicle racing events on public roads, municipal streets or runways.

(a) In addition to all other powers and duties not conferred by law upon municipalities, such municipalities are empowered to organize and hold motor vehicle racing events on roads and airports in this state under their jurisdiction; to require a permit; to provide for the issuance of a permit; to prescribe certain requirements for obtaining a permit; to provide for certain powers and duties of the permit holder and the municipality in relation to a racing event; and to declare that such a racing event is not a nuisance or prohibited street racing.

(b) As used in this section:

(1) “Person” shall mean an individual, sole proprietorship, partnership, corporation or other legal entity;

(2) “Public road” shall mean a road or open country highway under the control of the county court or the governing body of a municipality which is not classified in the state road system;

(3) “Municipal street” shall mean an urban or suburban street under the control of the governing body of a municipality which is not classified in the state road system;

(4) “Motor vehicle” shall mean and include any mechanical device for the conveyance, drawing or other transportation of persons or property upon the public roads, whether operated on wheels or runners or by other means, except those propelled or drawn by human power or those used exclusively upon rails; and

(5) “Racing event” shall mean a motor vehicle race which is sanctioned by a nationally or internationally recognized racing organization and includes preparations, practices and qualifications for the race.

(c) A municipality may provide for the issuance of a permit allowing the person to whom the permit is issued to conduct a racing event on a public road, municipal street or airport located within its jurisdiction.  A person shall not conduct a racing event unless the person has been issued a permit under this section.

(d) The municipality may charge a reasonable fee for the issuance of a permit under this section.  

(e) Before a municipality issues a racing event permit under subsections (c) and (d) of this section, the municipality shall determine all of the following:

(1) That the person applying for the permit has adequate insurance to pay any damages incurred because of loss or injury to any person or property;

(2) That adequate security, emergency services and necessary facilities will be provided during the racing event; and

(3) That the person applying for the permit has demonstrated the ability to protect the health, safety and welfare of the citizens of the municipality, the race participants and those attending the racing event.

(f) For purposes of a racing event held under this section, the municipality may do all of the following:

(1) Provide for the temporary closing or obstructing of roads, streets, alleys, sidewalks and airport runways;

(2) Reroute pedestrian and vehicular traffic; and

(3) Waive ordinances and traffic regulations including speed limits and traffic control devices.

(g) No less than sixty days prior to a scheduled racing event, a municipality shall provide written notice to the West Virginia Department of Transportation - Traffic Engineering Division of any racing event permit issued under this section.  The written notice shall identify the following:

(1) The time, date and location of the event;

(2) The nationally or internationally recognized racing organization sponsoring the event;

(3) A road closure plan that specifies the public roads, municipal streets, alleys, sidewalks and airport runways that will be temporarily closed or obstructed during the event;

(4) A traffic control plan that specifies the on-site traffic controls and detour route to be used during the event; and

(5) The names and phone numbers of emergency and law-enforcement contacts overseeing the event.

(h) A racing event held under this section and any action taken under subsections (e) and (f) of this section shall be considered as being for public purposes, including the promotion of commerce and tourism for the benefit of the citizens of the municipality and state.

(i) A municipality that issues a permit under this section shall not be liable for any damages that may result from the racing event because of loss or injury to any person or property.  After a permit is issued, the state shall not be liable for any damages that may result from the racing event because of loss or injury to any person or property.

(j) The provisions related to road obstructions and public nuisance set forth in section one, article sixteen, chapter seventeen of this code do not apply to an authorized racing event held under this section.

(k) The provisions of article six, chapter seventeen-c of this code shall not apply to an authorized racing event held under this section.

PART IV. CERTAIN SPECIFIC POWERS OF MUNICIPALITIES

AND GOVERNING BODIES.

§8-12-6. Membership in association or league.

Every municipality is hereby empowered and authorized to become a member of an association or league having for its general purpose the exchange and dissemination of information and ideas designed for the more efficient administration and conduct of municipal government and affairs. In order to finance the maintenance of such an organization, each municipality is hereby empowered and authorized to pay into such an organization annual dues or membership fees in an amount to be fixed by the members thereof at the annual meeting of such organization. Such dues or membership fees may be appropriated by the governing body as a current expense item and included in the annual budget.

§8-12-7. Power and authority to purchase insurance and to indemnify officers, agents and employees.

(a) Every municipality shall have plenary power and authority to contract and expend public funds for the purchase of one or more policies of public liability insurance, with or without a sharing in the cost thereof by the officers, agents and employees of such municipality, providing the municipality and its officers, agents and employees insurance coverage for legal liability of said municipality and its officers, agents and employees for bodily injury, personal injury or damage (including, but not limited to, false arrest and false imprisonment) and property damage, and affording said municipality and its officers, agents and employees insurance coverage against any and all legal liability arising from, growing out of, by reason of or in any way connected with, any acts or omissions of said municipality, or its officers, agents or employees in the performance of their official duties. So long as the coverage aforesaid is obtained and remains in full force and effect as to the police officers of a municipality, the bond specified in section five, article seven, chapter sixty-one of this code shall not be required as to such police officers.

(b) Every municipality shall also have plenary power and authority to provide for the indemnification of its officers, agents and employees against any and all liability, losses, damages, expenses and costs, including court costs and reasonable and necessary attorney fees, arising from, growing out of, by reason of or in any way connected with any acts or omissions of said officers, agents or employees in the performance of their official duties. Such indemnification may be provided by a self-funding program, by expenditures from the General Fund, or by the purchase of insurance as provided in subsection (a) of this section, with or without financial contribution or participation by such officers, agents and employees. Prior to the expenditure of any public funds pursuant to the power and authority conferred by the provisions of this subsection (b), the governing body shall determine by ordinance applicable to an entire class or classes of officers, agents or employees the manner in which such power and authority shall be exercised.

§8-12-8. Group insurance programs authorized.

Every municipality shall have plenary power and authority to negotiate for, secure and adopt for the regular employees thereof (other than provisional, temporary, emergency and intermittent employees) who are in employee status with such municipality on and after the effective date of this section and for their spouses and dependents, a policy or policies of group insurance written by a carrier or carriers chartered under the laws of any state and duly licensed to do business in this state and covering life; health; hospital care; surgical or medical diagnosis, care, and treatment; drugs and medicines; remedial care; other medical supplies and services; or any other combination of these; and any other policy or policies of group insurance which in the discretion of the governing body bear a reasonable relationship to the foregoing coverages. The provisions and terms of any such group plan or plans of insurance shall be approved in writing by the Insurance Commissioner of this state as to form, rate and benefits.

The municipality is hereby authorized and empowered to pay the entire premium cost, or any portion thereof, of said group policy or policies. Whenever the above-described regular employees shall indicate in writing that they have subscribed to any of the aforesaid insurance plans on a group basis and the entire cost thereof is not paid by the municipality, the municipality is hereby authorized and empowered to make periodic premium deductions of the amount of the contribution each such subscribing employee is required to make for such participation from the salary or wage payments due each such subscribing employee as specified in a written assignment furnished to the municipality by each such subscribing employee.

When a participating employee shall retire from his employment, he may, if he so elects, remain a member of the group plan and retain coverage for his spouse and dependents, by paying the entire premium for the coverage involved. Spouses and dependents of any deceased member may remain a member of the group plan by paying the entire premium for the coverage: Provided, That nothing herein shall be construed as prohibiting the municipality from paying a portion or all of the cost of any coverage. In the event that a municipality changes insurance carriers, as a condition precedent to any such change, the municipality shall assure that all retirees, their spouses and dependents, and the spouses and dependents of any deceased member are guaranteed acceptance, at the same cost for the same coverage as regular employees of similar age groupings, their spouses and dependents.

§8-12-9. Power and authority to enact ordinance prohibiting discrimination with respect to housing accommodations.

Notwithstanding any statutory or charter provision to the contrary, the governing body of every municipality shall have plenary power and authority, by ordinance, to prohibit discrimination on the basis of race, creed, color or national origin in the sale, purchase, lease or rental of housing accommodations within the corporate limits of such municipality, and to impose fines for the violation of the provisions of any such ordinance.

§8-12-10. Purchasing; competitive bidding.

(a) Every municipality may provide for the centralized purchasing of materials, supplies and equipment; and the term "equipment," for the purposes of this section, shall include, but not be limited to, motor vehicles. Every municipality may, by agreement with the state director of the division of purchases of the department of finance and administration, purchase the same through such department, or may enter into agreements with one or more other municipalities, counties or county boards of education, or any combination thereof, for centralized purchasing for all governmental units which are parties to such agreement.

(b) Every municipality is hereby empowered and authorized to provide by ordinance whether competitive bidding is to be required in the purchase of materials, supplies and equipment and if so the type or types of purchases with respect to which the same shall be required and the method and manner in which bids shall be obtained. Any ordinance adopted by any municipality in accordance with the provisions of this subsection (b) shall supersede any provision pertaining to competitive bidding contained in the special legislative charter of such municipality.

§8-12-11. Lease agreements for equipment or materials with option to cancel or renew for one year authorized.

Notwithstanding any other provision of this code or any charter provision to the contrary, the governing body of every municipality shall have plenary power and authority to enter into and execute a lease agreement for the obtaining of equipment or material. Any such lease agreement shall not be void or voidable because it also provides (a) that title to the equipment or material shall vest in the municipality at or before the expiration of the leasehold term upon fulfillment of the terms and conditions stipulated in such lease agreement; (b) for application of the annual rental payments made thereunder toward the purchase price of such equipment or material, although such total rental payments under any such agreement are in excess of the cash price of the equipment or material described therein, whether such excess be by way of interest or a time-price differential; and (c) that the risk of loss of the equipment or material shall be borne by the municipality. Any such lease agreement shall be void, however, unless such agreement provides that the municipality shall have the following options thereunder during each fiscal year of the agreement: (1) The option to terminate the agreement and return the equipment or material without any further obligation on the part of the municipality; (2) the option to continue the agreement for an additional rental period not to exceed one year in length; and, when the agreement contains the provisions described in (a), (b) and (c) above; (3) the option to pay in advance at any time during any fiscal year the balance due under such agreement, with an appropriate rebate of the unearned interest or time-price differential.

The funds for the initial rental payment under any such agreement must be legally at the disposal of the municipality for expenditure in the fiscal year in which such agreement is executed, and in the event the municipality elects during any subsequent fiscal year to continue the agreement for any additional rental period or to pay in advance the balance due, the funds for the additional rental period or the funds to be used to pay the balance in advance must be legally at the disposal of the municipality for expenditure in the fiscal year in which the municipality elects to continue the agreement or to pay in advance the balance due, as the case may be.

§8-12-12. Power and authority to lease, establish, maintain and operate off-street parking facility.

Every municipality shall have plenary power and authority to enter into a lease with the owner or owners of any real property situate within the corporate limits of such municipality by which such real property is demised, leased and let to such municipality for an off-street parking facility (including parking lots, buildings, ramps, parking meters and other appurtenances deemed necessary, appropriate or incidental to the regulation, control and parking of motor vehicles), which off-street parking facility is hereby declared to be a municipal public work, and every such municipality shall have plenary power and authority to establish, maintain and operate such parking facility. Every such lease shall be authorized by an ordinance adopted by the municipality. Every municipality shall have this power and authority whether such real property is at the time of the execution of such lease already equipped, maintained and operated, in whole or in part, as a parking facility or whether such real property is at such time unimproved and is to be, under the terms of the lease, improved by the installation of parking meters, lighting equipment, pavement or other equipment necessary, appropriate, useful, convenient or incidental to the use of such property for such purpose.

Any such ordinance may provide that the police force or department of such municipality shall police the parking facility; and that overtime parking at the facility or other violations of the ordinance shall be a misdemeanor punishable as provided in said ordinance. Any such ordinance shall also provide for the collection of reasonable charges for the use of such parking facility by the public generally, and any such ordinance may be amended from time to time. Any lease entered into by and between any such municipality and the owner or owners of any such real property may contain such terms and conditions as may be agreed upon between the parties, not inconsistent with any of the provisions of this section or other provisions of law. The ordinance authorizing any such lease may also specify terms and conditions which must be contained in such lease.

Under no circumstances whatever shall any obligation incurred under the provisions of this section or any such lease be deemed to be or create an indebtedness of the municipality, the governing body or any member thereof, any officer thereof, or other municipal official, and all of the expenses of whatever kind, nature or character incident to the establishment, maintenance and operation of such parking facility, including, but not limited to, such rental payments as are provided for in the lease and the cost of policing the facility, shall be paid solely from revenues derived from such parking facility, and from revenues derived from other parking facilities or meters not pledged to pay for such other parking facilities or meters. No member of the governing body of any such municipality, or any officer thereof, or other municipal official, shall under any circumstances be personally liable under any such lease or upon any obligation of any kind, nature or character arising under the provisions of this section.

The power and authority herein granted shall be in addition to and not in derogation of any power and authority vested in any municipality under any Constitutional, statutory or charter provision now or hereafter in effect. This section shall, without reference to any other provisions of this code or any other statute or any charter, be deemed full authority for the acquisition of any such real property by lease for a parking facility, for the establishment, maintenance and operation of any such parking facility and for the enactment of an ordinance as hereinbefore specified. This section shall be construed as an additional alternative method for providing off-street parking facilities, and shall not in any way limit the provisions of article sixteen of this chapter authorizing the establishment, maintenance, operation and financing of such facilities by the issuance of revenue bonds.

This section, being necessary for the public safety and welfare, shall be liberally construed to effectuate its purposes.

§8-12-13. Building regulation; general and special codes; state building code.

(a) The governing body of every municipality shall have plenary power and authority by ordinance or a code of ordinances to:

(1) Regulate the erection, construction, repair or alteration of structures of every kind within the corporate limits of the municipality, prohibit, within specified territorial limits, the erection, construction, repair or alteration of structures of wood or other combustible material, and regulate excavations upon private property;

(2) Regulate electric wiring by prescribing minimum specifications to be followed in the installation, alteration or repair; and

(3) Regulate plumbing by prescribing the minimum specifications to be followed in the installation, alteration or repair of plumbing, including equipment, water and sewer pipe, traps, drains, cesspools and septic tanks.

(b) Notwithstanding the provisions of subsection (a) of this section, all existing municipal building codes are void one year after the promulgation of a state building code by the State Fire Commission as provided under section five-b, article three, chapter twenty-nine of this code.

Upon the voidance of the municipality’s existing building code, if the municipality votes to adopt a building code, it must be the state building code promulgated under section five-b, article three, chapter twenty-nine of this code.

(c) The governing body of every municipality shall have plenary power and authority by ordinance or a code of ordinances to adopt such state building code promulgated by the State Fire Commission.

(d) Unless otherwise authorized by state law, any misdemeanor prosecution of a violation of an ordinance adopted under this section before a municipal judge or other municipal official lawfully authorized to hear and determine violations of municipal code shall be initiated by a complaint presented to and sworn or affirmed before a municipal judge or other municipal official with lawful authority to hear and determine violations of municipal code in the municipality where the offense is alleged to have occurred. Unless otherwise provided by statute, the presentation and oath or affirmation shall be made by a code enforcement department official or municipal attorney showing reason to have reliable information and belief.  If the municipal judge or other municipal official with lawful authority to hear and determine violations of municipal code finds probable cause, the complaint becomes the charging instrument initiating a criminal proceeding.

A complaint lawfully authorized by this subsection together with a summons setting forth the date, time and place of appearance before a municipal judge or other municipal official with lawful authority to hear and determine violations of municipal code, shall be served in accordance with the law of the State of West Virginia concerning the service of process in civil actions, except that personal service of a summons and complaint may be made by a code enforcement department official.  If service is made by certified mail under Rule 4(d)(1)(D) of the West Virginia Rules of Civil Procedure and delivery of the summons and complaint is refused, the code enforcement department official, promptly upon the receipt of the notice of the refusal, shall mail to the person or entity being noticed, by first class mail, postage prepaid, a copy of the summons and complaint.  If the first class mailing is not returned as undeliverable by the U. S. Postal Service, service of the summons and complaint is presumed to have been effectuated.  Upon service of the summons and complaint consistent with this subsection, the violation may be prosecuted consistent with state and local law.

§8-12-14. Permits for construction and alteration.

The governing body of every municipality has plenary power and authority to require a permit as a condition precedent to the erection, construction, repair or alteration of any structure or of any equipment or part of a structure which is regulated by state law or municipal ordinance: Provided, That no such permits may be required of the state, a county or other governmental entity, its contractors, agents or employees for the erection, construction, repair or alteration of any structure or of any equipment or part of a structure designated for use by the state, a county or other governmental entity.

§8-12-14a.

Repealed.

Acts, 1989 Reg. Sess., Ch. 79.

§8-12-15. Municipal inspection.

The governing body of every municipality shall have plenary power and authority to provide for the entering and inspection of private premises to aid in the enforcement of any state law or municipal ordinance: Provided, That this section shall not be construed as purporting to authorize an unreasonable search and seizure prohibited by section six, article three of the Constitution of this state.

§8-12-16. Ordinances regulating the repair, alteration, improvement, closing, demolition, etc., of structures, dwellings, or buildings that are unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare; procedures.

(a) For the purposes of this section:

(1) “Code enforcement agency” means either a code enforcement department as defined by 87 CSR 7-2, as may be amended, or an enforcement agency as permitted by subsection (c) of this section.

(2) “Code enforcement agency official” means any lawful agent of a code enforcement agency.

(3) “Owner” or “landowner” means a person who individually or jointly with others:

(A) Has legal title to the property, with or without actual possession of the property;

(B) Has charge, care, or control of the property as owner or agent of the owner;

(C) Is an executor, administrator, trustee, or guardian of the estate of the owner;

(D) Is the agent of the owner for the purpose of managing, controlling, or collecting rents; or

(E) May control or direct the management or disposition of the property.

(4) “Unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare” means:

(A) Any door, aisle, passageway, stairway, exit, or other means of egress that does not conform to the approved building or fire code of the jurisdiction as related to the requirements for existing buildings;

(B) The walking surface of any aisle, passageway, stairway, exit, or other means of egress is so warped, worn loose, torn, or otherwise unsafe as to not provide safe and adequate means of egress;

(C) Any portion of a dwelling, building, structure, or appurtenance that has been damaged by fire, earthquake, wind, flood, deterioration, neglect, abandonment, vandalism, or by any other cause to an extent that it is likely to partially or completely collapse, or to become detached or dislodged;

(D) Any portion of a structure or building, or any member, appurtenance, or ornamentation on the exterior that is not of sufficient strength or stability, or is not so anchored, attached, or fastened in place so as to be capable of resisting natural or artificial loads of one and one-half the original designed value;

(E) The dwelling, building, or structure, or part of the building or structure, because of dilapidation, deterioration, decay, faulty construction, the removal or movement of some portion of the ground necessary for the support, or for any other reason, is likely to partially or completely collapse, or some portion of the foundation or underpinning of the dwelling, building or structure is likely to fail or give way;

(F) The dwelling, building, or structure, or any portion, is clearly unsafe for its use;

(G) The dwelling, building, or structure is neglected, damaged, dilapidated, unsecured, or abandoned so as to become an attractive nuisance to children, becomes a harbor for vagrants, criminals, and criminal activity, or enables persons to resort to the dwelling, building, or structure for committing a nuisance or an unlawful act;

(H) Any dwelling, building, or structure constructed, exists or is maintained in violation of any specific requirement or prohibition applicable to any dwelling, building, or structure provided by the approved building or fire code of the jurisdiction or of any law or ordinance that presents either a substantial risk of fire, building collapse, or any other threat to life and safety;

(I) A dwelling, building, or structure, used or intended to be used for dwelling purposes, because of inadequate maintenance, dilapidation, decay, contamination by any hazardous substance or material, including, but not limited to, substance resulting from the illegal manufacture of drugs, damage, faulty construction or arrangement, inadequate light, ventilation, mechanical, or plumbing system, or otherwise, is determined by the code enforcement agency to be unsanitary, unfit for human habitation, or in a condition that is likely to cause sickness or disease;

(J) Any dwelling, building, or structure, because of a lack of sufficient or proper fire resistance-rated construction, fire protection systems, electrical system, fuel connections, mechanical system, plumbing system, or other cause, is determined by the code official to be a threat to life or health; or

(K) Any portion of a building that remains on a site after the demolition or destruction of the building or structure, or whenever any building or structure is abandoned.

(b) Plenary power and authority are hereby conferred upon every municipality adopt ordinances regulating the repair, alteration, or improvement, or the vacating and closing or removal or demolition, or any combination, of any structure, dwelling, or building, whether used for human habitation or not, that is unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare.

(c) In formally adopting any ordinance under this section, the governing body shall designate the enforcement agency, which shall consist of the code enforcement agency as provided by the state building code and authorized by §29-3-5b and §8-12-13 of this code; or municipal officials as may otherwise be authorized by this code; or municipal officials or agents as authorized by rules promulgated by the State Fire Commission and approved by the Legislature; or municipal officials or agents as may otherwise be authorized by the State Fire Commission. Notwithstanding any provision of this code to the contrary, for the purposes of this section any municipality that has not adopted the state building code may designate an enforcement agency consisting of the mayor, the municipal engineer or building inspector, and one member at large, to be selected by and to serve at the will and pleasure of the mayor, and the ranking health officer and fire chief or their designees, who shall serve as ex officio members of the enforcement agency.

(d) Any ordinance adopted under the provisions of this section must provide fair and equitable rules of procedure and any other procedures required by law or necessary and appropriate to guide the code enforcement agency, or its officials, in the investigation of any structure, dwelling, or building conditions, and in any corrective action taken by the code enforcement agency.

(e) When a code enforcement agency official enters the premises of the property for investigating or inspecting any structure, dwelling, or building, the investigation shall be performed to minimize the inconvenience to the owner or persons in possession and shall be consistent with the following:

(1) Except in exigent circumstances and as permitted by law, the enforcement agency shall provide reasonable advance notice to the owner and request permission from the owner to enter the property;

(2) If the owner cannot be located after reasonable inquiry by the code enforcement agency as required by this section, or if the owner refuses entry, the code enforcement agency may obtain an administrative search warrant from either the municipal court or the magistrate court located in the jurisdiction of the municipality or county where the structure, dwelling, or building is located. Before obtaining an administrative search warrant, a code enforcement agency official is required to make a sworn statement and prima facie case showing that the code enforcement agency was unable to gain access to the structure, dwelling, or building after reasonable and good faith efforts, and that there is a legitimate and substantial safety concern involving the structure, dwelling, or building that supports the requested entry;

(3) If granted by the court, and if the owner can be located, the code enforcement agency shall provide the owner a copy of the administrative search warrant five days before entering the property. If applicable, the code enforcement agency shall also provide the same notice to any tenant or other person in possession of the structure, dwelling, or building; and

(4) Entry is for the sole purpose of inspection of the structure, dwelling, or building for unsafe or unsanitary conditions and not for the purpose of criminal prosecution or gathering evidence for use in any criminal charge or proceeding unrelated to the unsafe or unsanitary condition of the structure, dwelling, or building.

(f) The governing body of every municipality has plenary power and authority to adopt an ordinance providing for the vacating, closing, removal, or demolition of any dwelling, structure or building by the municipality in the absence of owner agreement or court order: Provided, That the ordinance requires the code enforcement agency to provide lawful notice to and undertake reasonable efforts to seek agreement from the owner before taking any action permitted by this section and shall comply with the requirements set forth in this subsection:

(1) Any ordinance adopted under this subsection applies only to dwellings, structures, or buildings which meet the definition of unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare as set forth in:

(A) Paragraph (C), (E) or (H), subdivision (4), subsection (a) of this section; or

(B) Paragraph (F), (G), (I) or (K), subdivision (4), subsection (a) of this section: Provided, That the dwelling, building, or structure is vacant, abandoned, or has been lawfully declared unfit for human habitation; and the reasonable estimated cost of repair, rehabilitation, or corrective action exceeds the fair market value of the dwelling, building, or structure.

(2) Any ordinance adopted under this subsection must provide for the following:

(A) The code enforcement agency shall produce a written notice containing the date of the last inspection, the name of the inspector, a reasonable description of the unsafe, unsanitary, dangerous, or detrimental conditions, the corrective measures required, the allotted time to correct the substandard conditions and the allotted time the owner has to apply to the circuit court for a temporary injunction or other similar relief restraining action by the enforcement agency.

(B) The notice shall be served upon the owner or landowner by conspicuously posting and attaching a copy of the notice to the subject property, and by serving the notice on the owner or landowner in the same manner as service of a complaint as set forth in subsection (j) of this section.

(C) If the code enforcement agency cannot effect personal service on the owner, a code enforcement agency official shall subscribe a written affidavit, to be maintained for a minimum of two years, that demonstrates the structure, dwelling, or building falls within one of the categories set forth in paragraph (A) or (B), subdivision (1), subsection (f) of this section and sets forth the basis in reasonable detail, including documentation of same, and memorializes the code enforcement agency official’s efforts to contact or get permission for entry and any corrective action from the owner; and the code enforcement agency shall publish notice of its intent to enter the property for the purpose of demolition or correction, along with the address of the property, the name of the owners and the date of the proposed action, as a Class II legal advertisement consistent with the requirements of §59-3-2 of this code, the first of which shall run at least 30 days before the date of the proposed action by the enforcement agency, and the last being no later than 20 days before the date of the proposed action by the enforcement agency.

(D) If there is no response to the notice by the owner or landowner in the time specified in the notice, then the municipality may proceed in correction or demolition of the subject dwelling, building, or structure.

(3) It is an absolute defense to any civil action by an owner, landowner, or tenant for damages resulting from the closure, demolition, or other corrective action taken by a municipality under this section: Provided, That the municipality acted in good faith, can demonstrate that the structure, dwelling, or building falls within one of the categories set forth in paragraph (A) or (B), subdivision (1), subsection (f) of this section, that the municipality followed the procedures set forth in this subsection, and that the municipality had adopted the state building code at the time of the closure, demolition, or other corrective action occurred.

(4) Any ordinance adopted under this subsection must also provide for notice to the owner of the owner’s right to apply to the circuit court for a temporary injunction or other similar relief restraining correction or demolition by the enforcement agency. If the application is made by the owner, a hearing shall be had within 20 days of the application, or as soon as reasonably possible.

(A) Continuances of the hearing provided for in this subdivision may be made for cause only. If a continuance is granted upon request by the owner, the owner is required to pay into court, in the form of a bond, any reasonable and necessary costs related to the property likely to be incurred by the municipality during the continuance.

(B) At the conclusion of a hearing held under this subdivision, if the court finds that the property is unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare, the court shall make and enter an order granting the relief as requested by the municipality. The court may disburse any moneys paid into court by the owner in accordance with this section.

(g)(1) The governing body of every municipality has plenary power and authority to adopt an ordinance requiring the owner of any dwelling or building under determination of the State Fire Marshal, as provided in §29-3-12 of this code, or under order of the code enforcement agency of the municipality, to pay for the costs of repairing, altering, or improving, or of vacating and closing, removing or demolishing any dwelling or building, and may file a lien against the real property in question for an amount that reflects all costs incurred by the municipality for repairing, altering, or improving, or of vacating and closing, removing, or demolishing any dwelling or building, or structure. Any municipality that adopts an ordinance under this section may authorize the municipal court to place a structure, dwelling, or building into receivership when the following circumstances are present:

(A) The owner cannot be located after reasonable inquiry by the code enforcement agency as required by this section or if the owner refuses entry,

(B) The code enforcement agency has obtained an administrative search warrant from either the municipal court or the magistrate court located in the jurisdiction of the municipality or county where the structure, dwelling, or building is located;

(C) Upon entry, the code enforcement agency has determined that the structure, dwelling, or building is salvageable and does not require immediate demolition; and

(D) The code enforcement agency has proffered to the court that the structure, dwelling or building will require demolition or presents a substantial threat to nearby structures, property, or residents due to risk of fire, structural instability, or attractive nuisance if it is not repaired, altered, or improved in the near future.

(2) If all of these circumstances are present, the municipal court may place the structure, dwelling, or building into receivership with the municipality or another entity that is capable of making the necessary repairs, alterations, and improvements to the structure, dwelling or building. Any owner of the structure, dwelling, or building may petition the municipal court to terminate the receivership at any time and, upon showing that the owner will either demolish the structure, dwelling, or building or make the necessary repairs, alterations, and improvements to the satisfaction of the code enforcement agency, the municipal court may terminate the receivership.

(h) Every municipality may also institute a civil action in circuit court against the landowner or other responsible party to obtain an order allowing the municipality to take corrective action up to and including demolition of any structure, dwelling or building that is unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare; and to recover all reasonable costs and expenses incurred by the municipality with respect to the property and for reasonable attorney fees and court costs incurred in the prosecution of the action:

(1) No fewer than 10 days before instituting a civil action as provided in this subsection, the municipality shall send notice to the landowner by certified mail, return receipt requested, advising the landowner of the governing body’s intention to institute such action.

(2) The notice shall be sent to the most recent address of the landowner of record in the office of the assessor of the county where the subject property is located and to any other address for the landowner as may exist on record with the municipality. If, for any reason, the certified mail is returned without evidence of proper receipt, the municipality shall resend the notices by first class mail, postage prepaid, and shall also post notice on the front door or other conspicuous location on the subject property.

(i) To the extent not otherwise authorized by state law, all notices of violation or correction for violations that do not fall within one of the categories set forth in paragraph (A) or (B), subdivision (1), subsection (f) of this section issued by the enforcement agency of a municipality that has adopted the state building code shall be served in accordance with the process set forth in the state building code. All notices of violation or correction orders for violations that do not fall within one of the categories set forth in paragraph (A) or (B), subdivision (1), subsection (f) of this section issued by a code enforcement agency of a municipality that has not adopted the state building code shall be served in accordance with the law of this state concerning the service of process in civil actions, except that personal service may be made by a code enforcement agency official and the method of service effectuated by mail by the clerk of a court as permitted by Rule 4(d)(1)(D) of the West Virginia Rules of Civil Procedure is effectuated by mailing by a code enforcement agency official and shall be posted in a conspicuous place on the property that is the subject of the notice of violation or correction.

(j) Any violation of an ordinance adopted under this section, may be prosecuted by the municipality consistent with state and local laws. Unless otherwise authorized by state law, prosecution of a violation shall be initiated by a complaint presented to and sworn or affirmed before a municipal judge or other municipal official with lawful authority to hear and determine violations of municipal code in the municipality where the offense is alleged to have occurred. Unless otherwise provided by statute, the presentation and oath or affirmation shall be made by a code enforcement agency official or municipal attorney showing reason to have reliable information and belief. If from the facts stated in the complaint the municipal judge or other municipal official with lawful authority to hear and determine violations of municipal code finds probable cause, the complaint becomes the charging instrument initiating a criminal proceeding. A complaint lawfully authorized by this subsection along with a summons setting forth the date, time, and place of appearance before a municipal judge or other municipal official with lawful authority to hear and determine violations of municipal code shall be served in accordance with the law of the State of West Virginia concerning the service of process in civil actions, except that personal service of a summons and complaint may be made by a code enforcement agency official. If service is made by certified mail under Rule 4(d)(1)(D) of the West Virginia Rules of Civil Procedure and delivery of the summons and complaint is refused, the code enforcement agency official, promptly upon the receipt of the notice of the refusal, shall mail to the person or entity being noticed, by first class mail, postage prepaid, a copy of the summons and complaint. If the first class mailing is not returned as undeliverable by the U. S. Postal Service, service of the summons and complaint is presumed to have been effectuated. Upon service of the summons and complaint consistent with this subsection, the violation may be prosecuted consistent with state and local law.

§8-12-16a. Registration of uninhabitable property.

(a) The governing body of a municipality may, by ordinance, establish a property registration for any real property improved by a structure that is uninhabitable and violates the applicable building code adopted by the municipality. An owner of real property subject to the registration shall be assessed a fee as provided by the ordinance.

(b) The mayor of the municipality shall appoint a code enforcement officer to investigate and determine whether real property violates provisions of the applicable building code of the municipality.

(c) After inspecting the property, if the officer determines the property is uninhabitable and violates the applicable building code, then:

(1) The officer shall post a written notice on the property which shall include:

(A) An explanation of the violation(s);

(B) A description of the registration;

(C) The date the fee will be assessed;

(D) An explanation of how to be removed from the registration; (E) An explanation of the appeals process; and

(F) A statement that if the fee is not paid, then the property is subject to forfeiture; and

(2) Within five business days of the inspection and the posting of the property, the officer shall, by certified mail, send a copy of the notice that was posted to the owner(s) of the property at the last known address according to the county property tax records.

(d) Within forty-five days of receipt of the notification by the owner(s), the property owner may:

(1) Make and complete any repairs to the property that violate the applicable building code; or

(2) Provide written information to the officer showing that repairs are forthcoming in a reasonable period of time.

(e) For purposes of this section, "owner" or "property owner" means a person who individually or jointly with others:

(1) Has legal title to the property, with or without actual possession of the property;

(2) Has charge, care or control of the property as owner or agent of the owner;

(3) Is an executor, administrator, trustee or guardian of the estate of the owner;

(4) Is the agent of the owner for the purpose of managing, controlling or collecting rents; or

(5) Is entitled to control or direct the management or disposition of the property.

(f) After the repairs are made, the owner may request a reinspection of the property to ensure compliance with the applicable building code. If the officer finds the violations are fixed, the owner is not subject to the registration and no fee will be incurred.

(g) The officer may reinspect the property at any time to determine where in the process the repairs fall.

(h) Within ninety days of receipt of the notification by the owner(s), the property owner has the right to appeal the decision of the officer to the enforcement agency, created in section sixteen, article twelve of this chapter.

(i) If an appeal is not filed within ninety days, the property is registered and the fee is assessed to the owner(s) on the date specified in the notice. The notice of the fee shall be recorded in the office of the clerk of the county commission of the county where the property is located and if different, in the office of the clerk of the county commission of the county where the property is assessed for real property taxes.

(j) If the enforcement agency affirms the registration and assessment of the registration fee, the property owner has the right to appeal the decision of the enforcement agency to the circuit court within thirty days of the decision. If the decision is not appealed in a timely manner to the circuit court, then the property is registered and the fee is assessed on the date specified in the notice. The notice of the fee shall be recorded in the office of the clerk of the county commission of the county where the property is located and if different, in the office of the clerk of the county commission of the county where the property is assessed for real property taxes.

(k) A fee assessed under this section shall be recorded in the same manner as a lien is recorded in the office of the clerk of the county commission of the county.

(l) If the fee is paid, then the municipality shall record a release of the fee in the office of the clerk of the county commission of the county where the property is located and if different, in the office of the clerk of the county commission of the county where the property is assessed for real property taxes.

(m) If an owner fails to pay the fee, then the officer shall annually post the written notice on the property and send the written notice to the owner(s) by certified mail.

(n) If a registration fee remains delinquent for two years from the date it was placed on record in the clerk of the county commission in which the property is located and assessed, the municipality may take action to receive the subject property by means of forfeiture. Should the municipality take the steps necessary to receive the subject property, the municipality then becomes the owner of record and takes the property subject to all liens and real and personal property taxes.

§8-12-16b. Special litter prevention officers.

(a) A municipality that has adopted an anti-littering ordinance pursuant to section five of this article may provide, by ordinance, for the appointment of special litter prevention officers to aid in the enforcement of the municipal anti-littering ordinance.

(b) The ordinance enacted, pursuant to this section, must specify the duties to be performed by the special litter prevention officers and the required training such officers must undertake prior to commencement of their duties.

(c) Notwithstanding any other provision of this code, a special litter prevention officer may be presently employed by the municipality in another capacity. In the performance of the duties of special litter prevention officer, such officers shall be vested with the power to issue a citation, issue a summons, and sign a complaint. Such officers shall display at all times a badge or other sign of authority issued by the municipality.

(d) The governing body of the municipality may require such special litter prevention officers to give bond, payable to the municipality, in its corporate name, with such sureties and such penalties as the governing body may see fit, conditioned for the faithful performance of their duties.

§8-12-16c. Registration of vacant buildings; registration fees; procedures for administration and enforcement.

(a) The governing body of a municipality shall have plenary power and authority to establish by ordinance a vacant building and property registration and maintenance program.

(b) For purposes of this section:

(1) "Owner" or "property owner" means a person who individually or jointly with others:

(A) Has legal title to the property, with or without actual possession of the property;

(B) Has charge, care or control of the property as owner or agent of the owner;

(C) Is an executor, administrator, trustee or guardian of the estate of the owner;

(D) Is the agent of the owner for the purpose of managing, controlling or collecting rents; or

(E) Is entitled to control or direct the management or disposition of the property.

(2) "Vacant building" means a building or other structure that is unoccupied, or unsecured and occupied by one or more unauthorized persons for an amount of time as determined by the ordinance. A new building under construction or a building that by definition is exempted by ordinance of the municipality, is not deemed a vacant building. The governing body of a municipality, on a case-by-case basis, upon request by the property owner, shall exempt a vacant building from registration upon a finding for good cause shown that the person will be unable to occupy the building for a determinant period of time.

(3) "Vacant property" means a property on which no building is erected and no routine activity occurs.

(c) An owner of real property subject to registration and maintenance requirements may be charged a fee or fees as provided by ordinance. The ordinance shall provide administrative procedures for the administration and enforcement of registration and payment and collection of registration fees.

(d) The ordinance may require that when the owner of the vacant building or property resides outside of the state that the owner provide the name and address of a person who resides within the state who is authorized to accept service of process and notices of fees due under this section on behalf of the owner and who is designated as a responsible, local party or agent for the purposes of notification in the event of an emergency affecting the public health, safety or welfare.

(e) The ordinance may authorize the municipality to institute a civil action against the property owner and/or file a lien on real property for unpaid and delinquent vacant building registration fees. Before any lien is filed, the municipality shall give notice to the property owner or owner's agent, by certified mail, return receipt requested, that the municipality will file the lien unless the delinquent fees are paid by a date stated in the notice, which must be no less than thirty days from the date the notice is received by the owner or the owner's agent, which shall be the date of delivery shown on the signed certified mail return receipt card. The ordinance may provide for alternative means of service when service cannot be obtained by certified mail.

(f) The ordinance may require that the owner maintain the vacant building or property to a standard deemed reasonable by the governing body. The ordinance may include authority for the municipality, following notice to the owner, to act to bring the vacant building or property into compliance with the standard, or otherwise eliminate the public nuisance caused by any noncomplaint conditions: Provided, That nothing in this section is to be interpreted to impose a duty, obligation or requirement that a municipality must undertake such repairs, demolition or maintenance measures which remain as obligations and responsibilities of the owner. Cost of the repairs, demolition and maintenance and related legal and administrative costs incurred by the municipality are to be paid by the owner. Collection of these costs may be enforced in civil proceedings against the owner.

(g) The ordinance shall permit a property owner to challenge any determination made pursuant to the ordinance. The administrative procedures adopted pursuant to the ordinance shall include the right to appeal to the circuit court of the county in which the property is located.

(h) The governing body of a municipality shall deposit the fee into a separate account, which shall be used to:

(1) Improve public safety efforts, especially for police and fire personnel, who most often contend with the dangerous situations manifested in vacant properties;

(2) Monitor and administer this section; and

(3) Repair, close or demolish a vacant structure as authorized by section sixteen of this article.

§8-12-16d.  Additional powers and duties of municipalities; areas of special or unique interest.

A municipality may designate areas of special or unique interest, with sites, buildings and structures within those areas, which are of local, regional, statewide or national significance.  An area that has been so designated does not limit the use of nor require any alteration of any privately owned property in the area for any purpose. The municipality may also publish a register setting forth information concerning those areas; place markers on private property only with the consent of the property owners; place markers on public property and along highways or streets designating those areas; seek and accept gifts, bequests, endowments and funds to accomplish the purpose of this section; sell, lease or alter property it owns in or near the designated areas; seek the advice and assistance of individuals, groups and departments and governmental agencies; and seek codesignation of areas with a county commission where an area is to be designated in each jurisdiction.

§8-12-17. Sale or lease of municipal public utility.

NOTE: West Virginia Code §8-12-17 was amended by two bills passed during the 2020 Regular Session of the Legislature. When two acts of the Legislature amend the same section of the Code without express recognition in the bill of the action of the other bill, the Legislative Manager makes no determination as to the appropriate, legal effect of the two acts. Therefore, BOTH versions of this section are set out below.

Senate Bill 551 (passed last on March 7, 2020) amended West Virginia Code §8-12-17 to read as follows:

In any case where a municipality owns a gas system, an electric system, a waterworks system, a sewer system, or other public utility and a majority of not less than 60 percent of the members of the governing body thereof shall deem it for the best interest of such municipality that such utility be sold or leased, the governing body may so sell or lease such gas system, electric system, waterworks system, sewer system, or other public utility upon such terms and conditions as said governing body in its discretion considers in the best interest of the municipality: Provided, That such sale or lease may be made only upon: (1) The publication of notice of a hearing before the governing body of the municipality, as a Class I legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code, in a newspaper published and of general circulation in the municipality, such publication to be made not earlier than 20 days and not later than seven days prior to the hearing; and (2) the approval by the Public Service Commission of West Virginia. The governing body, upon the approval of the sale or lease by a majority of its members of not less than 60 percent of the members of the governing body, shall have full power and authority to proceed to execute or effect such sale or lease in accordance with the terms and conditions prescribed in the ordinance approved as aforesaid, and shall have power to do any and all things necessary or incident thereto: Provided, however, That if at any time after such approval and before the execution of the authority under the ordinance, any person should present to the governing body an offer to buy such public utility at a price which exceeds by at least five percent the sale price which shall have been so approved and authorized or to lease the same upon terms which the governing body, in its discretion, shall consider more advantageous to the municipality than the terms of the lease which shall have been previously approved as aforesaid, the governing body shall have the power to accept such subsequent offer, and to make such sale or such lease to the person making the offer, upon approval of the offer by a majority of not less than 60 percent of the members of the governing body; but, if a sale shall have been approved by the governing body as aforesaid, and the subsequent proposition be for a lease, or, if a lease shall have been approved by the governing body, and the subsequent proposition shall be for a sale, the governing body shall have the authority to accept the same upon approval of the offer by a majority of not less than 60 percent of the members of the governing body. The person making such proposition shall furnish bond, with security to be approved by the governing body, in a penalty of not less than 25 percent of such proposed bid, conditioned to carry such proposition into execution, if the same shall be approved by the governing body. In any case where any such public utility shall be sold or leased by the governing body as hereinabove provided, no part of the moneys derived from such sale or lease shall be applied to the payment of current expenses of the municipality, but the proceeds of such sale or lease shall be applied in payment and discharge of any indebtedness created in respect to such public utility, and in case there be no indebtedness, the governing body, in its discretion, shall have the power and authority to expend all such moneys when received for the purchase or construction of firefighting equipment and buildings for housing such equipment, a municipal building or city hall, and the necessary land upon which to locate the same, for capital investments in public works projects, vehicles and equipment, including without limitation law-enforcement vehicles and equipment, for the demolition of dilapidated and abandoned buildings, for the construction of paved streets, avenues, roads, alleys, ways, sidewalks, sewers, stormwater systems, floodwalls, and other like permanent improvements, for fulfilling municipal pension and other post-employment benefit obligations, for reducing taxes, and for no other purposes. In case there be a surplus after the payment of such indebtedness, the surplus shall be used as aforesaid.

The requirements of this section shall not apply to the sale or lease of any part of the properties of any such public utility determined by the governing body to be unnecessary for the efficient rendering of the service of such utility

Senate Bill 739 (passed first on March 7, 2020) amended West Virginia Code §8-12-17 to read as follows:

In any case where a municipality owns a gas system, an electric system, a waterworks system, a sewer system, or other public utility and a majority of not less than 60 percent of the members of the governing body thereof determines it for the best interest of the municipality that the utility be sold or leased, the governing body may so sell or lease the gas system, electric system, waterworks system, sewer system, or other public utility upon such terms and conditions as the governing body in its discretion considers in the best interest of the municipality: Provided, That the sale or lease may be made only upon: (1) The publication of notice of a hearing before the governing body of the municipality, as a Class I legal advertisement in compliance with §59-3-1 et seq. of this code, in a newspaper published and of general circulation in the municipality, the publication to be made not earlier than 20 days and not later than seven days prior to the hearing; and (2) the approval by the Public Service Commission of West Virginia. The governing body, upon the approval of the sale or lease by a majority of its members of not less than 60 percent of the members of the governing body, shall have full power and authority to proceed to execute or effect the sale or lease in accordance with the terms and conditions prescribed in the ordinance approved as aforesaid, and shall have power to do any and all things necessary or incident thereto: Provided, however, That if at any time after the approval and before the execution of the authority under the ordinance, any person should present to the governing body an offer to buy the public utility at a price which exceeds by at least five percent the sale price which shall have been so approved and authorized or to lease the same upon terms which the governing body, in its discretion, shall consider more advantageous to the municipality than the terms of the lease which shall have been previously approved as aforesaid, the governing body shall have the power to accept the subsequent offer, and to make the sale or the lease to the person making the offer, upon approval of the offer by a majority of not less than 60 percent of the members of the governing body; but, if a sale shall have been approved by the governing body as aforesaid, and the subsequent proposition be for a lease, or, if a lease shall have been approved by the governing body, and the subsequent proposition shall be for a sale, the governing body shall have the authority to accept the same upon approval of the offer by a majority of not less than 60 percent of the members of the governing body. The person making the proposition shall furnish bond, with security to be approved by the governing body, in a penalty of not less than 25 percent of the proposed bid, conditioned to carry the proposition into execution, if the same shall be approved by the governing body. In any case where any such public utility shall be sold or leased by the governing body as hereinabove provided, no part of the moneys derived from the sale or lease shall be applied to the payment of current expenses of the municipality, but the proceeds of the sale or lease may be applied in payment and discharge of any indebtedness created in respect to the public utility, and in case there be no indebtedness, the governing body, in its discretion, shall have the power and authority to expend all such moneys when received for the purchase or construction of firefighting equipment and buildings for housing the equipment, a municipal building, or city hall, and the necessary land upon which to locate the same, for capital investments in public works projects, vehicles and equipment and law-enforcement vehicles and equipment, for the demolition of dilapidated and abandoned buildings, or for the construction of paved streets, avenues, roads, alleys, ways, sidewalks, sewers, storm water systems, floodwalls, and other like permanent improvements, for fulfilling municipal pension and other post-employment benefit obligations, or for reducing taxes, and for no other purposes. In case there be a surplus after the payment of the indebtedness, the surplus shall be used as aforesaid.

The requirements of this section shall not apply to the sale or lease of any part of the properties of any such public utility determined by the governing body to be unnecessary for the efficient rendering of the service of the utility.

§8-12-18. Sale, lease, or disposition of other municipal property.

(a) Every municipality, municipal building commission created pursuant to §8-33-1 et seq. of this code, and municipal development authority created pursuant to §7-12-1 et seq. of this code is authorized to sell, lease as lessor, or dispose of any of its real or personal property or any interest therein or any part thereof (other than a public utility which shall be sold or leased in accordance with the provisions of §8-12-17 of this code), as authorized in §1-5-1 et seq. of this code, or to the United States of America or any agency or instrumentality thereof, or to the state or any agency or instrumentality thereof, for a public purpose for an adequate consideration, without considering alone the present commercial or market value of such property.

(b) In all other cases involving a sale, any municipality is hereby empowered and authorized to sell any of its real or personal property or any interest therein or any part thereof for a fair and adequate consideration, the property to be sold at public auction at a place designated by the governing body, or by using an Internet-based public auction service, but before making any sale, notice of the time, terms, and place of sale, together with a brief description of the property to be sold, shall be published as a Class II legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code and the publication area for the publication shall be the municipality. The requirements of notice and public auction shall not apply to the sale of any one item or piece of property of less value than $1,000 and under no circumstances shall the provisions of this section be construed as being applicable to any transaction involving the trading in of municipally owned property on the purchase of new or other property for the municipality and every municipality shall have plenary power and authority to enter into and consummate any trade-in transaction.

(c) In all other cases involving a lease, any municipality is hereby empowered and authorized to lease as lessor any of its real or personal property or any interest therein or any part thereof for a fair and adequate consideration and for a term not exceeding 50 years. Every lease shall be authorized by resolution of the governing body of the municipality, which resolution may specify terms and conditions which must be contained in such lease: Provided, That before any proposed lease is authorized by resolution of the governing body, a public hearing on the proposed lease shall be held by the governing body after notice of the date, time, place and purpose of the public hearing has been published as a Class I legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code and the publication area for the publication shall be the municipality. The power and authority granted in this subsection shall be in addition to, and not in derogation of, any power and authority vested in any municipality under any constitutional or other statutory provision now or hereafter in effect.

PART VII. EXTRATERRITORIAL EXERCISE OF POWERS

AND AUTHORITY.

§8-12-19. Extraterritorial exercise of powers and authority.

Wherever the powers and authority granted in this chapter cannot be reasonably and efficiently exercised by confining the exercise thereof within the corporate limits of the municipality, the powers and authority of the municipality shall extend beyond the corporate limits to the extent necessary to the reasonably efficient exercise of such powers and authority within the corporate limits. Such powers and authority, unless otherwise provided in this code or elsewhere in law, shall not, however, extend more than one mile beyond the corporate limits, and such powers and authority shall not extend into the corporate limits of another municipality without the consent of the governing body thereof.

§8-12-20. Authorizing municipalities to enact Adopt-A-Street programs.

(a) In addition to all other powers and duties conferred by law upon municipalities, municipalities are empowered to enact municipality Adopt-A-Street programs.

(b) The state Adopt-A-Highway Program was established in the late 1980s to improve the quality of the state’s environment by encouraging public involvement in the elimination of highway litter. That program is cosponsored by the Division of Highways and the Department of Environmental Protection, REAP Program. Its objective is to save taxpayer money by increasing public awareness and to serve as an educational tool by focusing on the consequences of littering. The program offers volunteers the opportunity to take charge of their own environment by making a positive effort to create a cleaner, more aesthetic place in which to live.

In West Virginia, there are currently 25,000 volunteers who regularly pick up litter on 4,000 miles of highway. They have been responsible for removing more than 40 million pounds of litter since the program began.

(c) As with the state program, individuals, families, churches, businesses, schools, civic organizations, government agencies, scouting groups, fraternities, and communities may participate in a municipality’s Adopt-A-Street program. Anyone who is at least 12 years old may participate. Any street that is maintained by that municipality is eligible for adoption, with the exception of interstates and streets deemed unsafe. Volunteers may select a street to adopt and then have it approved by the municipality, or they may ask the municipality to suggest an adoptable street. Alleys, dirt roads, and streets off the beaten path, as well as major streets, may be adopted. Adopted streets must be at least six blocks long.

(d) Adoptions are for a period of two years, during which time three cleanups are required per year. As volunteers pick up litter, bags that have been filled are placed on street sides for removal and disposal by the municipality. Garbage bags, safety vests, safety training, traffic warning signs, and gloves shall be furnished by the municipality.

(e) Adopted streets may be identified by a sign at each end of the section bearing the Adopt-A-Street logo and the name of the adopting entity. Volunteers who complete six required litter pickups within the two-year contract period are awarded a certificate of accomplishment signed by the mayor of the municipality.

PART I. POWERS OF TAXATION.

§8-13-1. General property and benefit taxes.

Every municipality shall have plenary power and authority:

(1) To levy and collect taxes on real and personal property for any municipal purpose within the limitations and subject to the classifications prescribed by the Constitution and the general law of this state; and the assessment, levy and collection of such taxes shall be governed by the provisions of chapters eleven and eleven-a of this code; and

(2) To finance public improvements by the levy and collection of special assessments or other benefit taxes in the manner and to the extent permitted by article eighteen of this chapter and by any other general law. The entire cost of sidewalk construction, including curbing, may be imposed upon the owners of abutting property and made a lien thereon which shall have priority over all other liens except tax liens.

§8-13-2. Correcting erroneous tax levy.

Upon the petition of interested persons, as provided in chapter eleven of this code for superseding levies, the circuit court of the county in which the municipality or the major portion of the territory thereof is located may supersede a levy made by such municipality, in the same manner, and to the same effect, as provided in said chapter. The court, if it deem proper to do so, may require security for costs.

§8-13-3. Hotel occupancy tax.

Each Class I city shall have plenary power and authority to levy and collect an excise tax upon the occupancy of hotel rooms within the corporate limits of such city; but the rate of such tax shall not exceed three percent of the cost of the hotel room or rooms. The tax shall be levied on the person paying the consideration for the occupancy of the hotel room and shall be collected by the hotel as part of the consideration paid for the use of the hotel room. The tax shall not be levied on any person paying the consideration for the occupancy of a hotel room for ninety or more consecutive days.

For the purpose of this section and any ordinance enacted pursuant thereto, the term "hotel" means any building or buildings in which the public may, for a consideration, obtain sleeping accommodations, including, but not limited to, hotels, motels, inns or courts. The term "hotel" shall not be construed to mean any hospital, sanitarium, extended care facility, nursing home or university or college housing unit.

All revenues collected by a Class I city from any such hotel occupancy tax shall be deposited in the General Revenue Fund of such city and expended for the following purposes and none other: (1) Planning, construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement, equipment, maintenance, repair and operation of convention facilities including, but not limited to, arenas, Auditoriums, civic centers and convention centers; (2) the payment of principal or interest or both on municipal bonds issued pursuant to the provisions of article sixteen of this chapter, the proceeds from the sale of which were used to finance convention facilities; (3) the promotion of conventions; or any combination of the foregoing.

The ordinance of any Class I city imposing any such hotel occupancy tax shall (1) specify the minimum number of hotel rooms which a hotel must have in order for the occupancy of such hotel to be subject to the tax herein authorized; (2) specify the rate of tax, which shall not exceed three percent of the cost of the hotel room or rooms; (3) provide the manner in which the occupancy tax shall be collected and remitted to such Class I city; and (4) provide such other provisions as are necessary for the proper administration and enforcement of the tax.

§8-13-4. Municipal license and tax thereon when state license required.

(a) Whenever anything, for which a state license is required, is to be done within the corporate limits of any municipality, the governing body shall have plenary power and authority, unless prohibited by general law, to require a municipal license and for the use of the municipality to impose a reasonable tax which may not exceed the amount of the state license tax. Upon proper application for a municipal license and payment of the prescribed reasonable tax by any person who has a valid and subsisting state license, the municipal license shall be issued.

(b) Except where a business license tax or fee has been established by the West Virginia Code, the governing body of a municipality may, in lieu of the provisions of subsection (a), enact an ordinance creating an annual general municipal business license for anything which requires a state license that is done within the corporate limits of a municipality, the tax for which may not exceed twenty dollars.

§8-13-5. Business and occupation or privilege tax; limitation on rates; effective date of tax; exemptions; activity in two or more municipalities; administrative provisions.

NOTE: West Virginia Code §8-13-5 was amended by two bills passed during the 2022 Regular Session of the Legislature. When two acts of the Legislature amend the same section of the Code without express recognition in the bill of the action of the other bill, the Legislative Manager makes no determination as to the appropriate, legal effect of the two acts. Therefore, BOTH versions of this section are set out below.

The latter act, House Bill 4636 (passed on March 12, 2022), amended West Virginia Code §8-13-5 to read as follows:

(a) Authorization to impose tax. — (1) Whenever any business activity or occupation, for which the state imposed its annual business and occupation or privilege tax under §11-13-1 et seq. of this code, prior to July 1, 1987, is engaged in or carried on within the corporate limits of any municipality, the governing body thereof shall have plenary power and authority, unless prohibited by general law, to impose a similar business and occupation tax thereon for the use of the municipality.

(2) Municipalities may impose a business and occupation or privilege tax upon every person engaging or continuing within the municipality in the business of aircraft repair, remodeling, maintenance, modification, and refurbishing services to any aircraft, or to an engine or other component part of any aircraft as a separate business activity.

(b) Maximum tax rates. — In no case shall the rate of the municipal business and occupation or privilege tax on a particular activity exceed the maximum rate imposed by the state, exclusive of surtaxes, upon any business activities or privileges taxed under §11-13-2a, 11-13-2b, 11-13-2c, 11-13-2d, 11-13-2e, 11-13-2g, 11-13-2h, 11-13-2i, and 11-13-2j of this code, as those rates were in effect under §11-13-1 et seq. of this code, on January 1, 1959, or in excess of one percent of gross income under §11-13-2k of this code, or in excess of three-tenths of one percent of gross value or gross proceeds of sale under §11-13-2m of this code. The rate of municipal business and occupation or privilege tax on the activity described in subdivision (2), subsection (a) of this section shall be ten one-hundredths of one percent. The rate of municipal business and occupation or privilege tax on the activity of a health maintenance organization holding a certificate of authority under the provisions of §33-25A-1 et seq. of this code, shall not exceed one-half of one percent to be applied solely to that portion of gross income received from the Medicaid program pursuant to Title XIX of the Social Security Act, the state employee programs administered by the Public Employees Insurance Agency pursuant to §5-16-1 et seq. of this code, and other federal programs, for health care items or services provided directly or indirectly by the health maintenance organization, that is expended for administrative expenses; and shall not exceed one half of one percent to be applied to the gross income received from enrollees, or from employers on behalf of enrollees, from sources other than Medicaid, state employee programs administered by the Public Employees Insurance Agency, and other federal programs for health care items or services provided directly or indirectly by the health maintenance organization: Provided, That this tax rate limitation shall not extend to that part of the gross income of health maintenance organizations which is received from the use of real property other than property in which any company maintains its office or offices in this state, whether the income is in the form of rentals or royalties. This provision concerning the maximum municipal business and occupation tax rate on the activities of health maintenance organizations is effective beginning after December 31, 1996. Any payments of business and occupation tax made by a health maintenance organization to a municipality for calendar year 1997 is not subject to recovery by the health maintenance organization. Administrative expenses shall include all expenditures made by a health maintenance organization other than expenses paid for claims incurred or payments made to providers for the benefits received by enrollees.

(c) Effective date of local tax. — Any taxes levied pursuant to the authority of this section may be made operative as of the first day of the then current fiscal year or any date thereafter: Provided, That any new imposition of tax or any increase in the rate of tax upon any business, occupation or privilege taxed under §11-2E-1 et seq. of this code, applies only to gross income derived from contracts entered into after the effective date of the imposition of tax or rate increase, and which effective date shall not be retroactive in any respect: Provided, however, That no tax imposed or revised under this section upon public utility services may be effective unless and until the municipality provides written notice of the same by certified mail to said public utility at least 60 days prior to the effective date of said tax or revision thereof.

(d) Exemptions. — A municipality shall not impose its business and occupation or privilege tax on any activity that was exempt from the state’s business and occupation tax under the provisions of §11-13-3 of this code, prior to July 1, 1987, and determined without regard to any annual or monthly monetary exemption also specified therein: Provided, That on and after July 1, 2007, a municipality may impose its business and occupation or privilege tax on any activity of a corporation, association, or society organized and operated exclusively for religious or charitable purposes that was exempt from the state’s business and occupation tax under the provisions of §11-13-3 of this code, prior to July 1, 1987, but only to the extent that the income generated by the activity is subject to taxation under the provisions of §511 of the Internal Revenue Code of 1986, as amended.

(e) Activity in two or more municipalities. — Whenever the business activity or occupation of the taxpayer is engaged in or carried on in two or more municipalities of this state, the amount of gross income, or gross proceeds of sales, taxable by each municipality shall be determined in accordance with legislative rules as prescribed by the Tax Commissioner. It is the intent of the Legislature that multiple taxation of the same gross income, or gross proceeds of sale, under the same classification by two or more municipalities shall not be allowed, and that gross income, or gross proceeds of sales, derived from activity engaged in or carried on within this state, that is presently subject to state tax under §11-13-2c or §11-13-2h of this code, which is not taxed or taxable by any other municipality of this state, may be included in the measure of tax for any municipality in this state, from which the activity was directed, or in the absence thereof, the municipality in this state in which the principal office of the taxpayer is located. Nothing in this subsection shall be construed as permitting any municipality to tax gross income or gross proceeds of sales in violation of the Constitution and laws of this state or the United States, or as permitting a municipality to tax any activity that has a definite situs outside its taxing jurisdiction.

(f) Where the governing body of a municipality imposes a tax authorized by this section, the governing body may offer tax credits from the tax as incentives for new and expanding businesses located within the corporate limits of the municipality.

(g) Administrative provisions. — The ordinance of a municipality imposing a business and occupation or privilege tax shall provide procedures for the assessment and collection of the tax, which shall be similar to those procedures in §11-13-1 et seq. of this code, as in existence on June 30, 1978, or to those procedures in §11-10-1 et seq. of this code, and shall conform with such provisions as they relate to waiver of penalties and additions to tax.

(h) Timely payment. — Payments for taxes due under this section that are postmarked after the due date by which they are owed shall be considered late and may be subject to late fees or penalties: Provided, That payments that are received by the municipality after the due date, but that were postmarked on or before the due date shall be considered to be on time and shall not be assessed any late fees or penalties.

The earlier act, House Bill 4567 (passed on March 11, 2022) amended West Virginia Code §8-13-5 to read as follows:

(a) Authorization to impose tax. — (1) Whenever any business activity or occupation, for which the state imposed its annual business and occupation or privilege tax under article thirteen, chapter eleven of this code, prior to July 1, 1987, is engaged in or carried on within the corporate limits of any municipality, the governing body thereof shall have plenary power and authority, unless prohibited by general law, to impose a similar business and occupation tax thereon for the use of the municipality.

(2) Municipalities may impose a business and occupation or privilege tax upon every person engaging or continuing within the municipality in the business of aircraft repair, remodeling, maintenance, modification and refurbishing services to any aircraft or to an engine or other component part of any aircraft as a separate business activity.

(b) Maximum tax rates. — In no case shall the rate of such municipal business and occupation or privilege tax on a particular activity exceed the maximum rate imposed by the state, exclusive of surtaxes, upon any business activities or privileges taxed under sections two-a, two-b, two-c, two-d, two-e, two-g, two-h, two-i and two-j, article thirteen of said chapter eleven, as such rates were in effect under said article thirteen, on January 1, 1959, or in excess of one percent of gross income under section two-k of said article thirteen, or in excess of three tenths of one percent of gross value or gross proceeds of sale under section two-m of said article thirteen. The rate of municipal business and occupation or privilege tax on the activity described in subdivision (2), subsection (a) of this section shall be ten one-hundredths of one percent. The rate of municipal business and occupation or privilege tax on the activity of a health maintenance organization holding a certificate of authority under the provisions of article twenty-five-a, chapter thirty-three of this code, shall not exceed one half of one percent to be applied solely to that portion of gross income received from the Medicaid program pursuant to Title XIX of the Social Security Act, the state employee programs administered by the Public Employees Insurance Agency pursuant to article sixteen, chapter five of this code, and other federal programs, for health care items or services provided directly or indirectly by the health maintenance organization, that is expended for administrative expenses; and shall not exceed one half of one percent to be applied to the gross income received from enrollees, or from employers on behalf of enrollees, from sources other than Medicaid, state employee programs administered by the Public Employees Insurance Agency and other federal programs for health care items or services provided directly or indirectly by the health maintenance organization: Provided, That this tax rate limitation shall not extend to that part of the gross income of health maintenance organizations which is received from the use of real property other than property in which any such company maintains its office or offices in this state, whether such income is in the form of rentals or royalties. This provision concerning the maximum municipal business and occupation tax rate on the activities of health maintenance organizations is effective beginning after December 31, 1996. Any payments of business and occupation tax made by a health maintenance organization to a municipality for calendar year 1997 shall not be subject to recovery by the health maintenance organization. Administrative expenses shall include all expenditures made by a health maintenance organization other than expenses paid for claims incurred or payments made to providers for the benefits received by enrollees.

(c) Effective date of local tax. — Any taxes levied pursuant to the authority of this section may be made operative as of the first day of the then current fiscal year or any date thereafter: Provided, That any new imposition of tax or any increase in the rate of tax upon any business, occupation or privilege taxed under section two-e of said article thirteen shall apply only to gross income derived from contracts entered into after the effective date of such imposition of tax or rate increase, and which effective date shall not be retroactive in any respect: Provided, however, That no tax imposed or revised under this section upon public utility services may be effective unless and until the municipality provides written notice of the same by certified mail to said public utility at least sixty days prior to the effective date of said tax or revision thereof.

(d) Exemptions. –

(1) A municipality shall not impose its business and occupation or privilege tax on any activity that was exempt from the state’s business and occupation tax under the provisions of section three, article thirteen of said chapter eleven, prior to July 1, 1987, and determined without regard to any annual or monthly monetary exemption also specified therein: Provided, That on and after July 1, 2007, a municipality may impose its business and occupation or privilege tax on any activity of a corporation, association or society organized and operated exclusively for religious or charitable purposes that was exempt from the state’s business and occupation tax under the provisions of section three, article thirteen of chapter eleven, prior to July 1, 1987, but only to the extent that the income generated by the activity is subject to taxation under the provisions of section 511 of the Internal Revenue Code of 1986, as amended.

(2) Effective July 1, 2023, the municipal business and occupation or privilege tax on the sale of new automobiles that have never been registered in the name of an individual shall be reduced by 50% percent of the total amount of the tax: Provided, That, effective July 1, 2024, the remaining municipal business and occupation or privilege tax on the sale of new automobiles that have never been registered in the name of an individual shall be reduced by an additional 50% of the total amount of the tax: Provided, however, That effective July 1, 2025, the municipal business and occupation or privilege tax on the sale of new automobiles that have never been registered in the name of an individual shall be completely eliminated.  For the purposes of this section an automobile is a self-propelled vehicle used primarily for the transportation of passengers and their effects and operated on the roads and highways by the use of motor vehicle fuel or propelled by one or more electric motors using energy stored in batteries or a combination thereof. An automobile shall include a light-duty truck with an enclosed cabin and an open loading area at the rear and a sport utility vehicle. An automobile does not include a motorcycle.

(e) Activity in two or more municipalities. — Whenever the business activity or occupation of the taxpayer is engaged in or carried on in two or more municipalities of this state, the amount of gross income, or gross proceeds of sales, taxable by each municipality shall be determined in accordance with such legislative regulations as the Tax Commissioner may prescribe. It being the intent of the Legislature that multiple taxation of the same gross income, or gross proceeds of sale, under the same classification by two or more municipalities shall not be allowed, and that gross income, or gross proceeds of sales, derived from activity engaged in or carried on within this state, that is presently subject to state tax under section two-c or two-h, article thirteen, chapter eleven of this code, which is not taxed or taxable by any other municipality of this state, may be included in the measure of tax for any municipality in this state, from which the activity was directed, or in the absence thereof, the municipality in this state in which the principal office of the taxpayer is located. Nothing in this subsection shall be construed as permitting any municipality to tax gross income or gross proceeds of sales in violation of the Constitution and laws of this state or the United States, or as permitting a municipality to tax any activity that has a definite situs outside its taxing jurisdiction.

(f) Where the governing body of a municipality imposes a tax authorized by this section, such governing body shall have the authority to offer tax credits from such tax as incentives for new and expanding businesses located within the corporate limits of the municipality.

(g) Administrative provisions. — The ordinance of a municipality imposing a business and occupation or privilege tax shall provide procedures for the assessment and collection of such tax, which shall be similar to those procedures in article thirteen, chapter eleven of this code, as in existence on June 30, 1978, or to those procedures in article ten, chapter eleven of this code, and shall conform with such provisions as they relate to waiver of penalties and additions to tax.

PART I. POWERS OF TAXATION

§8-13-5a. Public utilities tax.

Every municipality has the plenary power and authority to levy and collect an excise tax on the privilege of purchasing, using or consuming, within the corporate limits of the municipality, public utility services and tangible personal property from public utilities subject to the jurisdiction of the Public Service Commission of West Virginia. The tax is computed on the basis of an amount not to exceed two percent of the gross amount of each periodic statement rendered purchasers or consumers by public utilities: Provided, That sales of tangible personal property such as appliances or the like, as distinguished from the public service supplied, are not included in the gross amount subject to the measure of this tax: Provided, however, That this tax does not apply to sales of telecommunications services to another telecommunications provider for the purposes of access, interconnection or resale to consumers. Charges or fees for items on the periodic statement that are not public utility services, including surcharges for telecommunications relay services for the deaf or hard of hearing and fees for enhanced emergency telephone systems, are not included in the gross amount subject to the measure of this tax. The purchasers or consumers shall pay to the public utilities the amount of the tax levied pursuant to this section which is added to and constitutes a part of the cost of the service or property so purchased or consumed and is collectible as such by the public utilities who shall account to the municipality levying same for all tax paid by the purchasers or consumers pursuant to the provisions of any ordinance imposing the tax.

Any ordinance imposing the tax shall require the collection thereof uniformly from all purchasers and consumers of all the services and property within the corporate limits of the municipality and contain reasonable rules governing the collection thereof by the utilities and the method of its payment and accounting to the municipality: Provided, That the tax is not effective until the municipality gives 60 days written notice by certified mail to any utility doing business therein of the effective date of the ordinance. Any required separation of gross income shall occur in the ordinance whenever necessary to comply with state or federal law: Provided, however, That the tax authorized by this section may not be levied upon charges for telephone services which are paid by the insertion of coins into coin-operated telephones, and specific charges for telephone calls to points outside the taxing municipality: Provided further, That specific charges for telephone calls to points outside the taxing municipality is construed to mean separately itemized or bulk-billed charges for long distance telecommunications service to points outside the local exchange service area. The charges subject to the tax authorized by this section include local usage charges applicable to telephone calls originating within the corporate limits of the municipality which imposes the tax, regardless of where the calls terminate, and also include the federal subscriber line charge.

Notwithstanding any other provisions of the law to the contrary contained in the Code of West Virginia, 1931, as amended, the provisions of this section are in addition to all other taxing authority heretofore granted municipalities.

§8-13-6. Amusement tax.

Every municipality shall have plenary power and authority to levy and collect an admission or amusement tax upon any public amusement or entertainment conducted within the corporate limits thereof for private profit or gain. The tax shall be levied upon the purchaser and added to and collected by the seller with the price of admission, or other charge for the amusement or entertainment. The tax shall not exceed two percent of the admission price or charge, but a tax of 1¢ may be levied and collected in any case.

Any ordinance imposing such tax shall contain reasonable rules and regulations governing the collection thereof by the seller and the method of his payment and accounting therefor to the municipality.

§8-13-7. Tax on purchases of intoxicating liquors in municipalities; private club fees.

(a) (1) Every municipality shall have plenary power and authority to levy and collect a tax upon all purchases within such municipality of intoxicating liquors from the Alcohol Beverage Control Commissioner, from any person licensed to sell wine at retail to the public under the provisions of article eight, chapter sixty of this code, or from distributors licensed to sell or distribute wine pursuant to said article: Provided, That no municipality shall have authority to levy or collect any such tax on the intoxicating liquors sold by or purchased from holders of a license issued under the provisions of article seven, chapter sixty of this code: Provided, however, That no municipality shall have authority to levy or collect any such tax on purchases within such municipality of intoxicating liquors or wine in the original sealed package for the purpose of resale in the original sealed package if the final purchase of such intoxicating liquors or wine is subject to the tax imposed under this section, under section nine-d, article three, chapter sixty of this code, or under section twenty-one, article three-a of said chapter. This section shall not be interpreted to authorize a purchase for resale exemption in contravention of section nine-a, article fifteen, chapter eleven of this code. The tax shall be levied upon the purchaser and shall be added to and collected with the price of purchase. The tax shall not exceed five percent of the purchase price.

(2) A copy of any ordinance imposing the tax authorized by this section shall be certified by the mayor of the municipality to the West Virginia Alcohol Beverage Control Commissioner and to the Tax Commissioner. The West Virginia Alcohol Beverage Control Commissioner by appropriate rules and regulations shall provide for the collection of such tax upon all purchases within such municipality of intoxicating liquors from the Alcohol Beverage Control Commissioner, from any person licensed to sell wine at retail pursuant to the provisions of article eight, chapter sixty of this code, or from distributors licensed to sell or distribute wine pursuant to said article, and for distribution thereof to the respective municipalities for which the same shall be collected. Such rules and regulations shall provide that all such taxes shall be deposited with the State Treasurer and distributed quarterly by the Treasurer upon warrants of the Auditor payable to the municipality.

(3) Every municipality shall have plenary power and authority to levy and collect a fee from any private club licensee whose premises are situate therein as authorized in section seven, article seven, chapter sixty of this code.

(b) For purposes of this section:

(1) “Original sealed package” means an original package, as defined in this article, bearing an unbroken seal, as defined in this article. For purposes of this article, the term “original sealed package” does not mean or include a case, shipping box, carton, bottle caddy, cargo container, or any other packaging or container that is not in immediate physical contact with its liquid contents and which is not a “container” as defined in this article;

(2) “Original package” means that container, as defined in this article, into which the manufacturer or bottler of a given liquor or wine first placed a given wine or liquor immediately after it was produced, which is intended by the manufacturer or bottler to be the container in which such wine or liquor is to be sold;

(3) “Seal” means a piece of wax, foil, metal, plastic or paper affixed to a container of liquor or wine in such a way that the seal must be broken when the container is opened. The purpose of a seal is to show evidence of opening, tampering or alteration of the container. A seal bears some combination of embossed, printed, engraved or impressed emblems, figures, symbols, words, trademarks, stamps, medallions, marks, or letters for attestation or evidence of authenticity. A seal is typically affixed to a package or container by the manufacturer or bottler of a given wine or liquor. The term “seal” may include a seal provided by or specified by this state and required by law to be affixed to a container of liquor or wine; and

(4) “Container” means a bottle, boxed wine box (including the liner, bag or bladder thereof), cask, can, jug or other holder of liquor or wine, which is in immediate physical contact with the liquid contents, and which is the only means by which its liquid contents are prevented from flowing or leaking out of the holder, and which is intended to be the container in which such wine or liquor is to be sold to final consumers.

§8-13-8. License tax on horse racing and dog racing.

Every municipality within the corporate limits of which a horse racetrack or dog racetrack is located in whole or in part shall have plenary power and authority to impose upon the operator of the track a daily license tax for the privilege of conducting horse racing or dog racing within the corporate limits of the municipality. Such daily license tax shall not exceed the amount of the daily license tax due from such operator to the state under the provisions of article twenty-three, chapter nineteen of this code. The daily license tax hereby authorized shall not be applicable to any local, county or state fair, horse show or agricultural or livestock exposition at which horse racing or dog racing is conducted for not more than six days. A municipal license tax on horse racing or dog racing may be imposed under the provisions of this section but not under the provisions of section four of this article.

§8-13-9. Motor vehicle operator's tax.

Every municipality shall have plenary power and authority to levy and collect an annual motor vehicle operator's license tax not to exceed $2. The tax shall apply only to inhabitants of the municipality.

§8-13-10. Domestic animal tax.

Every municipality shall have plenary power and authority to levy and collect an annual license tax upon the privilege of keeping a domestic animal within the corporate limits of the municipality.

§8-13-11. Preservation of prior taxing powers of cities.

Any city may include by charter provision, and may continue to exercise, all powers of taxation, other than property taxation, which were set forth in the special legislative charter of such city in effect on the date of the ratification of the municipal home rule amendment to the Constitution of this state, being section thirty-nine-a, article six of said Constitution, and which are not in conflict with general law.

§8-13-12. Borrowing power.

Every municipality shall have plenary power and authority to borrow money on the general faith and credit of the municipality for any municipal purpose, in the manner and subject to the limitations provided by law for the issuance of general obligation bonds.

§8-13-13. Special charges for municipal services.

(a) Notwithstanding any charter provisions to the contrary, a municipality which furnishes any essential or special municipal service, including, but not limited to, police and fire protection, parking facilities on the streets or otherwise, parks and recreational facilities, street cleaning, street lighting, street maintenance and improvement, sewerage and sewage disposal, and the collection and disposal of garbage, refuse, waste, ashes, trash, and any other similar matter, has plenary power and authority to provide by ordinance for the installation, continuance, maintenance, or improvement of the service, to make reasonable regulations of the service, and to impose by ordinance upon the users of the service reasonable rates, fees, and charges to be collected in the manner specified in the ordinance.

(b) Any sewerage and sewage disposal service and any service incident to the collection and disposal of garbage, refuse, waste, ashes, trash, and any other similar matter is subject to the provisions of Chapter 24 of this code.

(c) A municipality shall not have a lien on any property as security for payments due under subsection (a) of this section except as provided in subsection (d) of this section.

(d) A municipality may enact an ordinance, pursuant to this section, permitting it to file a lien on real property located within the municipal corporate limits for unpaid and delinquent fire, police, or street fees. The ordinance must provide an administrative procedure for the municipality’s assessment and collection of the fees. The administrative procedure must require that, before any lien is filed, the municipality will give notice to the property owner, by certified mail, return receipt requested, that the municipality will file the lien unless the delinquency is paid by a date stated in the notice, which must be no less than 90 days from the date the notice is mailed. The administrative procedure must include the right to appeal to the circuit court of the county in which the real property is located. The circuit court shall consider the appeal under its general authority, including but not limited to §51-2-2(f) of this code.

(e) Notwithstanding the provisions of §8-11-4 of this code, any ordinance enacted or substantially amended under the provisions of this section shall be published as a Class II legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code. The publication area for the publication is the municipality.

(f) In the event 30 percent of the qualified voters of the municipality, by petition duly signed by them in their own handwriting and filed with the recorder of the municipality within 45 days after the expiration of the publication, protest against the ordinance as enacted or amended, the ordinance shall not become effective until it is ratified by a majority of the legal votes cast by the qualified voters of the municipality at a regular municipal election or special municipal election, as the governing body directs. Voting shall not take place until after notice of the submission is given by publication as provided in subsection (e) of this section.

(g) The powers and authority granted to municipalities and to the governing bodies of municipalities in this section are in addition and supplemental to the powers and authority named in any charters of the municipalities.

(h) Notwithstanding any other provisions of this section, if rates, fees, and charges provided in this section are imposed by the governing body of a municipality for the purpose of replacing, and in amounts approximately sufficient to replace in its general fund amounts appropriated to be paid from ad valorem taxes upon property within the municipality, pursuant to an election duly called and held under the Constitution and laws of the state to authorize the issuance and sale of the municipality’s general obligation bonds for public improvement purposes, the call for the election shall state that the governing body of the municipality proposes to impose rates, fees, and charges in specified amounts under this section for the use of one or more of the services specified in subsection (a) of this section, which shall be related to the public improvement proposed to be made with the proceeds of the bonds, no notice, publication of notice, or referendum, or election or other condition or prerequisite to the imposition of the rates, fees, and charges shall be required or necessary other than the legal requirements for issuance and sale of the general obligation bonds.

(i) Payments for rates, fees, and charges due under this section that are postmarked after the due date by which they are owed shall be considered late and may be subject to late fees or penalties: Provided, That payments that are received by the municipality after the due date, but that were postmarked on or before the due date shall be considered to be on time and shall not be assessed any late fees or penalties.

PART IV. PENALTIES.

§8-13-14. Penalties.

Every municipality shall have plenary power and authority to provide, by ordinance, penalties for the violation of any ordinance enacted pursuant to the provisions of this article.

§8-13-15. Collection of municipal taxes, fines and assessments.

Unless otherwise provided, it shall be the duty of the treasurer of the municipality or other individual who may be designated by general law, by charter provisions or by the governing body, to collect and promptly pay into the municipal treasury all taxes, fines, special assessments or other moneys due the municipality. All such taxes, fines, special assessments (except assessments for permanent or semipermanent public improvements) and other moneys due the municipality are hereby declared to be debts owing to the municipality, for which the debtor shall be personally liable, and the treasurer, or other individual so designated, may enforce this liability by appropriate civil action in any court of competent jurisdiction, and is hereby vested with the same rights to distrain for the same as is vested in the sheriff for the collection of taxes. Such treasurer or other individual shall give a bond, conditioned according to law, in such penalty and with such security as the governing body may require: Provided, That nothing in this article shall prohibit the payment of taxes, fines, special assessments or other moneys due the municipality by credit or check card. The municipality or municipal court may set a fee to be added to each transaction equal to the charge paid by the municipality for the use of the credit or check card by the debtor: Provided, That the municipality is required to obtain three bids and use the lowest qualified bid received. Provided, however, That if a municipality has obtained credit card services, the municipal court may be added to that service without receiving bids for that service. The municipality or municipal court shall disclose the amount of the fee to the debtor prior to the transaction and no other fees for the use of a credit or check card may be imposed upon the debtor. Acceptance of a credit or check card as a form of payment shall be in accordance with the rules and requirements set forth by the credit or check card provider. Allowing for the collection of these funds by credit or check card shall be at the discretion of the municipality or municipal court.

§8-13-15a. Providing for payment at banking institutions.

Notwithstanding any other provision of this code the treasurer of the municipality, or other individual who may be designated by general law, by charter provision or by the governing body, to collect and promptly pay into the municipal treasury all taxes, fines, special assessments and other moneys due the municipality, may enter into a contract with one or more banking institutions, as defined in section two, article one, chapter thirty-one-a of this code, doing business in the municipality for the purpose of receiving payment of municipal taxes, fines, assessments and other moneys.

Any such contract shall specify the manner in which the taxes, fines, assessments and other moneys received shall be paid over to the municipality and a method for verification by the treasurer of the municipality of all amounts received pursuant to the contract. The contract may provide for the payment of a reasonable fee for the provision of such services by the banking institutions.

§8-13-16. Remedies for failure to collect, account for or pay over moneys.

If the treasurer, or other individual designated, shall fail to collect, account for or pay over all or any of the moneys with which he may be chargeable, belonging to the municipality, according to the conditions of his bond and the orders of the governing body, it shall be lawful for the governing body to recover the same, in the name of the municipality, by civil action in the circuit court of the county in which the municipality or the major portion of the territory thereof is located, or, where the sum does not exceed $300, by suit before a justice of the district in which the municipality or the major portion of the territory thereof is located, against the treasurer, or other designated individual, or his sureties, or any or either of them, or his or their executors or administrators.

PART VI. ACCOUNTING PRINCIPLES; FUNDS; DISBURSEMENTS.

§8-13-17. Reports, etc., to conform to fiscal year.

All reports, settlements, accounts and statements of municipalities which are now, or which may hereafter be, required by law shall be kept and made to conform to the fiscal year.

§8-13-18. Audits and accounts.

The provisions of article nine, chapter six of this code shall apply to every municipality. By charter provision or ordinance, provision may be made for a system of budgeting, accounting and record keeping, and for the conduct of the transactions of the municipality, but any such provision shall not conflict with said article nine, chapter six or with the regulations or orders promulgated thereunder by the State Tax Commissioner.

§8-13-19. Capital reserve fund.

The governing body of every municipality shall have plenary power and authority to establish a special fund to be known as the "capital reserve fund." The fund shall consist of unexpended balances of other funds which may be transferred to the fund, with the approval of the State Tax Commissioner, at the end of the fiscal year, and any other moneys authorized by law to be used for the purposes of the fund.

The fund shall be used, from time to time, for the construction, reconstruction, purchase or replacement of, or addition to, municipal buildings, public works, equipment, machinery, motor vehicles or other capital assets. Expenditures shall be made from the fund only in accordance with an appropriation made pursuant to the annual budget.

If a municipality accumulates its capital reserve fund for more than two years, the proceeds of the fund shall be transmitted to the state sinking fund commission on or before September 1, of each year. The proceeds of the fund may be withdrawn by the municipality upon reasonable notice in writing to the state sinking fund commission.

§8-13-19a. Special account for federal and state grants-in-aid authorized.

In addition to the special fund account authorized by the provisions of section nineteen of this article, the governing body of every municipality shall have plenary power and authority to establish a special account for the deposit of funds received from and granted by the United States of America or the State of West Virginia and shall provide for the expenditure and appropriation of such funds in accordance with the applicable laws and regulations promulgated by the governmental authority making such grants. The funds so received and held in such special account shall not be considered as revenue in determining the amount of real and personal property taxes to be levied for the regular fiscal budget of such municipality under the provisions of article eight, chapter eleven of this code.

§8-13-20. Balances in Municipal Bond Commission fund may be transferred or remitted to general fund where bonded indebtedness has been paid or where defeasance or payment of bonded indebtedness has been provided for; use of transferred or remitted funds.

(a) As used in this section, unless the context in which used clearly requires a different meaning, the word "commission" means the West Virginia Municipal Bond Commission.

(b) Every municipality shall have plenary power and authority to transfer to the General Fund of such municipality:

(1) Any unexpended balances of funds raised to pay the interest on and create sinking funds for any bonded indebtedness when the bonded indebtedness for the payment of which such funds were raised has been fully paid and discharged or when provision has been made, as hereinafter provided in subsection (d) of this section, to fully pay and discharge such bonded indebtedness, and

(2) Any balance remaining in any fund levied and collected under authority of any special levy election.

(c) The commission is authorized to remit to the municipality which has issued or issues any bonds, to be credited to the general of such municipality, any balances of funds remaining under the supervision and control of the commission when the bonded indebtedness for the payment of which such funds were raised and paid to the commission has been fully paid and discharged or when provision has been made, as hereinafter provided in subsection (d) of this section, to fully pay and discharge such bonded indebtedness.

(d) All outstanding bonds of any series shall, prior to the maturity date thereof, be deemed to have been fully paid and discharged when there shall have been deposited with the commission:

(1) Either moneys in an amount which shall be sufficient, or

(2) Securities of a quality in which the commission is authorized by law to invest moneys in its possession and control, the principal of an interest on which will provide moneys which, together with the moneys, and investment securities, if any, theretofore deposited with, or acquired by, the commission and held by it for the payment of such bonds and the moneys, if any, then deposited with the commission for such purpose, (i) shall be sufficient to pay when due the principal and interest due and to become due on said bonds on and prior to the maturity date thereof, or (ii) if the outstanding bonds are redeemable and the municipality by ordinance determines to redeem said outstanding bonds, shall be sufficient to pay when due the redemption price, and interest due and to become due on said bonds on and prior to the next redemption date thereof.

The moneys and securities held by the commission pursuant to this subsection (d) shall be held by the commission in trust for the payment of the principal or redemption price, if applicable, of and interest on the bonds for the payment or redemption of which such provision is made: Provided, That any cash received from principal or interest payments on securities so held by the commission, if not then needed for such purpose, shall, to the extent practicable, be reinvested in securities maturing at times and in principal amounts sufficient to pay when due the principal or redemption price, if applicable, of and interest to become due on such bonds on and prior to the redemption date or maturity date thereof, as the case may be, and the interest earned from any such reinvestments shall be paid over to the municipality which issued such bonds, as received by the commission, free and clear of any trust. Any moneys, and the proceeds of any securities, held by the commission in trust for the redemption, if applicable, or for the payment and discharge of any series of bonds, which are in excess of the moneys required to fully pay and discharge such bonds, by redemption, if applicable, or upon maturity thereof, shall also be transferred to the General Fund of the municipality which issued such bonds after such bonds are redeemed, if applicable, or after such bonds are fully paid and discharged at maturity, as the case may be.

(e) In any case where such funds are transferred from sinking funds, or are remitted from the commission, as hereinabove provided, no part of the moneys so transferred or remitted shall be expended for the payment of current expenses of the municipality, but such funds shall be expended as the governing body of such municipality shall elect for the liquidation of existing nonbonded indebtedness, if any, of such municipality or for the liquidation of other bonded indebtedness of such municipality or for any combination of such uses.

§8-13-21. Disposition of funds for public works when materials, etc., not available.

Every municipality which has raised, or which shall hereafter raise, by taxation or otherwise, any funds for any municipal public works, and is unable to obtain the necessary materials and equipment on account of priority restrictions imposed by the federal government on the sale of such materials and equipment, or for any other reason, shall have plenary power and authority, by proper resolution of its governing body, to place said funds in a special fund until such time as such materials and equipment shall become available to said municipality. When such materials and equipment shall become available to said municipality, it shall, by proper resolution of its governing body, direct the use of said funds for the purpose or purposes for which the same were raised.

§8-13-22. Payment of money out of municipal treasury must be by order; signing of orders by mechanical or electrical devices; officers jointly and severally liable for neglect; forgery; penalty.

No money shall be paid out of any municipal treasury except upon an order duly signed by the municipal officers authorized to sign such order: Provided, That such signatures may be made by means of such mechanical or electrical device as the governing body may select. Such mechanical or electrical device for the making of such signatures shall be safely kept in the Office of the Treasurer or recorder so that no one shall have access thereto except the municipal officers authorized to sign such orders, the treasurer or recorder and such of their respective employees as may be authorized to have access thereto.

If the municipal officer or officers charged with the responsibility of keeping the aforementioned mechanical or electrical device wilfully or by neglect permit or make it possible for an unauthorized individual to sign the name of any municipal officer authorized to sign such order by the use of any such mechanical or electrical device upon any warrant, order or check, such municipal officer or officers shall be personally liable, jointly and severally, for the amount of any loss resulting to the municipality.

If any individual other than the individuals authorized so to do shall sign the name of any municipal officer authorized to sign such order by the use of any such mechanical or electrical device, or otherwise, upon any warrant, order or check, he shall be guilty of forgery; and if any individual shall utter or attempt to employ as true such forged warrant, order or check, knowing the same to be forged, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than two nor more than ten years.

§8-13-22a. Investment of municipal funds.

(a) All municipal funds, the investment of which is not governed by other provisions of this code and not required for the payment of current obligations and not otherwise prohibited, may be invested and reinvested in:

(1) Any direct obligation of, or obligation guaranteed as to the payment of both principal and interest by, the United States of America;

(2) Any evidence of indebtedness issued by any United States government agency guaranteed as to the payment of both principal and interest, directly or indirectly, by the United States of America including, but not limited to, the following: Government National Mortgage Association, federal land banks, federal home loan banks, federal intermediate credit banks, banks for cooperatives, Tennessee Valley Authority, United States postal service, farmers home administration, export-import bank, federal financing bank, federal home loan mortgage corporation, student loan marketing association and federal farm credit banks;

(3) Any evidence of indebtedness issued by the Federal National Mortgage Association to the extent such indebtedness is guaranteed by the government National Mortgage Association;

(4) Any evidence of indebtedness that is secured by a first lien deed of trust or mortgage upon real property situate within this state, if the payment thereof is substantially insured or guaranteed by the United States of America or any agency thereof;

(5) Direct and general obligations of this state;

(6) Any undivided interest in a trust, the corpus of which is restricted to mortgages on real property and, unless all of such property is situate within the state and insured, the trust at the time of the acquisition of the undivided interest, is rated in one of the three highest rating grades by an agency which is nationally known in the field of rating pooled mortgage trusts;

(7) Any bond, note, debenture, commercial paper or other evidence of indebtedness of any private corporation or association: Provided, That any such security is, at the time of its acquisition, rated in one of the three highest rating grades by an agency which is nationally known in the field of rating corporate securities: Provided, however, That if any commercial paper or any such security will mature within one year from the date of its issuance, it shall, at the time of its acquisition, be rated in one of the two highest rating grades by any such nationally known agency and commercial paper or other evidence of indebtedness of any private corporation or association shall be purchased only upon the written recommendation from an investment advisor that has over $300 million in other funds under its management;

(8) Negotiable certificates of deposit issued by any bank, trust company, national banking association or savings institution which mature in no more than five years and are fully collateralized;

(9) Interest earning deposits including certificates of deposit, with any duly designated state depository, which deposits are fully secured by a collaterally secured bond as provided in §12-1-4 of this code: Provided, That a banking institution is not required to provide this collaterally secured bond, or other security in lieu of bond, if the public deposits accepted are placed in certificates of deposit meeting the following requirements:

(A) The funds are invested through a designated state depository selected by the municipality;

(B) The selected depository arranges for the deposit of the funds in certificates of deposit in one or more banks or savings and loan associations wherever located in the United States, for the account of the municipality;

(C) The full amount of principal and accrued interest of each certificate of deposit is insured by the Federal Deposit Insurance Corporation;

(D) The selected depository acts as custodian for the municipality with respect to such certificates of deposit issued for the municipality’s account; and

(E) On the same date the public moneys are redeposited by the public depository, the public depository may, in its sole discretion, choose whether to receive deposits, in any amount, from other banks, savings banks, or savings and loan associations.

(10) Mutual funds registered with the Securities and Exchange Commission which have assets in excess of $300 million; and

(11) Deposits with any duly designated state depository that is selected and authorized by the municipality to arrange for the redeposit of the funds through a deposit placement program that meets the following conditions:

(b) On or after the date that the municipal funds are received the selected depository:

(1) Arranges for the redeposit of the funds into deposit accounts in one or more federally

insured banks or savings and loan associations that are located in the United States; and

(2) serves as custodian for the municipality with respect to the funds deposited into such accounts.

(c) Municipal funds deposited in a selected depository in accordance with this section and held at the close of business in the selected depository in excess of the amount insured by the Federal Deposit Insurance Corporation shall be secured in accordance with §12-1-4 of this code.

(d) The full amount of the funds of the municipality redeposited by the selected depository into deposit accounts in banks or savings and loan associations pursuant to this subsection (plus accrued interest, if any) shall be insured by the Federal Deposit Insurance Corporation.

(e) On the same date that the funds of the municipality are redeposited pursuant to this subsection, the selected depository receives an amount of deposits from customers of other financial institutions through the direct placement program that are equal to the amount of the municipality’s funds redeposited by the selected depository.

§8-13-22b. Voluntary direct deposits by municipal treasurer of salaries of employees to banks or other financial institutions.

Any officer or employee of a municipality of West Virginia may authorize that his net wages be deposited directly to his account in any bank or other financial institution within this state. The direct deposits may be authorized on a form provided by the municipality. Upon execution of such authorization and its receipt by the municipal treasurer, the direct deposits shall be made in the manner specified on the form and remitted to the designated bank or other financial institution on or before the day or days the officer or employee is due his net wages. Direct deposit authorizations may be revoked at any time thirty days prior to the date on which the direct deposit is regularly made and on a form to be provided by the municipal treasurer.

§8-13-22c. Restrictions on investment.

Moneys invested as permitted by section eleven of this article are subject to the restrictions and conditions contained in this section:

(1) At no time may more than seventy-five percent of the portfolio of either fund be invested in securities described in subdivision (7), section eleven of this article;

(2) At no time may more than twenty percent of the portfolio of either fund be invested in securities described in subdivision (7), section eleven of this article which mature within one year from the date of issuance thereof;

(3) At no time may more than nine percent of the portfolio be invested in securities issued by a single private corporation or association; and

(4) At no time may more than sixty percent of the portfolio be invested in equity mutual funds under subdivision (10), section eleven of this article.

§8-13-22d. Payment of legitimate uncontested invoices; interest on late payments; "Prompt Pay Act of 1995."

(a) Any properly registered and qualified vendor who supplies services or commodities to any municipality or agency thereof, shall be entitled to prompt payment upon presentation to that municipality or agency of a legitimate uncontested invoice.

(b)(1) Except as provided in subdivision (2) of this subsection, for purchases of services or commodities made on or after July 1, 1995, a check shall be issued in payment thereof within sixty days after a legitimate uncontested invoice is received by the municipality or agency receiving the services or commodities. Any check issued after the sixty days shall include interest at the current rate, as determined by the State Tax Commissioner under the provisions of section seventeen-a, article ten, chapter eleven of this code, which interest shall be calculated from the sixty-first day after the invoice was received by the municipality or agency until the date on which the check is mailed to the vendor: Provided, That this section shall not apply if payment cannot be made within the sixty-day period because of unforeseen budgetary constraints.

(2) For purposes of this subsection, an invoice shall be deemed to be received by a municipality or agency on the date on which the invoice is marked as received by the municipality or agency, or the date of the postmark made by the United States postal service as evidenced on the envelope in which the invoice is mailed, whichever is earlier, unless the vendor can provide sufficient evidence that the invoice was received by the municipality or agency on an earlier date: Provided, That in the event an invoice is received by a municipality or agency prior to the date on which the commodities or services covered by the invoice are delivered and accepted or fully performed and accepted, the invoice shall be deemed to be received on the date on which the commodities or services covered by the invoice were actually delivered and accepted or fully performed and accepted.

(c) The municipal treasurer shall deduct the amount of any interest due for late payment of an invoice from any appropriate account of the agency responsible for the late payment: Provided, That if two or more agencies are responsible for the late payment, the municipal treasurer shall deduct the amount of interest due on a pro rata basis.

(d) The municipality or agency initially receiving a legitimate uncontested invoice shall process the invoice for payment within ten days from its receipt. Failure to comply with the requirements of this subsection shall render the municipality or agency liable for payment of the interest mandated by this section when there is a failure to promptly pay a legitimate uncontested invoice: Provided, That a municipality or agency shall not be liable for payment of interest owed by another municipal agency under this section.

(e) Any other municipality or agency charged by law with processing a municipal agency's requisition for payment of a legitimate uncontested invoice shall either process the claim or reject it for good cause within ten days after such municipality or agency receives it. Failure to comply with the requirements of this subsection shall render the municipal agency liable for payment of the interest mandated by this section when there is a failure to promptly pay a legitimate uncontested invoice: Provided, That a municipal agency shall not be liable for payment of interest owed by another municipal agency under this section.

(f) For purposes of this section, the phrase "municipal agency" means any agency, department, board, office, bureau, commission, authority or any other entity of a municipal corporation.

(g) This section may be cited as the "Prompt Pay Act of 1995."

§8-13-23. Preparation, publication and disposition of financial statements.

(a) Every city, within ninety days after the beginning of each fiscal year, shall prepare on a form to be prescribed by the State Tax Commissioner and cause to be published a sworn statement revealing: (1) The receipts and expenditures of the city during the previous fiscal year; (2) the name of each person who received more than $50 during the previous fiscal year, together with the amount received; and (3) all debts of the city, the purpose for which each debt was contracted, its due date and to what date the interest on the debt has been paid. The statement shall 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 the publication shall be the city: Provided, That all salaries, receipts, payments to each individual vendor and expenditures to employees of municipal offices, companies and departments may be published in the aggregate.

(b) Every city shall transmit to any resident of the city who requests it a copy of any published statement for the fiscal year designated, supplemented by a document listing the names of each person who received less than $50 from any fund during the fiscal year and showing the amount paid to each and the purpose for which paid and an itemization of the salaries, receipts, payments to each individual vendor and expenditures to employees of municipal offices, companies and departments otherwise published in the aggregate.

(c) Every town or village, within one hundred twenty days after the beginning of each fiscal year, shall prepare on a form to be prescribed by the State Tax Commissioner a sworn statement revealing: (1) The receipts and expenditures of the town or village during the previous fiscal year arranged under descriptive headings; (2) the name of each person who received money from any fund during the previous fiscal year, together with the amount received and the purpose for which paid; and (3) all debts of the town or village, the purpose for which each debt was contracted, its due date and to what date the interest on the debt has been paid: Provided, That all salaries, receipts, payments to each individual vendor and expenditures to employees of municipal offices, companies and departments may be published in the aggregate.

(d) Every town or village shall transmit to any resident of the town or village who requests it, a copy of any statement for the fiscal year designated. Any town or village may, if its governing body thereof elects, also publish the statement as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and in that event, the publication area for the publication shall be the town or village.

(e) The statement required by subsection (a) of this section and the statement required by subsection (c) of this section shall be sworn to by the recorder, the mayor and two members of the governing body of the municipality. As soon as practicable following the close of the fiscal year, a copy of any statement required by this section shall be filed by the municipality with the State Tax Commissioner, the clerk of the county commission of the county and the clerk of the circuit court of the circuit in which the municipality or the major portion of the territory of the municipality is located. If the governing body fails or refuses to perform any of the duties set forth in this section, every member of the governing body and the recorder of the governing body concurring in the failure or refusal shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $10 nor more than $100. If any of the provisions of this section are violated, it is the duty of the prosecuting attorney of the county in which the municipality or the major portion of the territory of the municipality is located to immediately present the evidence of the violation to the grand jury if in session, and if not in session he or she shall cause the violations to be investigated by the next succeeding grand jury.

(f) Where in subsections (a), (b) and (c) of this section, salaries, receipts, payments to each individual vendor and expenditures are published in the aggregate, the city, town or village shall, upon written request, provide to any resident of the city, town or village an itemized accounting of the salaries, receipts, payments to each individual vendor and expenditures.

§8-13-24. Notice of delinquency.

Plenary power and authority is hereby conferred upon all municipalities to adopt an ordinance providing for the publication of delinquent business and occupation taxes, subject to the requirements and limitations set forth herein. The ordinance shall set forth the time, place and manner in which the publication shall occur and shall identify the official or officials responsible for conducting and overseeing the publication. Any such ordinance shall provide for notice of the delinquency to the taxpayer at least thirty days prior to publication. Said notice may be by mail to each delinquent taxpayer or may be by general notice of the forthcoming publication by publishing a Class II-0 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 the municipality. No delinquency shall be published by the municipality unless the delinquency has lasted for at least for at least four consecutive quarters.

§8-13-25. Delinquent list preparation.

(a) Notwithstanding the prohibition on disclosure set forth in §11-10-5d(a) of this code, the official designated to conduct publication of delinquent business and occupation taxes provided for by §8-13-24 of this code shall prepare the delinquent list in a manner set forth in the ordinance, so long as it is consistent with the requirements and limitations set forth herein. The ordinance shall require the designated code official adopt policies and procedures designed to verify each delinquency prior to publication.

(b) The delinquent list may include the name of the delinquent taxpayer and the year or years in which the delinquency arises.

(c) For each delinquent list published by the municipality, and prior to the publication, the official designated in the ordinance to oversee or conduct the publication shall take an oath, to be included in or attached to the delinquent list, certified by the city clerk or some other person duly authorized to administer oaths, in form and effect as follows:

“I, ______________________ (municipal official title) of _________________, do swear, to the best of my knowledge and belief, that the foregoing list of delinquent business and occupation taxes to be published on _______________, is complete and accurate, and, as of _________________ (date of certification), that I have not received payment from any of the entities listed for the delinquent amounts included in the list.”

(d) Nothing in this section shall be construed to subject the official designated to conduct publication of delinquent Business and Occupation Taxes under this section, or his or her representative or designee, to the penalties set forth in §11-10-5d(c) or any other penalty set forth in §11-10-5d et seq. of this code.

§8-13-26. Publication and posting of delinquent tax list; costs.

(a) A copy of a delinquent list may be posted at the front door of city hall or other municipal buildings used to conduct municipal business, and may be published as a Class I-0 legal advertisement in the newspaper or other media in compliance with the provisions of article three, chapter fifty-nine of this code, on the municipality’s website or in such other reasonable manner as determined by the municipality to provide notice of the delinquency without incurring unnecessary costs related to the publication.

(b) To cover the costs of preparing, publishing and posting a delinquent list, a reasonable charge may be added to the amount owed by a taxpayer included in any such list, in addition to the tax, interest and penalty already owed by the taxpayer.

§8-13-27. Notice of delinquent lists to city council and retention of list by city.

A copy of each published delinquent list shall be provided to the city council of the municipality not later than the first regular meeting of the city council after the publication. A copy of the delinquent list shall be retained by the official designated in the ordinance for a period of not less than three years.

§8-13A-1. Short title.

This article is known and may be cited as the "Business Improvement District Act."

§8-13A-2. Legislative findings and declaration of purpose.

The Legislature finds that many business districts within the municipalities of this state are economically depressed. This adversely affects the economic and general well-being of the citizens of those municipalities. Establishment of business improvement districts within municipalities of the state, in accordance with the purpose and powers set forth in this article, will serve a public purpose, promote the health, safety, prosperity, security and general welfare of all citizens in the state. It will also promote the vitality of commercial business areas within municipalities, while serving as an effective means for restoring and promoting commercial and other business activity within the business improvement districts created herein. This will be of special benefit to the property within the boundaries of any business improvement district created under this article and will stimulate economic growth and job creation.

§8-13A-3. Definitions.

For purposes of this article, the term:

(a) "Commercial property" means the surface of any taxable real property which is classified for ad valorem real property tax purposes as Class IV. Excluded from the meaning of such term is all real property owned or used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent or charitable purposes, or real property owned or used by public port authorities or wayport authorities;

(b) "District board" means a district board created pursuant to section eleven of this article;

(c) "Property owner" or "owner" means the owner of commercial property as shown by the transfer records in the office of the county clerk of the county in which the property is located. If an owner owns more than one commercial property, that owner is counted as a separate owner for each such commercial property owned. If commercial property is owned by more than one owner, the majority in ownership is treated as the owner for the purpose of this article;

(d) "Services" means governmental functions, programs, activities, facility improvements and other services which a district board is authorized to perform or provide under section five of this article.

§8-13A-4. Authorization.

The governing body of any municipality may, in accordance with the procedures and subject to the limitations set forth in this article, establish one or more business improvement districts within the municipality. The municipality may provide for the administration and financing of additional and extended services to businesses within the districts and for the administration and financing of a continuing program of services within the districts.

§8-13A-5. Services.

Any municipality which has established a business improvement district under this article may provide or cause to be provided such services as will restore or promote the economic vitality of the district and the general welfare of the municipality, including, but not limited to, the following:

(a) Beautification of the district, by means such as landscaping and construction and erection of fountains, shelters, benches, sculptures, signs, lighting, decorations and similar amenities;

(b) Provision of special or additional public services, such as sanitation, security for persons and property and the construction and maintenance of public facilities including sidewalks and other public areas;

(c) Making principal or interest payments on bonds issued by the municipality for public improvements located within and designated to improve the economic viability of the district;

(d) Providing financial support for public transportation and vehicle parking facilities open to the general public;

(e) Constructing, operating and maintaining parking facilities;

(f) Developing plans for the general architectural design of public areas and developing plans and programs for the future development of the district;

(g) Developing, promoting and supporting community events and activities open to the general public;

(h) Providing the administrative costs for a district management program; and

(i) Providing any other services which the municipality or district board is authorized to perform and which the municipality does not also perform to the same extent on a municipality-wide basis.

§8-13A-6. Petition to initiate the procedure for organization, development and designation.

(a) The organization, development and designation of a business improvement district shall be initiated by a petition filed in the office of the clerk of the governing body of the municipality. The petition shall be signed by not less than four owners who own commercial property in the proposed business improvement district having an assessed value as reflected on the county assessor's landbooks of not less than fifty-one percent of the value of all commercial property in the proposed business improvement district.

(b) The petition shall set forth:

(1) The name of the proposed district, including a descriptive name thereof and the words "business improvement district";

(2) A general description of the boundaries and service area of the proposed district;

(3) A general description of the additional or extended services needed within the district; and

(4) A request for the organization of a business improvement district.

§8-13A-7. Appointment of planning committee, issuance of report.

(a) Upon receipt of a petition for the initiation of a business improvement district, the governing body of the municipality shall, within ninety days, appoint a district planning committee consisting of seven members. A majority of the members shall be owners of commercial property situated within the proposed district of the municipality. The committee shall study and develop preliminary plans for the establishment and operation of the proposed district and shall consult with the appropriate officials and agencies of the municipality prior to completing such preliminary plans. Upon completion of the study and development of preliminary plans and, in no event, later than two hundred seventy-five days after its establishment, the committee shall submit to the governing body a written report which:

(1) Describes the boundaries of the proposed district with sufficient specificity to enable the owner of any commercial property in the municipality to determine whether his or her property is located therein. The area proposed for any district must be contiguous with and situated fully within the boundaries of the municipality;

(2) A description of any additional or extended services needed within the district;

(3) A description of the proposed method of financing any planned improvements, including the maximum rate of annual fees that may be imposed upon properties within the proposed district and the manner in which the rate will be imposed. The amount of annual fees may be based upon gross leasable square footage, street front-footage, total gross building or land square footage, or any combination thereof, or on such basis as can reasonably be determined based upon the value of the improvements to the commercial property situated in the district and upon whatever benefits exist relative to the various owners of property situated therein. For the purpose of levying fees, the committee shall make a reasonable classification of all properties within the proposed district;

(4) A recommendation concerning the feasibility and desirability of the proposed business improvement district and any alternative proposal, in the event the committee's recommendation is not in accordance with the original petition: Provided, That, in the event the boundaries of the proposed business improvement district recommended by the committee differs from the boundaries contained in the original petition, the report must also contain an additional petition signed by at least four persons who own commercial property in the proposed business improvement district recommended by the committee. Such commercial property must have an assessed value as reflected on the county assessor's land books of not less than fifty-one percent of the value of all commercial property in the proposed business improvement district;

(5) Such other information as may be requested by the governing body. The municipality may provide staff and technical assistance to the committee.

§8-13A-8. Notice; hearing.

Upon receipt of the planning committee's report, the governing body of the municipality shall set a time and place for a public hearing regarding the creation of any business improvement district. The notice of the public hearing shall be published as a Class I-O legal advertisement in compliance with article three, chapter fifty-nine of this code at least twenty days prior to the scheduled hearing. A copy of the notice shall be sent by certified mail, return receipt requested, not less than twenty days before the hearing, to all owners of commercial property within the proposed district. If any property is shown to be in the name of more than one owner at the same mailing address, a single notice may be mailed, addressed to all owners at that address. In addition to the time and place of the hearing, the notice must also state:

(a) The purpose of the hearing;

(b) The name of the proposed district;

(c) The purpose of the proposed district;

(d) The property proposed to be included in the district; and

(e) The proposed method of financing any costs involved, including the maximum rate of annual fees that may be imposed upon any properties situated within the proposed district.

The hearing shall be held not later than sixty days after receipt of the planning committee's report.

At the time and place set forth in the notice, the governing body shall afford the opportunity to be heard to any owner of real property situated in the proposed district and any residents of the municipality.

§8-13A-9. Creation of district; statement of prohibition on use of fees.

(a) If the governing body of the municipality, following the public hearing, determines it advisable and in the public interest to establish an improvement district, it shall create the district by ordinance as provided for in article eleven of this chapter: Provided, That the governing body may not amend, alter or change in any manner the boundaries of the improvement district as recommended by the planning committee. In addition to all other requirements, the ordinance shall contain the following:

(1) The name of the district and a description of its boundaries;

(2) A summary of any proposed services to be provided within the district and a reasonable estimate of any attendant cost;

(3) The maximum rate of any annual fees that may be imposed upon the commercial properties and the manner in which the rate will be imposed; and

(4) The district boardmembers' terms, their method of appointment and a full description of their powers and duties.

(b) The ordinance shall also state the general intention of the municipality to increase services within the business improvement district and that no fees collected under the authority of the ordinance may be used to reduce, replace or supplant existing funds or services.

§8-13A-10. Petition to repeal ordinance.

Within thirty days following passage of an ordinance creating a business improvement district, the owners of any real property situated in the district may file a petition with the governing body of the municipality in opposition to the continuation of the district. Upon a finding that the petition was signed by owners of commercial property situated in the proposed business improvement district having an assessed value as reflected on the county assessor's land books of not less than fifty-one percent of the value of all commercial property in the business improvement district, the governing body shall repeal the ordinance which established the district, thereby rescinding its creation and development.

§8-13A-11. District board; duties.

(a) The governing body of any municipality that intends to establish a business improvement district, in accordance with this article, shall provide by ordinance for the appointment of a district board to oversee the operations of the improvement district. The board shall be made up of at least seven members, the majority of which shall be owners of commercial property situated in the improvement district.

(b) The district board, in addition to the duties prescribed by the ordinance creating the improvement district, shall submit an annual report to the governing body containing:

(1) An itemized statement of its receipts and disbursements for the preceding fiscal year;

(2) A description of its activities for the preceding fiscal year;

(3) A recommended program of services to be performed or provided within the district for the coming fiscal year; and

(4) A proposed budget to accomplish its objectives.

(c) Nothing in this article prohibits any member of the district board from also serving on the board of directors of a nonprofit corporation with which the municipality may contract to provide specified services within the district.

(d) No member of the district board may receive, either directly or indirectly, compensation for service on the board.

§8-13A-12. Levy of service fees; classification of properties; factors to consider.

(a) Upon receipt of a recommended program of services and a proposed budget from the district board, the governing body of the municipality may annually, by ordinance, levy business improvement service fees which may only be applicable to properties located within the improvement district and only to the extent necessary to fund the budget proposed by the district board. All revenue from the fees shall be placed in a special business improvement district fund and may only be used to fund the services provided under this article. Any surplus in the fund in a fiscal year shall be applied to reduce the amount of service fees required for the next fiscal year.

(b) The ordinance creating a business improvement district may provide for the division of property within the district into two or more zones or uses in the event significant differences exist relative to the property and the improvements. The ordinance may establish different rates of assessment for each zone or use, or may provide that the rate be a certain percentage of the assessment levied in the zone or on the use, subject to the highest rate of assessment.

(c) The amount of the business improvement service fee shall be in addition to any municipality-wide license fees or any other tax, fee or charge levied for the general benefit and use of the municipality.

(d) Each assessment is a lien on the commercial property that is assessed, second only to any state, federal or county taxes levied on that property.

§8-13A-13. Special business improvement district fund.

Any municipality that has established a business improvement district shall establish a special business improvement district fund for each district created within such municipality. Revenue derived from any special assessment fees, gifts, grants, appropriations from the municipality or other sources shall be paid into the fund. Moneys in another municipal fund or funds may be advanced to the special fund only if reimbursement is made to such other fund or funds prior to the end of the fiscal year.

§8-13A-14. Modification of included area; notice; hearing.

(a) The ordinance creating a business improvement district may be amended to include additional property if a petition is filed with the governing body requesting such inclusion. Such petition must be signed by the owners of the commercial property that is being proposed for inclusion in the improvement district. Such property must have an assessed value, as reflected on the assessor's land books, of not less than fifty-one percent of the value of all the property proposed for inclusion.

(b) Upon receipt of the petition, the governing body shall refer the petition to the appropriate district board for which the amendment is sought. The board shall review the petition and, within sixty days, file a report with the governing body recommending either acceptance of the proposed inclusion or rejection of the petition. Additional property may not be included unless it is contiguous with the existing district and situated within the boundaries of the municipality.

(c) Upon receipt of the recommendation from the district board, the governing body shall designate a time and place for a public hearing upon the petition to include additional property. The notice shall meet the requirements set forth in section eight of this article.

(d) At the time and place set forth in the notice, the governing body shall afford the opportunity to be heard to any owners of real property either currently included in or proposed to be added to the existing improvement district and to any other residents of the municipality. The hearing shall be held within sixty days after the governing body's receipt of the district board's recommendation.

(e) All additional property included in a district shall be subject to all fees whether currently existing or thereafter levied.

§8-13A-15. Abolishment and dissolution of district; notice; hearing.

(a) A district may be abolished by the governing body of the municipality following a public hearing upon the proposed abolishment. Notice of such hearing must be provided by first class mail to all property owners within the district and shall be published as a Class I-O legal advertisement in compliance with article three, chapter fifty-nine of this code at least twenty days prior to the public hearing. Upon the abolishment of any improvement district, any funds or other assets, contractual rights or obligations, claims against holders of indebtedness or other financial benefits, liabilities or obligations existing after full payment has been made on all existing contracts, bonds, notes or other obligations of the district, shall be transferred to the municipality. Any funds or other assets so transferred shall be used for the benefit of the area included in the improvement district being abolished.

(b) Notwithstanding any other provision of this article, no business improvement district may exist for a period exceeding ten years unless reinstated pursuant to the provisions of this article. Reinstatement requires compliance with all requirements and procedures set forth herein for the initial development and establishment of a district. No district may issue notes or bonds for funding district projects or improvements that exceed a repayment schedule of ten years. Upon the dissolution of any business improvement district, any funds or other assets, contractual rights or obligations, claims against holders of indebtedness, or other financial benefits, liabilities or obligations existing after full payment has been made on all contracts, bonds, notes or other obligations of the district, shall be transferred to the municipality. Any funds or other assets so transferred shall be used for the benefit of the area included in the improvement district being dissolved.

§8-13B-1.

Repealed.

Acts, 2008 Reg. Sess., Ch. 45.

§8-13C-1. Findings.

The Legislature finds that:

(a) Imposing additional taxes creates an extra burden on the citizens of the state;

(b) Imposing additional taxes can be detrimental to the economy of the state;

(c) Imposing additional taxes is only proper under certain circumstances;

(d) For many municipalities with severe unfunded liabilities of the police and fire pension funds, all available sources of local revenue have been exhausted. Property taxes are at the maximum allowed by the state Constitution and local business and occupation taxes and utility taxes are at the maximum rates allowed by state law. Other fees have reached the economic maximum and are causing relocation of business outside the municipal boundaries;

(e) For many municipalities with severe unfunded police and fire pension fund liabilities, revenue from existing sources has become stagnant over the past few years with no expectation of significant future growth;

(f) For many municipalities with severe unfunded police and fire pension fund liabilities, payments required under state law to fund fire and police pension funds are now close to equaling the city payrolls for police and fire protection and will rise to exceed those payrolls within a ten-year period;

(g) For many municipalities with severe unfunded police and fire pension fund liabilities, payments required under state law to fund fire and police pension funds now constitute a large percentage of those municipalities' total budget and will rise to an even larger percentage of the available revenues in the next ten years. Payment and benefit levels are dictated to the municipalities by state law;

(h) As the required pension payments rise, many of the municipalities with severe unfunded police and fire pension fund liabilities will find it impossible to maintain at minimum levels necessary and proper city services including, but not limited to, police and fire protection, street maintenance and repair and sanitary services;

(i) For some of the municipalities with severe unfunded liabilities of the police and fire pension funds, the combination of the steeply rising pension obligations and the stagnant revenue sources raise the real possibility of municipal bankruptcy in the near and predictable future. If this happens, pensioners would either not receive the full benefits which they have been promised or pressure would be placed on the state to fund these programs;

(j) For a municipality that has the most severe unfunded liability in its pension funds, paying off the unfunded liability in a timely manner would cause tremendous financial hardship and the loss of many services that would otherwise be provided to the municipality's citizens;

(k) Only for a municipality that has the most severe unfunded liability in its pension funds would the imposition of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any combination of those taxes be an appropriate method of addressing the unfunded liability;

(l) Only for a municipality that does not impose or ceases to impose a business and occupation or privilege tax would the imposition of an alternative municipal sales and service tax and an alternative municipal use tax be appropriate;

(m) Only for a municipality that has the most severe unfunded liability in its pension funds would the closure of its existing pension and relief fund plan for policemen and firemen to those newly employed and the creation of a defined contribution plan for newly employed policemen and firemen be appropriate; and

(n) Only for a municipality that has the most severe unfunded liability in its pension funds, that closes its existing pension and relief fund plan for policemen and firemen to those newly employed and that creates a defined contribution plan for newly employed police officers and firefighters, would the issuance of bonds to address the unfunded liability of its existing pension and relief fund plan for policemen and firemen be appropriate.

(o) No amendment to this article enacted during the third extraordinary session of the Legislature held during calendar year 2005 may be interpreted or construed to allow a municipality to adopt by ordinance a sales or use tax, by whatever name called, that imposes either tax prior to July 1, 2008.

§8-13C-2. Definitions.

For the purposes of this article:

(a) "Alternative municipal sales and service tax" means the tax authorized to be imposed by subsection (b), section four of this article only if a municipality does not impose or ceases to impose the business and occupation or privilege tax authorized in section five, article thirteen of this chapter;

(b) "Alternative municipal use tax" means the tax authorized to be imposed by subsection (b), section five of this article only if a municipality does not impose or ceases to impose the business and occupation or privilege tax authorized in section five, article thirteen of this chapter;

(c) "Qualifying municipality" means any municipality, as defined in section two, article one of this chapter:

(1) In which the weighted average of the percentages to which its policemen's and firemen's pension and relief funds are fully funded is three percent or less on the date of adoption of the ordinance imposing the tax; and

(2) That has satisfied the requirements set forth in section eleven of this article;

(d) "Pension relief municipal occupational tax" means the tax authorized to be imposed by section three of this article and for which the use of the proceeds of the tax are restricted by section nine of this article;

(e) "Pension relief municipal sales and service tax" means the tax authorized to be imposed by subsection (a), section four of this article and for which the use of the proceeds of the tax are restricted by section nine of this article;

(f) "Pension relief municipal use tax" means the tax authorized to be imposed by subsection (a), section five of this article and for which the use of the proceeds of the tax are restricted by section nine of this article; and

(g) "Taxable employee" means any individual:

(1) Who holds employment with an employer with a place of business located within the qualifying municipality electing to impose the municipal payroll tax pursuant to this article; and

(2) Whose salaries, wages, commissions and other earned income that would be included in federal adjusted gross income for the year is more than $10,000 per year.

§8-13C-3. Pension relief municipal occupational tax.

(a) Effective on and after July 1, 2005, each qualifying municipality, as defined in section two of this article, has the plenary power and authority to impose, by ordinance, a pension relief municipal occupational tax on taxable employees. Any pension relief municipal occupational tax imposed pursuant to this section shall meet the following requirements:

(1) The tax shall be imposed at a rate of one percent or less;

(2) The tax shall be imposed at a uniform rate; and

(3) The tax rate shall be applied only to salaries, wages, commissions and other earned income of taxable employees that would be included in federal adjusted gross income for the year. The tax rate may not be applied to other forms of income including, but not limited to, intangible income and net profit from a business.

(b) Each employer with a taxable employee, during each pay period, shall withhold from the taxable employee's salary the amount of the tax as computed by applying the appropriate tax rate to the taxable employee's salary during that pay period and remit the withholdings to the appropriate municipal taxing authority.

§8-13C-4. Municipal sales and service taxes.

(a) Pension relief municipal sales tax. -– On and after July 1, 2005, each qualifying municipality, as defined in section two of this article, has the plenary power and authority to impose, by ordinance, a pension relief municipal sales and service tax at a rate not to exceed one percent, subject to the provisions of this article: Provided, That: (1) The tax does not apply to any purchase of tangible personal property, custom software or the results of taxable services in a transaction completed within the corporate limits of the municipality before July 1, 2008, or before such later date specified in the ordinance of the municipality imposing the tax; and (2) the effective date of the tax, or of a change in the rate of the tax, shall be no earlier than the first day of a calendar quarter that at a minimum begins one hundred eighty days after notice of the tax, or of a change in the rate of tax, is provided to the Tax Commissioner as provided in section six of this article.

(b) Alternative municipal sales tax. -– On and after July 1, 2005, notwithstanding subsection (a) of this section, and in addition thereto in the case of a qualifying municipality, any municipality that does not impose, or ceases to impose, the business and occupation or privilege tax authorized by section five, article thirteen of this chapter has the plenary power and authority to impose, by ordinance, an alternative municipal sales and service tax at a rate not to exceed one percent, subject to the provisions of this article: Provided, That: (1) The tax does not apply to any purchase of tangible personal property, custom software or the results of taxable services in a transaction completed within the corporate limits of the municipality before July 1, 2008, or before such later date specified in the ordinance of the municipality imposing the tax; and (2) the effective date of the tax, or of a change in the rate of the tax, shall be no earlier than the first day of a calendar quarter that at a minimum begins one hundred eighty days after notice of the tax, or of a change in the rate of tax, is provided to the Tax Commissioner as provided in section six of this article.

(c) Uniformity of tax base. -– Any municipal sales and service tax imposed under the authority granted by this section is subject to the following:

(1) The base of a municipal sales and service tax imposed pursuant to this section shall be identical to the base of the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of the municipality, subject to the following:

(A) Except for the exemption provided in section nine-f, article fifteen, chapter eleven of this code, all exemptions and exceptions from consumers sales and service tax apply to a municipal sales and service tax imposed pursuant to this section; and

(B) Sales of gasoline and special fuel are not subject to a municipal sales and service tax imposed pursuant to this section;

(2) Any municipal sales and service tax imposed pursuant to this section applies solely to tangible personal property, custom software and services that are sourced to the municipality. The sourcing rules set forth in article fifteen-b, chapter eleven of this code, including any amendments thereto, apply to municipal sales and use taxes levied pursuant to this article.

(d) Notification of Tax Commissioner. -– Any municipality that imposes a municipal sales and service tax pursuant to this section or changes the rate of a municipal sales and service tax imposed pursuant to this section shall notify the Tax Commissioner pursuant to section six of this article.

(e) State level administration required. -– Any municipality that imposes a municipal sales and service tax pursuant to this section may not administer or collect the tax, but shall use the services of the Tax Commissioner to administer, enforce and collect the tax.

(f) Tax in addition to state use tax. -– Any municipal sales and service tax imposed pursuant to this section shall be imposed in addition to the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of the municipality and, except as exempted or excepted, all sales made and services rendered within the boundaries of the municipality shall remain subject to the tax levied by that article.

(g) Tax in addition to special district tax. -– Any municipal sales and service tax imposed pursuant to this section shall be imposed in addition to any tax imposed pursuant to section one, article eighteen, chapter seven of this code, sections six and seven, article thirteen of this chapter and section twelve, article thirty-eight of this chapter.

§8-13C-5. Municipal use tax.

(a) Pension relief municipal use tax. -– On and after July 1, 2005, each qualifying municipality, as defined in section two of this article, that imposes a pension relief municipal sales and service tax pursuant to this article shall impose, by ordinance, a pension relief municipal use tax at the same rate that is set for the pension relief municipal sales and service tax: Provided, That: (1) The tax does not apply to any use of tangible personal property, custom software or the results of taxable services in the corporate limits of the municipality where the first use occurs before July 1, 2008, or before such later date specified in the ordinance of the municipality imposing the tax; and (2) the effective date of the tax, or of a change in the rate of the tax, shall be no earlier than the first day of a calendar quarter that at a minimum begins one hundred eighty days after notice of the tax, or of a change in the rate of tax, is provided to the Tax Commissioner as provided in section six of this article.

(b) Alternative municipal use tax. -– On and after July 1, 2005, each municipality that imposes an alternative municipal sales and service tax pursuant to this article shall impose, by ordinance, an alternative municipal use tax at the same rate that is set for the alternative municipal sales and service tax: Provided, That: (1) The tax does not apply to any use of tangible personal property, custom software or the results of taxable services in the corporate limits of the municipality where the first use occurs before July 1, 2008, or before such later date specified in the ordinance of the municipality imposing the tax; and (2) the effective date of the tax, or of a change in the rate of the tax, shall be no earlier than the first day of a calendar quarter that at a minimum begins one hundred eighty days after notice of the tax, or of a change in the rate of tax, is provided to the Tax Commissioner as provided in section six of this article.

(c) Uniformity of tax base. -– The base of a municipal use tax imposed pursuant to this section shall be identical to the base of the use tax imposed pursuant to article fifteen-a, chapter eleven of this code on the use of tangible personal property, custom software and taxable services within the boundaries of the municipality, subject to the following:

(1) Except for the exemption provided in section nine-f, article fifteen, chapter eleven of this code, all exemptions and exceptions from the use tax apply to a municipal use tax imposed pursuant to this section; and

(2) Uses of gasoline and special fuel are not subject to a municipal use tax imposed pursuant to this section when the use is subject to the tax imposed by article fourteen-c, chapter eleven of this code.

(d) Notification to Tax Commissioner. -– Any municipality that imposes a municipal use tax pursuant to this section or changes the rate of a municipal use tax imposed pursuant to this section shall notify the Tax Commissioner pursuant to section six of this article.

(e) State level administration required. -– Any municipality that imposes a municipal use tax pursuant to this section may not administer or collect the tax, but shall use the services of the Tax Commissioner to administer, enforce and collect the taxes.

(f) Tax in addition to state use tax. -– Any municipal use tax imposed pursuant to this section shall be imposed in addition to the use tax imposed pursuant to article fifteen-a, chapter eleven of this code on the use of tangible personal property, custom software or taxable services within the boundaries of the municipality and, except as exempted or excepted, all use of tangible personal property, custom software or taxable services within the boundaries of the municipality shall remain subject to the tax levied by said article.

(g) Tax in addition to special district tax. -– Any municipal use tax imposed pursuant to this section shall be imposed in addition to any tax imposed pursuant to section one, article eighteen, chapter seven of this code, sections six and seven, article thirteen of this chapter and section twelve, article thirty-eight of this chapter.

§8-13C-5a. Credit for sales tax paid to another municipality.

(a) Credit against municipal use tax. -- A person is entitled to a credit against a use tax imposed by a municipality pursuant to section five of this article on the use of a particular item of tangible personal property, custom software or service equal to the amount, if any, of sales tax lawfully paid to another municipality for the acquisition of that property or service: Provided, That the amount of credit allowed may not exceed the amount of use tax imposed on the use of the property or service in the municipality of use.

(b) Definitions. -- For purposes of this section:

(1) "Municipality" means a municipality, as defined in section two, article one of this chapter, or a comparable unit of local government in another state;

(2) "Sales tax" includes a sales tax or compensating use tax

lawfully imposed on the use of tangible personal property, custom software or a service by the municipality or county, as appropriate, in which the sale or use occurred; and

(3) "State" includes the fifty states of the United States and the District of Columbia but does not include any of the several territories organized by Congress.

(c) No credit is allowed under this section for payment of any sales or use taxes imposed by this state or any other state.

§8-13C-6. Notification to Tax Commissioner; responsibilities of Tax Commissioner; fee; special revenue account; application of state tax law.

(a) Notification to Tax Commissioner. -– Any municipality that imposes a municipal sales and service tax and a municipal use tax pursuant to this article or changes the rate of the taxes shall notify the Tax Commissioner at least one hundred eighty days before the effective date of the imposition of the taxes or the change in the rate of the taxes.

(b) State level administration of taxes. -– The Tax Commissioner is responsible for administering, collecting and enforcing any municipal sales and service tax and any municipal use tax imposed pursuant to this article in the same manner as the state consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code and the state use tax imposed pursuant to article fifteen-a of said chapter.

(c) Fee for services. -– The Tax Commissioner may retain from collections a fee not to exceed the lesser of the cost of the service provided or one percent of the amount of taxes imposed pursuant to this article that are collected by the Tax Commissioner during any fiscal year.

(d) Establishment of special revenue account. -– There is created in the state Treasury a special revenue revolving fund account known as the Tax Department Municipal Sales and Use Tax Operations Fund, which shall be an interest-bearing account. The fund shall consist of any future funds received from fees charged by the Tax Commissioner pursuant to this section and any funds appropriated by the Legislature or transferred by any public agency as contemplated or permitted by applicable federal or state law; and any accrued interest or other return on the moneys in the fund. The balance remaining in the fund at the end of each fiscal year shall remain in the fund and not revert to the state General Revenue Fund.

(e) Application of state sales tax law. -– The state consumers sales and service tax law, set forth in article fifteen, chapter eleven of this code, and the amendments to that article and the rules of the Tax Commissioner relating to the laws shall apply to a municipal sales and service tax imposed pursuant to this article to the extent the rules and laws are applicable.

(f) Application of state use tax law. -- The state use tax law, set forth in article fifteen-a, chapter eleven of this code, and the amendments to that article and the rules of the Tax Commissioner relating to the laws shall apply to a municipal use tax imposed pursuant to this article to the extent the rules and laws are applicable.

(g) Definitions incorporated. -– Any term used in this article or in an ordinance adopted pursuant to this article that is defined in articles fifteen, fifteen-a and fifteen-b, chapter eleven of this code, as amended, shall have the same meaning when used in this article or in an ordinance adopted pursuant to this article, unless the context in which the term is used clearly requires a different result.

(h) Automatic updating. -- Any amendments to articles nine, ten, fifteen, fifteen-a and fifteen-b, chapter eleven of this code shall automatically apply to a sales or use tax imposed pursuant to this article, to the extent applicable.

(i) Administrative procedures. -– Each and every provision of the West Virginia Tax Procedure and Administration Act set forth in article ten, chapter eleven of this code applies to the taxes imposed pursuant to this article, except as otherwise expressly provided in this article, with like effect as if that act were applicable only to the taxes imposed by this article and were set forth in extenso in this article.

(j) Criminal penalties. -– Each and every provision of the West Virginia Tax Crimes and Penalties Act set forth in article nine, chapter eleven of this code applies to the taxes imposed pursuant to this article with like effect as if that act were applicable only to the taxes imposed pursuant to this article and were set forth in extenso in this article.

§8-13C-7. Municipal sales and service tax and use tax fund; deposit and remittance of collections.

(a) There is created a special revenue account in the state Treasury designated the "municipal sales and service tax and use tax fund" which is an interest-bearing account and shall be invested in the manner described in section nine-c, article six, chapter twelve of this code with the interest and other return earned a proper credit to the fund. A separate subaccount within the fund shall be established for each municipality that imposes a municipal sales and service tax and use tax pursuant to this article.

(b) The Tax Commissioner shall deposit all the proceeds from a municipal sales and service tax and a municipal use tax collected for each municipality minus any fee for collecting, enforcing and administering taxes in the appropriate subaccount. All moneys collected and deposited in the fund shall be remitted at least quarterly by the state Treasurer to the treasurer of the appropriate municipality.

§8-13C-8. Printed catalogs.

Local tax rate changes made pursuant to sections four and five of this article apply to purchases from printed catalogs where the purchaser computed the tax based upon the local tax rate published in the catalog only on and after the first day of a calendar quarter after a minimum of one hundred twenty days' notice to the seller.

§8-13C-9. Restriction on use of certain revenues.

(a) All proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax imposed pursuant to this article shall be used solely for one of the following purposes:

(1) Directly reducing the unfunded actuarial accrued liability of policemen's and firemen's pension and relief funds of the qualifying municipality imposing the tax; or

(2) Meeting the principal, interest and any reserve requirement obligations of any bonds issued pursuant to section fourteen of this article.

(b) For any qualifying municipality that chooses to apply the proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes directly to reducing the unfunded actuarial accrued liability of policemen's and firemen's pension and relief funds, the qualifying municipality loses its authority to impose those taxes after:

(1) The municipality fails to annually fund, at a minimum, all normal costs of the qualifying municipality's policemen's and firemen's pension and relief funds as determined by the consulting actuary as provided under section twenty-a, article twenty-two of this chapter; or

(2) The unfunded actuarial accrued liability of the qualifying municipality's policemen's and firemen's pension and relief funds is eliminated; or

(3) Sufficient moneys accrue from the proceeds of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any permitted combination of these taxes to eliminate the unfunded actuarial accrued liability of the qualifying municipality's policemen's and firemen's pension and relief funds.

(c) For any qualifying municipality that chooses to apply the proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes to the principal, interest and any reserve requirement and arbitrage rebate obligations on any bonds issued pursuant to section fourteen of this article, the qualifying municipality loses its authority to impose those taxes after:

(1) The principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds issued pursuant to section fourteen of this article are met;

(2) Sufficient moneys accrue from the proceeds of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any permitted combination of these taxes to meet the principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds issued pursuant to section fourteen of this article; and

(3) After retirement of bonds issued pursuant to section fourteen of this article, any unfunded actuarial accrued liability of the qualifying municipality's pension and relief funds for policemen and firemen is eliminated.

§8-13C-10. Conflict; partial unconstitutionality.

(a) If a court of competent jurisdiction finds that the provisions of this article and the provisions of articles fifteen, fifteen-a and fifteen-b, chapter eleven of this code conflict and cannot be harmonized, then the provisions of said articles shall control.

(b) If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this article is for any reason held to be invalid, unlawful or unconstitutional, that decision does not affect the validity of the remaining portions of this article or any part thereof: Provided, That if this article is held to be unconstitutional under section thirty-nine, article VI of the Constitution of West Virginia this severability clause shall not apply.

§8-13C-11. Additional requirements for authority to impose certain taxes.

(a) The authority to impose the pension relief municipal occupational tax, the pension relief municipal sales and service tax and the pension relief municipal use tax, all provided in this article, is not effective until a municipality wishing to impose the taxes presents to the Joint Committee on Government and Finance a plan to remove the unfunded liabilities of its policemen's and firemen's pension funds and the necessary changes in West Virginia law have been enacted to allow for implementation of the municipal plan.

(b) Notwithstanding any other provision of this code to the contrary, no cost-of-living increases or other benefit increases, and no new benefits, may be granted to or received by any member or beneficiary of a policemen's and firemen's pension and relief funds of a municipality during any period that the municipality imposes a pension relief municipal occupational tax, a pension relief municipal sales and service tax, the pension relief municipal use tax or any combination thereof authorized under this chapter.

§8-13C-12. Limited authority to impose tax.

(a) Notwithstanding any other provision of this code to the contrary, no county, board, political subdivision or any other agency or entity other than a municipality may impose an alternative municipal sales and service tax, an alternative municipal use tax, a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any combination of these taxes.

(b) No subsequent amendment to this code shall supersede the provisions of subsection (a) of this section unless the amendment specifically states that the provisions of said subsection are superseded.

§8-13C-13. Study.

[Repealed.]

§8-13C-14. Authorization for closure of existing retirement plans, creation of defined contribution plans and issuance of bonds for certain qualifying municipalities.

(a) Notwithstanding any other section of this code to the contrary and subject to subsection (b) of this section, any qualifying municipality, as that term is defined in section two of this article, has the following authority:

(1) To close its existing pension and relief fund plan for policemen and firemen provided in article twenty-two of this chapter for policemen and firemen hired on and after a future date to be set by the governing body of the municipality;

(2) To establish a defined contribution plan for police officers and firefighters hired on and after the future date set by the governing body of the municipality to close its existing pension and relief fund plan for policemen and firemen; and

(3) To issue revenue bonds for the purpose of eliminating the unfunded actuarial accrued liability of the existing pension and relief fund plan for policemen and firemen and to issue refunding bonds issued to refund, in whole or in part, bonds issued for such purpose.

(b) The authority granted in subsection (a) of this section is subject to the following:

(1) No qualifying municipality may close an existing pension and relief fund plan for policemen and firemen pursuant to subdivision (1), subsection (a) of this section unless:

(A) The qualifying municipality issues revenue bonds for the purpose of eliminating the unfunded actuarial accrued liability of the existing pension and relief fund plan for policemen and firemen; and

(B) The qualifying municipality establishes a defined contribution plan for police officers and firefighters pursuant to subdivision (2), subsection (a) of this section;

(2) No qualifying municipality may establish a defined contribution plan for police officers and firefighters pursuant to subdivision (2), subsection (a) of this section unless:

(A) The qualifying municipality closes its existing pension and relief fund plan for policemen and firemen pursuant to subdivision (1), subsection (a) of this section; and

(B) The qualifying municipality issues revenue bonds for the purpose of eliminating the unfunded actuarial accrued liability of the existing pension and relief fund plan for policemen and firemen;

(3) No qualifying municipality may issue bonds pursuant to subdivision (3), subsection (a) of this section unless:

(A) The qualifying municipality closes its existing pension and relief fund plan for policemen and firemen pursuant to subdivision (1), subsection (a) of this section; and

(B) The qualifying municipality establishes a defined contribution plan for police officers and firefighters pursuant to subdivision (2), subsection (a) of this section;

(4) No qualifying municipality may exercise any authority provided in subsection (a) of this section unless it obtains a determination of the unfunded actuarial accrued liability of its existing pension and relief fund plans for policemen and firemen from the state Treasurer;

(5) If the qualifying municipality elects to issue bonds pursuant to subdivision (3), subsection (a) of this section, the following applies:

(A) The proceeds of the revenue bonds shall be at least equal to the unfunded actuarial accrued liability as determined by the state Treasurer plus any reserve fund requirements and any costs, including accrued or capitalized interest, associated with issuing the bonds. All of the proceeds shall be applied to the payment of the unfunded actuarial accrued liability, the funding of reserve requirements and the payment of costs associated with the issuance of the bonds and may not be used for any other purpose;

(B) The proceeds of any refunding bonds shall be used to refund all or any portion of the revenue bonds authorized in this section, to fund any required reserve requirements for the refunding bonds and to pay costs of issuance associated with the refunding bonds and for no other purpose; and

(C) Notwithstanding any other provision of this code to the contrary, the proceeds of the bonds or refunding bonds shall be invested with the West Virginia Investment Management Board established under the provisions of article six, chapter twelve of this code.

(6) If the qualifying municipality elects to issue bonds pursuant to subdivision (3), subsection (a) of this section, the qualifying municipality shall impose a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes at a rate projected to generate sufficient revenue to meet the principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds, subject to the following:

(A) This requirement is void after the qualifying municipality loses its authority to impose those taxes pursuant to subsection (b) or (c), section nine of this article; and

(B) If the revenue generated by a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax is insufficient to meet the principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds, the qualifying municipality shall not issue the bonds;

(7) If the qualifying municipality elects to issue bonds pursuant to subdivision (3), subsection (a) of this section, all proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes shall be dedicated solely to paying the principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds;

(8) If the qualifying municipality elects to close an existing pension and relief fund plan for policemen and firemen pursuant to subdivision (1), subsection (a) of this section, all current and retired employees in the existing pension and relief fund plans for policemen and firemen shall remain in that plan and shall be paid all benefits of that plan in accordance with Part III, article twenty-two of this chapter;

(9) Any such revenue bonds or refunding bonds shall bear interest at not more than twelve percent per annum, payable semiannually, or at shorter intervals, and shall mature at such time or times, not exceeding thirty years, as may be determined by the ordinance authorizing the issuance of the bonds. The bonds may be made redeemable before maturity, at the option of the municipality at not more than the par value thereof, plus a premium of not more than five percent, under such terms and conditions as may be fixed by the ordinance authorizing the issuance of the bonds. The principal and interest of the bonds may be made payable in any lawful medium. The ordinance shall determine the form of the bonds and shall set forth any registration or conversion privileges, and shall fix the denomination or denominations of such bonds, and the place or places of the payment of principal and interest thereof, which may be at any banking institution or trust company within or without the state. The bonds shall contain a statement on their face that the municipality shall not be obligated to pay the same, or the interest thereon, except from the special fund derived from revenues collected by the municipality from the imposition of a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any permitted combination of these taxes and which the municipality may pledge as security for the bonds. All the bonds shall be, and shall have and are hereby declared to have all the qualities and incidents of negotiable instruments, under the Uniform Commercial Code of the state. The bonds shall be executed in such manner as the governing body of the municipality may direct. The bonds shall be sold by the municipality in such manner as may be determined to be for the best interest of the municipality. Any surplus of the bond proceeds over and above the cost of paying the unfunded liability, plus any amount required for reserves, capitalized interest and costs of issuance thereof or in the case of refunding bonds over and above the amount necessary to refund the existing bonds being refunded by such issue, plus any amount required for reserves, capitalized interest and costs of issuance thereof, shall be paid into the debt service fund for such bonds; and

(10) The defined contribution plan established by the municipality shall:

(A) Meet the federal qualification requirements of 26 U.S.C. §401 and related sections of the Internal Revenue Code as applicable to governmental plans;

(B) Set the amount of each employee's contribution and the amount of each employer's contribution;

(C) Require that the amount of annuity payments a retired member receives be based solely upon the balance in the member's annuity account at the date of retirement, the retirement option selected, or in the event of an annuity option being selected, the actuarial life expectancy of the member of any other factors that normally govern annuity payments;

(D) Include detailed provisions that require the prudent and safe handling of the retirement funds;

(E) Provide retirement options; and

(F) Include any other provision and authorize any policy that the qualifying municipality determines is necessary or incidental to the establishment and operation of the defined contribution plan. The other provisions may include, but are not limited to, the authorization to contract with one or more private pension, insurance, annuity, mutual fund or other qualified company or companies to administer the day-to-day operations of the plan and to provide investments.

(c) If a qualifying municipality elects to establish a defined contribution plan pursuant to subdivision (2), subsection (a) of this section, the qualifying municipality shall also establish, by ordinance, mechanisms to provide disability benefits and death benefits for eligible members.

(d) The authority granted to a qualifying municipality pursuant to subsection (a) of this section to close its existing pension and relief fund plan for police officers and firefighters, to establish a defined contribution plan for police officers and firefighters and to issue revenue bonds shall terminate on December 31, 2005.

(e) The right of any person to a benefit provided under a defined contribution plan established by a qualifying municipality pursuant to this section shall not be subjected to execution, attachment, garnishment, the operation of bankruptcy or insolvency laws, or other process whatsoever nor shall any assignment thereof be enforceable in any court with the exception that the benefits or contributions under the plan shall be subject to "qualified domestic relations orders" as that term is defined in 26 U.S.C. §414 with respect to governmental plans.

(f) The interest earned on any bonds issued under the authority granted in this section is exempt from any tax imposed under the provisions of this code.

(g) Bonds and refunding bonds issued pursuant to the authority provided by this section shall never constitute a direct and general obligation of the State of West Virginia and the full faith and credit of the state is not pledged to secure the payment of the principal and interest of such bonds. Bonds and refunding bonds issued under this section shall state on their face that the bonds or bonds do not constitute a debt of the State of West Virginia and that payment of the bonds, interest and charges thereon cannot become an obligation of the State of West Virginia.

PART I. LAW AND ORDER AND POLICE FORCE OR DEPARTMENTS.

§8-14-1. Power and authority with respect to the preservation of law and order; police force or departments.

Every municipality shall have plenary power and authority to protect persons and property within the municipality and preserve law and order therein, and, for this purpose, to provide for, establish, equip and maintain a police force or department. The police force or department in each municipality shall be subject to the authority, control and discipline of the administrative authority.

For the purposes of this article, the term "paid police department" shall be taken to mean only a municipal police department maintained and paid for out of public funds and whose employees are paid on a full-time basis out of public funds. The term shall not be taken to mean a department whose employees are paid nominal salaries or wages or are only paid for services actually rendered on an hourly basis.

§8-14-2. Hours of duty for policemen in a paid police department under civil service; overtime compensation or time off; municipal emergencies.

In any paid police department of any municipality now or hereafter operated under police civil service as provided in subsequent sections of this article, the members of any such department subject to and under civil service shall not be required to be on duty more than five days in any calendar week, nor more than eight hours in any one day, unless they shall be compensated as hereinafter in this section provided. For any time spent on duty by any member of a paid police department under civil service in excess of eight hours in any one day or in excess of forty hours in any one week, such member shall, notwithstanding any other provisions of this code to the contrary, be paid, at a rate not less than his regular rate of pay, for each full hour or allowed equal time off: Provided, That in time of municipal emergency as hereinafter in this section defined, the foregoing provisions with respect to additional pay or time off shall not apply. A municipal emergency for purposes of this section shall mean an unusual or abnormal condition beyond the municipality's control and a condition beyond its reasonable power to remove or overcome.

§8-14-2a. Policemen who are required to work during holidays; how compensated.

From the effective date of this section, if any municipal police officer is required to work during a legal holiday as is specified in subsection (a), section one, article two, chapter two of this code, or if a legal holiday falls on the police officer's regular scheduled day off, he or she is allowed equal time off at a time as may be approved by the chief of police under whom he or she serves or, in the alternative, shall be paid at a rate not less than one and one-half times his or her regular rate of pay: Provided, That if a special election of a political subdivision other than a municipality falls on a Saturday or Sunday, the municipality may choose not to recognize the day of the election as a holiday if a majority of the municipality's city council votes not to recognize the day of the election as a holiday.

§8-14-3. Powers, authority, and duties of law-enforcement officials and policemen.

The chief and any member of the police force or department of a municipality, any municipal sergeant, and any municipal fire marshal shall have all of the powers, authority, rights, and privileges within the corporate limits of the municipality with regard to the arrest of persons, the collection of claims, and the execution and return of any search warrant, warrant of arrest, or other process, which can legally be exercised or discharged by a deputy sheriff of a county: Provided, That any municipal fire marshal granted authority under this section shall have these powers, authority, rights, and privileges only to the limits described in §8-15-1 of this code. In order to arrest for the violation of municipal ordinances and as to all matters arising within the corporate limits and coming within the scope of his or her official duties, the powers of any chief, policeman, municipal fire marshal, or sergeant shall extend anywhere within the county or counties in which the municipality is located, and any chief, policeman, municipal fire marshal, or sergeant shall have the same authority of pursuit and arrest beyond his or her normal jurisdiction as has a sheriff. For an offense committed in his or her presence, any such officer may arrest the offender without a warrant and take the offender before the mayor or police court or municipal court to be dealt with according to law. His or her sureties are liable to all the fines, penalties, and forfeitures which a deputy sheriff is liable to, for any failure or dereliction in such office, to be recovered in the same manner and in the same courts in which the fines, penalties, and forfeitures are recovered against a deputy sheriff. In addition to the mayor, or police court judge or municipal court judge, if any, of a city, the chief of police of any municipality and in the absence from the station house of the chief of police the captains of police and lieutenants of police shall each have authority to administer oaths to complainants and to issue arrest warrants thereon for all violations of the ordinances of the municipality.

The mayor and police officers of every municipality and any municipal sergeant shall aid in the enforcement of the criminal laws of the state within the municipality, independently of any charter provision or any ordinance or lack of an ordinance with respect thereto, and to cause the arrest of, or arrest, any offender and take him or her before a magistrate to be dealt with according to the law. Failure on the part of any such official or officer to discharge any duty imposed by the provisions of this section is official misconduct for which he or she may be removed from office. Any official or officer has the same authority to execute a warrant issued by a magistrate, and the same authority to arrest without a warrant for offenses committed in his or her presence, as a deputy sheriff.

An officer or member of the police force or department of a municipality may not aid or assist either party in any labor trouble or dispute between employer and employee. They shall in these cases see that the statutes and laws of this state and municipal ordinances are enforced in a legal way and manner. Nor shall he or she engage in off-duty police work for any party engaged in or involved in the labor dispute or trouble between employer and employee.

The chief of police shall be charged with the keeping and security of the jail, and at any time that one or more prisoners are being held in the jail, he or she shall require that the jail be attended by a police officer or other responsible person.

PART III. POLICE MATRONS.

§8-14-4. Police matrons.

The mayor of every city may appoint one or more reputable women as police matrons. Upon the death, resignation or removal of a police matron, any successor shall be appointed by the mayor as aforesaid.

Each police matron shall have, subject to the general control of the head of the police department, the entire care and control of all women under arrest in the police station for which she serves, and she may, at any time, call upon any police officer connected with such police station for assistance.

Whenever a woman is arrested and taken to a police station to which a matron is attached and when a matron is not present, it shall be the duty of the officer in charge of such police station to cause a matron to be immediately summoned, and it shall be the duty of the police matron to hold herself in readiness at all hours of the day and night to answer any and all calls from such police station whenever and so long as any woman is or remains confined therein.

The police matron herein provided for shall attend all sessions of the mayor's court, police court or municipal court, at any and all times, when any women is to be there arraigned, and the police matron shall have charge of all women there in attendance awaiting trial or awaiting transfer to any other place of detention.

In every station to which a police matron is attached, sufficient and proper accommodations shall be provided by those having charge of the police and fiscal affairs of the city, for all women confined therein, under arrest, and in case such accommodations shall be insufficient and improper, the matron shall notify the mayor, and it shall be the duty of the mayor promptly to lay the matter before the governing body and it shall be the duty of such governing body to provide, at the expense of the city, all such sufficient and proper accommodations.

PART IV. SPECIAL SCHOOL ZONE AND PARKING LOT OR

PARKING BUILDING POLICE OFFICERS.

§8-14-5. Special school zone police officers.

Every municipality shall have plenary power and authority to provide by ordinance for the appointment of special school zone police officers, who shall have the duty of controlling and directing traffic upon designated parts of the streets, avenues, roads, alleys or ways at or near schools, and who, in the performance of such duty, shall be vested with all the powers of local police officers. Such special school zone police officers shall be in uniform, shall display a badge or other sign of authority, shall serve at the will and pleasure of the appointing authority, and shall not come within the civil service provisions of this article or the policemen's pension and relief fund provisions of article twenty-two of this chapter. The governing body of the municipality may require such special school zone police officers to give bond, payable to the municipality, in its corporate name, with such sureties and in such penalty as the governing body may see fit, conditioned for the faithful performance of their duties.

§8-14-5a. Parking enforcement officers.

(a) A municipality or parking authority created by a municipality may employ parking enforcement officers, whose sole duties are to patrol and to enforce municipal parking ordinances upon or within designated municipal parking areas and upon municipal streets. Parking enforcement officers may sign complaints and issue citations.

(b) Parking enforcement officers shall:

(1) Be in uniform;

(2) Display a badge or other sign of authority; and

(3) Serve at the will and pleasure of their employer.

(c) The governing body of the municipality may require the parking enforcement officers to give a surety bond, payable to the municipality. The governing body shall set the amount of the bond conditioned for the faithful performance of their duties. Nothing in this section may be construed to mean that parking enforcement officers come within the civil service provisions of this article or the policemen's pension and relief fund provisions of article twenty-two of this chapter.

PART V. CIVIL SERVICE FOR CERTAIN POLICE DEPARTMENTS.

§8-14-6. Qualifications for appointment or promotion to positions in certain paid police departments to be ascertained by examination; provisions exclusive as to appointments, etc.; definitions.

(a) All appointments and promotions to all positions in all paid police departments of Class I and Class II cities shall be made only according to qualifications and fitness to be ascertained by examinations, which, so far as practicable, shall be competitive, as hereinafter provided.

(b) No individual, except the chief or deputy chiefs of police, if the position of deputy chief of police has been previously created by the city council of that Class I or Class II city, may be appointed, promoted, reinstated, removed, discharged, suspended or reduced in rank or pay as a paid member of a paid police department, regardless of rank or position, of any Class I or Class II city in any manner or by any means other than those prescribed in the following sections of this article: Provided, That an individual appointed chief or deputy chief of police who held a position as a member of a paid police department in that police department before the appointment as chief or deputy chief of police shall be reinstated to the officer's previous rank following his or her term as chief or deputy chief of police.

(c) The term "member of a paid police department", whenever used in the following sections of this article, means an individual employed in a paid police department who is clothed with the police power of the state in being authorized to carry deadly weapons, make arrests, enforce traffic and other municipal ordinances, issue summons for violations of traffic and other municipal ordinances, and perform other duties which are within the scope of active, general law enforcement.

(d) The term "appointing officer", as used in the following sections of this article, means the Class I or Class II city officer in whom the power of appointment of members of a paid police department is vested by charter provision or ordinance of the city.

§8-14-7. Policemen's civil service commission generally.

(a) In every Class I and Class II city having a paid police department, there shall be a "Policemen's Civil Service Commission."

(b) The commission shall consist of three commissioners, as follows:

(1) One shall be appointed by the mayor of the city;

(2) One shall be appointed by the local fraternal order of police; and

(3) One shall be appointed by the local chamber of commerce, or if there is none, by a local business association.

(c) The commissioners shall be qualified voters of the city for which they are appointed.

(1) At least two of the commissioners shall be individuals in full sympathy with the purposes of the civil service provisions of this article.

(2) Not more than two of the commissioners, at any one time, may be registered to vote as members of the same political party.

(d) In the event there is no local chamber of commerce or local business association at the time any appointment is to be made by it, the appointment shall be made by the other two commissioners by mutual agreement.

(e) Members shall serve terms of four years, staggered in accordance with prior enactments of this section.

(f)(1) If any commissioner of the civil service commission ceases to be a member of the commission by virtue of death, final removal or other cause, a new commissioner shall be appointed to fill the unexpired term of the commissioner within ten days after the excommissioner has ceased to be a member of the commission.

(2) The appointment shall be made by the officer or body who in the first instance appointed the commissioner who is no longer a member of the commission, except that in the case of a vacancy in an appointment made by the Governor, which vacancy occurs after the effective date of this article, the appointment for the unexpired term shall be made by the mayor.

(g) Each year the three members of the commission shall, together, elect one of their number to act as president of the commission, who serves as president for one year.

(h) The mayor may, at any time, remove any commissioner or commissioners for good cause, which shall be stated in writing and made a part of the records of the commission.

(1) Once the mayor has removed any commissioner, the mayor shall within ten days file in the office of the clerk of the circuit court of the county in which the city or the major portion of the territory of the city is located a petition setting forth in full the reason for the removal and praying for the confirmation by the circuit court of the action of the mayor in so removing the commissioner.

(2) A copy of the petition shall be served upon the commissioner removed simultaneously with its filing in the office of the clerk of the circuit court and has precedence on the docket of the court and shall be heard by the court as soon as practicable upon the request of the removed commissioner or commissioners.

(i)(1) All rights vested in the circuit court by this section may be exercised by the judge thereof in vacation.

(2) If no term of the circuit court is being held at the time of the filing of the petition, and the judge cannot be reached in the county in which the petition was filed, the petition shall be heard at the next succeeding term of the circuit court, whether regular or special, and the commissioner or commissioners removed remains removed until a hearing is had upon the petition of the mayor.

(3) The court or the judge thereof in vacation shall hear and decide the issues presented by the petition.

(j)(1) The mayor or commissioner or commissioners, as the case may be, against whom the decision of the court or the judge thereof in vacation is rendered, has the right to petition the Supreme Court of Appeals for a review of the decision of the circuit court or the judge thereof in vacation as in other civil cases.

(2) If the mayor fails to file a petition in the office of the clerk of the circuit court within ten days after the removal of the commissioner or commissioners, the commissioner or commissioners shall immediately resume his or her or their position or positions as a member or members of the policemen's civil service commission.

(k) Any resident of the city has the right at any time to file charges against and seek the removal of any member of the policemen's civil service commission of the city.

(1) The charges shall be filed in the form of a petition in the office of the clerk of the circuit court of the county in which the city or the major portion of the territory of the city is located, and a copy of the petition shall be served upon the commissioner or commissioners sought to be removed.

(2) The petition shall be matured for hearing and heard by the circuit court or the judge thereof in vacation in the same manner as civil proceedings in the circuit courts of this state are heard, and the party against whom the circuit court's decision is rendered has the right to petition the Supreme Court of Appeals for a review of the action of the circuit court, as in other civil cases.

(l) A commissioner may not hold another office under the United States, this state, or any municipality, county or other political subdivision thereof, nor may a commissioner serve on a political committee or take an active part in the management of a political campaign, except that a commissioner may serve as a notary public or on another local, regional or state board or commission in a part-time capacity.

§8-14-8. Recorder ex officio clerk of commission; clerical and stenographic services.

The recorder of the city shall be ex officio clerk of the policemen's civil service commission and shall supply to the commission without extra compensation all necessary clerical and stenographic services for the work of the commission.

§8-14-9. Rooms, stationery, etc., to be furnished by city; appropriations required.

It shall be the duty of the mayor and the heads of the departments of government of every Class I and Class II city having a paid police department to cause suitable and convenient rooms and accommodations to be assigned and provided, furnished, heated and lighted for carrying on the work and examinations of the commission. The commission may order from the proper authorities the necessary stationery, postage stamps, official seal and other articles to be supplied, and the necessary printing to be done, for its official use. It shall be the duty of the officers of every such city to aid the commission in all proper ways in carrying out the civil service provisions of this article, and to allow the reasonable use of public buildings, and to heat and light the same, for holding examinations and investigations, and in all proper ways to facilitate the same.

All Class I and Class II cities subject to the civil service provisions of this article are hereby required to appropriate sufficient funds for the purpose of carrying out such provisions.

§8-14-10. Powers, authority and duties of policemen's civil service commission.

The policemen's civil service commission in each Class I and Class II city shall:

(1) Prescribe and enforce rules and regulations for carrying into effect the civil service provisions of this article. All rules and regulations so prescribed may, from time to time, be added to, amended or rescinded: Provided, That all rules and regulations shall be approved by the mayor and the governing body before they go into effect, but when so approved shall not be changed or rescinded except by the commission with the approval of the mayor and the governing body: Provided, however, That if the mayor and governing body take no action on a proposed rule and regulation or a proposed change or rescission submitted to them within a period of twenty days from the date of submission, then the same shall become effective as though approved by the mayor and governing body.

(2) Keep minutes of its own proceedings, and records of its examinations and other official actions. All recommendations of applicants for office, received by the said commission or by any officer having authority to make appointments to office, shall be kept and preserved for a period of ten years, and all such records, recommendations of former employees excepted, and all written causes of removal, filed with it, shall, subject to reasonable regulation, be open to public inspection.

(3) Make investigations, either sitting as a body or through a single commissioner, concerning all matters touching the enforcement and effect of the civil service provisions of this article and the rules and regulations prescribed hereunder or concerning the action of any examiner or subordinate of the commission or any individual in the public service with respect to the execution of the civil service provisions of this article; and, in the course of such investigations, each commissioner shall have the power to administer oaths and affirmations, and to take testimony.

(4) Have the power to subpoena and require the attendance of witnesses, and the production thereby of books and papers pertinent to the investigations and inquiries herein authorized, and examine them and such public records as it shall require, in relation to any matter which it has the authority to investigate. The fees of such witnesses for attendance and travel shall be the same as for witnesses before the circuit courts of this state, and shall be paid from the appropriation for the incidental expenses of the commission. All officers in the public service, and their deputies, clerks, subordinates and employees shall attend and testify when required to do so by said commission. Any disobedience to, or neglect of, any subpoena issued by the said commissioners, or any one of them, to any person, shall be held a contempt of court, and shall be punished by the circuit court of the county in which the city or the major portion of the territory thereof is located, or the judge thereof in vacation, as if such subpoena had been issued therefrom. The judge of such court shall, upon the application of any one of said commissioners, in any such case, cause the process of said court to issue to compel such person or persons disobeying or neglecting any such subpoena to appear and to give testimony and produce evidence before the said commissioners, or any one of them, and shall have the power to punish any such contempt.

(5) Make an annual report to the mayor showing its own actions, and its rules and regulations, and all of the exceptions thereto in force, and the practical effects thereof, and any suggestions it may have for the more effectual accomplishment of the purposes of the civil service provisions of this article. Such report shall be made available for public inspection within five days after the same shall have been delivered to the mayor of the city.

§8-14-11. Rules and regulations for all examinations; probationary appointments.

The policemen's civil service commission in each Class I and Class II city shall make rules and regulations providing for both competitive and medical examinations for appointments and promotions to all positions in the paid police department in such city, and for such other matters as are necessary to carry out the purposes of the civil service provisions of this article. Any such commission shall have the power and authority to require by rules and regulations a physical fitness examination as a part of its competitive examination or as a part of its medical examination: Provided, That after June 30, 1981, the medical requirements for appointment to all positions in the paid police department in such city shall include, but not be limited to, the medical requirements stated in section sixteen, article twenty-two of this chapter. Due notice of the contents of all such rules and regulations and of any modifications thereof shall be given, by mail, in due season, to the appointing officer; and said rules and regulations and any modifications thereof shall also be printed for public distribution. All original appointments to any positions in a paid police department subject to the civil service provisions of this article shall be for a probationary period of one year: Provided, That at any time during the probationary period the probationer may be discharged for just cause, in the manner provided in section twenty of this article. If, at the close of this probationary term, the conduct or capacity of the probationer has not been satisfactory to the appointing officer, the probationer shall be notified, in writing, that he will not receive absolute appointment, whereupon his employment shall cease; otherwise, his retention in the service shall be equivalent to his final appointment.

§8-14-12. Form of application; age and residency requirements; exceptions.

(a) The policemen’s civil service commission in each Class I and Class II city shall require a person applying for admission to any competitive examination provided under the civil service provisions of this article or under the commission’s rules to file in its office, within a reasonable time prior to the proposed examination, a formal application in which the applicant shall state under oath or affirmation:

(1) The applicant’s full name, residence, and post-office address;

(2) The applicant’s United States citizenship, age, and the place and date of the applicant’s birth;

(3) The applicant’s state of health and the applicant’s physical capacity for the public service;

(4) The applicant’s business and employments and residences for at least three previous years; and

(5) Other information as may reasonably be required, touching upon the applicant’s qualifications and fitness for the public service.

(b) Applications shall be furnished by the commission, without charge. The commission may require, in connection with the application, the certificates of citizens, physicians, and others, having pertinent knowledge concerning the applicant, as the good of the service may require.

(c) Notwithstanding the provisions of §11-5-1 et seq. of this code, a person may not submit an application for original appointment if the person is less than 18 years of age or more than 40 years of age at the date of the individual’s application.

(d) Notwithstanding the requirements established in this section, if an applicant: (1) Formerly served upon the paid police department of the city to which he or she makes application, for a period of more than his or her probationary period; (2) resigned from the department at a time when there were no charges of misconduct or other misfeasance pending against the applicant; and (3) applies for appointment by reinstatement within a period of two years from the date of resignation from the paid police department to which the individual seeks appointment by reinstatement, then the individual is eligible for appointment by reinstatement in the discretion of the policemen’s civil service commission. The applicant may be over the age of 40 years. The applicant, providing his or her former term of service so justifies, may be appointed by reinstatement to the paid police department without a competitive examination, but the applicant shall undergo a medical examination. The applicant shall be the lowest in rank in the department next above the probationers of the department.

§8-14-13. Character and notice of competitive examinations; qualifications of applicants; press representatives; posting eligible list; medical examinations.

All competitive examinations for appointments or promotions to all positions shall be practical in their character, and shall relate to such matters, and include such inquiries, as will fairly and fully test the comparative merit and fitness of the individual or individuals examined to discharge the duties of the employment sought by him or them. All competitive examinations shall be open to all applicants who have fulfilled the preliminary requirements specified in the other civil service provisions of this article.

Adequate public notice of the date, time and place of every competitive examination together with information as to the kind of position to be filled, shall be given at least one week prior to such competitive examination. The said commission shall adopt reasonable rules and regulations for permitting the presence of representatives of the press at any such competitive examination. The commission shall post, in a public place at its office, the eligible list, containing the names and grades of those who have passed such competitive examinations for positions in the paid police department, and shall indicate thereon such appointments as may be made from said list.

All applicants for appointment or promotion to any position in a paid police department of a Class I or Class II city who have passed the competitive examination specified above shall, before being appointed or promoted, undergo a medical examination which shall be conducted under the supervision of a board composed of two doctors of medicine appointed for such purpose by the appointing officer of the city. Such board must certify that an applicant is free from any bodily or mental defects, deformity or diseases which might incapacitate him from the performance of the duties of the position desired and is physically fit to perform such duties before said applicant shall be appointed or promoted to any position. Notwithstanding the first sentence of this paragraph, in the event the commission deems it expedient, the medical examination may be given prior to the competitive examination, and if the medical examination is not passed as aforesaid, the applicant shall not be admitted to the competitive examination.

§8-14-13a. Individual review of test and answers from promotional examination.

(a) Any applicant for promotion to any position in a paid police department may personally review such applicant's examination questions, answers and scores to all parts of any competitive examination within five days after the posting of results of the competitive examination. Such five days shall not include the day the examination results are posted, nor any day that the office of the recorder of the city is not open for business to the public. The commission shall not certify the list of eligibles until all procedures before the commission under this section have been exhausted. The commission shall provide any applicant requesting review of such applicant's examination questions, answers and scores with a location to review such materials.

(b) If any applicant feels aggrieved by the answers and/or scores received on a promotional competitive examination, the commission shall, at the request of such applicant made within five days as calculated above, appoint a date, time and place for a public hearing, at which time such applicant may appear, with or without counsel. The commission shall review all parts of the competitive examination questions, answers and scores of the aggrieved applicant, and testimony shall be taken.

The commission shall subpoena, at the expense of the applicant, any competent witnesses requested by such applicant.

(c) After such review, the commission shall render a decision either in favor of the applicant, and therefore adjust the certified eligibility list to provide for such applicant's adjusted score, or the commission shall rule that the applicant's prior score should remain unchanged. Any decision rendered by the commission under this section shall be in writing and shall set forth findings of fact and conclusions of law relied upon to reach such decision.

(d) The commission shall not certify a list of eligibles after the completion of a competitive promotional examination until all applicants for such position have exhausted the procedures before the commission set forth in this section.

(e) If any applicant is aggrieved by a decision rendered by the commission under this section, such applicant may, within twenty days of the date of the commission's decision, seek judicial review thereof in the circuit court of the county wherein such municipality is located. Nothing in this section shall be construed as depriving such applicant of the right to seek a writ of mandamus to the appropriate court within the time specified in this subsection.

§8-14-14. Refusal to examine or certify; review thereof.

The commission may refuse to examine an applicant, or after examination to certify as eligible one, who is found to lack any of the established preliminary requirements for the examination or position for which he applies; or who is physically so disabled as to be rendered unfit for the performance of the duties of the position desired; or who is addicted to the habitual use of intoxicating liquors or drugs; or who has been guilty of any crime or of infamous or notoriously disgraceful conduct; or who has been dismissed from public service for delinquency or misconduct; or who has made a false statement of any material fact, or practiced or attempted to practice any deception or fraud, in his application, in any such examination, or in securing his eligibility; or who refuses to comply with the rules and regulations of the commission.

If any applicant feels aggrieved by the action of the commission in refusing to examine him, or after examination in refusing to certify him as eligible, the commission shall, at the request of such applicant, appoint a date, time and place for a public hearing; at which time such applicant may appear, by himself or counsel, or both, and the commission shall then review its refusal to make such examination or certification, and testimony shall be taken. The commission shall subpoena, at the expense of the applicant, any competent witnesses requested by him. After such review, the commission shall file in its records the testimony taken and shall again make a decision, which decision shall be final and not subject to judicial review, but under no circumstances shall the provisions of this article be construed, in the case of a refusal to examine an applicant for promotion or to certify an applicant as eligible for promotion, as depriving such applicant of his right to seek a writ of mandamus, if the application for such writ is made within twenty days from the date of the decision refusing to examine or to certify him as eligible for promotion.

§8-14-15. Appointments from list of eligibles.

Every position, unless filled by promotion, reinstatement or reduction, shall be filled only in the manner specified in this section. The appointing officer shall notify the policemen’s Civil Service Commission of any vacancy or vacancies in a position or positions which he or she desires to fill and shall request the certification of eligibles. The commission shall forthwith certify the names of at least one but no more than three eligible individuals ranked according to their averages at preceding competitive examinations held under the civil service provisions of this article within a period of three years next preceding the date of the prospective appointment. The appointing officer shall, thereupon, with sole reference to the relative merit and fitness of the candidates, make an appointment or appointments from the names so certified: Provided, That should he make objection, to the commission, to one or more of these individuals, for any of the reasons stated in section fourteen of this article, and should such objection be sustained by the commission, after a public hearing along the lines of the hearing provided for in said section fourteen of this article, if any such hearing is requested, the commission shall thereupon strike the name of any such individual from the eligible list, and certify the next highest name for each individual so stricken. As each subsequent vacancy occurs, in the same or another position, precisely the same procedure shall be followed: Provided, however, That after any name has been three times rejected for the same or another position in favor of a name or names below it on the same list, the said name shall be stricken from the list. When there are a number of positions of the same kind to be filled at the same time, each appointment shall, nevertheless, be made separately and in accordance with the foregoing provisions. When an appointment is made under the provisions of this section it shall be, in the first instance, for the probationary period of one year, as provided in §8-14-11 of this code.

§8-14-16. Noncompetitive examination for filling vacancy; provisional appointment.

Whenever there are urgent reasons for filling a vacancy in any position in a paid police department of a Class I or Class II city and there is no list of individuals eligible for appointment after a competitive examination, the appointing officer may nominate an individual to the policemen's civil service commission for noncompetitive examination; and if such nominee shall be certified by the said commission as qualified, after such noncompetitive examination and a medical examination, he may be appointed provisionally, to fill such vacancy until a selection and appointment can be made after competitive examination, in the manner prescribed in section fifteen of this article; but such provisional appointment shall not continue for a longer period than three months, nor shall successive provisional appointments be made to the same position, under the provisions of this section.

§8-14-17. Vacancies filled by promotions; eligibility for promotion; rights of chief.

(a) Vacancies in positions in a paid police department of a Class I or Class II city shall be filled, so far as practicable, by promotions from among individuals holding positions in the next lower grade in the department.

(b) Promotions shall be based upon experience and by written competitive examinations to be provided by the Policemen's Civil Service Commission: Provided, That except for the chief or deputy chiefs of police, if the position of deputy chief of police has been previously created by the city council of that Class I or Class II city, no individual is eligible for promotion from the lower grade to the next higher grade until the individual has completed at least two years of continuous service in the next lower grade in the department immediately prior to the examination: Provided, however, That notwithstanding the provisions of section six of this article, any member of a paid police department of a Class I or Class II city now occupying the office of chief or deputy chief of police of that paid police department, or hereafter appointed to the office of chief or deputy chief of police, except as hereinafter provided in this section, is entitled to all of the rights and benefits of the civil service provisions of this article, except that he or she may be removed from the office of chief or deputy chief of police without cause, and the time spent by the member in the office of chief or deputy chief of police shall be added to the time served by the member during the entire time he or she was a member of that paid police department prior to his or her appointment as chief or deputy chief of police, and shall in all cases of removal, except for removal for good cause, retain the regular rank within that paid police department which he or she held at the time of his or her appointment to the office of chief or deputy chief of police or which he or she has attained during his or her term of service as chief or deputy chief of police.

(c) The provisions of this section apply and inure to the benefit of all individuals who have ever been subject to the provisions of this article. The commission may determine in each instance whether an increase in salary constitutes a promotion.

§8-14-18. No inquiry shall be made concerning political or religious opinions or affiliations of applicants, etc.

No question in any form of application or in or during any examination shall be so framed as to elicit information concerning the political or religious opinions or affiliations of any applicant; nor shall inquiry be made concerning such opinions or affiliations; and all disclosures thereof shall be discountenanced. No discrimination shall be exercised, threatened or promised by any individual in a paid police department of a Class I or Class II city against, or in favor of, an applicant, eligible, or member of such a paid police department because of his political or religious opinions or affiliations.

§8-14-19. Political activities of members prohibited; exceptions.

(a) A member of a paid police department may not:

(1) Solicit any assessment, subscription or contribution for any political party, committee or candidate from any person who is a member or employee of the municipality by which they are employed;

(2) Use any official authority or influence, including, but not limited to, the wearing by a municipal police officer of his or her uniform for the purpose of interfering with or affecting the nomination, election or defeat of any candidate or the passage or defeat of any ballot issue: Provided, That this subdivision shall not be construed to prohibit any municipal police officer from casting his or her vote at any election while wearing his or her uniform;

(3) Coerce or command anyone to pay, lend or contribute anything of value to a party, committee, organization, agency or person for the nomination, election or defeat of a ballot issue; or

(4) Be a candidate for or hold any other public office in the municipality in which he or she is employed: Provided, That any municipal police officer that is subject to the provisions of 5 U.S.C. §1501, et seq., may not be a candidate for elective office.

(b) Other types of partisan or nonpartisan political activities not inconsistent with the provisions of subsection (a) of this section are permissible political activities for municipal police officers.

(c) No person may be appointed or promoted to or demoted or dismissed from any position held by a municipal police officer or in any way favored or discriminated against because of his or her engagement in any political activities authorized by the provisions of this section. Any elected or appointed official who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be punished by the penalties contained in section twenty-six, article fifteen of this chapter.

(d) Any member of any such paid police department violating the provisions of this section shall have his appointment vacated and he shall be removed, in accordance with the pertinent provisions of this section.

(e) Any three residents of any such city may file their written petition with the policemen's civil service commission thereof setting out therein the grounds upon which a member of the paid police department of such city should be removed for a violation of subsection (a) of this section. Notice of the filing of such petition shall be given by said commission to the accused member, which notice shall require the said member to file a written answer to the charges set out in the petition within thirty days of the date of said notice. The said petition and answer thereto, if any, shall be entered upon the records of the commission. If such answer is not filed within the time stated, or any extension thereof for cause which in the discretion of the commission may be granted, an order shall be entered by the commission declaring the appointment of said member vacated; if such answer is filed within the time stated, or any extension thereof for cause which in the discretion of the commission may be granted, the accused member may demand within such period a public hearing on the charges, or the commission may, in its discretion and without demand therefor, set a time for a public hearing on said charges, which hearing shall be within thirty days of the filing of said answer, subject, however, to any continuances which may in the discretion of the commission be granted. A written record of all testimony taken at such hearing shall be kept and preserved by the commission, which record shall be sealed and not be open to public inspection, if no appeal be taken from the action of the commission. The commission at the conclusion of the hearing, or as soon thereafter as possible, shall enter an order sustaining, in whole or in part, the charges made or shall dismiss the charges as unfounded. In the event the charges are sustained in whole or in part, the order shall also declare the appointment of said member to be vacated and thereupon the proper municipal authorities shall immediately remove said member from the police force and from the payroll of said city. Notice of the action of the commission shall be given by registered letter to the mayor and chief of police of the city; and for failure to immediately comply with the order of the commission such officer or officers shall be punished for contempt, upon application of the commission to the circuit court of the county in which the city or the major portion of the territory thereof is located.

(f) An appeal from the ruling of the commission may be had in the same manner and within the same time as specified in section twenty of this article for an appeal from a ruling of a commission after hearing held in accordance with the provisions of said section.

§8-14-20. Removal, discharge, suspension or reduction in rank or pay; hearing; attorney fees; appeal; reduction in number of members.

(a) No member of any paid police department subject to the civil service provisions of this article may be removed, discharged, suspended or reduced in rank or pay except for just cause, which may not be religious or political, except as provided in section nineteen of this article; and no such member may be removed, discharged, suspended or reduced in rank or pay except as provided by the civil service provisions of this article, and in no event until the member has been furnished with a written statement of the reasons for the action. In every case of such removal, discharge, suspension or reduction, a copy of the statement of reasons therefor and of the written answer thereto, if the member desires to file such written answer, shall be furnished to the policemen's civil service commission and entered upon its records. If the member demands it, the commission shall grant a public hearing, which hearing shall be held within a period of ten days from the filing of the charges in writing or the written answer thereto, whichever shall last occur. At the hearing, the burden shall be upon the removing, discharging, suspending or reducing officer, hereinafter in this section referred to as "removing officer", to show just cause for his or her action, and in the event the removing officer fails to show just cause for the action before the commission, then the member shall be reinstated with full pay, forthwith and without any additional order, for the entire period during which the member may have been prevented from performing his or her usual employment, and no charges may be officially recorded against the member's record. The member, if reinstated or exonerated, shall, if represented by legal counsel, be awarded reasonable attorney fees to be determined by the commission and paid by the governing body. A written record of all testimony taken at the hearing shall be kept and preserved by the commission, which record shall be sealed and not be open to public inspection unless an appeal is taken from the action of the commission.

(b) In the event the commission sustains the action of the removing officer, the member has an immediate right of appeal to the circuit court of the county wherein the city or the major portion of the territory thereof is located. In the event that the commission reinstates the member, the removing officer has an immediate right of appeal to the circuit court. In the event either the removing officer or the member objects to the amount of the attorney fees awarded to the member, the objecting party has an immediate right of appeal to the circuit court. Any appeal must be taken within ninety days from the date of entry by the commission of its final order. Upon an appeal being taken and docketed with the clerk of the circuit court of the county, the circuit court shall proceed to hear the appeal upon the original record made before the commission and no additional proof may be permitted to be introduced. The circuit court's decision is final, but the member or removing officer, as the case may be, against whom the decision of the circuit court is rendered has the right to petition the Supreme Court of Appeals for a review of the circuit court's decision as in other civil cases. The member or removing officer also has the right, where appropriate, to seek, in lieu of an appeal, a writ of mandamus. The member, if reinstated or exonerated by the circuit court or by the Supreme Court of Appeals, shall, if represented by legal counsel, be awarded reasonable attorney fees as approved by the court and the fees shall be paid by the governing body.

(c) The removing officer and the member shall at all times, both before the commission and upon appeal, be given the right to employ counsel to represent them.

(d) If for reasons of economy or other reasons it is deemed necessary by any Class I or Class II city to reduce the number of paid members of its paid police department, the city shall follow the procedure set forth in this subsection. The reduction in members of the paid police department of the city shall be effected by suspending the last person or persons, including probationers, who have been appointed to the paid police department. The removal shall be accomplished by suspending the number desired in the inverse order of their appointment: Provided, That in the event the said paid police department is increased in numbers to the strength existing prior to the reduction of members, the members suspended under the terms of this subsection shall be reinstated in the inverse order of their suspension before any new appointments to said paid police department are made.

§8-14-21. Election to determine if civil service provisions of article shall apply to Class III city or Class IV town or village; existing police civil service not affected; certain regular members automatically covered.

Any Class III city or Class IV town or village having a paid police department and which has not prior to the effective date of this article established a police civil service system, may, by ordinance, provide for an election to determine whether the civil service provisions of this article shall apply to such city, town or village. Such election shall be held at the first regular municipal or general election held therein after the adoption of said ordinance and shall be conducted and the results thereof ascertained as provided by law for other elections. The ballots, or ballot labels where voting machines are used, shall have printed thereon:

/ For Police Civil Service

/ Against Police Civil Service

If a majority of all of the legal votes cast on this question be against police civil service, then none of the civil service provisions of this article shall apply within such city, town or village. If a majority of all of the legal votes cast on this question be for police civil service, then all of the civil service provisions of this article shall apply within such city, town or village with like effect as if such Class III city or Class IV town or village where a Class I or Class II city: Provided, That all members of the paid police department of such city, town or village who were so employed by such city, town or village on the date of the election and who, as of such date, have had four or more years' service as members of any paid police department (including the years any member occupied the office of chief of any such paid police department) shall be considered to have been appointed as members under the civil service provisions of this article and shall hold their positions as members in accordance therewith. All members of the paid police department of such city, town or village who do not have, as of the date of such election, four or more years' service as members of a paid police department (including the years any member occupied the office of chief of any such paid police department) shall be subject to all examinations provided for in the civil service provisions of this article for members, except that if any such individual has sustained an injury or injuries in the line of duty while in police service, such injury or injuries shall not disqualify such individual under the medical examination required under the civil service provisions of this article.

The provisions of this section shall not apply to any such city, town or village operating under police civil service on the effective date of this article.

§8-14-22. Offenses and penalties.

Any individual who makes an appointment or promotion to any position, or selects an individual for employment, contrary to the civil service provisions of this article, or wilfully refuses or neglects otherwise to comply with, or to conform to, any of the civil service provisions of this article, or violates any of such provisions, shall be deemed guilty of a misdemeanor.

Any commissioner or examiner, or any other individual, who shall wilfully, by himself or in cooperation with one or more persons, defeat, deceive or obstruct any individual with respect to his right of examination or registration according to the civil service provisions of this article, or to any rules and regulations prescribed pursuant thereto, or who shall wilfully or corruptly, falsely mark, grade, estimate, or report upon any such examination or proper standing of any individual so examined, registered or certified, pursuant to the civil service provisions of this article, or aid in so doing, or who shall wilfully or corruptly furnish to any individual any special or secret information, for the purpose of either improving or injuring the prospects or chances of appointment or promotion to any position of any individual so examined, registered or certified, or to be so examined, registered or certified, or who shall impersonate any other individual, or permit or aid in any manner any other individual to impersonate him, in connection with any such examination or registration, or application or request to be examined or registered, shall, for each offense, be deemed guilty of a misdemeanor.

Any person convicted of any such misdemeanor offense shall be punished by a fine of not less than $50, nor more than $1,000, or by imprisonment for a term not exceeding one year, or by both such fine and imprisonment, in the discretion of the court.

§8-14-23. Repeal of conflicting acts and provisions; civil service provisions of article exclusive; status or tenure not affected; certain members automatically covered; continuance of police civil service systems.

All acts, whether general, special, local or special legislative charters, or parts thereof, in relation to any civil service measure affecting any paid police department inconsistent with the civil service provisions of this article shall be, and the same are, hereby repealed insofar as such inconsistencies shall exist. It is intended by the civil service provisions of this article to furnish a complete and exclusive system for the appointment, promotion, reinstatement, removal, discharge, suspension and reduction of all members of all paid police departments subject to the civil service provisions of this article.

The status or tenure of all members of any paid police department subject to the civil service provisions of this article, which members were employed on the effective date of this article, shall not be affected by the enactment of this article, but all such members shall be subject to all of the civil service provisions of this article with like effect as if they had been appointed members hereunder.

When a Class III city which does not have a police civil service system becomes a Class II city for which police civil service is made mandatory by the provisions of this article, all members of the paid police department of such city who were employed by such city on the effective date of the transition of such city to a Class II city and who, as of such date, have had four or more years' service as members of any paid police department (including the years any member occupied the office of chief of any such paid police department) shall be considered to have been appointed as members under the civil service provisions of this article and shall hold their positions as members in accordance therewith. All members of the paid police department of such city who do not have, as of such date, four or more years' service as members of a paid police department (including the years any member occupied the office of chief of any such paid police department) shall be subject to all examinations provided for in the civil service provisions of this article for members, except that if any such individual has sustained an injury or injuries in the line of duty while in police service, such injury or injuries shall not disqualify such individual under the medical examination required under the civil service provisions of this article.

Any police civil service system established in accordance with the provisions of former article five-a of this chapter or this article fourteen shall be or remain mandatory and shall be governed by the provisions of this article fourteen (with like effect, in the case of a Class III city or Class IV town or village, as if such Class III city or Class IV town or village were a Class I or Class II city), and shall not be affected by the transition from one class of municipal corporation to a lower class as specified in section three, article one of this chapter.

§8-14-24. Right to receive complete standard uniform; right to acquire badge; and right to keep service weapon.

(a) A police officer, upon honorable retirement, is authorized to maintain at his or her own cost a complete standard uniform from the law-enforcement agency of which he or she was a member and shall be issued an identification card indicating his or her honorable retirement from the law-enforcement agency. The uniform may be worn by the officer in retirement only on the following occasions: Police Officer's Memorial Day, Law-Enforcement Appreciation Day, at the funeral of a law-enforcement officer or during any other police ceremony. The honorably retired officer is authorized to acquire a badge of the law-enforcement agency from which he or she is retired with the word "retired" placed on it.

(b) Upon retirement, a police officer is entitled to keep, without charge, his or her service weapon after a determination by the chief of police:

(1) That the police officer is retiring honorably with at least twenty years of recognized law-enforcement service; or

(2) That the police officer is retiring with less than twenty years of service and that he or she is totally physically disabled as a result of service as a police officer.

(c) Notwithstanding the provisions of subsection (b) of this section, the chief of police may not award a service weapon to any police officer who has been declared mentally incompetent by a licensed physician or a court of law, or who, in the opinion of the chief of police, constitutes a danger to any person or the community.

§8-14A-1. Definitions.

Unless the context clearly indicates otherwise, as used in this article:

(1) "Accused officer" means any police officer or firefighter who is the subject of an investigation or interrogation which results in a recommendation of punitive action against him or her.

(2) "Civil service," when followed by the terms "department," "officer" or "accused officer", means any department, officer or accused officer who is subject to the civil service provisions of article fourteen, chapter eight of this code or article fifteen, chapter eight of this code.

(3) "Hearing" means any meeting in the course of an investigatory proceeding, other than an interrogation at which no testimony is taken under oath, conducted by a hearing board for the purpose of taking or inducing testimony or receiving evidence.

(4) "Hearing board" means a board appointed to hold a hearing on a complaint against an accused officer. The hearing board shall consist of three members to be appointed pursuant to paragraph (a), (b) or (c) of this subdivision. Hearing board members appointed under paragraph (b) or (c) of this subdivision may be removed from office as provided under paragraph (d) of this subdivision.

(a) For civil service departments, the department chief shall appoint the first member, the members of the accused officer's department shall appoint the second member, and the first and second members shall appoint the third member by agreement. Should the first and second members fail to agree on the appointment of the third member within five days, they shall submit to the department's civil service commission a list of four qualified candidates from which list the commission shall appoint the third member. The appointment of members under this paragraph shall be subject to the following qualifications and limitations:

(1) No member shall have had any part in the investigation or interrogation of the accused officer;

(2) Each member shall be a police officer or firefighter within the accused officer's department, or, with the department chief's approval, a law-enforcement officer or firefighter from another law-enforcement agency or fire department;

(3) At least one member shall be of the same rank as the accused officer; and

(4) If there are fewer than three persons who meet the qualifications described in subparagraphs (1), (2) and (3) of this paragraph, then the department's civil service commission shall appoint as many citizens of the municipality in which the department is located as may be necessary to constitute the board.

(b) For noncivil service police departments, the hearing board shall be a standing hearing board. The department chief shall appoint the first member, the local fraternal order of police shall appoint the second member, and the local chamber of commerce or local businessmen's association shall appoint the third member. If there is no local fraternal order of police, the state fraternal order of police shall appoint the second member. If there is no local chamber of commerce or local businessmen's association, the first and second members shall appoint the third member by agreement. Of the three original appointments in each police department, the first member shall serve for six years from the date of his or her appointment; the second member shall serve four years from the date of his or her appointment; and the third member shall serve for two years from the date of his or her appointment. After the original appointments, all appointments shall be made for periods of four years each by the designated appointing authority. In the event that any member shall cease to be a member due to death, resignation, final removal or other cause, a new member shall be appointed within thirty days of the date the ex-member ceased to be a member. This appointment shall be made by the officer or body who in the first instance appointed the member who is no longer a member. When the hearing board is appointed, the three members shall elect one of their number to act as president of the board, who shall serve as president for one year. In the event that a member has had a part in the investigation or interrogation of an accused officer or is related by consanguinity or affinity to an accused officer, that member shall be recused from participation in the accused officer's hearing. In such an instance, the officer or body who in the first instance appointed the recused member shall appoint another person for sole purpose of the accused officer's hearing. No member shall hold any other office (other than the office of notary public) under the United States, this state, or any municipality, county or other political subdivision thereof; nor shall any member serve on any political committee or take any active part in the management of any political campaign.

(c) For noncivil service fire departments, the hearing board shall be a standing hearing board. The department chief shall appoint the first member, the local international association of firefighters shall appoint the second member, and the local chamber of commerce or local businessmen's association shall appoint the third member. If there is no local international association of firefighters in the municipality, the local central body of the West Virginia Federation of Labor AFL-CIO shall appoint the second member. If there is no local central body of the West Virginia Federation of Labor AFL-CIO in the municipality, the West Virginia Federation of Labor AFL-CIO shall appoint the second member. If there is no local chamber of commerce or local businessmen's association, the first and second members shall appoint the third member by agreement. Of the three original appointments in each fire department, the first member shall serve for six years from the date of his or her appointment; the second member shall serve four years from the date of his or her appointment; and the third member shall serve for two years from the date of his or her appointment. After the original appointments, all appointments shall be made for periods of four years each by the designated appointing authority. In the event that any member shall cease to be a member due to death, resignation, final removal or other cause, a new member shall be appointed within thirty days of the date the ex-member ceased to be a member. This appointment shall be made by the officer or body who in the first instance appointed the member who is no longer a member. Each of the three members shall elect one of their number to act as president of the board, who shall serve as president for one year. In the event that a member has had a part in the investigation or interrogation of an accused officer or is related by consanguinity or affinity to an accused officer, that member shall be recused from participation in the accused officer's hearing. In such an instance, the officer or body who in the first instance appointed the recused member shall appoint another person for the sole purpose of the accused officer's hearing. No member shall hold any other office (other than the office of notary public) under the United States, this state, or any municipality, county or other political subdivision thereof; nor shall any member serve on any political committee or take any active part in the management of any political campaign.

(d) Any member of a hearing board appointed under paragraph (b) or (c) of this subdivision may be removed as provided in this paragraph.

The mayor of the municipality may, at any time, remove any hearing board member for good cause, which shall be stated in writing and made a part of the records of the hearing board. However, within ten days of removing any member, the mayor shall file in the circuit clerk's office of the county in which the municipality is located a petition setting forth in full the reason for the removal and seeking the circuit court's confirmation of the mayor's removal of the member. The mayor shall file a copy of the petition with the removed member at the same time it is filed with the circuit clerk. The petition shall have precedence on the circuit court's docket and shall be heard as soon as practicable on the request of the removed member. All rights vested in a circuit court by this subsection may be exercised by the judge thereof in vacation. In the event that no term of the circuit court is being held at the time the petition is filed, and the judge thereof cannot be reached in the county in which the petition was filed, the petition shall be heard at the next succeeding circuit court term, whether regular or special, and the removed member shall remain removed until a hearing is held on the petition. The court or the judge thereof in vacation shall hear and decide the issues presented by the petition. The party affected adversely by the court's or judge's decision shall have the right to petition the Supreme Court of Appeals for a review of the decision as in other civil cases. If the mayor fails to file the petition with the circuit clerk's office within ten days as provided above, the removed member shall immediately resume his or her position as a hearing board member.

Any resident of the municipality shall have the right at any time to seek the removal of any hearing board member. To do so, the resident shall file a petition in the circuit clerk's office of the county where the municipality is located. The resident shall also serve a copy of the petition on the member sought to be removed. The petition shall be matured for hearing and heard by the circuit court or the judge thereof in vacation in the same manner as civil proceedings in the circuit courts of this state are heard. Any party adversely affected by the circuit court's or judge's decision shall have the right to petition the Supreme Court of Appeals for a review of the decision as in other civil cases.

(5) "Noncivil service," when followed by the terms "department," "officer" or "accused officer", means any department, officer or accused officer who is not subject to the civil service provisions of article fourteen, chapter eight of this code or article fifteen, chapter eight of this code.

(6) "Police officer or firefighter" or "officer" means any police officer or firefighter of a police or fire department employed by the city or municipality, but shall not include (a) the highest ranking officer of the police or fire department or (b) any noncivil service officer who has not completed the probationary period established by the department by which he or she is employed.

(7) "Punitive action" means any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand or transfer for purposes of punishment.

(8) "Under investigation" or "under interrogation" means any situation in which any police officer or firefighter becomes the focus of inquiry regarding any matter which may result in punitive action.

§8-14A-2. Investigation and interrogation of a police officer or fireman.

When any police officer or fireman is under investigation and subjected to interrogation by his commanding officer, or any other member of the employing police or fire department, which could lead to punitive action, such interrogation shall be conducted under the following conditions:

(1) The interrogation shall be conducted at a reasonable hour, preferably at a time when the police officer or fireman is on duty, or during his normal working hours, unless the seriousness of the investigation requires otherwise. If such interrogation does occur during off-duty time of the police officer or fireman being interrogated at any place other than his residence, such officer or fireman shall be compensated for such off-duty time in accordance with regular department procedure. If the interrogation of the police officer or fireman occurs during his regular duty hours, such officer or fireman shall not be released from employment for any work missed due to interrogation.

(2) Any police officer or fireman under investigation shall be informed of the nature of the investigation prior to any interrogation. Such officer shall also be informed of the name, rank and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation. No more than three interrogators at one time shall question the officer or fireman under investigation.

(3) No police officer or fireman under interrogation shall be subjected to offensive language or threatened with punitive action. No promise of reward shall be made as an inducement to answering questions.

(4) The complete interrogation of any police officer or fireman shall be recorded, either written, taped or transcribed. Upon request of the law-enforcement officer or fireman under investigation or his counsel, and upon advance payment of the reasonable cost thereof a copy of the record shall be made available to him not less than ten days prior to any hearing.

(5) Upon the filing of a formal written statement of charges or whenever an interrogation focuses on matters which are likely to result in punitive action against any police officer or fireman, then that officer or fireman shall have the right to be represented by counsel who may be present at all times during such interrogation.

Nothing herein shall prohibit the immediate temporary suspension, pending an investigation, from duty of any police officer or fireman who reports for duty under the influence of alcohol or controlled substances which would prevent the officer or fireman from performing his duties as defined in chapter sixty-a of this code, or under the influence of an apparent mental or emotional disorder.

§8-14A-3. Hearing.

(a) Before taking any punitive action against an accused officer, the police or fire department shall give notice to the accused officer that he or she is entitled to a hearing on the issues by a hearing board or the applicable civil service commission. The notice shall state the time and place of the hearing and the issues involved and shall be delivered to the accused officer no later than ten days prior to the hearing.

(b) When a civil service accused officer faces a recommended punitive action of discharge, suspension or reduction in rank or pay, but before such punitive action is taken, a hearing board must be appointed and must afford the accused civil service officer a hearing conducted pursuant to the provisions of article fourteen, section twenty, or article fifteen, section twenty-five of this chapter: Provided, That the punitive action may be taken before the hearing board conducts the hearing if exigent circumstances exist which require it.

(c) When a civil service accused officer faces a recommended punitive action of written reprimand or transfer for the purpose of punishment, or when a noncivil service accused officer faces any recommended punitive action, the applicable hearing board shall conduct hearing pursuant to the provisions of subsection (d) of this section.

(d) The following requirements shall govern the operation conduct of a hearing board under subsection (c) of this section:

(1) The hearing board shall keep an official record of each hearing it conducts. The official record shall include the testimony offered and exhibits introduced at the hearing.

(2) Both the police or fire department and the accused officer shall be given ample opportunity to present evidence and argument with respect to any issue raised at the hearing.

(3) The hearing board may subpoena witnesses and administer oaths or affirmations and examine any individual under oath, and may require and compel the production of records, books, papers, contracts and other documents, in connection with any issue raised at the hearing.

(4) The hearing board shall prepare a written order detailing any decision or action it takes as a result of the hearing. The written order shall include written findings of fact setting forth a concise statement of the hearing board's factual findings and conclusions on each issue raised at the hearing. The hearing board shall hand-deliver or promptly mail a copy of the written order to the accused officer or his attorney of record.

(e) A hearing board's order is binding on all parties involved unless it is overturned in the appeal process described in section five of this article.

§8-14A-4. Right to refuse to disclose personal finances; exceptions.

No police officer or fireman shall be required or requested for purposes of job assignment or other personnel action to disclose any item of his property, income, assets, source of income, debts or personal or domestic expenditures unless such information is obtained through proper legal procedures or is necessary for the employing agency to ascertain the desirability of assigning the police officer to a specialized unit in which there is a strong possibility that bribes or other improper inducements might be offered.

§8-14A-5. Appeal.

(a) For civil service departments, a hearing board's decision rendered under subsection (b) or (c), section three of this article may be appealed by the police officer or firefighter adversely affected by the order or by the department chief if he or she believes that the department would be adversely affected by the hearing board's order. An appeal under this subsection shall be made to the applicable civil service commission. Any party aggrieved by the civil service commission's ruling on the appeal may further appeal the civil service commission's ruling pursuant to the provisions of subsection (b), section twenty, article fourteen of this chapter or subsection (b), section twenty-five, article fifteen of this chapter.

(b) For noncivil service departments, a hearing board's decision rendered under subsection (c), section three of this article may be appealed by the police officer or firefighter adversely affected by the order or by the department chief if he or she believes that the department would be adversely affected by the hearing board's order. An appeal under this subsection shall be made to the circuit court of the county in which the police officer or firefighter resides.

§8-15-1. Power and authority of governing body with respect to fires.

The governing body of every municipality shall have plenary power and authority to provide for the prevention and extinguishment of fires and, for this purpose, it may, among other things, regulate how buildings shall be constructed, procure proper engines and implements, provide for the organization, equipment, and government of volunteer fire companies or of a paid fire department, prescribe the powers and duties of the companies or department, and of the several officers, provide for the appointment of officers to have command of firefighting, prescribe what their powers and duties shall be, and impose on those who fail or refuse to obey any lawful command of the officers any penalty which the governing body is authorized by law to impose for the violation of an ordinance. It may give authority to any the officer or officers to direct the pulling down or destroying of any fence, house, building, or other thing, if determined necessary to prevent the spreading of a fire. It may give authority to municipal fire marshals to (1) arrest any individual disobeying lawful orders at the scene of a fire, (2) arrest any individual who violates prohibitions against arson and explosives offenses, malicious burning, obstructing a fire marshal, or failing to obey lawful orders, (3) arrest without a warrant, if the unlawful conduct occurs in their presence, and (4) file criminal complaints with the municipal court or other appropriate judicial officer in order to obtain a warrant for the arrest and initiate a criminal matter: Provided, That any officer given this authority shall receive initial and annual training that complies with Law Enforcement Core Training Standards of the West Virginia State Fire Commission and the West Virginia State Fire Marshal.

§8-15-2. Liability for property pulled down or destroyed to prevent spread of fire.

The owner of any property pulled down or destroyed to prevent the spreading of a fire, as specified in section one of this article, shall be entitled to recover from the municipality the actual property damage which he may have sustained by reason of the same having been pulled down or destroyed: Provided, That no one shall recover compensation for property which would have been destroyed by fire, if the same had not been pulled down or destroyed under direction as specified in section one of this article, but recovery may be had only for what could have been saved with ordinary care and diligence had no such direction been given.

§8-15-3. Municipalities empowered and authorized to contract for prevention and extinguishment of fires beyond the corporate limits.

(a) Any municipality may contract to render services in the prevention and extinguishment of fires upon property located within the state. A municipality may contract beyond its immediate boundary limit for fire service protection if fire protection is provided in accordance with and under a rural fire protection district plan based upon the fire suppression rating schedule approved by the state Insurance Commissioner. All rural fire protection district plans shall be approved by the state Fire Commission. No rural fire protection district plan providing for a municipality to contract beyond its boundary may infringe upon an existing fire department's response area without the written consent of the fire department providing fire services for that area.

No contract entered into under the authority of this section may operate to impose any greater obligation or liability upon the municipality than that with respect to property within its corporate limits. Nothing contained in this section may be construed as requiring any municipality to contract to render such services. A municipality providing fire services under contract to any property outside its corporate limits may offer fire service under contract to any property within the county if the property owner requests the protection.

Any contract entered into under the authority of this section, on or after July 1, 1969, shall require the property owner to pay as consideration for said services an annual payment, determined as provided in the remainder of this subsection. If the municipality does not impose a fire service fee on the users of such service within the municipality as authorized in section thirteen, article thirteen of this chapter, the annual payment shall be equivalent to eighty percent of the annual tax levied for current municipal purposes upon property within said municipality of like assessed valuation to the property under contract. If the municipality does impose a fire service fee on the users of such service within the municipality, as authorized in said section, the annual payment shall be equivalent to the amount of fire service fee which would be imposed if the property under contract were located within the municipality plus at least fifty percent of the annual tax levied for current municipal purposes upon property within said municipality of like assessed valuation to the property under contract. No contract entered into under the authority of this section, and nothing herein contained, may be construed as requiring or permitting any municipality to install or maintain any special additional apparatus or equipment beyond that necessary for the protection of property within its corporate limits.

(b) The annual payments due under any such contract are payable on or before October 1, of each calendar year in which such contract remains in effect, or upon such day as may be hereinafter provided as the due date of the first installment of ad valorem taxes. If any annual payment is in default for a period of more than thirty days, it shall bear interest at the same rate as that provided for delinquent property taxes and shall be a lien upon the property under contract if a notice of such lien is recorded in the proper deed of trust book in the office of the clerk of the county commission of the county in which such property or the major portion thereof is located. Such lien is void at the expiration of two years after such defaulted annual payment became due, unless within such two-year period a civil action seeking equitable relief to enforce the lien was instituted by the municipality. The municipality may by civil action collect any annual payment and the interest thereon at any time within five years after such payment became due; and upon default in any annual payment, the municipality may cancel the contract involved.

(c) Any contract made under the authority of this section shall inure to the benefit of and be binding upon the successors in title of the person making the same contract; and such person, upon conveying the property subject to such contract, is no longer liable under such contract, except as to annual payments which were due prior to the conveyance and which remain unpaid.

(d) Any property owner may cancel any such contract with respect to the property of such owner upon giving a thirty-day written notice to the municipality, if the owner is not in default with respect to any annual payment due thereunder, except that if such notice is given subsequent to July 1, of any calendar year, the next succeeding annual payment shall be made by the property owner as soon as the amount thereof is ascertainable. Upon cancellation as aforesaid, the municipality shall deliver to the property owner a recordable release discharging such owner and such property from any further lien or obligation with respect to the annual payments. The annual payments due under any such contract shall be made to the officials as the municipality, in the contract, designates to receive them, who likewise may receive notice of cancellation and execute upon behalf of the municipality the release for which provision is hereinbefore made.

PART II. VOLUNTEER FIRE COMPANIES.

§8-15-4. Power and authority to form fire companies; recordation of statement; organization.

Any number of persons, not less than twenty, residing within the corporate limits of a municipality without a paid fire department may form themselves into a company for extinguishing fires therein. A writing stating the formation of such company, with the names of the members thereof subscribed thereto, shall be recorded in the office of the clerk of the county commission of the county wherein such municipality or the major portion of the territory thereof is located, after which the members of the company shall elect its officers, including a commander, and make rules and regulations for effecting its object consistent with the laws of the state and the ordinances of such municipality. A volunteer fire company shall be subject to the authority of the governing body.

§8-15-5. Duties of company members; meetings to inspect equipment; report; penalty for noncompliance.

Every member of a volunteer fire company shall, upon any alarm of fire, attend, according to the ordinances of the municipality and the company's rules and regulations, and endeavor to extinguish the fire.

In addition to the meetings required by the ordinances of the municipality and the rules and regulations of the company, semiannual meetings of the company shall be held in April and October, on such days as the commander thereof may appoint, to examine the state of the engine, hose and other equipment, practice therewith and see that the same are in good condition. Within one month after any such semiannual meeting the commander of such company shall make to the governing body a written report of the names of those attending such meeting, together with a written report of the condition of the engine, hose and other equipment. For any failure to comply with the provisions of this section, the commander shall be fined not less than $10 nor more than $25.

§8-15-6. Dissolution of volunteer fire company.

Whenever the governing body shall ascertain that such company has failed, for three months successively, to consist of twenty effective members, or shall ascertain that it has failed for a like period of time to have and keep in good, serviceable condition an engine, hose or other proper equipment, such governing body shall declare such failure and by order dissolve the company.

Whenever a company is dissolved, the order of dissolution shall be recorded in the office of the clerk of the county court of the county wherein such municipality or the major portion of the territory thereof is located.

§8-15-7. Incorporation of volunteer fire companies; duties and obligations; dissolution.

In lieu of forming a company as specified in section four of this article, interested persons may cause the incorporation of a volunteer fire company as a nonstock, nonprofit corporation under the general corporation laws of this state. The corporation and the members thereof shall have all of the duties and obligations imposed upon unincorporated volunteer fire companies and the members thereof by the provisions of sections four and five of this article. The provisions of section six of this article shall be applicable to any such corporation, except that instead of entering an order of dissolution, the governing body shall enter an order directing the members of the corporation to take the necessary action under the general corporation laws of this state to bring about the dissolution of such corporation. Upon the entry of any such order, it shall be the duty of the members of such corporation to comply therewith.

§8-15-8. Support of volunteer fire company; return of property upon dissolution.

Any municipality may contribute to the support of its volunteer fire company by providing a firehouse, firefighting equipment, necessary paid personnel and incidental requirements to maintain such company upon an efficient basis. Upon the dissolution of any such company, all of the property contributed by the municipality shall become the property of and be returned to such municipality.

§8-15-8a. Eligibility for allocation from municipal pensions and protection fund and the Fire Protection Fund.

(a) In order to be eligible to receive revenues allocated from the municipal pensions and protection fund or the Fire Protection Fund, each volunteer or part volunteer fire company or department must meet the following requirements:

(1) Submit and maintain current submission of fire loss data to the State Fire Marshal;

(2) Complete or be in the process of receiving firefighters training, including section one of the West Virginia University fire service extension or its equivalent. The fire company or department must have at least ten members certified as having completed the training or if a volunteer fire company or department has twenty or fewer members, fifty percent of the active volunteer members must have completed such training; and

(3) Comply with all applicable federal and state laws.

(b) Each volunteer or part volunteer fire company or department shall have a grace period of ninety days, beyond the allocation date in which to comply with submission requirements to the State Fire Marshal. The State Fire Marshal shall notify each volunteer or part volunteer fire company or department of the due date for submitting the information required by this section and the grace period by certified mailing requiring signature and a return receipt.

(c) When the records of a volunteer or part volunteer fire company or department are destroyed by a fire or other natural disaster, then the affected volunteer or part volunteer fire company or department is exempt from the provisions of subdivision (1), subsection (a) of this section, for the three months period immediately following the destruction of the records.

§8-15-8b. Authorized expenditures of revenues from the Municipal Pensions and Protection Fund and the Fire Protection Fund; deductions for unauthorized expenditures; record retention.

(a) Money received from the state for volunteer and part-volunteer fire companies and departments, pursuant to §33-3-14d, §33-3-33, and §33-12C-7 of this code, shall be deposited into a bank account dedicated to state received funds and may not be commingled with moneys received from any source other than the state. Distributions from the Municipal Pensions and Protection Fund and the Fire Protection Fund allocated to volunteer and part-volunteer fire companies and departments may be expended only for the following:

(1) Personal protective equipment, including helmet, bunker coats, pants, boots, gloves, or combination of bunker pants and boots, coats, and gloves;

(2) Equipment for compliance with the national fire protection standard or automotive fire apparatus, NFPA-1901;

(3) Compliance with insurance service office recommendations relating to fire departments;

(4) Rescue equipment, communications equipment, and ambulance equipment: Provided, That no moneys received from the Municipal Pensions and Protection Fund or the Fire Protection Fund may be used for equipment for personal vehicles owned or operated by volunteer or part-volunteer fire company or department members;

(5) The direct costs incurred due to the purchase of land, the construction of new facilities, or the expansion of current facilities, when these costs can be demonstrated by the department to increase the effectiveness and efficiency of the fire protection services; as well as maintenance required to maintain the functionality of physical facilities of the department;

(6) Retirement of debts, but only if the debts were incurred exclusively for the purchase of the goods and services allowed under this subsection;

(7) Payment of utility bills, including internet and telephone bills which may include cell phones when the cell phone is used for fire department related work only;

(8) Payment of the cost of immunizations, including any laboratory work incident to the immunizations, for firefighters against hepatitis-b and other blood-borne pathogens only when: (A) purchased through the state immunization program or lowest-cost provider; and (B) no-cost or low-cost administration from local boards of health or other similar programs are unavailable;

(9) Insurance policies, including:

(A) Property/casualty insurance premiums for protection and indemnification against loss or damage or liability;

(B) Life insurance premiums to provide a benefit not to exceed $20,000 for firefighters;

(C) Accident and sickness insurance premiums which may be offered to cover individual members of a volunteer or part-volunteer fire company; or

(D) Umbrella policies that contain various types of insurance policies to protect against loss and liability, so long as life insurance premiums in the amounts prescribed above and property/casualty insurance are part of any umbrella policy;

(10) Operating expenses reasonably required in the normal course of providing effective and efficient fire protection service, which include, but are not limited to, gasoline, bank fees, postage, and accounting costs;

(11) Dues paid to national, state, and county associations;

(12) Workers’ compensation premiums;

(13) Educational and training supplies and fire prevention promotional materials, not to exceed $500 per year; and

(14) Food, bottled water, and food-related items, like disposable plates and utensils, to provide necessary meals and water to a fire company when responding to an emergency and is in no way connected to any fundraising events.

(b) If a volunteer or part-volunteer fire company or department uses any amount of money received from the Municipal Pensions and Protection Fund or the Fire Protection Fund for an item, service, or purpose not authorized by this section, that amount, when determined by an official audit, review, or investigation, shall be deducted from future distributions to the volunteer fire company or part-volunteer fire department.

(c) If a volunteer or part-volunteer fire company or department purchases goods or services authorized by this section, but then returns the goods or cancels the services for a refund, then any money refunded shall be deposited back into the same, dedicated bank account used for the deposit of distributions from the Municipal Pensions and Protection Fund and the Fire Protection Fund.

(d) A volunteer or part-volunteer fire company or department shall have a dedicated bank account for all funds received from the Municipal Pensions and Protection Fund, the Fire Protection Fund, and any other state distribution, including state grant money.

(1) Any distributions received from the Municipal Pensions and Protection Fund or the Fire Protection Fund shall remain in the bank account dedicated to receiving state funds and be used in accordance with this section.

(2) All other moneys, including state grants, must be transferred out of the account used to receive state funds and transferred into another bank account within 60 days of receipt and such transfer must be in the exact amount of the deposit. If any money is received from sources other than the Municipal Pensions and Fire Protection Fund or the Fire Protection Fund and is not transferred to another account within 60 days, the money may only be used in accordance with this section.

(e) Each volunteer or part-volunteer fire company and department shall retain, for five calendar years, all invoices, receipts, and payment records for the goods and services paid with money received from the state for volunteer and part-volunteer fire companies and departments, pursuant to §33-3-14d, §33-3-33, and §33-12C-7 of this code and money received as a grant from the Fire Service Equipment and Training Fund as provided in §29-3-5f of this code.

(f) Volunteer and part-volunteer fire companies and departments may also invest the received moneys, described in subsection (a) of this section, and collect interest thereon: Provided, That volunteer and part-volunteer fire companies and departments shall not commingle the received moneys with funds received from any other source, shall not use the invested money as collateral or security for any loan, and shall retain all resulting statements of accounts and earnings for a minimum of five years from the date of the statements.

§8-15-8c. Donation of equipment.

(a) Effective July 1, 2002, no person, company or other organization who donates fire control or rescue equipment, including federal excess or surplus property, to a volunteer fire department is subject to civil liability for any personal injury, property damages or death resulting from any defect in the equipment unless the person, company or organization acted with malice, gross negligence, recklessness or intentional misconduct which proximately caused the personal injury, property damages or death.

(b) For purposes of this section, "fire control or rescue equipment" means a vehicle, fire fighting tool, protective gear, breathing apparatus or other supply or tool used in fire fighting or fire rescue. No breathing apparatus may be donated unless, prior to the donation, it has been recertified to the manufacturer's specifications by a technician approved by the manufacturer.

(c) Unless the insured has executed a specific written rejection of such coverage in the policy, any insurer who has sold, issued or delivered an insurance policy providing liability coverage to any person, company or other organization who donates fire control or rescue equipment is barred and estopped from asserting the civil immunity granted to the insured by this section against claims or suits covered by the terms of the policy, up to the limits of the policy.

The limitation on civil liability set forth in the provisions of this section applies only to policies of insurance issued or renewed on or after July 1, 2001.

PART III. PAID FIRE DEPARTMENTS.

§8-15-9. Establishment and maintenance of paid fire department.

Any municipality may provide for, establish, equip and maintain a full-time paid fire department. A paid fire department shall be subject to the authority, control and discipline of the administrative authority. For the purposes of this article, the term "paid fire department" shall be taken to mean only a municipal fire department maintained and paid for out of public funds and whose employees are paid on a full-time basis out of public funds. The term shall not be taken to mean a department whose employees are paid nominal salaries or wages or are only paid for services actually rendered on an hourly basis.

§8-15-10. Hours of duty for firemen in a paid fire department.

On and after the effective date of this section, the members of a paid fire department, without any reduction in their total annual compensation as such members, shall not be required to remain on duty in excess of one hundred twelve hours during any fourteen consecutive days' period. The members of any such paid fire department shall, by a majority vote, determine the schedule of hours to be worked in any twenty-four-hour period: Provided, That the members of any paid fire department shall not remain on duty for more than twenty-four consecutive hours except in case of an emergency requiring the service of more than one half of the department. The chief executive officer of the department is hereby empowered, authorized and directed to make the necessary assignments as provided in this section.

§8-15-10a. Firemen who are required to work during holidays; how compensated.

From the effective date of this section, if any member of a paid fire department is required to work during a legal holiday as is specified in subsection (a), section one, article two, chapter two of this code, or if a legal holiday falls on the member's regular scheduled day off, he or she shall be allowed equal time off at such time as may be approved by the chief executive officer of the department under whom he or she serves or, in the alternative, shall be paid at a rate not less than one and one-half times his or her regular rate of pay: Provided, That if a special election of a political subdivision other than a municipality falls on a Saturday or Sunday, the municipality may choose not to recognize the day of the election as a holiday if a majority of the municipality's city council votes not to recognize the day of the election as a holiday.

§8-15-10b. Mandatory safety procedures for situations deemed immediately dangerous to life and health.

(a) For the purposes of this article:

(1) "Immediately dangerous to life or health" or "IDLH" means an atmosphere that poses an immediate threat to life, would cause irreversible adverse health effects, or would impair an individual's ability to escape from a dangerous atmosphere.

(2) "Interior structural fire fighting" means the physical activity of fire suppression, rescue or both, inside of buildings or enclosed structures which are involved in a fire situation beyond the incipient stage.

(3) "Self-contained breathing apparatus" or "SCBA" means an atmosphere supplying respirator for which the breathing air source is designed to be carried by the user.

(b) In all atmospheres that are immediately dangerous to life or health, the fire department or company shall ensure that:

(1) One or, when needed, more than one firefighter, is located outside the IDLH atmosphere;

(2) Visual, voice or signal line communication is maintained between all firefighters in the IDLH atmosphere and those outside the IDLH atmosphere;

(3) All firefighters located outside the IDLH atmosphere are trained and equipped to provide effective emergency rescue;

(4) The fire department or company, or designee authorized by the fire department or company, is notified before any firefighter located outside the IDLH atmosphere enters the IDLH atmosphere to provide emergency rescue;

(5) Once notified, the fire department or company, or designee authorized by the fire department or company, provides necessary assistance appropriate to the situation;

(6) All firefighters located outside the IDLH atmospheres are equipped with:

 Pressure demand or other positive pressure self-contained breathing apparatus or a pressure demand or other positive pressure supplied-air respirator with an auxiliary SCBA, and either:

(A) Appropriate retrieval equipment for removing all firefighters who enter IDLH atmospheres where retrieval equipment would contribute to the rescue of the firefighters and would not increase the overall risk resulting from entry; or

(B) Equivalent means of rescue where retrieval equipment is not required or not available.

(c) In addition to the requirements set forth under subsection (b) of this section, when firefighters are engaging in interior structural fire fighting, the fire department or company shall ensure that:

(1) At least two firefighters enter the IDLH atmosphere and remain in visual or voice contact with one another at all times;

(2) At least two firefighters are located outside the IDLH atmosphere; and

(3) All firefighters engaged in interior structural fire fighting use an SCBA.

(d) Nothing in this section is meant to preclude:

(1) The assignment of one of the firefighters located outside the IDLH atmosphere to an additional role, such as incident commander in charge, emergency officer or safety officer, so long as this firefighter is able to perform assistance or rescue activities without jeopardizing the safety or health of any firefighter working in the IDLH atmosphere; and

(2) The performance of emergency rescue activities by firefighters before an entire team has assembled.

§8-15-11. Qualifications for appointment or promotion to positions in paid fire departments to be ascertained by examination; provisions exclusive as to appointments, etc.; rights of certain chiefs; "appointing officer" defined.

(a) All appointments and promotions to all positions in all paid fire departments shall be made only according to qualifications and fitness to be ascertained by examinations, which, so far as practicable, shall be competitive, as hereinafter provided.

(b) No individual may be appointed, promoted, reinstated, removed, discharged, suspended or reduced in rank or pay as a paid member of any paid fire department, regardless of rank or position, in any manner or by any means other than those prescribed in this article: Provided, That in all municipalities in which the office of fire chief of a paid fire department was not covered by the provisions of former article six-a of this chapter on January 1, 1949, the office in the municipality shall be excepted from the civil service provisions of article fifteen of this chapter, until the time the governing body of the municipality shall, by appropriate ordinance or resolution adopted by a majority of its members, elect to place the office of fire chief under the civil service provisions of this article.

(c) Until the office of fire chief is placed under the civil service provisions of this article by the governing body, the member of any paid fire department now occupying such office or hereafter appointed to such office shall in all cases of removal, except for removal for good cause, retain the status he or she held in the paid fire department at the time of his or her appointment to the office of fire chief or which he or she attained during his or her term as fire chief.

(d) The term "appointing officer" as used in this article shall mean the municipal officer in whom the power of appointment of members of a paid fire department is vested by charter provision or ordinance of the municipality.

§8-15-12. Firemen's civil service commission generally.

In every municipality having a paid fire department, there shall be a "Firemen's Civil Service Commission." The commission shall consist of three commissioners, one of whom shall be appointed by the mayor of the municipality; one of whom shall be appointed by the local international association of fire fighters in the event that said local exists in the municipality, or in case no such local exists in the municipality, then by the local central body of the West Virginia Federation of Labor AFL-CIO in the event that said central body exists in the municipality, or in case that no such central body exists in the municipality, then by the West Virginia Federation of Labor AFL-CIO; and the third shall be appointed by the local chamber of commerce, or if there be none, by a local businessmen's association. The individuals appointed commissioners shall be qualified voters of the municipality for which they are appointed; and at least two of said commissioners shall be individuals in full sympathy with the purposes of the civil service provisions of this article. Not more than two of the said commissioners, at any one time, shall be adherents of the same political party. Of the three original appointments in each municipality, the first commissioner shall be appointed by the mayor and shall serve for six years from the date of his appointment; the second commissioner shall be appointed by the local trades board, or in the absence of such board, by the international association of fire fighters, and shall serve for four years from the date of his appointment; and the third commissioner shall be appointed by the local chamber of commerce or local businessmen's association and shall serve for two years from the date of his appointment. In the event there is no local chamber of commerce or local businessmen's association at the time any appointment is to be made by it, such appointment shall be made by the other two commissioners by mutual agreement. After the original appointments, all appointments shall be made for periods of four years each by the appointing authority hereinbefore designated. In the event that any commissioner of said civil service commission shall cease to be a member thereof by virtue of death, final removal or other cause, a new commissioner shall be appointed to fill the unexpired term of said commissioner within ten days after said ex-commissioner shall have ceased to be a member of said commission. Such appointment shall be made by the officer or body who in the first instance appointed the commissioner who is no longer a member of the commission. Each year the three members of the commission shall, together, elect one of their number to act as president of the commission, who shall serve as president for one year. The mayor may, at any time, remove any commissioner or commissioners for good cause, which shall be stated in writing and made a part of the records of the commission: Provided, That once the mayor has removed any commissioner, the mayor shall within ten days thereafter file in the office of the clerk of the circuit court of the county in which the municipality or the major portion of the territory thereof is located a petition setting forth in full the reason for said removal and praying for the confirmation by said circuit court of the action of the mayor in so removing the said commissioner. A copy of said petition shall be served upon the commissioner so removed simultaneously with its filing in the office of the clerk of the circuit court and shall have precedence on the docket of said court and shall be heard by said court as soon as practicable upon the request of the removed commissioner or commissioners. All rights herein vested in said circuit court may be exercised by the judge thereof in vacation. In the event that no term of the circuit court is being held at the time of the filing of said petition, and the judge thereof cannot be reached in the county wherein the petition was filed, said petition shall be heard at the next succeeding term of said circuit court, whether regular or special, and the commissioner or commissioners so removed shall remain removed until a hearing is had upon the petition of the mayor. The court or the judge thereof in vacation shall hear and decide the issues presented by said petition. The mayor or commissioner or commissioners, as the case may be, against whom the decision of the court or the judge thereof in vacation shall be rendered, shall have the right to petition the supreme court of appeals for a review of the decision of the circuit court or the judge thereof in vacation as in other civil cases. In the event that the mayor shall fail to file his petition in the office of the clerk of the circuit court, as hereinbefore provided, within ten days after the removal of said commissioner or commissioners, such commissioner or commissioners shall immediately resume his or their position or positions as a member or members of the firemen's civil service commission.

Any resident of the municipality shall have the right at any time to file charges against and seek the removal of any member of the firemen's civil service commission of such municipality. Such charges shall be filed in the form of a petition in the office of the clerk of the circuit court of the county in which the municipality or the major portion of the territory thereof is located, and a copy of said petition shall be served upon the commissioner or commissioners sought to be removed. Said petition shall be matured for hearing and heard by said circuit court or the judge thereof in vacation in the same manner as civil proceedings in the circuit courts of this state are heard, and the party against whom the circuit court's decision is rendered shall have the right to petition the supreme court of appeals for a review of the action of the circuit court, as in other civil cases.

No commissioner shall hold any other office (other than the office of notary public) under the United States, this state or any municipality, county or other political subdivision thereof; nor shall any commissioner serve on any political committee or take any active part in the management of any political campaign.

§8-15-13. Recorder ex officio clerk of commission; clerical and stenographic services.

The recorder of the municipality shall be ex officio clerk of the firemen's civil service commission and shall supply to the commission without extra compensation all necessary clerical and stenographic services for the work of the commission.

§8-15-14. Rooms, stationery, etc., to be furnished by municipality; appropriations required.

It shall be the duty of the mayor and the heads of the departments of government of every municipality having a paid fire department to cause suitable and convenient rooms and accommodations to be assigned and provided, furnished, heated and lighted for carrying on the work and examinations of the commission. The commission may order from the proper authorities the necessary stationery, postage stamps, official seal and other articles to be supplied, and the necessary printing to be done, for its official use. It shall be the duty of the officers of every such municipality to aid the commission in all proper ways in carrying out the civil service provisions of this article, and to allow the reasonable use of public buildings, and to heat and light the same, for holding examinations and investigations, and in all proper ways to facilitate the same.

All municipalities subject to the civil service provisions of this article are hereby required to appropriate sufficient funds for the purpose of carrying out such provisions.

§8-15-15. Powers, authority and duties of firemen's civil service commission.

The firemen's civil service commission in each municipality shall:

(1) Prescribe and enforce rules and regulations for carrying into effect the civil service provisions of this article. All rules and regulations so prescribed may, from time to time, be added to, amended or rescinded: Provided, That all rules and regulations shall be approved by the mayor and the governing body before they go into effect, but when so approved shall not be changed or rescinded except by the commission with the approval of the mayor and governing body: Provided, however, That if the mayor and governing body take no action on a proposed rule and regulation or a proposed change or rescission submitted to them within a period of twenty days from the date of submission, then the same shall become effective as though approved by the mayor and governing body.

(2) Keep minutes of its own proceedings, and records of its examinations and other official actions. All recommendations of applicants for office, received by the said commission or by any officer having authority to make appointments to office, shall be kept and preserved for a period of ten years, and all such records, recommendations of former employees excepted, and all written causes of removal, filed with it, shall, subject to reasonable regulation, be open to public inspection.

(3) Make investigations, either sitting as a body or through a single commissioner, concerning all matters touching the enforcement and effect of the civil service provisions of this article and the rules and regulations prescribed hereunder or concerning the action of any examiner or subordinate of the commission or any individual in the public service with respect to the execution of the civil service provisions of this article; and, in the course of such investigations, each commissioner shall have the power to administer oaths and affirmations, and to take testimony.

(4) Have the power to subpoena and require the attendance of witnesses, and the production thereby of books and papers pertinent to the investigations and inquiries herein authorized, and examine them and such public records as it shall require, in relation to any matter which it has the authority to investigate. The fees of such witnesses for attendance and travel shall be the same as for witnesses before the circuit courts of this state, and shall be paid from the appropriation for the incidental expenses of the commission. All officers in the public service, and their deputies, clerks, subordinates and employees shall attend and testify when required to do so by said commission. Any disobedience to, or neglect of, any subpoena issued by the said commissioners, or any one of them, to any person, shall be held a contempt of court, and shall be punished by the circuit court of the county in which the municipality or the major portion of the territory thereof is located, or the judge thereof in vacation, as if such subpoena had been issued therefrom. The judge of such court shall, upon the application of any one of said commissioners, in any such case, cause the process of said court to issue to compel such person or persons disobeying or neglecting any such subpoena to appear and to give testimony and produce evidence before the said commissioners, or any one of them, and shall have the power to punish any such contempt.

(5) Make an annual report to the mayor showing its own actions, and its rules and regulations, and all of the exceptions thereto in force, and the practical effects thereof, and any suggestions it may have for the more effectual accomplishment of the purposes of the civil service provisions of this article. Such report shall be made available for public inspection within five days after the same shall have been delivered to the mayor of the municipality.

§8-15-16. Rules for all examinations; probationary appointments.

The firemen's civil service commission in each municipality shall make rules providing for both competitive and medical examinations for appointments and promotions to all positions in the paid fire department in the municipality, and for other matters as are necessary to carry out the purposes of the civil service provisions of this article. Any commission shall have the power and authority to require by rules a physical fitness examination as a part of its competitive examination or as a part of its medical examination: Provided, That after June 30, 1981, the medical requirements for appointment to all positions in the paid fire department in the municipality shall include, but not be limited to, the medical requirements stated in section sixteen, article twenty-two of this chapter. Due notice of the contents of the rules and of any modifications thereof shall be given, by mail, in due season, to the appointing officer; and the rules and any modifications thereof shall also be printed for public distribution. All original appointments to any positions in a paid fire department subject to the civil service provisions of this article shall be for a probationary period of one year: Provided, however, That at any time during the probationary period the probationer may be discharged for just cause, in the manner provided in section twenty-five of this article. If, at the close of this probationary term, the conduct or capacity of the probationer has not been satisfactory to the appointing officer, the probationer shall be notified, in writing, that he or she will not receive absolute appointment, whereupon his or her employment shall cease; otherwise, his or her retention in the service shall be equivalent to his or her final appointment.

§8-15-16a. Apprenticeship programs.

Any paid municipal fire department may have an apprenticeship program. If a paid municipal fire department has an apprenticeship program and the program has a final apprenticeship examination, an apprentice shall be terminated from employment after three unsuccessful attempts to pass the final apprenticeship examination. The provisions of this section apply to apprentices hired after March 31, 2003.

§8-15-17. Form of application; age and residency requirements; exceptions.

(a) The Firemen’s Civil Service Commission in each municipality shall require individuals applying for admission to any competitive examination provided for under the civil service provisions of this article or under the rules of the commission to file in its office, within a reasonable time prior to the proposed examination, a formal application in which the applicant shall state under oath or affirmation:

(1) His or her full name, residence, and post office address;

(2) His or her United States citizenship, age, and the place and date of his or her birth;

(3) His or her state of health, and his or her physical capacity for the public service;

(4) His or her business and employments and residences for at least three previous years; and

(5) Any other information reasonably required, touching upon the applicant’s qualifications and fitness for the public service.

(b) Blank forms for the applications shall be furnished by the commission, without charge, to all individuals requesting the same.

(c) The commission may require, in connection with the application, certificates of citizens, physicians, and others, having pertinent knowledge concerning the applicant, as the good of the service requires.

(d) Except as provided in subsections (e), (f), and (g) of this section, the commission may not accept an application for original appointment if the individual applying is less than 18 years of age or more than 35 years of age at the date of his or her application.

(e) If any applicant is an honorably discharged veteran of any branch of the United States armed forces, armed services reserve, or National Guard, then the individual may apply for an original appointment if the applicant is not more than 40 years of age.

(f) If any applicant formerly served upon the paid fire department of the municipality to which he or she makes application for a period of more than one year, and resigned from the department at a time when there were no charges of misconduct or other misfeasance pending against the applicant within a period of two years next preceding the date of his or her application, and at the time of his or her application resides within the corporate limits of the municipality in which the paid fire department to which he or she seeks appointment by reinstatement is located, then the individual is eligible for appointment by reinstatement in the discretion of the Firemen’s Civil Service Commission, even though the applicant is over the age of 35 years, and the applicant, providing his or her former term of service so justifies, may be appointed by reinstatement to the paid fire department without a competitive examination. The applicant shall undergo a medical examination; and if the individual is so appointed by reinstatement to the paid fire department, he or she shall be the lowest in rank in the department next above the probationers of the department and may not be entitled to seniority considerations.

(g) If an individual is presently employed by one paid fire department and is over the age of 35, he or she may make an application to another paid fire department if:

(1) The paid fire department to which he or she is applying is serving a municipality that has elected to participate in the West Virginia Municipal Police Officers and Firefighters Retirement System created in §8-22A-1 et seq. of this code: Provided, That any individual applying pursuant to this subdivision is to be classified as a new employee for retirement purposes and prior employment service may not be transferred to the West Virginia Municipal Police Officers and Firefighters Retirement System; or

(2) The paid fire department to which he or she is applying is serving a municipality that has elected to participate in the West Virginia Public Employees Retirement System created in §5-10-1 et seq. of this code: Provided, That any individual applying pursuant to this subdivision is to be classified as a new employee for retirement purposes and prior employment service may not be transferred to the West Virginia Public Employees Retirement System, except for individuals and their prior employment service already credited to them in the West Virginia Public Employees Retirement System pursuant to §5-10-1 et seq. of this code.

(h) Individuals who are authorized to apply to a paid fire department pursuant to subsection (f) of this section shall be in the lowest rank of the department and are not entitled to seniority considerations.

(i) Notwithstanding charter provisions to the contrary, any applicant for original appointment need not be a resident of the municipality or the county in which he or she seeks to become a member of the paid fire department.

§8-15-18. Character and notice of competitive examinations; qualifications of applicants; press representatives; posting eligible list; medical examinations.

All competitive examinations for appointments or promotions to all positions shall be practical in their character, and shall relate to such matters, and include such inquiries, as will fairly and fully test the comparative merit and fitness of the individual or individuals examined to discharge the duties of the employment sought by him or them. All competitive examinations shall be open to all applicants who have fulfilled the preliminary requirements specified in the other civil service provisions of this article.

Adequate public notice of the date, time and place of every competitive examination, together with information as to the kind of position to be filled, shall be given at least one week prior to such competitive examination. The said commission shall adopt reasonable rules and regulations for permitting the presence of representatives of the press at any such competitive examination. The commission shall post, in a public place at its office, the eligible list, containing the names and grades of those who have passed such competitive examinations for positions in the paid fire department, and shall indicate thereon such appointments as may be made from said list.

All applicants for appointment or promotion to any position in a paid fire department who have passed the competitive examination specified above shall, before being appointed or promoted, undergo a medical examination which shall be conducted under the supervision of a board composed of two doctors of medicine appointed for such purpose by the mayor of the municipality. Such board must certify that an applicant is free from any bodily or mental defects, deformity or diseases which might incapacitate him from the performance of the duties of the position desired and is physically fit to perform such duties before said applicant shall be appointed or promoted to any position. Notwithstanding the first sentence of this paragraph, in the event the commission deems it expedient, the medical examination may be given prior to the competitive examination, and if the medical examination is not passed as aforesaid, the applicant shall not be admitted to the competitive examination.

§8-15-18a. Individual review of test and answers from promotional examination.

(a) Any applicant for promotion to any position in a paid fire department may personally review such applicant's examination questions, answers and scores to all parts of any competitive examination within five days after the posting of results of the competitive examination. Such five days shall not include the days the examination results are posted, nor any day that the office of the recorder of the city is not open for business to the public. The commission shall not certify the list of eligibles until all procedures before the commission under this section have been exhausted. The commission shall provide any applicant requesting review of such applicant's examination questions, answers and scores with a location to review such materials.

(b) If any applicant feels aggrieved by the answers and/or scores received on a promotional competitive examination, the commission shall, at the request of such applicant made within five days as calculated above, appoint a date, time and place for a public hearing, at which time such applicant may appear, with or without counsel. The commission shall review all parts of the competitive examination questions, answers and scores of the aggrieved applicant, and testimony shall be taken. The commission shall subpoena, at the expense of the applicant, any competent witnesses requested by such applicant.

(c) After such review, the commission shall render a decision either in favor of the applicant, and therefore adjust the eligibility list to provide for such applicant's adjusted score, or the commission shall rule that the applicant's prior score should remain unchanged. Any decision rendered by the commission under this section shall be in writing and shall set forth findings of fact and conclusions of law relied upon to reach such decision.

(d) The commission shall not certify a list of eligibles after the completion of a competitive promotional examination until all applicants for such position have exhausted the procedures before the commission set forth in this section.

(e) If any applicant is aggrieved by a decision rendered by the commission under this section, such applicant may, within twenty days of the date of the commission's decision, seek judicial review thereof in the circuit court of the county wherein such municipality is located. Nothing in this section shall be construed as depriving such applicant of the right to seek a writ of mandamus to the appropriate court within the time specified in this subsection.

§8-15-19. Refusal to examine or certify; review thereof.

The commission may refuse to examine an applicant, or after examination to certify as eligible one, who is found to lack any of the established preliminary requirements for the examination or position for which he applies; or who is physically so disabled as to be rendered unfit for the performance of the duties of the position desired; or who is addicted to the habitual use of intoxicating liquors or drugs; or who has been guilty of any crime or of infamous or notoriously disgraceful conduct; or who has been dismissed from public service for delinquency or misconduct; or who has made a false statement of any material fact, or practiced or attempted to practice any deception or fraud, in his application, in any such examination, or in securing his eligibility; or who refuses to comply with the rules and regulations of the commission.

If any applicant feels aggrieved by the action of the commission in refusing to examine him, or after an examination in refusing to certify him as an eligible, the commission shall, at the request of such applicant, appoint a date, time and place for a public hearing; at which time such applicant may appear, by himself or counsel, or both, and the commission shall then review its refusal to make such examination or certification, and testimony shall be taken. The commission shall subpoena, at the expense of the applicant, any competent witnesses requested by him. After such review, the commission shall file in its records the testimony taken, and shall again make a decision, which decision shall be final and not subject to judicial review, but under no circumstances shall the provisions of this article be construed, in the case of a refusal to examine an applicant for promotion or to certify an applicant as eligible for promotion, as depriving such applicant of his right to seek a writ of mandamus, if the application for such writ is made within twenty days from the date of the decision refusing to examine or to certify him as eligible for promotion.

§8-15-20. Appointments from list of eligible applicants; special examinations for electricians or mechanics.

(a) Every position, unless filled by promotion, reinstatement, or reduction, shall be filled only in the manner specified in this section. The appointing officer shall notify the Firemen’s Civil Service Commission of any vacancy in a position which he or she desires to fill, and shall request the certification of eligible applicants. The commission shall immediately certify, from the eligible list, the names of the three individuals on the eligible list who received the highest averages at preceding competitive examinations held under the civil service provisions of this article within a period of three years next preceding the date of the prospective appointment. The appointing officer shall, with sole reference to the relative merit and fitness of the candidates, make an appointment from the three certified names: Provided, That if the appointing officer objects, to the commission, to one or more of these individuals, for any of the reasons stated in §8-15-19 of this code, and the objection is sustained by the commission, after a public hearing along the lines of the hearing provided for in §8-15-19 of this code, if a hearing is requested, the commission shall strike the name of the individual from the eligible list, and certify the next highest name for each individual stricken. As each subsequent vacancy occurs, in the same or another position, precisely the same procedure shall be followed: Provided, however, That after any name has been rejected three times for the same or another position in favor of a name or names below it on the same list, the name shall be stricken from the list. When there are a number of positions of the same kind to be filled at the same time, each appointment shall, nevertheless, be made separately and in accordance with the provisions of this section. When an appointment is made under the provisions of this section it shall be, in the first instance, for the probationary period of six months, as provided in §8-15-16 of this code: Provided further, That in the event any position as an electrician or mechanic is to be filled in any paid fire department, then the examinations to be given to applicants for either position shall be drawn to test only the qualifications of the applicants in regard to their ability as electricians or mechanics, the examinations to be special examinations.

(b) If there are not enough eligible applicants to certify a list of three, then the appointing officer may appoint a qualified individual to fill the position.

§8-15-20a. Special examination for firefighter paramedic.

(a) A municipality with a firefighter's civil service commission providing an advanced life support ambulance service licensed by the state health department may also administer a special examination for the position of firefighter paramedic.

(b) An applicant for the position of firefighter paramedic shall: (1) Be a certified paramedic; (2) successfully pass the firefighter paramedic examination; and (3) meet the requirements of section seventeen of this article.

(c) Any person employed as a firefighter paramedic under the provisions of this section shall: (1) Maintain paramedic certification; (2) complete all required fire service training; and (3) comply with all other provisions of this article applicable to the continued employment of firefighters.

(d) Every position of firefighter paramedic, unless filled by promotion, reinstatement, reduction or a current firefighter, shall be filled only in the manner specified in section twenty of this article.

§8-15-21. Noncompetitive examination for filling vacancy; provisional appointment.

Whenever there are urgent reasons for filling a vacancy in any position in a paid fire department and there is no list of individuals eligible for appointment after a competitive examination, the appointing officer may nominate an individual to the firemen's civil service commission for noncompetitive examination; and if such nominee shall be certified by the said commission as qualified, after such noncompetitive examination and a medical examination, he may be appointed provisionally, to fill such vacancy until a selection and appointment can be made after competitive examination, in the manner prescribed in section twenty of this article; but such provisional appointment shall not continue for a longer period than three months, nor shall successive provisional appointments be made to the same position, under the provisions of this section.

§8-15-22. Vacancies filled by promotions; eligibility for promotion.

Vacancies in positions in a paid fire department shall be filled, so far as practicable, by promotions from among individuals holding positions in the next lower grade in the department. Promotions shall be based upon experience and by competitive written examinations to be provided by the firemen's civil service commission: Provided, That no individual shall be eligible for promotion from the lower grade to the next higher grade until such individual shall have completed at least two years of continuous service in the next lower grade in the department immediately prior to said examination and has completed the registered apprenticeship and certification program under article fifteen-a, chapter eight of this code: Provided, however, That completion of the registered apprenticeship and certification program as a requirement for promotion shall apply only to those firefighters employed since June 12, 1987. The commission shall have the power to determine in each instance whether an increase in salary constitutes a promotion.

§8-15-23. No inquiry shall be made concerning political or religious opinions or affiliations of applicants, etc.

No question in any form of application or in or during any examination shall be so framed as to elicit information concerning the political or religious opinions or affiliations of any applicant; nor shall inquiry be made concerning such opinions or affiliations; and all disclosures thereof shall be discountenanced. No discrimination shall be exercised, threatened or promised by any individual in a paid fire department against, or in favor of, an applicant, eligible, or member of a paid fire department because of his political or religious opinions or affiliations.

§8-15-24. Political activities of members prohibited; exceptions.

(a) No member of any paid fire department may:

(1) Solicit any assessment, subscription or contribution for any political party, committee or candidate from any person who is a member or employee of the same fire department by which they are employed;

(2) Use any official authority or influence, including, but not limited to, the wearing by a member of a paid fire department of his or her uniform, for the purpose of interfering with or affecting the nomination, election or defeat of any candidate or the passage or defeat of any ballot issue: Provided, That this subdivision shall not be construed to prohibit any member of a paid fire department from casting his or her vote at any election while wearing his or her uniform;

(3) Coerce or command anyone to pay, lend or contribute anything of value to a party, committee, organization, agency or person for the nomination, election or defeat of a ballot issue; or

(4) Be a candidate for or hold any other public office in the municipality in which he or she is employed: Provided, That any paid member of a fire department that is subject to the provisions of 15 U.S.C. §1501 et seq., may not be a candidate for elective office.

(b) Other types of partisan or nonpartisan political activities not inconsistent with the provisions of subsection (a) of this section are permissible political activities for members of paid fire departments.

(c) No person shall be appointed or promoted to or demoted or dismissed from any position in a paid fire department or in any way favored or discriminated against because of his or her engagement in any political activities authorized by the provisions of this section. Any elected or appointed official who violates the provisions of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by the penalties contained in section twenty-six, article fifteen, chapter eight of this code.

§8-15-25. Removal, discharge, suspension or reduction in rank or pay; hearing; attorney fees; appeal; reduction in number of members.

(a) No member of any paid fire department subject to the civil service provisions of this article may be removed, discharged, suspended or reduced in rank or pay except for just cause, which may not be religious or political, except as provided in section twenty-four of this article; and no such member may be removed, discharged, suspended or reduced in rank or pay except as provided by the civil service provisions of this article, and in no event until the member has been furnished with a written statement of the reasons for the action. In every case of such removal, discharge, suspension or reduction, a copy of the statement of reasons therefor and of the written answer thereto, if the member desires to file such written answer, shall be furnished to the firemen's civil service commission and entered upon its records. If the member demands it, the commission shall grant a public hearing, which hearing shall be held within a period of ten days from the filing of the charges in writing or the written answer thereto, whichever shall last occur. At the hearing, the burden shall be upon the removing, discharging, suspending or reducing officer, hereinafter in this section referred to as "removing officer", to show just cause for his or her action, and in the event the removing officer fails to show just cause for the action before the commission, then the member shall be reinstated with full pay, forthwith and without any additional order, for the entire period during which the member may have been prevented from performing his or her usual employment, and no charges may be officially recorded against the member's record. The member, if reinstated or exonerated, shall, if represented by legal counsel, be awarded reasonable attorney fees to be determined by the commission and paid by the governing body. A written record of all testimony taken at the hearing shall be kept and preserved by this commission, which record shall be sealed and not be open to public inspection unless an appeal is taken from the action of the commission.

(b) In the event the commission sustains the action of the removing officer, the member has an immediate right of appeal to the circuit court of the county wherein the municipality or the major portion of the territory thereof is located. In the event that the commission reinstates the member, the removing officer has an immediate right of appeal to the circuit court. In the event either the removing officer or the member objects to the amount of the attorney fees awarded to the member, the objecting party has an immediate right of appeal to the circuit court. Any appeal must be taken within ninety days from the date of entry by the commission of its final order. Upon an appeal being taken and docketed with the clerk of the circuit court of the county, the circuit court shall proceed to hear the appeal upon the original record made before the commission and no additional proof may be permitted to be introduced. The circuit court's decision is final, but the member or removing officer, as the case may be, against whom the decision of the circuit court is rendered has the right to petition the Supreme Court of Appeals for a review of the circuit court's decision as in other civil cases. The member or removing officer also has the right, where appropriate, to seek, in lieu of an appeal, a writ of mandamus. The member, if reinstated or exonerated by the circuit court or by the Supreme Court of Appeals, shall, if represented by legal counsel, be awarded reasonable attorney fees as approved by the court and the fees shall be paid by the governing body.

(c) The removing officer and the member shall at all times, both before the commission and upon appeal, be given the right to employ counsel to represent them.

(d) If for reasons of economy or other reasons it is deemed necessary by any such municipality to reduce the number of paid members of its paid fire department, the municipality shall follow the procedure set forth in this subsection. The reduction in members of the paid fire department of the municipality shall be effected by suspending the last person or persons, including probationers, who have been appointed to the paid fire department. The removal shall be accomplished by suspending the number desired in the inverse order of their appointment: Provided, That in the event the said paid fire department is increased in numbers to the strength existing prior to the reduction of members, the members suspended under the terms of this subsection shall be reinstated in the inverse order of their suspension before any new appointments to said paid fire department are made.

§8-15-26. Offenses and penalties.

Any individual who makes an appointment or promotion to any position, or selects an individual for employment contrary to the civil service provisions of this article, or willfully refuses or neglects otherwise to comply with, or to conform to, any of the civil service provisions of this article, or violates any of those provisions, is guilty of a misdemeanor.

Any commissioner or examiner, or any other individual, who willfully, by himself or herself or in cooperation with one or more persons, defeats, deceives or obstructs any individual with respect to his or her right of examination or registration according to the civil service provisions of this article, or to any rules and regulations prescribed pursuant thereto, or who willfully or corruptly, falsely marks, grades, estimates or reports upon any such examination or proper standing of any individual so examined, registered or certified, pursuant to the civil service provisions of this article, or aids in so doing, or who willfully or corruptly furnishes to any individual any special or secret information, for the purpose of either improving or injuring the prospects or chances of appointment or promotion to any position of any individual so examined, registered or certified, or to be so examined, registered or certified, or who impersonates any other individual, or permit or aid in any manner any other individual to impersonate him or her, in connection with any such examination or registration, or application or request to be examined or registered, is, for each offense, guilty of a misdemeanor.

Any person convicted of any of these misdemeanor offenses shall be punished by a fine of not less than $500, nor more than $10,000 or by confinement in jail for a term not exceeding one year, or by both fine and confinement, in the discretion of the court.

§8-15-27. Repeal of conflicting acts and provisions; civil service provisions of article exclusive; status or tenure not affected.

All acts, whether general, special, local or special legislative charters, or parts thereof, in relation to any civil service measure affecting any paid fire department inconsistent with the civil service provisions of this article shall be, and the same are, hereby repealed insofar as such inconsistencies shall exist. It is intended by the civil service provisions of this article to furnish a complete and exclusive system for the appointment, promotion, reinstatement, removal, discharge, suspension and reduction of all members of all paid fire departments in all municipalities. The status or tenure of all members of any paid fire department, which members were employed on the effective date of this article, shall not be affected by the enactment of this article, but all such members shall be subject to all of the civil service provisions of this article with like effect as if they had been appointed members hereunder.

§8-15A-1. Definitions.

For the purposes of this article, unless a different meaning clearly appears in the context:

(a) "Bureau of apprenticeship and training" means the bureau of apprenticeship and training of the United States department of labor;

(b) "Certificate of certification" means a certificate issued by the bureau of apprenticeship and training stating that a person has complied with the standards set forth in this article;

(c) "Local training board" means the board of the local paid fire department required to be established by the standards set forth in section two of this article;

(d) "Municipality" means any incorporated town or city whose boundaries lie within the geographic boundaries of the state;

(e) "Paid fire department" means those paid fire departments established under the provisions of section nine, article fifteen, chapter eight of this code;

(f) "Professional firefighter" means those persons who are employed by a municipality in the state that has a paid fire department;

(g) "State" means the State of West Virginia;

(h) "State board" means the professional firefighters certification board of apprenticeship and training as established in section three of this article;

(i) "West Virginia professional fire chiefs association" means the association representing paid fire chiefs in the State of West Virginia; and

(j) "Professional firefighters of West Virginia" means the association representing paid firefighters in the State of West Virginia.

§8-15A-2. Original appointments.

All original appointments in a paid fire department subject to the civil service provisions of section sixteen, article fifteen, chapter eight of this code, made after June 12, 1987, shall enroll and complete the requirements as registered with the bureau of apprenticeship and training of the United States department of labor, for the craft of fire fighting.

§8-15A-3. Professional firefighters certification board of apprenticeship and training.

(a) A professional firefighters certification board of apprenticeship and training is hereby created and assigned responsibility for review of programs and standards, for training of apprenticeship and certification of professional firefighters in the state. The state board shall be comprised of five members including two representatives appointed by each of the following: The professional firefighters of West Virginia; the West Virginia professional fire chiefs association, and one representative from the bureau of apprenticeship and training of the United States department of labor.

(b) The state board shall elect a chairperson. Meetings may be held upon the call of the chairperson. A majority of the members of the state board constitutes a quorum.

§8-15A-4. Duties of the professional firefighters certification board of apprenticeship and training.

The professional firefighters certification board of apprenticeship and training shall, by or pursuant to rule or regulation:

(a) Establish standards governing the quality of training of paid fire departments in the state pursuant to section two of this article.

(b) Establish the level of skill required for certification.

(c) Adopt procedures for the local training board to follow in securing certification of a paid firefighter by the bureau of apprenticeship and training of the United States department of labor.

(d) Certify the paid firefighter as provided in section five of this article and request a certificate of certification from the bureau of apprenticeship and training of the United States department of labor to the person that has qualified.

§8-15A-5. Certification requirements.

Standards for certification must meet or exceed those of the National Fire Protection Association Standards No. 1001 as amended and updated from year to year.

§8-15A-6. Review of certification.

The state board shall annually review the training curriculum of local training boards offered pursuant to the provisions of this article, and shall make recommendations to improve the quality and sufficiency of training to secure certification of paid firefighters.

§8-15A-7. Compliance.

The state board shall ensure employer and employee compliance with this article. The chief of the paid fire department and the local training board shall see and assure compliance with all established criteria.

The provisions of this article shall be liberally construed to accomplish its objectives and purposes.

PART I. DEFINITIONS; AUTHORIZATION

OF MUNICIPAL PUBLIC WORKS.

§8-16-1. Definitions.

As used in this article, the following terms shall have the following meanings unless the text clearly indicates otherwise.

(a) "Municipal public works" or "works" or "projects" means the construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement, increase, equipment, maintenance, repair (including replacements) and operation of jails, jail facilities, municipal buildings, police stations, fire stations, libraries, museums, other public buildings, incinerator plants, land fill or other garbage disposal systems, hospitals, piers, docks, terminals, airports, drainage systems, flood control systems, stormwater systems and associated stormwater management program, flood walls, culverts, bridges (including approaches, causeways, viaducts, underpasses and connecting roadways), public markets, cemeteries, motor vehicle parking facilities (including parking lots, buildings, ramps, curb-line parking, meters and other facilities considered necessary, appropriate, useful, convenient or incidental to the regulation, control and parking of motor vehicles), farms, dormitories, apartments and other housing facilities for the students and faculties of institutions of higher education; facilities providing housing for the elderly, including, but not limited to, life care facilities, congregate living facilities and adult residential facilities, stadiums, gymnasiums, sports arenas, Auditoriums, public recreation centers, public recreation parks, swimming pools, roller skating rinks, ice skating rinks, tennis courts, golf courses, polo grounds, or the grading, regrading, paving, repaving, surfacing, resurfacing, curbing, recurbing, widening or otherwise improving of any street, avenue, road, alley or way, or the building or renewing of sidewalks, where works or projects will be made self-supporting, and the cost thereof, together with the interest thereon, will be returned within a reasonable period, not exceeding forty years, by means of tolls, fees, rents, special assessments or charges other than taxation; and the terms shall also mean any works or project as a whole, and all integral parts thereof, including all necessary, appropriate, useful, convenient or incidental appurtenances and equipment in connection with any one or more of the above.

(b) "Stormwater systems" means a stormwater system in its entirety or any integral part thereof used to collect and dispose of stormwater and an associated stormwater management program. It includes all facilities, structures and natural water courses used for collecting and conducting stormwater to, through and from drainage areas to the points of final outlet including, but not limited to, any and all of the following: Inlets, conduits, outlets, channels, ponds, drainage easements, water quality facilities, catch basins, ditches, streams, gulches, flumes, culverts, siphons, retention or detention basins, dams, floodwalls, pipes, flood control systems, levies and pumping stations. The term "stormwater systems" shall not include highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways.

(c) "Stormwater management program" means those activities associated with the management, operation, maintenance and control of stormwater and stormwater systems, and shall include, but not be limited to, public education, stormwater and surface runoff water quality improvement, mapping, planning, flood control, inspection, enforcement and any other activities required by state and federal law. The term "stormwater management program" shall not include those activities associated with the management, operation, maintenance and control of highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways without the express agreement of the commissioner of highways.

§8-16-2. Municipalities authorized to construct, etc., public works and to acquire property; payment of costs.

Every municipality is and any two or more municipalities acting jointly, whether situate in the same county or different counties, are, hereby empowered and authorized to construct, reconstruct, establish, acquire, improve, renovate, extend, enlarge, increase, own, equip, repair (including replacements), maintain and operate any municipal public works, together with all appurtenances necessary, appropriate, useful, convenient or incidental for or to the maintenance and operation of such works, and shall have plenary power and authority to acquire by gift, grant, purchase, condemnation or otherwise, and thereafter hold, all necessary lands, rights, easements, right-of-ways, franchises and other property therefor within or without, or partly within and partly without, the corporate limits of any such municipality or municipalities, and to issue revenue bonds to pay the costs of such public works and properties: Provided, That this section shall not be construed to authorize any municipality to construct, reconstruct, establish, acquire, improve, renovate, extend, enlarge, increase, own, equip, repair (including replacements), maintain or operate any works which would render a service already being adequately rendered within such municipality. No obligation shall be incurred by any municipality in such construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement or increase, except such as is payable solely from the funds provided under the authority of this article.

§8-16-3. Special provisions as to certain municipal public works.

When the municipal public works is a motor vehicle parking facility, any municipality involved therein shall have the plenary power and authority, in order to help finance the same, to use any revenue derived from other parking meters or other parking facilities, unless such revenue is otherwise pledged to pay for such other parking meters or other parking facilities.

When the municipal public works is a jail facility used for municipal prisoners, any municipality involved therein shall have the power and authority, in order to help finance the same, to pledge, for a period not to exceed twenty years, the proceeds derived from the imposition of fines and fees.

When the cost of the municipal public works is to be paid by special assessment against the abutting property, represented by assessment certificates which constitute a lien upon such property and said assessment certificates are pledged by any municipality to retire revenue bonds issued and sold to pay the cost thereof, the payor of such assessment certificate shall have the right to pay the same at any time before maturity, together with interest thereon to date of payment, and upon the payment of such assessment certificate the treasurer of such municipality shall deliver to the payor a release for such lien, and the funds received therefrom shall by said treasurer be deposited in a special fund to be expended only in the payment of such revenue bonds.

PART II. CONTROL OF GOVERNING BODY OR BOARD.

§8-16-4. Construction, etc., to be under control of governing body or appointed board, etc.

The construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement, increase, equipment, repair (including replacements), custody, maintenance and operation of any such works, and the collection of revenues therefrom, shall be under the supervision and control of the governing body, or of a committee, by whatever name called, composed of all or a portion of the governing body when only one municipality is involved, or of a board or commission appointed by such governing body when only one municipality is involved or appointed by the governing bodies when two or more municipalities take joint action under the provisions of this article, as may be provided by the governing body or bodies.

When such supervision and control are vested in a committee, board or commission, the governing body or bodies, as the case may be, may provide, by ordinance or ordinances, for said committee, board or commission to exercise such of the functions of the governing body or bodies in connection with the matter as it or they deem proper, and may provide for said committee, board or commission to receive such compensation as such body or bodies may deem proper, all of which authority and compensation shall be specifically provided for by ordinance or ordinances. Any such committee, board or commission shall consist of the number of members fixed in the ordinance or ordinances creating the same, and the manner and mode of the selection and appointment of the members of any such board or commission shall be stated in such ordinance or ordinances. The members of any such board or commission appointed by the governing body or bodies shall be chosen without regard to their political affiliations, but with regard to their business and professional experience or standing as citizens in the community. All compensation and expenses, including attorney's fees, of such committee, board or commission shall be paid solely from funds provided under the authority of this article. Any such committee, board or commission shall have the power to establish bylaws, rules and regulations for its own government.

When hereinafter used in this article, the term "board" shall be construed to mean the governing body or committee composed of all or a portion of the governing body when only one municipality is involved, or a board or commission appointed by the governing body when only one municipality is involved or appointed by the governing bodies when two or more municipalities take joint action under the provisions of this article, as the case may be. When two or more municipalities take joint action under the provisions of this article each governing body shall appoint to the board the number of members which the governing bodies have agreed shall be appointed by each such governing body.

The governing body or bodies also, in its or their discretion, may provide by ordinance or ordinances for the leasing of a municipal public works and provide for the custody, maintenance and operation thereof by a lessee in accordance with the provisions of such ordinance or ordinances and lease contract executed pursuant thereto: Provided, That the lessee shall pay to the municipality or municipalities for the use and occupancy of such municipal public works so leased an amount sufficient to provide a sinking fund for the payment of the bonds and the interest thereon and all other charges mentioned in section seventeen of this article.

§8-16-4a. Additional special provisions as to motor vehicle parking facilities.

(a) The Legislature hereby finds that the greatly increased use by the public of motor vehicles of all kinds has caused serious traffic congestion on the streets of many municipalities in this state; that the lack of adequate planning and supervision of the location of parking facilities, the parking of motor vehicles of all kinds and the lack of adequate parking facilities for motor vehicles of all kinds substantially impede the free circulation of traffic in, through and from many municipalities in this state, impede the rapid and effective fighting of fires and disposition of police officers therein, contribute to the location and relocation of commercial and business enterprises outside of urban areas and retard the development of commerce and business within many municipalities in this state, thereby giving rise to urban blight and adversely affecting or threatening to adversely affect the tax base of such municipalities; that such parking crisis can be reduced by such municipalities providing adequate motor vehicle parking facilities strategically located there; that providing properly located terminal space for motor vehicles is a public responsibility; that fostering the development of commerce and business within municipalities, with the increased tax revenues resulting therefrom, is a public purpose; that fostering the availability of property for charitable use is a public purpose; that the closer the proximity between municipally owned motor vehicle parking facilities and commercial and business establishments the greater the development of commerce and business and the greater the level of revenue produced by such motor vehicle parking facilities; that the erection or construction of pedestrian viaducts, ramps, bridges, tunnels or other pedestrian facilities leading to and from motor vehicle parking facilities so as to facilitate the movement of pedestrians to and from such motor vehicle parking facilities fosters the development of commerce and business and increases the level of revenue produced by such motor vehicle parking facilities; that the leasing, particularly on a long-term basis, and the selling of space for commercial or business use in connection with a municipally owned motor vehicle parking facility will aid the development of commerce and business, increase the level of revenue produced by such motor vehicle parking facility and maintain and increase the tax base of such municipalities; that in many instances the authority for the leasing of space as provided for in this section would assist in financing the construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement, increase, equipment or repair (including replacements) of any such motor vehicle parking facility; that the enactment of this section is for the general welfare of the public and is a public necessity; and that the means and measures authorized in this section are, as a matter of public policy, for the public purposes of such municipalities. This section is enacted in view of these findings and shall be liberally construed in the light thereof.

(b) The governing body or bodies, in its or their discretion, may provide by ordinance or ordinances:

(1) For the leasing by the board as lessor of space in or on a municipal public works which is a motor vehicle parking facility for any business, commercial or charitable use to such person, for such fair and adequate consideration, for such period or periods of time and upon such other terms and conditions as such body or bodies or the board may agree to. In connection with the leasing of any such space, the board may agree to provide in or on such motor vehicle parking facility such structures, accommodations or improvements as may be necessary for such business, commercial or charitable use or such space may be leased upon condition that the lessee shall provide the same in or on the space so leased.

(2) For the leasing by the board as lessor or the selling of air space over a municipal public works which is a motor vehicle parking facility for any business, commercial or charitable use to such person, for such fair and adequate consideration, for such period or periods of time in the case of a lease and upon such other terms and conditions as such body or bodies or the board may agree to. Any lease or deed of sale of such air space may contain provisions (i) authorizing the use of such areas of the underlying motor vehicle parking facility as are essential for ingress and egress to and from such air space, (ii) relating to the support of any building or other structure to be erected in such air space, and (iii) relating to the connection of essential public or private utilities to any building or other structure in such air space.

(3) For the erection or construction by the board of any pedestrian viaduct, ramp, bridge, tunnel or other pedestrian facility leading to and from a municipal public works which is a motor vehicle parking facility; and any such pedestrian viaduct, ramp, bridge, tunnel or other pedestrian facility shall, for all purposes of this article, be considered to be a part of a municipal public works which is a motor vehicle parking facility with like effect as if the term "municipal public works" were expressly defined in section one of this article to include pedestrian viaducts, ramps, bridges, tunnels or other pedestrian facilities: Provided, That any cost incurred by any municipality or municipalities in erecting or constructing any such pedestrian viaduct, ramp, bridge, tunnel or other pedestrian facility which connects a municipal public works which is a motor vehicle parking facility with a privately owned building or buildings or other privately owned structure or structures shall be paid for by the owner or owners of such building or buildings or such other structure or structures.

Any such lease may be privately negotiated without any public notice or advertising, and any such sale may be a public sale pursuant to the provisions of section eighteen, article twelve of this chapter or such sale may be privately negotiated, notwithstanding the provisions of said section eighteen.

(c) The proceeds received from any lease, sale or payment as provided in this section shall be deemed revenue of the works and used as provided in section seventeen of this article.

(d) Notwithstanding the fact that any motor vehicle parking facility subject to the provisions of this article is municipally owned and the fact that a lease or sale under the provisions of subdivision (1) or subdivision (2), subsection (b) of this section is for a public purpose as declared in subsection (a) of this section, any leasehold interest under said subdivision (1), and any building, structure, accommodation or improvement erected, made or operated in any air space leased or sold under said subdivision (2) shall be subject to all property taxes, which shall be assessed and imposed against the lessee or grantee, as the case may be, unless the use of such leasehold interest, building, structure, accommodation or improvement is otherwise exempt from property taxation under the provisions of section nine, article three, chapter eleven of this code.

§8-16-4b. Additional special provision as to the use of space in motor vehicle parking facilities.

For all purposes of this article, the power and authority of any municipality to lease, as lessor, space in a motor vehicle parking facility to any person for business, commercial or charitable use shall be deemed to include the power and authority to lease such space to the United States of America, the State of West Virginia, the county court of any county of the State of West Virginia, and any agency, board or commission of any thereof, and the revenues derived from such leases may be pledged as security for and expended in payment of revenue bonds of such municipality in like manner and to the same extent as other revenues from such motor vehicle parking facility.

§8-16-5. Powers of board.

(a) The board shall have plenary power and authority to take all steps and proceedings, and to make and enter into all contracts or agreements necessary, appropriate, useful, convenient or incidental to the performance of its duties and the execution of its powers and authority under this article: Provided, That any contract or agreement relating to the financing, or the construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement, increase, equipment, operation or maintenance of any such works, and any trust indenture with respect thereto as hereafter provided for, shall be approved by the governing body or bodies.

(b) The board may employ engineers, architects, inspectors, superintendents, managers, collectors, attorneys and such other employees as in its judgment may be necessary in the execution of its powers and duties, and may fix their compensation, all of whom shall do such work as the board may direct. All compensation and expenses incurred in carrying out the provisions of this article shall be paid solely from funds provided under the authority of this article, and the board shall not exercise or carry out any power or authority herein given it so as to bind said board or any municipality beyond the extent to which money shall have been, or may be provided under the authority of this article.

(c) No contract or agreement with any contractor or contractors for labor or materials, or both, exceeding in amount the sum of $25,000 shall be made without advertising for bids, which bids shall be publicly opened and an award made to the lowest responsible bidder, with power and authority in the board to reject any and all bids.

(d) After the construction, reconstruction, establishment, acquisition, renovation or equipment of any such works, the board shall maintain, operate, manage and control the same, and may order and complete any improvements, extensions, enlargements, increase or repair (including replacements) of and to the works that the board may consider expedient, if funds therefor be available, or are made available, as provided in this article, and shall establish rules for the use, maintenance and operation of the works, and do all things necessary or expedient for the successful operation thereof, and for stormwater systems and associated stormwater management programs, those activities which include, but are not limited to, stormwater and surface runoff water quality improvement activities necessary to comply with all federal and state requirements. All public ways or public works damaged or destroyed by the board in carrying out its authority under this article shall be restored or repaired by the board and placed in their original condition, as nearly as practicable, if requested so to do by proper authority, out of the funds provided under the authority of this article.

(e) Emergency repairs shall be exempt from the bidding requirements of subsection (c) of this section. For the purpose of this subdivision, the term emergency repairs means repairs that if not made immediately will seriously impair the use of building components, systems, and public infrastructure or cause danger to persons using the building components, systems, and public infrastructure.

§8-16-6. Preliminary expenses.

All necessary preliminary expenses actually incurred by the board of any municipality or municipalities in the making of surveys or estimates of cost and of revenues, employment of engineers or other employees, the giving of notices, the taking of options, and all other expenses of whatsoever nature necessary to be paid prior to the issue, sale and delivery of the revenue bonds herein provided for, may be paid by the municipality or municipalities, to be reimbursed and repaid out of the proceeds of the sale of such revenue bonds to be used for the construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement, increase, equipment or repair (including replacements) of such works as hereinafter provided.

§8-16-7. Ordinance for construction, etc., of works.

Before any municipality or municipalities shall, under the provisions of this article, construct, reconstruct, establish, acquire, improve, renovate, extend, enlarge, increase, equip or repair (including replacements) any municipal public works, the governing body, or the governing body of each participating municipality, shall enact an ordinance or ordinances, which shall (a) set forth a brief and general description of the works, including a reference to the preliminary report or plans and specifications which shall theretofore have been prepared; (b) set forth the estimated cost thereof; (c) order the construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement, increase, equipment or repair (including replacements) of such works; (d) direct that municipal revenue bonds be issued pursuant to this article, in such amount as may be found necessary to pay the cost of the works; (e) contain such provisions as the governing body determines are necessary or desirable with regard to the establishment and setting aside of reserves from the proceeds of such revenue bonds or from the revenues of said works, or from both, and the administration and disposition thereof; and (f) contain such other provisions as may be necessary or proper in the premises. When two or more municipalities take joint action under the provisions of this article, a certified copy of each such ordinance shall be filed in the office of the clerk of the county commission of the county or counties in which the municipalities are located and in the office of the State Tax Commissioner, and when any such municipality is located in more than one county, the filing for that municipality shall be in the office of the clerk of the county commission in which the major portion of the territory of such municipality is located. Before any such ordinance shall become effective, an abstract of the ordinance, determined by the governing body or each governing body, as the case may be, to contain sufficient information as to give notice of the contents of such ordinance, together with the following described notice, shall be published as a Class II 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 such municipality or each such municipality, as the case may be. The notice to be published with said abstract of the ordinance shall specify a date, time and place for a public hearing, the date being not less than ten days after the first publication of said abstract and notice and not prior to the last publication of said abstract and notice, at which time and place all parties and interests may appear before the governing body of the municipality or each such municipality and may be heard as to whether or not said ordinance shall be put into effect, and said notice shall also identify the office in which a certified copy of such ordinance shall be on file for review by interested persons during the office hours of such office. At such hearing all objections and suggestions shall be heard and the governing body or each such governing body shall take such action as it or they shall deem proper in the premises: Provided, That if at any such hearing written protest is filed by thirty percent or more of the freeholders of the municipality for which the hearing is held, then the governing body of said municipality shall not take further action unless four fifths of the members of said governing body assent thereto: Provided, however, That in case written protest is filed by thirty percent or more of the freeholders as herein provided, any such governing body shall have authority to appoint a committee to consist of one proponent, one opponent, and the third to be selected by these two, to determine whether or not thirty percent of the freeholders have in fact protested and said committee shall report its findings to any such governing body.

PART IV. RIGHT OF EMINENT DOMAIN.

§8-16-8. Right of eminent domain.

Every such municipality shall have plenary power and authority to condemn any such municipal public works to be acquired, and any land, rights, easements, rights-of-way, franchises and other property, real or personal, deemed necessary, appropriate, useful or convenient for, and incidental to, the construction, reconstruction or establishment of any such works and space for business, commercial or charitable use in connection therewith, or for the improvement, renovation, extension, enlargement, increase or equipment thereof or thereto, and in connection therewith shall have and may exercise all the rights, power, authority and privileges of eminent domain granted to municipalities under the laws relating thereto. Title to property shall be taken in the name of the municipality or jointly in the names of the participating municipalities. Proceedings for such appropriation of property shall be under and pursuant to chapter fifty-four of this code: Provided, That any such municipality shall be under no obligation to accept and pay for any property condemned, and shall in no event pay for any property condemned or purchased, except from funds provided under the authority of this article; and in any proceedings to condemn, such orders may be made as may be just to any such municipality and to the owners of the property to be condemned; and an understanding or other security may be required securing such owners against any loss or damage which may be sustained by reason of the failure of any such municipality to accept and pay for the property, but such undertaking or security shall impose no liability upon any such municipality, except such as may be paid from the funds provided under the authority of this article.

In the event of acquisition by purchase, the board may obtain and exercise an option from the owners of said property for the purchase thereof, and may enter into a contract for the purchase thereof, and such purchase may be made upon such terms and conditions, and in such manner as the board may deem proper: Provided, however, That the exercise of such option, or the contract for such purchase, or such purchase shall in no event create any obligation of any such municipality, or create any debt, liability or claim, except such as may be discharged or paid from the funds provided under the authority of this article.

In the event of the acquisition of any works already constructed by purchase or condemnation, the board at or before the time of the adoption of any ordinance described in section seven hereof, shall cause to be determined what reconstruction, improvement, renovation, extension, enlargement, increase, equipment or repair (including replacements) will be necessary, in order that such works and space for business, commercial or charitable use in connection therewith, if any, may be effective for their purpose, and an estimate of the cost thereof shall be included in the estimate of the cost required by section seven hereof, and the same shall be made upon the acquisition of the works and as a part of the cost thereof: Provided further, That no municipality or municipalities shall, under the authority conferred by this article, condemn any existing privately owned works (other than motor vehicle parking facilities) in operation at the date of the condemnation.

PART V. REVENUE BOND FINANCING.

§8-16-9. Bonds for improvements, etc., of works.

Whenever any municipality or municipalities now, or hereafter, shall own and maintain and operate any of the works herein referred to, whether constructed, reconstructed, established or acquired under the provisions of this article or not, and shall desire to improve, renovate, extend, enlarge, increase, equip or repair (including replacements) the same, it may issue revenue bonds, under the provisions of this article, to pay for the same, and the procedure therefor, including fixing all rates and the computation of the amount thereof, shall be the same as in this article provided for the issuance of bonds for the construction, reconstruction, establishment or acquisition of any such works in or by any such municipality which has not theretofore owned and maintained and operated any such works: Provided, That no existing obligations or rights shall be affected or impaired thereby.

§8-16-10. Items of expense included in cost of works.

The cost of the works shall be deemed to include the cost of construction, reconstruction, establishment or acquisition thereof, the cost of all land, rights, easements, rights-of-way, franchises and other property, real or personal, deemed necessary, appropriate, useful, convenient or incidental therefor or thereto and for the improvement, renovation, extension, enlargement, increase, equipment or repair (including replacements) determined upon; the interest upon bonds prior to and during the project and for six months after completion thereof; the amount of any reserve funded from the proceeds of bonds; engineering and legal expenses; expenses for estimates of cost and of revenues; expenses for plans, specifications and surveys; other expenses necessary or incident to determining the feasibility or practicability of the enterprise; administrative expenses; and such other expenses as may be necessary or incident to the financing herein authorized, the project, the placing of the works in operation and the performance of the things herein required or permitted in connection with any thereof.

§8-16-11. No municipality is to incur any obligation not payable from proceeds of bonds; exemption from taxation.

Nothing in this article contained shall be so construed as to authorize or permit any municipality or municipalities to make any contract or incur any obligation of any kind or nature, except such as shall be discharged or payable solely from the funds provided under the authority of this article. Funds for the payment of the entire cost of the works shall be provided by the issuance of revenue bonds of the municipality or municipalities, the principal and interest of which bonds shall be payable solely from the special fund for such payment herein provided for, and said bonds shall not in any respect be a corporate indebtedness of such municipality or municipalities. All such bonds and the interest thereon, and all properties and revenues and income derived from such municipal public works, shall be exempt from all taxation by this state, or any county, municipality, political subdivision or agency thereof. All of the details of such bonds and the issuance thereof shall be determined by ordinance of the governing body or bodies.

§8-16-12. Interest rate and life of bonds; redemption; how payable; form, denominations, etc.; additional bonds authorized; interim certificates.

Such revenue bonds shall bear interest at not more than twelve percent per annum, payable semiannually, or at shorter intervals, and shall mature at such time or times, not exceeding forty years, as may be determined by the ordinance or ordinances authorizing the issuance of such bonds. Such bonds may be made redeemable before maturity, at the option of the municipality or municipalities issuing the same, to be exercised by said board, at not more than the par value thereof, and at a premium of not more than five percent, under such terms and conditions as may be fixed by the ordinance or ordinances authorizing the issuance of the bonds. The principal and interest of the bonds may be made payable in any lawful medium. Such ordinance or ordinances shall determine the form of the bonds, either coupon or registered, shall set forth any registration or conversion privileges, and shall fix the denomination or denominations of such bonds, and the place or places of the payment of the principal and interest thereof, which may be at any banking institution or trust company within or without the state. When two or more municipalities take joint action under the provisions of this article, the bonds shall be issued by the participating municipalities either as separate or joint bonds, as the governing bodies thereof may agree, and when separate bonds are issued, the amount of the bonds to be issued by each participating municipality shall be fixed by agreement of the governing bodies of the participating municipalities set forth in the ordinance of each participating municipality authorizing the issuance of such bonds. The bonds shall contain a statement on their face that the municipality or municipalities issuing the same shall not be obligated to pay the same, or the interest thereon, except from the special fund derived from the net revenue of the works, or the pro rata part thereof, as provided for in section eleven hereof. All such bonds shall be, and shall have and are hereby declared to have all the qualities and incidents of negotiable instruments, under the Uniform Commercial Code of this state. The bonds shall be executed in such manner as the governing body or bodies may direct. The bonds shall be sold by the governing body or bodies in such manner as may be determined to be for the best interest of the municipality or municipalities: Provided, That said bonds shall not be negotiated at a price lower than a price which when computed to maturity upon standard tables of bond values will show a net return of more than thirteen percent per annum to the purchaser upon the amount paid therefor. Any surplus of the bond proceeds over and above the cost of the project shall be paid into the sinking fund hereinafter provided for. If the proceeds of the bonds, by error of calculation or otherwise, shall be less than the cost of the project, additional bonds may in like manner be issued to provide the amount of such deficit, and, unless otherwise provided in the ordinance or ordinances authorizing the issuance of the bonds first issued, or in the trust indenture hereinafter authorized, shall be deemed to be of same issue, and shall be entitled to payment without preference or priority of the bonds first issued; and if any preference or priority of the bonds first issued is provided for in the ordinance or ordinances authorizing the issuance of the bonds first issued or in said trust indenture, such preference or priority shall not extend to an amount exceeding ten percent of the original issue. Prior to the preparation of the definitive bonds, interim certificates may, under like restrictions, be issued, exchangeable for definitive bonds upon the issuance of the latter.

§8-16-13. Obligations not to bind municipal official or officer or member of board personally.

No municipal official or officer or member of the board shall in any event be personally liable upon any contract or obligation of any kind or character executed under the authority herein contained, even if said undertaking should thereafter be held ultra vires.

§8-16-14. Additional bonds for improvements, etc., of works.

The governing body or bodies may provide by the said ordinance or ordinances authorizing the issuance of the bonds or in the trust indenture hereinafter referred to, that additional bonds may thereafter be authorized and issued at one time, or from time to time, under such limitations and restrictions as may be set forth in said ordinance or ordinances, or trust indenture, or all of these, for the purpose of improving, renovating, extending, enlarging, increasing, equipping or repairing (including replacements) the works when deemed necessary in the public interest, such additional bonds to be secured, and be payable from the revenues of the works, as provided for in section nine of this article.

§8-16-15. How proceeds of bonds applied.

All moneys received from the sale of any bonds issued under the authority of this article, after reimbursements and repayments to said municipality or municipalities of all amounts advanced for preliminary expenses, as provided in section six of this article, shall be applied solely to the payment of the cost of the project, or to the appurtenant sinking fund, and there shall be, and there is hereby, created and granted a lien upon such moneys, until so applied, in favor of the holders of the bonds or the trustees hereinafter provided for.

§8-16-16. Bonds secured by trust indenture between municipality or municipalities and corporate trustee.

In the discretion and at the option of the governing body or bodies such bonds may be secured by a trust indenture by and between such municipality or municipalities and a corporate trustee, which may be a trust company or banking institution having powers of a trust company within or without the state. The ordinance or ordinances authorizing the issuance of the revenue bonds, and fixing the details thereof, may provide that such trust indenture may contain such provisions for protecting and enforcing the rights and remedies of bondholders as may be reasonable and proper, not in violation of law, including covenants setting forth the duties of the municipality or municipalities and the board in relation to the construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement, increase and equipment of the project and the repair (including replacements), maintenance, operation and insurance thereof, and the custody, safeguarding and application of all moneys, and may provide that the project shall be contracted for, carried out and paid for, under the supervision and approval of the consulting engineers employed or designated by the board and satisfactory to the original bond purchasers, their successors, assignees or nominees, who may be given the right to require the security given by contractors and by any depository of the proceeds of bonds or revenues of the works or other moneys pertaining thereto be satisfactory to such purchasers, their successors, assignees or nominees. Such indenture may set forth the rights and remedies of the bondholders or such trustee, or both. Except as in this article otherwise provided, the governing body or bodies may provide by ordinance or ordinances or in such trust indenture for the payment of the proceeds of the sale of the bonds and the revenues of the works to such officer, board or depository, as such body or bodies may determine for the custody thereof, and for the method of distribution thereof, with such safeguards and restrictions as such body or bodies may determine.

§8-16-17. Sinking fund; West Virginia Municipal Bond Commission; transfer of funds; purchase of outstanding bonds.

Before the issuance of any such bonds, the governing body or bodies shall, by ordinance or ordinances, provide for a sinking fund for the payment of the bonds and the interest thereon, and the payment of the charges of banking institutions or trust companies for making payment of such bonds and interest, out of the net revenues of said works, and shall set aside and pledge a sufficient amount of the net revenues of the works hereby defined to mean the revenues of the works remaining after the payment of the reasonable expenses of repair (including replacements), maintenance and operation, such amount to be paid by the board into the sinking fund at intervals, to be determined by ordinance or ordinances adopted prior to the issuance of the bonds, for: (a) The interest upon such bonds as such interest shall fall due; (b) the necessary fiscal agency charges for paying bonds and interest; (c) the payment of the bonds as they fall due, or if all bonds mature at one time, the proper maintenance of a sinking fund sufficient for the payment thereof at such time; and (d) a margin for safety and for the payment of premium upon bonds retired by call or purchase as herein provided, which margin, together with unused surplus of such margin carried forward from the preceding year and the amounts set aside as reserves out of the proceeds from the sale of the bonds, or from the revenues of said works, or from both, shall equal ten percent of all other amounts so required to be paid into the sinking fund. Such required payments shall constitute a first charge upon all the net revenues of the works. Prior to the issuance of the bonds, the board may, by ordinance or ordinances, be given the right to use or direct the trustee or the  West Virginia Municipal Bond Commission to use such sinking fund, or any part thereof, in the purchase of any of the outstanding bonds payable therefrom, at the market prices thereof, but not exceeding the price, if any, at which the same shall in the same year be payable or redeemable, and all bonds redeemed or purchased shall forthwith be cancelled, and shall not again be issued. After the payments into the sinking fund as herein required and after reserving an amount deemed by the board sufficient for repair (including replacements), maintenance and operation for an ensuing period of not less than twelve months and for depreciation, the board may at any time in its discretion transfer all or any part of the balance of the net revenues into the sinking fund or into a fund for improvement, renovation, extension, enlargement, increase or equipment for or to the works, or the governing body or bodies may, notwithstanding the provisions of section twenty, article thirteen of this chapter, transfer all or any part of the balance of the net revenues to the general or any special fund of the municipality or municipalities and use such revenues for any purpose for which such general or special fund may be expended.

All amounts for the sinking fund and interest, as and when set apart for the payment of same, shall be remitted to the  West Virginia Municipal Bond Commission at such periods as shall be designated in the ordinance or ordinances, but in any event at least thirty days previous to the time interest or principal payments become due, to be retained and paid out by said commission consistent with the provisions of this article and the ordinance or ordinances pursuant to which such bonds have been issued. The West Virginia Municipal Bond Commission is hereby authorized to act as fiscal agent for the administration of such sinking fund under any ordinance or ordinances passed or adopted pursuant to the provisions of this article and shall invest all sinking funds as provided by general law. Notwithstanding the foregoing, payments of principal and interest on any bonds owned by the United States or any governmental agency or department thereof may be made by the governing body directly thereto.

§8-16-18. Rates, fees, or charges for services rendered by works.

The governing body shall have plenary power and authority and it shall be its duty, by ordinance, to establish and maintain just and equitable rates, fees, or charges for the use and services rendered, or the improvement or protection of property, not to include highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways, provided or afforded, by such works, to be paid by the person using the same, receiving the services thereof, or owning the property improved or protected thereby, and may readjust rates, fees, or charges from time to time.

When two or more municipalities take joint action under the provisions of this article, the rates, fees, or charges shall be established by each participating municipality, with the concurrence of the other participating municipality or municipalities as to the amount of the rates, fees or charges, and such rates, fees, or charges may be the same with respect to each municipality, or they may be different.

Rates, fees, or charges heretofore or hereafter established and maintained for the improvement or protection of property, not to include highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways, provided or afforded by a municipal flood control system or flood walls, to be paid by the person owning the property improved or protected thereby, shall be collectible and enforceable from the time provided in any such ordinance, any provision of this or any other law to the contrary notwithstanding, if, at such time, such works, though not yet fully completed, are nearing completion and the governing body is reasonably assured that the works will be completed and placed in operation without unreasonable delay.

All rates, fees, or charges shall be sufficient in each year for the payment of the proper and reasonable expenses of repair (including replacements), maintenance and operation of the works, and for the payment of the sums herein required to be paid into the sinking fund. Revenues collected pursuant to the provisions of this section are considered the revenues of the works. No such rates, fees, or charges may be established until after a public hearing at which all the users of the works and owners of the property served, or to be served thereby, and others interested, shall have an opportunity to be heard concerning the proposed rates, fees or charges.

After introduction of the proposed ordinance fixing the rates, fees, or charges and before the same is finally adopted, notice of such hearing, setting forth the proposed schedule of such rates, fees or charges, shall be given by publishing the same as a Class I legal advertisement in compliance with §59-3-1 et seq. of this code, and the publication area for the publication shall be such municipality or each such municipality, as the case may be. Said notice shall be published at least five days before the date fixed in such notice for the hearing, which hearing may be adjourned from time to time. No other or further notice to parties in interest is required.

After such hearing the ordinance establishing rates, fees or charges, either as originally proposed or introduced, or as modified and amended, shall be adopted and put into effect. A copy of the schedule of such rates, fees, and charges so established shall be kept on file in the office of the board having charge of such works, and also in the office of the governing body or bodies, and shall be open to inspection by all parties in interest.

The rates, fees, or charges so established for any class of users or property served shall be extended to cover any additional class of users or property thereafter served which fall within the same class, without the necessity of any hearing or notice. Any change or adjustment of rates, fees, or charges may be made in the same manner as such rates, fees, or charges were originally established as provided in this section. The aggregate of the rates, fees, or charges shall always be sufficient for the expenses of repair (including replacements), maintenance and operation, and for the sinking fund payments.

If any rate, fee or charge so established is not paid within 30 days after the same is due, the amount thereof, together with a penalty of 10 percent and reasonable attorney’s fees, may be recovered by the board in a civil action in the name of the municipality or municipalities, and in the case of rates, fees, or charges due for services rendered, such rates, fees or charges, if not paid when due, may, if the governing body so provide in the ordinance provided for under §8-16-7 of this code, constitute a lien upon the premises served by such works, which lien may be foreclosed against such lot, parcel of land or building so served, in accordance with the laws relating to the foreclosure of liens on real property. Upon failure of any person receiving any such service to pay for the same when due, the board may discontinue such service without notice.

§8-16-18a. Pledge of the hotel occupancy tax; contribution of revenues to building commission.

In addition to the rates or charges authorized to be pledged and expended for the security and payment of bonds as provided in this article, the governing body issuing such bonds shall have plenary power and authority to pledge and expend for the security and payment of such bonds all, or any part, of the revenues which are derived from the hotel occupancy tax which a municipality may impose pursuant to section three, article thirteen of this chapter and which are specifically dedicated by such governing body for any purpose or purposes set forth in section three, article thirteen of this chapter. All such sums which are so pledged shall be deemed "revenues of the works" for all purposes of the provisions of this article. The governing body shall also have the power and authority to contribute all, or any part of, the revenues derived from said hotel occupancy tax to a building commission created by such governing body pursuant to article thirty-three, chapter eight of this code for such lawful purposes which such building commission shall determine and which are set forth in section three, article thirteen of this chapter, including payment of revenue bonds issued by such building commission.

§8-16-19

Repealed

Acts, 2017 Reg. Sess., Ch. 161.

PART VII. ACCOUNTING SYSTEM AND RECORDS.

§8-16-20. Accounting system; yearly audit; custodian of funds.

Any municipality or municipalities issuing revenue bonds under the provisions of this article shall install and maintain a proper system of accounting, showing the amount of revenues received and the application of the same, and the governing body or bodies shall, at least once a year, cause such accounts to be properly audited by a competent Auditor, and the report of such Auditor shall be open for inspection at all proper times to any taxpayer or resident of said municipality or municipalities, or person receiving service from said works, or any holder of bonds issued under the provisions of this article, or anyone acting for and in behalf of such taxpayer, resident, person or bondholder. The treasurer of such municipality or each such municipality, or other official or institution specifically charged with the duty, shall be the custodian or custodians of the funds derived from income received from said works, and shall give proper bond or bonds for the faithful discharge of his or its or their duties as such custodian or custodians, which bond or bonds shall be fixed and approved by the governing body or bodies. All of the funds received as income from said works under the provisions of this article and all funds received from the sale of revenue bonds issued therefor shall be kept separate and apart from other funds of the municipality or municipalities, and separate accounts shall be maintained for the several items required to be set up by the provisions of section seventeen of this article.

PART VIII. RATES, FEES OR CHARGES FOR MUNICIPALITIES.

§8-16-21. Governmental entities to pay established rates, fees or charges for services rendered to it or them.

(a) The municipality or municipalities issuing such bonds shall be subject to the same rates, fees or charges established as provided in this article, or to rates, fees or charges established in harmony therewith, for service rendered to the municipality or municipalities and shall pay such rates, fees or charges, when due, from corporate funds, and the same shall be considered to be a part of the revenues of the works as defined in this article, and may be applied as provided in this article, for the application of such revenue.

(b) The municipality or municipalities and any county, state and federal government served by the services of the stormwater system shall be subject to the same rates, fees or charges established as provided in this article for stormwater services, or to rates, fees or charges established in harmony therewith, for service rendered to the governmental entity and shall pay such rates, fees or charges, when due, from corporate funds, and the same is considered to be a part of the revenues of the works as defined in this article, and may be applied as provided in this article, for the application of such revenue. However, no rates, fees or charges for stormwater services may be assessed against highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways without the express agreement of the commissioner of highways.

PART IX. LIENS AND PROTECTION OF BONDHOLDERS.

§8-16-22. Statutory mortgage lien upon works created.

There shall be and there is hereby created and granted a statutory mortgage lien upon such municipal public works constructed, reconstructed, established, acquired, improved, renovated, extended, enlarged, increased, equipped or repaired (including replacements) under the provisions of this article, which shall exist in favor of the holder of said bonds, and each of them, and to and in favor of the holder of the coupons attached to said bonds, and such municipal public works shall remain subject to such statutory mortgage lien until payment in full of the principal of and interest upon said bonds.

§8-16-23. Acquisition of property on which lien exists.

No property shall be acquired under the provisions of this article upon which any lien or other encumbrance exists, unless at the time such property is acquired a sufficient sum of money be deposited in trust to pay and redeem such lien or encumbrance in full.

§8-16-24. Protection and enforcement of rights of bondholders, etc.; receivership; effect of receivership on lease agreement.

Any holder of any such bonds, or any of the coupons attached thereto, and the trustee, if any, except to the extent that the rights herein given may be restricted by the ordinance authorizing the issuance of the bonds or by the trust indenture, may by civil action, mandamus or other proper proceeding enforce the statutory mortgage lien created and granted in section twenty-two of this article, protect and enforce any and all rights granted hereunder or under any such ordinance or trust indenture, and may enforce and compel performance of all duties required by the provisions of this article or by any such ordinance or trust indenture to be performed by the municipality or municipalities, or by the board or any officer, including the making and collecting of reasonable and sufficient rates or charges for services rendered by the works. If there be default in the payment of the principal of or interest upon any of the bonds, or of both principal and interest, any court having jurisdiction shall appoint a receiver to administer the works on behalf of the municipality or municipalities, and the bondholders or trustee, or both, except as so restricted, with power to charge and collect rates or charges sufficient to provide for the payment of the expenses of repair (including replacements), maintenance and operation, and also to pay any bonds and interest outstanding, and to apply the income or other revenue in conformity with this article, and the said ordinance or trust indenture, or both, and the power herein provided for the appointment of a receiver and the administration by the court of the works on behalf of the municipality or municipalities, and the bondholders or trustee, or both, shall apply to cases where such works are operated by a lessee of the municipality or municipalities as well as to cases where works are operated by the municipality or municipalities. In case a receiver is appointed for works operated by a lessee of a municipality or municipalities, the lease agreement then existing between the municipality or municipalities and the lessee ipso facto thereby shall be terminated and all property, equipment, bills receivable and assets of every kind, used in connection with the operation of such works, shall pass to the receiver and upon the termination of such receivership, such works, equipment, property, bills receivable and assets of every kind then in the hands of the receiver thereupon shall pass to the municipality or municipalities.

PART X. CONSTRUCTION; EXTRATERRITORIAL JURISDICTION.

§8-16-25. Article confers additional power and authority; extraterritorial jurisdiction.

The power and authority herein granted shall be in addition to and not in derogation of any power and authority vested in any municipality under any Constitutional, statutory or charter provisions which may now or hereafter be in effect. For all purposes of this article, municipalities shall have jurisdiction for ten miles outside of the corporate limits thereof, except where such zone would overlap with the zone of another municipality, in which event the meridian line of the overlapping zone shall be the dividing line of their respective jurisdictions, except that one municipality shall have jurisdiction within such ten-mile zone and may overlap into the zone of another municipality or municipalities with the consent thereof.

§8-16-26. Construction of power and authority conferred.

This article shall, without reference to any other statute or charter provision, be deemed full authority for the construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement, increase, equipment, repair (including replacements), maintenance and operation of the works herein provided for, and for the issuance and sale of the bonds by this article authorized, and shall be construed as an additional alternative method therefor, and for the financing thereof, and no petition or other or further proceeding in respect to any such project, or to the issuance or sale of bonds under this article, and no publication of any ordinance, notice or proceeding relating to any such project, or to the issuance or sale of such bonds shall be required, except such as are prescribed in this article, any provisions of other statutes of the state to the contrary notwithstanding.

§8-16-27. Article liberally construed.

This article being necessary for the public health, safety and welfare shall be liberally construed to effectuate the purposes thereof.

§8-16-28. Reference to "municipal authorities" or "municipal authority" elsewhere in law to mean "governing body" for the purposes of this article only.

In elaboration of the provisions of section eight, article one of this chapter, wherever in this code, in any act, in general law, elsewhere in law, in any charter, in any ordinance, resolution or order, or in any ordinance, resolution or order of a county court, reference is made to the term "municipal authorities" or "municipal authority" within the meaning of the provisions of former article four-a of this chapter, such reference shall henceforth be read, construed and understood to mean "governing body" as that term is used in this article sixteen only.

PART I. PURPOSE; DEFINITIONS.

§8-17-1. Purpose of article; liberal construction.

It is hereby declared to be the purpose and policy of the Legislature in enacting this article to provide for a simplified method of low cost municipal improvements which cannot be practicably accomplished out of municipal revenues or in accordance with the procedures established in article eighteen of this chapter. This article shall be liberally construed to accomplish the purpose hereof.

§8-17-2. Definitions.

For the purposes of this article:

(1) "Abutter" shall include the owner or owners, as of the date of service of, or the date of the first publication of, a notice under the provisions of section eight of this article, of the property abutting on any street, alley, public way or easement, or sewer right-of-way or easement, upon or in which an improvement shall be made or proposed to be made under the provisions of this article;

(2) "Engineer" shall mean the municipal engineer, or, if the municipality has no regularly employed municipal engineer, any registered professional engineer, if there be any practicing in the municipality or the county, or if no such engineer be practicing in the county, any competent civil engineer;

(3) "Petitioner" shall, unless the context clearly indicates otherwise, include those abutters, whether one or more, who file the petition and bond described in section four of this article;

(4) "Improvement" shall include the grading, regrading, paving, repaving, surfacing, resurfacing, curbing, recurbing and repairing of streets, alleys, public ways or easements, or portions thereof, and the building, renewing and repairing of sidewalks, and the constructing, renewing and repairing of storm or sanitary or combined storm and sanitary sewer systems, or portions thereof, upon or in any streets, alleys, public ways or easements, or sewer rights-of-way or easements, or portions thereof, independently or in conjunction with other of such improvements, within the municipality; and

(5) "Total cost" shall include the cost and expense of surveys, engineering and attorney fees, the printing and publishing in relation thereto, and the cost and expense of all labor, work, supervision, inspection, equipment leased and materials furnished and used in completing said improvements, excepting, however, any salaries and wages paid to municipal employees that would have been paid regardless of the work on the proposed improvement.

PART II. POWER AND AUTHORITY TO MAKE LOW COST

IMPROVEMENTS -- PRELIMINARY PROCEEDINGS.

§8-17-3. Municipality empowered and authorized to make improvements.

Every municipality is hereby empowered and authorized, in addition to any other rights, power or authority conferred upon it, to make improvements upon the terms and conditions and in the manner hereinafter in this article set forth.

§8-17-4. Petition and bond; action of governing body; memorandum of engineer.

Upon the filing of a written petition for the making of an improvement, together with the bond hereinafter described, by (1) a petitioner stating in said petition the willingness of said petitioner to pay all of the total cost of said improvement, or (2) a petitioner owning the greater amount of frontage of property abutting upon any portion of a street, alley, public way or easement, or sewer right-of-way or easement, upon or in which said improvement is to be made, the governing body shall, by ordinance or resolution, order the engineer to investigate the improvement and to prepare a memorandum describing the portions of the streets, alleys, public ways or easements, or sewer rights-of-way or easements, proposed to be improved, and certifying the reasonable necessity of the improvement, the plans and specifications for the improvement and a list of all items comprising the total cost of the improvement, with an estimate of the cost of each item.

There shall be stated, specified or described in the petition the name and mailing address of the petitioner, the part or parts of the therein named streets, alleys, public ways or easements, or sewer rights-of-way or easements, desired improved, the improvement desired and whether the petitioner will pay all of the total cost or whether he desires the total cost to be apportioned among all of the abutters. In any case where two or more petitioners file the petition and it is stated therein that they intend to pay all of the total cost of the improvement, it shall also be stated therein either that they desire to have such total cost apportioned among them on a pro rata basis of their abutting footages according to a list of such footages compiled by them and contained in the petition or that they desire to pay such total cost according to a list of percentage shares formulated by them and contained in the petition.

Any petition filed under the provisions of this article shall be signed by the petitioner. A bond shall be given by the petitioner with good security to be approved by the governing body in the penal sum of $1,000. The bond shall bind the petitioner (jointly and severally, in the case of more than one petitioner) to pay all charges and assessments imposed upon such petitioner under the provisions of this article.

§8-17-5. Hearing on adverse report in engineer's memorandum; notice thereof; modification of memorandum; expenses charged to petitioner upon failure of petition.

If the engineer certifies in his memorandum that the improvement is not reasonably necessary, or that the estimated total cost is more than $1,000, or both, the governing body shall notify the petitioner of the adverse report in the engineer's memorandum, and of a date (at least ten days from the date of the mailing of the notice as provided below), time and place of a meeting of the governing body, at which the engineer shall be present and the petitioner may object to or be heard on any part of the engineer's memorandum concerned with the said adverse report. The notice shall be given by mailing a copy thereof to the petitioner at the address listed in the petition unless the petitioner shall have notified the governing body in writing of a change in his mailing address, in which case the notice shall be mailed according to such change. The governing body may modify the memorandum in accordance with the evidence introduced at said meeting; but if no evidence is introduced, the engineer's memorandum shall be accepted. In any case where the petition fails because there is no reasonable necessity for the improvement or because the estimated total cost of the improvement is more than $1,000, or because of both reasons, the petitioner shall be charged with all municipal expenses in connection therewith, except salaries and wages of regular municipal officials and employees, which charge shall be made by ordinance or resolution of the governing body; and a statement of such charge shall be mailed to the petitioner at the proper address, determined as aforesaid.

For convenience of reference herein, the term "engineer's memorandum" shall mean, as the case may be, his original memorandum, or his memorandum as modified in accordance with the provisions of this section or section eight of this article.

§8-17-6. When petition for improvement is to be granted.

A petition for improvement shall be granted when it and the accompanying bond have been found to be regular, and when the engineer's memorandum indicates that the proposed improvement is reasonably necessary and that the total cost will not exceed $1,000.

PART III. SAME -- PROCEEDINGS AFTER GRANTING OF PETITION.

§8-17-7. Procedure when petitioner to pay all of total cost.

If the petitioner has stated in the petition that he will pay all of the total cost, the governing body shall, as soon as the petition is granted as provided in section six of this article, order, by ordinance or resolution, the proper municipal authorities to proceed with the accomplishment of the improvement according to the plans and specifications in the engineer's memorandum.

§8-17-8. Procedure when total cost to be apportioned among all abutters.

If the petitioner has stated in the petition that he desires the total cost to be apportioned among all of the abutters, the governing body shall, as soon as the petition is granted, cause notice to be given to all abutters that the petition has been granted; that the engineer's memorandum, certifying reasonable necessity, the plans and specifications and the cost estimates, will be reconsidered, before work is started, at a public meeting of the governing body on the date and at the time and place named in the notice; and that all abutters will be given an opportunity to protest or be heard concerning any or all particulars of the engineer's memorandum at that meeting or an adjournment thereof. Such notice to abutters may be by service on such abutters in the manner in which process commencing a civil action under the law of this state is permitted to be served, at least ten days before said meeting. In lieu of such service of such notice, the following described notice, or one in substantially the same form, may be given, and shall be deemed to have been served on all such abutters, by publication of such notice as a Class II 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 such municipality:

"NOTICE TO ALL PERSONS OR CORPORATIONS OWNING PROPERTY ABUTTING ON ............. (here describe the portion of the street, alley, public way or easement, sewer right-of-way or easement, to be improved) IN THE ...................... (city, town or village) OF .............................. (name of municipality);

A petition has been granted by the ................ (council, board of directors, commissioners or other governing body) of the .................... (city, town or village) of ................. (name of municipality) to improve the portion of the ............... (street, alley, public way or easement, or sewer right-of-way or easement) above described in .................. (name of municipality) by ................. (grading, regrading, paving, repaving, surfacing, resurfacing, curbing, recurbing or repairing, or the building, renewing or repairing of sidewalks, or the constructing of sanitary or storm sewers, or both, or other general description of the proposed improvement), as specifically described in the engineer's memorandum certifying the reasonable necessity of the proposed improvement, the plans and specifications thereof, and the estimate of the items of cost thereof, and to apportion the cost of such improvement among the owners, as of ............... (the date of the first publication of this notice), of the abutting property.

The engineer's memorandum above described and the granting of the petition will be reconsidered by the ....................... (council, board of directors, commissioners or other governing body) at a public meeting to be held on the .............. day of .................., 19......, at ..... M. at .................... Any abutting owner or interested party will be given an opportunity to protest or be

heard at said meeting or an adjournment thereof.

............................... (name of recorder)

............................... (official position)."

An affidavit of publication of the notice, made by the newspaper publisher, or some person authorized to do so on behalf of such publisher, and a copy of the notice shall be made a part of the minutes of the governing body and spread on its records of the meeting described in the notice. The service of said notice upon all persons owning any interest in any property abutting upon any portion of said street, alley, public way or easement, or sewer right-of-way or easement, to be improved shall conclusively be deemed to have been given when such newspaper publication shall have been completed.

Any part or parts of the engineer's memorandum may be modified or remodified at the protest meeting in accordance with the evidence introduced at such meeting, including the extent of the portions of the streets, alleys, public ways or easements, or sewer rights-of-way or easements, proposed to be improved as designated in the engineer's memorandum. If, after modification or remodification at such protest meeting, the memorandum indicates that the improvement is not reasonably necessary or that its estimated total cost is more than $1,000, or both, then the petition shall be automatically revoked; and the petitioner shall be charged with all municipal expense in connection therewith except the salaries and wages of regular municipal employees, which charge shall be made by ordinance or resolution of the governing body and a statement of said charge shall be mailed to the petitioner at the proper address, determined as aforesaid.

If the engineer's memorandum has not been so modified or remodified at the protest meeting as to render the petition automatically revoked as provided above, the governing body shall order, by ordinance or resolution, the proper municipal authorities to proceed with the accomplishment of the improvement according to the plans and specifications in the engineer's memorandum, as modified or remodified at the protest meeting in the event that they were modified or remodified.

§8-17-9. Accomplishment of the improvement; use of municipal employees and equipment; contracts; account of costs.

When the proper municipal authorities shall have been ordered by the governing body to proceed under the provisions of either section seven or section eight of this article, they shall do so without delay. The improvement shall be accomplished, as far as possible without interfering with normal municipal services, with the municipality's regular employees and equipment; but contracts may be made with reputable persons for the improvement. Said authorities shall keep an account of all items of cost connected therewith that affect the total cost of the improvement. Upon completion of the improvement, said proper municipal authorities shall deliver the account of costs to the engineer.

§8-17-10. Apportionment among petitioners only; limit on total cost chargeable to petitioners; notice.

Where the willingness of the petitioner to pay all of the total cost is stated in the petition, the engineer shall compute the actual total cost as soon as the improvement is completed and the account called for in section nine of this article is furnished to him and, where more than one petitioner filed the petition, the engineer shall assess the amount owed by each petitioner according to the method indicated in the petition as prescribed in section four of this article: Provided, That if the actual total cost exceeds $1,000, the municipality shall be responsible for such excess over $1,000, and if the actual total cost is less than $1,000 but exceeds the estimated total cost by more than ten percent of the latter, the municipality shall be responsible for such excess over one hundred ten percent of the estimated total cost.

The engineer shall certify his determination of charges to the governing body, and, after adopting the same by ordinance or resolution, the governing body shall notify the petitioner of the assessment list by mailing a written copy thereof to the petitioner at the proper address, determined as aforesaid.

§8-17-11. Apportionment among all abutters; limit on total cost chargeable to abutters; engineer's report; notice; hearings; correcting and laying assessments.

Where the petitioner indicated in the petition his desire to have the total cost apportioned among all of the abutters, the engineer shall, as soon as the governing body has ordered the proper municipal authorities to proceed with the improvement under the provisions of section eight of this article, determine or cause to be determined the several frontages abutting on the improvement, a brief description thereof and the owners of such frontages as of the date of service of, or the date of the first publication of, a notice under the provisions of section eight of this article; and he shall keep an account of all items of cost connected therewith that affect the total cost. As soon as the improvement is completed and the account called for in section nine of this article has been furnished to him, the engineer shall compute the actual total cost of the improvement.

The total cost shall be personally borne by such owners of abutting property, including the petitioner, as of the date of service of, or the date of the first publication of, a notice under the provisions of section eight of this article; and the amount of the assessment against each shall be apportioned by the engineer on the basis of the formula next hereinafter set forth. Each lot or parcel of land so abutting shall be assessed with that portion of the total cost of the entire project which is represented by the proportion which the abutting frontage in feet of such lot or parcel bears to the total abutting frontage in feet of all the lots or parcels of land abutting on the streets, alleys, public ways or easements, or sewer rights-of-ways or easements, so improved: Provided, That if the character of the improvements shall be substantially different upon different streets, alleys, public ways or easements, or sewer rights-of-ways or easements, or portions thereof, the cost may be equitably apportioned to the respective streets, alleys, public ways or easements, or sewer rights-of-ways or easements, or portions thereof, in proportion to the character and cost of the improvements respectively thereon; and the part of the cost so apportioned to each respective street, alley, public way or easement, or sewer right-of-way or easement, or portion thereof, shall be apportioned to and assessed against the respective lots or parcels of land abutting thereupon in the proportion as hereinabove provided: Provided, however, That if any part of the street, alley, public way or easement improved is used by a railway then the cost of the portion of any improvements between the rails and for two feet outside said rails shall be assessed against and wholly borne by the owner of the railway: Provided further, That if there be any property abutting on the portion of the street, alley, public way or easement, or sewer right-of-way or easement, so improved which it has been determined by the governing body, and shown in the ordinance or resolution authorizing the improvement, not to be specially benefited by the improvement, or for other reasons would not be liable to assessment for any of, or for some part of, the cost of improvements, then the cost of the improvements abutting such part of said street, alley, public way or easement, or sewer right-of-way or easement, as is so determined to be nonassessable, shall be apportioned among, assessed against and borne by the remaining property abutting upon the portion of the street, alley, public way or easement, or sewer right-of-way or easement, improved in proportion to the frontage of such remaining abutting property as hereinabove provided: And provided further, That if such improvement includes the building, renewing or repairing of sidewalks on only one side of a street, alley, public way or easement, then the cost of such improvement shall be assessed only on the property abutting on that side where the sidewalks are so built, constructed or repaired: Provided, That if there be property abutting the street, alley, public way or easement, or sewer right-of-way or easement, so improved which is owned by the United States of America, and, for that reason, not legally subject to assessment, then the municipality shall pay the proportionate part of the cost of the improvement which otherwise would be assessable against such federally owned property: Provided, however, That if the actual total cost exceeds $1,000, the municipality shall be responsible for such excess over $1,000, and if the actual total cost is less than $1,000 but exceeds the estimated total cost by more than ten percent of the latter, the municipality shall be responsible for such excess over one hundred ten percent of the estimated total cost.

The engineer shall formulate a report showing the chargeable total cost to be apportioned among, assessed against and borne by the abutters, the names of the abutters (including the petitioner), the several frontages owned by said abutters, a brief description thereof and the proper amount of the chargeable total cost to be assessed personally against each abutter, and shall deliver such report to the governing body. The governing body shall thereupon give notice to the abutters to be assessed that, on or after a date named in said notice, an assessment may be laid personally against the abutters as embodied in said report. Said notice shall state that the abutters so named, or other interested party, may on said date appear before the governing body to move the correction or revision of such proposed assessment. Said notice shall show the same facts embodied in the engineer's report hereinabove described and shall be published as a Class II 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 the municipality. On or after the date so advertised, the governing body may revise, amend, correct and verify the report according to the evidence introduced by the contesting abutters or by the engineer, and shall thereafter proceed by ordinance or resolution to lay the assessments, as corrected and verified, against the abutters personally.

§8-17-12. Assessments where property owned or controlled by public, charitable, eleemosynary, educational or religious institutions; duty of those in charge to cause assessments to be paid.

When any of the lots or parcels of land abutting the portion of the street, alley, public way or easement, or sewer right-of-way or easement, improved consist of property owned or controlled by this state, any municipality, county, Board of Education or other public body, or consist of property owned by or used for, a church, or a religious, charitable, educational or eleemosynary institution, for purposes not subject to taxation, the owners of such property, as of the date of service of, or the date of the first publication of, a notice under the provisions of section eight of this article, shall nevertheless be assessed with their proper proportion of the total cost of said improvement, and it shall be the duty of the owners or those persons having charge of the fiscal affairs of such owners or the management of any such property or institution to make proper arrangements for the payment of such assessments and to cause the same to be paid.

PART IV. COLLECTION OF ASSESSMENTS AND CHARGES.

§8-17-13. Due date of assessments; statement of amount in default to petitioner.

Assessments made under the provisions of section eleven of this article shall be due the municipality within sixty days after the adoption by the governing body of the ordinance or resolution laying the assessment; and upon payment of an assessment by an abutter, he shall be given a receipt therefor, a copy of which shall be retained by the municipality; and, upon payment in due course of all such assessments pertaining to an improvement, the petitioner shall be automatically discharged on his bond. If any such assessment, in whole or in part, be not paid within said sixty days, the governing body shall determine the total amount in default and shall charge said amount to the petitioner by ordinance or resolution; and a statement of the charge shall be mailed to the petitioner at the proper address, determined as aforesaid.

§8-17-14. Due date of charges against petitioner; collection on bond; petitioner's right of action.

Charges made against any petitioner under the provisions of sections five, eight, ten and thirteen of this article shall be due the municipality within thirty days from the date that a statement was mailed to him at the proper address, determined as aforesaid. If any such charges against any petitioner be not paid within such thirty days, the governing body shall by ordinance or resolution authorize the proper municipal authorities to proceed to collect on the petitioner's bond.

Any petitioner who is forced to pay, either by collection on the bond or by voluntary payment to avoid collection on the bond, any sum which should have been paid by another petitioner or any other abutter shall have a right of action against any such defaulter for the amount that the defaulter should have paid, with interest at six percent from the date that the defaulter was in default; and where a petitioner makes a voluntary payment for any such defaulter to avoid collection on the bond, a receipt shall be given to him, and a copy retained by the municipality, showing the petitioner who made such payment, the defaulter for whom the payment was made and the charge or assessment for which the defaulter was in default, which receipt shall be prima facie evidence of the petitioner's right to collect from the defaulter named in said receipt the amount specified therein, with interest as above stated.

PART V. CUMULATIVE AUTHORITY.

§8-17-15. Cumulative authority.

The power and authority herein granted shall be in addition to and not in derogation of any power and authority vested in any municipality under any Constitutional, statutory or charter provisions which may now or hereafter be in effect.

PART I. POWER AND AUTHORITY TO MAKE IMPROVEMENTS.

§8-18-1. Power and authority of municipalities relating to street, sidewalk, sewer and other permanent improvements.

Every municipality is hereby empowered and authorized, in addition to any other rights, power and authority conferred upon it, upon the terms, conditions and in the manner hereinafter set forth, to grade or regrade, pave or repave, surface or resurface, curb or recurb, streets (which term is used in this article to include avenues and roads), alleys, public ways or easements, or portions thereof, and to build or renew sidewalks, and to construct, provide or renew any of such improvements or other permanent public improvements in any streets, alleys, public ways or easements, or portions thereof, in such municipality, and, if deemed advisable, to construct storm and sanitary sewers, or all or a part of a storm or sanitary or combined storm and sanitary sewer system in any streets, alleys, public ways or easements, or sewer right-of-ways or easements, or portions thereof, independently or in conjunction with other of such improvements, and to assess the costs of any or all of such improvements on abutting property.

§8-18-2. Petition of abutting property owners for improvement; improvements without petition.

Upon the petition in writing of persons owning the greater amount of frontage of property abutting upon any portion of a street, alley, public way or easement, or sewer right-of-way or easement, for any permanent improvement (which term is used in this section and the succeeding sections of this article to include any reimprovement) authorized in section one of this article, the governing body of any municipality may, after giving notice to abutting property owners as hereinafter in this article provided, by ordinance or resolution declare the necessity or convenience of such improvement and order and cause such portions of such streets, alleys, public ways or easements, or sewer right-of-ways or easements, to be graded, regraded, paved, repaved, surfaced, resurfaced, curbed, recurbed, sewered, resewered, permanently improved (which term is used in this section and the succeeding sections of this article to also mean reimproved) with sidewalks or otherwise permanently improved with suitable material, or any one or more of such improvements without the others, as may be determined by the governing body, to be made or constructed within such municipality or within such part or parts thereof as the governing body may determine, and such governing body may specially assess the entire cost of such improvements, or any part thereof, upon the property abutting on both sides of the portions of the streets, alleys, public ways or easements, or sewer right-of-ways or easements, improved.

The governing body of any municipality may also adopt such ordinance or resolution of necessity or convenience and provide for such improvements and the assessing of the cost thereof upon abutting property without such a petition of property owners having first been received, when the ordinance or resolution providing for such improvements is adopted by the affirmative vote of at least three fourths of the members of such governing body by recorded vote, after having given notice to abutting property owners as hereinafter in this article provided.

§8-18-3. Notice to abutting owners before authorizing improvements; form of notice; affidavit of publication.

Before the adoption of such ordinance or resolution of necessity or convenience, the governing body shall cause notice to be given to owners of abutting property that such ordinance or resolution will be considered before adoption at a public meeting of the governing body at a date, time and place named in the notice and that all persons shall at that meeting, or an adjournment thereof, be given an opportunity to protest or be heard concerning the adoption or rejection of said ordinance or resolution. Such notice to owners of property abutting on the portion of the street, alley, public way or easement, or sewer right-of-way or easement, to be improved may be by service on such owners in the manner in which process commencing a civil action under the laws of this state is permitted to be served at least ten days before said meeting. In lieu of such service of such notice, the following described notice, or one in substantially the same form, may be given, and shall be deemed to have been served on all such owners of abutting property, by publication of such notice as a Class II 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 such municipality:

"NOTICE TO ALL PERSONS OR CORPORATIONS OWNING PROPERTY ABUTTING ON ............................ (here describe the portion of the street, alley, public way or easement, or sewer right-of-way or easement, to be improved) IN THE ............................. (city, town or village) OF ........................... (name of municipality):

Proposals have been made to the .......................... (council, board of directors, commissioners or other governing body) of the ............................. (city, town or village) of ....................... (name of municipality) to permanently improve the portion of the ................. (street, alley, public way or easement, or sewer right-of-way or easement) above described in ..................................... (name of municipality) by ......................... (grading, regrading, paving, repaving, surfacing, resurfacing, curbing or recurbing, building or renewing of sidewalks, or the constructing of sanitary or storm sewers, or other general description of the proposed improvements) as the ................................... (council, board of directors, commissioners or other governing body) may deem proper, and to assess the cost of such improvements on the property abutting said portion of said .......................... (street, alley, public way or easement, or sewer right-of-way or easement).

The proposals to make such improvements, and the plans, specifications, profiles and estimates therefor, will be considered by the ........................... (council, board of directors, commissioners or other governing body) at a public meeting to be held on the ......... day of ............., 19......, at ...... M. at .................. Any abutting owner or interested party will be given an opportunity to protest or be heard at said meeting or an adjournment thereof.

........................... (name of recorder)

........................... (official position)."

An affidavit of publication of the notice, made by the newspaper publisher, or some person authorized to do so on behalf of such publisher, and a copy of the notice shall be made a part of the minutes of the governing body and spread on its records of the meeting described in the notice. The service of said notice upon all persons owning any interest in any property abutting upon any portion of said street, alley, public way or easement, or sewer right-of-way or easement, to be improved shall conclusively be deemed to have been given when such newspaper publication shall have been completed.

PART II. PROCEDURES RELATED TO IMPROVEMENTS AND ASSESSMENTS.

§8-18-4. Ordinance or resolution authorizing improvements; approval of plans, specifications and estimates; provisions for advertisement of bids and payment of cost; default.

After hearing held pursuant to notice as provided in section three of this article, the governing body, by ordinance or resolution, may authorize such improvements and the assessing of the total cost or any part thereof on abutting property as herein provided. In the same or subsequent ordinances or resolutions, but before advertising for bids from contractors, the governing body shall cause to be prepared plans, specifications and estimates of the cost of the proposed improvements under the supervision of the engineer for the municipality. Such plans, specifications and estimates shall show the proposed grade and sufficient data for any owner of abutting property to calculate approximately what proportionate part of the estimated cost thereof might be assessed against his property, and shall be filed with the recorder and open to the inspection of interested persons before advertisement for bids of contractors and before the meeting at which such bids may be accepted or rejected. Before advertising for bids of contractors, such governing body shall consider said plans, specifications and estimates and may amend or modify them, and before advertising for bids shall by ordinance or resolution approve such plans, specifications and estimates as so amended and modified. Such ordinance or resolution shall also provide for advertisement for bids, for the letting of a contract or contracts for the work to the lowest responsible bidder, with right reserved to such governing body to reject any and all bids, and shall provide for supervision of such work by the mayor, city manager, if any, municipal engineer, if any, or other person or committee designated by the governing body. Such ordinance or resolution shall also provide for payment of the cost of the work when completed. The governing body shall provide in such ordinance or resolution for the payment by abutting property owners of the cost of the work in equal installments payable over a period of not less than five years nor more than ten years from the date of assessment, with interest not to exceed eight percent a year from the date of assessment, and in said ordinance or resolution the governing body shall fix the number of installments in which the amounts assessed shall be payable: Provided, That each of said assessments or the installments thereof then remaining unpaid shall be payable at any time after assessment without interest after the date such payment is made: Provided, however, That on failure of the owner of the property assessed to pay any installment as and when due, and if such default continues for sixty days, then at the option of the governing body (if neither assessment certificates nor bonds are issued as hereinafter in this article provided), or the holder of the assessment certificates (if the assessments are evidenced by such certificates), or the holder of any bonds secured by such assessments (if bonds are issued), the entire balance due may be declared immediately due and payable and the municipality, or the holder of the certificates, or bonds, as the case may be, may forthwith proceed to enforce the collection thereof: Provided further, That if the amounts to be assessed against abutting property be less than $2 for each abutting front foot of property, then said governing body is authorized to make the same payable in one lump sum or in installments, with interest, over a period of less than five years from the date of assessment.

§8-18-5. Report on completion; notice to abutting owners of assessments; hearings; correcting and laying assessments.

When the improvement of such street, alley, public way or easement, or sewer right-of-way or easement, has been completed, the governing body shall cause the engineer, or other person charged by the governing body with the supervision of the work of improvement, to make a report showing the several frontages abutting thereon, the total cost, the respective amounts chargeable upon each lot or parcel of land assessed abutting thereon and the proper amounts to be assessed against the respective abutting lots or parcels of land as provided herein, with a description of the abutting lots and parcels of land as to ownership, frontage and location. The governing body shall thereupon give notice to the owners of the property to be assessed that on or after a date named in said notice an assessment may be laid against the property so improved as embodied in said report. Said notice shall state that the owner or owners whose property is to be assessed, or other interested party, may on said date appear before the governing body to move the revision or correction of such proposed assessment. Such notice shall be published as a Class II 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 the municipality. Said notice shall show the total cost of the improvement, the several frontages abutting thereon and the respective amounts to be assessed against the abutting property, with a description of the respective abutting lots and parcels of land as to ownership, frontage and location. On or after the date so advertised, the governing body may revise, amend, correct and verify the report and proceed by ordinance or resolution to lay the assessments as corrected and verified.

PART III. APPORTIONMENT IN MAKING ASSESSMENTS.

§8-18-6. Construction of sewers and sewer systems; assessments; corner lots, etc.

The governing body of any municipality is hereby empowered and authorized to order and cause to be constructed, within said municipality, or partly within and partly without the corporate limits of said municipality, public, common, lateral, branch and trunk storm and sanitary sewers and sewer systems and combined storm and sanitary sewers or sewer systems, or both, by contract or directly by the municipality, for the benefit of said municipality or any part thereof, and to purchase lands or easements or to condemn lands or easements in the manner provided by law for such sewers or sewer systems. When the governing body shall order and complete the construction of any such sewer or sewer system or any part thereof within said municipality, the property abutting on such sewer or abutting upon any street, alley, public way or easement, or any sewer right-of-way or easement, in which such sewer shall be constructed, or abutting on any street, alley, public way or easement, or any sewer right-of-way or easement, in which any part of such a sewer is constructed, may be charged with all or any part of the cost thereof, including the cost of such sewer or sewer system across intersections of streets, alleys, public ways and easements.

A sewer system shall be deemed to include all of the common sewers whether they be lateral, branch, trunk or combined sewers, which serve to drain a definite drainage area as specified in the order of the governing body directing the work to be done.

In case of a corner lot, or of acreage which has not been divided into lots, frontage which may be assessed shall be measured along the longest dimension thereof abutting on each street, alley, public way or easement, or sewer right-of-way or easement, in which such sewer is laid, but if sewered on two or more sides then such corner lot, or acreage which has not been divided into lots, is to be charged only with the side first sewered unless two hundred feet or more in depth measured from such first sewered side, in which event the corner lot, or acreage which has not been divided into lots, shall be charged only with the footage in excess of two hundred feet. Any lot, or any acreage which has not been divided into lots, having such a depth of two hundred feet or more and abutting on two or more streets, alleys, public ways or easements, or sewer right-of-ways or easements, one in the front and one in the rear of said lot, or said acreage which has not been divided into lots, shall be assessed on both of said streets, alleys, public ways or easements, or sewer right-of-ways or easements, if a sewer is constructed on both such streets, alleys, public ways or easements, or sewer right-of-ways or easements. Where a corner lot, or an acreage which has not been divided into lots, has been assessed on both ends, it shall not be assessed on the side, and where it has been assessed on the side, it shall not be assessed on either end.

In case of corner lots, or acreage which has not been divided into lots, where the cost of sewering along one dimension is not assessed against the owner thereof, and in the case of lots, or acreage, less than two hundred feet deep abutting at each end on a street, alley, public way or easement, or sewer right-of-way or easement, in which a sewer is laid, the cost of sewering along the dimension or end not assessed against the property owner shall in every case be apportioned and assessed against the other property abutting on the streets, alleys, public ways or easements, or sewer right-of-ways or easements, being improved, in the manner of apportionment of the cost of improvements in intersections.

§8-18-7. What total cost to include.

In ascertaining the total cost of the improvements in any project undertaken pursuant to the provisions of this article, there shall be included the cost and expense of surveys, engineering and attorneys' fees, the printing and publishing in relation thereto, and the cost and expense of all labor, work, supervision, inspection, equipment leased, and materials furnished and used in completing said improvements.

§8-18-8. Apportionment and assessment of cost.

The cost of the entire project, including the cost of all improvements at and within intersections, shall be apportioned to, and assessed against and borne by the properties abutting upon the streets, alleys, public ways or easements, or sewer right-of-ways or easements, in or upon which the improvements involved in the project shall have been made. Each lot or parcel of land so abutting shall be assessed, subject to the provisions of section six of this article respecting assessment for sewer improvement of corner lots, acreage not divided into lots and lots or acreage sewered on more than one side or end, with that portion of the total cost of the entire project which is represented by the proportion which the abutting frontage in feet of such lot or parcel of land bears to the total abutting frontage in feet of all the lots or parcels of land abutting on the streets, alleys, public ways or easements, or sewer right-of-ways or easements, so improved: Provided, That if the character of the improvements shall be substantially different upon different streets, alleys, public ways or easements, or sewer right-of-ways or easements, or portions thereof, the cost may be equitably apportioned to the respective streets, alleys, public ways or easements, or sewer right-of-ways or easements, or portions thereof, in proportion to the character and cost of the improvements respectively thereon and the part of the cost so apportioned to each respective street, alley, public way or easement, or sewer right-of-way or easement, or portion thereof, shall be apportioned to and assessed against the respective lots or parcels of land abutting thereupon in the proportion as hereinabove provided: Provided, however, That if any part of the street, alley, public way or easement improved is used by a railway, then the cost of the portion of any improvements between the rails and for two feet outside said rails shall be assessed against and wholly borne by the owner of the railway: Provided further, That property shall be assessed only to the extent it is benefited and if there be any property abutting on the portion of the street, alley, public way or easement, or sewer right-of-way or easement, so improved which it has been determined by the governing body, and shown in the ordinance or resolution authorizing the improvements, not to be specially benefited by the improvements, or not to be specially benefited to the full extent of the cost of the improvements, or for other reasons would not be liable to assessment for any of, or for some part of, the cost of improvements, then the cost of the improvements abutting such part of said street, alley, public way or easement, or sewer right-of-way or easement, or so much thereof as is so determined to be nonassessable, shall be apportioned among, assessed against and borne by the remaining property abutting upon the streets, alleys, public ways or easements, or sewer right-of-ways or easements, improved in proportion, subject to the aforesaid provisions of section six of this article, to the frontage of such remaining abutting property as hereinabove provided: And provided further, That if such improvements include the building or renewal of sidewalks on only one side of a street, alley, public way or easement, then the cost of such sidewalk shall be assessed only on the property abutting on that side where the sidewalks are so built or renewed: Provided, That in apportioning and assessing the cost of sewers or sewer systems the provisions of section six of this article shall be observed: Provided, however, That if there be property abutting the street, alley, public way or easement, or sewer right-of-way or easement, so improved which is owned by the United States of America, and, for that reason, not legally subject to assessment, then the municipality shall pay the proportionate part of the cost of the improvement which otherwise would be assessable against such federally owned property.

In apportioning the cost to any lot or parcel of land in any situation not covered in this article, the cost shall be apportioned equitably, as determined by the governing body, in keeping with the concepts and principles expressed in this article and the special benefit to the property in question from the improvements made.

§8-18-9. Assessment against property of public, charitable, eleemosynary, educational or religious institutions; duty of those in charge to cause assessments to be paid.

When any of the lots or parcels of land abutting the portion of the street, alley, public way or easement, or sewer right-of-way or easement, improved consist of property owned or controlled by this state, any municipality, county, Board of Education or other public body, or consist of property owned by, or used for, a church, or a religious, charitable, educational or eleemosynary institution, for purposes not subject to taxation, such property shall nevertheless be assessed with its proper proportion of the cost of said improvement, and it shall be the duty of those persons having charge of the fiscal affairs of such owner or the management of any such property or institution to make proper arrangements for the payment of, and cause to be paid, such assessments as and when due and payable.

PART IV. LIENS OF ASSESSMENTS AND ENFORCEMENT THEREOF.

§8-18-10. Liens; recording notice of liens; suit for enforcement; priority.

The property abutting the portion of the street, alley, public way or easement, or sewer right-of-way or easement, improved shall be subject to a lien, from the date of the ordinance or resolution laying the assessment, for the payment of the cost of the improvements assessed against said property. A notice of the liens of said assessments referring to the assessing ordinance or resolution, and setting forth a list of the property assessed, described respectively as to amounts of assessment and ownership, frontage and location of the property, shall be certified by the recorder of the municipality to the clerk of the county court of the county wherein the improvement or any part thereof is located. The county clerk shall record the same in a proper trust deed book and index the same in the name of each owner of abutting property assessed. From the date of the assessment, the municipality (if neither assessment certificates nor bonds are issued as hereinafter in this article provided), or the holder of the assessment certificates (if the assessments are evidenced by such certificates), or the holders of the bonds secured by such assessments (if bonds are issued), shall have such liens and shall be entitled to enforce the same in its, his or their name or the name of the municipality to the extent of the amount, principal and interest, of such assessments and against the said property, as to any assessment not paid as and when due. Said assessments shall be and constitute liens in the hands of the municipality, or the holders of said certificates, or the holders of said bonds, as the case may be, upon the respective lots and parcels of land assessed and shall have priority over all other liens except those for land taxes due the state, county and municipality, and except any liens for preexisting special assessments. Said assessments and interest thereon shall be paid by the owners of the property assessed as and when the installments are due. The municipality, or the holders of any such certificates, or the holders of any such bonds, as the case may be, may enforce the lien thereof in any proper suit, and when default in the payment, as and when due, of any assessment, principal or interest, or installment, shall occur and such default shall have continued for more than sixty days, the municipality, or the holders of any such certificates, or the holders of any such bonds, as the case may be, may declare the whole unpaid balance due and payable and by proper civil action seeking equitable relief enforce the lien thereof, upon process issued and served according to law upon the owner or owners of the lots or parcels of land subject to said lien at the time such suit may be brought as shown by the records of the clerk of the county court of the county in which said lots or parcels of land are located.

§8-18-11. How assessments may be evidenced.

The governing body shall also determine and provide in the ordinance or resolution laying the assessments, adopted in accordance with the provisions of section five of this article, if such provision was not made in the ordinance or resolution adopted in accordance with the provisions of section four of this article, the method of paying for the work, for the cost of which assessments are levied as in this article provided, whether by an appropriation from funds in the treasury of the municipality unappropriated to be repaid from the collection of the assessments, or by the issuance of certificates as hereinafter provided, or from the proceeds of bonds issued in anticipation of the collection of special assessments to be made against the abutting property owners as provided for in section fourteen of this article.

PART V. FINANCING IMPROVEMENTS BY USE OF UNAPPROPRIATED

FUNDS TO BE REPAID BY ASSESSMENTS.

§8-18-12. How funds of municipality to be repaid if work paid for from unappropriated funds rather than by means of assessment certificates or from the proceeds of bonds.

If the governing body shall determine by ordinance or resolution as in this article provided to pay for the work completed, for the cost of which assessments are levied as in this article provided, from unappropriated funds in the treasury of the municipality, it shall be the duty of the governing body immediately to certify such assessments to the treasurer for collection in accordance with the terms provided in the ordinance or resolution authorizing the improvements.

To each of the installments of assessments remaining unpaid in the treasurer's hands on the dates specified for the payment thereof, a penalty of ten percent shall be added, and any assessments so remaining unpaid in the treasurer's hands on such dates shall be taken up by the governing body on settlements had with the treasurer on such dates, and such assessments, with the penalty added thereto, shall be collected in all respects as provided for the collection of taxes due the municipality, and they shall be a lien upon the property liable therefor the same as a lien for taxes, which lien may be enforced in the same manner as provided for a lien for taxes.

Whenever all installments of an assessment for such improvements shall be paid in full to the treasurer he, on behalf of the municipality, shall execute and deliver to the party paying the same a release of the lien therefor, which may be recorded in the office of the clerk of the county court as other releases of liens; and whenever any such assessments shall not be in the hands of the treasurer for collection, but the same shall be shown to the satisfaction of the municipal Auditor or other official performing the duties of Auditor for the municipality to have been paid in full to any officer entitled to receive the same, such Auditor or such other official or the mayor, in cases where the municipality has no Auditor or such other official, may in like manner execute such release.

PART VI. FINANCING IMPROVEMENTS BY ISSUANCE OF

ASSESSMENT CERTIFICATES.

§8-18-13. Assessment certificates.

If the governing body shall determine by ordinance or resolution to pay for the cost of the work by the issuance of assessment certificates, then immediately upon the laying of the assessment against the abutting property, such assessment certificates shall be issued evidencing said assessments and each installment of principal and interest payable. Said certificates may be payable to the municipality or to the bearer and be signed by the mayor and recorder, or other equivalent officers of the municipality, and shall refer to the ordinance or resolution laying the assessments; shall show the amount and date of the assessment and describe the property against which the assessment is laid, describing the same as to ownership, amount, frontage and briefly as to location. Said certificates shall also show the dates on which principal and interest payments are due, and shall contain a provision that in the event there is default in the payment of any one of such installments and such default continues for a period of sixty days, then all unpaid installments shall become due and payable at the election of the certificate holder and the holder may proceed to collect all of the unpaid balances of installments, with interest until paid. Said certificates may be issued to the contractor making the improvements in payment therefor, upon the contractor's reimbursing the municipality for those items of the cost and expense advanced by the municipality and referred to in section seven of this article. Said certificates payable to the bearer shall be assignable by delivery of the certificates and be enforceable by the holder. The municipality issuing such certificates shall not be held as guarantor or in any way liable for the payment of bearer certificates.

PART VII. FINANCING IMPROVEMENTS BY ISSUANCE OF BONDS.

§8-18-14. Issuance of bonds.

Every municipality is hereby empowered and authorized to issue its bonds for any improvements under the provisions of this article in anticipation of special assessments to be made upon the property abutting upon the streets, alleys, public ways or easements, or sewer rights-of-way or easements, so improved, and such bonds may be in such an amount as will be sufficient to pay the entire estimated cost and expense of such improvements for which such special assessments are levied. Such municipality is also authorized to sell such bonds, but the price for which they are sold shall not be below the par value of such bonds. Such bonds shall be payable in not to exceed ten years from the date of the issuance thereof, and shall bear interest at not to exceed twelve percent per annum, payable at such times, as shall be determined by the governing body of the municipality; and in the issuance and sale of such bonds, the municipality shall be governed by all the restrictions and limitations of the Constitution of this state, and by the restrictions and limitations of the statutes of this state with respect to the issuance and sale of other bonds, so far as they are not in conflict with the provisions of this article; and the assessments shall be collected as provided in sections ten and twelve of this article, and as paid and collected shall be applied to the liquidation of such bonds and the interest thereon; and if by reason of penalties collected with delinquent assessments there be any balance after the payment of such bonds and all accrued interest and cost, such balance shall be turned into the municipal treasury to the credit of the interest and sinking fund of the municipality: Provided, That no such municipality shall by sale or issuance of such bonds cause the aggregate of its indebtedness of every kind whatsoever to exceed five percent of the value of taxable property therein: Provided, however, That nothing herein contained shall be construed as authorizing any such municipality to become indebted in any other manner or for any purpose, to an amount, including its existing indebtedness, in the aggregate exceeding two and one-half percent of the value of the taxable property therein, as provided in section three, article one, chapter thirteen of this code, except for the purpose of grading, regrading, paving, repaving, surfacing, resurfacing, curbing, recurbing, building or renewing sidewalks, or constructing sewers or otherwise improving or reimproving the streets, alleys, public ways or easements, or sewer rights-of-way or easements, of such municipality, as provided for in this article; nor shall such municipality make such issuance and sale without at the same time providing for the collection of a direct annual tax sufficient to pay annually the interest on such debt and the principal thereof within and not exceeding ten years. All of the assessments, interest and penalties collected from the abutting property owners on account of the grading, regrading, paving, repaving, surfacing, resurfacing, curbing, recurbing, building or renewing sidewalks, or constructing sewers or otherwise improving or reimproving the streets, alleys, public ways or easements, or sewer rights-of-way or easements, of any such municipality, under the provisions of this article, shall annually be applied to the annual tax required to pay the interest on such debt and such principal within and not exceeding ten years; and in the event that the assessments, interest and penalties so collected do not amount to a sum sufficient to pay annually the interest on such debt and the principal thereof within and not exceeding ten years, then the governing body of such municipality shall collect so much of such levy as will pay annually the interest on such debt and the principal thereof within and not exceeding ten years.

§8-18-15. Bonds to pay municipality's share of cost of improvements.

Every municipality is also empowered and authorized to issue and sell its bonds, as provided in this article for the sale of other bonds, to pay any part of the cost of such improvements to be paid by the municipality, and such municipality may levy taxes in addition to all other taxes authorized by law, to pay such bonds and interest thereon: Provided, That the total indebtedness of the municipality for all purposes shall not exceed five percent of the total value of all taxable property therein.

§8-18-16. Bond issue to be authorized by voters.

No bonds shall be issued under the provisions of this article unless and until the question of issuing such bonds shall have first been submitted to a vote of the qualified voters of the municipality, and shall have received three fifths of all of the votes cast at such election for or against the same. The governing body of any municipality empowered and authorized to issue bonds under the provisions of this article may provide by ordinance for an annual election, at which the question shall be submitted to the people as to whether the municipality shall issue bonds, for the purposes and under the provisions of this article, to an amount not to exceed in the ensuing year the amount recommended by such ordinance for such ensuing year. The ordinance providing for such election need not specify in detail the location of the improvements contemplated to be paid for during the ensuing year out of such aggregate issue authorized for such year, but, before issuing any such bonds, the governing body shall adopt an ordinance or resolution as in this article provided, authorizing the improvements to be made. It shall be a sufficient description of the purpose for which such election is held if the ordinance calling the same shall recite that the governing body proposes to issue bonds for the purpose of grading, regrading, paving, repaving, surfacing, resurfacing, curbing, recurbing, building or renewing sidewalks, or constructing sewers or otherwise improving or reimproving the streets, alleys, public ways or easements, or sewer right-of-ways or easements, of such municipality at such time as to the governing body shall seem fit during the ensuing year ending on the ........... day of ....................., 19......, to an amount not exceeding in the aggregate during said year the sum of $................... When the governing body shall have once been authorized by a vote of the qualified voters to issue bonds for such purposes and to a sum not to exceed the amount set forth in the ordinance calling such election, no further election shall be necessary for the issuing of bonds during such ensuing year up to the amount stipulated in such ordinance calling such election, but the governing body shall, from time to time during such ensuing year, by ordinance authorize the issuance of such bonds in such sums, and authorize such improvements the cost of which shall be paid from the proceeds of such bonds, as said governing body shall determine. The aggregate amount of bonds authorized by such annual election shall not be exceeded during such ensuing year, unless the same be authorized by a special bond election held at a subsequent time in such year and duly called as provided for the calling of the annual bond election. The provisions of article one, chapter thirteen of this code, concerning bond elections shall, so far as they are not in conflict with the provisions of this article, apply to the annual bond elections and special bond elections herein provided for.

PART VIII. PAYMENT OF ASSESSMENTS.

§8-18-17. Payment of assessments or installments; release.

Payments of any assessments or installments thereof may be made to the treasurer of the municipality or the holder of the assessment certificates. If payment is made to the treasurer he shall require all interest to be paid which is owed up to the time of payment, and notify the holder of the certificate, if informed of the holder's address, that he has received such payment, and make payment to the holder on presentation for cancellation of the certificate representing such payment. If payment is made to the holder of the certificate, the holder shall deliver to the payor certificates marked "paid" representing the payments made of principal and interest. On presentation to the treasurer for cancellation of all certificates of principal and interest for the whole assessment made against a specific piece of property assessed, the treasurer shall on request execute and deliver a release of the lien of such assessment.

PART IX. REASSESSMENT FOR VOID ASSESSMENTS.

§8-18-18. Reassessment for void, irregular or omitted assessments.

In the case of the construction of any permanent improvements where an assessment has heretofore been laid or may hereafter be laid for the cost thereof, which said assessment is or shall be void or voidable by reason of errors, irregularities or defects in the proceedings under which such improvements were made, or in case such assessment shall have been made against the wrong person or property, or shall have been omitted to be made in a case where the same was proper, it shall be the duty of the governing body within ten years after the completion of such improvements, or after any court shall have declared such assessment invalid, to cause notice to be given to any person or persons against whom the cost of said improvements might properly be or have been assessed, of its intention to lay such assessment and fixing a date, time and place at which the owner or owners may appear and show cause against the same. Said notice shall be served in the manner provided in this article for the giving of notices in assessment proceedings, or in any other manner provided by law. At the time and place specified in the notice aforesaid or at any time thereafter, the governing body shall proceed to lay and levy an assessment or assessments for the cost of such improvements as would have been lawful under proper proceedings at the time said improvements were completed, unless the owner or owners so notified shall show good cause against the same. The reassessment or reassessments so laid shall be a lien upon the property liable therefor in the manner hereinabove provided from the date of the completion of the improvements, with interest therefrom, and proper assessment certificates may be issued, recordation had, and the payment thereof and the lien thereof may be enforced in the same manner and upon the same terms as would have been proper at the time of the completion of the said improvements had the assessments therefor been then properly laid and levied.

PART X. LIMITATION ON ADDITIONAL ASSESSMENTS.

§8-18-19. Limitation on additional assessments.

When the cost of grading or regrading, paving or repaving, surfacing or resurfacing, curbing or recurbing or other work permanently improving streets, alleys, public ways or easements, or of building or renewing sidewalks, or constructing sewers, has been assessed against abutting property under the provisions of this article, no part of the cost of a similar permanent improvement of the same portion of the same street, alley, public way or easement, or sewer right-of-way or easement, shall be assessed against such abutting property within ten years after completion of the last preceding similar such improvement for which assessments have been so made and levied.

PART XI. CONSTRUCTION.

§8-18-20. Liberal construction of article; validity and enforcement of assessments when bond issue for same improvements.

This article shall be liberally construed to accomplish the purpose of providing reasonable, economical and expeditious means for municipalities to provide permanent improvements and to assure to the contractors making such improvements, or persons directly or indirectly financing the same, security in the payment of the cost and expense of such improvements; and nothing in this article shall be construed as imposing a time limit on a certificate holder or bondholder for the enforcement of his rights.

Moreover, the validity and enforcement of the assessments in this article provided shall not be impaired by the issuance and sale of bonds, as provided in article one of chapter thirteen of this code, for the same improvements, nor by the application, in whole or in part, of the proceeds of any such bond issue to the cost of any such improvement prior to collection of said assessments.

§8-18-21. Cumulative authority.

The power and authority herein granted shall be in addition to and not in derogation of any power and authority vested in any municipality under any Constitutional, statutory or charter provisions which may now or hereafter be in effect.

§8-18-22. Connection to sewers; board of health; penalty.

Regardless of whether a lot or parcel is within any municipality’s geographical limits, the owner or owners of any lot or parcel of land abutting on any street, alley, public way or easement on which a municipal sewer is now located or may hereafter be constructed and laid (whether constructed and laid under the provisions of this article or any other provisions of law) upon which lot or parcel of land any business or residence building is now located or may hereafter be erected, not connected with a public sewer, may be required and compelled by the municipality or by the board of health to connect any such building with such sewer. Notice so to connect shall be given by the municipality or by the board of health to the owner and to the lessee or occupant of such building. The owner or owners shall connect to the municipal sewer within thirty days after notice to connect has been sent by the municipality. Regardless of whether the owner or owners connect to such sewer, the municipality may bill the owner or owners of the lot or parcel and the owner or owners shall pay the municipality’s charge based on the actual water consumption on the lot or parcel. If the lot or parcel is not metered, the municipality’s charge shall be based on the municipality’s good faith estimate of the consumption on the lot or parcel.

§8-18-23. Authority to require discontinuance of water service by provider utility for nonpayment of sewer service rates and charges; lien for delinquent service rates and charges; failure to cure delinquency; civil actions; deferral of filing fees and costs in magistrate court action; limitations with respect to foreclosure.

(a) When any municipality owns, maintains, operates or provides sewer facilities to its residents and customers and does not own, maintain, operate or provide water facilities to them when the same is provided by any other publicly or privately owned utility, municipality or public service district, the municipality providing sewer facilities may require the provider of water facilities to discontinue water service to any of its users who are delinquent in the payment of sewer service rates and charges to the municipality. The provider of water facilities is empowered and authorized hereby to discontinue water service upon demand of the municipality for this purpose; however, prior to discontinuance of any water service, the municipality shall contract with the provider of water facilities which contract shall provide that the municipality shall reimburse the provider of water facilities for all costs and expenses incurred in both the termination of water service to the delinquent user of sewer facilities and the subsequent resumption of water service to such user. The contract shall provide for reasonable methods and assurances so that the provider of water facilities will be protected and held harmless from claims and damages when water service is discontinued in error or in violation of the rights of the user through the fault of the municipality providing sewer facilities and making the demand for discontinuance of water service to the user of such sewer facilities. Any contract made for this purpose shall have the approval of the Public Service Commission prior to its execution and performance. Any disconnection of water service must comply with all rules, regulations and orders of the Public Service Commission.

(b) Whenever any rates and charges for services or facilities furnished remain unpaid for a period of thirty days after the same become due and payable, the user of the services and facilities provided shall be delinquent and the user shall be held liable at law until such time as all such rates and charges are fully paid.

(c) All rates and charges whenever delinquent, as provided by ordinance of the municipality, shall, when notice thereof is duly recorded in the office of the clerk of the county commission wherein the subject real property is situate, be liens of equal dignity, rank and priority with the lien on such premises of state, county, school and municipal taxes for the amount thereof upon the real property served, and the municipality shall have plenary power and authority from time to time to enforce such lien in a civil action to recover the money due for such services rendered plus court fees and costs and a reasonable attorney's fee: Provided, That an owner of real property may not be held liable for the delinquent rates or charges for services or facilities of a tenant, nor shall any lien attach to real property for the reason of delinquent rates or charges for services or facilities of a tenant of such real property, unless the owner has contracted directly with the municipality to purchase such services or facilities.

(d) Municipalities are hereby granted a deferral of filing fees or other fees and costs incidental to the bringing and maintenance of an action in magistrate court for the collection of the delinquent rates and charges. If the municipality collects the delinquent account, plus fees and costs, from its customer or other responsible party, the municipality shall pay to the magistrate court the filing fees or other fees and costs which were previously deferred.

(e) No municipality may foreclose upon the premises served by it for delinquent rates and charges for which a lien is authorized by this section except through the bringing and maintenance of a civil action for such purpose brought in the circuit court of the county wherein the municipality lies. In every such action, the court shall be required to make a finding based upon the evidence and facts presented that the municipality had exhausted all other remedies for the collection of debts with respect to such delinquencies prior to the bringing of such action. In no event shall foreclosure procedures be instituted by any municipality or on its behalf unless such delinquency has been in existence or continued for a period of two years from the date of the first such delinquency for which foreclosure is being instituted.

PART I. MUNICIPAL AND COUNTY WATERWORKS AND ELECTRIC POWER

SYSTEMS AUTHORIZED; DEFINITION.

§8-19-1. Acquisition and operation of municipal and county waterworks and electric power systems; construction of improvements to municipal and county electric power systems; extension beyond corporate limits; definitions.

(a) Subject to and in accordance with the provisions of this article, any municipality or county commission may acquire, construct, establish, extend, equip, repair, maintain and operate, or lease to others for operation, a waterworks system or an electric power system or construct, maintain and operate additions, betterments and improvements to an existing waterworks system or an existing electric power system, notwithstanding any provision or limitation to the contrary in any other law or charter: Provided, That such municipality or county commission shall not serve or supply water facilities or electric power facilities or services within the corporate limits of any other municipality or county commission without the consent of the governing body of such other municipality or county commission.

(b) Any municipality or county commission which intends to file an application with the federal energy regulatory commission for a license to acquire, construct, establish, extend, maintain and operate, or lease to others for operation, an electric power system, shall give written notice by certified mail, return receipt requested, and shall give public notice by Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area shall be the municipality or county in which the system is to be located to the governing body of the municipality or the county commission in which such system is or shall be located or, if such system is or shall be located outside of a municipality or county, to the county commission of the county in which such system is or shall be located, at least sixty days prior to the filing of such application: Provided, That the provisions of this subsection shall not apply to any municipality or county commission which, on the date of the passage of this act, has obtained a license from the federal energy regulatory commission to acquire, construct, establish, extend, maintain and operate, or lease to others for operation, an electric power system. If the municipality or county commission receiving such notice does not respond to the notice within sixty days of receipt of such notice, then such other municipality or the county commission shall be deemed to have consented to the application for the proposed electric power system. If such other municipality or the county commission notifies the municipality or county commission that it objects to the proposed electric power system, such other municipality or the county commission shall hold a public hearing on the proposed system within sixty days of receipt of such notice from the municipality or county commission.

(c) As used in this article:

(1) "Waterworks system" means a waterworks system in its entirety or any integral part thereof, including mains, hydrants, meters, valves, standpipes, storage tanks, pump tanks, pumping stations, intakes, wells, impounding reservoirs, pumps, machinery, purification plants, softening apparatus and all other facilities necessary, appropriate, useful, convenient or incidental in connection with or to a water supply system.

(2) "Electric power system" means a system or facility which produces electric power in its entirety or provides for the distribution of electric power for local consumption and use or for distribution and resale or any combination thereof, or any integral part thereof, including, but not limited to, power lines and wires, power poles, guy wires, insulators, transformers, generators, cables, power line towers, voltage regulators, meters, power substations, machinery and all other facilities necessary, appropriate, useful or convenient or incidental in connection with or to an electric power supply system.

§8-19-2. Contracts for purchase of electric power or energy by a municipality; definitions; requirements; payments; rates and charges.

(a) For the purposes of this section:

(1) “Contract” means an agreement entered into by a municipality with any other party for the purchase of electric output, capacity, or energy from a project as defined herein;

(2) “Any other party” means any other legal entity, including, but not limited to, another municipality, political subdivision, public authority, agency, or instrumentality of any state or the United States, a partnership, a limited partnership, a limited liability company, a corporation, an electric cooperative or an investor-owned utility existing under the laws of any state; and

(3) “Project” or “projects” means systems or facilities owned by another party and used for the generation, transmission, transformation, or supply of electric power, or any interest in them, whether an undivided interest as a tenant in common or otherwise, or any right to the output, capacity, or services thereof.

(b) In addition to the general authority to purchase electricity on a wholesale basis for resale to its customers, any municipality that owns and operates an electric power system under the provisions of this article may enter into a contract with any other party for the purchase of electricity from one or more projects located in the United States that provides that the contracting municipality is obligated to make payments required by the contract whether or not a project is completed, operable, or operating and notwithstanding the suspension, interruption, interference, reduction, or curtailment of the output of a project or the power and energy contracted for, and that the payments shall not be subject to any reduction, whether by offset or otherwise, and shall not be conditioned upon performance or nonperformance by any other party. The contract may provide that, in the event of a default by the municipality or any other party to the contract in the performance of each entity’s obligations under the contract, any nondefaulting municipality or any other party to the contract shall on a pro rata basis succeed to the rights and interests of, and assume the obligations of, the defaulting party.

(c) Notwithstanding any other provisions of law, ordinance or charter provision to the contrary, a contract under §8-19-2(b) of this code may extend for more than 50 years or 50 years from the date a project is estimated to be placed into normal continuous operation and the execution and effectiveness of the contract is not subject to any authorizations or approvals by the state or any agency, commission, instrumentality, or political subdivision thereof except as otherwise specifically required by law.

(d) A contract §8-19-2(b) of this code may provide that payments by the municipality are made solely from and may be secured by a pledge of and lien upon revenues derived by the municipality from ownership and operation and that payments shall constitute an operating expense of the electric power system. No obligation under the contract shall constitute a legal or equitable pledge, charge, lien, or encumbrance upon any property of the municipality or upon any of its income, receipts, or revenues, except the revenues of the municipality’s electric power system. Neither the faith and credit nor the taxing power of the municipality shall be pledged for the payment of any obligation under the contract.

(e) A municipality contracting under the provisions of §8-19-2(b) of this code is obligated to fix, charge, and collect rents, rates, fees, and charges for electric power and energy and other services it sells, furnishes, or supplies through its electric power system in an amount sufficient to provide revenues adequate to meet its obligations under the contract and to pay any and all other amounts payable from or constituting a charge and lien upon the revenues, including the amounts necessary to pay the principal and interest on any municipal bonds issued related to its electric power system: Provided, That any change in the rates and charges of the municipality to the customers of the electric power system under the provisions of this section are subject to the provisions and requirements of §8-19-2a of this code and the obligations of the municipality under the contract are costs of providing electric service within the meaning of that section.

PART III. RIGHT OF EMINENT DOMAIN.

§8-19-3. Right of eminent domain; limitations.

For the purpose of acquiring, constructing, establishing or extending any waterworks system or electric power system, or for the purpose of constructing any additions, betterments or improvements to any waterworks or electric power system, or for the purpose of acquiring any property necessary, appropriate, useful, convenient or incidental for or to any waterworks or electric power system, under the provisions of this article, the municipality or county commission shall have the right of eminent domain as provided in chapter fifty-four of this code: Provided, That such right of eminent domain for the acquisition of a privately owned waterworks system, or electric power system, or any part thereof, shall not be exercised without prior approval of the Public Service Commission, and in no event shall any municipality or county commission construct, establish or extend beyond the corporate limits of said municipality or county line a municipal or county waterworks or electric power system under the provisions of this article to supply service in competition with an existing privately or municipally or county owned waterworks or electric power system in such municipality or county or within the proposed extension of such system, unless a certificate of public convenience and necessity therefor shall have been issued by the Public Service Commission: Provided, however, That a municipality or county commission may not exercise such right of eminent domain over a privately owned electric power system or any part thereof for the purpose of acquiring, constructing, establishing or extending an electric power system.

Subject to the provisions of this article and notwithstanding the provisions of section nineteen, article twelve of this chapter to the contrary, a municipality or county commission may acquire, construct, establish, extend, equip, repair, maintain and operate, or lease to others for operation, electric generators or electric generating systems or electric transmission systems more than one mile beyond the corporate limits of such municipality or county line and said electric generation systems shall not be under the jurisdiction of the Public Service Commission.

§8-19-4. Estimate of cost; ordinance or order for issuance of revenue bonds; interest on bonds; rates for services; exemption from taxation.

Whenever a municipality or county commission, under the provisions of this article, decides to acquire, by purchase or otherwise, construct, establish, extend or equip a waterworks system or an electric power system, or to construct any additions, betterments, or improvements to any waterworks or electric power system, it shall cause an estimate to be made of the cost thereof, and may, by ordinance or order, provide for the issuance of revenue bonds under the provisions of this article, which ordinance or order shall set forth a brief description of the contemplated undertaking, the estimated cost thereof, the amount, rate or rates of interest, the time and place of payment and other details in connection with the issuance of the bonds. The bonds shall be in such form and shall be negotiated and sold in such manner and upon such terms as the governing body of such municipality or county commission may, by ordinance or order, specify. All the bonds and the interest thereon shall be exempt from all taxation by this state, or any county, municipality or county commission, political subdivision or agency thereof. Notwithstanding any other provision of this code to the contrary, the real and personal property which a municipality or county has acquired and constructed according to the provisions of this article, and any leasehold interest therein held by other persons, shall be considered public property and shall be exempt from taxation by the state, or any county, municipality or other levying body, so long as the same is owned by the municipality or county: Provided, That with respect to electric power systems, this exemption for real and personal property shall be applicable only for the real and personal property: (1) Physically situate within the municipal or county boundaries of the municipality or county which acquired or constructed the electric power system and there was in place prior to the effective date of the amendments to this section made in the year 1992 an agreement between the municipality and the county commission for payments in lieu of tax; or (2) acquired or constructed with the written agreement of the county school board, county commission, and any municipal authority within whose jurisdiction the electric power system is or is to be physically situate. Notwithstanding anything contained in this statute to the contrary, this exemption shall be applicable to any leasehold or similar interest held by persons other than a municipality or county only if acquired or constructed with the written agreement of the county school board, county commission and any municipal authority within whose jurisdiction the electric power system is or is to be physically situate: Provided, however, That payments made to any county commission, county school board or municipality in lieu of tax pursuant to such an agreement shall be distributed as if the payments resulted from ad valorem property taxation. The bonds shall bear interest at a rate per annum set by the municipality or county commission, payable at such times, and shall be payable as to principal at such times, not exceeding 50 years from their date, and at such place or places, within or without the state, as shall be prescribed in the ordinance or order providing for their issuance. Unless the governing body of the municipality or county commission shall otherwise determine, the ordinance or order shall also declare that a statutory mortgage lien shall exist upon the property so to be acquired, constructed, established, extended or equipped, fix minimum rates or charges for water or electricity to be collected prior to the payment of all of said bonds and shall pledge the revenues derived from the waterworks or electric power system for the purpose of paying the bonds and interest thereon, which pledge shall definitely fix and determine the amount of revenues which shall be necessary to be set apart and applied to the payment of the principal of and interest upon the bonds and the proportion of the balance of the revenues, which are to be set aside as a proper and adequate depreciation account, and the remainder shall be set aside for the reasonable and proper maintenance and operation thereof. The rates or charges to be charged for the services from the waterworks or electric power system shall be sufficient at all times to provide for the payment of interest upon all bonds and to create a sinking fund to pay the principal thereof as and when the same become due, and reasonable reserves therefor, and to provide for the repair, maintenance and operation of the waterworks or electric power system, and to provide an adequate depreciation fund, and to make any other payments which shall be required or provided for in the ordinance or order authorizing the issuance of said bonds: Provided further, That the notice given by the municipality or county commission for a change in rates or charges to be charged for the services from the waterworks or electric power system shall be provided by Class I legal advertisement in a newspaper of general circulation in its service territory not less than one week prior to the public hearing of the governing body of the municipality or the county commission required for the approval of the change in rates or charges.

§8-19-5. Publication of abstract of ordinance or order and notice; hearing.

After the ordinance or order for any project under this article has been adopted, an abstract of the ordinance or order, determined by the governing body to contain sufficient information as to give notice of the contents of such ordinance or order, together with the following described notice, shall be published as a Class II 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 the municipality or county. The notice to be published with said abstract of the ordinance or order shall state that said ordinance or order has been adopted, that the municipality or county commission contemplates the issuance of the bonds described in the ordinance or order, that any person interested may appear before the governing body, upon a certain date, which shall be not less than ten days subsequent to the date of the first publication of such abstract and notice and which shall not be prior to the date of the last publication by such abstract and notice, and present protests, and that a certified copy of the ordinance or order is on file with the governing body for review by interested parties during the office hours of the governing body. At such hearing all protests and suggestions shall be heard and the governing body shall take such action as it considers proper in the premises: Provided, That if at such hearing written protest is filed by thirty percent or more of the freeholders of the municipality or county, then the governing body of said municipality or county shall not take further action unless four fifths of the qualified members of said governing body assent thereto.

§8-19-6. Amount, negotiability and execution of bonds.

Bonds herein provided for shall be issued in such amounts as may be necessary to provide sufficient funds to pay all costs of acquisition, construction, establishment, extension or equipment, including engineering, legal and other expenses, together with interest to a date six months subsequent to the estimated date of completion. Bonds issued under the provisions of this article are hereby declared to be negotiable instruments, and the same shall be executed by the proper legally constituted authorities of the municipality or county commission, and be sealed with the corporate seal of the municipality or certified by the county commission, and in case any of the officers whose signatures appear on the bonds or coupons shall cease to be such officers before delivery of such bonds, such signatures shall nevertheless be valid and sufficient for all purposes the same as if they had remained in office until such delivery. All signatures on the bonds or coupons and the corporate seal may be mechanically reproduced if authorized in the ordinance or order authorizing the issuance of the bonds.

§8-19-7. Bonds payable solely from revenues; not to constitute municipal or county indebtedness.

Bonds issued under the provisions of this article shall be payable solely from the revenues derived from such waterworks or electric power system, and such bonds shall not in any event constitute an indebtedness of such municipality or county within the meaning of any Constitutional or statutory provision or limitation, and it shall be plainly stated on the face of each bond that the same has been issued under the provisions of this article, and that it does not constitute an indebtedness of such municipality or county within Constitutional or statutory provision or limitation. Subject to the provisions of subsection (b), section twelve of this article, the ordinance or order authorizing the issuance of the bonds may contain such covenants and restrictions upon the issuance of additional revenue bonds thereafter as may be considered necessary or advisable for the assurance of payment of the bonds thereby authorized and as may thereafter be issued.

§8-19-8. Lien of bondholders; deeds of trust; security agreements; priority of liens.

Unless the governing body shall otherwise determine in the ordinance or order authorizing the issuance of bonds under this article, there shall be and there is hereby created and granted a statutory mortgage lien upon the waterworks or electric power system so acquired, constructed, established, equipped, extended or improved from the proceeds of bonds hereby authorized to be issued, which shall exist in favor of the holder of said bonds and each of them, and to and in favor of the holder of the coupons attached to said bonds, and such waterworks or electric power system shall remain subject to such statutory mortgage lien until payment in full of the principal of and interest upon said bonds.

Any municipality or county commission in acquiring an existing waterworks system or in improving an existing waterworks or electric power system may provide that financing therefor may be made by issuing revenue bonds and delivering the same at such prices as may be agreed upon within the limitations prescribed in section six of this article. Any revenue bonds so issued to provide financing for such existing waterworks or electric power system or for any improvements to an existing waterworks or electric power system may be secured by a mortgage or deed of trust upon and security interest in the property so acquired or improved or any other interest of the municipality or county commission in property related thereto as determined by the municipality or county commission in the ordinance or order authorizing the issuance of such revenue bonds; and in such event the holders thereof shall have, in addition to any other remedies and rights prescribed by this article, such remedies and rights as may now or hereafter exist in law in the case of mortgages or deeds of trust on real property and security interests in personal property. Such mortgage or deed of trust, upon its recordation, shall have priority over all other liens or encumbrances, however created or arising, on the property covered by such mortgage or deed of trust, to the same extent and for the same amount as if the municipality or county were obligated to pay the full amount secured by such mortgage or deed of trust immediately upon the recordation of such mortgage or deed of trust and remained so obligated until the obligations secured are fully discharged.

§8-19-9. Covenants with bondholders.

Any ordinance or order authorizing the issuance of bonds hereunder, or any trust indenture with any banking institution or trust company within or without the state for the security of said bonds, which any such municipality or county commission is hereby empowered and authorized to enter into and execute, may contain covenants with the holders of such bonds as to:

(a) The purpose or purposes to which the proceeds of sale of such bonds or the revenues derived from said waterworks or electric power system may be applied and the securing, use and disposition thereof, including, if deemed desirable, the appointment of a trustee or depository for any of such funds;

(b) The pledging of all or any part of the revenues derived from the ownership, control or operation of such waterworks or electric power system, including any part thereof heretofore or hereafter acquired, constructed, established, extended or equipped or derived from any other sources, to the payment of the principal of or interest thereon of bonds issued hereunder and for such reserve or other funds as may be considered necessary or desirable;

(c) The fixing, establishing and collecting of such rates or charges for the use of the services and facilities of the waterworks or electric power system, including the parts thereof heretofore or hereafter acquired, constructed, established, extended or equipped and the revision of same from time to time, as will always provide revenues at least sufficient to provide for all expenses of repair, maintenance and operation of such waterworks or electric power system, the payment of the principal of and interest upon all bonds or other obligations payable from the revenues of such waterworks or electric power system, and all reserve and other funds required by the terms of the ordinance or order authorizing the issuance of such bonds;

(d) The transfer from the General Funds of the municipality or county commission to the account or accounts of the waterworks or electric power system of an amount equal to the cost of furnishing the municipality or county commission or any of its departments, boards or agencies or the county commission with the services and facilities of such waterworks or electric power system;

(e) Subject to the provisions of subsection (b), section twelve of this article, limitations or restrictions upon the issuance of additional bonds or other obligations payable from the revenues of such waterworks or electric power system, and the rank or priority, as to lien and source and security for payment from the revenues of such waterworks or electric power system, between bonds payable from such revenues;

(f) The manner and terms upon which all bonds and other obligations issued hereunder may be declared immediately due and payable upon the happening of a default in the payment of the principal of or interest thereon, or in the performance of any covenant or agreement with bondholders, and the manner and terms upon which such defaults may be declared cured and the acceleration of the maturity of such bonds rescinded and repealed;

(g) Budgets for the annual repair, maintenance and operation of such waterworks or electric power system and restrictions and limitations upon expenditures for such purposes, and the manner of adoption, modification, repeal or amendment thereof, including the approval of such budgets by consulting engineers designated by holders of bonds issued hereunder;

(h) The amounts of insurance to be maintained upon such waterworks or electric power system, or any part thereof, and the use and disposition of the proceeds of any insurance; and

(i) The keeping of books of account, relating to such undertakings and the audit and inspection thereof, and the furnishing to the holders of bonds issued hereunder or their representatives, reports prepared, certified or approved by accountants designated or approved by the holders of bonds issued hereunder.

Any such ordinance, order or trust indenture may also contain such other additional covenants as shall be considered necessary or desirable for the security of the holders of bonds issued hereunder, notwithstanding that such other covenants are not expressly enumerated above, it being the intention hereof to grant to municipalities or county commissions plenary power and authority to make any and all covenants or agreements necessary in order to secure greater marketability for bonds issued hereunder as fully and to the same extent as such covenants or agreements could be made by a private corporation rendering similar services and facilities and to grant to municipalities and counties full and complete power and authority to enter into any contracts, covenants or agreements with holders of bonds issued hereunder not inconsistent with the Constitution of this state.

§8-19-10. Operating contract.

Any such municipality or county commission may enter into contracts or agreements with any persons for (1) the repair, maintenance and operation and management of the facilities and properties of said waterworks or electric power system, or any part thereof, or (2) the collection and disbursement of the income and revenues therefor, or for both (1) and (2), for such period of time and under such terms and conditions as shall be agreed upon between such municipality or county commission and such persons. Any such municipality or county commission shall have plenary power and authority to provide in the ordinance or order authorizing the issuance of bonds hereunder, or in any trust indenture securing such bonds, that such contracts or agreements shall be valid and binding upon the municipality and county commission as long as any of said bonds, or interest thereon, is outstanding and unpaid.

§8-19-11. Rates or charges for water and electric power must be sufficient to pay bonds, etc.; disposition of surplus.

Rates or charges for water or electric power fixed precedent to the issuance of bonds shall not be reduced until all of said bonds shall have been fully paid, and may, whenever necessary, be increased in amounts sufficient to provide for the payment of the principal of and interest upon such bonds, and to provide proper funds for the depreciation account and repair, maintenance and operation charges. If any surplus shall be accumulated in the repair, maintenance and operation fund which shall be in excess of the cost of repairing, maintaining and operating the waterworks or electric power system during the remainder of the fiscal year then current, and the cost of repairing, maintaining and operating the said waterworks or electric power system during the fiscal year then next ensuing, then any such excess may be transferred to either the depreciation account or to the bond and interest redemption account, and if any surplus shall be accumulated in the depreciation account over and above that which the municipality or county commission shall find may be necessary for the probable replacements which may be needed during the then present fiscal year, and the next ensuing fiscal year, such excess may be transferred to the bond and interest redemption account, and, if any surplus shall exist in the bond and interest redemption account, the same shall be applied insofar as possible in the purchase or retirement of outstanding revenue bonds payable from such account.

§8-19-12. Service charges; sinking fund; amount of bonds; additional bonds; surplus.

(a) Every municipality or county commission issuing bonds under the provisions of this article shall thereafter, so long as any of such bonds remain outstanding, repair, maintain and operate its waterworks or electric power system as hereinafter provided and shall charge, collect and account for revenues therefrom as will be sufficient to pay all repair, maintenance and operation costs, provide a depreciation fund, retire the bonds and pay the interest requirements of the bonds as the same become due. The ordinance or order pursuant to which any such bonds are issued shall pledge the revenues derived from the waterworks or electric power system to the purposes aforesaid and shall definitely fix and determine the amount of revenues which shall be necessary and set apart in a special fund for the bond requirements. The amounts as and when so set apart into said special fund for the bond requirements shall be remitted to the West Virginia Municipal Bond Commission to be retained and paid out by said commission consistent with the provisions of this article and the ordinance or order pursuant to which such bonds have been issued: Provided, That payment of principal of and interest on any bonds owned by the United States of America or any agency or department thereof may be made by the municipality or county commission directly to the United States of America or said agency or department thereof. The bonds hereby authorized shall be issued in such amounts as may be determined necessary to provide funds for the purpose for which they are authorized, and in determining the amount of bonds to be issued it shall be proper to include interest on the bonds for a period not beyond six months from the estimated date of completion.

(b) If the proceeds of the bonds, because of error or otherwise, shall be less than the cost of the property or undertaking for which authorized, additional bonds may be issued to provide the amount of such deficit and such additional bonds shall be considered to be of the same issue and shall be entitled to payment from the same fund without preference or priority over the bonds first authorized and issued.

(c) If the proceeds of the bonds shall exceed the cost of the property or undertaking, the surplus shall be converted into the fund thereon.

§8-19-12a. Deposit required for new customers; lien for delinquent service rates and charges; failure to cure delinquency; payment from deposit; reconnecting deposit; return of deposit; liens; civil actions; deferral of filing fees and costs in magistrate court action; limitations with respect to foreclosure.

(a)(1) Whenever any rates and charges for water services or facilities furnished remain unpaid for a period of twenty days after the same become due and payable, the property and the owner thereof, as well as the user of the services and facilities provided, shall be delinquent and the owner, user and property shall be held liable at law until such time as all such rates and charges are fully paid. When a payment has become delinquent, the municipality may utilize any funds held as a security deposit to satisfy the delinquent payment. All new applicants for service shall indicate to the municipality or governing body whether they are an owner or tenant with respect to the service location.

(2) The municipality or governing body, but only one of them, may collect from all new applicants for service a deposit of $50 or two twelfths of the average annual usage of the applicant's specific customer class, whichever is greater, to secure the payment of water service rates, fees and charges in the event they become delinquent as provided in this section. In any case where a deposit is forfeited to pay service rates, fees and charges which were delinquent and the user's service is disconnected or terminated, no reconnection or reinstatement of service may be made by the municipality or governing body until another deposit equal to $50 or a sum equal to two twelfths of the average usage for the applicant's specific customer class, whichever is greater, is remitted to the municipality or governing body. After twelve months of prompt payment history, the municipality or governing body shall return the deposit to the customer or credit the customer's account with interest at a rate as the Public Service Commission may prescribe: Provided, That where the customer is a tenant, the municipality or governing body is not required to return the deposit until the time the tenant discontinues service with the municipality or governing body. Whenever any rates, fees, rentals or charges for services or facilities furnished remain unpaid for a period of twenty days after the same become due and payable, the user of the services and facilities provided is delinquent and the user is liable at law until all rates, fees and charges are fully paid. The municipality or governing body may, under reasonable rules promulgated by the Public Service Commission, shut off and discontinue water services to a delinquent user of water facilities ten days after the water services become delinquent regardless of whether the municipality or governing body utilizes the security deposit to satisfy any delinquent payments: Provided further, That nothing contained within the rules of the Public Service Commission shall be deemed to require any agents or employees of the municipality or governing body to accept payment at the customer's premises in lieu of discontinuing service for a delinquent bill.

(b) All rates or charges for water service whenever delinquent shall be liens of equal dignity, rank and priority with the lien on such premises of state, county, school and municipal taxes for the amount thereof upon the real property served, and the municipality shall have plenary power and authority from time to time to enforce such lien in a civil action to recover the money due for such services rendered plus court fees and costs and a reasonable attorney's fee: Provided, That an owner of real property may not be held liable for the delinquent rates or charges for services or facilities of a tenant, nor shall any lien attach to real property for the reason of delinquent rates or charges for services or facilities of a tenant of such real property, unless the owner has contracted directly with the municipality to purchase such services or facilities.

(c) Municipalities are hereby granted a deferral of filing fees or other fees and costs incidental to the bringing and maintenance of an action in magistrate court for the collection of the delinquent rates and charges. If the municipality collects the delinquent account, plus fees and costs, from its customer or other responsible party, the municipality shall pay to the magistrate court the filing fees or other fees and costs which were previously deferred.

(d) No municipality may foreclose upon the premises served by it for delinquent rates or charges for which a lien is authorized by this section except through the bringing and maintenance of a civil action for such purpose brought in the circuit court of the county wherein the municipality lies. In every such action, the court shall be required to make a finding based upon the evidence and facts presented that the municipality had exhausted all other remedies for the collection of debts with respect to such delinquencies prior to the bringing of such action. In no event shall foreclosure procedures be instituted by any municipality or on its behalf unless such delinquency had been in existence or continued for a period of two years from the date of the first such delinquency for which foreclosure is being sought.

§8-19-13. Discontinuance of water or electric power service for nonpayment of rates or charges.

Any such municipality or county commission shall also have plenary power and authority, and may covenant with the holders of any bonds issued hereunder, to shut off and discontinue the supplying of the water or electric power service of said waterworks or electric power system for the nonpayment of the rates or charges for said water or electric power service.

§8-19-14. Bonds for additions, betterments and improvements.

Whenever any municipality or county commission shall now or hereafter own and operate a waterworks or electric power system, whether acquired, constructed, established, extended or equipped under the provisions of this article or not, and shall desire to construct additions, betterments or improvements thereto, it may issue revenue bonds under the provisions of this article to pay for the same, and the procedure therefor, including the fixing of rates or charges and the computation of the amount thereof, and the power and authority in connection therewith, shall be the same as in this article provided for the issuance of bonds for the acquisition, construction, establishment, extension or equipment of a waterworks system or electric power system in a municipality or county which has not heretofore owned and operated a waterworks or electric power system: Provided, That nothing in this article shall be construed as authorizing any municipality or county commission to impair or commit a breach of the obligation of any valid lien or contract created or entered into by it, the intention being to authorize the pledging, setting aside and segregation of such revenues for the construction of such additions, betterments or improvements only where and to the extent consistent with outstanding obligations of such municipality or county commission, and in accordance with the provisions of this article.

§8-19-15. System of accounts; audit.

Any municipality or county commission operating a waterworks or electric power system under the provisions of this article shall set up and maintain a proper system of accounts in accordance with the requirements of the Public Service Commission, showing the amount of revenues received from such waterworks or electric power system and the application of the same. At least once each year such municipality or county commission shall cause such accounts to be properly audited, and a report of such audit shall be open to the public for inspection at all reasonable times.

§8-19-16. Protection and enforcement of rights of bondholders, etc.; receivership.

Any holder of any bonds issued under the provisions of this article or of any coupons representing interest accrued thereon may by civil action, mandamus or other proper proceeding enforce the statutory mortgage lien created and granted in section eight of this article, protect and enforce any and all rights granted hereunder or under any such ordinance, order or trust indenture, and may enforce and compel performance of all duties required by the provisions of this article or by any such ordinance, order or trust indenture to be performed by the municipality or county commission, or by the governing body or any officer, including the making and collecting of reasonable and sufficient rates or charges for services rendered by the waterworks or electric power system. If there be default in the payment of the principal of or interest upon any of such bonds, or of both principal and interest, any court having jurisdiction shall appoint a receiver to administer said waterworks or electric power system on behalf of the municipality or county commission, and the bondholders or trustee, or both, with power to charge and collect rates or charges sufficient to provide for the retirement of the bonds and pay the interest thereon, and for the payment of the repair, maintenance and operation expenses, and such receiver shall apply the revenues in conformity with the provisions of this article and the ordinance or order pursuant to which such bonds have been issued or any trust indenture, or both.

PART V. GRANTS, LOANS, ADVANCES AND AGREEMENTS;

CUMULATIVE AUTHORITY.

§8-19-17. Grants, loans, advances and agreements.

As an alternative to, or in conjunction with, the issuance of revenue bonds authorized by this article, any municipality or county commission is hereby empowered and authorized to accept loans or grants and procure loans or temporary advances evidenced by notes or other negotiable instruments issued in the manner, and subject to the privileges and limitations, set forth with respect to bonds authorized to be issued under the provisions of this article, or otherwise enter into agreement, including, but not limited to, agreements of indemnity, assurance or guarantee with respect to, and for the purpose of financing part or all of, the cost of acquisition, construction, establishment, extension or equipment of waterworks or electric power systems and the construction of additions, betterments and improvements to existing waterworks systems or to existing electric power systems, and for the other purposes herein authorized, from or with any authorized agency of the state or from the United States of America or any federal or public agency or department of the United States or any private agency, corporation or individual, which loans or temporary advances, including the interest thereon, or the municipality's or county's financial obligations contained in such other agreements, which need not bear interest, may be repaid out of the proceeds of bonds authorized to be issued under the provisions of this article, the revenues of or proceeds from the said waterworks system or electric power system or grants to the municipality or county commission from any agency of the state or from the United States of America or any federal or public agency or department of the United States or any private agency, corporation or individual or from any combination of such sources of payment, and may be secured in the manner provided in sections eight, nine and sixteen of this article to secure bonds issued under the provisions of this article, but shall not otherwise be subject to the requirements of sections eleven and twelve of this article, and to enter into the necessary contracts and agreements to carry out the purposes hereof with any agency of the state, the United States of America or any federal or public agency or department of the United States, or with any private agency, corporation or individual.

In no event shall any such loan or temporary advance or agreement be a general obligation of the municipality or county and such loans or temporary advances or agreements, including the interest thereon, shall be paid solely from the sources specified in this section.

§8-19-18. Additional and alternative method for constructing or improving and for financing waterworks or electric power system; cumulative authority.

This article shall, without reference to any other statute or charter provision, be deemed full authority for the acquisition, construction, establishment, extension, equipment, additions, betterment, improvement, repair, maintenance and operation of or to a waterworks or electric power system or for the construction of any additions, betterments, improvements, repairs, maintenance or operation of or to an existing electric power system as herein provided and for the issuance and sale of the bonds or the alternative methods of financing by this article authorized, and shall be construed as an additional and alternative method therefor and for the financing thereof, and no petition, referendum or election or other or further proceeding with respect to any such undertaking or to the issuance or sale of bonds or the alternative methods of financing under the provisions of this article and no publication of any resolution, ordinance, order, notice or proceeding relating to any such undertaking or to the issuance or sale of such bonds or the alternative methods of financing shall be required, except as prescribed by this article, any provisions of other statutes of the state to the contrary notwithstanding: Provided, That all functions, powers and duties of the state division of health shall remain unaffected by this article.

This article shall be construed as cumulative authority for any undertaking herein authorized, and shall not be construed to repeal any existing laws with respect thereto.

PART VI. OPERATION BY BOARD; CONSTRUCTION.

§8-19-19. Alternative procedure for acquisition, construction or improvement of waterworks or electric power system.

As an alternative to the procedures hereinabove provided, any municipality or county commission is hereby empowered and authorized to acquire, construct, establish, extend, equip, repair, maintain and operate a waterworks or an electric power system or to construct, maintain and operate additions, betterments and improvements to an existing waterworks system or an existing electric power system, whether acquired, constructed, established, extended or equipped under the provisions of this article or not, and to collect the revenues therefrom for the services rendered thereby, through the supervision and control of a committee, by whatever name called, composed of all or a portion of the governing body, or of a board or commission appointed by such governing body, as may be provided by the governing body, and if such alternative is followed, said committee, board or commission shall have and be limited to all the powers, authority and duties granted to and imposed upon a board as provided in article sixteen of this chapter.

§8-19-20. Article to be liberally construed.

This article is necessary for the public health, safety and welfare and shall be liberally construed to effectuate its purposes.

§8-19-21. Specifications for water mains and water service pipes.

Considering the importance of public fire protection, any state or local government, public service district, public or private utility which installs or constructs water mains, shall ensure that all new mains specifically intended to provide fire protection are not less than six inches in diameter. Effective July 1, 2007, when any state or local government, public service district, public or private utility installs or constructs water mains along a platted roadway or a public highway, using a six inch or greater line, that is specifically designed to provide fire protection, the state or local government, public service district, public or private utility shall install fire hydrants at intervals of not more than two thousand feet, unless there are no dwellings or businesses located one thousand feet from such proposed hydrant: Provided, That the Legislature shall study the effect, cost and feasibility of the internal hydrant valve and report the findings of that study to the 2008 regular session of the Legislature. A permit or other written approval shall be obtained from the Department of Health for each hydrant or group of hydrants installed in compliance with section nine, article one, chapter sixteen of the West Virginia Code as amended: Provided, however, That all newly constructed water distribution systems transferred to a public or private utility shall have mains at least six inches in diameter where fire flows are required by the public or private utility: Provided further, That the utility providing service has sufficient hydraulic capacity as determined by the Department of Health.

§8-19-22. Identification requirement for fire hydrants that are inoperable or unavailable for use in emergency situations.

(a) The owner or operator of a fire hydrant or any device having the appearance of a fire hydrant that is located in a place that an entity responsible for providing fire suppression services in a fire emergency would expect a fire hydrant to typically be located, shall mark the fire hydrant or device, as set out in subsection (b) of this section, if the owner or operator has actual knowledge that the fire hydrant or device is inoperable or is unavailable for use by an entity providing fire suppression services in a fire emergency.

(b) To mark the fire hydrant or device, the owner or operator of the fire hydrant or device shall:

(1) Paint the fire hydrant or device black if the fire hydrant or device is inoperable or unavailable for use; or

(2) Place a black tarp over the fire hydrant or device if the device is temporarily inoperable or temporarily unavailable for use in a fire emergency, for a period not to exceed fourteen days.

(c) For the purposes of this section, the word "inoperable" means a fire hydrant that does not produce water flow when activated.

PART I. COMBINED WATERWORKS AND SEWERAGE SYSTEMS

AUTHORIZED; DEFINITIONS.

§8-20-1. Acquisition and operation of combined waterworks and sewerage systems; extension beyond corporate limits; definitions.

Any municipality may acquire, construct, establish and equip and thereafter repair, maintain and operate a combined waterworks and sewerage system either wholly within or partly within and partly without the corporate limits thereof, under the provisions of this article, and any municipality owning and operating either a waterworks or a sewerage system, but not both, may acquire, construct, establish and equip the waterworks or sewerage system which it does not then own and operate, and in either of such cases such municipality may provide by ordinance that when such waterworks or sewerage system, or both, shall have been acquired, constructed, established and equipped, the same shall thereafter be owned, repaired, maintained and operated as a combined undertaking under the provisions of this article, and any municipality already owning and operating an existing waterworks system and an existing sewerage system may by ordinance combine the same into a single undertaking under the provisions of this article.

Any municipality which has combined its waterworks and sewerage system under the provisions of this article, or pursuant to provisions of any other law, may hereafter construct extensions, additions, betterments and improvements to either the waterworks system or the sewerage system of said combined waterworks and sewerage system, or both, and may finance the acquisition, construction, establishment and equipment of any such waterworks or sewerage system, or both, or the construction of extensions, additions, betterments and improvements to either the waterworks system or the sewerage system of such combined waterworks and sewerage system, or both, by the issuance of revenue bonds under the provisions of this article.

Notwithstanding the provisions of any other law or charter to the contrary, any such municipality may serve and supply the area included within twenty miles outside its corporate limits with the water or sewer services and facilities, or both, of its combined waterworks and sewerage system: Provided, That such water or sewer services and facilities shall not be served or supplied within the corporate limits of any other municipality without the consent of the governing body of such other municipality.

When used in this article, the term "waterworks system" shall be construed to mean and include a waterworks system in its entirety or any integral part thereof, including mains, hydrants, meters, valves, standpipes, storage tanks, pump tanks, pumping stations, intakes, wells, impounding reservoirs, pumps, machinery, purification plants, softening apparatus, and all other facilities necessary, appropriate, useful, convenient or incidental in connection with or to a water supply system; the term "sewerage system" shall be construed to mean and include any or all of the following: A sewage treatment plant or plants, collecting, intercepting and outlet sewers, lateral sewers, drains, force mains, conduits, pumping stations, ejector stations and all other appurtenances, extensions, additions and improvements necessary, appropriate, useful, convenient or incidental for the collection, treatment and disposal in a sanitary manner of sewage and industrial wastes; and the term "combined waterworks and sewerage system" shall be construed to mean and include a waterworks and sewerage system, which a municipality determines by ordinance to operate in combination.

§8-20-1a. Acquisition and operation of combined systems; extension beyond corporate limits; definitions.

(a) Any municipality may acquire, construct, establish and equip and thereafter repair, maintain and operate a combined waterworks, sewerage and stormwater system either wholly within or partly within and partly without the corporate limits thereof under the provisions of this article, and any municipality owning and operating a waterworks and sewerage system, but not a stormwater system, may acquire, construct, establish and equip the stormwater system which it does not then own and operate, and such municipality may provide by ordinance that when such stormwater system shall have been acquired, constructed, established and equipped, the same shall thereafter be owned, repaired, maintained and operated as a combined undertaking under the provisions of this article, and any municipality already owning and operating an existing waterworks system, sewerage system, and stormwater system, may by ordinance combine the same into a single undertaking under the provisions of this article. However, no municipality may acquire, construct, establish and equip or thereafter repair, maintain and operate a combined waterworks, sewerage and stormwater system which includes highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways without the express agreement of the commissioner of highways.

(b) Any municipality which has combined its waterworks, sewerage system and stormwater systems under the provisions of this article, or pursuant to the provisions of any other law, may hereafter construct extensions, additions, betterments and improvements to any of the systems, any combination thereof, or all of the waterworks, sewerage and stormwater systems of said combined waterworks, sewerage and stormwater system, and may finance the acquisition, construction, establishment and equipment thereof, or the construction or extensions, additions, betterments and improvements thereof by the issuance of revenue bonds under the provisions of this article.

(c) Notwithstanding the provisions of any other law or charter to the contrary, any such municipality may serve and supply the area included within twenty miles outside its corporate limits with either the water, sewer or stormwater services, any combination of such services or all such services, of its combined waterworks, sewerage and stormwater system; provided that such water, sewer or stormwater services and facilities shall not be served or supplied within the corporate limits of any municipality without the consent of the governing body of such municipality: Provided, That for stormwater systems, within the twenty miles beyond the municipality's corporate limits the only areas the municipality may serve and supply shall be those areas from which stormwater affects or drains into the municipality.

(d) As used in this article, the following terms shall have the following meanings unless the text clearly indicates otherwise.

(1) "Stormwater system" means a stormwater system in its entirety or any integral part thereof used to collect and dispose of stormwater and an associated stormwater management program. It includes all facilities, structures and natural water courses used for collecting and conducting stormwater to, through and from drainage areas to the points of final outlet, including, but not limited to, any and all of the following: Inlets, conduits, outlets, channels, ponds, drainage ways, easements, water quality facilities, catch basins, ditches, streams, gulches, flumes, culverts, siphons, retention or detention basins, dams, floodwalls, pipes, flood control systems, levies and pumping stations. The term "stormwater system" shall not include highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways.

(2) "Combined waterworks, sewerage and stormwater system" means a waterworks, sewerage and stormwater system which a municipality determines by ordinance to operate in combination.

(3) "Combined system" means either a combined waterworks, sewerage and stormwater system, or a combined waterworks and sewerage system.

(4) "Stormwater management program" means those activities associated with the management, operation and maintenance and control of stormwater and stormwater systems, and shall include and not be limited to public education, stormwater and surface runoff water quality improvement, mapping, planning, flood control, inspection, enforcement and any other activities required by state and federal law. The term "stormwater management program" shall not include those activities associated with the management, operation, maintenance and control of highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways without the express agreement of the commissioner of highways.

§8-20-1b. Cooperation with other governmental units.

In carrying out any lawful purpose prescribed by this article, any municipality may, in the exercise of its powers, duties and responsibilities, cooperate or join with the State of West Virginia or any political subdivision, agency, board, commission, office or department thereof, however designated, or with the United States of America or any agency or department thereof.

§8-20-1c. Severance of combined system.

Any municipality which has combined its waterworks and sewerage systems or waterworks, sewerage and stormwater systems, under the provisions of this article, or pursuant to provisions of any other law, may hereafter sever said combined system if the following conditions are met:

(a) An ordinance is enacted by the governing body of the municipality severing the combined system into separate systems.

(b) If revenue bonds or notes or other obligations with a lien on or pledge of the revenues of said combined system, or any part thereof, are outstanding, then the municipality must provide in said ordinance that the severance of the combined system is not effective until all such outstanding revenue bonds or notes or other obligations with a lien on or pledge of the revenues of the system, or any part thereof, are paid and the method for paying said outstanding revenue bonds or notes or other obligations. For the purposes of this section, said municipality may provide for payment of said outstanding revenue bonds or notes or other obligations by:

(1) Depositing moneys and funds with the West Virginia Municipal Bond Commission or in escrow with a corporate trustee, which may be a trust company or bank having powers of a trust company within or without the State of West Virginia selected by the issuer to pay interest when due and to pay principal when due, whether at maturity or earlier redemption;

(2) Depositing securities with the Municipal Bond Commission or said escrow trustee, the principal of and earnings on which will provide moneys sufficient to pay interest when due and to pay principal when due, whether at maturity or earlier redemption; or

(3) Depositing with the Municipal Bond Commission or said escrow trustee any combination of the foregoing sufficient to pay interest when due and to pay principal when due, whether at maturity or earlier redemption.

(c) If the combined system is under the supervision and control of a separate committee, board or commission, then the governing body of the municipality must provide for the dissolution of the committee, board or commission, and the creation of other committees, boards or commissions as may be required by law.

§8-20-2. Right of eminent domain; limitations.

For the purpose of acquiring, constructing, establishing or extending any system within a combined system, or a combined system, or for the purpose of constructing any additions, betterments or improvements to any system within a combined system, or a combined system, or for the purpose of acquiring any property necessary, appropriate, useful, convenient or incidental for or to any system within a combined system, or combined system, under the provisions of this article, the municipality shall have the right of eminent domain as provided in chapter fifty-four of this code: Provided, That such right of eminent domain for the acquisition of a complete privately owned waterworks system may not be exercised without prior approval of the Public Service Commission, and in no event shall any municipality construct, establish or extend beyond the corporate limits of the municipality a municipal waterworks system or a combined system under the provisions of this article to supply service in competition with an existing privately or municipally owned waterworks system or combined system in the municipality or within the proposed extension of the system, unless, except in the case of a stormwater system, a certificate of public convenience and necessity therefor shall have been issued by the Public Service Commission: Provided, however, That the power of eminent domain provided in this section shall not extend to highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways without the express agreement of the commissioner of highways.

§8-20-3. Ordinance describing project; contents.

The governing body of any municipality availing itself of the provisions of this article shall adopt an ordinance describing in a general way the contemplated project. If it is intended to include in the combined system any existing waterworks system or any existing sewerage system, or both, or if applicable, any existing stormwater system, or any of them, or all of them, the ordinance shall provide that it or they be so included in the combined system and shall describe in a general way such existing waterworks or sewerage system or both, or, if applicable, any existing stormwater system, or any of them, or all of them, to be included in the combined system. The ordinance shall state the means provided for refunding any obligations unpaid and outstanding payable solely from the revenues of any such waterworks or sewerage system, or both, or if applicable, any existing stormwater system, or any of them, or all of them. The ordinance shall determine the period of usefulness of the contemplated project.

If it is intended to acquire, construct, establish and equip a combined system or any part thereof, or to construct extensions, additions, betterments and improvements to either the waterworks system or the sewerage system of the combined system, or both, or if applicable, any existing stormwater system, or any of them, or all of them, the ordinance shall describe in a general way the works or property or system to be acquired, constructed, established or equipped or the extensions, additions, betterments and improvements to be constructed.

The ordinance shall fix the amount of revenue bonds proposed to be issued, the interest rate or rates, and any other details in connection with the bonds considered advisable. The ordinance may state that the bonds, or such ones thereof as may be specified, shall, to the extent and in the manner prescribed, be subordinated and be junior in standing, with respect to principal and interest and the security thereof, to such other bonds as are designated in the ordinance.

§8-20-4. Publication of abstract of ordinance and notice; hearing.

After the ordinance for any project under the provisions of this article has been adopted, an abstract of the ordinance, determined by the governing body to contain sufficient information as to give notice of the contents of such ordinance, together with the following described notice, shall be published as a Class II 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 such municipality. The notice to be published with said abstract of the ordinance shall state that said ordinance has been adopted, that the municipality contemplates the issuance of the bonds described in the ordinance, that any person interested may appear before the governing body upon a certain date, which shall not be less than ten days subsequent to the date of the first publication of such abstract and notice and which shall not be prior to the date of the last publication of such abstract and notice, and present protests and that a certified copy of the ordinance is on file with the governing body for review by interested parties during the office hours of the governing body. At such hearing all protests and suggestions shall be heard and the governing body shall take such action as it shall deem proper in the premises: Provided, That if at such hearing written protest is filed by thirty percent or more of the freeholders of the municipality, then the governing body of said municipality shall not take further action unless four fifths of the qualified members of said governing body assent thereto.

§8-20-5. Amount, negotiability and execution of bonds; refund of outstanding obligations or securities by sale or exchange of bonds.

For the purpose of defraying the cost of acquisition, construction, establishment or equipment of any system within a combined system, or a combined system, and for the purpose of paying the cost of constructing any extensions, additions, betterments or improvements to any of the systems of said combined system, or all of them, any such municipality may issue revenue bonds under the provisions of this article.

All such bonds may be authorized, issued and sold pursuant to ordinance in installments at different times or an entire issue or series may be sold at one time. Such bonds shall bear interest at a rate not to exceed twelve percent per annum, payable at such times, and shall mature within the period of usefulness of the project involved, to be determined by the governing body and in any event within a period of not more than forty years. The bonds may be in denomination or denominations, may be in such form, either coupon or registered, may carry registration and conversion privileges, may be executed in such manner, may be payable in such medium of payment, at such place or places, may be subject to terms of redemption, with or without a premium, may be declared to become due before the maturity date thereof, may provide for the replacement of mutilated, destroyed, stolen or lost bonds, may be authenticated in such manner and upon compliance with such conditions, and may contain other terms and covenants, as may be provided by ordinance of the governing body of the municipality. Notwithstanding the form or tenor thereof, and in the absence of an express recital on the face thereof that the bond is nonnegotiable, all bonds shall at all times be, and shall be treated as, negotiable instruments for all purposes.

The bonds and the interest thereon, together with all properties and facilities of the municipality owned or used in connection with the combined system, and all the moneys, revenues and other income of such municipality derived from the combined system shall be exempt from all taxation by this state or any county, municipality, political subdivision or agency thereof. Bonds may be sold in such manner as the governing body shall determine.

If any bonds shall be issued to bear interest at a rate of twelve percent per annum, the price at which they may be sold shall be such that the interest cost to the municipality of the proceeds of the bonds may not exceed thirteen percent per annum computed to maturity according to the standard table of bond values.

If the governing body of the municipality determines to sell any revenue bonds of such combined system for refunding purposes, the proceeds of the bonds shall be deposited at the place of payment of the bonds, obligations or securities being refunded thereby.

In case any officer whose signature appears on the bonds or coupons attached thereto shall cease to be such officer before the delivery of the bonds to the purchaser, such signature shall nevertheless be valid and sufficient for all purposes, with the same effect as if he or she had remained in office until the delivery of the bonds. All signatures on the bonds or coupons and the corporate seal may be mechanically reproduced if authorized in the ordinance authorizing the issuance of the bonds. The bonds shall have all the qualities of negotiable instruments under the laws of this state.

Whenever a waterworks and sewerage system or stormwater system, if applicable, is included in a combined system under the provisions of this article and there are unpaid and outstanding revenue bonds or any other obligations or securities previously issued which are payable solely from the revenues of the waterworks or the sewerage system or stormwater system, if applicable, or any part thereof, such outstanding bonds, obligations or securities may be refunded by the issuance and sale or exchange therefor of revenue bonds to be issued under the provisions of this article.

Whenever any outstanding bonds, obligations or securities previously issued which are payable solely from the revenues of any waterworks or sewerage system, or stormwater system, if applicable, included in a combined system under the provisions of this article are refunded and the refunding is to be accomplished by exchange, such outstanding bonds, obligations or securities shall be surrendered and exchanged for revenue bonds of such combined system of a total principal amount which shall not be more and may be less than the principal amount of the bonds, obligations or securities surrendered and exchanged plus the interest to accrue thereon to the date of surrender and exchange, and if the refunding is to be accomplished through the sale of revenue bonds of such combined system the total principal amount of such revenue bonds which may be sold for refunding purposes shall not exceed the principal amount of the bonds, obligations or securities being refunded plus the interest to accrue thereon to the retirement date or the next succeeding interest payment date, whichever date may be earlier.

Provision may be made that each bond to be exchanged for refunding bonds shall be kept intact and shall not be canceled or destroyed until the refunding bonds, and interest thereon, have been finally paid and discharged, but each bond shall be stamped with a legend to the effect that the same has been refunded pursuant to the provisions of this article.

§8-20-6. Bonds payable solely from revenues; not to constitute municipal indebtedness.

Bonds issued under the provisions of this article shall be payable solely from the revenues derived from the combined system, and the bonds may not in any event constitute an indebtedness of such municipality within the meaning of any Constitutional or statutory provision or limitation and it shall be plainly stated on the face of each bond that the same has been issued under the provisions of this article, and that it does not constitute an indebtedness of the municipality within any Constitutional or statutory provision or limitation. The ordinance authorizing the issuance of the bonds may contain such covenants and restrictions upon the issuance of additional revenue bonds thereafter as may be considered necessary or advisable for the assurance of payment of the bonds thereby authorized and as may thereafter be issued.

§8-20-7. Lien of bondholders.

There shall be and there is hereby created and granted a statutory mortgage lien upon such combined system which shall exist in favor of the holder of bonds hereby authorized to be issued, and each of them, and to and in favor of the holder of the coupons attached to said bonds, and such combined system shall remain subject to such statutory mortgage lien until payment in full of the principal of and interest upon said bonds. However, no lien may attach to any portion of any highways, road or drainage easements or stormwater facilities constructed, owned or operated by the West Virginia Division of Highways.

Any municipality in acquiring an existing waterworks system may provide that payment therefor shall be made by issuing revenue bonds and delivering the same at such prices as may be agreed upon within the limitations prescribed in section five hereof. Any revenue bonds so issued in payment for an existing waterworks system shall for all purposes be regarded as partaking of the nature of and as being secured by a purchase money mortgage upon the property so acquired; and the holders thereof shall have, in addition to any other remedies and rights prescribed by this article, remedies and rights as may now or hereafter exist in law in the case of purchase money mortgages.

§8-20-8. Covenants with bondholders.

Any ordinance authorizing the issuance of bonds hereunder, or any trust indenture with any banking institution or trust company, within or without the state, for the security of said bonds, which any municipality is hereby empowered and authorized to enter into and execute, may contain covenants with the holders of the bonds as to:

(a) The purpose or purposes to which the proceeds of sale of bonds or the revenues derived from said combined system may be applied and the securing, use and disposition thereof, including, if considered desirable, the appointment of a trustee or depository for any of the funds;

(b) The pledging of all or any part of the revenues derived from the ownership, control or operation of such combined system, including any part thereof heretofore or hereafter acquired, constructed, established, extended, equipped, added to, bettered or improved or derived from any other sources, to the payment of the principal of or interest thereon of bonds issued hereunder and for reserve or other funds as may be considered necessary or desirable;

(c) The fixing, establishing and collecting of rates, fees or charges for the use of the services and facilities of the combined system, including the parts thereof heretofore or hereafter acquired, constructed, established, extended, equipped, added to, bettered or improved and the revision of same from time to time, as will always provide revenues at least sufficient to provide for all expenses of repair, maintenance and operation of such combined system, the payment of the principal of and interest upon all bonds or other obligations payable from the revenues of such combined system, and all reserve and other funds required by the terms of the ordinance authorizing the issuance of bonds;

(d) The transfer from the General Funds of the municipality to the account or accounts of the combined system of an amount equal to the cost of furnishing the municipality or any of its departments, boards or agencies with the services and facilities of such combined system;

(e) Limitations or restrictions upon the issuance of additional bonds or other obligations payable from the revenues of such combined system, and the rank or priority, as to lien and source and security for payment from the revenues of such combined system, between bonds payable from the revenues;

(f) The manner and terms upon which all bonds and other obligations issued hereunder may be declared immediately due and payable upon the happening of a default in the payment of the principal of or interest thereon, or in the performance of any covenant or agreement with bondholders, and the manner and terms upon which defaults may be declared cured and the acceleration of the maturity of the bonds rescinded and repealed;

(g) Budgets for the annual repair, maintenance and operation of such combined system and restrictions and limitations upon expenditures for the purposes, and the manner of adoption, modification, repeal or amendment thereof, including the approval of the budgets by consulting engineers designated by holders of bonds issued hereunder;

(h) The amounts of insurance to be maintained upon the combined system, or any part thereof, and the use and disposition of the proceeds of any insurance; and

(i) The keeping of books of account, relating to such undertaking and the audit and inspection thereof, and the furnishing to the holders of bonds issued hereunder or their representatives, reports prepared, certified or approved by accountants designated or approved by the holders of bonds issued hereunder.

Any ordinance or trust indenture may also contain other additional covenants as shall be considered necessary or desirable for the security of the holders of bonds issued under the provisions of this article, notwithstanding that other covenants are not expressly enumerated above, it being the intention hereof to grant to municipalities plenary power and authority to make any and all covenants or agreements necessary in order to secure greater marketability for bonds issued hereunder as fully and to the same extent as covenants or agreements could be made by a private corporation rendering similar services and facilities and to grant to municipalities full and complete power and authority to enter into any contracts, covenants or agreements with holders of bonds issued hereunder not inconsistent with the Constitution of this state.

§8-20-9. Operating contract.

Any municipality may enter into contracts or agreements with any persons for: (1) The repair, maintenance and operation and management of the facilities and properties of the combined system, or any part thereof; or (2) the collection and disbursement of the income and revenues thereof, or for both (1) and (2), for the period of time and under terms and conditions as shall be agreed upon between the municipality and such persons. Any municipality shall have plenary power and authority to provide in the ordinance authorizing the issuance of bonds hereunder, or in any trust indenture securing the bonds, that the contracts or agreements shall be valid and binding upon the municipality as long as any of the bonds, or interest thereon, is outstanding and unpaid.

§8-20-10. Power and authority of municipality to enact ordinances and make rules and fix rates, fees, or charges; deposit required for new customers; change in rates, fees, or charges; failure to cure delinquency; delinquent rates, discontinuance of service; reconnecting deposit; return of deposit; fees or charges as liens; civil action for recovery thereof; deferral of filing fees and costs in magistrate court action; limitations with respect to foreclosure.

(a)(1) The governing body of a municipality availing itself of the provisions of this article shall have plenary power and authority to make, enact, and enforce all necessary rules for the repair, maintenance, operation, and management of the combined system of the municipality and for the use thereof. The governing body of a municipality also has the plenary power and authority to make, enact, and enforce all necessary rules and ordinances for the care and protection of any such system for the health, comfort, and convenience of the public, to provide a clean water supply, to provide properly treated sewage insofar as it is reasonably possible to do and, if applicable, properly collecting and controlling the stormwater as is reasonably possible to do: Provided, That no municipality may make, enact, or enforce any rule, regulation, or ordinance regulating any highways, road or drainage easements, or storm water facilities constructed, owned or operated by the West Virginia Division of Highways.

(2) A municipality has the plenary power and authority to charge the users for the use and service of a combined system and to establish required deposits, rates, fees, or charges for such purpose. Separate deposits, rates, fees, or charges may be fixed for the water and sewer services respectively and, if applicable, the stormwater services, or combined rates, fees or for the combined water and sewer services, and, if applicable, the storm water services. Such deposits, rates, fees or charges, whether separate or combined, shall be sufficient at all times to pay the cost of repair, maintenance, and operation of the combined system, provide an adequate reserve fund, an adequate depreciation fund and pay the principal and interest upon all revenue bonds issued under this article. Deposits, rates, fees, or charges shall be established, revised, and maintained by ordinance and become payable as the governing body may determine by ordinance. The rates, fees, or charges shall be changed, from time to time, as necessary, consistent with the provisions of this article: Provided, That the notice given by the municipality for a change in rates or charges to be charged for the services from the waterworks or electric power system, shall be provided by Class I legal advertisement in a newspaper of general circulation in its service territory not less than one week prior to the public hearing of the governing body of the municipality required for the approval of the change in rates or charges.

(3) All new applicants for service shall indicate to the municipality or governing body whether they are an owner or tenant with respect to the service location. An entity providing stormwater service shall provide a tenant a report of the stormwater fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the tenant.

(4) The municipality or governing body, but only one of them, may collect from all new applicants for service a deposit of $100 or two twelfths of the average annual usage of the applicant’s specific customer class, whichever is greater, to secure the payment of water and sewage service rates, fees, and charges in the event they become delinquent as provided in this section. In any case where a deposit is forfeited to pay service rates, fees, and charges which were delinquent and the user’s service is disconnected or terminated, service may not be reconnected or reinstated by the municipality or governing body until another deposit equal to $100 or a sum equal to two twelfths of the average usage for the applicant’s specific customer class, whichever is greater, is remitted to the municipality or governing body. After 12 months of prompt payment history, the municipality or governing body shall return the deposit to the customer or credit the customer’s account with interest at a rate to be set by the Public Service Commission: Provided, That where the customer is a tenant, the municipality or governing body is not required to return the deposit until the time the tenant discontinues service with the municipality governing body. Whenever any rates, fees, rentals, or charges for services or facilities furnished remain unpaid for a period of 20 days after they become due, the user of the services and facilities provided is delinquent and the user is liable at law until all rates, fees, and charges are fully paid. The municipality or governing body may terminate water services to a delinquent user of either water or sewage facilities, or both, 10 days after the water or sewage services become delinquent regardless of whether the governing body utilizes the security deposit to satisfy any delinquent payments: Provided, however, That any termination of water service must comply with all rules and orders of the Public Service Commission: Provided further, That nothing contained within the rules of the Public Service Commission requires agents or employees of the municipality or governing body to accept payment at the customer’s premises in lieu of discontinuing service for a delinquent bill.

(b) Whenever any rates, fees, or charges for services or facilities furnished remain unpaid for a period of 20 days after they become due, the user of the services and facilities provided shall be delinquent and the municipality or governing body may apply any deposit against any delinquent fee. The user is liable until such time as all rates, fees, and charges are fully paid.

(c) All rates, fees, or charges for water service, sewer service and, if applicable, stormwater service, whenever delinquent, as provided by ordinance of the municipality, shall be liens of equal dignity, rank, and priority with the lien on such premises of state, county, school, and municipal taxes for the amount thereof upon the real property served. The municipality has the plenary power and authority to enforce such lien in a civil action to recover the money due for services rendered plus court fees and costs and reasonable attorney’s fees: Provided, That an owner of real property may not be held liable for the delinquent rates, fees, or charges for services or facilities of a tenant, nor shall any lien attach to real property for the reason of delinquent rates, fees, or charges for services or facilities of a tenant of the real property, unless the owner has contracted directly with the municipality to purchase such services or facilities.

(d) Municipalities are hereby granted a deferral of filing fees or other fees and costs incidental to filing an action in magistrate court for collection of the delinquent rates and charges. If the municipality collects the delinquent account, plus fees and costs, from its customer or other responsible party, the municipality shall pay to the magistrate court the filing fees or other fees and costs which were previously deferred.

(e) No municipality may foreclose upon the premises served by it for delinquent rates, fees, or charges for which a lien is authorized by this section except through a civil action in the circuit court of the county wherein the municipality lies. In every such action, the court shall be required to make a finding based upon the evidence and facts presented that the municipality has exhausted all other remedies for collection of debts with respect to such delinquencies prior to bringing the action. In no event shall foreclosure procedures be instituted by any municipality or on its behalf unless the delinquency has been in existence or continued for a period of two years from the date of the first delinquency for which foreclosure is being sought.

(f) Notwithstanding any other provision contained in this article, a municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community, as defined in 40 C.F.R. §122.26, has the authority to enact ordinances or regulations which allow for the issuance of orders, the right to enter properties and the right to impose reasonable fines and penalties regarding correction of violations of municipal stormwater ordinances or regulations within the municipal watershed served by the municipal stormwater system, as long as such rules, regulations, fines, or acts are not contrary to any rules or orders of the Public Service Commission.

(g) Notice of a violation of a municipal stormwater ordinance or regulation shall be served in person to the alleged violator or by certified mail, return receipt requested. The notice shall state the nature of the violation, the potential penalty, the action required to correct the violation and the time limit for making the correction. Should a person, after receipt of proper notice, fail to correct violation of the municipal stormwater ordinance or regulation, the municipality may correct or have the corrections of the violation made and bring the party into compliance with the applicable stormwater ordinance or regulation. The municipality may collect the costs of correcting the violation from the person by instituting a civil action, as long as such actions are not contrary to any rules or orders of the Public Service Commission.

(h) A municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community shall prepare an annual report detailing the collection and expenditure of rates, fees, or charges and make it available for public review at the place of business of the governing body and the stormwater utility main office.

§8-20-11. Discontinuance of water service for nonpayment of rates or charges.

Any municipality shall also have plenary power and authority, and may covenant with the holders of any bonds issued hereunder, to shut off and discontinue the supplying of the water service of the combined system for the nonpayment of the rates, fees or charges for said water service or sewer service, or both, or, if applicable, stormwater service, or any combination thereof, or all of them.

§8-20-11a. Governmental entities subject to established rates.

The municipality and any county government, state government and federal government served by the services of the combined system shall be subject to the same rates, fees or charges established in this article or to rates, fees or charges established in harmony therewith, for service rendered to the governmental entity, and shall pay such rates, fees or charges when due from corporate funds and the same shall be considered to be part of the revenue of the combined system as defined in this article, and be applied as provided in this article, for the application of such revenues. However, no rates, fees or charges for combined services or stormwater services may be assessed against highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways.

§8-20-12. Use of revenues; sinking fund.

All revenues derived from the operation of any combined system under the provisions of this article shall be set aside as collected and used only for the purpose of paying the cost of repairing, maintaining and operating such system, providing an adequate reserve fund, an adequate depreciation fund, and paying the principal of and interest upon the revenue bonds issued by the municipality under the provisions of this article. The ordinance pursuant to which any bonds are issued shall pledge the revenues derived from the combined system to the purposes aforesaid and shall definitely fix and determine the amount of revenues which shall be necessary and set apart in a special fund for the bond requirements. The amounts so set apart into said special fund for the bond requirements shall be remitted to the West Virginia Municipal Bond Commission to be retained and paid out by said commission consistent with the provisions of this article and the ordinance pursuant to which the bonds have been issued: Provided, That payments of principal of and interest on any bonds owned by the United States of America or any agency or department thereof may be made by the municipality directly to the United States of America or said agency or department thereof.

§8-20-13. System of accounts; audit.

Any municipality operating a combined system under the provisions of this article shall set up and maintain a proper system of accounts in accordance with the requirements of the Public Service Commission, showing the amount of revenues received from the combined system and the application of the same. At least once each year the municipality shall cause the accounts to be properly audited, and a report of the audit shall be open to the public for inspection at all reasonable times.

§8-20-14. Repair and maintenance of municipal sewerage system outside corporate limits.

Whenever a municipality collects rates or charges from users of any part of a sewerage system located outside the corporate limits of such municipality for sewerage service rendered to such users, pursuant to the provisions of this article or other act or law, such municipality shall be responsible for the repair and maintenance of such sewerage system and the county court of the county or counties in which such sewerage system is located shall not be liable or responsible for the repair and maintenance of such sewerage system.

§8-20-15. Protection and enforcement of rights of bondholders, etc.; receivership.

Any holder of any bonds issued under the provisions of this article or of any coupons representing interest accrued thereon may by civil action, mandamus or other proper proceeding enforce the statutory mortgage lien created and granted in section seven of this article, protect and enforce any and all rights granted hereunder or under any such ordinance or trust indenture, and may enforce and compel performance of all duties required by the provisions of this article or by any ordinance or trust indenture to be performed by the municipality or by the governing body or any officer, including the making and collecting of reasonable and sufficient rates, fees or charges for services rendered by the combined system.

If there be default in the payment of the principal of or interest upon any of bonds, or of both principal and interest, any court having jurisdiction shall appoint a receiver to administer said combined system on behalf of the municipality, and the bondholders or trustee, or both, with power to charge and collect rates, fees or charges sufficient to provide for the retirement of the bonds and pay the interest thereon, and for the payment of the repair, maintenance and operation expenses, and the receiver shall apply the revenues in conformity with the provisions of this article and the ordinance pursuant to which the bonds have been issued or trust indenture, or both.

§8-20-16. Grants, loans and advances.

Any municipality is hereby empowered and authorized to accept loans or grants and procure loans or temporary advances evidenced by notes or other negotiable instruments issued in the manner, and subject to the privileges and limitations, set forth with respect to bonds authorized to be issued under the provisions of this article, for the purpose of paying part or all of the cost of acquisition, construction, establishment, extension or equipment of combined systems and the construction of additions, betterments and improvements thereto, and for the other purposes herein authorized, from any authorized agency of the state or from the United States of America or any federal or public agency or department of the United States or any private agency, corporation or individual, which loans or temporary advances, including the interest thereon, may be repaid out of the proceeds of bonds authorized to be issued under the provisions of this article, the revenues of the said combined system or grants to the municipality from any agency of the state or from the United States of America or any federal or public agency or department of the United States or any private agency, corporation or individual or from any combination of such sources of payment, and to enter into the necessary contracts and agreements to carry out the purposes hereof with any agency of the state, the United States of America or any federal or public agency or department of the United States, or with any private agency, corporation or individual. Any other provisions of this article notwithstanding, interest on any loans or temporary advances may be paid from the proceeds thereof until the maturity of the notes or other negotiable instrument.

In no event shall any loan or temporary advance be a general obligation of the municipality and the loans or temporary advances, including the interest thereon, shall be paid solely from the sources specified in this section.

§8-20-17. Additional and alternative method for constructing, etc., and financing combined system; cumulative authority.

This article is, without reference to any other statute or charter provision, full authority for the acquisition, construction, establishment, extension, equipment, additions, betterment, improvement, repair, maintenance and operation of or to the combined system herein provided for and for the issuance and sale of the bonds by this article authorized, and is an additional and alternative method therefor and for the financing thereof, and no petition, referendum or election or other or further proceeding with respect to any undertaking or to the issuance or sale of bonds under this article and no publication of any resolution, ordinance, notice or proceeding relating to any undertaking or to the issuance or sale of such bonds is required, except as prescribed by this article, any provisions of other statutes of the state to the contrary notwithstanding: Provided, That all functions, powers and duties of the bureau of public health and the Division of Environmental Protection remain unaffected by this article: Provided, however, That no municipality may acquire, construct, establish, extend, repair or equip or thereafter repair, maintain and operate a combined waterworks, sewerage or stormwater system which includes highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways without the express agreement of the commissioner of highways.

This article is cumulative authority for any undertaking herein authorized, and does not repeal any existing laws with respect thereto.

§8-20-18. Alternative procedure for acquisition, construction, etc., of combined system.

(a) As an alternative to the procedure provided in this article, any municipality is hereby empowered and authorized to acquire, construct, establish, extend, equip, repair, maintain and operate a combined system or to construct, maintain and operate additions, betterments and improvements thereto, whether acquired, constructed, established, extended or equipped under the provisions of this article or not, and to collect the revenues therefrom for the services rendered thereby, through the supervision and control of a committee, by whatever name called, composed of all or of a portion of the governing body, or of a board or commission appointed by the governing body, as may be provided by the governing body, and if such alternative is followed, said committee, board or commission shall have and be limited to all the powers, authority and duties granted to and imposed upon a board as provided in article sixteen of this chapter.

However, no municipality may acquire, construct, establish, extend, repair or equip or thereafter repair, maintain and operate a combined waterworks, sewerage or stormwater system, which includes highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways without the express agreement of the commissioner of highways.

(b) In the event that the waterworks or sewerage system or both, or if applicable, stormwater services, are in existence prior to the creation of the combined system, and the waterworks or sewerage system or both, and if applicable, stormwater services, are supervised and controlled by a committee, board or commission, and the alternative provided for in subsection (a) of this section is to be followed with respect to the supervision and control of the combined system, the governing body may by ordinance, after the creation of the combined system, provide:

(1) The manner of and procedure for transferring supervision and control from each separate committee, board or commission to the committee, board or commission which is supervising and controlling the combined system; or

(2) The manner of and procedure for combining each separate committee, board or commission into one committee, board or commission and transferring thereto supervision and control as aforesaid.

§8-20-19. Article to be liberally construed.

This article is necessary for the public health, safety and welfare and shall be liberally construed to effectuate its purposes.

§8-20A-1. Legislative findings and purpose.

(a) The Legislature hereby finds and declares that the lack of safe, decent, sanitary and affordable owner-occupied and rental dwellings is one of the most serious problems facing this state and that a major contributing factor to this problem is the deterioration of the state's existing housing stock; that these deteriorating dwellings exist in both the urban and rural areas of the state; that a disproportionate number of owners of these deteriorating dwellings are older, less affluent and otherwise less able to afford the expense of the remodeling, repairing and rehabilitating of their residences necessary to maintain such residences in a sanitary, safe and decent condition; that because of the lack of acceptable loan collateral, the age of their residences and the location and age of the neighborhoods in which their residences are located, many of such owners have not been able to borrow funds necessary to effect such remodeling, repair and rehabilitation; and that some of such homeowners who have been able to obtain funds for such purposes have been able to do so only upon rates of interest and upon other terms and conditions which are particularly onerous and disadvantageous to such owners.

(b) The Legislature further finds and declares that the assistance authorized in this article will provide, and will encourage private lenders to provide, to such owners, more readily and at rates of interest and upon other terms and conditions significantly more favorable to such owners, the loans necessary to finance the cost of such remodeling, repair and rehabilitation.

(c) The Legislature further finds and declares that the powers granted to municipalities and counties in this article will enable them to maximize the use of federal programs for housing rehabilitation.

(d) The Legislature further finds and declares that it is manifestly in the public interest to foster the pride, self-respect and esteem incident to home ownership and to encourage and assist in the maintenance of residences, both owner occupied and rental, in a safe, decent and sanitary condition; that without the assistance authorized in this article, there will be continued deterioration of housing with the resultant proliferation of slums, higher crime rates and general decline in civic pride, public spirit and the quality of life, with all of the public cost, direct and indirect, attendant thereon; and that accordingly by providing such assistance, any municipality or county will be acting in all respects for the benefit of the people of the State of West Virginia and shall thereby serve a public purpose in improving and otherwise promoting their health, welfare and prosperity. In order to carry out the general purposes stated herein, the Legislature further declares that the governing body of any county or municipality shall, insofar as it may deem reasonable and proper, give preference to the rehabilitation of owner-occupied dwellings when making grants or loans under this article.

§8-20A-2. Definitions.

As used in this article, unless the context otherwise requires:

(1) "Eligible dwelling" means real estate upon which there is located a structure designed primarily for residential housing and consisting of dwelling units for not more than thirty families: Provided, That all ownership thereof shall be limited to persons who would qualify as eligible owners.

(2) "Eligible owner" means a person or persons residing within the boundaries of a municipality or county, and owning an eligible dwelling within the boundaries of that municipality or county, irrespective of race, creed, national origin or sex, with respect to whom it is determined by the governing body of such municipality or county that (a) such person or persons, because of financial condition, age, infirmity, family size or other reasons, is unable to obtain, on suitable terms and conditions, loans or other credit necessary for the rehabilitation of such eligible dwelling, and hence requires the assistance as provided in this article, (b) such rehabilitation is necessary to place such eligible dwelling in a safe, sanitary and decent condition, and (c) the assistance as authorized in this article shall make financing available to such person or persons, or enable such person or persons, to obtain such financing on terms and conditions substantially more favorable to such person or persons than would otherwise be available.

(3) "Rehabilitation" means a specific work of improvement within a municipality or county undertaken primarily to remodel, repair or rehabilitate an eligible dwelling.

§8-20A-3. Neighborhood rehabilitation fund.

(a) Any municipality or county shall have plenary power and authority, by charter provision, ordinance or resolution, to establish a special fund of moneys made available by appropriation, grant, contribution, loan or otherwise, to be known as the neighborhood rehabilitation fund of such municipality or county, to be governed, administered and accounted for by the governing body of such municipality or county, as a special purpose account, separate and distinct from any other moneys, fund or funds owned by such municipality or county.

(b) The governing body of any municipality or county may, from time to time, by resolution, establish criteria which shall govern the determination of persons who qualify as eligible owners and the amount of assistance to such owners.

(c) The purpose of such neighborhood rehabilitation fund shall be to provide funds for the making of grants and loans, or to guarantee the repayment of loans made by private lenders, to eligible residents of such municipality or county, the proceeds of which loans and grants are to be used exclusively for rehabilitation.

(d) Such loans shall be made or guaranteed and grants made only upon determination by the governing body of such municipality or county, or by a board or commission appointed for such purpose by such governing body, that the recipients are eligible owners, that the proceeds of the loan or grant shall be used for rehabilitation and that loans or grants to such eligible recipients for rehabilitation are not otherwise available upon reasonably equivalent terms and conditions: Provided, That grants may be given only for the rehabilitation of residences occupied by their owners.

(e) No loan shall be made or guaranteed by such municipality or county except in accordance with a written agreement between such municipality or county, the eligible owner and in the case of a guaranteed loan the lender making such loan, which agreement shall provide, without limitation, that:

(1) The proceeds of such loan shall be used exclusively for rehabilitation;

(2) The loan shall be in such principal amount, repayable in such number of consecutive and substantially equal monthly installments at such annual rate of interest and shall be secured in such manner as specified in such agreement;

(3) In the case of a guaranteed loan, such municipality or county shall be obligated to repay, from the neighborhood rehabilitation fund established in accordance with this article, any installment or installments of such loan as shall be in default from time to time in accordance with the provisions of such agreement;

(4) In the event an eligible owner defaults on such loan made by such municipality or county, or in the event such municipality or county incurs an obligation on a guaranteed loan, such municipality or county shall be entitled, at its option, to realize on any and all security for said loan: Provided, That the right of such municipality or county to realize on such security with respect to a guaranteed loan shall be subordinate and secondary to the right of the lender as to such security, to the extent of the unpaid balance of such loan.

(f) Nothing in this article contained shall be so construed as to authorize any municipality or county to make any contract or incur any obligation or liability of any kind or nature, except such as shall be discharged or payable solely from the funds on deposit in such neighborhood rehabilitation fund.

§8-20A-4. Inspection and technical assistance.

In addition to all other powers and rights of a municipality or county, any municipality or county shall have plenary power and authority, at the request of eligible owners, to inspect the residences of such eligible owners, to make recommendations concerning rehabilitation and to provide all manner of technical services and assistance in the planning, processing and design of needed rehabilitation.

§8-20A-5. Deferral of repayment.

The governing body of a municipality or county may, at its discretion, establish criteria for extreme hardship (by reason of age, low income, disability or other factors) applicable to an eligible owner, and which criteria will permit deferral of repayment of a portion or of all the loan until a definite future date, the death of the eligible owner or the sale of the "eligible dwelling" to another owner, whichever occurs first. The eligible owner for the purposes of this section shall be interpreted as the person in whom title of the property is vested or the spouse of said eligible owner at the time the rehabilitation loan or grant, or both, is provided.

PART I. ESTABLISHMENT; ORGANIZATION.

§8-21-1. Cities may establish board.

Every city is hereby empowered and authorized to provide for by charter provision, or to create by ordinance, a board of park and recreation commissioners, for the purpose of establishing, constructing, improving, extending, developing, maintaining and operating a city public park and recreation system.

§8-21-2. Board a public corporate body; perpetual existence; seal; name; powers.

The board of park and recreation commissioners provided for by charter provision, or created by ordinance, pursuant to the authority of this article, shall be a public corporate body, with perpetual existence and a common seal. It shall be known as the board of park and recreation commissioners of such city. It shall have the power to purchase, hold, sell and convey real or personal property; receive any gift, grant, donation, bequest or devise; sue and be sued; contract and be contracted with; and do any and all things and acts which may be necessary, appropriate, convenient or incidental to carry out and effectuate the purposes and provisions of this article. For convenience of reference herein, the board of park and recreation commissioners will be hereinafter referred to as the "board."

§8-21-3. Members; quorum; qualifications; election or appointment; terms; disqualification.

The board shall consist of not less than three nor more than seven members as may be provided by charter provision or ordinance, a majority of whom shall constitute a quorum for the transaction of business, except as hereinafter in this article provided. Each member of the board must be a resident and freeholder of the city. It may be provided either by charter provision or by ordinance for the appointment of the members thereof by the governing body, but unless and until such provision is made, the members of the board shall be elected by the qualified voters of the city at appropriate regular municipal elections. Membership on the governing body may not disqualify any member for election to the board. If provision is made for the appointment of members as aforesaid and the board consists of three or four members, one member of the governing body, if otherwise qualified, may be appointed by the governing body; if the board consists of five members not more than two members of the governing body so qualified may be so appointed and if the board consists of six or seven members not more than three members of the governing body so qualified may be so appointed. The term of the board membership of any member of the governing body so appointed shall continue during his or her term as a member of the governing body and until his or her successor is appointed or elected and qualified. The terms of other appointed or of elected members shall be for six years, and until their successors have been duly appointed or elected and qualified: Provided, That notwithstanding the fact that there be no charter provision or ordinance for appointment of the members of the board, the governing body of the city shall appoint the members of the first board, such appointees to serve, one for a term of six years, one for a term of four years, and one for a term of two years. The date upon which the terms of the board members shall begin shall be specified by ordinance. When any member of the board, during his or her term of office, shall cease to be a resident and freeholder of the city, he or she shall thereby be disqualified as a member of the board and his or her office shall thereupon become vacant.

§8-21-4. Filling vacancies.

When a vacancy occurs on said board by reason of death, resignation, change of residence from the city, failure to remain a freeholder of the city, or due to any other cause, the remaining member or members of said board shall appoint a successor or successors, or if there should be no members left on said board, the governing body of the city shall appoint successors, and in either event, the appointments shall be for the unexpired term or terms.

§8-21-5. Oath of members; organization of board; secretary; treasurer.

After appointment or election, the members of the board shall qualify by taking and filing with the recorder of the city the oath prescribed by law for public officials, and they shall not be permitted to serve upon said board until they have so qualified. If any member of said board shall fail to so qualify on or before the date upon which he should assume the duties of his office, a vacancy shall exist which shall be filled as provided in section four of this article.

At the first meeting held after the first board has been appointed, as hereinbefore provided, and thereafter on a date to be fixed by ordinance, the members of the board shall organize by electing one of their number president, and another vice president, and by electing a secretary who need not be a member of the board. The secretary shall keep an accurate record of all the fiscal affairs of the board, and shall keep a minute book in which he shall record the proceedings and transactions of each meeting of the board. The secretary shall be paid such compensation for his services as the board shall fix from year to year. The city treasurer shall be ex officio treasurer of said board, and he shall take the oath prescribed by law and shall furnish such bond as may be required by said board.

§8-21-6. Members to be paid expenses; members not to be personally interested in contracts or property controlled by board.

The members of said board shall receive no compensation for their services but they shall be entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties as members of said board. They shall not be personally interested, directly or indirectly, in any contract entered into by said board, or hold any remunerative position in connection with the establishment, construction, improvement, extension, development, maintenance or operation of any of the property under their control as members of said board.

PART II. POWERS.

§8-21-7. Office; powers.

The governing body shall furnish said board an office in the city building where it may hold its meetings and keep its records. Any board operating under the provisions of this article shall have complete and exclusive control and management of all of the properties which shall be operated in connection with the public park and recreation system for the city, and shall have power to employ such persons as, in its opinion, may be necessary for the establishment, construction, improvement, extension, development, maintenance or operation of the property under its control, at such wages or salaries as it shall deem proper, and shall have full control of all employees.

§8-21-8. Purchase, lease or condemnation of real property.

The board is hereby granted the power and authority to acquire in its name or in the name of the city by purchase, lease, or by exercise of the power of eminent domain, or otherwise, such land or lands as it shall determine to be necessary, appropriate, convenient or incidental to the establishment, construction, improvement, extension, development, maintenance or operation of a system of public parks, parkways, playgrounds, athletic fields, stadiums, swimming pools, skating rinks or arenas and other public park and recreational facilities for the city, whether of a like or different nature: Provided, That any such acquisition by the board made by exercise of the power of eminent domain must be approved by a majority vote of the governing body of that municipality. Approval by the governing body must be granted as to each specific parcel or tract of land to be acquired by power of eminent domain.

§8-21-9. Authority to take title to real and personal property; conveyances of real property to board by public bodies; sales and conveyances of real property by board; execution of deeds.

The board is hereby empowered and authorized to take title in its name or in the name of the city to all real and personal property acquired by it for the use of the public or useful to the public in the establishment, construction, improvement, extension, development, maintenance or operation of all public parks, parkways, playgrounds, athletic fields, stadiums, swimming pools, skating rinks or arenas and all other public park and recreational facilities for the city, whether of a like or different nature, and shall manage and dispose of the same as, in its opinion, will best serve the interests of the public in carrying out the purposes of this article. The city and all other public bodies owning real property intended to be used for public parks and recreation are hereby authorized to convey the same to said board to be held by it for such purposes, and said board is hereby authorized to receive the same. Nothing contained in this chapter shall be construed as limiting said board from going beyond the corporate limits of the city, anywhere within the state, to lease, purchase or otherwise acquire any real property for the purposes herein set forth. The board shall have the right to sell and convey only such part of the real property that it may acquire by gift, devise, purchase or otherwise, as it may determine to be of no advantage in the establishment, construction, improvement, extension, development, maintenance or operation of said public parks, parkways, playgrounds, athletic fields, stadiums, swimming pools, skating rinks or arenas and other public park and recreational facilities, whether of a like or different nature; except that the board shall have the power and authority to make such sales and conveyances of its real property as may be necessary, appropriate or convenient to enable the city to obtain the benefits of article sixteen of this chapter or any other similar act or legislative authorization. Under no circumstances shall any of such real property of the board be sold or conveyed except by unanimous vote of all of the members of said board. All deeds conveying the real property of said board shall be executed in its official name by its president or vice president, shall have its seal affixed and shall be duly attested by its secretary.

§8-21-10. General powers of board; enactment and enforcement of rules and regulations; counsel.

The board shall have the necessary, appropriate, convenient and incidental powers and authority to manage and control all public parks, parkways, playgrounds, athletic fields, stadiums, swimming pools, skating rinks or arenas and other public park and recreational facilities of all kinds used as a part of said public park and recreation system or as a means of maintaining places of beauty, education and recreation, and promoting the health, property, lives, decency, morality and good order of the general public, and particularly of the inhabitants of the city and vicinity; to abate or cause to be abated all nuisances affecting same; to regulate or prohibit the selling of any article, goods, wares or merchandise within said park and recreation system so designated; to regulate or prohibit the placing of signs, billboards, posters and advertisements within said park and recreation system as so designated, or the grounds immediately adjacent thereto; to have the same kept in good order and free from obstruction for the use and benefit of the public; to restrict and prohibit vagrants, mendicants, beggars, tramps, prostitutes or disorderly individuals therefrom; to establish, construct, improve, extend, develop, maintain and operate such parks, parkways, playgrounds, athletic fields, stadiums, swimming pools, skating rinks or arenas and other public park and recreational facilities, whether of a like or different nature, on any grounds controlled by said board; to acquire for public use by lease or otherwise lands either within or without the corporate limits of the city; to cause any public street, avenue, road, alley, way, bridle path or walkway, which is a part of the public park and recreation system, to be graded, drained and surfaced; to construct, maintain and operate all necessary sewers and water lines in connection with said public park and recreation system; and to do any and all other things or acts which may in any way be necessary, appropriate, convenient or incidental to the use and enjoyment of said public park and recreation system by the general public as a place or places of beauty, education, entertainment and recreation.

In order to accomplish the foregoing purposes, said board is hereby empowered and authorized to promulgate, and amend from time to time, such rules and regulations as may be necessary, appropriate, convenient or incidental thereto; after codification of such rules and regulations, or any amendment thereto, by ordinance of the governing body which may provide penalties for a violation thereof, which codification is hereby authorized, to enforce the same by appropriate proceedings in any proper tribunal of this state, or any county, district or municipality thereof; and to employ such police officers as it shall deem proper and necessary. The city attorney shall be the official counsel for said board and shall advise it on all legal matters, but said board may, in its own discretion, employ other or additional counsel.

PART III. FINANCING.

§8-21-11. Charges for use of recreational facilities; use of funds.

The board may make reasonable charges to the public for the privilege of using any of the recreational facilities provided in said park and recreation system and may use the funds so received for the purpose of establishing, constructing, improving, extending, developing, maintaining or operating said park and recreation system.

§8-21-12. Use of city appropriations and other funds.

In carrying out the purposes of this article, the board is hereby empowered and authorized to receive and disburse for such purposes, any moneys appropriated to it by the governing body of the city, together with any other funds which may come into its hands by gift, grant, donation, bequest, devise, or from its own operation, or otherwise.

§8-21-13. Public park and recreation bonds.

Every city is hereby empowered and authorized to issue, in the manner prescribed by law, bonds for the purpose of raising funds to establish, construct, improve, extend, develop, maintain or operate, or any combination of the foregoing, a system of public parks and recreational facilities for such city, or to refund any bonds of the city, the proceeds of which were expended in the establishing, constructing, improving, extending, developing, maintaining or operating of such public park and recreation system, or any part thereof. Any bonds issued for any of the purposes stated in this section shall contain in the title or subtitle thereto the words "public park and recreation bonds," in order to identify the same, and shall be of such form, denomination and maturity and shall bear such rate of interest as shall be fixed by ordinance of the governing body of the city. The governing body may provide for the issuance of bonds for other lawful purposes of the city in the same ordinance in which provision shall be made for the issuance of bonds under the provisions of this section. The board shall pay all of the costs and expenses of any election which shall be held to authorize the issuance of public park and recreation bonds only. The costs and expenses of holding an election to authorize the issuance of public park and recreation bonds and bonds for other city purposes shall be paid by the board and the city respectively, in the proportion that the public park and recreation bonds bear to the total amount of bonds authorized.

Whenever the governing body of the city and the requisite majority of the legal votes cast at the election thereon shall authorize, in the manner prescribed by law, the issuance of bonds for the purpose of establishing, constructing, improving, extending, developing, maintaining or operating, or any combination of the foregoing, a system of public parks and recreational facilities for the city, or for refunding any outstanding bonds, the proceeds of which were applied to any of said purposes, said bonds shall be issued and delivered to the board to be by it sold in the manner prescribed by law, and the proceeds thereof shall be paid into the treasury of the board, and the same shall be applied and utilized by the board for the purposes prescribed by the ordinance authorizing the issuance of such bonds. In any ordinance for the issuance of bonds for such purposes, it shall be a sufficient statement of the purposes for creating the debt to specify that the same is for the purpose of establishing, constructing, improving, extending, developing, maintaining or operating, or any combination of the foregoing, a public park and recreation system for the city, without specifying the particular establishment, construction, improvement, extension, development, maintenance or operation contemplated; but an ordinance for refunding bonds shall designate the issue and the number of bonds which it is proposed to refund.

PART IV. CONSTRUCTION.

§8-21-14. Construction of article.

The provisions of this article shall be construed as conferring additional power and authority upon cities acting hereunder, and shall not be construed as affecting any power or authority heretofore conferred upon any city by the Legislature by general, special or local law or municipal charter, or parts thereof.

PART I. PARTICIPATION IN STATE PUBLIC EMPLOYEES

RETIREMENT SYSTEM.

§8-22-1. Membership in Public Employees Retirement System.

Any municipality may elect to become a participating public employer under the West Virginia Public Employees Retirement System created and established by, and administered pursuant to, the provisions of article ten, chapter five of this code, for the coverage of all employees eligible under the provisions of said article ten, except policemen and firemen covered by a policemen's pension and relief fund or firemen's pension and relief fund.

PART II. GENERAL RETIREMENT SYSTEMS FOR

CLASS I, II AND III CITIES.

§8-22-2. Class I, II and III cities empowered and authorized to establish and maintain "employees retirement and benefit fund" or to maintain such fund heretofore established.

Every Class I, II and III city which is not a participating public employer in the said West Virginia Public Employees Retirement System is hereby empowered and authorized to and may establish and maintain an "employees retirement and benefit fund" in accordance with the provisions of this section two and sections three through fourteen of this article. Any Class I, II and III city which has heretofore established such a fund in accordance with the acts of the Legislature referred to in section fifteen of this article may continue to maintain said fund in accordance with the provisions of this section two and sections three through fourteen of this article, or said acts, as specified in said section fifteen.

PART II. GENERAL RETIREMENT SYSTEMS FOR CLASS I,

II AND III CITIES.

§8-22-3. Definitions.

For the purpose of sections two through fifteen of this article:

(a) "Prior service credit" shall mean the number of years that the member has been in the service of the city prior to the effective date of the employees retirement and benefit fund;

(b) "Earned service credit" shall mean the number of years that the member has contributed to the employees retirement and benefit fund;

(c) "Total service credit" shall mean the total of all prior service credit and all earned service credit;

(d) "Fund" shall mean the employees retirement and benefit fund;

(e) "Board" shall mean the board of trustees of the fund;

(f) "Member" shall mean an eligible employee of the city, who is a member of the fund;

(g) "Total disability in line of duty" shall mean total and permanent disablement from performing any work for pay, whether for the city by which employed at date of disability or other employer, which shall be caused by accidental injury sustained in the course of the operations usual to his employment and while in line of duty, and shall include all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the usual place of employment or elsewhere in connection with or in relation to his usual and customary employment;

(h) "Total disability not in line of duty" shall mean total and permanent disablement from performing any work for pay, whether for the city by which employed at date of disability or other employer, from any cause other than that set forth in subdivision (g) of this section;

(i) The term "actuarial equivalent" shall mean any annuity of equal value to the accumulated contributions, annuity or benefit when computed upon the basis of the actuarial tables in use by the fund;

(j) "Monthly salary" shall mean the amount earned each month by a member as an employee of the city: Provided, That to and including June 30, 1967, the maximum amount of salary to be considered hereunder for purposes of contributions and in the computation of benefits shall be $400 per month; and

(k) "Average salary" shall mean the highest annual average salary earned by a member during a period of five consecutive years within the total service of the member, subject to a maximum amount of $400 per month to and including June 30, 1967, and no such maximum amount after such date, but effective January 1, 1987, a city may provide that average salary be based on a three consecutive year period.

§8-22-4. Board of trustees.

The governing body of each such city desiring to establish and maintain a fund as authorized in sections two through fourteen of this article shall by ordinance provide for a board of trustees of the fund.

The said board of trustees shall consist of the mayor and four members of the fund, to be appointed by the mayor, with the advice and consent of a majority of the members of the fund. The initial appointments shall be for a term of one, two, three and four years, respectively, after which all appointments shall be for a term of four years.

The presiding officer of the board shall be the mayor, and the secretary thereof shall be appointed by said board. It shall be the duty of such secretary to keep a full and permanent record of all the proceedings of the board, and said board may fix his compensation for this work which shall be paid out of said fund.

The mayor or any three members of the board shall have the power to call a meeting at any time that it is necessary in order to carry out the business of the board. Three members of the board shall constitute a quorum to transact business, but it shall require three or more affirmative votes to pass any matter before the board.

The board shall have charge of and administer the fund and shall order payments therefrom, and no money shall be paid out of the fund except upon the order of the board.

The governing body shall have plenary power and authority to make any and all rules and regulations pertaining to the fund not inconsistent with the provisions of sections two through fifteen of this article, the Constitution and the laws of this state.

Such board shall be a public corporation by the name and style of "The Board of Trustees of the Employees Retirement and Benefit Fund of (name the city)," by which name the board may sue and be sued, plead and be impleaded, contract and be contracted with, take and hold real and personal property, for the use of said fund, and have and use a common seal. Said board may also in its corporate name do and perform any and all other acts and business pertaining to the trust created hereby or by any conveyance, devise or dedication made for the uses and purposes of said board.

§8-22-5. Employees eligible for participation in fund.

Employees eligible for participation in the fund shall include all employees who are employed by the city on a permanent basis. The following employees, however, shall not be eligible for participation in the fund:

(1) Appointive members of administrative boards and commissions, except employees of such boards and commissions;

(2) Individuals employed under contract for a definite period or for the performance of a particular or special service;

(3) Employees serving on a part-time basis of less than one-half time;

(4) Policemen and firemen covered by a policemen's pension and relief fund or firemen's pension and relief fund;

(5) Employees who are paid in part by the state, county or other governmental agency, and only in part by the city;

(6) Employees who are past sixty years of age on the effective date of the fund; and

(7) Employees who are hired after the effective date of the fund and who were past sixty years of age at the time they were so employed. Effective January 1, 1987, a city may disregard this exception.

In case of doubt, the board of trustees of the fund may make determination as to any individual's eligibility to become a member of the fund.

All employees eligible for participation at the effective date of the fund shall become members of the fund, unless they file a written election not to become a member within thirty days after the effective date of the fund.

Effective January 1, 1987, a city may provide that employees who did not participate in the fund when first eligible, or who were not permitted to join the fund when they were first hired due to the prior age sixty limitation, may now participate. Such members may purchase prior service by paying into the fund the employee contributions they would have contributed had they been in the fund plus interest at the rate of six percent annually. Members shall be given two years to pay these contributions.

§8-22-6. Contributions; prior, earned and total service credits; service breaks.

Until June 30,1967, each member shall pay into the fund six percent of his monthly salary up to $400 a month. After June 30, 1967, each member shall contribute six percent of his monthly salary without any such maximum limitation. Effective January 1, 1987, a city may provide that contributions made by a member shall be before-tax, as permitted by section 414(h)(2) of the Internal Revenue Code. Each member shall continue to make such contributions until such time as such member retires or until he has contributed to the fund for a period of thirty-five years, that is, has thirty-five years of "earned service credit."

For prior service, each participating employee, in the employ of the city on the effective date of the fund, shall be credited, as of such date, with a prior service credit equal to the period or periods of service that the member has rendered to the city prior to the effective date of the fund. Any employee who is in the employ of the city on the effective date of the fund and who becomes a member of the fund shall be entitled to prior service credit even though such prior service was not continuous. Any individual who is not in the employ of the city on the effective date of the fund but who has been employed by the city in the past shall be entitled to prior service credit if he returns to the service of the city within two years from the date of the termination of his service and becomes a member of the fund within such two-year period.

Effective January 1, 1987, a city may provide that members who have been honorably discharged from the military shall receive up to two years prior service credit for military service prior to their employment with the city.

A member upon separation from the service shall be entitled to withdraw his contributions without interest in lieu of any benefits to which he may be entitled. A city may provide that contributions are credited with interest at the rate of six percent compounded annually from January 1, 1987. If such employee returns to the service of the city within two years and becomes a member of the fund, he shall be considered as a new employee and shall have forfeited all prior service credits unless he shall repay to the fund in cash at the time of reemployment the amount of money which he has withdrawn plus four percent interest compounded annually on said amount during the time he was separated from the service, but effective January 1, 1987, a city may require six percent interest. If, however, the break in service of such member is more than two years, he shall not be entitled to any prior service credit nor shall he be entitled to redeposit withdrawals but he shall reenter the fund as a new member.

§8-22-7. Retirement pensions.

(a) After the effective date of the fund, any member of the fund who has at least ten years of continuous total service credit shall receive a vested right to a retirement pension which he may exercise upon or after attainment of age sixty. When he has attained the age of sixty years he may, at his option, apply for a retirement pension, the amount thereof to be determined in accordance with the provisions of subsection (e) of this section.

(b) Retirement for all members of the fund shall be compulsory at the age of seventy subject to the following conditions: The employee may be permitted to continue in the service if he so desires and if his services are still valuable to the city. Whether an employee's services are valuable at the age of seventy shall be determined by the appointing officer of the city. If he determines that such services are valuable, his determination must be certified to the board for approval. If the board approves, the employee may continue in the service of the city. The appointing officer shall annually certify to the board relative to the ability and competency of all employees over age seventy. The amount of any pension under the provisions of this subsection shall be determined in accordance with the provisions of subsection (e) of this section.

(c) Effective January 1, 1987, a city may provide that any member of the fund who has at least ten years of continuous total service credit shall receive a vested right to a retirement pension which he may exercise upon or after attainment of age fifty-five. When he has attained the age of fifty-five years he may, at his option, apply for a retirement pension, the amount thereof to be determined in accordance with the provisions of subsection (e) of this section, reduced by one quarter of one percent for each month (three percent per year) by which his retirement date precedes age sixty, except that if his age plus years of continuous service credit is equal to or greater than eighty-five, the benefit shall not be reduced.

(d) Although he has not attained the age of sixty, any member who has thirty-five years' total service and who becomes so physically or mentally disabled as to render he unfit for the performance of the duties of the position he occupies shall be entitled to an annual retirement pension, the amount thereof to be determined in accordance with the provisions of subsection (e) of this section.

(e) A member of the fund, upon retirement, shall be entitled to the following annual retirement pension, payable in twelve monthly installments:

For thirty-five years of total service credit to and including twenty-four years of total service credit, fifty percent of average salary plus one and two-thirds percent of average salary per year of service for each year above twenty-three years;

For twenty-three years of total service credit, fifty percent of average salary: Provided, That if a member has twenty-three years of total service credit he shall be entitled to a minimum retirement pension of $100 per month;

For twenty-two years of total service credit, forty-nine percent of average salary;

For twenty-one years of total service credit, forty-eight percent of average salary;

For twenty years of total service credit, forty-seven percent of average salary;

For nineteen years of total service credit, forty-five percent of average salary;

For eighteen years of total service credit, forty-three percent of average salary;

For seventeen years of total service credit, forty-one percent of average salary;

For sixteen years of total service credit, thirty-nine percent of average salary;

For fifteen years of total service credit, thirty-six percent of average salary;

For fourteen years of total service credit, thirty-three percent of average salary;

For thirteen years of total service credit, thirty-one percent of average salary;

For twelve years of total service credit, twenty-nine percent of average salary;

For eleven years of total service credit, twenty-seven percent of average salary; and

For ten years of continuous total service credit, twenty-five percent of average salary.

The rate of a retirement pension shall be prorated for any fractional part of the total service credit of an employee of less than a full year.

(f) With the condition that no optional benefit shall be effective if the member dies within thirty days after the effective date of his retirement, such member may elect at least one year prior to such effective date of his retirement to receive a lesser retirement pension, on a joint and last survivor basis, in order to provide, on an actuarial equivalent basis, an annuity to a designated beneficiary under any of the following two options:

Option 1. Upon his death while on retirement, his lesser retirement pension shall be continued throughout the life of and paid to such individual having an insurable interest in his life, as he shall have named in a written designation duly acknowledged and filed with the board.

Option 2. Upon his death while on retirement, one half of his lesser retirement pension shall be continued throughout the life of and paid to such individual having an insurable interest in his life as he shall have named in a written designation duly acknowledged and filed with the board.

Effective January 1, 1987, a city may provide that an election may be made at any time prior to the date his benefits commence.

(g) A member who has attained the age of sixty years and who has less than ten years' total service credit shall be entitled to an annuity which shall be the actuarial equivalent of his total accumulation account at the time of his retirement.

(h) Effective January 1, 1987, a city may provide that if an actuarial valuation of the plan determines that the required city contribution is less than six percent of payroll, then the board of trustees may provide ad hoc cost-of-living increases to retired members and beneficiaries, provided such change does not increase the city cost to an amount greater than six percent of payroll. Such cost-of-living increases are limited to the increase in the national consumer price index.

§8-22-8. Disability pensions; annuities.

A member may qualify for a disability pension under any one of the following mutually exclusive provisions:

(1) If a member receives total disability in line of duty, he shall be entitled during the time of his disability to a monthly disability pension equal to fifty percent of the monthly salary of the member at date of disability: Provided, That the minimum payment shall be $100 per month. Any benefits payable from the retirement and benefit fund shall be reduced by benefits payable from workers' compensation due to the total disability of the member.

(2) If a member receives total disability not in line of duty while an employee of the city after he has had at least ten years' total service credit and such member is not entitled to a retirement pension under the provisions of section seven of this article, he shall be entitled during the time of his disability to one half of the retirement pension to which he would have been entitled under the provisions of said section seven had he been sixty years of age at date of disability and had elected to take retirement: Provided, That he shall be entitled to a minimum payment of $50 per month and a maximum payment of $100 per month. Effective January 1, 1987, a city may provide that the maximum payment be $300 per month.

(3) If a member becomes so physically or mentally disabled as to render him unfit for the performance of the duties of the position he occupies, but his disability does not constitute either total disability in line of duty or total disability not in line of duty, and such member has less than ten years' total service credit, he shall be entitled to an annuity which shall be the actuarial equivalent of his total accumulation at the date of his disability.

The board of trustees of the fund shall order a periodic reexamination of members of the fund receiving a disability pension, and if the disability no longer exists the payment thereunder shall be discontinued: Provided, That no such reexamination of any such member shall be ordered as aforesaid after such member attains the age of sixty years.

§8-22-9. Death benefits; return of contributions.

(a) A beneficiary or beneficiaries of a deceased member, which member was not receiving a retirement pension under the provisions of section seven of this article at the date of his death, may qualify for death benefits under either of the following mutually exclusive provisions:

(1) If the member died as a result of personal injury or disease arising out of and in the course of his employment with the city, the surviving spouse shall be entitled during widowhood or widowerhood to a monthly benefit equal to thirty-three and one-third percent of the final monthly salary of the member, but not to exceed $125 per month. In the event there be no surviving spouse, or if remarriage occurs before the youngest child attains age eighteen, each child under age eighteen shall be entitled until age eighteen to a monthly benefit equal to twenty percent of the member's final monthly salary, subject to a total payment to all such children of fifty percent of such final monthly salary, or $125 per month, whichever is the lesser. If there be no surviving spouse or children under age eighteen, the deceased member's dependent father or mother or both, the question of dependency to be determined by the board, shall each be entitled until death to a monthly payment equal to one sixth of the deceased member's final monthly salary, but the payment to either parent shall not exceed $50 per month. Effective January 1, 1987, a city may provide that the above maximum benefit limitations of this section nine shall no longer apply. Any benefits payable from the retirement and benefit fund shall be reduced by benefits payable from workers' compensation due to the death of the member.

(2) If the member died from any cause other than that stated in subdivision (1) of this subsection, and such member at the date of his death had ten or more years' total service credit, his beneficiary or beneficiaries shall be entitled, for a period not to exceed ten years, to death benefits in accordance with the retirement pension table contained in section seven of this article. The death benefits shall be paid to such individual or individuals having an insurable interest in the member's life as such member shall have nominated in a designation filed with the board. As to any spouse beneficiary, the marriage must have occurred at least one year prior to the death of the member in order that the spouse may be eligible for benefits under this subdivision (2).

(b) If a member receiving a retirement pension under the provisions of section seven of this article at the date of his death dies with a spouse or beneficiary surviving (concerning which retirement pension the optional benefit provisions set forth in subsection (f) of said section seven are not applicable), and such member had been receiving such retirement pension for less than ten years, such surviving spouse or beneficiary shall be entitled to receive death benefits equivalent to the deceased member's retirement pension for the remaining period of ten years dating from the date of the member's retirement. The death benefits shall be paid to such individual or individuals having an insurable interest in the member's life as such member shall have nominated in a designation filed with the board; but a surviving spouse shall not be entitled to death benefits under the provisions of this subsection unless such surviving spouse was married to the member before the date of his retirement and such marriage took place at least one year prior to the date of the death of the member. If the surviving spouse remarries, such spouse's death benefits shall be terminated and shall not be resumed upon subsequent change in the marital status of such spouse.

(c) If a member dies with less than ten years' total service credit so that he was not entitled to a retirement pension during life, the member's total contributions to the fund, without interest, shall be returned to such individual or individuals having an insurable interest in the member's life as such member shall have nominated in a designation filed with the board, and in the absence of any such designation, to the member's estate.

§8-22-10. Contributions by city.

Effective January 1, 1987, the financial objective of each municipality shall not be less than to contribute to the fund annually an amount which, together with the contributions from the members, will be sufficient to meet the normal cost of the fund including the cost of administration and amortize any actuarial deficiency over a period of not more than forty years, but for those funds in existence on January 1, 1987, its actuarial deficiency, if any, shall not be amortized over a period longer than that which remains under its current schedule. For purposes of determining this minimum financial objective (1) the value of the fund's assets shall be determined on the basis of any reasonable actuarial method of valuation which takes into account fair market value and (2) all costs, deficiencies, rate of interest and other factors under the fund shall be determined on the basis of actuarial assumptions and methods which in aggregate are reasonable, taking into account the experience of the fund and reasonable expectations, and which in combination offer the qualified actuary's best estimate of anticipated experience under the fund. If as a result of this legislation a municipality's financial commitment to the fund is materially increased, the municipality may elect to phase in this increase over the five fiscal years commencing January 1, 1987.

§8-22-11. Investment of funds.

The board shall keep as an available sum for the purpose of making retirement, disability and death payments and administration expense an amount estimated to meet such payments for a period not to exceed ninety days. The board in acquiring, investing, reinvesting, exchanging, retaining, selling and managing property for the benefit of the fund shall exercise judgment and care which persons of experience, prudence, discretion and intelligence exercise in the management of financial affairs, considering the probable income as well as the probable security of the investment and with regard to the permanent disposition of the fund. Within the limitations of the foregoing standard, the board is authorized in its sole discretion to invest and reinvest any funds received by it in the following:

(1) Any direct obligation of, or obligation guaranteed as to the payment of both principal and interest by, the United States of America;

(2) Any evidence of indebtedness issued by any United States government agency guaranteed as to the payment of both principal and interest, directly or indirectly, by the United States of America including, but not limited to, the following: Government national mortgage association, federal land banks, federal home loan banks, federal intermediate credit banks, banks for cooperatives, Tennessee valley authority, United States postal service, farmers home administration, export-import bank, federal financing bank, federal home loan mortgage corporation, student loan marketing association and federal farm credit banks;

(3) Any evidence of indebtedness issued by the federal national mortgage association to the extent such indebtedness is guaranteed by the government national mortgage association;

(4) Any evidence of indebtedness that is secured by a first lien deed of trust or mortgage upon real property situate within this state, if the payment thereof is substantially insured or guaranteed by the United States of America or any agency thereof;

(5) Direct and general obligations of this state;

(6) Any undivided interest in a trust, the corpus of which is restricted to mortgages on real property and, unless all of such property is situate within the state and insured, such trust at the time of the acquisition of such undivided interest, is rated in one of the three highest rating grades by an agency which is nationally known in the field of rating pooled mortgage trusts;

(7) Any bond, note, debenture, commercial paper or other evidence of indebtedness of any private corporation or association: Provided, That any such security is, at the time of its acquisition, rated in one of the three highest rating grades by an agency which is nationally known in the field of rating corporate securities: Provided, however, That if any commercial paper or any such security will mature within one year from the date of its issuance, it shall, at the time of its acquisition, be rated in one of the two highest rating grades by any such nationally known agency and commercial paper or other evidence of indebtedness of any private corporation or association shall be purchased only upon the written recommendation from an investment advisor that has over $300 million in other funds under its management;

(8) Negotiable certificates of deposit issued by any bank, trust company, national banking association or savings institution which mature in less than one year and are fully collateralized;

(9) Interest earning deposits including certificates of deposit, with any duly designated state depository, which deposits are fully secured by a collaterally secured bond as provided in section four, article one, chapter twelve of this code; and

(10) Mutual funds registered with the securities and exchange commission which have assets in excess of $300 million.

§8-22-11a. Restrictions on investment.

Moneys invested as permitted by §8-22-11 of this code are subject to the restrictions and conditions contained in this section:

(1) At no time may more than 75 percent of the portfolio of either fund be invested in securities described in §8-22-11(7) of this code;

(2) At no time may more than 20 percent of the portfolio of either fund be invested in securities described in §8-22-11(7) of this code which mature within one year from the date of issuance thereof;

(3) At no time may more than nine percent of the portfolio be invested in securities issued by a single private corporation or association; and

(4) At no time may more than 60 percent of the portfolio be invested in equity mutual funds under §8-22-11(10) of this code.

§8-22-12. Individual accounts; actuarial data; tables.

The board of trustees shall maintain an individual account with each member, showing the amount of the member's contributions and the interest accumulations thereon. It shall collect and keep in convenient form such data as may be necessary for the preparation of the required mortality and service tables, and for the compilation of such other information as may be needed for the actuarial valuation of the fund. The board of trustees shall adopt appropriate tables for the purpose of evaluating and computing retirement, disability and death allowances.

§8-22-13. Reports by board of trustees.

The board of trustees for each retirement fund shall have regularly scheduled actuarial valuation reports prepared by a qualified actuary.

An actuarial valuation report shall be prepared at least once every five years commencing with the later of (1) July 1, 1987, or (2) five years following the most recently prepared actuarial valuation report.

For purposes of this section the term "qualified actuary" means only an actuary who is a member of the society of actuaries or the American academy of actuaries. The qualified actuary shall be designated a fiduciary and shall discharge his duties with respect to a fund solely in the interest of the members and members' beneficiaries of that fund. In order for the standard of this section to be met, the qualified actuary shall certify that the actuarial valuation report is complete and accurate and that in his opinion the technique and assumptions used are reasonable and meet the requirements of this section of this article.

The board of trustees shall submit to the governing body an annual report showing the condition of the fund under its control. It shall certify in such report the amount of accumulated cash and securities in the fund and shall present a full account of the operation of the system.

§8-22-14. Custodian of fund; duties; bond.

The treasurer of the city shall be the custodian of all of the assets of the fund, and shall deposit and pay out the moneys of the fund upon, and in accordance with, any proper order of the board of trustees. Such treasurer shall be liable upon his official bond as treasurer for the faithful performance of his duties in respect to such fund, and the official bond of the treasurer covering such fund shall be executed with a good and financially responsible surety company, authorized to do business in this state, as surety for such fund. Such fund shall not be used for any other purpose than provided in sections two through fourteen of this article.

§8-22-15. Action by city required before new provisions are applicable.

Notwithstanding any provisions in sections two through fourteen of this article to the contrary, the provisions of said sections two through fourteen shall not be applicable to any fund established by any city prior to the effective date of this section, unless and until such city shall by ordinance provide for the application thereof. In the absence of any such ordinance, any such established fund shall be governed and controlled by and administered in accordance with the provisions of chapter one hundred fourteen, acts of the Legislature, regular session, 1947, and the amendments by (1) chapter ninety-two, acts of the Legislature, regular session, 1949, (2) chapter one hundred twenty-nine, acts of the Legislature, regular session, 1955, and (3) chapter thirty-nine, acts of the Legislature, regular session, 1968, if and only if an ordinance were adopted on and after May 8, 1968, and prior to the effective date of this section providing for the application of said chapter thirty-nine.

§8-22-16. Pension and relief funds for policemen and firemen; creation of boards of trustees; definitions; continuance of funds; average adjusted salary.

(a) Except as provided in subsection (e) of this section, passed into law during the fourth extraordinary session of the Legislature in 2009, in every Class I and Class II city having, or which may hereafter have, a paid police department and a paid fire department, or either of such departments, the governing body shall, and in every Class III city and Class IV town or village having, or which may hereafter have, a paid police department and a paid fire department, or either of such departments, the governing body may, by ordinance provide for the establishment and maintenance of a policemen’s pension and relief fund and for a firemen’s pension and relief fund for the purposes hereinafter enumerated and, thereupon, there shall be created boards of trustees which shall administer and distribute the moneys authorized to be raised by this section and the following sections of this article. For the purposes of this section and §8-22-17 through §8-22-28, inclusive, of this code, the term “paid police department” or “paid fire department” means only a municipal police department or municipal fire department, as the case may be, maintained and paid for out of public funds and whose employees are paid on a full-time basis out of public funds. The term may not be taken to mean any department whose employees are paid nominal salaries or wages or are only paid for services actually rendered on an hourly basis.

(b) Any policemen’s pension and relief fund and any firemen’s pension and relief fund established in accordance with the provisions of former §8-6-1 et seq. of this code or this article shall be or remain mandatory and shall be governed by §8-22-16 through §8-22-28, inclusive, of this code (with like effect, in the case of a Class III city or Class IV town or village, as if such Class III city or Class IV town or village were a Class I or Class II city) and may not be affected by the transition from one class of municipal corporation to a lower class as specified in §8-1-3 of this code: Provided, That any Class III or Class IV town or village that hereafter becomes a Class I or Class II city may not be required to establish a pension and relief fund if the town or village is a participant in an existing pension plan regarding paid firemen and/or policemen.

(c) After June 30, 1981, for the purposes of §8-22-16 through §8-22-28, inclusive, of this code, the word “member” means any paid police officer or firefighter who at time of appointment to a paid police or fire department met the medical requirements of chapter 2-2 of the National Fire Protection Association Standards Number 1001 — Firefighters Professional Qualifications >74 as updated from year to year: Provided, That any police officer or firefighter who was a member of the fund prior to July 1, 1981, shall be considered a member after June 30, 1981.

(d) (1) For purposes of §8-22-16 through §8-22-28, inclusive, of this code, the words “salary or compensation” mean remuneration actually received by a member, plus the member’s deferred compensation under sections 125, 401(k), 414(h)(2) and 457 of the United States Internal Revenue Code of 1986, as amended: Provided, That the remuneration received by the member during any 12-consecutive-month period used in determining benefits which is in excess of an amount which is 20 percent greater than the “average adjusted salary” received by the member in the two consecutive 12-consecutive-month periods immediately preceding the 12-consecutive-month period used in determining benefits shall be disregarded: Provided, however, That the “average adjusted salary” means the arithmetic average of each year’s adjusted salary, the adjustment made to reflect current salary rate and such average adjusted salary shall be determined as follows: Assuming “year-one” means the second 12-consecutive-month period preceding such 12-consecutive-month period used in determining benefits, “year-two” means the 12-consecutive-month period immediately preceding the 12-consecutive-month period used in determining benefits and “year-three” means the 12-consecutive-month period used in determining benefits, year-one total remuneration shall be multiplied by the ratio of year-three base salary, exclusive of all overtime and other remuneration, to year-one base salary, exclusive of all overtime and other remuneration, such product shall equal “year-one adjusted salary”; year-two total remuneration shall be multiplied by the ratio of year-three base salary, exclusive of all overtime and other remuneration, to year-two base salary, exclusive of all overtime and other remuneration, such product shall equal “year-two adjusted salary”; and the arithmetic average of year-one adjusted salary and year-two adjusted salary shall equal the average adjusted salary. For inclusion in base salary or overtime and other remuneration, any payments to a member shall have pension deductions withheld from the payment to the member.

(2) “Base salary” means the pay the member receives for his or her regularly scheduled shift. The regularly scheduled shift includes all scheduled hours, all scheduled overtime hours, all holiday pay received by the member during the regularly scheduled shift, and hours of paid leave taken in lieu of work. Base salary also includes longevity pay for years of service, pay for perfect attendance, and any hourly adjustments for position title or special skill sets.

(3) “Overtime and other remuneration” mean all unscheduled hours worked which includes any hours not on the member’s regular work schedule paid at straight time rates and or overtime rates, all payouts of accrued paid time off not used in lieu of work (i.e. payouts of accrued holiday hours, compensatory time, vacation time, sick time), and any bonuses granted and paid to the member. Any payment to a member that is not part of the member’s regularly scheduled work cycle is overtime and other remuneration. Any other payments to members where pension deductions are made that do not meet the definition of base salary.

(e)(1) Any municipality, as that term is defined in §8-1-2 of this code, or municipal subdivision as defined in §8-22A-2 of this code may, by a majority vote of its governing body, close its existing policemen’s or firemen’s pension and relief fund to employees newly hired on or after January 1, 2010, if the municipality enrolls those newly hired police officers or firefighters in a retirement plan created in §8-22A-1 et seq. of this code and approved and administered by the West Virginia Consolidated Public Retirement Board. On and after July 1, 2010, no new policemen’s or firemen’s pension and relief fund may be established under this section. A Class I or Class II municipality forming a new paid police department or paid fire department after June 30, 2010, shall, notwithstanding the provisions of §8-22A-2 of this code, enroll the department members in the Municipal Police Officers and Firefighters Retirement System established in §8-22A-1 et seq. of this code.

(2) Any municipality using the alternative method of financing that elects to close an existing pension and relief fund to new hires pursuant to this subsection shall also adopt either the optional method of financing the unfunded actuarial accrued liability of the existing policemen’s or firemen’s pension and relief fund as provided in §8-22-20(e) of this code, or the conservation method as provided in §8-22-20 (f) of this code: Provided, That after July 1, 2023, any municipality using the alternative method of financing that elects to close an existing pension and relief fund to new hires shall adopt either the optional method of financing as provided in §8-22-20(e) of this code, or the optional-II method of financing as provided in §8-22-20(g) of this code to finance the unfunded actuarial accrued liability of the existing policemen’s or firemen’s pension and relief fund.

(3) Except as provided in §8-22A-32 of this code, if the qualifying municipality elects to close enrollment in an existing municipal pension and relief fund to newly hired police officers and firefighters pursuant to this section, all current active members, retirees, and other beneficiaries covered by the existing policemen’s or firemen’s pension and relief fund shall remain covered by that plan and shall be paid all benefits of that plan in accordance with Part III of this article.

§8-22-16a. Legislative findings.

The Legislature finds that prudence often dictates a review of well meaning actions previously taken. The Legislature further finds that implementation of the cost of living benefit enacted during the one thousand nine hundred ninety regular legislative session would be disadvantageous to members of the municipal policemen and firemen pension funds and municipal budgets due to the large cost associated with that benefit and that this fact was unknown at the time of enactment of the cost of living benefit. The Legislature further finds that the fiscal integrity of the various municipal policemen and firemen pension funds will be in extreme jeopardy if an alternative benefit is not enacted. The Legislature further finds that maintenance of an actuarially sound pension system is incumbent upon the administrators of the various funds and is also incumbent upon the Legislature when it enacts changes to the benefit structure. The Legislature further finds that the implementation of the cost of living benefit enacted in the one thousand nine hundred ninety regular legislative session would prevent the maintenance of an actuarially sound pension system and would jeopardize the interests of the members of the retirement funds, therefore, it is necessary to amend the cost of living benefit as previously enacted.

§8-22-17. Powers and duties of boards of trustees; training.

(a) Boards of trustees shall be public corporations by the name and style of "The Board of Trustees of the Policemen's Pension and Relief Fund of (name of municipality)", or "The Board of Trustees of the Firemen's Pension and Relief Fund of (name of municipality)", as the case may be, by which names they may sue and be sued, plead and be impleaded, contract and be contracted with, take and hold real and personal property for the use of the policemen's pension and relief fund or the firemen's pension and relief fund and have and use a common seal. In the absence of a seal, the seal of the president of the corporation shall be equivalent to a common seal. A board of trustees may also in its corporate name do and perform any and all other acts and business pertaining to the trust created hereby or by any conveyance, devise or dedication made for the uses and purposes of the board.

(b) After June 30, 1981, any board of trustees and any members of a board shall, as fund fiduciaries, discharge their duties with respect to pension and relief funds solely in the interest of the members and members' beneficiaries for the exclusive purpose of providing benefits to members and their beneficiaries and defraying reasonable expenses of administering the fund.

(c) The board of trustees of each fund shall deliver a copy of the fund's current rules, regulations and procedures to the State Treasurer or oversight board established by section eighteen-a of this article on or before March 1, 2010, and thereafter within thirty days of any approved change in the rules, regulations or procedures.

(d) Each member of a board of trustees shall attend training in matters relating to trustee duties as may be required by the oversight board pursuant to section eighteen-a of this article.

§8-22-18. Members of board of trustees; how elected; presiding officers; secretary.

(a) The Board of Trustees of the Policemen’s Pension and Relief Fund shall consist of the mayor of the municipality and four members of the paid police department, to be chosen as hereinafter in this section specified. The mayor of such municipality shall give notice of an election to be held on the second Monday of the month following the adoption of the ordinance providing for the establishment and maintenance of such fund, which notice shall be served upon each member of the paid police department and which shall notify each member that between the hours of 9:00 a.m. and 6:00 p.m., on the day designated for such election, an election will be held for such purpose and that each member shall furnish in writing the names of four members of the paid police department voted for; and all votes so cast shall be counted and canvassed by the mayor and the governing body for the first election, and thereafter the votes shall be counted by the then existing members of such board, who after such election shall announce the results, and the four members of the paid police department receiving the highest number of votes shall, with the mayor, constitute “The Board of Trustees of the Policemen’s Pension and Relief Fund of (name of municipality)”. As to the first election held following the adoption of the ordinance providing for the establishment and maintenance of such fund, the member receiving the highest number of votes shall serve for a period of four years, the member receiving the second highest number of votes shall serve for a period of three years, the member receiving the third highest number of votes shall serve for a period of two years and the member receiving the fourth highest number of votes shall serve for a period of one year.

(b) After the first election, the board shall hold a similar election each year to elect one member to succeed, for a term of four years, the retiring member. In the case of a tie vote being received by any two individuals for the office of trustee, such tie vote shall be decided by casting lots, or in any other way which may be agreed upon by the individuals for whom such tie vote was cast. The results of such election shall be entered in the record of the proceedings of the board and the members so elected shall, except as herein above specified with respect to the first election, serve for four years and until their successors are elected and have qualified. The election for such members of the board of trustees shall be held annually upon the second Monday of the same month during which the first election was held. In case of a vacancy by death or resignation among the members so elected, the remaining members of the board shall choose the successor, or successors, until the next annual election at which latter time all vacancies shall be filled: Provided, That in the case of an elected member retiring during his or her term, the retired member may continue to serve the remainder of his or her term.

(c) The Board of Trustees of the Firemen’s Pension and Relief Fund shall consist of the mayor of the municipality and four members of the paid fire department, to be chosen in the same manner and for such terms as is provided above in this section for the election of policemen to the policemen’s pension and relief fund board of trustees.

(d) The presiding officer of any such board of trustees shall be the mayor of the municipality and the secretary thereof shall be appointed by the board. It shall be the duty of such secretary to keep a full and permanent record of all of the proceedings of the board and said trustees may fix the secretary’s compensation for this work, which shall be paid out of the funds of said policemen’s pension and relief fund or firemen’s pension and relief fund, as the case may be.

(e) For all pension and relief funds closed after January 1, 2010, pursuant to §8-22-20(e) of this code and those closed after April 1, 2011, pursuant to §8-22-20(f) of this code, the boards shall continue to elect four trustees until there are no more beneficiaries to be paid from the fund. The electors of trustees for pension and relief funds closed after January 1, 2010, pursuant to §8-22-20(e) of this code and those closed after April 1, 2011, pursuant to §8-22-20(f) of this code are to include active police officers or firefighters as the case may be, as well as retired members of the pension fund. Trustees are elected in the same manner and for the same terms but may be members of the paid police or fire departments or retirees from the paid police or fire departments.

§8-22-18a. West Virginia Municipal Pensions Oversight Board created; powers and duties; management; composition; terms; quorum; expenses; reports.

(a)(1) The West Virginia Municipal Pensions Oversight Board, established in 2009, is hereby continued as a public body corporate for the purpose of monitoring and improving the performance of municipal policemen's and firemen's pension and relief funds to assure prudent administration, investment and management of the funds. Management of the oversight board shall be vested solely in the members of the oversight board. Duties of the oversight board shall include, but not be limited to, assisting municipal boards of trustees in performing their duties, assuring the funds' compliance with applicable laws, providing for actuarial studies, distributing tax revenues to the funds, initiating or joining legal actions on behalf of active or retired pension fund members or municipal boards of trustees to protect interests of the members in the funds and taking other actions as may be reasonably necessary to provide for the security and fiscal integrity of the pension funds. The oversight board's authority to initiate legal action does not preempt the authority of municipalities, municipal policemen's and firemen's boards of trustees or pension fund active members, beneficiaries or others to initiate legal action to protect interests in the funds. Further, the oversight board may, in its discretion, investigate the actions or practices of municipal boards of trustees or of their administrators or employees that, in the oversight board's judgment, have the potential to threaten the security or fiscal integrity of the pension funds, and the boards of trustees, administrators and employees shall cooperate with the oversight board in any investigation. Regardless of whether it has previously conducted an investigation, the oversight board may initiate or intervene in legal actions to challenge or prevent any action or practice which, in the oversight board's judgment, has the potential to threaten the security or fiscal integrity of the pension funds. Establishment of the oversight board does not relieve the municipal funds' boards of trustees from their fiduciary and other duties to the funds, nor does it create any liability for the funds on the part of the state. The failure of the oversight board to investigate or initiate legal actions regarding the actions or practices of municipal boards of trustees, their administrators or employees does not render the oversight board liable for the actions or practices. Members and employees of the oversight board are not liable personally, either jointly or severally, for debts or obligations of the municipal pension and relief funds. Except as otherwise provided herein, members and employees of the oversight board have a fiduciary duty toward the municipal pension and relief funds and are liable for malfeasance or gross negligence. Employees of the oversight board are classified-exempt state employees.

(2) The oversight board shall consist of nine members. The Executive Director of the state's Investment Management Board and the Executive Director of the state's Consolidated Public Retirement Board, or their designees, shall serve as voting ex officio members. The other seven members shall be citizens of the state who have been qualified electors of the state for a period of at least one year next preceding their appointment and shall be as follows: An active or retired member of a Municipal Policemen's Pension and Relief Fund chosen from a list of three persons submitted to the Governor by the state's largest professional municipal police officers organization, an active or retired member of a Municipal Firemen's Pension and Relief Fund chosen from a list of three persons submitted to the Governor by the state's largest professional firefighters organization, an attorney experienced in finance and investment matters related to pensions management, two persons experienced in pension funds management, one person who is a certified public accountant experienced in auditing and one person chosen from a list of three persons submitted to the Governor by the state's largest association of municipalities.

(3) On the effective date of the enactment of this section as amended during the fourth extraordinary session of the Legislature in 2009, the Governor shall forthwith appoint the members, with the advice and consent of the Senate. The Governor may remove any member from the oversight board for neglect of duty, incompetency or official misconduct.

(b) The oversight board has the power to:

(1) Enter into contracts, to sue and be sued, to implead and be impleaded;

(2) Promulgate and enforce bylaws and rules for the management and conduct of its affairs;

(3) Maintain accounts and invest those funds which the oversight board is charged with receiving and distributing. Investment of those funds may be with the Board of Treasury Investments or the Investment Management Board at the discretion of the oversight board;

(4) Make, amend and repeal bylaws, rules and procedures consistent with the provisions of this article and chapter thirty-three of this code;

(5) Notwithstanding any other provision of law, retain or employ, fix compensation, prescribe duties and pay expenses of legal, accounting, financial, investment, management and other staff, advisors or consultants as it considers necessary, including the hiring of legal counsel and actuary; and

(6) Do all things necessary and appropriate to implement and operate the board in performance of its duties. Expenses shall be paid from the moneys in the Municipal Pensions Security Fund created in section eighteen-b of this article or, prior to the transition provided in section eighteen-b of this article, the Municipal Pensions and Protection Fund: Provided, That the board may request special appropriation for special projects. The oversight board is exempt from provisions of article three, chapter five-a of this code for the purpose of contracting for actuarial services, including the services of a reviewing actuary.

(c) Except for ex officio members, the terms of oversight board members shall be staggered initially from January 1, 2010. The Governor shall appoint initially one member for a term of one year, one member for a term of two years, two members for terms of three years, one member for a term of four years and two members for terms of five years. Subsequent appointments shall be for terms of five years. A member serving two full consecutive terms may not be reappointed for one year after completion of his or her second full term. Each member shall serve until that member's successor is appointed and qualified. Any member may be removed by the Governor in case of incompetency, neglect of duty, gross immorality or malfeasance in office. Any vacancy on the oversight board shall be filled by appointment by the Governor for the balance of the unexpired term.

(d) A majority of the full authorized membership of the oversight board constitutes a quorum. The board shall meet at least quarterly each year, but more often as duties require, at times and places that it determines. The oversight board shall elect a chairperson and a vice chairperson from their membership who shall serve for terms of two years and shall select annually a secretary/treasurer who may be either a member or employee of the board. The oversight board shall employ an executive director and other staff as needed and shall fix their duties and compensation. The compensation of the executive director shall be subject to approval of the Governor. Except for any special appropriation as provided in subsection (b) of this section, all personnel and other expenses of the board shall be paid from revenue collected and allocated for municipal policemen's or municipal firemen's pension and relief funds pursuant to section fourteen-d, article three, chapter thirty-three of this code and distributed through the Municipal Pensions and Protection Fund or the Municipal Pensions Security Fund created in section eighteen-b of this article. Expenses during the initial year of the board's operation shall be from proceeds of the allocation for the municipal pensions and relief funds. Expenditures in years thereafter shall be by appropriation from the Municipal Pensions Security Fund. Money allocated for municipal policemen's and firemen's pension and relief funds to be distributed from the Municipal Pensions and Protection Fund or the Municipal Pensions Security Fund shall be first allocated to pay expenses of the oversight board and the remainder in the fund distributed among the various municipal pension and relief funds as provided in section fourteen-d, article three, chapter thirty-three of this code. The board is exempt from the provisions of sections seven and eleven, article three, chapter twelve of this code relating to compensation and expenses of members, including travel expenses.

(e) Members of the oversight board shall serve the board without compensation for their services: Provided, That no public employee member may suffer any loss of salary or wages on account of his or her service on the board. Each member of the board shall be reimbursed, on approval of the board, for any necessary expenses actually incurred by the member in carrying out his or her duties. All reimbursement of expenses shall be paid out of the Municipal Pensions Security Fund.

(f) The board may contract with other state boards or state agencies to share offices, personnel and other administrative functions as authorized under this article: Provided, That no provision of this subsection may be construed to authorize the board to contract with other state boards or state agencies to otherwise perform the duties or exercise the responsibilities imposed on the board by this code.

(g) The board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as necessary to implement the provisions of this article, and may initially promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code.

(h) The oversight board shall report annually to the Legislature's Joint Committee on Government and Finance and the Joint Committee on Pensions and Retirement concerning the status of municipal policemen's and firemen's pension and relief funds and shall present recommendations for strengthening and protecting the funds and the benefit interests of the funds' members.

(i) The oversight board shall cooperate with the West Virginia Investment Management Board and the Board of Treasury Investments to educate members of the local pension boards of trustees on the services offered by the two state investment boards. No later than October 31, 2013, the board shall report to the Joint Committee on Government and Finance and the Joint Committee on Pensions and Retirement a detailed comparison of returns on long-term investments of moneys held by or allocated to municipal pension and relief funds managed by the West Virginia Investment Management Board and those managed by others than the Investment Management Board. The oversight board shall also report at that time on short-term investment returns by local pension boards using the West Virginia Board of Treasury Investments compared to short-term investment returns by those local boards of trustees not using the Board of Treasury Investments.

(j) The oversight board shall establish minimum requirements for training to be completed by each member of the board of trustees of a municipal policemen's or firemen's pension and relief fund. The requirements should include, but not be limited to, training in ethics, fiduciary duty and investment responsibilities.

§8-22-18b. Creation of Municipal Pensions Security Fund; transfer of certain powers, duties and functions of Treasurer's office to Municipal Pensions Oversight Board.

(a) The Legislature finds that an important part of oversight of municipal policemen's and firemen's pension and relief funds is monitoring the performance required of the various funds to qualify to receive distribution of insurance premium tax revenues provided by section fourteen-d, article three, chapter thirty-three of this code. The duties and functions of the State Treasurer's office with respect to monitoring and distribution are transferred from the State Treasurer's office to the West Virginia Municipal Pensions Oversight Board effective January 1, 2010: Provided, That until the oversight board is fully organized and operating, some duties and functions being performed by the State Treasurer's office prior to January 1, 2010, may be continued by that office temporarily as necessary to effect an orderly transition of responsibilities and provide for prompt distribution of the insurance premium tax proceeds for expenses of the oversight board and to the municipal policemen's and firemen's pension and relief funds.

(b) There is hereby created in the State Treasury a nonexpiring special revenue fund designated the West Virginia Municipal Pensions Security Fund which shall be administered by the West Virginia Municipal Pensions Oversight Board solely for the purposes as provided in this article and article three, chapter thirty-three of this code. All earnings shall accrue to and be retained by the fund unless otherwise provided in this article.

(c) Until the oversight board advises the Insurance Commissioner and the State Treasurer in writing that the oversight board is prepared to receive into and distribute from the West Virginia Municipal Pensions Security Fund premium tax revenues as provided in section fourteen-d, article three, chapter thirty-three of this code and section seven, article twelve-c of said chapter, the commissioner shall continue to transfer the funds into the Municipal Pensions and Protection Fund and the State Treasurer shall continue to disburse funds to the qualifying municipal pension and relief funds, and shall disburse funds as necessary for the establishment and early operation of the oversight board. The Insurance Commissioner, the State Treasurer and oversight board shall share information freely as required for efficient transfer of powers and duties related to the premium tax revenues generated pursuant to chapter thirty-three of this code to be allocated to the municipal policemen's and firemen's pension and relief funds. When the oversight board assumes full responsibility to receive funds into and disburse funds from the Municipal Pensions Security Fund, the State Treasurer shall transfer to it all funds remaining in the Municipal Pensions and Protection Fund and close the Municipal Pensions and Protection Fund.

§8-22-18c. Notice of legal actions by or against municipal policemen's and firemen's pension funds.

In any legal action in which a municipal policemen's or firemen's pension and relief fund, or the fund's board of trustees, employee or administrator, is named as a party, the plaintiff or petitioner shall serve a copy of the complaint or petition upon the oversight board by certified mail, return receipt requested, within seven days of filing the legal action. Until proof of service is filed with the clerk of the court in which the action was filed, and for sixty days after the filing of the proof of service, no order may be entered by the court that directly or indirectly requires the expenditure or other disposition of pension funds or that determines the eligibility or entitlement of any member to any pension benefit payable from the pension and relief fund: Provided, That the court may enter such temporary or interim orders as may be needed to preserve and protect the assets of the fund. In any legal action involving a municipal policemen's or firemen's pension and relief fund the oversight board is entitled to intervene for the purpose of preserving the security or fiscal integrity of the pension fund.

§8-22-19. Levy to maintain fund.

(a)(1) In order for a municipal policemen’s or firemen’s pension and relief fund or the trustee of an issue of pension funding revenue bonds issued by the building commission of a municipality, as the case may be, to receive the allocable portion of moneys from the Municipal Pensions Security Fund created in § 8-22-18b of this code, the governing body of the municipality shall levy annually and in the manner provided by law for other municipal levies and include within the maximum levy or levies permitted by law and, if necessary, in excess of any charter provision, a tax at such rate as will, after crediting: (A) The amount of the contributions received during the year from the members of the respective paid police department or paid fire department; and (B) the allocable portion of the funds from the Municipal Pensions Security Fund created in §8-22-18b of this code payable to such municipality’s municipal policemen’s and firemen’s pension and relief funds, provide funds equal to the amount necessary to meet the minimum standards for actuarial soundness as provided in § 8-22-20 of this code. The amount deposited in a municipal policemen’s or firemen’s pension and relief fund shall be irrevocably contributed, accumulated, and invested as fund assets as described in §8-22-22 and §8-22-22a of this code. The amount deposited with the trustee of an issue of pension funding revenue bonds shall be used for the purpose of paying debt service on such bonds. One 12th of each municipality’s annual contributions shall be deposited with the municipality’s pension trust funds as fund assets on at least a monthly basis and any revenues received from any source by a municipality which are specifically collected for the purpose of allocation for deposit into the policemen’s pension and relief fund or firemen’s pension and relief fund shall be so deposited within five days of receipt by the municipality. A municipality may prepay its monthly required contributions in increments greater than 1/12. Heretofore surplus reserves accumulated before the effective date of this section shall be irrevocably contributed, aggregated, and invested as fund assets described in §8-22-22 and §8-22-22a of this code. Any actuarial deficiency arising under this section and §8-22-20 of this code shall not be the obligation of the State of West Virginia.

(2) The levies authorized under the provisions of this section, or any part of them, may by the governing body be laid in addition to all other municipal levies and, to that extent, beyond the limit of levy imposed by the charter of the municipality; and the levies shall supersede and if necessary exclude levies for other purposes, where other purposes have not already attained priority, and within the limitations on taxes or tax levies imposed by the constitution and laws.

(b) The public corporations are authorized to take by gift, grant, devise, or bequest any money or real or personal property on such terms as to the investment and expenditures thereof as may be fixed by the grantor or determined by the trustees.

(c) In addition to all other sums provided for pensions in this section, it is the duty of every municipality in which any fund or funds have been or shall be established to assess and collect from each member of the paid police department or paid fire department or both each month, the sum of seven percent of the actual salary or compensation of such member; and the amount so collected shall become a regular part of the policemen’s pension and relief fund, if collected from a policeman, and of the firemen’s pension and relief fund, if collected from a fireman: Provided, That for members of the funds who are police officers or firefighters newly hired on or after January 1, 2010, the municipality shall assess and collect nine and one-half percent of the actual salary or compensation. Only those funds for which the board of trustees has collected and paid the contributions as herein provided and meeting minimum standards for actuarial soundness shall be eligible to receive moneys from the additional fire and casualty insurance premium tax as provided in §33-3-14d of this code: Provided, however, That the board of trustees for each pension and relief fund may assess and collect from each member of the paid police department or paid fire department or both each month not more than an additional two and one-half percent of the actual salary or compensation of each member, but not to exceed nine and one-half percent total contribution: Provided further, That if any board of trustees decides to assess and collect any additional amount pursuant to this subdivision above the member contribution required by this section, then that board of trustees may not reduce the additional amount until the respective pension and relief fund no longer has any actuarial deficiency: And provided further, That if any board of trustees decides to assess and collect any additional amount, any board of trustees decision and any additional amount is not the liability of the State of West Virginia. Member contributions shall be deposited in the pension and relief fund within five days of being collected. In the event that a municipality’s building commission has issued pension funding revenue bonds, then the trustee for such bonds shall only be eligible to receive money from the additional fire and casualty insurance premium tax in §33-3-14d of this code if the board of trustees for the policemen’s and firemen’s pension and relief funds for which such bonds have been issued has collected and paid the contributions as herein provided and is meeting minimum standards for actuarial soundness.

(d)(1) For the fiscal year beginning on July 1, 2010, and subject to provisions of §8-22-18b and §33-3-14d of this code and for each fiscal year thereafter, the Municipal Pensions Oversight Board shall receive and retain the moneys allocated to the Municipal Pensions Security Fund until such time as the treasurer of the municipality applies for the allocable portion and certifies in writing to Municipal Pensions Oversight Board that:

(A) The municipality has irrevocably contributed the amount required under this section and §8-22-20 of this code to the pension and relief fund for the required period; and, as applicable, the trustee for the pension funding revenue bonds has filed with the governing body of the municipality and the oversight board a report showing all debt service payments have been made with previously received proceeds from the municipality and the allocable portion of the premium tax allocation received from the Municipal Pensions Security Fund for the preceding twelve months: and

(B) The board of trustees of the pension and relief fund has made a report to the governing body of the municipality and to the oversight board on the condition of its fund with respect to the fiscal year.

(2) When the aforementioned application and certification are made, the allocable portion of moneys from the Municipal Pensions Security Fund shall be paid to the corresponding policemen’s or firemen’s pension and relief fund or, if pension funding revenue bonds have been issued by such municipality’s building commission and remain outstanding, to the trustee for such pension funding revenue bonds. Payment to a municipal pension and relief fund or to the trustee for pension funding revenue bonds, as applicable, shall be made by electronic funds transfer.

(e) The State Auditor and the oversight board have the power, and the duty as each considers necessary, to perform or review audits on the pension and relief funds or to employ an independent consulting actuary or accountant to determine the compliance of the aforementioned certification with the requirements of this section and §8-22-20 of this code. The expense of the audit or determination shall be paid from the Municipal Pensions Security Fund pursuant to provisions of §8-22-18b of this code. If the allocable portion of the Municipal Pensions Security Fund is not paid to the pension and relief fund or to the trustee for pension funding revenue bonds, as applicable, within 18 months, the portion is forfeited by the pension and relief fund and is allocable to other eligible municipal policemen’s and firemen’s pension and relief funds in accordance with §33-3-14d of this code.

§8-22-19a. Refunds of member contributions.

After January 1, 2010, any member of a paid police department or fire department who is removed or discharged or who before retirement on any retirement pension or disability pension severs his or her connection with said department, whether or not consecutive, shall, upon request, be refunded all pension and relief fund deductions made from the member's salary or compensation, but without interest from the fund. The refund shall come from the accounts which originally received the member deductions. For municipalities using the conservation method of funding, the member contributions are to be refunded from both the Municipal Pension and Relief Fund and the city benefit account, in the exact percentages that were initially deposited to the respective accounts. Any member who receives a refund and subsequently wishes to reenter his or her department shall not be allowed to reenter the department unless the police officer or firefighter repays to the pension and relief fund all sums refunded to him or her in a lump sum at the date of reentry, or by monthly payroll deductions within thirty-six months from the date he or she reenters the department, with interest at the rate of eight percent per annum. In the event such refund is made prior to January 1, 1981, and such member subsequently reenters the department such police officer or firefighter shall be allowed membership in such pension and relief fund; however, no credit may be allowed such member for any former service, unless such member repays to the pension and relief fund all sums refunded to the member within one year from the date the member reenters the department with interest at the rate of eight percent per annum: Provided, That for such member who receives such refund prior to January 1, 1980, interest may not be charged for more than three years. Any probationary member of a paid police or fire department who is not given an absolute appointment at the end of the member's probationary period shall, upon request, be refunded all pension and relief fund deductions made from the member's salary or compensation, but without interest. Any member contribution made in fiscal years beginning on July 1, 1981, and thereafter by any members of such fund, which is in excess of the percentages, required in section nineteen of this article of such member's salary or compensation as defined in section sixteen of this article, shall be refunded with eight percent interest to such member upon completion of the calculation of the member's retirement benefit.

§8-22-20. Actuary; actuarial valuation report; minimum standards for annual municipality contributions to the fund; definitions; actuarial review and audit.

(a) The West Virginia Municipal Pensions Oversight Board shall contract with or employ a qualified actuary to annually prepare an actuarial valuation report on each pension and relief fund. The selection of contract vendors to provide actuarial services, including the reviewing actuary as provided in subsection (c) of this section, shall be by competitive bid process but is specifically exempt from the purchasing provisions of §5A-3-1 et seq. of this code. The expense of the actuarial report shall be paid from moneys in the Municipal Pensions Security Fund. Uses of the actuarial valuations from the qualified actuary shall include, but not be limited to, determining a municipal policemen’s or firemen’s pension and relief fund’s eligibility to receive state money and to provide supplemental benefits.

(b) The actuarial valuation report provided pursuant to subsection (a) of this section shall consist of, but is not limited to, the following disclosures: (1) The financial objective of the fund and how the objective is to be attained; (2) the progress being made toward realization of the financial objective; (3) recent changes in the nature of the fund, benefits provided or actuarial assumptions or methods; (4) the frequency of actuarial valuation reports and the date of the most recent actuarial valuation report; (5) the method used to value fund assets; (6) the extent to which the qualified actuary relies on the data provided and whether the data was certified by the fund’s auditor or examined by the qualified actuary for reasonableness; (7) a description and explanation of the actuarial assumptions and methods; (8) an evaluation of each plan using the alternative funding method, to assess advantages of changing to other funding methods as provided in this article; and (9) any other information required in §8-22-20a of this code or that the qualified actuary feels is necessary or would be useful in fully and fairly disclosing the actuarial condition of the fund.

(c)(1) Except as provided in subsections (e), (f), and (g) of this section, beginning June 30, 1991, and thereafter, the financial objective of each municipality shall not be less than to contribute to the fund annually an amount which, together with the contributions from the members and, if no pension funding revenue bonds of a building commission of such municipality are outstanding, the allocable portion of the Municipal Pensions and Protection Fund for municipal pension and relief funds established under §33-3-14d of this code or a municipality’s allocation from the Municipal Pensions Security Fund created in §8-22-18b of this code and other income sources as authorized by law will be sufficient to meet the normal cost of the fund and amortize any actuarial deficiency over a period of not more than forty years beginning from July 1, 1991: Provided, That in the fiscal year ending June 30, 1991, the municipality may elect to make its annual contribution to the fund using an alternative contribution in an amount not less than: (i) One hundred seven percent of the amount contributed for the fiscal year ending June 30, 1990; or (ii) an amount equal to the average of the contribution payments made in the five highest fiscal years beginning with the fiscal year ending 1984, whichever is greater: Provided, however, That contribution payments in subsequent fiscal years under this alternative contribution method may not be less than 107 percent of the amount contributed in the prior fiscal year: Provided further, That in order to avoid penalizing municipalities and to provide flexibility when making contributions, municipalities using the alternative contribution method may exclude a one-time additional contribution made in any one year in excess of the minimum required by this section: And provided further, That the governing body of any municipality may elect to provide an employer continuing contribution of one percent more than the municipality’s required minimum under the alternative contribution plan authorized in this subsection: And provided further, That if any municipality decides to contribute an additional one percent, then that municipality may not reduce the additional contribution until the respective pension and relief fund no longer has any actuarial deficiency: And provided further, That any decision and any contribution payment by the municipality is not the liability of the State of West Virginia: And provided further, That if any municipality or any pension fund board of trustees makes a voluntary election and thereafter fails to contribute the voluntarily increase as provided in this section and in §8-22-19(c) of this code, then the board of trustees is not eligible to receive funds allocated under §33-3-14d of this code: And provided further, That prior to using this alternative contribution method the actuary of the fund shall certify in writing that the fund is projected to be solvent under the alternative contribution method for the next consecutive 15-year period. For purposes of determining this minimum financial objective: (i) The value of the fund’s assets shall be determined on the basis of any reasonable actuarial method of valuation which takes into account fair market value; and (ii) all costs, deficiencies, rate of interest and other factors under the fund shall be determined on the basis of actuarial assumptions and methods which, in aggregate, are reasonable (taking into account the experience of the fund and reasonable expectations) and which, in combination, offer the qualified actuary’s best estimate of anticipated experience under the fund: And provided further, That any municipality which elected the alternative funding method under this section and which has an unfunded actuarial liability of not more than 25 percent of fund assets, may, beginning September 1, 2003, elect to revert to the standard funding method, which is to contribute to the fund annually an amount which is not less than an amount which, together with the contributions from the members and, if no pension funding revenue bonds of a building commission of such municipality are outstanding, the allocable portion of the Municipal Pensions and Protection Fund for municipal pension and relief funds established under §33-3-14d of this code and other income sources as authorized by law, will be sufficient to meet the normal cost of the fund and amortize any actuarial deficiency over a period of not more than 40 years, beginning from July 1, 1991.

(2) No municipality may anticipate or use in any manner any state funds accruing to the police or fireman’s pension fund to offset the minimum required funding amount for any fiscal year.

(3) Notwithstanding any other provision of this section or article to the contrary, each municipality shall contribute annually to its policemen’s pension and relief fund and its firemen’s pension and relief fund an amount which may not be less than the normal cost, as determined by the annual actuarial valuation report required by this section: Provided, That in any fiscal year in which the actuarial valuation report determines that a municipality’s policemen’s pension and relief fund or firemen’s pension and relief fund is funded at 125 percent or higher and the Municipal Pensions Oversight Board’s actuary provides an actuarial recommendation that the normal cost does not need to be paid by the employer for that fiscal year, that municipality may elect to make no contribution for that fiscal year. A municipality’s election not to contribute the normal cost in any year does not affect the payments required by §8-22-19 of this code by members to a pension and relief fund and these payments are to continue as required by that section.

(4) The actuarial process, which includes the selection of methods and assumptions, shall be reviewed by the qualified actuary no less than once every five years. Furthermore, the qualified actuary shall provide a report to the oversight board with recommendations on any changes to the actuarial process.

(5) The oversight board shall hire an independent reviewing actuary to perform an actuarial audit of the work performed by the qualified actuary no less than once every seven years.

(d) For purposes of this section, the term "qualified actuary" means only an actuary who is a member of the Society of Actuaries or the American Academy of Actuaries. The qualified actuary shall be designated a fiduciary and shall discharge his or her duties with respect to a fund solely in the interest of the members and members’ beneficiaries of that fund. In order for the standards of this section to be met, the qualified actuary shall certify that the actuarial valuation report is complete and accurate and that in his or her opinion the technique and assumptions used are reasonable and meet the requirements of this section.

(e)(1) Beginning January 1, 2010, municipalities may choose the optional method of financing municipal policemen’s or firemen’s pension and relief funds as outlined in this subsection in lieu of the standard or alternative methods as provided in subdivision (1), subsection (c) of this section or the conservation method of financing as outlined in subdivision (1), subsection (f) of this section.

(2) For those municipalities choosing the optional method of finance, the minimum standard for annual municipality contributions to each policemen’s or firemen’s pension and relief fund shall be an amount which, together with the contributions from the members and, if no pension funding revenue bonds of a building commission of such municipality are outstanding, the allocable portion of the Municipal Pensions Security Fund created in §8-22-18b of this code, and other income sources as authorized by law, will be sufficient to meet the normal cost of the fund and amortize any actuarial deficiency over a period of not more than 40 years beginning January 1, 2010: Provided, That those municipalities using the standard method of financing in 2009 shall continue to amortize their actuarial deficiencies over a period of not more than 40 years beginning July 1, 1991. The required contribution shall be determined each plan year as described above by the actuary retained by the oversight board, based on an actuarial valuation reflecting actual demographic and investment experience and consistent with the Actuarial Standards of Practice published by the Actuarial Standards Board.

(3) A municipality choosing the optional method of financing a policemen’s or firemen’s pension and relief fund as provided in this subsection shall close the fund to police officers or fire fighters newly hired on or after January 1, 2010, and provide for those employees to be members of the Municipal Police Officers and Firefighters Retirement System as established in §8-22A-1 et seq., of this code.

(f)(1) Beginning April 1, 2011, any municipality using the alternative method of financing may choose a conservation method of financing its municipal policemen’s and firemen’s pension and relief funds as outlined in this subsection, in lieu of the alternative method as provided in subdivision (1), subsection (c), or the optional method as provided in subsection (e) of this section. Effective July 1, 2023, the conservation method of financing shall no longer be able to be chosen by a municipality using the alternative method of financing its municipal policemen’s and firemen’s pension and relief funds.

(2) For those municipalities choosing the conservation method of finance, until a plan is funded at 100 percent a part of each plan member’s employee contribution to the fund equal to one and one-half percent of the employee’s compensation, shall be deposited into and remain in the trust and accumulate investment return. In addition, until a plan is funded at 100 percent and all pension funding revenue bonds issued by a municipality’s building commission are paid in full, an actuarially determined portion of the premium tax allocation to each fund provided in accordance with §33-3-14d and §33-12C-7 of this code shall also be deposited into and remain in the trust and accumulate investment return. This variable percentage of premium tax allocation to be retained in each fund shall be determined annually by the qualified actuary provided pursuant to subsection (a) of this section to be an amount required, along with other assets of the fund as necessary to reach a funded level of 100 percent in 35 years from the time of adoption of the conservation financing method. The variable percentage shall be calculated using a prospective four-year rolling average.

(3) Upon adoption of the conservation method of finance, the municipality shall close its pension and relief funds to new members and shall place police officers and firefighters newly hired after adoption of the conservation method into the Municipal Police Officers and Firefighters Retirement System created in §8-22A-1 et seq. of this code.

(4) Upon adoption of the conservation method of financing, the minimum standard for annual municipality contributions to each policemen’s or firemen’s pension and relief fund shall be an amount which, together with member contributions and premium tax proceeds not required to be retained in the trust pursuant to this subsection, and if no pension funding revenue bonds of a building commission of such municipality are outstanding, and other income sources as authorized by law, is sufficient to meet the annual benefit and administrative expense payments from the funds on a pay-as-you-go basis: Provided, That at the time the actuarial report required by this section indicates no actuarial deficiency in the municipal policemen’s or firemen’s pension and relief fund, the minimum annual required contribution of the municipality may not be less than an amount which together with all member contributions and other income authorized by law, is sufficient to pay normal cost.

(5) If a municipality using the conservation method fully funds its pension and relief fund or funds by a pension funding program authorized by §8-33-4a of this code, then the trustees of the policemen’s or firemen’s pension and relief fund are to pay pension obligations out of the pension and relief fund; and the minimum standard for annual municipality contributions to each policemen’s or firemen’s pension and relief fund shall be an amount which, together with member contributions and other income sources as authorized by law, is sufficient to meet the normal cost of the fund.

(g)(1) Beginning July 1, 2023, any municipality using the alternative method of financing provided in subdivision (1), subsection (c) of this section, or the conservation method of financing provided in subdivision (1), subsection (f) of this section, may choose to convert to the optional method of financing provided in subdivision (1), subsection (e) of this section, or the optional-II method of financing its municipal policemen’s and firemen’s pension and relief funds as provided in this subsection, in lieu of the method of financing it is currently using.

(2) For those municipalities choosing the optional-II method of finance, the minimum standard for annual municipality contributions to each policemen’s or firemen’s pension and relief fund shall be an amount which, together with the contributions from the members and, if no pension funding revenue bonds of a building commission of such municipality are outstanding, the allocable portion of the Municipal Pensions Security Fund created in §8-22-18b of this code, and other income sources as authorized by law, will be sufficient to meet the normal cost of the fund and amortize any actuarial deficiency over a period of not more than 40 years beginning July 1, 2023. The required contribution shall be determined each plan year as described in subsections (b) and (d) of this section by the actuary retained by the oversight board, based on an actuarial valuation reflecting actual demographic and investment experience and consistent with the Actuarial Standards of Practice published by the Actuarial Standards Board.

(h) Beginning with the July 1, 2020, actuarial valuation, the existing actuarial deficiency, prior to reflecting any new gains or losses as of July 1, 2020, such as those due to investment experience, differences between actual and expected contributions, demographic experience, and changes to actuarial assumptions, shall continue to be amortized as required by subsections (c) and (e) of this section: Provided, That on July 1, 2020, and each successive annual valuation date thereafter, the annual impacts on the funding deficiency due to: (i) New gains or losses on assets and liabilities; and (ii) changes in actuarial assumptions, shall each be amortized over a closed period of 15 years, thereby creating layers of amortization bases rather than amortizing the entire actuarial deficiency over the same single and decreasing period: Provided, however, That impacts on the funding deficiency due to plan changes shall be amortized over closed five year periods. The management of these amortization bases by the actuary should entail the consideration, at least every five years, of whether to implement strategies, such as the synchronization of certain amortization layers, to help avoid volatility to the sum of the amortization payments generally resulting from the expiration of charge and credit layers at different times. The required contribution shall be determined each plan year as described above by the actuary retained by the oversight board, based on an actuarial valuation reflecting actual demographic and investment experience and consistent with the Actuarial Standards of Practice published by the Actuarial Standards Board.

(i) Notwithstanding the foregoing until any pension funding revenue bonds issued by a municipality’s building commission are paid in full, the allocable portion of money from the Municipal Pension Security Fund from the premium tax allocation for such municipality’s policemen’s and firemen’s pension and relief funds, as applicable, shall be deposited pursuant to §8-22-19(d)(2) with the trustee for the pension funding revenue bonds and shall not be deposited into the applicable policemen’s or firemen’s pension and relief funds of such municipality.

§8-22-20a. Hiring of actuary; preparation of actuarial valuations.

(a)(1) The Legislature finds that it is in the best interests of the state and its municipalities to have accurate data regarding the various municipal police and firemen's pension and relief funds.

(2) The Legislature finds that the State Treasurer should contract with an actuary as a consultant for the municipal police and firemen's pension and relief funds and among other duties the actuary shall determine if there is consistent reporting from the various funds. The Legislature further finds that the State Treasurer or oversight board should share the results of the actuary's annual valuation with the appropriate municipality.

(b) Except as hereinafter provided, beginning July 1, 2002, the State Treasurer shall select by competitive bid and contract with a single qualified actuary. The actuary shall serve as a consultant to the Treasurer with regard to the operation of the municipal policemen's and firemen's pension and relief funds and shall report annually to the Treasurer with regard to all funds existing in this state by virtue of this article. Costs associated with the actuary's work shall be paid out of the Municipal Pensions and Protection Fund established pursuant to section fourteen-d, article three, chapter thirty-three of this code. The State Treasurer shall provide the single qualified actuary until the oversight board assumes the duty of providing for the actuary. Thereafter, it shall be the duty of the Municipal Pensions Oversight Board to contract for or to employ the single qualified actuary which, at a minimum, shall serve as a consultant to the oversight board and report annually to the oversight board with regard to all municipal policemen's and firemen's pension and relief funds existing in this state by virtue of this article, and which shall be paid from moneys deposited in the Municipal Pensions Security Fund. Copies of the annual report prepared by the actuary shall be sent to the Joint Committee on Government and Finance, the chair of the House of Delegates Committee on Pensions and Retirement and the chair of the Senate Committee on Pensions. Each municipal pension and relief fund shall receive a copy of the actuary's results related to that fund.

(c) With respect to each municipal policemen's or firemen's pension and relief fund, the actuary shall complete an annual valuation in accordance with actuarial standards of practice promulgated by the actuarial standards board of the American Academy of Actuaries. The report of the valuation shall include: (1) A summary of the benefit provisions evaluated; (2) a summary of the census data and financial information used in the valuation; (3) a description of the actuarial assumptions, actuarial costs method and asset valuation method used in the valuation, including a statement of the assumed rate of payroll growth and assumed rate of growth or decline in the number of the fund members' contributions to the pension fund; (4) a summary of findings that includes a statement of the actuarial accrued pension liabilities and unfunded actuarial accrued pension liabilities; (5) a schedule showing the effect of any changes in the benefit provisions, actuarial assumptions or cost methods since the last annual actuarial valuation; (6) a statement of whether contributions to the pension fund are in accordance with the provisions of this chapter and whether they are expected to be sufficient; and (7) any other matters determined by the Treasurer or, on or after January 1, 2010, the oversight board, to be necessary or appropriate.

(d)(1) The hiring of an actuary under the provisions of this section shall not be construed to make the municipal policemen's and firemen's pension and relief funds the responsibility or obligation of the State of West Virginia.

(2) Any actuarial deficiency identified by the actuary under this section or this article is not an obligation of the State of West Virginia.

§8-22-21. Duties and bond of custodian of funds.

The treasurer of the municipality shall be the custodian of all of the assets of the policemen's pension and relief fund and firemen's pension and relief fund, and shall deposit and pay out the moneys thereof upon, and in accordance with, any proper order of the board of trustees. Such treasurer shall be liable upon his official bond as treasurer for the faithful performance of his duties in respect to such fund or funds, and the official bond of the treasurer covering such fund or funds shall be executed with a good and financially responsible surety company authorized to do business in this state, as surety for such fund or funds. The treasurer of the municipality shall as a fund fiduciary, discharge his duties with respect to such pension and relief fund solely in the interest of the members and members' beneficiaries for the exclusive purpose of providing benefits to such members and their beneficiaries and defraying reasonable expenses of administering the fund. Such fund or funds shall be trust funds and shall not be used for any other purpose than provided herein. Such treasurer shall keep in convenient form such data as may be necessary for an actuarial valuation report of such fund and for checking the actuarial experience of such fund.

§8-22-22. Investment of funds by boards of trustees; exercise of discretion in making investments; report of investment plan.

(a) The board of trustees may invest a portion or all of the fund assets in any of the pools, funds and securities managed by the West Virginia Investment Management Board or West Virginia Board of Treasury Investments or as otherwise provided in this section. The board of trustees shall keep as an available sum for the purpose of making regular retirement, disability retirement, death benefit, payments and administrative expenses in an estimated amount not to exceed payments for a period of ninety days in short-term investments. The board of trustees, in acquiring, investing, reinvesting, exchanging, retaining, selling and managing property for the benefit of the fund, shall do so in accordance with the provisions of the Uniform Prudent Investor Act codified as article six-c, chapter forty-four of this code. Within the limitations of the Uniform Prudent Investor Act, the board of trustees is authorized in its sole discretion to invest and reinvest any funds received by it and not invested with the West Virginia Investment Management Board or West Virginia Board of Treasury Investments.

(b) The board of trustees of each fund may delegate investment authority to professional investment advisors registered with the Securities and Exchange Commission, in accordance with the Investment Advisors Act of 1940, and registered with the appropriate state regulatory agencies, if applicable, and who manage assets in excess of $75 million.

(c) The board of trustees of each fund shall deliver to the State Treasurer or oversight board on or before March 1, 2010, a copy of the pension and relief fund's investment policy. A board of trustees shall submit to the oversight board any change to the investment policy within thirty days of the board's authorizing the change.

§8-22-22a. Restrictions on investments; diversification of investments; disclosure of fees and costs.

(a) Moneys invested as permitted by section twenty-two of this article and not invested with the West Virginia Investment Management Board or the Board of Treasury Investments are subject to the following restrictions and conditions contained in this section:

(1) The board of trustees of each fund shall diversify fund investment so as to minimize the risk of large losses unless, under the circumstances, it is clearly prudent not to do so.

(2) The board shall hold in equity investments no more than seventy-five percent of the total pension assets managed by the board.

(3) The board shall hold in international securities no more than thirty percent of the total pension assets managed by the board.

(4) The board may not at the time of purchase hold more than five percent of the assets managed by the board in the equity securities of any single company or association.

(5) The board may purchase any security trading on the New York Stock Exchange, the American Stock Exchange and the NASDAQ over-the-counter market for its pension portfolio unless it is otherwise restricted by this section. No more than twenty-five percent of the board's total retirement plan assets may be invested in any one industry.

(6) The board shall annually review, establish and modify, if necessary, the board's investment objectives and investment policy so as to provide for the financial security of the trust funds giving consideration to the following:

(A) Preservation of capital;

(B) Diversification;

(C) Risk tolerance;

(D) Rate of return;

(E) Stability;

(F) Turnover;

(G) Liquidity; and

(H) Reasonable cost of fees.

(7) The board is expressly prohibited from investing in any class, style or strategy of alternative investments, including a real estate investment trust, private equity fund such as a venture capital, private real estate or buy-out fund; commodities fund; distressed debt fund; mezzanine debt fund; hedge fund; or fund consisting of any combination of private equity, distressed or mezzanine debt, hedge funds, private real estate, commodities and other types and categories of investment permitted under this article unless the investments satisfy all of the following:

(A) A professional third-party fiduciary investment adviser registered with the Securities and Exchange Commission under the Investment Advisors Act of 1940, as amended, recommends the investment;

(B) The board or a committee designated by the board approves the investment;

(C) The total maximum alternative investment exposure of all strategies in this subdivision may not be more than twenty-five percent of the total pension portfolio at any time;

(D) The total maximum alternative investment exposure of a single fund strategy in this subdivision may not be more than ten percent of the total pension portfolio at any time; and

(E) The board requires that all of the plan assets be invested in liquid securities that are defined as securities that can be transacted quickly and efficiently for the plan, priced daily and settled within five business days.

(8) Notwithstanding the investment limitations set forth in this section, it is recognized that the assets managed by the board may temporarily exceed the investment limitations in this section due to market appreciation, depreciation and rebalancing limitations. Accordingly, the limitations on investments set forth in this section shall not be considered to have been violated if the board rebalances the assets it manages to comply with the limitations set forth in this section at least once every twelve months based on the latest available market information and any other reliable market data that the board considers advisable to take into consideration.

(9) The board shall hold in fixed income and cash equivalent investments no less than twenty-five percent and no more than seventy-five percent of total pension assets. No more than five percent may be held in one issuer or twenty-five percent in one industry: Provided, That the board may exceed this limitation if the investments are held in United States securities.

(10) Fixed income securities shall be of generally high quality and have a quality rating of "B-" or better by Moody's, Standard & Poor's, or other recognized agency, unless held by a registered investment advisor and governed by prospectus. The total fixed income portfolio shall have an average Standard & Poor's quality rating of at least "A-". For registered mutual funds, the prospectus of the fund will govern the investment policies of the fund investments.

(11) The maximum maturity for any fixed income securities is thirty years. The weighted average portfolio maturity of all fixed income securities may not exceed ten years.

(12) The board is authorized in its sole discretion to invest and reinvest any funds received by it in the following fixed income securities:

(A) Obligations issued by the U. S. government, its agencies and instrumentalities;

(B) Obligations of foreign governments and their subdivisions, agencies and government-sponsored enterprises;

(C) Obligations of international agencies or supranational entities;

(D) Mortgage-related and other asset-backed securities;

(E) Corporate debt securities, including convertible securities and corporate commercial paper;

(F) Inflation-index bonds issued by corporations;

(G) Bank certificates of deposit, fixed time deposits and bankers acceptances; and

(H) Debt securities, issued by states or local governments and their agencies, authorities and other instrumentalities.

(13) The board is authorized in its sole discretion to invest and reinvest any funds received by it in the following cash and cash equivalents:

(A) Treasury bills;

(B) Money market funds;

(C) Short-term investment funds;

(D) Commercial paper;

(E) Bankers' acceptances;

(F) Repurchase agreements; and

(G) Certificates of deposit.

(14) Investments in cash equivalents shall be of the highest quality and , if rated, shall be ranked at least A2/P2 or higher.

(b) The board of trustees of each fund shall obtain an independent performance evaluation of the funds at least annually and the evaluation shall consist of comparisons with other funds having similar investment objectives for performance results with appropriate market indices; and

(c) Each entity conducting business for each pension fund shall fully disclose all fees and costs of investing conducted on a quarterly basis to the trustees of the fund and to the oversight board in the manner directed by the oversight board. Entities conducting business in mutual funds for and on behalf of each pension fund shall timely file revised prospectus and normal quarterly and annual Securities and Exchange Commission reporting documents with the board of trustees of each pension fund.

§8-22-23. Rules and regulations as to distribution of funds; proof of age.

The board of trustees of the policemen's pension and relief fund and the board of trustees of the firemen's pension and relief fund shall make rules and regulations, not inconsistent with the provisions of sections sixteen through twenty-eight of this article, for the distribution of the moneys of such funds according to the qualifications of those to whom any portion of such moneys shall be paid and the amount thereof: Provided, That such rules and regulations shall not be enforced until the same have been approved by the governing body.

At the time of the original appointment of any member to the paid police or fire department, such member shall, at the request of the board of trustees, furnish to said board a certified copy of his birth certificate or other proof of his date of birth satisfactory to the board.

§8-22-23a. Eligibility for total and temporary disability pensions and total and permanent disability pensions; reporting; light duty.

(a) All members applying for total and temporary or total and permanent disability benefits after June 30, 1981, shall be examined by at least two physicians under the direction of the staff at Marshall University, West Virginia University, Morgantown, or West Virginia University, Charleston: Provided, That if a member’s medical condition cannot be agreed on by the two physicians, a third physician shall examine the member: Provided, however, That beginning January 1, 2010, and continuing thereafter, a member applying for total and temporary or total and permanent disability benefits shall be examined by two physicians, one of which shall be chosen and paid by the member, and one of which shall be chosen and paid by the oversight board. If the two physicians disagree, the oversight board shall select and pay for a third examining physician: Provided further, That starting July 1, 2023, and continuing thereafter, the physician(s) chosen by the oversight board to perform the independent medical examination(s) may perform an in-person or virtual examination of a member’s physical or mental health, or both, or at the discretion of the oversight board, a medical record review of the member’s physical or mental health, or both. The selection of the method of examination is at the discretion of the oversight board in consultation with the physician.

(1) Disability benefits shall be awarded if in the opinion of two of the examining physicians the member is by reason of the disability unable to perform adequately the job duties required.

(2) Each medical examination shall include the review of the member’s medical history, but an examining physician may not have access to the disability examination report or disability recommendation of another physician.

(3) The physicians shall send copies of their reports to both the board of trustees of the member’s pension and relief fund and the oversight board.

(4) The expense of the member’s transportation to medical examinations shall be paid by the board of trustees. Medical expense shall not exceed the reasonable and customary charges for similar services.

(5) Beginning January 1, 2010, and thereafter, if a member is charged with an offense that has the potential to lead to the member’s termination, the member’s municipal pensions and relief fund board of trustees may not consider the member’s eligibility for disability benefits until after investigation of the charge is completed and any disciplinary decision is implemented.

(6) No later than January 1, 2011, and annually thereafter, each board of trustees shall report to the oversight board the total number of disability applications received during the prior fiscal year, the status of each application as of the end of the fiscal year, total applications granted and denied, and the percentage of disability-benefit recipients to the total number of active members of the fund.

(b) Effective for members becoming eligible for total and temporary disability benefits after June 30, 1981, initially or previously under this subsection allowance for initial or additional total and temporary disability payments, the amount thereof to be determined as specified in section twenty-four of this article shall be paid to the member during the disability for a period not exceeding 26 weeks if after a medical examination in accordance with subsection (a) of this section two examining physicians report in writing to the board of trustees that: (1) The member has become so totally, physically or mentally disabled, from any reason, as to render the member totally, physically or mentally, incapacitated for employment as a police officer or firefighter; and (2) it has not been determined if the disability is permanent or it has been determined that the disability may be alleviated or eliminated if the member follows a reasonable medical treatment plan or reasonable medical advice: Provided, That, in any event, a member is not eligible for total and temporary disability payments following the fourth consecutive 26-week period of total and temporary disability unless subsequent disability results from a cause unrelated to the cause of the four previous periods of total and temporary disability. During the two-year period of total and temporary disability, the department is required to restore the member to his or her former position in the department at any time the member is determined to no longer be disabled: Provided, however, That the department may refill, on a temporary basis, the position vacated by the member after the first 26 weeks of his or her temporary disability.

(c) Effective for members becoming eligible for total and permanent disability benefits initially under this subsection or becoming eligible for total and temporary disability benefits under subsection (b) of this section after June 30, 1981, allowance for total and permanent disability payments, the amount thereof to be determined as specified in section twenty-four of this article, shall be paid to the member after a medical examination in accordance with subsection (a) of this section, two examining physicians report in writing to the board of trustees that the member has become so totally, physically or mentally, and permanently disabled, as a proximate result of service rendered in the performance of his or her duties in the department, as to render the member totally, physically or mentally, and permanently incapacitated for employment as a police officer or firefighter or, if the member has been a member of either of the departments for a period of not less than five consecutive years preceding the disability, the member has become so totally, physically or mentally, and permanently disabled, from any reason other than service rendered in the performance of his or her duties in the department, as to render the member totally, physically or mentally, and permanently incapacitated for employment as a police officer or firefighter. The phrase "totally, physically or mentally, and permanently disabled" shall not be construed to include a medical condition which may be corrected if the member follows a reasonable medical treatment plan or reasonable medical advice.

(d) Effective for members becoming eligible for total and temporary disability benefits after June 30, 1981, under the provisions of subsection (b) of this section, any payments for total and temporary disability for a period during the disability not exceeding 26 weeks shall cease at the end of the 26-week period under the following conditions:

(1) The member fails to be examined as provided in subsection (a) of this section; or (2) the member is examined or reexamined as provided in said subsection and two examining physicians report to the board of trustees that the member’s medical condition does not meet the requirements of subsection (b) or (c) of this section. Effective for members becoming eligible for total and temporary disability benefits after June 30, 1981, under subsection (b) of this section, subsequent to the member’s receipt of total and temporary disability payments for a period of two years, the payments shall cease at the end of the two-year period under the following conditions: (A) The member fails to be examined as provided in subsection (a) of this section; or (B) the member is examined or reexamined as provided in said subsection and two examining physicians report to the board of trustees that the member’s medical condition does not meet the requirements of subsection (c) of this section.

(e) Notwithstanding other provisions of this section to the contrary, a member of a municipal policemen’s or firemen’s pension and relief fund who is found to be disabled from performing the full range of tasks relevant to police officer or firefighter employment, but capable of performing a restricted or light-duty police officer or firefighter job made available at the discretion of the employing municipality may choose to continue working and retain an active membership in his or her pension and relief fund.

§8-22-24. Disability pensions.

(a) The monthly sum to be paid to each member eligible for disability received as a proximate result of service rendered in the performance of his or her duties under the provisions of §8-22-23(a) of this code is equal to 60 percent of the monthly salary being received by the member, at the time he or she is so disabled, or the sum of $500 per month, whichever is greater: Provided, That the limitation provided in subsection (b) of this section is not exceeded.

(b) Effective for any member who becomes eligible for disability benefits on or after July 1, 1981, under the provisions of §8-22-23a of this code, as a proximate result of service rendered in the performance of the member’s duties within such departments, the member’s monthly disability payment as provided in subsection (a) of this section may not, when aggregated with the monthly amount of state workers’ compensation, result in the disabled member receiving a total monthly income from the sources in excess of 100 percent of the basic compensation which is paid to members holding the same position which the member held within the department at the time of the member’s disability. Lump sum payments of state workers’ compensation benefits are not considered for purposes of this subsection unless the lump sum payments represent commuted values of monthly state workers’ compensation benefits.

(c) Any member who has served on active duty with the armed forces of the United States as described in §8-22-27 of this code, whether prior or subsequent to becoming a member of a paid police or fire department covered by the provisions of this article, and who, on July 1, 1986, is receiving or thereafter receives a disability pension, shall receive in addition to the 60 percent or minimum $500 authorized in subsection (a) of this section, one additional percent for each year served in active military duty, up to a maximum of four additional percent.

(d) Beginning on and after April 1, 1991, the monthly sum to be paid to a member who becomes eligible for total disability incurred not in the line of duty is the monthly benefit provided in subsection (a) of this section: Provided, That for any person receiving benefits under this subsection who is self-employed or employed by another, there shall be offset against the benefits the amount of $1 for each $3 of income derived from self-employment or employment by another: Provided, however, That a person receiving disability benefits must file a certified copy of his or her tax return on or before April 15 of each year to demonstrate either unemployment or income earned from self-employment or employment by another. If the retirant refuses or is unable to provide the certified copy of his or her tax return by April 15 for the previous year, the trustees of the policemen’s pension and relief fund or firemen’s pension and relief fund shall hold the member’s monthly disability pension in abeyance until the retirant complies. If the retirant has completed an application for automatic extension of time to file U.S. individual tax return, a copy of the same must be submitted to the board. Thereupon, the member’s monthly disability pension shall continue to be paid. If the retirant then refuses or is unable to provide the certified copy of his or her tax return by October 15 for the previous year, the trustees of the policemen’s pension and relief fund or firemen’s pension and relief fund shall hold the member’s monthly disability pension in abeyance until the retirant complies: Provided further, That there is no offset of benefit for any income derived from self-employment or employment by another when the annual total amount of the income is $18,200 or less.

(e) The $18,200 limit in subsection (d) of this section shall be automatically increased when the minimum wage, as provided in §21-5C-2 of this code, increases by the same percentage of the increase in the minimum wage.

§8-22-25. Retirement pensions.

(a) Any member of a paid police or fire department who is entitled to a retirement pension hereunder, and who has been in the honorable service of such department for twenty years, may, upon written application to the board of trustees, be retired from all service in such department without medical examination or disability. On such retirement the board of trustees shall authorize the payment of annual retirement pension benefits commencing upon the member's retirement or upon the member's attaining the age of fifty years, whichever is later, payable in twelve monthly installments for each year of the remainder of the member's life, in an amount equal to sixty percent of such member's average annual salary or compensation received during the three twelve-consecutive-month periods of employment with such department in which such member received the member's highest salary or compensation while a member of the department, or an amount of $500 per month, whichever is greater.

(b) Any member of any such department who is entitled to a retirement pension under the provisions of subsection (a) of this section and who has been in the honorable service of such department for more than twenty years at the time of the member's retirement shall receive, in addition to the sixty percent authorized in said subsection (a):

(1) Two additional percent, to be added to the sixty percent for each of the first five additional years of service completed at the time of retirement in excess of twenty years of service up to a maximum of seventy percent; and

(2) One additional percent, to be added to such maximum of seventy percent, for each of the first five additional years of service completed at the time of retirement in excess of twenty-five years of service up to a maximum of seventy-five percent.

The total additional credit provided for in this subsection may not exceed fifteen additional percent.

(c) Any member of any such department whose service has been interrupted by duty with the armed forces of the United States as provided in section twenty-seven of this article prior to July 1, 1981, shall be eligible for retirement pension benefits immediately upon retirement, regardless of the member's age, if the member shall otherwise be eligible for such retirement pension benefits. In no event are provisions of this subsection to be interpreted to permit retirement before age fifty unless the interruption of the member's service by duty with the armed forces of the United States actually occurred before July 1, 1981. The amendment made to this subsection during the 2013 regular session of the Legislature is not for the purpose of changing the existing law regarding benefits provided to veterans for military service prior to July 1, 1981, but to further clarify that the provisions of this section and any previous enactments of this section do not make a member eligible for retirement before age fifty for a member's service with the armed forces of the United States after July 1, 1981.

Any member or previously retired member of any such department who has served in active duty with the armed forces of the United States as described in section twenty-seven of this article, whether prior to or subsequent to becoming a member of a paid police or fire department covered by the provisions of this article, shall receive, in addition to the sixty percent authorized in subsection (a) of this section and the additional percent credit authorized in subsection (b) of this section, one additional percent for each year so served in active military duty, up to a maximum of four additional percent. In no event, however, may the total benefit granted to any member exceed seventy-five percent of the member's annual average salary calculated in accordance with subsection (a) of this section.

(d) Any member of a paid police or fire department shall be retired at the age of sixty-five years in the manner provided in this subsection. When a member of the paid police or fire department reaches the age of sixty-five years, the said board of trustees shall notify the mayor of this fact, within thirty days of such member's sixty-fifth birthday. The mayor shall cause such sixty-five-year-old member of the paid police or fire department to retire within a period of not more than thirty additional days. Upon retirement under the provisions of this subsection, such member shall receive retirement pension benefits payable in twelve monthly installments for each year of the remainder of the member's life in an amount equal to sixty percent of such member's average annual salary or compensation received during the three twelve-consecutive-month periods of employment with such department in which such member received the member's highest salary or compensation while a member of the department, or an amount of $500 per month, whichever is greater. If such member has been employed in said department for more than twenty years, the provisions of subsection (b) of this section shall apply.

(e) It shall be the duty of each member of a paid police or fire department at the time a fund is hereafter established to furnish the necessary proof of the member's date of birth to the said board of trustees, as specified in section twenty-three of this article, within a reasonable length of time, said length of time to be determined by the said board of trustees. Then the board of trustees and the mayor shall proceed to act in the manner provided in subsection (d) of this section and shall cause all members of the paid police or fire department who are over the age of sixty-five years to retire in not less than sixty days from the date the fund is established. Upon retirement under the provisions of this subsection (e), such member, whether the member has been employed in said department for twenty years or not, shall receive retirement pension benefits payable in twelve monthly installments for each year of the remainder of the member's life in an amount equal to sixty percent of such member's average annual salary or compensation received during the three twelve-consecutive-month periods of employment with such department in which such member received the member's highest salary or compensation while a member of the department, or an amount of $500 per month, whichever is greater. If such member has been employed in said department for more than twenty years, the provisions of subsection (b) of this section shall apply.

§8-22-25a. Deferred retirement option plans; authorization; requirements; limitations.

(a) A deferred retirement option plan (DROP) is a method to encourage retention of a worker beyond normal retirement age by permitting the worker to freeze retirement benefits at a certain time prior to ceasing work, to continue to work for a specified period, and to have retirement benefits which accrue while the employee continues working set aside in an account which the worker will then receive in a lump sum upon finally discontinuing work. The Legislature acknowledges that a DROP may be a useful and economical tool for retaining experienced and trained employees and for planning for turnovers in the workforce. Experience, however, dictates that a DROP may place a heavy financial burden on the employer and the affected retirement system, negating any positive benefit offered by the DROP if the DROP is not carefully planned to be economically favorable to the employer and revenue neutral for the affected retirement system while remaining attractive to the targeted employee.

(b)(1) The governing bodies of municipalities participating in policemen’s and firemen’s pension and relief funds pursuant to §8-22-16 through §8-22-28 of this code, are authorized to voluntarily offer DROPs. A participating municipality may design and establish a DROP to best meet the municipality’s needs so long as the DROP complies with federal law, the requirements set forth in this section and be approved by the Municipal Pensions Oversight Board.

(2) Prior to approval by the Municipal Pensions Oversight Board, a municipality shall submit a proposed DROP to the board for analysis by the qualified actuary retained or employed by the board. The actuary shall examine the plan and, in light of the elements of the DROP and the actuarial projections of the impact of the DROP on the affected pension and relief fund, advise the board of the anticipated impact on the municipal pension and relief fund. The board shall seek to approve only those DROPs which, in the best judgment of the actuary, are designed to have no negative impact on the member’s pension and relief fund. The submitting municipality shall reimburse the board for actuarial costs of analyzing the plan.

(c) To be eligible to enter a DROP, the member of the policemen’s or firemen’s pension and relief fund must be in active employment and an active member of his or her pension and relief fund for at least six months beyond attaining eligibility for regular retirement as provided in §8-22-25 of this code and have received a satisfactory performance evaluation within the prior 12 months. The member may defer retirement for a period of not less than one nor more than five years but must complete the period by age 65. The member may elect to commence participation after July 1, 2011.

(d)(1) During the DROP participation period, the member shall continue with full-time employment in a covered position subject to the municipality’s requirements. A member’s retirement benefits are calculated as of the DROP participation date and a member may not accumulate additional retirement benefits during the DROP participation period. Upon beginning participation, the member is treated as retired and receiving benefits for purposes of the retirement system: Provided, That for the purpose of distributing premium tax proceeds required in §33-3-14d of this code, he or she shall be included in the calculation of the municipality’s average number of policemen or firemen for each month that he or she works at least one hundred hours. During the DROP participation period, the employer shall continue to make regular contributions to the employee’s pension and relief fund.

(2) Benefit payments are accumulated for the member in the pension and relief fund in an accumulation account during the DROP participation period. At the end of the participation period, the amount in the accumulation account owing to the member, plus interest not to exceed three and one-half percent, shall be paid to the member in a lump sum. Monthly retirement payments shall be paid directly to the member starting in the month following the end of the DROP participation period.

(3) A member may voluntarily terminate DROP participation early with 60 days’ advance notice. Deferred accumulated benefits will be paid with no interest for the DROP period and benefits payments will commence following the early termination date. Covered employment must terminate before benefit distributions may be made. Should the employer wish to terminate the employment during the participation period, the member may terminate participation with 30 days’ notice and the deferred accumulation balance shall be paid with interest according to the DROP design: Provided, That if the employee is terminated for cause during the participation period, the member may terminate participation with 30 days’ notice and the deferred accumulation balance shall be paid without interest according to the DROP design.

(4) A member who is unable to continue working because of disability shall cease participation the first day of the month following notice of disability to the employer and the pension and relief fund. The accumulation account balance shall be paid to the member with no interest. No additional benefits are due the member on account of the disability.

(5) In the event of death of a member during DROP participation, the accumulation account of the member through the member’s date of death is payable to the member’s beneficiary or beneficiaries, with interest according to DROP design.

(6) A member entering the DROP is contractually obligated to terminate employment at the end of the DROP participation period. Failure to terminate voluntarily results in termination of employment for cause, except that a member who continues to work with the consent of the employer past the DROP participation period shall have all benefits frozen during the extension period and no additional benefit accumulates. During the period of time the member continues to work beyond the end of the DROP participation period with the consent of the employer, the employer shall continue to make regular contributions to the employee’s pension and relief fund. Regular retirement benefits will commence the month following eventual employment termination or death. The member’s accumulation account balance is frozen in value following the end of the DROP participation period.

(e) The oversight board shall annually report to the Legislature’s Joint Committee on Pensions and Retirement, and to the Legislature as required by §4-1-23 and §5-1-20 of this code, on DROPs submitted to the board for approval and the status of any DROP that has been approved. Once every five years, the oversight board shall have its contracted actuary provide a report to the Legislature’s Joint Committee on Pensions and Retirement on the status of each active Deferred Retirement Option Plan (DROP). The reports shall include any experienced impact on an affected pension and relief fund.

§8-22-26. Death benefits.

(a) In case:

(1) Any member of a paid police or fire department who has been in continuous service for more than five years dies from any cause other than as specified in subsection (b) of this section before retirement on a disability pension pursuant to §8-22-24 of this code if prior to July 1, 1981, or pursuant to §8-22-23a and §8-22-24 of this code if after June 30, 1981, or a retirement pension pursuant to §8-22-25(a) and §8-22-25(b) of this code, leaving in either case a surviving spouse, or any dependent child or children under the age of 18 years, or dependent father or mother, or both, or any dependent brothers or sisters, or both, under the age of 18 years, or any dependent child over the age of 18 years of age who is totally physically or mentally disabled so long as such condition exists; or

(2) Any former member of any such department who is on a disability pension pursuant to §8-22-24 of this code if prior to July 1, 1981, , or pursuant to §8-22-23a and §8-22-24 of this code if after June 30, 1981, or is receiving or is entitled to receive retirement pension benefits pursuant to §8-22-25(a) and §8-22-25(b) of this code, dies from any cause other than as specified in subsection (b) of this section leaving in either case a surviving spouse or any dependent child or children under the age of 18 years, or dependent father or mother, or both, or any dependent brothers or sisters, or both, under the age of 18 years, or any dependent child over the age of 18 years of age who is totally physically or mentally disabled so long as such condition exists; then in any of the cases set forth in this subdivision and subdivision (1) of this subsection, the board of trustees of such pension and relief fund shall, immediately following the death of the member, pay to or for each entitled surviving dependent the following pension benefits: To the surviving spouse, until death or remarriage, a sum per month equal to 60 percent of the member’s pension or, in the event the member was not receiving a pension at the time of the member’s death, a sum per month equal to 60 percent of the monthly retirement pension such member would have been entitled to receive pursuant to §8-22-25 of this code on the date of the member’s death if the member had then been eligible for a retirement pension, or the sum of $300 per month, whichever is greater; to each dependent child, a sum per month equal to 20 percent of the member’s pension or, in the event the member was not receiving a pension on the date of the member’s death, a sum per month equal to 20 percent of the monthly retirement pension the member would have been entitled to receive pursuant to §8-22-25 of this code on the date of the member’s death if the member had then been eligible for a retirement pension, or until the child attains the age of 18 years or marries, whichever first occurs; to each dependent orphaned child, a sum per month equal to 25 percent of the member’s pension or, in the event the member was not receiving a pension on the date of the member’s death, a sum per month equal to 25 percent of the monthly retirement pension the member would have been entitled to receive pursuant to §8-22-25 of this code on the date of the member’s death if the member had then been eligible for a retirement pension, until the child attains the age of 18 years or marries, whichever first occurs; to each dependent father or mother, a sum per month for each equal to 10 percent of the member’s pension or, in the event the member was not receiving a pension on the date of the member’s death, a sum per month equal to 10 percent of the monthly retirement pension the member would have been entitled to receive pursuant to §8-22-25 of this code on the date of the member’s death if the member had then been eligible for a retirement pension; to each dependent brother or sister, the sum of $50 per month until he or she attains the age of 18 years or marries, whichever first occurs, but in no event shall the aggregate amount paid to all brothers and sisters of the member exceed $100 per month. If at any time, because of the number of dependents, all dependents cannot be paid in full as herein provided, then each dependent shall receive his or her pro rata share of the payments. In no case shall the payments to the surviving spouse and children be cut below 65 percent of the total amount paid to all dependents.

(b) The surviving spouse, child or children, or dependent father or mother, or dependent brothers or sisters, of any member who dies by reason of service rendered in the performance of the member’s duties shall, regardless of the length of the member’s service and irrespective of whether the member was or was not entitled to receive, or was or was not receiving, disability pension or temporary disability payments at the time of the member’s death, receive the death benefits provided for in subsection (a) of this section. If the member had less than three years’ service at the time of the member’s death, the member’s pension shall be computed on the basis of the actual number of years of service.

(c) If a member dies without leaving a spouse, dependent child or children, or dependent father or mother, or dependent brothers or sisters, the member’s contributions to the fund plus six percent interest shall be refunded to the member’s named beneficiary or, if no beneficiary has been named, to the member’s estate to the extent that the contributions plus interest exceed any disability or retirement benefits that the member may have received before the member’s death.

(d) This section shall not be construed as creating or establishing any contractual or vested rights in favor of any individual who may be or become qualified as a beneficiary of the death benefits authorized to be made pursuant to this section. This section and benefits provided pursuant to this section are expressly subject to subsequent legislative enactments as may provide for any change, modification, or elimination of the beneficiaries or benefits specified herein.

(e) Notwithstanding the provisions of §8-22-24 of this code, the benefit provided for in this section shall be calculated as if the member had remained unemployed throughout any period of disability.

(f)  For the purpose of distributing premium tax proceeds as required by §33-3-14d of this code, one beneficiary of the death benefit authorized by this section shall be included in the average monthly number of retired police officers and firefighters.

(g) If there are no survivors entitled to receive benefits pursuant to the provisions of this section because of death, age, or marital status, to the extent the member’s contributions to the fund plus six percent interest exceed any survivor benefits already paid, any excess shall be refunded to the member’s named beneficiary. If there is no named beneficiary, any excess shall be paid to the member’s heirs to be distributed in accordance with §42-1-1 et seq. of this code relating to intestate succession.

§8-22-26a. Supplemental pension benefits entitlement; benefit payable; application of section; construction.

(a) Except as otherwise provided in this section, all retirees, surviving beneficiaries, disability pensioners or future retirees shall receive as a supplemental pension benefit an annualized monthly amount commencing on July 1, based on a percentage increase equal to any increase in the consumer price index as calculated by the United States Department of Labor, Bureau of Statistics, for the preceding year: Provided, That the supplemental pension benefit specified herein shall not exceed four percent per year: Provided, however, That no retiree shall be eligible for the supplemental pension benefit specified herein until July 1, after the expiration of two years from the date of retirement of said retiree: Provided further, That persons retiring prior to the effective date of this section shall receive the supplemental benefit provided for in this section immediately upon retirement and shall not be subject to the two year delay: And provided further, That the supplemental benefit shall only be calculated on the allowable amount, which is the first $15,000 of the total annual benefit paid. If at any time, after the supplemental benefit becomes applicable, the total accumulated percentage increase in benefit on the allowable amount becomes less than seventy-five percent of the total accumulated percentage increase in the consumer price index over that same period of time, the four percent limitation shall be inapplicable until such time as the supplemental benefit paid equals seventy-five percent of the accumulated increase in the consumer price index. The supplemental pension benefit payable under the provisions of this section shall be paid in equal monthly installments.

(b) Upon commencement of the payment of death benefits pursuant to section twenty-six of this article, there shall be calculated on the allowable amount, which is the first $15,000 of the annual allowable benefit under said section twenty-six, the supplemental benefit provided for in subsection (a) of this section using the date that the retirement benefit provided for pursuant to section twenty-five of this article began as the base year. The amount of the death benefit provided pursuant to section twenty-six of this article shall be calculated without regard to any supplemental benefit previously paid under this section. After the initial calculation made pursuant to this subsection the beneficiary of the benefits provided for pursuant to section twenty-six, shall, after reindexation, thereafter receive the supplemental benefit provided for in subsection (a).

(c) Persons becoming disabled and eligible for a benefit under subsection (d), section twenty-four of this article after January 1, 1991, shall receive as an annualized monthly supplemental benefit commencing on each July the first an amount based on a percentage increase equal to any increase in the consumer price index as calculated by the United States Department of Labor, Bureau of Statistics, for the preceding year: Provided, That the supplemental pension benefit shall not exceed four percent per year: Provided, however, That the benefit provided herein shall not commence until July 1, in the second year after what would have been the earliest service retirement date pursuant to section twenty-five of this article for the person receiving the disability benefit: Provided further, That for persons becoming eligible for a benefit under subsection (d), article twenty-four of this section who were not employed in the preceding year and file a copy of his or her income tax return by the fifteenth of April each year, evidencing said lack of employment, the benefit provided herein shall commence on July 1, in the second year after the date of disablement: And provided further, That the supplemental benefit shall only be calculated on the allowable amount, which is the first $15,000 of the total annual benefit paid. If at any time after the commencement of the payment of the supplemental benefit provided under this subsection the total accumulated percentage increase in benefit on the allowable amount becomes less than seventy-five percent of the total accumulated increase in the consumer price index for that same period of time, the four percent limitation shall be inapplicable until such time as the supplemental benefit paid equals seventy-five percent of the accumulated increase in the consumer price index.

(d) Persons receiving a disability pension pursuant to section twenty-four of this article prior to January 1, 1991, shall receive commencing each July first, as an annualized monthly supplemental benefit an amount based on a percentage increase equal to any increase in the consumer price index as calculated by the United States Department of Labor, Bureau of Statistics, for the preceding year: Provided, That the supplemental benefit provided herein shall not exceed two percent per year: Provided, however, That beginning July 1, two years after what would have been the earliest service retirement date pursuant to section twenty-five of this article the supplemental benefit provided herein shall not exceed four percent per year. The amount of supplemental benefit provided in this subsection shall not exceed four percent beginning July 1, in any twelve month period for any pensioner who files a certified copy of his or her tax return evidencing that said pensioner was unemployed in the preceding year and received no earned income. The tax return shall be filed by the fifteenth of April in any such year. If at any time after July 1, in the second year from what would have been the earliest service retirement date pursuant to section twenty-five of this article the total accumulated percentage increase in the supplemental benefit provided pursuant to this subsection on the allowable amount becomes less than the seventy-five percent of the total accumulated percentage increase in the consumer price index over that same period of time, the maximum percentage shall be inapplicable until such time as the percentage increase in the supplemental benefit paid equals seventy-five percent of the accumulated increase in the consumer price index. The supplemental benefit provided in this subsection shall only be calculated on the allowable amount, which is the first $15,000 of the annual benefit paid.

(e) Any supplemental benefits paid during a period of nonentitlement may be withheld out of subsequent regular monthly pension benefits.

(f) During the fiscal year ending on June 30, 1996, and each year thereafter, each municipal policemen's and firemen's pension fund shall be reviewed by a qualified actuary who shall make a determination as to its actuarial soundness. Based upon the actuary's determination of the actuarial soundness of the fund, the actuary shall certify to the board of trustees of the fund the amount of increase in supplemental benefits, if any, which may be paid, and which will preserve the minimum standards for actuarial soundness of the fund, as set forth in section twenty of this article. The board of trustees shall increase supplemental benefits by an amount which is equal to the actuary's certified recommendation, up to the four percent limit contained in this section or the increase in the consumer price index, whichever is less. If the actuary determines that it is necessary to preserve the actuarial soundness of the fund, the board of trustees of the fund shall increase the percentage of the members' contribution from seven percent to the amount certified by the actuary not to exceed eight and one-half percent, but only for so long as is necessary to achieve the minimum standards for actuarial soundness required by section twenty of this article. In any year in which there is no supplemental benefit paid, such year shall not be included in the reindexation calculation provided pursuant to this section.

(g) This section shall be construed liberally to effectuate the purpose of establishing minimum pension benefits under this article for members and surviving spouses.

§8-22-27. General provisions concerning disability pensions, retirement pensions and death benefits.

(a) In determining the years of service of a member in a paid police or fire department for the purpose of ascertaining certain disability pension benefits, all retirement pension benefits and certain death benefits, the following provisions shall be applicable:

(1) Absence from the service because of sickness or injury for a period of two years or less shall not be construed as time out of service; and

(2) Any member of any paid police or fire department covered by the provisions of sections sixteen through twenty-eight of this article who has been or will be on qualified military service in the armed forces of the United States, has an honorable discharge from the armed forces, presents himself or herself for resumption of duty to his or her appointing municipal official within six months from his or her date of discharge and is accepted by two medical examiners, at least one of which is appointed by the oversight board as being mentally and physically capable of performing the required duties as a member of the paid police or fire department, shall be given credit for continuous service in the paid police or fire department. The six-month period in which a member has to resume employment and receive credit for continuous service is extended to a period not to exceed two years if the member has been hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, qualified military service. No member of a paid police or fire department shall be required to pay the monthly assessment during a period of qualified military service. However, a member who desires to make up member assessments, in whole or in part, has five years from the date of return to work, but shall not be required to pay any interest or other charges for the assessments being made up. The employer must pay the employer contributions for the periods made up by the member within ninety days of each payment, or within ninety days of the normal due date. A member who resumes duty with a paid police or fire department after qualified military service is entitled to accrued benefits only to the extent that the member made up the member assessments.

(b) As to any former member of a paid police or fire department receiving disability pension benefits or retirement pension benefits from a policemen's or firemen's pension and relief fund, on July 1, 1985, the following provisions shall govern and control the amount of the pension benefits:

(1) A former member who on June 30, 1962, was receiving disability pension benefits or retirement pension benefits from a policemen's or firemen's pension and relief fund, shall continue to receive pension benefits, but on and after July 1, 1985, the pension benefits shall be no less than the amount of $500 per month; and

(2) A former member who became entitled to disability pension benefits or retirement pension benefits on or after July 1, 1962, shall continue to receive pension benefits, but on and after July 1, 1985, shall receive the disability pension benefits, or retirement pension benefits provided in section twenty-four or twenty-five of this article, as the case may be.

(c) As to any surviving spouse, dependent child or children, or dependent father or mother, or dependent brothers or sisters, of any former member of a paid police or fire department, receiving any death benefits from a policemen's pension and relief fund or firemen's pension and relief fund, on July 1, 1985, the following provisions shall govern and control the amount of such death benefits:

(1) A surviving spouse, dependent child or children or dependent father or mother, or dependent brothers or sisters, of any former member, who on June 30, 1962, was receiving any death benefits from a policemen's pension and relief fund or firemen's pension and relief fund, shall continue to receive death benefits, but on and after July 1, 1985, the death benefits shall be no less than the following amounts: To a surviving spouse, until death or remarriage, the sum of $300 per month; to each dependent child the sum of $30 per month, until the child attains the age of eighteen years or marries, whichever first occurs; to each dependent orphaned child, the sum of $45 per month, until the child attains the age of eighteen years or marries, whichever first occurs; to each dependent father and mother the sum of $30 per month for each; to each dependent brother or sister, the sum of $50 per month, until the individual attains the age of eighteen years or marries, whichever first occurs, but in no event shall the aggregate amount paid to the brothers and sisters exceed $100 per month. If at any time, because of the number of dependents, all dependents cannot be paid in full as herein provided, then each dependent shall receive a pro rata share of the payments. In no case shall the payments to the surviving spouse and children be cut below sixty-five percent of the total amount paid to all dependents; and

(2) A surviving spouse, dependent child or children, or dependent father or mother, or dependent brothers or sisters, of any former member who became eligible for death benefits on or after July 1, 1962, shall continue to receive death benefits, but on and after July 1, 1985, shall receive the death benefits provided in section twenty-six of this article.

(d) A former member who is receiving disability pension benefits on July 1, 1985, shall continue to receive disability pension benefits provided in section twenty-four of this article.

§8-22-27a. Correction of errors; underpayments; overpayments.

(a) General rule. — Upon learning of errors, the Municipal Policemen’s Pension and Relief Fund Board of Trustees or the Municipal Firemen’s Pension and Relief Fund Board of Trustees shall correct errors in the plan in a timely manner whether the individual, municipality, or board of trustees was at fault for the error with the intent of placing the affected individual, municipality, and pension board of trustees in the position each would have been in had the error not occurred. Should the municipal policemen’s or firemen’s pension and relief fund board of trustees fail to correct discovered errors, the Municipal Pensions Oversight Board shall order the pension fund board of trustees to correct such errors. In the event the Municipal Pensions Oversight Board issues an order pursuant to this section, the governing body of the city may by resolution temporarily appoint up to four additional members to the board of trustees for the purpose of implementing the provisions of the order. The additional board members shall serve until all corrective actions ordered by the Municipal Pensions Oversight Board are completed or until the municipality authorizes continued erroneous payments to retirants or beneficiaries of a retirant as authorized by subsection (d) of this section. Any order issued by the Municipal Pensions Oversight Board shall be enforceable by an action at law.

(b) Underpayments to the plan. — Any error resulting in an underpayment to the plan may be corrected by the member or retirant remitting the required employee contribution or underpayment and the municipality remitting the required municipality contribution or underpayment. The rate of interest applicable to employer error payments in a municipal policemen’s or municipal firemen’s pension and relief fund shall be the actuarial interest rate assumption as approved by the Municipal Pensions Oversight Board for completing the actuarial valuation for the plan year immediately preceding the first day of the plan year in which the employer error payment is made, compounded per annum. Any accumulating interest owed on the employee and employer contributions or underpayments resulting from an employer error shall be the responsibility of the employer. The employer may remit total payment and the employee reimburse the employer through payroll deduction over a period equivalent to the time period during which the employer error occurred. If the correction of an error involving an underpayment to the plan will result in the plan correcting an erroneous underpayment from the plan, the correction of the underpayment from the plan shall be made only after the board of trustees receives full payment of all required employee and employer contributions or underpayments, including interest.

(c) Overpayments to the plan by an employee. — When mistaken or excess employee contributions or overpayments have been made to the plan, the municipal policemen’s or municipal firemen’s pension and relief fund board of trustees shall have sole authority for determining the means of return, offset or credit to or for the benefit of the individual making the mistaken or excess employee contribution of the amounts, and may use any means authorized or permitted under the provisions of Section 401(a), et seq. of the Internal Revenue Code and guidance issued thereunder applicable to governmental plans. Alternatively, in its full and complete discretion, the municipal policemen’s or municipal firemen’s pension and relief fund board of trustees may require the municipality employing the individual to pay the individual the amounts as wages, with the board of trustees crediting the employer with a corresponding amount to offset against its future contributions to the plan. If the municipality has no future liability for municipality contributions to the plan, the board of trustees shall refund said amount directly to the municipality: Provided, That the wages paid to the individual shall not be considered compensation for any purposes of this article. Earnings or interest shall not be returned, offset, or credited under any of the means used by the board of trustees for returning employee overpayments.

(d) Overpayments from the plan. — If any error results in any member, retirant, beneficiary, entity, or other individual receiving from the plan more than he or she would have been entitled to receive had the error not occurred, the board of trustees, after learning of the error, shall correct the error in a timely manner. Unless otherwise authorized by the governing body of the city in which the fund was established as provided herein, if correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board of trustees shall prospectively adjust the payment of the benefit to the correct amount. In addition, the member, retirant, beneficiary, entity, or other person who received the overpayment from the plan shall repay the amount of any overpayment to the municipal policemen’s pension fund or municipal firemen’s pension fund in any manner permitted by the board of trustees of that fund. The governing body of the city in which the overpaying municipal fund is established may, by majority vote, authorize continued overpayment of retirement benefits for any member, retirant, beneficiary, entity, or individual who retired prior to the effective date of this section as enacted during the regular legislative session of 2017: Provided, That where the governing body of the city authorizes continued overpayment, it shall also authorize continued payment into the fund in an amount equal to that which it would be responsible to pay under the applicable actuarial method used by the city without reduction to any retirement benefit. Interest shall not accumulate on any corrective payment made to the plan pursuant to this subsection.

(e) Underpayments from the plan. — If any error results in any member, retirant, beneficiary, entity, or other individual receiving from the plan less than he or she would have been entitled to receive had the error not occurred, the board of trustees, upon learning of the error, shall correct the error in a timely manner. If correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board of trustees shall prospectively adjust the payment of the benefit to the correct amount. In addition, the board of trustees shall pay the amount of such underpayment to the member, retirant, beneficiary, or other individual in a lump sum. Interest shall not be paid on any corrective payment made by the municipal policemen’s pension fund or municipal firemen’s pension fund pursuant to this subsection.

§8-22-27b. Fraud; penalties; and repayment.

Any person who knowingly makes any false statement or who falsifies or permits to be falsified any record of a municipal policemen’s or municipal firemen’s pension and relief fund in any attempt to defraud that system is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail not more than one year, or both fined and confined.  Any increased benefit received by any person as a result of the falsification or fraud shall be returned to the fund on demand by the board of trustees or by demand of the Municipal Pensions Oversight Board.

§8-22-28. Period in which payments limited to income from fund; reduced payments where fund insufficient.

Until the expiration of three years from the time of the creation of any such fund, unless otherwise authorized by ordinance of the municipality, no payment shall be made to any member or beneficiary except from the income arising from said fund; and if at any time prior to July 1, 1981, there shall not be sufficient money to the credit of said pension and relief fund to pay each member and beneficiary entitled to the benefits thereof the full amount per month, as herein provided, then an equal percentage of such monthly payments shall be made to each member and beneficiary thereof, until the earlier of: (a) July 1, 1983, and (b) such time when said fund is so replenished as to warrant payment in full to each of such members and beneficiaries.

PART IV. PENSION PLANS FOR EMPLOYEES OF WATERWORKS

SYSTEM, SEWERAGE SYSTEM OR COMBINED WATERWORKS

AND SEWERAGE SYSTEM.

§8-22-29. Pension plans for employees of waterworks system, sewerage system or combined waterworks and sewerage system may be continued.

Any city which owns a waterworks system or sewerage system or combined waterworks and sewerage system, which does not hereafter become a participating public employer under the said West Virginia Public Employees Retirement System, which does not establish and maintain an employees' retirement and benefit fund in accordance with the provisions of sections two through fourteen of this article and which has heretofore provided, under the provisions of former section twenty-one-a, article four of this chapter, a pension plan or plans on behalf of and pertaining to all or part of the employees of said waterworks system or sewerage system or combined waterworks and sewerage system, may continue to maintain such plan or plans, financed from the general operation funds of said waterworks system or sewerage system or combined waterworks and sewerage system, and administered by a pension board or pension commission. Any such pension board or pension commission shall continue to be composed of such members as shall be approved by the governing body, giving proper representation to the employees of such waterworks system or sewerage system or combined waterworks and sewerage system. The chief financial executive officer or treasurer of such pension board or pension commission shall continue to maintain bond with a surety company qualified to do business in this state in an amount equal to the value of any funds or securities in the control of or owned by the pension board or pension commission. After reserving such funds as may be deemed necessary by the pension board or pension commission to provide such amounts as may be required to meet temporary commitments, the remainder shall continue to be invested in general obligation bonds of the United States, this state or any political subdivision of this state.

§8-22A-1. Title.

This article is known and may be cited as the "West Virginia Municipal Police Officers and Firefighters Retirement System Act."

§8-22A-2. Definitions.

As used in this article, unless a federal law or regulation or the context clearly requires a different meaning:

(a) "Accrued benefit" means on behalf of any member 2.75 percent per year of the member’s final average salary for the first 20 years of credited service. Additionally, 2 percent per year for 21 through 25 years and 1.5 percent per year for each year over 25 years will be credited with a maximum benefit of 90 percent of a member’s final average salary. A member’s accrued benefit may not exceed the limits of Section 415 of the Internal Revenue Code and is subject to the provisions of §8-22A-10 of this code.

(b) "Accumulated contributions" means the sum of all retirement contributions deducted from the compensation of a member, or paid on his or her behalf as a result of covered employment, together with regular interest on the deducted amounts.

(c) "Active military duty" means full-time duty in the active military service of the United States Army, Navy, Air Force, Coast Guard or Marine Corps. The term does not include regularly required training or other duty performed by a member of a reserve component or National Guard unless the member can substantiate that he or she was called into the full-time active military service of the United States and has received no compensation during the period of that duty from any board or employer other than the armed forces.

(d) "Actuarial equivalent" means a benefit of equal value computed on the basis of the mortality table and interest rates as set and adopted by the board in accordance with the provisions of this article: Provided, That when used in the context of compliance with the federal maximum benefit requirements of Section 415 of the Internal Revenue Code, "actuarial equivalent" shall be computed using the mortality tables and interest rates required to comply with those requirements.

(e) "Annual compensation" means the wages paid to the member during covered employment within the meaning of Section 3401(a) of the Internal Revenue Code, but determined without regard to any rules that limit the remuneration included in wages based on the nature or location of employment or services performed during the plan year plus amounts excluded under Section 414(h)(2) of the Internal Revenue Code and less reimbursements or other expense allowances, cash or noncash fringe benefits, or both, deferred compensation and welfare benefits. Annual compensation for determining benefits during any determination period may not exceed the maximum compensation allowed as adjusted for cost-of-living in accordance with §5-10D-7 of this code and Section 401(a) (17) of the Internal Revenue Code.

(f) "Annual leave service" means accrued annual leave.

(g) "Annuity starting date" means the first day of the month for which an annuity is payable after submission of a retirement application or the required beginning date, if earlier. For purposes of this subsection, if retirement income payments commence after the normal retirement age, "retirement" means the first day of the month following or coincident with the latter of the last day the member worked in covered employment or the member’s normal retirement age and after completing proper written application for retirement on an application supplied by the board.

(h) "Beneficiary" means a natural person who is entitled to, or will be entitled to, an annuity or other benefit payable by the plan.

(i) "Board" means the Consolidated Public Retirement Board.

(j) "Covered employment" means either: (1) Employment as a full-time municipal police officer or firefighter and the active performance of the duties required of that employment; or (2) the period of time during which active duties are not performed but disability benefits are received under this article; or (3) concurrent employment by a municipal police officer or firefighter in a job or jobs in addition to his or her employment as a municipal police officer or firefighter in this plan where the secondary employment requires the police officer or firefighter to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to this code: Provided, That the police officer or firefighter contributes to the fund created in this article the amount specified as the member’s contribution in §8-22A-8 of this code.

(k) "Credited service" means the sum of a member’s years of service, active military duty, and disability service.

(l) "Dependent child" means either: (1) An unmarried person under age 18 who is: (A) A natural child of the member; (B) a legally adopted child of the member; (C) a child who at the time of the member’s death was living with the member while the member was an adopting parent during any period of probation; or (D) a stepchild of the member residing in the member’s household at the time of the member’s death; or (2) Any unmarried child under age 23: (A) Who is enrolled as a full-time student in an accredited college or university; (B) who was claimed as a dependent by the member for federal income tax purposes at the time of the member’s death; and (C) whose relationship with the member is described in paragraph (A), (B) or (C), subdivision (1) of this subsection.

(m) "Dependent parent" means the father or mother of the member who was claimed as a dependent by the member for federal income tax purposes at the time of the member’s death.

(n) "Disability service" means service credit received by a member, expressed in whole years, fractions thereof, or both, equal to one half of the whole years, fractions thereof, or both, during which time a member receives disability benefits under this article.

(o) "Effective date" means January 1, 2010.

(p) "Employer error" means an omission, misrepresentation or deliberate act in violation of relevant provisions of the West Virginia Code or of the West Virginia Code of State Regulations or the relevant provisions of both the West Virginia Code and of the West Virginia Code of State Regulations by the participating public employer that has resulted in an underpayment or overpayment of contributions required.

(q) "Final average salary" means the average of the highest annual compensation received for covered employment by the member during any five consecutive plan years within the member’s last 10 years of service while employed, prior to any disability payment. If the member did not have annual compensation for the five full plan years preceding the member’s attainment of normal retirement age and during that period the member received disability benefits under this article, then "final average salary" means the average of the monthly compensation which the member was receiving in the plan year prior to the initial disability. "Final average salary" does not include any lump sum payment for unused, accrued leave of any kind or character.

(r) "Full-time employment" means permanent employment of an employee by a participating municipality in a position which normally requires 12 months per year service and requires at least 1,040 hours per year service in that position.

(s) "Fund" means the West Virginia Municipal Police Officers and Firefighters Retirement Fund created by this article.

(t) "Hour of service" means: (1) Each hour for which a member is paid or entitled to payment for covered employment during which time active duties are performed. These hours shall be credited to the member for the plan year in which the duties are performed; and (2) each hour for which a member is paid or entitled to payment for covered employment during a plan year but where no duties are performed due to vacation, holiday, illness, incapacity including disability, layoff, jury duty, military duty, leave of absence, or any combination thereof and without regard to whether the employment relationship has terminated. Hours under this subdivision shall be calculated and credited pursuant to West Virginia Division of Labor rules. A member may not be credited with any hours of service for any period of time he or she is receiving benefits under §8-22A-17 and §8-22A-18 of this code; and (3) each hour for which back pay is either awarded or agreed to be paid by the employing municipality, irrespective of mitigation of damages. The same hours of service may not be credited both under subdivision (1) or (2) of this subsection and under this subdivision. Hours under this paragraph shall be credited to the member for the plan year or years to which the award or agreement pertains, rather than the plan year in which the award, agreement or payment is made.

(u) "Medical examination" means an in-person or virtual examination of a member’s physical or mental health, or both, by a physician or physicians selected or approved by the board; or, at the discretion of the board, a medical record review of the member’s physical or mental health, or both, by a physician selected or approved by the board.

(v) "Member" means, except as provided in §8-22A-32 and §8-22A-33 of this code, a person hired as a municipal police officer or municipal firefighter, as defined in this section, by a participating municipal employer on or after January 1, 2010. A member shall remain a member until the benefits to which he or she is entitled under this article are paid or forfeited.

(w) "Monthly salary" means the W-2 reportable compensation received by a member during the month.

(x) "Municipality" has the meaning ascribed to it in this code.

(y) (1) "Municipal police officer" means an individual employed as a member of a paid police department by a West Virginia municipality or municipal subdivision which has established and maintains a municipal policemen’s pension and relief fund, and who is not a member of, and not eligible for membership in, a municipal policemen’s pension and relief fund as provided in §8-22-16 of this code: Provided, That municipal police officer also means an individual employed as a member of a paid police department by a West Virginia municipality or municipal subdivision which is authorized to elect to participate in the plan pursuant to §8-22A-33 of this code. Paid police department does not mean a department whose employees are paid nominal salaries or wages or are paid only for services actually rendered on an hourly basis.

(2) "Municipal firefighter" means an individual employed as a member of a paid fire department by a West Virginia municipality or municipal subdivision which has established and maintains a municipal firemen’s pension and relief fund, and who is not a member of, and not eligible for membership in, a municipal firemen’s pension and relief fund as provided in §8-22-16 of this code: Provided, That municipal firefighter also means an individual employed as a member of a paid fire department by a West Virginia municipality or municipal subdivision which is authorized to elect to participate in the plan pursuant to §8-22A-33 of this code. Paid fire department does not mean a department whose employees are paid nominal salaries or wages or are paid only for services actually rendered on an hourly basis.

(z) "Municipal subdivision" means any separate corporation or instrumentality established by one or more municipalities, as permitted by law; and any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more municipalities.

(aa) "Normal form" means a monthly annuity which is one twelfth of the amount of the member’s accrued benefit which is payable for the member’s life. If the member dies before the sum of the payments he or she receives equals his or her accumulated contributions on the annuity starting date, the named beneficiary shall receive in one lump sum the difference between the accumulated contributions at the annuity starting date and the total of the retirement income payments made to the member.

(bb) "Normal retirement age" means the first to occur of the following: (1) Attainment of age 50 years and the completion of 20 or more years of regular contributory service; (2) while still in covered employment, attainment of at least age 50 years and when the sum of current age plus regular contributory service equals or exceeds 70 years; (3) while still in covered employment, attainment of at least age 60 years and completion of 10 years of regular contributory service; or (4) attainment of age 62 years and completion of five or more years of regular contributory service.

(cc) "Plan" means the West Virginia Municipal Police Officers and Firefighters Retirement System established by this article.

(dd) "Plan year" means the 12-month period commencing on January 1 of any designated year and ending the following December 31.

(ee) "Qualified public safety employee" means any employee of a participating state or political subdivision who provides police protection, firefighting services or emergency medical services for any area within the jurisdiction of the state or political subdivision, or such other meaning given to the term by Section 72(t) (10) (B) of the Internal Revenue Code or by Treasury Regulation §1.401(a)-1(b) (2) (v) as they may be amended from time to time.

(ff) "Regular contributory service" means a member’s credited service excluding active military duty, disability service and accrued annual and sick leave service.

(gg) "Regular interest" means the rate or rates of interest per annum, compounded annually, as the board adopts in accordance with the provisions of this article.

(hh) "Required beginning date" means April 1 of the calendar year following the later of: (1) The calendar year in which the member attains age 70.5 (if born before July 1, 1949) or age 72 (if born after June 30, 1949); or (2) the calendar year in which he or she retires or otherwise separates from covered employment.

(ii) "Retirement income payments" means the monthly retirement income payments payable.

(jj) "Spouse" means the person to whom the member is legally married on the annuity starting date.

(kk) "Surviving spouse" means the person to whom the member was legally married at the time of the member’s death and who survived the member.

(ll) "Totally disabled" means a member’s inability to engage in substantial gainful activity by reason of any medically determined physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. For purposes of this subsection: (1) A member is totally disabled only if his or her physical or mental impairment or impairments are so severe that he or she is not only unable to perform his or her previous work as a police officer or firefighter but also cannot, considering his or her age, education and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (A) The work exists in the immediate area in which the member lives; (B) a specific job vacancy exists; or (C) the member would be hired if he or she applied for work. For purposes of this article, substantial gainful employment is the same definition as used by the United States Social Security Administration; and (2) "Physical or mental impairment" is an impairment that results from an anatomical, physiological or psychological abnormality that is demonstrated by medically accepted clinical and laboratory diagnostic techniques. The board may require submission of a member’s annual tax return for purposes of monitoring the earnings limitation.

(mm) "Vested" means eligible for retirement income payments after completion of five or more years of regular contributory service.

(nn) "Year of service" means a member shall, except in his or her first and last years of covered employment, be credited with years of service credit based on the hours of service performed as covered employment and credited to the member during the plan year based on the following schedule:

Hours of Service Year of Service Credited

Less than 500 0

500 to 999 1/3

1,000 to 1,499 2/3

1,500 or more 1

During a member’s first and last years of covered employment, the member shall be credited with one-twelfth of a year of service for each month during the plan year in which the member is credited with an hour of service for which contributions were received by the fund. A member is not entitled to credit for years of service for any time period during which he or she received disability payments under §8-22A-17 and §8-22A-18 of this code.

§8-22A-3. Meaning of terms.

Any term used in this article has the same meaning as when used in a comparable context in the laws of the United States, unless a different meaning is clearly required. Any reference in this article to the Internal Revenue Code means the Internal Revenue Code of 1986, as amended.

§8-22A-4. Creation and administration of West Virginia Municipal Police Officers and Firefighters Retirement System; specification of actuarial assumptions.

There is hereby created the West Virginia Municipal Police Officers and Firefighters Retirement System. The purpose of this system is to provide for the orderly retirement of certain police officers and firefighters who become superannuated because of age or permanent disability and to provide certain survivor death benefits. Substantially all of the members of the retirement system shall be qualified public safety employees as defined in section two of this article. The retirement system shall come into effect January 1, 2010: Provided, That if the number of members in the system are fewer than one hundred on January 1, 2017, then all of the provisions of this article are void and of no force and effect, and memberships in the system will be merged into the Emergency Medical Services Retirement System created in article five-v, chapter sixteen of this code. If merger is required, the board shall take all necessary steps to see that the voluntary transfers of persons and assets authorized by this article do not affect the qualified status with the Internal Revenue Service of either retirement plan. All business of the system shall be transacted in the name of the West Virginia Municipal Police Officers and Firefighters Retirement System. The board shall specify and adopt all actuarial assumptions for the plan at its first meeting of every calendar year or as soon thereafter as may be practicable, which assumptions shall become part of the plan.

§8-22A-5. Article to be liberally construed; board to administer plan; federal qualification requirements.

(a) The provisions of this article shall be liberally construed so as to provide a general retirement system for municipal police officers and firefighters eligible to retire under the provisions of this plan.

(b) The board shall administer the plan in accordance with its terms and may construe the terms and determine all questions arising in connection with the administration, interpretation and application of the plan. The board may sue and be sued, contract and be contracted with and conduct all the business of the system in the name of the plan. The board may employ those persons it considers necessary or desirable to administer the plan. The board shall administer the plan for the exclusive benefit of the members and their beneficiaries subject to the specific provisions of the plan.

(c) The plan is intended to meet the federal qualification requirements of Section 401(a) and related sections of the Internal Revenue Code as applicable to governmental plans. Notwithstanding any other provision of state law, the board shall administer the plan to fulfill this intent for the exclusive benefit of the members and their beneficiaries. Any provision of this article referencing or relating to these federal qualification requirements is effective as of the date required by federal law. The board may propose rules for promulgation and amend or repeal conflicting rules in accordance with the authority granted to the board pursuant to section one, article ten-d, chapter five of this code to assure compliance with the requirements of this section.

§8-22A-6. Members.

(a) A police officer or firefighter hired in covered employment after the effective date of this article by a municipality or municipal subdivision which has established and maintained a policemen’s pension and relief fund or a firemen’s pension and relief fund pursuant to §8-22-16 of this code and which is a participating employer or which is a participating public employer as authorized by, §8-22A-33 of this code, shall be a member of this retirement plan: Provided, That any police officer or firefighter who has concurrent employment in an additional job or jobs which would require the police officer or firefighter to be a member of the West Virginia Deputy Sheriff Retirement System, the West Virginia Emergency Medical Services Retirement System, or the West Virginia Natural Resources Police Officer Retirement System shall participate in only one retirement system administered by the board, and the retirement system applicable to the concurrent employment for which the employee has the earliest date of hire shall prevail.

(b) Except as provided in §8-22A-32 of this code, a police officer or firefighter who is a member of the Municipal Police Officers and Firefighters Retirement System may not have credit for covered employment in any other retirement system applied as service credit in the Municipal Police Officers and Firefighters Retirement System.

(c) Notwithstanding any other provisions of this article, any individual who is a leased employee is not eligible to participate in the plan. For purposes of this plan, a “leased employee” means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or similar organization. If a question arises regarding the status of an individual as a leased employee, the board has final power to decide the question.

§8-22A-7. Creation of fund; investments; actuarial valuations.

(a) There is hereby created the West Virginia Municipal Police Officers and Firefighters Retirement Fund for the benefit of the members of the retirement system created pursuant to this article and the dependents of any deceased or retired member of the system.

(b) All moneys paid into and accumulated in the fund, except amounts designated by the board for payment of benefits as provided in this article, shall be held in trust and invested in the Consolidated Pensions Fund administered by the West Virginia Investment Management Board as provided by law.

(c) The board shall employ a competent actuary or actuarial firm to prepare an actuarial valuation of the assets and liabilities of the fund. The actuarial valuation period shall coincide with the fiscal year of the state.

§8-22A-8. Members' contributions; employer contributions.

(a)(1) There shall be deducted from the monthly salary of each member and paid into the fund an amount equal to eight and one-half percent, or ten and one-half percent, if applicable, of his or her monthly salary. An additional amount shall be paid to the fund by the municipality or municipal subdivision in which the member is employed in covered employment in an amount determined by the board: Provided, That in no year may the total of the employer contributions provided in this section, to be paid by the municipality or municipal subdivision, exceed ten and one-half percent of the total payroll for the members in the employ of the municipality or municipal subdivision. Any active member who has concurrent employment in an additional job or jobs and the additional employment requires the police officer or firefighter to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to article ten-d, chapter five of this code shall contribute to the fund the sum of eight and one-half percent, or ten and one-half percent, if applicable, of his or her monthly salary earned as a municipal police officer or firefighter as well as the sum of eight and one-half percent, or ten and one-half percent, if applicable, of his or her monthly salary earned from any additional employment which additional employment requires the police officer or firefighter to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to article ten-d, chapter five of this code. An additional amount as determined by the board, not to exceed ten and one-half percent of the monthly salary of each member, shall be paid to the fund by the concurrent employer by which the member is employed.

(2) The board may, on the recommendation of the board's actuary, increase the employees' contribution rate from eight and one-half percent to ten and one-half percent should the plan not be seventy percent funded by July 1, 2014. The board shall decrease the contribution rate to eight and one-half percent on July 1 following the acceptance by the board of an actuarial valuation determining that the plan is seventy-five percent funded. If the plan funding level at a later actuarial valuation date falls below seventy percent, the employee rate of contribution shall be increased to ten and one-half percent of salary until the seventy-five percent level of funding is achieved. The board shall change the employee contribution rate on July 1 following the board's acceptance of the actuarial valuation. At no time may the rate of employee contribution exceed the rate of employer contribution.

(b) All required deposits shall be remitted to the board no later than fifteen days following the end of the calendar month for which the deposits are required. If the board on the recommendation of the board actuary finds that the benefits provided by this article can be actuarially funded with a lesser contribution, then the board shall reduce the required member and employer contributions proportionally. Any municipality or municipal subdivision which fails to make any payment due the Municipal Police Officers and Firefighters Retirement Fund by the fifteenth day following the end of each calendar month in which contributions are due may be required to pay the actuarial rate of interest lost on the total amount owed for each day the payment is delinquent. Accrual of the loss of earnings owed by the delinquent municipality or municipal subdivision commences after the fifteenth day following the end of the calendar month in which contributions are due and continues until receipt of the delinquent amount. Interest compounds daily and the minimum surcharge is $50.

§8-22A-8a. Correction of errors; underpayments; overpayments.

(a) General rule. — Upon learning of errors, the board shall correct errors in the plan in a timely manner whether the individual, entity or board was at fault for the error with the intent of placing the affected individual, entity, and retirement board in the position each would have been in had the error not occurred.

(b) Underpayments to the plan. — Any error resulting in an underpayment to the plan may be corrected by the member or retirant remitting the required employee contribution or underpayment and the employer remitting the required employer contribution or underpayment. Interest shall accumulate in accordance with the legislative rule 162 CSR 7 concerning retirement board refund, reinstatement, retroactive service, loan and correction of error interest factors, and any accumulating interest owed on the employee and employer contributions or underpayments resulting from an employer error shall be the responsibility of the employer. The employer may remit total payment and the employee reimburse the employer through payroll deduction over a period equivalent to the time period during which the employer error occurred. If the correction of an error involving an underpayment to the plan will result in the plan correcting an erroneous underpayment from the plan, the correction of the underpayment from the plan shall be made only after the board receives full payment of all required employee and employer contributions or underpayments, including interest.

(c) Overpayments to the plan by the employer. — When mistaken or excess employer contributions, including any overpayments have been made to the retirement system by the employer, the board shall credit the employer with an amount equal to the overpayment, to be offset against the employer’s future liability for employer contributions to the system. If the employer has no future liability for employer contributions to the plan, the board shall refund the erroneous contributions directly to the employer. Earnings or interest shall not be returned, offset or credited to the employer under any of the means used by the board for returning employer overpayments to the plan.

(d) Overpayments to the plan by an employee. — When mistaken or excess employee contributions or overpayments have been made to the plan, the board shall have sole authority for determining the means of return, offset or credit to or for the benefit of the individual making the mistaken or excess employee contribution of the amounts, and may use any means authorized or permitted under the provisions of section 401(a), et seq. of the Internal Revenue Code and guidance issued thereunder applicable to governmental plans. Alternatively, in its full and complete discretion, the board may require the employer employing the individual to pay the individual the amounts as wages, with the board crediting the employer with a corresponding amount to offset against its future contributions to the plan. If the employer has no future liability for employer contributions to the plan, the board shall refund said amount directly to the employer: Provided, That the wages paid to the individual shall not be considered compensation for any purposes of this article. Earnings or interest shall not be returned, offset, or credited under any of the means used by the board for returning employee overpayments.

(e) Overpayments from the plan. — If any error results in any member, retirant, beneficiary, entity or other individual receiving from the plan more than he would have been entitled to receive had the error not occurred the board, upon learning of the error shall correct the error in a timely manner. If correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board shall prospectively adjust the payment of the benefit to the correct amount. In addition, the member, retirant, beneficiary, entity or other person who received the overpayment from the plan shall repay the amount of any overpayment to the retirement system in any manner permitted by the board. If the member, retirant, beneficiary, or other person who received the overpayment is deceased and an annuity or lump sum benefit is still payable, the amount of the remaining overpayment shall be offset against the benefit payment owed in a manner consistent with the board’s error correction policy. Interest shall not accumulate on any corrective payment made to the plan pursuant to this subsection.

(f) Underpayments from the plan. — If any error results in any member, retirant, beneficiary, entity or other individual receiving from the plan less than he would have been entitled to receive had the error not occurred, the board, upon learning of the error, shall correct the error in a timely manner. If correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board shall prospectively adjust the payment of the benefit to the correct amount. In addition, the board shall pay the amount of such underpayment to the member, retirant, beneficiary or other individual in a lump sum. Interest shall not be paid on any corrective payment made by the retirement system pursuant to this subsection.

(g) Eligibility errors. — If the board finds that an individual, employer, or both individual and employer formerly or currently participating in the plan is not eligible to participate, the board shall notify the individual and his or her employer of the determination, and terminate participation in the plan. Any erroneous payments to the plan shall be returned to the employer and individual in accordance with the methods described in subsections (c) and (d) of this section, and any erroneous payments from the plan to such individual shall be returned to the plan in accordance with the methods described in subsection (e) of this section. Any erroneous service credited to the individual shall be removed. If the board determines that an individual or employer, or both, has not been participating in the retirement plan, but was eligible to and required to be participating in the plan, the board shall as soon as practicable notify the individual and his or her employer of the determination, and the individual and his or her employer shall prospectively commence participation in the plan as soon as practicable. Service credit for service prior to the date on which the individual prospectively commences participation in the plan shall be granted only if the board receives the required employer and employee contributions for such service, in accordance with subsection (b) of this section, including interest.

§8-22A-9. Retirement; commencement of benefits; insurance requirements during early period.

(a) To ensure the fiscal integrity of the retirement system during the start-up phase, no member is entitled to retirement, disability or death benefits under this retirement system until January 1, 2017. Participating municipalities shall purchase insurance for their new plan members to provide coverage in an amount equal to disability coverage otherwise provided in sections seventeen and eighteen of this article and death benefits otherwise provided in sections twenty, twenty-two and twenty-three of this article for claims arising before January 1, 2013: Provided, That pursuant to the amendments made to this subsection during the 2013 regular session of the Legislature, participating municipalities shall reinstate or purchase the insurance coverage for all plan members no later than July 1, 2013, and continue coverage through January 1, 2017.

(b) A member may retire and commence to receive retirement income payments on the first day of the calendar month following written application for his or her voluntary petition for retirement coincident with or next following the later of the date the member ceases employment, or the date the member attains early or normal retirement age, in an amount as provided under this article: Provided, That retirement income payments under this plan are subject to the provisions of this article. On receipt of the petition, the board shall promptly provide the member with an explanation of his or her optional forms of retirement benefits and on receipt of properly executed forms from the member, the board shall process a member's request for and commence payments as soon as administratively feasible.

§8-22A-10. Federal law maximum benefit limitations.

Notwithstanding any other provision of this article or state law, the board shall administer the retirement system in compliance with the limitations of Section 415 of the Internal Revenue Code and regulations under that section to the extent applicable to governmental plans (hereafter sometimes referred to as the "415 limitation(s)" or "415 dollar limitation(s)"), so that the annual benefit payable under this system to a member shall not exceed those limitations. Any annual benefit payable under this system shall be reduced or limited if necessary to an amount which does not exceed those limitations. The extent to which any annuity or other annual benefit payable under this retirement system shall be reduced as compared with the extent to which an annuity, contributions or other benefits under any other defined benefit plans or defined contribution plans required to be taken into consideration under Section 415 of the Internal Revenue Code shall be reduced, shall be proportional on a percentage basis to the reductions made in such other plans required to be so taken into consideration under Section 415, unless a disproportionate reduction is determined by the board to maximize the aggregate benefits payable to the member. If the reduction is under this retirement system, the board shall advise affected members of any additional limitation on the annuities or other annual benefit required by this section. The 415 limitations are incorporated herein by reference, except to the extent the following provisions may modify the default provisions thereunder:

(a) A member's annual benefit payable in any limitation year from this retirement system shall in no event be greater than the limit applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the Internal Revenue Code and the regulations thereunder.

(b) For purposes of this section, the "annual benefit" means a benefit that is payable annually in the form of a straight life annuity. Except as provided below, where a benefit is payable in a form other than a straight life annuity, the benefit shall be adjusted to an actuarially equivalent straight life annuity that begins at the same time as such other form of benefit, using factors prescribed in the 415 limitation regulations, before applying the 415 limitations. No actuarial adjustment to the benefit shall be made for: (1) Survivor benefits payable to a surviving spouse under a qualified joint and survivor annuity to the extent such benefits would not be payable if the member's benefit were paid in another form; (2) benefits that are not directly related to retirement benefits (such as a qualified disability benefit, preretirement incidental death benefits, and post-retirement medical benefits); or (3) the inclusion in the form of benefit of an automatic benefit increase feature, provided the form of benefit is not subject to Section 417(e)(3) of the Internal Revenue Code and would otherwise satisfy the limitations of this article, and the plan provides that the amount payable under the form of benefit in any limitation year shall not exceed the limits of this article applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the Internal Revenue Code. For this purpose an automatic benefit increase feature is included in a form of benefit if the form of benefit provides for automatic, periodic increases to the benefits paid in that form.

(c) Adjustment for benefit forms not subject to Section 417(e)(3). -- The straight life annuity that is actuarially equivalent to the member's form of benefit shall be determined under this subsection if the form of the member's benefit is either: (1) A nondecreasing annuity (other than a straight life annuity) payable for a period of not less than the life of the member (or, in the case of a qualified preretirement survivor annuity, the life of the surviving spouse); or (2) an annuity that decreases during the life of the member merely because of: (i) The death of the survivor annuitant (but only if the reduction is not below fifty percent of the benefit payable before the death of the survivor annuitant); or (ii) the cessation or reduction of Social Security supplements or qualified disability payments (as defined in Section 401(a)(11) of the Internal Revenue Code). The actuarially equivalent straight life annuity is equal to the greater of: (I) The annual amount of the straight life annuity (if any) payable to the member under the plan commencing at the same annuity starting date as the member's form of benefit; and (II) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using a five percent interest rate assumption and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62) for that annuity starting date.

(d) Adjustment for benefit forms subject to Section 417(e)(3). -- The straight life annuity that is actuarially equivalent to the member's form of benefit shall be determined under this subsection if the form of the member's benefit is other than a benefit form described in subsection (c) of this section. In this case, the actuarially equivalent straight life annuity shall be determined as follows: The actuarially equivalent straight life annuity is equal to the greatest of: (1) The annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using the interest rate specified in this retirement system and the mortality table (or other tabular factor) specified in this retirement system for adjusting benefits in the same form; (2) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using a five and one-half percent interest rate assumption and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62) for that annuity starting date; and (3) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using the applicable interest rate defined in Treasury Regulation §1.417(e)-1(d)(3) and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (the mortality table specified in Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62), divided by 1.05.

(e) Benefits payable prior to age sixty-two. –

(1) Except as provided in subdivisions (2) and (3) of this subsection, if the member's retirement benefits become payable before age sixty-two, the 415 dollar limitation prescribed by this section shall be reduced in accordance with regulations issued by the Secretary of the Treasury pursuant to the provisions of Section 415(b) of the Internal Revenue Code, so that the limitation (as so reduced) equals an annual straight life benefit (when the retirement income benefit begins) which is equivalent to an annual benefit in the amount of the applicable dollar limitation of Section 415(b)(1)(A) of the Internal Revenue Code (as adjusted pursuant to Section 415(d) of the Internal Revenue Code) beginning at age sixty-two.

(2) The limitation reduction provided in subdivision (1) of this subsection shall not apply if the member commencing retirement benefits before age sixty-two is a qualified participant. A qualified participant for this purpose is a participant in a defined benefit plan maintained by a state, or any political subdivision of a state, with respect to whom the service taken into account in determining the amount of the benefit under the defined benefit plan includes at least fifteen years of service: (i) As a full-time employee of any police or fire department organized and operated by the state or political subdivision maintaining the defined benefit plan to provide police protection, firefighting services or emergency medical services for any area within the jurisdiction of such state or political subdivision; or (ii) as a member of the Armed Forces of the United States.

(3) The limitation reduction provided in subdivision (1) of this subsection shall not be applicable to preretirement disability benefits or preretirement death benefits.

(4) For purposes of adjusting the 415 dollar limitation for benefit commencement before age sixty-two or after age sixty-five, no adjustment is made to reflect the probability of a member's death: (i) After the annuity starting date and before age sixty-two; or (ii) after age sixty-five and before the annuity starting date.

(f) Adjustment when member has less than ten years of participation. -- In the case of a member who has less than ten years of participation in the retirement system (within the meaning of Treasury Regulation §1.415(b)-1(g)(1)(ii)), the 415 dollar limitation (as adjusted pursuant to Section 415(d) of the Internal Revenue Code and subsection (e) of this section) shall be reduced by multiplying the otherwise applicable limitation by a fraction, the numerator of which is the number of years of participation in the plan (or 1, if greater), and the denominator of which is ten. This adjustment shall not be applicable to preretirement disability benefits or preretirement death benefits.

§8-22A-11. Federal law minimum required distributions.

The requirements of this section apply to any distribution of a member’s or beneficiary’s interest and take precedence over any inconsistent provisions of this plan. This section applies to plan years beginning after December 31, 1986. Notwithstanding anything in the plan to the contrary, the payment of benefits under this article shall be determined and made in accordance with section 401(a)(9) of the Internal Revenue Code and the federal regulations promulgated thereunder as applicable to governmental plans, including without limitation the minimum distribution incidental benefit (MDIB) requirement of section 401(a)(9)(G) and the regulations thereunder, and the incidental benefit rule of section 1.401-1(b)(1)(i) of the regulations. Any term used in this article has the same meaning as when used in a comparable context in section 401(a)(9) of the Internal Revenue Code and the federal regulations promulgated thereunder unless a different meaning is clearly required by the context or definition in this article. The following provisions apply to payments of benefits required under this article:

(a) The payment of benefits under the plan to any member shall be distributed to him or her not later than the required beginning date, or be distributed to him or her commencing not later than the required beginning date, in accordance with regulations prescribed under section 401(a)(9) of the Internal Revenue Code, over the life of the member or over the lives of the member and his or her beneficiary or over a period not extending beyond the life expectancy of the member and his or her beneficiary: Provided, That the requirements of this section shall not be construed to grant a right to a form of benefit which is not otherwise available to a particular member under this retirement system: Provided, however, That if the member elects an annuity option which provides survivor benefits to a beneficiary who is not the member’s spouse, and the annuity option elected would provide survivor payments that exceed the applicable percentage permitted by the MDIB regulations under section 401(a)(9) of the Internal Revenue Code, the member’s annuity election shall be changed to the highest survivor annuity option offered under this plan which satisfies the MDIB regulations. Benefit payments under this section shall not be delayed pending, or contingent on, receipt of an application for retirement from the member.

(b) If a member dies after distribution to him or her has commenced pursuant to this section but before his or her entire interest in the plan has been distributed, then the remaining portion of that interest shall be distributed at least as rapidly as under the method of distribution being used at the date of his or her death.

(c) If a member dies before distribution to him or her has commenced, then his or her entire interest in the plan is to be distributed by December 31 of the calendar year containing the fifth anniversary of the member’s death, unless the provisions of subsection (d) of this section apply.

(d) If a member dies before distribution to him or her has commenced, and the member’s interest is eligible to be paid in the form of a survivor annuity to a designated beneficiary, distributions are to be made over the life of that beneficiary or over a period certain not greater than the life expectancy of that beneficiary, commencing on or before the following:

(1) December 31 of the calendar year immediately following the calendar year in which the member died; or

(2) If the member’s sole designated beneficiary is either the surviving spouse or a former spouse who, as an alternate payee under a Qualified Domestic Relations Order, is receiving 100 percent of the survivor benefit, distributions are to commence on or before the later of:

(A) December 31 of the calendar year in which the member would have attained age 70.5 (if born before July 1, 1949) or age 72 (if born after June 30, 1949); or

(B) December 31 of the calendar year immediately following the calendar year in which the member died.

(e) If a member dies before distribution to him or her has commenced and the survivor annuity provisions of subsection (d) of this section are not applicable, any designated beneficiary who is eligible to receive a distribution pursuant to the provisions of subsection (c) of this section may elect to have life expectancy treatment apply to the distribution for purposes of determining whether any portion of the distribution is an eligible rollover distribution: Provided, That any such election shall not delay the required distribution of the deceased member’s entire interest in the retirement system beyond December 31 of the calendar year containing the fifth anniversary of the member’s death as required by subsection (c) of this section: Provided, however, That the election is timely made in a form acceptable to the board on or before the following:

(1) December 31 of the calendar year immediately following the calendar year in which the member died; or

(2) If the member’s sole designated beneficiary is either the surviving spouse or a former spouse who, as an alternate payee under a Qualified Domestic Relations Order, is receiving 100 percent of the survivor benefit, election of life expectancy treatment must be made on or before the earlier of (A) or (B) below:

(A) The later of: (i) December 31 of the calendar year immediately following the calendar year in which the member died; or (ii) December 31 of the calendar year in which the member would have attained age 70.5 (if born before July 1, 1949) or age 72 (if born after June 30, 1949); or

(B) October 31 of the calendar year containing the fifth anniversary of the member’s death.

§8-22A-12. Direct rollovers.

Notwithstanding any provision of this article to the contrary that would otherwise limit a distributee's election under this plan, a distributee may elect, at the time and in the manner prescribed by the board, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. For purposes of this section, the following definitions apply:

(1) "Eligible rollover distribution" means any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include any of the following: (A) Any distribution that is one of a series of substantially equal periodic payments not less frequently than annually made for the life or life expectancy of the distributee or the joint lives or the joint life expectancies of the distributee and the distributee's designated beneficiary, or for a specified period of ten years or more; (B) any distribution to the extent the distribution is required under Section 401(a)(9) of the Internal Revenue Code; and (C) any hardship distribution described in Section 401(k)(2)(B)(i(iv) of the Internal Revenue Code. A portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includable in gross income. However, this portion may be paid only to an individual retirement account or annuity described in Section 408(a) or (b) of the Internal Revenue Code, or to a qualified trust described in Section 401(a) or to an annuity contract described in Section 403(a) or 403(b) of the Internal Revenue Code that agrees to separately account for amounts transferred (including interest or earnings thereon), including separately accounting for the portion of the distribution which is includable in gross income and the portion of the distribution which is not includable, or to a Roth IRA described in Section 408A of the Internal Revenue Code.

(2) "Eligible retirement plan" means an eligible plan under Section 457(b) of the Internal Revenue Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into the plan from this plan, an individual retirement account described in Section 408(a) of the Internal Revenue Code, an individual retirement annuity described in Section 408(b) of the Internal Revenue Code, an annuity plan described in Section 403(a) of the Internal Revenue Code, an annuity contract described in Section 403(b) of the Internal Revenue Code, a qualified plan described in Section 401(a) of the Internal Revenue Code that accepts the distributee's eligible rollover distribution, or a Roth IRA described in Section 408A of the Internal Revenue Code: Provided, That in the case of an eligible rollover distribution to a designated beneficiary (other than a surviving spouse) as the term is defined in Section 402(c)(11) of the Internal Revenue Code, an eligible retirement plan is limited to an individual retirement account or individual retirement annuity which meets the conditions of Section 402(c)(11) of the Internal Revenue Code.

(3) "Distributee" means an employee or former employee. In addition, the employee's or former employee's surviving spouse and the employee's or former employee's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans, are distributees with regard to the interest of the spouse or former spouse. The term "distributee" also includes a designated beneficiary (other than a surviving spouse) as the term is defined in Section 402(c)(11) of the Internal Revenue Code.

(4) "Direct rollover" means a payment by the plan to the eligible retirement plan.

§8-22A-13. Rollovers and transfers to repay withdrawn contributions.

(a) Notwithstanding any provision of this article to the contrary that would otherwise prohibit or limit rollovers and plan transfers to this system, the plan shall accept the following rollovers and plan transfers on behalf of a member solely for the purpose of the repayment of withdrawn or refunded contributions, in whole and in part, with respect to a previous forfeiture of service credit as otherwise provided in this article: (1) One or more rollovers within the meaning of Section 408(d)(3) of the Internal Revenue Code from an individual retirement account described in Section 408(a) of the Internal Revenue Code or from an individual retirement annuity described in Section 408(b) of the Internal Revenue Code; (2) one or more rollovers described in Section 402(c) of the Internal Revenue Code from a retirement plan that is qualified under Section 401(a) of the Internal Revenue Code or from a plan described in Section 403(b) of the Internal Revenue Code; (3) one or more rollovers described in Section 457(e)(16) of the Internal Revenue Code from a governmental plan described in Section 457 of the Internal Revenue Code; or (4) direct trustee-to-trustee transfers or rollovers from a plan that is qualified under Section 401(a) of the Internal Revenue Code, from a plan described in Section 403(b) of the Internal Revenue Code or from a governmental plan described in Section 457 of the Internal Revenue Code: Provided, That any rollovers or transfers pursuant to this section shall be accepted by the system only if made in cash or other asset permitted by the board and only in accordance with such policies, practices and procedures established by the board from time to time. For purposes of this section, "repayment of withdrawn or refunded contributions" means the payment into the retirement system of the funds required pursuant to this article for the reinstatement of service credit previously forfeited on account of any refund or withdrawal of contributions permitted in this article, as set forth in Section 415(k)(3) of the Internal Revenue Code.

(b) Nothing in this section may be construed as permitting rollovers or transfers into this system or any other system administered by the retirement board other than as specified in this section and no rollover or transfer shall be accepted into the system in an amount greater than the amount required for the repayment of withdrawn or refunded contributions.

(c) Nothing in this section shall be construed as permitting the repayment of withdrawn or refunded contributions except as otherwise permitted in this article.

§8-22A-14. Retirement benefits.

This section describes when adjustment of a member’s accrued benefit to reflect the difference in age, in years and months, between the member’s annuity starting date and the date the member attains normal retirement age shall be made. This age adjustment, when required, shall be made based on the normal form of benefit and shall be the actuarial equivalent of the accrued benefit at the member’s normal retirement age. The member shall receive the age adjusted retirement income in the normal form or in an actuarial equivalent amount in an optional form as provided under this article, subject to reduction if necessary to comply with the maximum benefit limitations of Section 415 of the Internal Revenue Code and §8-22A-10 of this code. The first day of the calendar month following the month of birth shall be used in lieu of any birth date that does not fall on the first day of a calendar month.

Normal retirement. — A member whose annuity starting date is the date the member attains normal retirement age is entitled to his or her accrued benefit without adjustment for age at commencement.

Retirement benefits shall be paid monthly in an amount equal to one twelfth of the retirement income payments elected and at those times established by the board.

§8-22A-15. Annuity options.

Prior to the effective date of retirement, but not after that date, a member may elect to receive retirement income payments in the normal form, or the actuarial equivalent of the normal form from the following options:

(a) Option A -- Contingent joint and survivor annuity. -- A life annuity payable during the joint lifetime of the member and his or her beneficiary who must be a natural person with an insurable interest in the member's life. On the death of the member, the benefit shall continue as a life annuity to the beneficiary in an amount equal to fifty percent, sixty-six and two-thirds percent, seventy-five percent or one hundred percent of the amount paid while both were living, as elected by the member. If the beneficiary dies first, the monthly amount of benefits may not be reduced, but shall be paid at the amount that was in effect before the death of the beneficiary. If the retiring member is married, the spouse shall sign a waiver of benefit rights if the beneficiary is to be other than the spouse.

(b) Option B -- Ten years certain and life annuity. -- A life annuity payable during the member's lifetime but in any event for a minimum of ten years. If the member dies before the expiration of ten years, the remaining payments shall be made to a designated beneficiary, if any, or otherwise to the member's estate.

§8-22A-16. Refunds to certain members on discharge or resignation; deferred retirement; preretirement death; forfeitures.

(a) Any member who terminates covered employment and is not eligible to receive disability benefits under this article is, by written request filed with the board, entitled to receive from the fund the member’s accumulated contributions. Except as provided in subsection (b) of this section, on withdrawal, the member shall forfeit his or her accrued benefit and cease to be a member.

(b)(1) Any member who ceases employment in covered employment and active participation in this plan and who thereafter becomes reemployed in covered employment may not receive any credited service for any prior accumulated contributions withdrawn from the plan unless following his or her return to covered employment and active participation in this plan, the member redeposits in the fund the amount of the accumulated contributions withdrawn from previous covered employment, together with interest on the accumulated contributions at the rate determined by the board from the date of withdrawal to the date of redeposit. On repayment he or she shall receive the same credit on account of his or her former covered employment as if no refund had been made.

(2) The repayment authorized by this subsection shall be made in a lump sum within 60 months of the police officer’s or firefighter’s reemployment in covered employment.

(c) Every member who completes 60 months of regular contributory service may, on cessation of covered employment, either withdraw his or her accumulated contributions in accordance with this section or choose not to withdraw his or her accumulated contribution and receive retirement income payments, if eligible, on attaining normal retirement age.

(d) If a member dies from any cause other than those specified in §8-22A-20 of this code and does not have 10 or more years of credited service, the member’s accumulated contributions may be paid to a named beneficiary or beneficiaries. If no beneficiary is named, then the accumulated contributions shall be paid to the estate of the deceased member.

(e) Notwithstanding any other provision of this article, forfeitures under the plan may not be applied to increase the benefits any member would otherwise receive under the plan.

§8-22A-17. Awards and benefits for disability — duty related; exception during early period.

(a) Except as provided in §8-22A-9(a) of this code, any member who after the effective date of this article and during covered employment: (1) Has been or becomes totally disabled by injury, illness or disease; and (2) the disability is a result of an occupational risk or hazard inherent in or peculiar to the services required of members; or (3) the disability was incurred while performing police officer or firefighter functions during either scheduled work hours or at any other time; and (4) in the opinion of two physicians after medical examination, at least one of whom shall be named by the board, the member is by reason of the disability not only unable to perform his or her previous work as a police officer or firefighter but also cannot, considering his or her age, education and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (A) The work exists in the immediate area in which the member lives; (B) a specific job vacancy exists; or (C) the member would be hired if he or she applied for work, is entitled to receive and shall be paid from the fund in monthly installments during the lifetime of the member or, if sooner, until the member attains normal retirement age or until the disability sooner terminates, the compensation under this section. For purposes of this article, substantial gainful employment is the same definition as used by the United States Social Security Administration.

(b) If the member is totally disabled, the member shall receive 90 percent of his or her average monthly compensation for months in which full compensation was received for the 12-month contributory period preceding the member’s disability or the shorter period if the member has not worked 12 months.

(c) If the member remains totally disabled until attaining 65 years of age, the member shall then receive the retirement benefit provided in §8-22A-14 and §8-22A-15 of this code.

(d) The disability benefit payments will begin the first day of the month following termination of employment and receipt of the disability retirement application by the Consolidated Public Retirement Board.

§8-22A-18. Awards and benefits for disability — due to other causes; exception during early period.

(a) Except as provided in §8-22A-9(a) of this code, any municipal police officer or municipal firefighter with 10 or more years of contributory service who, after the effective date of this article and during covered employment: (1) Has been or becomes totally disabled from any cause other than those set forth in §8-22A-17 of this code and not due to vicious habits, intemperance or willful misconduct on his or her part; and (2) in the opinion of two physicians after medical examination, at least one of whom shall be named by the board, he or she is by reason of the disability not only unable to perform his or her previous work as a police officer or firefighter but also cannot, considering his or her age, education and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (A) The work exists in the immediate area in which the member lives; (B) a specific job vacancy exists; or (C) the member would be hired if he or she applied for work, is entitled to receive and shall be paid from the fund in monthly installments during the lifetime of the member or, if sooner, until the member attains normal retirement age or until the disability sooner terminates, the compensation set forth in, either subsection (b) or (c) of this section.

(b) If the member is totally disabled, he or she shall receive 66 and two-thirds percent of his or her average monthly compensation for months in which full compensation was received for the 12-month contributory period preceding the disability.

(c) If the member remains totally disabled until attaining 60 years of age, then the member shall receive the retirement benefit provided in §8-22A-14 and §8-22A-15 of this code.

(d) The disability benefit payments will begin the first day of the month following termination of employment and receipt of the disability retirement application by the Consolidated Public Retirement Board.

§8-22A-19. Same -- Physical examinations; recertification; termination of disability.

The board may require any member who has applied for or is receiving disability benefits under this article to submit to a physical examination, mental examination or both, by a physician or physicians selected or approved by the board and may cause all costs incident to the examination and approved by the board to be paid from the fund. The costs may include hospital, laboratory, X-ray, medical and physicians' fees. A report of the findings of any physician shall be submitted in writing to the board for its consideration. If, from the report, independent information, or from the report and any hearing on the report, the board finds that the member is no longer totally disabled and is engaged in or is able to engage in substantial gainful employment, then the disability benefits shall cease. The board shall require recertification annually for the first three years of disability and thereafter at the discretion of the board. For purposes of recertification the board may require a disability retirant to undergo a medical examination to be made by or under the direction of a physician designated by the board, or to submit a statement signed by the disability retirant's physician certifying continued disability, and may require the retirant to submit copies of annual income tax returns. If a retirant refuses to submit to medical examinations or to provide statements or returns requested for recertification, the board may discontinue disability until the retirant complies.

§8-22A-20. Awards and benefits to surviving spouse -- When member dies in performance of duty, etc.; exception during early period.

(a) Except as provided in subsection (a), section nine of this article, the surviving spouse of any member who, after the effective date of this article while in covered employment, has died or dies by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or peculiar to the service required of members, while the member was or is engaged in the performance of his or her duties as a police officer or firefighter, or the surviving spouse of a member who dies from any cause while receiving benefits pursuant to section seventeen of this article, is entitled to receive and shall be paid from the fund benefits as determined in this section. To the surviving spouse annually, in equal monthly installments during his or her lifetime, an amount equal to the greater of: (1) Two thirds of the annual compensation received in the preceding twelve-month period by the deceased member; or (2) if the member dies after his or her normal retirement age, the monthly amount which the spouse would have received had the member retired the day before his or her death, elected a one hundred percent joint and survivor annuity with the spouse as the joint annuitant, and then died.

(b) Benefits for a surviving spouse received under this section, section twenty-two and section twenty-three of this article are in lieu of receipt of any other benefits under this article for the spouse or any other person or under the provisions of any other state retirement system based on the member's covered employment.

§8-22A-21. Awards and benefits to surviving spouse -- When member dies from nonservice-connected causes.

(a) If a member who has been a member for at least ten years, while in covered employment after the effective date of this article, has died or dies from any cause other than those specified in section twenty of this article and not due to vicious habits, intemperance or willful misconduct on his or her part, the fund shall pay annually in equal monthly installments to the surviving spouse during his or her lifetime, a sum equal to the greater of: (1) One-half of the annual compensation received in the preceding twelve-month employment period by the deceased member; or (2) if the member dies after his or her normal retirement age, the monthly amount which the spouse would have received had the member retired the day before his or her death, elected a one hundred percent joint and survivor annuity with the spouse as the joint annuitant, and then died. If the member is receiving disability benefits under this article at the time of his or her death, the amount of the average monthly compensation which the member was receiving in the plan year prior to the initial disability shall be substituted for the annual compensation in subdivision (1) of this subsection.

(b) Benefits for a surviving spouse received under this section, or other sections of this article are in lieu of receipt of any other benefits under this article for the spouse or any other person or under the provisions of any other state retirement system based on the member's covered employment.

§8-22A-22. Additional death benefits and scholarships - Dependent children.

(a) Except as provided in §8-22A-9(a) of this code, in addition to the spouse death benefits in this article, the surviving spouse is entitled to receive and there shall be paid to the spouse $100 monthly for each dependent child.

(b) If the surviving spouse dies while receiving death benefits provided in §8-22A-20 or §8-22A-21 of this code, or if there is no surviving spouse, the fund shall pay monthly to each dependent child a sum equal to 100 percent of the spouse’s entitlement under this article divided by the number of dependent children. If there is neither a surviving spouse nor a dependent child, the fund shall pay in equal monthly installments to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is only one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive: Provided, however, That if there is no surviving spouse, dependent child or dependent parent of the deceased member, the accumulated contributions shall be paid to a named beneficiary or beneficiaries: Provided further, That if there is no surviving spouse, dependent child or dependent parent of the deceased member, or any named beneficiary or beneficiaries, then the accumulated contributions shall be paid to the estate of the deceased member.

(c) Any person qualifying as a dependent child under this section, in addition to any other benefits due under this or other sections of this article, is entitled to receive a scholarship to be applied to the career development education of that person. This sum, up to but not exceeding $7,500 per year, shall be paid from the fund to any higher education institution in this state, career-technical education provider in this state or other entity in this state approved by the board, to offset the expenses of tuition, room and board, books, fees or other costs incurred in a course of study at any of these institutions so long as the recipient makes application to the board on an approved form and under rules provided by the board and maintains scholastic eligibility as defined by the institution or the board. The board may propose legislative rules for promulgation in accordance with §29A-3-1 et seq. of this code which define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary and not inconsistent with this section. Scholarship benefits awarded pursuant to this subsection are not subject to division or payable to an alternate payee by any Qualified Domestic Relations Order.

§8-22A-23. Burial benefit.

Except as provided in subsection (a), section nine of this article, any member who dies as a result of any service-related illness or injury after the effective date is entitled to a lump sum burial benefit of $5,000. If the member is married, the burial benefit shall be paid to the member's spouse. If the member is not married, the burial benefit shall be paid to the member's estate for the purposes of paying burial expenses, settling the member's final affairs, or both. Burial benefits awarded pursuant to this section are not subject to division or payable to an alternate payee by any Qualified Domestic Relations Order.

§8-22A-24. Double death benefits prohibited.

A surviving spouse is not entitled to receive simultaneous death benefits under this article as a result of the death of two or more members to whom the spouse was married. Any spouse who becomes eligible for a subsequent death benefit under this article while receiving a death benefit under this article shall receive the higher benefit, but not both.

§8-22A-25. Right to benefits not subject to execution, etc.; assignments prohibited; deductions for group insurance; setoffs for fraud; exception for certain domestic relations orders; assets exempt from taxes.

The right of a person to any benefit provided in this article shall not be subject to execution, attachment, garnishment, the operation of bankruptcy or insolvency laws, or other process whatsoever, nor shall any assignment thereof be enforceable in any court except that the benefits or contributions under this system shall be subject to "qualified domestic relations orders" as that term is defined in Section 414(p) of the Internal Revenue Code as applicable to governmental plans: Provided, That should a member be covered by a group insurance or prepayment plan participated in by a participating public employer, and should he or she be permitted to, and elect to, continue such coverage as a retirant, he or she may authorize the board of trustees to have deducted from his or her annuity the payments required of him or her to continue coverage under such group insurance or prepayment plan: Provided, however, That a participating public employer shall have the right of setoff for any claim arising from embezzlement by, or fraud of, a member, retirant or beneficiary. The assets of the retirement system are exempt from state, county and municipal taxes.

§8-22A-26. Fraud; penalties; and repayment.

Any person who knowingly makes any false statement or who falsifies or permits to be falsified any record of the retirement system in any attempt to defraud that system is guilty of a misdemeanor and, on conviction thereof, shall be punished by a fine not to exceed $1,000, by confinement in jail not to exceed one year, or by both fine and confinement. Any increased benefit received by any person as a result of the falsification or fraud shall be returned to the fund on demand by the board.

§8-22A-27. Credit toward retirement for member's military service; qualified military service.

(a) Each member shall receive months of credited service for months served in active military duty not to exceed twenty-four months: Provided, That any employee may purchase as much as an additional twelve months of service for time served in active military duty that otherwise has not been credited, by paying the actuarial reserve lump sum purchase amount within three years after becoming vested.

(b) "Actuarial reserve lump sum purchase amount" means the purchase annuity rate multiplied by the purchase accrued benefit. The purchase annuity rate is the actuarial lump sum annuity factor calculated on a monthly basis based on the following actuarial assumptions: Interest rate of seven and one-half percent; mortality of the 1983 group annuity mortality table, male rates, applied on a unisex basis to all members; if purchase age is under age fifty, a deferred annuity factor with payments commencing at age fifty; and if purchase age is fifty or over, an immediate annuity factor with payments starting at the purchase age. The purchase accrued benefit is two and three-fourths percent times the purchase military service times the purchase average monthly salary. The purchase military service is the amount of military service being purchased by the employee as a fraction of a year up to a one year maximum. The purchase average monthly salary is the final average monthly salary of the employee at the beginning of the month which is three months prior to the purchase month as if the employee terminated employment on that date. The purchase month is the month in which the employee deposits the actuarial reserve lump sum purchase amount into the plan trust fund in full payment of the service being purchased. The purchase age is the attained age of the employee in years and completed months as of the first day of the purchase month.

(c) Members who are eligible to receive credited service for periods of active military duty must substantiate to the retirement board:

(1) That the member has served one or more periods of active duty as substantiated by a federal form DD-214;

(2) That the member has been honorably discharged from active military duty as substantiated by a federal form DD-214; and

(3) That the member is receiving no benefits from any other governmental retirement system, except those benefits provided by federal law, for his or her active military duty.

(d) Any service credit allowed under this section may be credited one time only for each municipal police officer or municipal firefighter, regardless of any changes in job title or responsibilities.

(e) Notwithstanding any provision of this section to the contrary, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this section, "qualified military service" has the same meaning as in Section 414(u) of the Internal Revenue Code. The retirement board is authorized to determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the board in section one, article ten-d, chapter five of this code, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.

(f) Any contribution under this section to purchase service for time served in active military duty must satisfy the special limitation rules described in Section 415(n) of the Internal Revenue Code to the extent it is considered permissive service credit, and shall be automatically reduced, limited, or required to be paid over multiple years (consistent with the time limits under this section for making such contributions) if necessary to ensure such compliance. To the extent the purchased service is qualified military service within the meaning of Section 414(u) of the Internal Revenue Code, the limitations of Section 415 of the Internal Revenue Code shall be applied to the purchase as described in Section 414(u)(1)(B) of the Internal Revenue Code.

(g) The retirement board may propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to administer the provisions of this section.

(h) Notwithstanding the preceding provisions of this section, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this section, "qualified military service" has the same meaning as in Section 414(u) of the Internal Revenue Code.

§8-22A-28. How a municipality or municipal subdivision becomes a participating public employer; duty to request referendum on Social Security coverage.

(a) Subject to §8-22-16 of this code, any municipality or municipal subdivision employing municipal police officers or firefighters may by a majority of the members of its governing body eligible to vote, elect to become a participating public employer and thereby include its police officers and firefighters in the membership of the plan. The clerk or secretary of each municipality or municipal subdivision electing to become a participating public employer shall certify the determination of the municipality or municipal subdivision by corporate resolution to the Consolidated Public Retirement Board within 10 days from and after the vote of the governing body. Separate resolutions are required for municipal police officers and municipal firefighters. Once a municipality or municipal subdivision elects to participate in the plan, the action is final and it may not, at a later date, elect to terminate its participation in the plan.

(b) On or before October 1, 2024, all participating employers shall submit a plan to the State Auditor, as the designated state agency under the Social Security Act, to extend Social Security benefits to members of the retirement system as authorized by §5-7-5 of this code and applicable federal laws. The State Auditor shall assist the participating employers in complying with the requirements for providing extension of Social Security benefits to members of the retirement system.

§8-22A-29. Effective date; special starting date for benefits; provisions governing health care benefits for retirees age fifty to fifty-five.

(a) The effective date of this article is January 1, 2010. No payout of any benefits may be made by the retirement system to any person prior to January 1, 2013, except as provided in subsection (a), section nine of this article.

(b) The Director of the Public Employees Insurance Agency shall include in the insurance plan document filed in the office of the Secretary of State as 151 CSR 1 provisions governing health insurance benefits for retirees under the plan who are enrolled by their employers in insurance provided by the Public Employees Insurance Agency.

§8-22A-30. Limitation of employer liability.

No municipality or municipal subdivision which has timely met all of its obligations under this article is liable for any payments or contributions to the retirement plan which are owed to the plan by another participating employer.

§8-22A-31. Benefits not forfeited if system terminates.

If the retirement system is terminated or contributions are completely discontinued, the rights of all members to benefits accrued or contributions made to the date of the termination or discontinuance, to the extent then funded, are not forfeited.

§8-22A-32. Membership retroactive in certain circumstances.

(a) Notwithstanding all other provisions relating to this article and article twenty-two of this chapter, any police officer or firefighter hired by a participating public employer on or after June 1, 2009, and before January 1, 2010, who received notice at the time of employment that he or she may be placed in a new retirement system created by legislation and who has been enrolled in but received no benefits from a municipal policemen’s or firemen’s pension and relief fund shall, if permitted by applicable federal law, be enrolled in the Municipal Police Officers and Firefighters Retirement System upon acceptance by the Consolidated Public Retirement Board of the resolution of the municipality required by section twenty-eight of this article. Employee and employer contributions made by or on behalf of the employee to the municipal pension and relief fund pursuant to article twenty-two of this chapter shall be transferred within sixty days to the retirement system created in this article and the employee subject to the transfer shall receive service credit for time worked while a member of the municipal pension and relief fund.

(b) Notwithstanding any other provision of the code to the contrary, any police officer or firefighter hired by a participating public employer on or after July 1, 2015, who chooses pursuant to section thirty-three of this article to be a member of the plan, shall be a member of the plan upon acceptance by the Consolidated Public Retirement Board of the notification by the municipality required by section thirty-three of this article.

(1) The Consolidated Public Retirement Board shall transfer assets and service credit earned on or after July 1, 2015, from the Public Employees Retirement System Trust Fund into the West Virginia Municipal Police Officers and Firefighters Retirement Fund for those police officers or firefighters who elect to be a member of the plan and were members in the Public Employees Retirement System no later than sixty days from receipt of notification by the municipality or municipal subdivision of the police officer or firefighter’s election to become a member.  The amount of service credit recognized by the plan for the transferring employees shall be the service credit transferred and recognized by the Public Employees Retirement System.

(2) The amount of assets to be transferred for each police officer or firefighter shall be computed as of the actuarial valuation date preceding the notification to the Consolidated Public Retirement Board by the municipality or municipal subdivision of the police officer or firefighter’s election to become a member and updated with seven and one-half percent annual interest to the date of the actual asset transfer. For purposes of this section, the actuarial valuation date is the most recent actuarial valuation of the Public Employees Retirement System approved by the Consolidated Public Retirement Board. The market value of the assets of the transferring employees in the Public Employees Retirement System shall be determined as of the end of the month preceding the actual transfer. To determine the computation of the asset share to be transferred, the Consolidated Public Retirement Board shall:

(A) Compute the market value of the Public Employees Retirement System assets using the actuarial valuation date;

(B) Compute the actuarial accrued liabilities for all Public Employees Retirement System retirees, beneficiaries, disabled retirees and terminated inactive members using the actuarial valuation date:

(C) Compute the market value of active member assets in the Public Retirement System as of the actuarial valuation date by reducing the assets value under paragraph (A) of this subdivision by the inactive liabilities under paragraph (B) of this subdivision;

(D) Compute the actuarial accrued liability for all active Public Employees Retirement System members using the actuarial valuation date immediately preceding the computation date;

(E) Compute the funded percentage of the active members' actuarial accrued liabilities under the Public Employees Retirement System as of the actuarial valuation date by dividing the active members' market value of assets under paragraph (C) of this subdivision by the active members' actuarial accrued liabilities under paragraph (D) of this subsection;

(F) Compute the actuarial accrued liabilities under the Public Employees Retirement System as of the actuarial valuation date for active employees transferring to the plan;

(G) Determine the assets to be transferred from the Public Employees Retirement System to the plan by multiplying the active members' funded percentage determined under paragraph (E) of this subdivision by the transferring active members' actuarial accrued liabilities under the Public Employees Retirement System under paragraph (F) of this subdivision and adjusting the asset transfer amount by interest at seven and five-tenths percent for the period from the calculation date of July 1 through the first day of the month in which the asset transfer is to be completed.

(3) Any police officer or firefighter who elects to become a member of the plan must also pay to the plan a four percent contribution no later than June 30, 2019.  The contribution shall be calculated as four percent of the member’s total earnings for which assets are transferred, plus interest of seven and one-half percent accumulated from the date of the police officer’s or firefighter’s initial participation in the Public Employees Retirement System through the calculation date.  Installment payments may be made over no more than a twenty-four month period plus seven and one-half percent interest shall accrue on the outstanding balance due from the calculation date until paid in full.

(4) Once an employee transfers from the Public Employees Retirement System to the plan, the Public Employees Retirement System shall bar any further liability and said transfer will constitute an agreement whereby the transferring employee forever indemnifies and holds harmless the Public Employees Retirement System from providing him or her any form of retirement benefit whatsoever until that employee obtains other employment which would make him or her eligible to reenter the Public Employees Retirement System with no credit whatsoever for the amounts transferred to the plan.

§8-22A-33.  Special authorization for municipal police or firefighters hired after July 1, 2015.

(a) Notwithstanding any provision of this code to the contrary, any municipality or municipal subdivision that employs individuals as members of paid police departments or paid fire departments, but did not establish either a municipal policemen’s pension and relief fund or a municipal firemen’s pension and relief fund as provided in section sixteen, article twenty-two of this chapter and whose current police officers or firefighters are participating in the Public Employees Retirement System may elect, in the same manner as provided in section twenty-eight of this article, to become a participating public employer in the plan and thereby include its police officers and firefighters in the membership of the plan subject to the restrictions provided in this section.

(b) The municipality or municipal subdivision may elect to include only police officers and firefighters who have been hired on or after July 1, 2015, to become members of the plan.  Police officers and firefighters hired before July 1, 2015, will remain members of the Public Employees Retirement System.

(c) The municipality or municipal subdivision must make its election on or prior to July 1, 2017.

(d) Once a municipality or municipal subdivision makes its election to become a participating public employer pursuant to this section and section twenty-eight of this article, all police officers and firefighters hired by the municipality or municipal subdivision after the date of election shall be members of the plan: Provided, That police officers and firefighters hired by the municipality or municipal subdivision on or after July 1, 2015, who are members of the Public Employees Retirement System, may choose to become a member of the plan by notifying the municipality or municipal subdivision on a form provided by the Consolidated Public Retirement Board:  Provided, however, That he or she make this decision within ninety days of the municipality or municipal subdivision’s decision to participate in the plan.  A municipality or municipal subdivision making an election to become a participating public employer pursuant to section twenty-eight of this article that has hired any police officer or firefighter on or after July 1, 2015, shall notify each police officer or firefighter hired on or after July 1, 2015, of its election to become a participating public employer within thirty days of making the election.  This notice shall include instructions as to how a police officer or firefighter may make notification to the municipality or municipal subdivision of his or her decision to become a member in the plan. The municipality or municipal subdivision shall notify the Consolidated Public Retirement Board in writing of any police officer or firefighter hired after July 1, 2015, who has decided to become a member of the plan and terminate his or her membership in the Public Employees Retirement System within thirty days of notification by the police officer or firefighter on forms provided by the Consolidated Public Retirement System.

PART I. PURPOSE; DEFINITIONS.

§8-23-1. Statement of purpose.

It is the purpose of this article to permit local governmental units to make the most efficient use of their power and authority by enabling them to cooperate with each other on a basis of mutual advantage and to consolidate functions and thereby to provide services and facilities in a manner and pursuant to forms of governmental organization which will result in economies in the operation of local government and which will accord best with the geographic, economic, population and other factors influencing the needs and development of local governmental services and facilities, and thus promote the public health, safety and welfare.

§8-23-2. Definitions.

For the purposes of this article:

(1) The term "public agency" shall mean any municipality, county or other political subdivision of this state, or any county board of education of this state; and

(2) The term "public works" shall mean any improvement or project involving an outlay of a capital nature which may be required by or convenient for the purposes of any public agency, including, without limiting the generality of the foregoing, the construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement, increase, equipment, maintenance, repair (including replacements) and operation of jails, jail facilities, municipal buildings, police stations, fire stations, libraries, museums, other public buildings, incinerator plants, land fill or other garbage disposal systems, hospitals, piers, docks, terminals, airports, drainage systems, flood control systems, floodwalls, sewers, culverts, bridges (including approaches, causeways, viaducts, underpasses and connecting roadways), public markets, cemeteries, motor vehicle parking facilities (including parking lots, buildings, ramps, curb-line parking, meters and other facilities deemed necessary, appropriate, useful, convenient or incidental to the regulation, control and parking of motor vehicles), stadiums, gymnasiums, sports arenas, Auditoriums, public recreation centers, public recreation parks, swimming pools, roller skating rinks, ice skating rinks, tennis courts, golf courses, polo grounds, or other public improvements, or the grading, regrading, paving, repaving, surfacing, resurfacing, curbing, recurbing, widening or otherwise improving of any street, avenue, road, alley or way.

PART II. INTERGOVERNMENTAL AGREEMENTS AND CONTRACTS.

§8-23-3. Intergovernmental agreements generally.

Any power or powers, privilege or privileges, authority or undertaking, exercised or capable of exercise, or which may be engaged in, and any public works which may be undertaken, by a public agency acting alone may be exercised, enjoyed, engaged in or undertaken jointly with any other public agency which could likewise act alone.

Any two or more public agencies may enter into a written agreement with one another for joint or cooperative action pursuant to the provisions of this section. Appropriate action by ordinance, resolution or otherwise pursuant to law of the governing bodies of the participating public agencies shall be necessary before any such agreement shall become effective. Any separate legal or administrative entity established hereunder is a public corporation and may exist for the length of time set forth in the intergovernmental agreement.

Any such agreement shall specify the following:

(1) Its duration;

(2) The precise organization, composition and nature of any separate legal or administrative entity created thereby, together with the powers delegated thereto, provided such entity may be legally created;

(3) Its purpose or purposes;

(4) The manner of financing the joint or cooperative undertaking and of establishing and maintaining a budget therefor;

(5) The permissible method or methods to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon such partial or complete termination; and

(6) Any other necessary and proper matters.

In the event that the agreement does not establish a separate legal or administrative entity to conduct the joint or cooperative undertaking, the agreement shall, in addition to the items enumerated above, contain the following:

(1) Provision for an administrator or a joint board responsible for administering the joint or cooperative undertaking and in the event a joint board is provided for, there shall be a representative on the board from each of the public agencies which are party to the agreement; and

(2) The manner of acquiring, holding and disposing of real and personal property used in the joint or cooperative undertaking.

No agreement made pursuant to the provisions of this section shall relieve any public agency of any obligation or responsibility imposed upon it by law, except that to the extent of actual and timely performance thereof by a joint board or other legal or administrative entity created by an agreement made hereunder, said performance may be offered in satisfaction of the obligation or responsibility.

Every agreement made pursuant to the provisions of this section shall, prior to and as a condition precedent to its becoming effective, be submitted to the Attorney General who shall determine whether the agreement is in proper form and is compatible with the laws of this state. The Attorney General shall approve any such agreement submitted to the Attorney General unless the Attorney General shall find that it does not meet the conditions set forth herein, in which event shall detail in writing to the governing bodies of the public agencies concerned the specific respects in which the proposed agreement fails to meet the requirements of law. Failure to disapprove any such agreement so submitted within thirty days of its submission shall constitute approval thereof.

The financing of joint projects by agreement shall be as provided by law.

§8-23-3a. Joint and cooperative undertakings by certain hospitals.

Any county or municipal hospital or hospital created by special act of the Legislature may enter into a joint or cooperative undertaking pursuant to this article and may further enter into joint or cooperative undertakings with private agencies or corporations in accordance with this section. The expenditure of public funds, allocation of personnel and provision of services for joint and cooperative undertakings are authorized. The undertaking may include the creation of a separate entity to carry out the purpose of the undertaking and, if appropriate in connection with the undertaking, may include provision for the ownership or control of all or a portion of the separate entity by the hospital. The contribution of funds derived from the operation of a hospital, and real or personal property acquired in connection with the operation of the hospital, may be contributed to the joint undertaking or separate entity, if the hospital owns or controls all or a portion of the separate entity or joint undertaking. All joint and cooperative undertakings are subject to the following limitations:

(1) All joint and cooperative undertakings entered into by a hospital are subject to the provisions of article two-d, chapter sixteen of this code;

(2) For any joint and cooperative undertaking entered into by a hospital, which undertaking involves the expenditure of public funds and includes the creation of a separate entity to carry out the purpose of the undertaking, the separate entity created is subject to the provisions of article nine-a, chapter six and articles five-b and five-g, chapter sixteen of this code;

(3) For any joint and cooperative undertaking entered into by a hospital, which undertaking involves the expenditure of public funds and includes the creation of a separate entity to carry out the purpose of the undertaking, the separate entity created is subject to the same charity care obligation as the hospital;

(4) The board of the hospital must find by resolution that the purposes of the joint and cooperative undertaking further the same public purpose and are in keeping with the mission and vision for which the hospital was created;

(5) Appropriate action by resolution of the governing board of the hospital is necessary before any agreement for a joint or cooperative undertaking may take effect. For any joint and cooperative undertaking which involves the contribution of real property acquired in connection with the operation of the hospital, appropriate action by ordinance, resolution or otherwise pursuant to the law of the governing body of the municipality, in the case of a municipal hospital; by ordinance, resolution or otherwise pursuant to the law of the county commission in the case of a county hospital; or appropriate action by ordinance, resolution or otherwise pursuant to the law of both the municipality where the hospital is located and the county commission of the county where the hospital is located, in the case of a hospital created by special act of the Legislature and involving the contribution of public funds of both counties and municipalities, shall be necessary before any agreement for a joint or cooperative undertaking may take effect. An agreement entered into by a hospital pursuant to this section shall contain substantially the same provisions as set forth in section three of this article. No agreement made pursuant to the provisions of this section shall relieve any hospital of any obligation or responsibility imposed upon it by law, except to the extent that actual and timely performance thereof by a joint board or other legal or administrative entity created by an agreement made hereunder may be offered in satisfaction of the obligation or responsibility; and

(6) No agreement for a joint and cooperative undertaking entered into pursuant to this article may contain any provision intended to or having the effect of reducing reimbursements to local or community-based emergency services or ambulance providers, or reducing the extent to which services are provided by local or community-based emergency services or ambulance providers in the geographic area served by a provider.

§8-23-4. Filing of intergovernmental agreements.

Before an agreement made pursuant to the provisions of section three of this article may become effective, a copy of the same must be filed with the recorder of any municipality party thereto and with the clerk of the county court of any county party thereto, and, as to any other public agency party thereto, with the officer in charge of the records thereof. When a municipality is a party, a copy of the agreement must also be filed with the State Tax Commissioner before such agreement becomes effective.

§8-23-5. Additional approval of intergovernmental agreements required in certain cases.

In the event that an agreement entered into pursuant to the provisions of section three of this article shall deal in whole or in part with the providing of services or facilities with respect to which an officer or agency of this state has Constitutional or statutory powers of control, the agreement shall, as a condition precedent to its becoming effective, be submitted to the state officer or agency having such power of control and shall be approved or disapproved by him or it as to all matters within his or its jurisdiction in the same manner and subject to the same requirements and provisions governing the action of the Attorney General under said section three of this article. This requirement of the submission and approval shall be in addition to and not in substitution for the requirement of submission to and approval by the Attorney General.

§8-23-6. Appropriations; furnishing of property, personnel and services.

Any public agency entering into an agreement pursuant to the provisions of section three of this article is hereby empowered and authorized to appropriate funds to, and to sell, lease, transfer or otherwise supply real or personal property to, and to furnish personnel and services to, the administrative joint board or other legal or administrative entity created to operate the joint or cooperative undertaking if the public agency provides the funds and property in compliance with the provisions of this code or other applicable law. The board or entity is hereby empowered and authorized to receive, expend and utilize the same.

§8-23-7. Contract between public agencies for one public agency to perform a service, etc., for another public agency.

Any one or more public agencies are hereby empowered and authorized to contract with any one or more other public agencies for the performance of any governmental service, activity or undertaking which each public agency entering into the contract is authorized by law to perform, provided that such contract shall be authorized by the governing body of each party to the contract. Such contract shall set forth fully the purposes, power, authority, rights, objectives and responsibilities of the contracting parties. Any contracting party may make such payments for the performance of such service, activity or undertaking and as reimbursement for expenses incurred with respect thereto, as may be specified in the contract, and the public agency to which such payments are to be made is hereby empowered and authorized to receive the same.

§8-23-8. Duration of intergovernmental agreements and contracts.

(a) If an intergovernmental agreement, entered into in accordance with the provisions of section three of this article, and if a contract for the performance of a service, activity or undertaking entered into in accordance with the provisions of section seven of this article does not create a financial obligation for a public agency except as provided by statute or other applicable law, the agreement or contract is of a duration as is specified in the agreement or contract.

(b) If an intergovernmental agreement entered into in accordance with the provisions of section three of this article, and if any contract for the performance of a service, activity or undertaking entered into in accordance with the provisions of section seven of this article, creates a financial obligation for a public agency, the agreement or contract is one fiscal year, but the same may be annually renewed each fiscal year: Provided, That any such agreement or contract may be for such period in excess of one fiscal year as is specified in the agreement or contract, if such agreement or contract is ratified by a majority of the legal votes cast by the qualified voters of the several jurisdictions represented by the contracting parties voting separately at a regular or special election.

PART III. CONSTRUCTION.

§8-23-9. Construction.

The provisions of this article are in addition to and not in derogation of any power and authority vested in any public agency under any Constitutional, statutory or charter provisions which may now or hereafter be in effect, and under no circumstances whatever shall the provisions of this article be construed as in any way limiting the power and authority to take joint or cooperative action or enter into agreements or contracts granted in other articles of this chapter.

§8-24-1.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-2.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-3.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-4.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-5.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-6.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-7.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-8.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-9.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-10.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-11.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-12.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-13.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-14.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-15.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-16.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-17.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-18.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-19.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-20.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-21.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-22.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-23.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-24.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-25.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-26.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-27.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-28.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-29.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-30.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-31.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-32.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-33.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-34.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-35.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-36.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-37.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-38.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-39.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-40.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-41.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-42.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-43.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-44.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-45.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-46.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-47.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-48.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-49.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-50.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-50a.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-50b.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-51.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-52.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-53.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-54.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-55.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-56.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-57.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-58.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-59.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-60.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-61.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-62.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-63.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-64.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-65.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-66.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-67.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-68.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-69.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-70.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-71.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-72.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-73.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-73a.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-73b.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-73c.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-73d.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-74.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-74a.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-74b.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-74c.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-75.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-76.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-77.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-78.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-79.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-80.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-81.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-82.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-83.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-84.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-85.

Repealed.

Acts, 2004 Reg. Sess., Ch. 153.

§8-24-86.

Repealed.

Acts, 2005 Reg. Sess., Ch. 169.

§8-24-87.

Repealed.

Acts, 2005 Reg. Sess., Ch. 169.

§8-25-1. Legislative findings and purposes.

The Legislature hereby finds and declares that as a result of changes in the economy, population shifts, new transportation demands and increasing demands for public services, and as a result of increasing complexity in government programs and added demands on public revenues, there is a need to plan comprehensively for the future development of West Virginia and to provide for the efficient management of limited public revenues for the purpose of promoting the orderly development of the state and harmonizing the development of the state's governmental, social, economic, environmental and physical resources, while maintaining acceptable levels of public services and facilities toward the end of promoting the general health, safety and welfare of all its citizens. The Legislature further finds that the responsibility for planning and development rests with the Governor of the state, as the state's chief planning officer. The Legislature hereby further finds and declares that problems of growth and development so transcend the boundary lines of governmental units that no single unit can plan for the solution of these problems without affecting other units of government; that intergovernmental cooperation on a regional basis is an effective method to approach common planning and development problems and to seek more efficient and economical solutions to common problems of local government; and that assistance of the state is needed to make the most effective use of local, state, federal and private resources and funding in serving the citizens of all the state and of such regions; and the Legislature further finds that any assistance provided by the state for the purpose of this article is for the benefit of all its citizens and for a public purpose.

It is, therefore, the purpose of this article to delegate to the Governor, the responsibility for planning and development in order to (1) achieve the objectives and policies necessary for the orderly growth and development of the state; (2) facilitate intergovernmental cooperation; and (3) designate regions and provide for the creation of regional planning and development councils; all being hereby declared to be public purposes.

§8-25-2. Definitions.

The following terms, wherever used or referred to in this article, shall have the following meanings unless a different meaning clearly appears from the context:

(a) "Comprehensive planning" shall mean the process of (1) assessing, within a geographic area, the needs and resources of the area; (2) formulating goals, objectives, policies and standards to guide its long-range governmental, social, economic, environmental and physical development; and (3) preparing plans and programs therefor which (a) identify alternative courses of action and the spatial and functional relationships among the activities to be carried out thereunder; (b) specify the appropriate ordering in time of such activities; (c) take into account other relevant factors affecting the achievement of the desired development of the area; and (d) provide an overall framework and guide for the preparation of functional and project development plans.

(b) "Development" shall mean the process of implementing, carrying out, effectuating, administering or otherwise performing the activities, processes, steps or operations as necessary to meet the comprehensive planning goals, objectives, programs and plans formulated, accepted, adopted or approved as a result of comprehensive planning.

(c) "Region" shall mean a specific geographic area consisting of at least one county or two or more contiguous counties in which a regional council may exercise authority and powers in accordance with the provisions of this article.

(d) "Regional council" shall mean a regional planning and development council established pursuant to the provisions of this article.

§8-25-3. Powers and duties of Governor generally.

The Governor, as chief executive officer of the state, shall be responsible for planning and development of the state's governmental, social, health, economic, environmental and physical resources. In executing this responsibility, the Governor shall:

(1) Prepare, revise and update state development plans which shall, at least annually, submit to the Legislature. Such plans shall identify and stress statewide goals, objectives and opportunities, giving appropriate consideration to regional council and local governmental plans; and shall include, but not be limited to, population and economic analysis; appraisals of the state's natural resources; general land use policies; policies for housing and urban development; transportation policies; policies for health services; manpower programs; employment opportunities; education; law enforcement; environmental protection and other programs; projection of needs for public facilities, recreation and open space; and policies for intergovernmental relations and governmental organization: Provided, That once a regional plan is submitted to the Governor by a regional council for his consideration in preparing, revising or updating a state plan, the Governor shall have a period of sixty days from the date such regional plan is received by within which to specify in writing to the regional council his objection or objections to such regional plan, and if no such objection or objections are so specified, then such regional plan shall become a part of the state plan being prepared, revised or updated; and if any such objection or objections are so specified, the regional council shall have a period of sixty days from the date of receipt of such specification within which to modify its regional plan or otherwise respond to such objection or objections, and, thereafter, the Governor shall, in preparing, revising or updating a state plan, give such consideration to such original regional plan, modified regional plan or other response of the regional council, as the case may be, as deems appropriate;

(2) Advise and consult with regional councils and regional and local planning agencies in developing state development plans and studies;

(3) Facilitate the coordination of planning and development activities of all state departments, agencies and institutions; local governments; regional councils; and other public and private agencies within the state;

(4) Review local, areawide and state applications for planning and development assistance;

(5) Review and appraise the progress of state government in achieving the goals and objectives set forth in the state development plans;

(6) Monitor and coordinate the state's participation in federal and state aid programs and be responsible for liaison with the appropriate federal and state agencies; and be responsible for all federal programs which require the designation of responsible state agencies, if no other state agency has heretofore been legally designated;

(7) Assist local governments, regional councils and other public bodies in obtaining federal, state or other available funds and services;

(8) Facilitate state and local capital improvement projects to meet the requirements of industrial and socio-economic development in various governmental units within the state;

(9) Provide professional and technical assistance and make information available to regional councils and local governments within the state; and be responsible for receiving and disseminating information regarding federal grant assistance within the state; and

(10) Apply for and accept advances, grants, contributions and other forms of assistance from the state or federal government or from any private or public agencies or foundations, to carry out the provisions of this article.

§8-25-4. Delineation of regions and recommendations of Governor thereon; publication of statement fixing regional boundaries; public hearings; certification of regional boundaries; change in boundaries.

(a) Within sixty days after the effective date of this article, the Governor shall define and recommend for the purposes of this article regional boundaries embracing each municipality and county within the state.

(b) In delineating boundaries of the regions, the Governor shall consider such factors as the units of local government shall express by proper resolution, including community interest and homogeneity; geographic features and natural boundaries; patterns of communication and transportation; patterns of urban development; uniformity of social and economic problems; special problems, boundaries of existing metropolitan and other substate planning and administrative areas; and utility of the proposed boundaries for efficient provision of governmental services. Municipalities shall not be divided when forming a region, except insofar as it is necessary to keep multicounty municipalities within a region.

(c) The Governor shall, within six months after the effective date of this article, certify to the Secretary of State the boundaries of each region.

(d) Not less than sixty days prior to the certification of the boundaries of any region, the Governor shall cause a statement setting forth the counties to be included within the boundary of the proposed region to be published as a Class I-0 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 the proposed region. The Governor shall forward a copy of the statement to the principal executive officer or officers of each municipality and county located within the proposed region.

(e) Prior to the time that the Governor shall certify the boundaries of a region, he or his designee shall conduct at least one public hearing at a convenient place within the proposed region. The Governor shall advertise the meeting by means of a Class I-0 legal advertisement in compliance with the provisions of said article three, and the publication area for such advertisement shall be the proposed region. All public and private organizations located in, and all individuals residing in, municipalities or counties within or adjacent to the proposed region shall be permitted to appear and testify on matters pertaining to its boundaries.

(f) At any time following the certification of the boundaries of any region, the Governor may change such boundaries, pursuant to the criteria and procedures set forth in subsections (b), (c), (d) and (e) of this section.

§8-25-5. Formation of regional councils; purpose; receipt of funds and assistance; effect on interstate planning commissions and other existing organizations.

(a) The Governor shall provide for an organizational meeting of each of the regional councils within sixty days after his certification pursuant to section four of this article. He shall notify the president of each county court and the mayor of each municipality of the region of the time and place of such meeting. The official so notified shall attend this meeting or shall designate a representative. In the case of the county court, another member of the court shall be the designee or, in the case of a municipality, a member of the governing body of such municipality shall be the designee. Those present shall constitute a quorum and shall select a temporary chairman and secretary and shall provide for a subsequent meeting or meetings at which time the members provided for in section six of this article shall be nominated and elected and the permanent organization and bylaws established.

(b) Each regional council formed pursuant to this article shall fulfill the purposes of development regions and shall be eligible to receive state funds and technical assistance in accordance with the provisions of this article.

(c) (1) Nothing herein contained shall in any way limit or restrict the powers, duties and responsibilities of planning bodies organized under article twenty-six of this chapter relating to interstate planning commissions.

(2) Interstate planning commissions in existence on the effective date of this article are hereby designated as the planning and development councils for the region, insofar as the West Virginia member counties of such interstate planning commissions are concerned, and such commissions shall be empowered to act as the planning and development councils for such regions insofar as the West Virginia member counties are concerned.

(3) When additional West Virginia counties are added, under the provisions of this article, to such interstate planning commissions, their membership in such commissions shall comply, insofar as the West Virginia counties are concerned, with the council membership requirements of this article.

(4) Regional councils or commissions established under this article and article twenty-six of this chapter may, at the option of the county courts of the participating West Virginia counties, continue to have all the powers, duties and responsibilities permitted and required under said article twenty-six, in addition to the powers, duties and responsibilities provided herein for regional councils.

(5) State regional councils or commissions and their corresponding boundaries in existence on the effective date of this article, which were established under the former provisions of this article, and any nonprofit corporation in existence on the effective date of this article, which was established under chapter thirty-one of this code and pursuant to section eighteen, article five, chapter seven of this code and which has had in its employ a full-time paid executive staff for a period of no less than six months immediately prior to the effective date of this article, may be designated by the Governor as planning and development regions and regional councils. Such designation shall be made within sixty days after the effective date of this article. Regional councils so designated shall have a period of six months from the date of designation to comply with the membership structure required by this article. Nothing herein contained shall be construed to deprive such existing state regional councils of their legal authority prior to the expiration of the aforementioned six-month period.

§8-25-6. Membership, organization, etc., of regional council; executive committee; officers and personnel.

(a) All municipalities and all counties within the region shall be represented on the regional council. The county representative shall be the president of the county commission or a member of the county commission designated by him or her. The municipal representative shall be the mayor or a member of the governing body designated by him or her. The number of members of the regional council by virtue of this subsection shall comprise not less than fifty-one percent of the total number of members.

(b) Regional council members serving by virtue of subsection (a) of this section shall select additional members to serve on the council to represent principal community or regional interests, including, but not limited to, commerce, banking, industry, labor, agriculture, education, health and any such interests as may be required by federal law or regulations. The selection of such members shall also provide for reasonable representation of geographic, economic and ethnic groups without exclusion of significant minority groups. Subsequent changes in the designation of representatives shall be determined by the regional council. The number of members serving by virtue of this subsection shall not exceed forty-nine percent of the total number of members.

(c) Each regional council shall select from its membership a chairman, who shall preside at each council meeting, and an executive committee which shall be comprised of one representative from each county commission and one representative from the largest municipality within each county in the region and such other members as the aforesaid representatives may select, but such other members so selected shall not constitute more than forty-nine percent of the total membership of the executive committee. The executive committee shall perform such administrative duties as are prescribed by the regional council in its bylaws and shall exercise the review function provided for in section nine of this article. Each regional council may further provide for such other officers as it shall deem necessary and may establish other committees which may include citizens who are not regional council members.

(d) Each regional council shall establish personnel rules and shall appoint a director who shall be qualified by reason of training and experience. The director shall be empowered to appoint and remove other employees in accordance with the regional council's personnel rules. He or she may, with the approval of the executive committee, enter into agreements with governmental agencies within the region for the use of personnel, equipment and facilities.

(e) Whenever a person associated with a public utility or bank has a conflict of interest between the council and that public utility or bank, or any other member of the council has a direct pecuniary interest in a question before the council, then he or she must recuse himself or herself from any vote, discussion or other activity associated with the council or its members that creates the conflict of interest.

§8-25-7. Contracts for services, materials, etc.; publication of notice for bids.

Each regional council is empowered and authorized to contract for services of consultants to perform planning, development, engineering, legal or other services of a professional, specialized or technical nature; and such consultants shall be persons appropriately qualified under state statutes dealing with the applicable profession or occupation. Each such contract must have the express approval of the regional council or the executive committee. Such contracts shall not be subject to any law relating to public bidding: Provided, That every contract of the council for the purchase of merchandise, materials or supplies in the amount of $1,000 or more shall be let to the lowest responsible bidder after notice requesting such bids has been published as a Class I-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for this publication shall be the region in question.

§8-25-8. Powers and duties of regional councils generally.

Each regional council may:

(a) Continuously engage in comprehensive planning and development processes and prepare, and from time to time revise, amend, extend or add to, a plan or plans for the development of the region consistent with any state comprehensive planning and development objectives and reflecting plans and programs of the participating governmental units. Any such plan or plans shall be based on studies of governmental, social, economic, environmental and physical conditions and trends, and shall aim at the coordinated development of the region in order to promote the general health, welfare, convenience and prosperity of its people. Such plan or plans, or parts thereof, shall be prepared by persons appropriately qualified under state statutes dealing with the applicable profession or occupation. Such plan or plans shall be submitted for review to the appropriate agencies in accordance with the provisions of this article. The plan or plans shall embody the policy recommendations of the regional council, and may include, but shall not be limited to: (1) A statement of goals, objectives, standards and principles sought to be expressed in the plan or plans to guide economic, social, environmental and human resource development; (2) recommendations for transportation networks in the region, including land, water and air transportation, and for communication facilities; (3) recommendations concerning the need for and proposed general location of public and private works and facilities, which by reason of their function, size, extent or for any other cause are of a regional, as distinguished from a purely local concern; and (4) recommendations for the long-range programming and financing of capital projects and facilities.

(b) Prepare and from time to time revise, amend, extend or add to a regional development program to implement the policies contained in the comprehensive development plan for the region. The program shall contain a listing of development projects and programs, priorities for the financing of these projects and programs and recommended methods for project and program financing.

(c) Prepare and recommend ordinances, rules and regulations which would implement regional and local plans.

(d) Prepare and publish studies of the region's resources, both natural and human, with respect to existing and emerging problems of industry, commerce, transportation, population, housing, agriculture, environment, health, education, welfare, public service, local governments and any other matters which are relevant to regional planning.

(e) Collect, process and analyze the social and economic statistics for the region which are necessary to planning studies and make the results of such collection, processing and analysis available to the general public.

(f) Participate with other governmental agencies, educational institutions and private organizations in the coordination of the regional research and educational activities described in subdivisions (d), (e) and (h) of this section.

(g) Cooperate with, and provide, upon request, planning and technical assistance to municipalities, counties and planning and development agencies within the region, and coordinate regional planning with the planning activities and plans of the state and of the municipalities and counties within the region, as well as neighboring areas, including those in adjoining states, and the programs of federal departments and agencies.

(h) Provide information to officials, departments, agencies and instrumentalities of the federal, state and local governments and to the public at large, in order to foster public awareness and understanding of the objectives of the regional plans and the functions of the regional and local planning and development councils, and to stimulate public interest and participation in the orderly, integrated development of the region.

(i) Apply for, accept and expend funds and grants provided for the purposes hereof by the government of the United States or its departments or agencies; by departments and agencies of the state or any other state; by one or more municipalities, counties or other political subdivisions of this state or of any other state; or by any other agency, public or private; or from any individual whose interests are in harmony with the purposes hereof, including planning councils and commissions, all in accordance with any federal requirements and subject to any conditions or limitations of the Constitution or laws of this state.

(j) Perform development on a regional basis as necessary to undertake, complete or accomplish the goals and purposes of comprehensive planning in the region by intergovernmental contract or joint enterprises, or both, with local governmental units or combinations of such units pursuant to article twenty-three of this chapter.

(k) Exercise powers jointly or in cooperation with agencies or political subdivisions of the State of West Virginia or any other state, or with agencies of the United States, subject to Constitutional and statutory provisions applicable to interjurisdictional agreements.

(l) Adopt bylaws and such other rules and regulations as may be necessary to effectuate the purposes of this article.

(m) Exercise all other powers and authority necessary and proper for the discharge of its duties.

§8-25-9. Review of applications for loans or grants.

Each regional council shall review all applications of governmental units or independent agencies within the region for loans or grants from the federal government or any of its agencies or the State of West Virginia or any of its agencies. All recommendations and comments on applications for the aforementioned funding programs shall be forwarded to the Governor. Each council shall establish and maintain a clearinghouse for the purpose of establishing required review procedures in compliance with the "Intergovernmental Cooperation Act of 1968 (Public Law 90-557)," and the "Demonstration Cities and Metropolitan Development Act of 1966 (Public Law 87-754)," and the rules and regulations pertaining thereto, as promulgated by the United States office of management and budget. The state review agency designated by the Governor shall inform regional councils of state review findings relating to applications submitted from within the jurisdiction of each council.

§8-25-10. Cooperation of regional council and other planning or development agencies, governmental units and officials.

To effectuate the purposes of this article, regional councils shall cooperate with planning agencies or development agencies within the region or within other regions, with the governing bodies and administrative officials of any municipality, county or any other political subdivision, including those in other states, or with any other entity, private or public, whose interests are in harmony with the purposes of this article, in order to coordinate and harmonize planning and development for the cooperating units. All state departments and agencies shall cooperate with regional councils established under this article and shall make available for the studies conducted by such councils, reports, data and other informational and technical assistance within financial and personnel limitations. Each regional council may appoint such committees and may adopt such rules and regulations as may be proper to effect such coordination and integration. The governing bodies and administrative officials of municipalities, counties and other political subdivisions within this state are hereby empowered and authorized to cooperate with such planning and development agencies and with the governing bodies and administrative officials of political subdivisions and planning and development agencies in other states for the purpose of such coordination and integration in accordance with the provisions of this article.

§8-25-11. Appointment of citizens' advisory committees.

Each regional council may appoint advisory committees of interested and affected citizens to assist in the review of plans, programs and other purposes of this article referred for review by the regional council. Whenever a special advisory committee is required by any federal or state regional program, the regional council chairman shall, with approval of the executive committee, appoint such committees as advisory groups to the regional council.

§8-25-12. Annual budget of regional council; contributions by governmental units; deposits and disbursements.

Each regional council shall adopt an annual budget, to be submitted to the participating governmental units which shall each contribute to the financing of the council according to a formula adopted by the council and approved by a majority of the counties and a majority of the municipalities participating in the regional council. All such contributions shall be fair and equitable and shall be based on the population of each participating governmental unit as determined on the basis of the latest decennial census, or such other criteria as may be determined by each respective regional council. Each participating county and municipality is hereby directed and empowered to pay over and contribute to the operation of said councils in accordance with the formula adopted as hereinbefore provided. Such sums, as are appropriated hereunder, may be transferred to the regional councils for deposit and disbursement as the regional councils may designate and direct. By such transfer, the governing body designates the regional council as its disbursing agent.

§8-25-13. Annual report of regional council.

On or before July thirty-first of each year, each regional council shall prepare an annual report. The regional council shall submit copies of the report to the participating governmental units and to the Governor. The report shall include the following:

(a) A consolidated statement of the regional council's receipts and expenditures by category since the preceding report.

(b) A consolidated, detailed regional council budget for the year in which the report is filed and the following year including an outline of its program for such period.

(c) A description of any comprehensive plan adopted in whole or in part for the region.

(d) Summaries of any studies and development progress and the recommendations resulting therefrom made for the region.

(e) A listing of all applications for federal grants or loans submitted by the governmental units within the region together with the action taken by the regional council in relation thereto.

(f) A listing of plans of local governmental units submitted to the region and actions taken in relation thereto.

(g) Recommendations of the regional council regarding federal and state programs, cooperation, funding and legislative needs.

§8-25-14. Effect of article upon pending projects and applications.

Any of the provisions of this article to the contrary notwithstanding, no pending application for federal or state grants, loans, mortgages or other types of funding nor any application for grants, loans, mortgages or other types of funding intended to supplement a pending project shall be required to be approved by any such regional council nor shall any such pending application be delayed or disapproved by reason of the provisions of this article.

§8-25-15. Construction of article.

The provisions of this article shall be liberally construed to accomplish its objectives and purposes.

PART I. CREATION; ORGANIZATION AND FUNCTION.

§8-26-1. Creation of commission; state may be ex officio member.

Any municipality or county or any two or more municipalities or counties, or any combination thereof, may cooperate with the political subdivisions of other states bordering on this state for the purpose of creating, by an agreement, an interstate regional planning commission, whenever such political subdivisions comprise a region which would benefit from cooperative planning. The agreement entered into by the several political subdivisions shall specify the extent of the region included within the jurisdiction of the interstate regional planning commission; and shall fix the membership comprising the commission, the terms of office and method of appointment of the members thereof, the duration of the commission, the method for terminating the commission, the method of disposal of all property belonging to the commission, the distribution of the proceeds, and the apportionment of the costs of maintaining the planning commission to be borne respectively by the various political subdivisions included within the agreement, such apportionment to be based on the population of the various participating political subdivisions. Any such agreement shall be executed on behalf of any municipality by the governing body thereof and on behalf of a county by the county commission.

The state of West Virginia may be an ex officio member of any such interstate regional planning commission formed under the provisions of this article. The Governor or a representative designated by him shall represent the state in the deliberations of any interstate regional planning commission or its agencies or instrumentalities but this state shall not be a voting member of any interstate regional planning commission or any agency or instrumentality thereof.

§8-26-2. "Region" defined.

The term "region," as used in this article, shall mean a specific metropolitan interstate area designated by the proper federal agency pursuant to the "Demonstration Cities and Metropolitan Development Act of 1966" and any amendments thereto, as well as all other interstate areas which would benefit from cooperative planning. Before any area in this state is included within an interstate region for interstate planning, it shall be approved by the Governor: Provided, That no territory within any municipality or county not having a planning commission shall be included in an interstate area.

§8-26-3. Membership and organization of commission; reports and audits.

Any member of an interstate regional planning commission may hold any other public office, appointive or elective, if not prohibited by some other statute or Constitutional provision, and a member thereof may also serve as a member of a municipal, county or regional planning commission. The members of the commission shall serve without compensation but may be reimbursed for all reasonable and necessary expenses actually incurred in the discharge of their commission duties. The commission shall elect its own chairman or other officers from among its members and shall establish its own rules and regulations and bylaws, schedule of meetings and such committees with such powers as it may deem necessary to carry on its work.

Any such commission shall make a quarterly report to the governing body of each municipality and to the county court of each county contributing to the financial support of such commission, containing an itemized account of its receipts and disbursements during the preceding quarter. Such report shall be made within thirty days after the end of each quarter. At the end of each fiscal year, any such commission shall arrange for an independent audit of its financial affairs and within thirty days after the end of such fiscal year, such commission shall furnish a copy of the report of such audit to any such governing body or county court and shall cause a copy thereof 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 municipality and county which contributed to the financial support of such commission.

PART II. POWERS AND DUTIES.

§8-26-4. Powers and duties of an interstate regional planning commission.

(a) An interstate regional planning commission may make studies, maps, plans and reports relative to the region and shall recommend procedures and policies to the appropriate authorities, based on physical, social, economic and governmental conditions and trends, to promote the coordinated development of the region and the general health, welfare, convenience and prosperity of the people of the region. Such planning and coordination may reflect the following planning criteria:

(1) Goals, objectives, standards and principles for the development of the region;

(2) The distribution and intensity of general land use and open space;

(3) The general circulation pattern for the region, including land, water and air transportation and communication facilities, and continuing comprehensive transportation planning;

(4) The general location, character and extent of public and private works and facilities which are of area-wide or regional, as distinguished from purely local, concern; and

(5) Long-range programming and financing of capital projects and facilities.

(b) The commission shall:

(1) Review plans and proposals for projects and programs of interstate or regional significance which may be proposed by others;

(2) Review and make recommendations concerning administrative and regulatory measures to implement area-wide or regional plans;

(3) Review and make recommendations concerning effective utilization of such federal and state assistance as may be available on a regional basis or as may have a regional impact;

(4) Collect, analyze and report on statistics and other information concerning traffic, housing, population and social, economic and physical conditions of the region;

(5) Make recommendations to governmental bodies within such region for such actions as are necessary and proper to further the coordinated development of the region; and

(6) Conduct necessary investigations and research and cooperate with other public and private agencies or persons to conduct such investigations and research on planning problems affecting the region.

§8-26-5. Appropriations, receipts and expenses.

(a) Any political subdivision which becomes a member of any interstate regional planning commission may contract each fiscal year with said interstate regional planning commission to pay a proportionate part of the expenses properly chargeable to the planning services rendered to such political subdivision, and any funds budgeted for interstate planning may be paid over by the political subdivision to the interstate regional planning commission.

(b) An interstate regional planning commission may accept and use funds, grants and services from the federal government or its agencies, from departments, agencies and instrumentalities of any adjoining state, and from any municipality, county or other political subdivision of this or any adjoining state, including municipal, county, regional or other planning commissions of this or any adjoining state, or from private sources, or services from departments, agencies or instrumentalities of this state, and may contract with respect thereto and provide such information and reports as may be necessary to secure such financial or other aid. Within the amounts thus agreed upon and appropriated or otherwise received, any commission may employ such engineers, planners, consultants and other employees as are necessary and may rent or own such space and make such purchases as it deems necessary to its use.

§8-26A-1. Legislative determinations.

It is hereby declared as a matter of legislative determination:

(a) That the State of West Virginia is richly endowed with numerous historic buildings, structures, sites and districts which represent the historical, architectural and cultural heritage of this state;

(b) That West Virginia heritage, represented by such historic buildings, structures, sites and districts can best be identified, studied, preserved and protected for the general welfare of residents of this state and this nation by authorizing and empowering action for this purpose at the local level;

(c) That the preservation and protection of such historic buildings, structures, sites and districts aid economic development through revitalization of this state's central business districts, improvement of property values and enhancement of this state's historic attractions to tourists and visitors; and aid the development of education of this state by preservation of such heritage for future generations;

(d) That the preservation of this heritage is essential to the promotion of the prosperity, education and general welfare of the people; and

(e) That the Legislature hereby finds that it is the public policy and the public interest of this state to engage in a comprehensive program of historic preservation, undertaken at all levels of government, along with the private sector, to promote the use and preservation of such heritage for the education and general welfare of the people of this state; and, accordingly, this article shall be broadly construed in order to accomplish the purposes herein set forth.

§8-26A-2. Definitions.

As used in this article:

(a) "Exterior architectural features" include the architectural character and general composition of the exterior of a structure, including, but not limited to, the kind, color and texture of the building material and the type, design and character of all windows, doors, light fixtures, signs, other appurtenant elements and natural features when they are integral to the significance of the site, all of which are subject to public view from a public street, way or place.

(b) "Historic district" is a geographically definable area possessing a significant concentration, linkage or continuity of sites buildings, structures or objects united historically or aesthetically by plan or physical development.

(c) "Historic landmark" is a site, building, structure or object designated as a "Landmark" either on a national, state or local register.

(d) "Historic site" is the location of a significant event, a prehistoric or historic occupation or activity, or a building or structure, whether standing, ruined or vanished, where the location itself possesses historical, cultural or archaeological value regardless of the value of any existing structure.

§8-26A-3. Legislative intent; conflict between regulations of zoning district and historic district and properties.

The historic district and property regulation provided in this article is intended to identify, study, preserve and protect historic buildings and structures, sites and districts, some of which are located in zoning districts. Historic properties and districts lying within the boundaries of a zoning district are subject to the regulations for both the zoning district and historic district and properties. If there is a conflict between the requirements of the zoning district and the requirements of the historic district or property, the zoning district requirements apply.

§8-26A-4. Municipality or county may establish historic landmarks commission; appointments; detailed provisions to be provided by ordinance or order; appropriation of funds.

Any municipality by ordinance and any county by order of the county commission entered of record may, if it so desires, establish a municipal historic landmarks commission or county historic landmarks commission, hereinafter in this article referred to as the commission, to consist of five members, appointed by the mayor or county commission, as the case may be.

In any such ordinance or order, the governing body shall include provisions specifying (a) the terms of the members of such commission; (b) a method of filling vacancies; (c) whether the members of the commission are to be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties; (d) the officers of the commission to be elected from the membership thereof; (e) requirements as to meetings of the commission; (f) requirements as to a quorum of the commission; (g) requirements as to voting by members of the commission; and (h) such other matters as may be deemed necessary or desirable for the proper functioning of the commission. In the event the ordinance or order establishing such commission shall authorize the commission to issue certificates of appropriateness, the ordinance or order shall require a majority of the members to have demonstrated special interest, experience or education in history, architecture, planning, real estate or law, to the extent such persons are available in the community. In establishing such a commission and making appointments to it, a local governing body may seek the advice of any national, state or local historical agency, society or organization.

Any such commission may also be authorized and empowered by any such ordinance or order to employ, within the limits of funds available therefor, such employees, assistants, technical personnel and consultants as are necessary to discharge the duties and responsibilities of the commission.

Any municipality or county establishing any such commission shall have plenary power and authority to appropriate funds to such commission for expenditure by the commission for the purposes of this article.

§8-26A-5. Powers and duties of commission.

Any such commission shall be authorized, but not required, within the jurisdictional limits of the municipality or county, as the case may be, and within the limits of available funds, to:

(a) Make a survey of, and designate as historic landmarks, buildings, structures and districts which constitute the principal historical and architectural sites which are of local, regional, statewide or national significance in accordance with section six of this article;

(b) Prepare a register of buildings, structures, sites and districts which meet the requirements of subsection (a) of this section, publish lists of such properties and, with the consent of the property owners, inspect such properties from time to time and publish a register thereof from time to time setting forth appropriate information concerning the registered buildings, structures, sites and districts;

(c) Review applications for certificates of appropriateness and grant or deny the same in accordance with section seven of this article;

(d) With the consent of the property owners, mark with appropriately designed markers, buildings, structures and sites which it has registered;

(e) Establish standards for the care and management of designated historic landmarks and withdraw such certification for failure to maintain the standards so prescribed;

(f) Acquire by purchase, gift or lease and administer registered landmarks and easements and interests therein, both real and personal;

(g) Lease or sell property so acquired under terms and conditions designed to ensure the proper preservation of the historic landmark in question;

(h) Aid and encourage the municipality or county in which the district or landmark is located to adopt ordinances and resolutions for the preservation of landmarks and historic districts, their buildings, structures and character;

(i) Prepare and place historical markers on or along the highway or street closest to the location which is intended to be identified by such marker;

(j) Seek the advice and assistance of individuals, groups and departments and agencies of government who or which are conducting historical preservation programs and coordinate the same insofar as possible;

(k) Seek and accept gifts, bequests, endowments and funds from any and all sources for the accomplishment of the functions of the commission;

(l) Adopt rules and regulations concerning the operation of the commission, the functions and responsibilities of its officers, employees, assistants and other personnel and such other matters as may be necessary to carry out the purposes of this article; and

(m) Adopt such other rules and regulations as may be deemed necessary to effectuate the purposes of this article, but no such rules and regulations shall be inconsistent with any plan of the planning commission of such municipality or county: Provided, That in no case shall such rules and regulations take precedence over locally adopted ordinances.

§8-26A-6. Designation; report.

Prior to designation of an historic landmark or historic district, the commission shall make or cause to be made a report on the historical, cultural, architectural significance of each building, structure, site and district proposed for designation, based upon the following standards:

No building, structure, site or district shall be deemed to be an historic one unless it has been prominently identified with or best represents, some major aspect of the cultural, political, economic, military or social history of the locality, region, state or nation, or has had a major relationship with the life of an historic personage or event representing some major aspect of, or ideals related to, the history of the locality, region, state or nation. In the case of buildings or structures which are to be so designated, they shall embody the principal or unique features of an architectural type or demonstrate the style of a period of our history or method of construction, or serve as an illustration of the work of a master builder, designer or architect whose genius influenced the period in which he worked or has significance in current times.

The commission shall submit such report, including maps and photographs as necessary, to the West Virginia department of culture and history. In the case of a report for a proposed historic district, the commission shall submit with the report a map showing boundaries of the proposed district. The West Virginia department of culture and history may prepare written comments within forty-five days on the report.

In the event that any such ordinance or order establishing the commission has authorized the commission to issue certificates of appropriateness, the local governing body shall hold a public hearing on the proposed designation of the historic property or historic district, and any proposed regulations and requirements for the historic district. Notice of the hearing shall be published at least two times in the principal newspaper of general circulation within the municipality or county in which the property or properties to be designated are located; and written notice of the hearing shall be mailed by certified mail with signed return receipt required by the commission to all owners and occupants of such properties. All the notices shall be published or mailed not less than ten nor more than twenty days prior to the date set for the public hearing. Following the public hearing, unless the owner of a proposed property or fifty percent of the ownership interest in a proposed district objects to such designation or regulations and requirements within thirty days following the public hearing, the local governing body may designate the property or properties as historic, and approve, amend or reject the proposed regulations or requirements. Within thirty days following such designation or approval, the owners and occupants of each designated historic property shall be given written notification of such designation or approval by the local governing body, which notice shall apprise said owners and occupants of the necessity of obtaining a certificate of appropriateness prior to undertaking any material change in the appearance of the historic landmark designated or within an historic district.

In the event any such order or ordinance establishing a commission does not authorize the commission to regulate historic properties through issuance of a certificate of appropriateness, the survey report may be adopted by the commission, with any recommended amendments or changes by the state agency, and the historic landmark or historic district shall be designated as historic.

Any such designated historic landmark or district designated by this article shall be shown on the official zoning map of the county or municipality or, that in the absence of an official zoning map, the designated property be shown on a map of the county or municipality and kept by the county or municipality as a public record to provide notice of such designation in addition to other such notification requirements of this section.

§8-26A-7. Certificate of appropriateness; scope of review; standards of review; review procedures; variances, appeals.

In the event that any commission shall exercise authority to issue a certificate of appropriateness to regulate new construction, alteration, removal or demolition of buildings, sites or structures within an historic district or individually designated as an historic landmark, the commission shall have plenary power and authority to regulate such properties, according to the following provisions:

No private building, site or structure shall be erected, altered, restored, moved or demolished until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to and approved by the commission, except as otherwise provided by the governing body in the ordinance or order establishing such commission or as provided by rules, regulations, policies, procedures and standards adopted and published by said commission. For the purposes of this article, "exterior architectural features" shall include such portion of the exterior of a structure as is open to view from a public street, way or place. Similarly, if earthworks of historical or archaeological importance exist in the historic district there shall be no excavating or moving of earth, rock or subsoil or any development upon or around earthworks without a certificate of appropriateness. The style, material, size and location of outdoor advertising signs and bill posters shall be under the control of such commission.

(1) The commission may request such plans, elevations, specifications, drawings, photographs and other information as may be reasonably deemed necessary by the commission to enable it to make a determination on the application for a certificate of appropriateness.

(2) The commission shall hold a public hearing upon each application for a certificate of appropriateness. Notice of the time and place of said hearing shall be given by publication in a newspaper having general circulation in the area served by the governmental unit, provided it has one, at least seven days before such hearing, and by posting such notice on or near the main entrance of any hall or room where the commission usually meets. The commission shall take such action as required to inform the owners of any property likely to be affected by the application and shall give the applicant and such owners an opportunity to be heard.

(3) The commission shall approve or reject an application for a certificate of appropriateness within forty-five days after the filing thereof by the owner or occupant of an historic property or a building, site or structure located within an historic district. Evidence of approval shall be by a certificate of appropriateness issued by the commission.

(4) In passing upon the appropriateness of proposed action, the commission shall consider, in addition to any other pertinent factors, the historical and architectural integrity and significance; architectural style; design, arrangement, texture and materials of exterior architectural features; and the relationship and general compatibility thereof to the historical value and exterior architectural style and pertinent features of other structures in the surrounding area.

(5) The commission shall approve the application and issue a certificate of appropriateness if it finds that the proposed action would be appropriate. In the event the commission rejects an application, such commission shall place upon its records and shall transmit a record of such action and reasons therefor, in writing, to the applicant. In such written record, the commission may make recommendations relative to design, arrangement, texture, material and similar features. The applicant, if he so desires, may make modifications to the plans and may resubmit the application at any time after doing so.

(6) In cases where the application covers a material change in the appearance of a structure which would require the issuance of a building permit, the rejection of an application for a certificate of appropriateness by the commission shall be binding upon the building inspector or other administrative office charged with issuing building permits.

(7) Where such action is authorized by the local governing body and is reasonably necessary or appropriate for the preservation of a unique historic property, the commission may enter into negotiations with the owner for the acquisition by gift, purchase, exchange or otherwise of the property or any interest therein.

(8) If the strict application of any provision of this article would result in exceptional practical difficulty or undue economic hardship upon any owner of any specific property, the commission, in passing upon applications, shall have the power to vary or modify strict adherence to the provisions or to interpret the meaning of the provision so as to relieve such difficulty or hardship: Provided, That such variance, modification or interpretation shall remain in harmony with the general purpose and intent of the provisions so that architectural or historical integrity or character of the property shall be conserved and substantial justice done. In granting variations, the commission may impose such reasonable and additional stipulations and conditions as will in its judgment best fulfill the purpose of this article.

(9) The commission shall keep a record of all applications for certificates of appropriateness and of all its proceedings.

(10) Any person adversely affected by any determinations made by the commission relative to the issuance or denial of a certificate of appropriateness may appeal such determination to the circuit court in the county in which said commission is located.

(11) Nothing in this article shall be construed to prevent the ordinary maintenance or repair of any exterior architectural feature in or on an historic property, which maintenance or repair does not involve a material change in design, material or outer appearance thereof, nor to prevent any property owner from making any use of his property not prohibited by other laws, ordinances or regulations.

(12) Undertakings permitted, funded, licensed or otherwise assisted by the state shall be reviewed in accordance with subsection (e), section five, article one, chapter twenty-nine of this code and shall be considered exempt from review for certification of appropriateness as described in this section.

§8-26A-8. Court action or proceedings to prevent improper changes or illegal acts or conduct.

The municipal or county governing body or the historic landmarks commission shall be authorized to institute any appropriate action or proceeding in a court of competent jurisdiction to prevent any material change in the appearance of a designated historic property or historic district, except those changes made in compliance with the provisions of this article or to prevent any illegal acts or conduct with respect to such historic property or historic district.

§8-26A-9. Violations of this article; penalties.

Violations of any such ordinance adopted in conformity with this article shall be punishable by a fine up to ten percent of the total cost of the project requiring a certificate of appropriateness or $500, whichever is greater, or imprisoned in the county jail not more than six months, or both fined and imprisoned.

§8-26A-10. Notice to county assessor of designation of historic district.

When any such commission establishes an historic district, it shall notify the county assessor of the county in which such district or any part thereof is located of the fact of such establishment and the boundaries of the district, together with the restrictions which are applicable to the properties located in such district. The county assessor shall take such factors into consideration in assessing the properties therein.

§8-26A-11. Assistance of state agencies; coordination; annual reports.

Upon the request of any such commission, all agencies of the state shall assist such commission in the discharge of its duties and functions.

Every such commission shall cooperate and coordinate its activities with the West Virginia historical society and the West Virginia department of culture and history with the view of developing a unified program for the identification, study, preservation and protection of all historic buildings, structures and sites in this state. Such commissions shall submit a brief annual report to the West Virginia department of culture and history summarizing commission activities. In addition, the commissions shall submit reports as required in other sections of this article and any other reports required by rule, regulation or agreement.

PART I. TITLE; FINDINGS; DEFINITIONS; CREATION OF AUTHORITIES.

§8-27-1. Short title.

This article may be cited as the "Urban Mass Transportation Authority Act."

§8-27-2. Legislative findings and declaration of policy.

The Legislature hereby finds and declares:

(a) That a significant part of the population of this state is located in expanding urban areas;

(b) That in certain of these areas there are no urban mass transportation systems and in others there are urban mass transportation systems which are inadequate or in imminent danger of becoming inadequate or in imminent danger of discontinuing such service;

(c) That the establishment and maintenance of adequate urban mass transportation systems in such areas is essential for preserving viable urban areas and further promoting the healthful, safe, orderly and economical development and expansion of such urban areas;

(d) That the creation of urban mass transportation authorities to establish and maintain urban mass transportation systems in such areas is for the welfare of the people of this state in general and of the participating governments in particular, and is a public purpose for which public money may be spent and private property acquired; and

(e) This article is enacted in view of these findings and shall be liberally construed in the light thereof.

§8-27-3. Definitions.

As used in this article, unless a different meaning appears from the context:

(a) "Authority" means any urban mass transportation authority created pursuant to the provisions of this article;

(b) "Board" means the board of any urban mass transportation authority;

(c) "Contiguous counties" means two or more counties which constitute a compact territorial unit within an unbroken boundary wherein one county touches at least one other county, but does not require that each county touch all of the other counties so combining;

(d) "Facilities and equipment" means all real and personal property of every kind and character owned or held by any urban mass transportation system for the purpose of providing transportation by bus or rail or other conveyance serving the public;

(e) "Participating government" means any municipality or county establishing or participating in an urban mass transportation authority;

(f) "Project" means any undertaking of an authority;

(g) "Revenues" means the gross receipts derived directly or indirectly from or in connection with the operation by an authority of any urban mass transportation system or systems and shall include, without limitation, all fees, rates, fares, rentals or other income actually received or receivable by or for the account of an authority from the operation of the system, and any other receipts from whatever source derived;

(h) "Service area of the authority" means and includes an area commensurate with the area served by an existing system or systems acquired or to be acquired by an authority, or if there be no existing system, the area shall extend to and include an area to be defined by the authority;

(i) "System" means any urban mass transportation system;

(j) "Trust indenture" means a security instrument entered into by an authority pursuant to which bonds or notes are issued;

(k) "Urban area" means any area that includes a municipality or other built-up place which is appropriate for a system to serve commuters or others in the locality taking into consideration the local patterns and trends of growth;

(l) "Urban mass transportation system" means any common carrier of passengers for hire which operates equipment over regular routes within the service area of the authority; and

(m) The singular shall include the plural and the plural shall include the singular.

§8-27-4. Urban mass transportation authorities authorized; authorities to be public corporations.

Any municipality or county, or both, or any two or more municipalities within any county or contiguous counties, or any two or more contiguous counties, or any combination thereof, may create an urban mass transportation authority. Such authority shall be created upon the adoption, by the governing body of each participating government, acting individually, of an appropriate ordinance or order. Each authority shall constitute a public corporation, and as such, shall have perpetual existence.

PART II. ORGANIZATION AND FUNCTION OF

AUTHORITIES AND BOARDS.

§8-27-5. Management of authority vested in board; eligibility, appointment, number and term of members; vote of members; vacancies.

The management and control of any authority, its operations, business and affairs shall be lodged in a board of not less than five nor more than fifteen individuals who shall be known as members of the board and who shall be appointed for terms of three years each by the governing bodies of the participating governments. Prior to making the initial appointments to the board, the governing bodies of the participating governments shall agree to make such initial appointments so that approximately one third of the total number of the members to be so appointed shall be appointed for a term of one year, approximately one third of such total number of the members shall be appointed for a term of two years and approximately one third of such total number of the members shall be appointed for a term of three years. As the term of each such initial appointee expires, the successor to fill the vacancy created by such expired term shall be appointed for a term of three years. The number of members representing each participating government shall be as agreed upon from time to time by the governing bodies of the said participating governments. When a participating government is represented by more than one member on the board of an authority, such members shall be entitled to cast the votes of that participating government in such manner as that participating government may direct in the order or ordinance appointing its members.

Each participating government shall have one vote for each $500 it has contributed to the authority in the form of moneys or property. When property is contributed, the contributing participating government and the authority shall agree in writing at the time the contribution is made as to the fair market value of such property, which valuation shall determine the number of votes to be allocated to the participating government on the basis thereof. For the fiscal year during which any authority is formed, the number of votes to which any participating government shall be entitled shall be determined as of the time of formation of the authority and shall govern until the end of that fiscal year, even though additional moneys or property are contributed during that fiscal year. Thereafter, the number of votes shall be determined at the end of each fiscal year and such determination shall govern for the ensuing fiscal year, even though additional moneys or property are contributed during that fiscal year. Subsequent to its formation, any authority may permit any municipality or county within or without this state to participate in the affairs of the authority, to appoint members of the authority in the same manner, and to have such vote or votes beginning as of the next ensuing fiscal year, as prescribed by law with respect to the original participating municipalities or counties or any combination thereof.

Any individual who is a resident of, or member of the governing body, of, any participating government is eligible to serve as a member of the board. The governing body of each participating government shall inform the authority of its appointments or reappointments to the board by delivering to the authority a certified copy of the ordinance or order making the appointment or reappointment. If any member of the board dies, resigns or for any other reason ceases to be a member of the board, the governing body of the participating government which such member represented shall appoint another individual to fill the unexpired portion of the term of such member.

§8-27-6. Compensation of members; expenses.

As compensation for his services on the board each member shall receive from the authority the sum of $50 for each meeting actually attended. The total compensation paid to any member by the authority for any fiscal year shall not exceed in the aggregate the sum of $600. Each member shall also be reimbursed by the authority for all reasonable and necessary expenses actually incurred in the discharge of his duties as a member of the board.

§8-27-7. Meetings of authority; officers; employees; official bonds; records of authority public records.

At its first meeting, to be held no later than sixty days from the creation of the authority as provided in section four of this article, the board shall elect from its membership a president to act during the next ensuing fiscal year, or until his successor is elected and qualified. At that time, the board shall also elect a vice president, a secretary and a treasurer and such other officers as may be required, who need not be members of the board, whose duties shall be defined and whose compensation shall be fixed by the board and paid out of the funds of the authority. The treasurer, and such other officers and employees as the board shall direct, shall furnish bond for the use and benefit of the authority in such penal sum as may be fixed by the board and conditioned upon the faithful discharge by such treasurer and such other officers and employees so directed by the board of the duties of their respective offices or employment, and upon accounting for and paying over all moneys which may come into their possession by virtue of such office or employment. At its first meeting the board shall also fix the time and place for holding regular meetings, but it shall meet at least once in the months of January, April, July and October. Special meetings of the board may be called by the president or by two members upon written request to the secretary. The secretary shall send to all the members, at least two days in advance of a special meeting, a written notice setting forth the time and place of the special meeting and the matters to be considered at such special meeting. Written notice of a special meeting is not required if the time of the special meeting has been fixed in a regular meeting, or if all the members are present at the special meeting. All regular meetings shall be general meetings for the consideration of any and all matters which may properly come before an authority. All proceedings of the authority shall be entered in a permanently bound record book, properly indexed, and the same shall be carefully preserved by the secretary of the authority. All records of the authority shall be public records.

§8-27-8. Quorum; majority vote required.

A majority of the members of the board, which majority must include members from a majority of the participating governments, shall constitute a quorum. The vote of a majority of all members present at any meeting of the board shall be necessary to take any action.

§8-27-9. Budget.

The board shall establish the beginning and ending of its fiscal year, which period shall constitute its budget year, and at least thirty days prior to the beginning of the first full fiscal year after the creation of the authority and annually thereafter the treasurer shall prepare and submit to the board a tentative budget. Such tentative budget shall be considered by the board, and, subject to any revisions or amendments that may be determined by said board, shall be adopted as the budget for the ensuing fiscal year. No expenditures in excess of the budget shall be made during such fiscal year unless expressly authorized and directed by the board. It shall not be necessary to include in such budget any statement of necessary expenditures for annual interest or principal payments on bonds or for capital outlays, but it shall be the duty of the board to make provisions for their payment as they become due.

PART III. POWERS AND DUTIES OF AUTHORITIES.

§8-27-10. Powers and duties of authorities generally.

Each authority is hereby given the power:

(a) To sue and be sued, implead and be impleaded;

(b) To have and use a seal and alter the same at pleasure;

(c) To make and adopt all rules and regulations and bylaws as may be necessary or desirable to enable it to exercise the powers and perform the duties conferred or imposed upon it by the provisions of this article;

(d) To employ, in its discretion, planning, architectural and engineering consultants, attorneys, accountants, construction, financial, transportation and traffic experts and consultants, superintendents, managers and such other employees and agents as may be necessary in its judgment, and to fix their compensation;

(e) To acquire by grant, purchase, gift, devise or lease and to hold, use, sell, lease or otherwise dispose of real and personal property of every kind and nature whatsoever, licenses, franchises, rights and interests necessary for the full exercise of its powers pursuant to the provisions of this article, or which may be convenient or useful for the carrying out of such powers;

(f) To acquire, construct, reconstruct, complete, develop, improve, own, equip, maintain and operate any system or systems, or any part thereof, including, without limitation, the power to acquire by purchase, lease or gift all or any part of any licenses, franchises, rights, interests, engineering and technical studies, data or reports owned or held by any person and determined by its board to be necessary, convenient or useful to the authority in connection with the acquisition, construction, reconstruction, completion, development, improvement, ownership, equipping, maintenance or operation of any system or systems and to reimburse public utilities for relocation of any utility line or facility made necessary by the construction, reconstruction, completion, development, improvement, equipping, maintenance or operation of any system or systems;

(g) To acquire any land, rights or easements deemed necessary or incidental for the purposes of the authority by eminent domain to the same extent and to be exercised in the same manner as now or hereafter provided by law for such right of eminent domain by business corporations;

(h) To enter into contracts and agreements which are necessary, convenient or useful to carry out the purposes of this article with any person, public corporation, state or any agency or political subdivision thereof and the federal government and any department or agency thereof, including, without limitation, contracts and agreements for the joint use of any property and rights by the authority and any person or authority operating any system, whether within or without the service area of the authority, and contracts and agreements with any person or authority for the maintenance, servicing, storage, operation or use of any system or part thereof, facility or equipment on such basis as shall seem proper to its board;

(i) To enter into contracts and agreements for superintendence and management services with any person, who has executive personnel with experience and skill applicable to the superintendence and management of any system, for the furnishing of its services and the services of experienced and qualified personnel for the superintendence and management of any system or any part thereof, including, without limitation, superintendence over personnel, purchases, properties and operations and all matters relating thereto, and any revenue bond trust indenture may require such contract or agreement, but the personnel whose services are to be so furnished under any such contract or agreement shall not include any member of the board, any member of the immediate family of a member of the board or any agents or employees of the authority, and no such contract or agreement shall extend beyond a term of ten years or such longer time as there are outstanding any revenue bonds under a trust indenture which requires such contract or agreement;

(j) To assume any lien indebtedness of any system or part thereof acquired by it under the provisions of this article;

(k) To execute security agreements, contracts, leases, equipment trust certificates and any other forms of contracts or agreements, granting or creating a lien, security interest, encumbrance or other security in, on or to facilities and equipment, containing such terms and provisions as the board deems necessary;

(l) To apply for, receive and use grants, grants-in-aid, donations and contributions from any source or sources, including, but not limited to, the federal government and any agency or department thereof, and a state government whose Constitution does not prohibit such grants, grants-in-aid, donations and contributions, and any agency or department thereof, and to accept and use bequests, devises, gifts and donations from any person;

(m) To lease any system or any part thereof to, or contract for the use of any system or any part thereof by, any person, but a trust indenture may prohibit, limit or restrict the exercise of such power;

(n) To acquire for cash or in exchange for its bonds all or any part of any publicly or privately owned system or systems;

(o) To make or cause to be made either by itself or in cooperation with other persons or organizations, whether public or private, traffic surveys, population surveys and such other surveys and studies as it shall consider useful in the performance of its duties or the exercise of its powers under the provisions of this article and in connection therewith the authority may contract with any person or organization for such planning services;

(p) To enter into contracts and agreements with any public or private system either within or contiguous to its boundaries for the transfer of passengers between it and the system operating in territory contiguous to its boundaries;

(q) To fix and establish from time to time, such fees, rates or other charges and routes, time schedules and standards of service as will provide revenues in each year at least sufficient to pay the principal of and interest on all bonds issued by the authority, and reasonable reserves therefor, as the same shall become due, together with the cost of administration, maintenance, repair and operation of such system or systems in each year, together with all other payments required in each such year by the resolution which authorized the issuance of such bonds, or the trust indenture securing the same, including, without limitation, reasonable reserves or margins for any of such purposes: Provided, That prior to the initial implementation of any fees, rates or other charges and any subsequent increase thereof affecting generally the users of the system, every authority shall hold a public hearing in the service area of the system on such proposed fees, rates or other charges or any increase thereof, and each authority shall publish a notice of the time and place of said hearing as a Class II 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 the service area of the authority. Such notice shall plainly state the fees, rates or other charges or any increase thereof to be imposed, the time when they shall go into effect, and the time and place where such public hearing will be conducted. Said public hearing shall not be less than ten days subsequent to the date of the last publication of such notice. At such hearing all objections and suggestions shall be heard, and after the hearing has been held the authority shall take such action as it shall deem proper: Provided, however, That the foregoing public hearing and notice requirements shall not apply to fees, rates or charges imposed for charter or special services rendered by said authorities;

(r) To issue revenue bonds of the authority for any of its purposes or projects and to refund its bonds, all as provided in this article;

(s) To encumber or mortgage all or any part of its facilities and equipment;

(t) To prepare plans for and assist in the relocation of persons displaced by the authority and to make relocation payments to or with respect to such persons for moving expenses and losses of property for which reimbursement or compensation is not otherwise made, including the making of such payments financed by the federal government; and

(u) To do any and all things necessary or convenient to carry out the powers given in this article unless otherwise forbidden by law.

§8-27-10a. Smoking on vehicles prohibited; posting of signs required; criminal penalties.

(a) Every authority operating any vehicle accessible to the public, designed for the ground transportation of eight or more persons, shall post "No Smoking" signs conspicuously at the entrance to, and on the inside of, each such vehicle. No person shall smoke or carry a lighted pipe, cigar or cigarette in any such vehicle wherein a sign prohibiting smoking is posted.

(b) The posting requirements set forth in subsection (a) above do not apply to any vehicle operated in interstate commerce, nor to any chartered vehicle: Provided, That if any vehicle operated in interstate commerce or chartered vehicle has a posted nonsmoking area, no person shall smoke or carry a lighted pipe, cigar, or cigarette in the posted nonsmoking area of such vehicle.

(c) Any person who violates any provision of this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $20 nor more than $100.

PART IV. FUNDS OF AUTHORITIES.

§8-27-11. Contributions to authorities; funds and accounts of authorities; reports; audit by State Tax Department.

Contributions may be made to authorities from time to time by the participating governments and by any other municipalities, counties or persons that shall desire to do so. All such funds and all of the other funds received by any authority shall be deposited in a separate account in such banking institution or institutions as its board may direct and shall be withdrawn therefrom only in such manner as its board may direct. Each authority shall keep strict account of all its receipts and expenditures and shall make a quarterly report to the participating governments which have made contributions to it and such report shall contain an itemized account of its receipts and disbursements during the preceding quarter. Such report shall be made within sixty days after the termination of the quarter. Within ninety days after the end of each fiscal year, each authority shall make an annual report containing an itemized statement of its receipts and disbursements for the preceding fiscal year, and any and all other information which the board may deem pertinent, to all of the participating governments. The books, records and accounts of each authority shall be subject to audit and examination by the state Tax Department of West Virginia.

PART V. DEVELOPMENT OF TRANSPORTATION PLAN.

§8-27-12. Study and plan of operation; notice and hearing; adoption of transportation plan.

The authority, as soon as practical after its organization, shall prepare a comprehensive plan with respect to a program for a unified or officially coordinated system as a part of a comprehensively planned development of the urban area within its service area. Said program, to the maximum extent feasible, shall provide for the participation of privately owned systems.

In the preparation of a comprehensive plan, an authority shall make careful and comprehensive surveys and studies of the existing conditions and probable future changes of such conditions within its service area. The comprehensive plan shall be made for the general purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of systems within the service area which, in accordance with present and future needs and resources, will best promote the health, safety and general welfare of the inhabitants of the service area, as well as the orderly and economical development and expansion of the service area.

Prior to the adoption of a comprehensive plan, the authority shall submit its tentative plan to the governing bodies of the participating governments and hold a public hearing in the service area on the plan. At least thirty days prior to the date set for hearing, the authority shall publish a notice of the time and place of the hearing as a Class II 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 the service area of the authority. After a public hearing has been held, the authority may by resolution adopt the comprehensive plan and may from time to time amend, supplement or change the comprehensive plan in the same manner in which it was adopted.

PART VI. DEVELOPMENT OF SYSTEM; FINANCING THEREOF.

§8-27-13. Resolution authorizing acquisition or construction of urban mass transportation system.

Before the authority shall acquire or construct any system, the authority shall adopt a proper resolution which shall include:

(a) The estimated cost of the acquisition or construction and all incidental expenses connected therewith;

(b) The probable sources of revenue and the estimated amount thereof;

(c) The estimated cost of administration, maintenance, repair and operation thereof;

(d) The proposed methods of financing; and

(e) Any other information which the authority shall deem appropriate.

Such resolution shall also:

(a) Order the acquisition or construction of such system;

(b) If appropriate, direct that revenue bonds in such amount as the authority may deem necessary to pay all or any part of the cost of acquisition or construction of such system be issued pursuant to the provisions of this article; and

(c) Set forth the amount of the principal of the indebtedness, the maximum term the bonds proposed to be issued shall run before maturity and the maximum rate of interest to be paid and such other details with respect to the bonds and the trust indenture, if any, securing the same as the authority may deem necessary or desirable.

Before such resolution shall become effective, the authority shall submit such resolution to the governing bodies of the participating governments and hold a public hearing in the service area on the resolution. At least thirty days prior to the date set for hearing, the authority shall publish a notice of the time and place of hearing as a Class II 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 the service area of the authority. At such hearing all objections and suggestions shall be heard and after the hearing has been held the authority shall take such action as it shall deem proper.

§8-27-14. Bonds generally.

The authority is hereby empowered and authorized to provide by resolution, from time to time, for the issuance of revenue bonds of the authority for the purpose of paying all or any part of the cost of acquiring, constructing or improving a system or systems, or any part thereof, or the facilities and equipment therefor, as the case may be, or for any other purpose or project authorized by the provisions of this article. The purposes for which revenue bonds may be issued may include the payment of all costs and estimated costs incidental to or connected with the accomplishment of such purpose or project including, without limitation, engineering, inspection and legal fees, the fees of fiscal agents and financial consultants and other fees, bond and other reserve funds, working capital, bond interest estimated to accrue during the construction period and for a period not to exceed two years thereafter, and expenses of all proceedings for the authorization, issuance and sale of the bonds.

The bonds of each issue shall be dated and shall bear interest at such rate or rates as are approved by the authority, payable semiannually, and shall mature at such time or times not exceeding forty years from their date or dates as may be determined by the authority, and may be made redeemable before maturity, at the option of the authority, at such price or prices and under such terms and conditions as may be fixed by the authority prior to the issuance of the bonds. The authority shall determine the form of the bonds, including any interest coupons to be attached thereto, and shall fix the denomination or denominations of the bonds and the place or places of payment of the principal and interest, which may be at any banking institution or trust company within or without the state. The bonds shall be signed by the president of the authority or shall bear his facsimile signature, and the official seal of the authority, or a facsimile thereof, shall be impressed or imprinted thereupon and attested by the secretary of the authority, and any coupons attached to the bonds shall bear the facsimile signature of the president of the authority. All such signatures, countersignatures and seal may be printed, lithographed or mechanically reproduced, except that one of such signatures or countersignatures on the bonds shall be manually affixed, unless the resolution authorizing the issuance of such bonds shall otherwise provide. If any officer whose signature or countersignature or a facsimile of whose signature or countersignature appears on bonds or coupons ceases to be such officer before the delivery of the bonds, his signature shall be as effective as if he had remained in office until such delivery. The bonds may be issued in coupon or in registered form, or both, as each authority may determine and provision may be made for the registration of any coupon bonds as to principal alone, and also as to both principal and interest, for the reconversion into coupon bonds of any bonds registered as to both principal and interest, and for the interchange of registered and coupon bonds. Notwithstanding the form or tenor thereof, and in the absence of any express recital on the face thereof that the bond is nonnegotiable, all such bonds shall be, and shall be treated as, negotiable instruments for all purposes except when registered in the name of a registered owner.

The authority may exchange its bonds, in whole or in part, for any system or systems, or any parts thereof, or facilities and equipment therefor, or may sell its bonds, in whole or in part, in such manner either at public or private sale and for such price as it may determine will best effect the purposes of this article and be for the best interest of the authority: Provided, That if the bonds be issued the minimum price for which they may be exchanged or at which they may be sold shall be such that the interest cost to the authority of the proceeds of the bonds shall not exceed the interest rate per annum thereon computed to maturity according to the standard table of bond values.

Prior to the preparation of definitive bonds, the authority may, under like restrictions, issue interim receipts or temporary bonds with or without coupons, exchangeable for definitive bonds when such bonds shall have been executed and are available for delivery. The authority may also provide for the replacement of any bonds which shall become mutilated or shall be destroyed or lost.

The authority is hereby empowered and authorized to provide by resolution, from time to time, for the issuance, sale or exchange of revenue refunding bonds of such authority for the purpose of refunding any bonds then outstanding which shall have been issued under the provisions of this article, including the payment of any redemption premium thereon, and any interest accrued or to accrue to the date of redemption of such bonds, and the payment of all expenses incidental thereto. The authority is further empowered and authorized to provide by resolution, from time to time, for the issuance, sale or exchange of revenue bonds of such authority for the combined purpose of refunding any bonds then outstanding, as herein provided, and paying all or any part of the cost of any additional project or projects. All provisions of this article applicable to the issuance of revenue bonds are applicable to the issuance of refunding bonds and to the sale or exchange thereof.

§8-27-15. Trust indenture generally.

In the discretion of the authority, any bonds issued under the provisions of this article may be secured by a trust indenture by and between such authority and a corporate trustee, which may be any trust company or banking institution having the powers of a trust company within or without the state, or any person in the United States having power to enter into the same, including any federal agency.

Any resolution authorizing the issuance of such bonds or any trust indenture securing the same may contain such provisions for protecting and enforcing the rights and remedies of the bondholders and of the trustee as the authority may deem necessary and proper and not in violation of law, including provisions pledging all or any part of the revenues of such authority or encumbering all or any part of the facilities and equipment of such authority to secure the payment of the bonds subject to such agreements with bondholders as may then exist; limiting the purpose to which the proceeds of sale of any bonds then or thereafter to be issued may be applied; defining the duties of such authority in relation to the acquisition, construction, improvement, maintenance, repair, operation and insurance of any project or projects in connection with which such bonds shall have been authorized; providing for the custody, safeguarding and application of all moneys; limiting the issuance of additional bonds; prescribing a procedure by which the provisions of any trust indenture or contract with bondholders may be amended or modified; requiring such authority to fix and establish such fees, rates or other charges and routes, time schedules and standards of service as will provide revenues in each year at least sufficient to pay the principal of and interest on all bonds issued by such authority and reasonable reserves therefor as the same shall become due, together with the cost of administration, maintenance, repair and operation of such system or systems in each year, including, without limitation, reasonable reserves or margins or sinking funds for any of such purposes, defining the acts or omissions to act which shall constitute a default in the duties of such authority to the holders of its bonds and providing the rights and remedies of such holders and of the trustee in the event of default and the manner and terms upon which such default may be declared cured; vesting in a trustee such property rights, powers and duties, in trust, as such authority may determine; and such other additional provisions as such authority may deem necessary or desirable for the security of the holders of bonds issued under the provisions of this article, notwithstanding that such other provisions are not expressly enumerated in this section, it being the intention to grant to the authority the power to make any and all covenants or agreements necessary to secure greater marketability of bonds issued under the provisions of this article, as fully and to the same extent as such covenants or agreements could be made by a private corporation rendering similar services, and to grant to such authorities full and complete power to enter into any contract, covenant or agreement with holders of bonds issued under the provisions of this article not inconsistent with this article or the Constitution of this state.

§8-27-16. Sinking fund; West Virginia Municipal Bond Commission; purchase of outstanding bonds.

Before the issuance of any bonds under the provisions of this article, the authority shall, by resolution, provide for a sinking fund for the payment of the bonds and the interest thereon, and the payment of the charges of banking institutions or trust companies for making payment of such bonds and interest, out of the net revenues of said system, and, in this connection, shall set aside and pledge a sufficient amount of the net revenues of the system for such purpose, such net revenues being hereby defined to mean the revenues of the system remaining after the payment of the reasonable expense of administration, maintenance, repair and operation, such amount to be paid by such authority into the sinking fund at intervals, to be determined by resolution adopted prior to the issuance of the bonds, for: (a) The interest upon such bonds as such interest shall fall due; (b) the necessary fiscal agency charges for paying bonds and interest; (c) the payment of the bonds as they fall due, or, if all the bonds mature at one time, the proper maintenance of a sinking fund sufficient for the payment thereof at such time; and (d) a margin for safety and for the payment of premium upon bonds retired by call or purchase as provided in this article. Such required payments shall constitute a first charge upon all the net revenues of such authority. Prior to the issuance of any bonds, the authority may, by resolution, be given the right to use or direct the  West Virginia Municipal Bond Commission to use such sinking fund, or any part thereof, in the purchase of any of the outstanding bonds payable therefrom, at the market prices thereof, but not exceeding the price, if any, at which the same shall in the same year be payable or redeemable, and all bonds redeemed or purchased shall forthwith be cancelled, and shall not again be issued. In addition to the payments into the sinking fund provided for above, the authority may at any time in its discretion transfer all or any part of the balance of the net revenues, after reserving an amount deemed by such authority sufficient for maintenance, repair and operation for an ensuing period of not less than twelve months and for depreciation, into the sinking fund.

The amounts of the balance of the net revenues as and when so set apart shall be remitted to the West Virginia Municipal Bond Commission at such periods as shall be designated in the resolution, but in any event at least thirty days previous to the time interest or principal payments become due, to be retained and paid out by said commission consistent with the provisions of this article and the resolution pursuant to which such bonds have been issued. The West Virginia Municipal Bond Commission is hereby authorized to act as fiscal agent for the administration of such sinking fund under any resolution adopted pursuant to the provisions of this article and shall invest all sinking funds as provided by general law. Notwithstanding the foregoing, payments of principal and interest on any bonds owned by the United States or any governmental agency or department thereof may be made by the authority directly thereto.

§8-27-17. Remedies of bondholders.

Any holder of bonds issued under the provisions of this article or any of the coupons appertaining thereto, and the trustee under any trust indenture securing the same, except to the extent the rights herein given may be restricted by such trust indenture, may, by civil action, mandamus or other proceeding, protect and enforce any and all rights under the laws of this state or granted under the provisions of this article or under the resolution authorizing the issuance of such bonds, or the trust indenture securing same, and may enforce and compel the performance of all duties required by the provisions of this article or by such resolution or trust indenture to be performed by any authority or by any officer thereof.

PART VII. PUBLIC SERVICE COMMISSION.

§8-27-18.

Repealed.

Acts, 1976 Reg. Sess., Ch. 85.

PART VIII. INDEBTEDNESS; EXEMPTION FROM TAXATION.

§8-27-19. Indebtedness of authorities.

Each authority may issue bonds, borrow money and incur any proper indebtedness and issue any other obligations as authorized by law or provided in this article. No such indebtedness or obligation incurred by any authority shall give any right against any member of the governing body of any participating government or any member of the board of any authority. Any obligation or indebtedness of any nature of any authority shall never constitute an obligation or indebtedness of any participating government or the governing body of any participating government, within the meaning of any Constitutional provision or statutory limitation, and shall never constitute or give rise to a pecuniary liability of any participating government or the governing body of any participating government, or be a charge against the general credit or taxing power of any participating government or the governing body of any participating government, and such fact shall be plainly stated on the face of any bonds issued by any authority. The rights of creditors of any authority shall be solely against the authority as a corporate body and shall be satisfied only out of revenues, moneys or property received or held by it in its corporate capacity.

§8-27-20. Exemption from taxation.

It is hereby found, determined and declared that the creation of any authority and the carrying out of its purposes is in all respects for the benefit of the people of this state in general, and of the participating governments in particular, and is a public purpose; and that the authority will be performing an essential governmental function in the exercise of the powers conferred upon it by the provisions of this article. Accordingly, each authority and, without limitation, its revenues, properties, operations and activities shall be exempt from the payment of any taxes or fees to the state or any of its political subdivisions or to any officer or employee of the state or any of its political subdivisions. Property, real and personal, owned by or leased and used exclusively by each authority shall be public property and therefore exempt from taxation in accordance with section nine, article three, chapter eleven of this code. The revenue bonds or other evidences of indebtedness issued pursuant to the provisions of this article, and the interest thereon, shall be exempt from taxation, except inheritance and transfer taxes.

PART IX. EMPLOYEES OF EXISTING SYSTEMS.

§8-27-21. Protection of employees of existing transportation systems.

Whenever any authority acquires any existing system pursuant to the provisions of this article, the employees of such system shall be protected in the following manner:

(a) The employees of such system shall be retained to the fullest extent possible consistent with sound management, and if terminated or laid off shall be assured priority of reemployment;

(b) The individual employees who are retained shall be retained in positions the same as, or no worse than, their positions prior to the acquisition of such system;

(c) The rights, privileges and benefits of the employees under existing collective bargaining agreements shall not be affected and the owning authority shall assume the duties and obligations of the acquired system under any such agreement;

(d) Collective bargaining rights shall be continued with respect to employees of any acquired system;

(e) The rights, privileges and benefits of the employees under any existing pension or retirement plan or plans shall not be affected and the owning authority shall assume the duties and obligations of the acquired system under any such plan or plans;

(f) The owning authority shall provide paid training or retraining programs when necessary; and

(g) The authority owning a system, or any of the employees of any system owned by the authority, shall, in the case of any labor dispute relating to the terms and conditions of employment which is not settled through any established grievance procedure, have the right to submit the dispute to final and binding arbitration by a board of arbitration consisting of three arbitrators, one arbitrator to be chosen by the authority, one by the employee and the third to be chosen by the two arbitrators selected by the authority and the employee. A decision of a majority of the members of the board of arbitration shall be final and binding on the parties. The parties shall each pay the arbitrator of its or his own selection, and they shall jointly pay the third arbitrator and any other expenses connected with submitting such labor dispute to the board of arbitration.

In the event any authority acquires a system and (1) leases such acquired system, or (2) enters into a management contract for superintendence and management services for the operation of such acquired system pursuant to any provision of this article, the lease or contract shall include terms and provisions insuring the protection specified in this section.

PART X. CONFLICT OF INTEREST; BIDS; LEGAL

INVESTMENTS; CONSTRUCTION.

§8-27-22. Conflict of interest.

No member of any authority, nor any of its officers, employees, agents or consultants, shall have any interest in any firm, partnership, corporation, company, association or joint-stock association engaged in the business of providing public transportation in the area encompassed by the authority, or in the manufacture, sale or lease of passenger transportation equipment or facilities. No member of any authority, nor any of its officers, employees, agents or consultants, shall contract with the authority or be interested in, either directly or indirectly, any contract with such authority or in the sale of property, either real or personal, to such authority. The term "agents" as used in this section shall not be deemed for the purposes of this section to include any persons or authorities which lease from or contract for superintendence and management services with any authority for the administration, maintenance, repair or operation of any system.

§8-27-23. Competitive bids; publication of solicitation for sealed bids.

(a) Any contract for the construction of facilities by any authority, when the expenditure required exceeds the sum of $25,000, shall be based solely on competitive sealed bids.

(b) Except as provided in subsections (c) or (d) of this section, the procurement of all supplies, equipment and materials, where the expenditure required exceeds the sum of $25,000, shall be based on the competitive procedure that is best suited under the circumstances of the procurement.

(c) In determining the competitive bid procedure that is best suited under the circumstances, an authority shall conduct:

(1) Competitive sealed bidding if:

(A) Time permits a competitive bid process to be used;

(B) The award of the bid will be made primarily on price and price-related factors;

(C) It is likely to be unnecessary to conduct discussions with suppliers regarding bids, including discussions regarding price; and

(D) There is a reasonable expectation of receiving more than one sealed bid; or

(2) Competitive negotiation where competitive sealed bidding is not best suited under the circumstances.

(d) Notwithstanding the provisions of subsections (b) and (c) of this section, an authority may provide for the procurement of property or services covered by this section using other than competitive procedures only when:

(1) The property or services needed are available only from one responsible source and no other type of property or service will satisfy the authority’s needs;

(2) The authority’s need for the property or service is urgent, unusual and compelling because the authority would be seriously injured unless the authority is permitted to limit the number of sources from which it solicits;

(3) It is necessary to award a contract to a particular source or sources in order to maintain a facility, producer, manufacturer or other supplier in case of emergency;

(4) It is necessary to establish or maintain an alternative source or sources of supply for the property or service to increase or maintain competition; or

(5) The authority is using the Federal Transit Administration Third Party Procurement Guidance circular, as may be amended by the Federal Transit Administration, when spending federal appropriations as a designated recipient of 49 U.S.C. §5307 and 49 U.S.C. §5340 - Urbanized Area Formula Appropriations - to finance its procurements or contracts.

(e) All sealed bids or competitive negotiated proposals received in response to a solicitation or request for bid may be rejected if an authority determines that the action is in the public interest.

(f) Sealed bids shall be opened publicly at the time and place stated in the solicitation and the authority shall evaluate the bids without discussions with bidders and award a contract with reasonable promptness to the responsible source whose bid conforms to the solicitation and is most advantageous to the authority, considering only price and other price-related factors included in the solicitation.

(g) The evaluation of competitive proposals may include written or oral discussions conducted with all responsible bidders or suppliers at any time after receipt of the proposals and before the award or may be made without discussions. In either event, the award shall be made to the lowest responsible bidder or supplier.

(h) Adequate public notice of the solicitation of bids and proposals shall be given. Public notice shall be given not less than seven days before the date set for bid opening or, in the case of competitive negotiation, not less than seven days before the due date for receipt of proposals: Provided, That bids for the construction of facilities shall be obtained by public notice published as a Class I legal advertisement in compliance with §59-3-1 et seq. of this code, with the publication being made at least 14 days before the final date for submitting bids.

§8-27-24. Bonds made legal investments.

Banking institutions, building and loan associations, and insurance companies organized under the laws of this state, may lawfully invest their own funds in bonds issued under the provisions of this article.

§8-27-25. Article constitutes complete authority; liberal construction.

This article shall constitute full and complete authority for the creation of any authority and for carrying out the powers and duties of any such authority and for the issuance, sale or exchange of revenue bonds by such authority as provided in this article. The provisions of this article shall be liberally construed to accomplish its purpose and no procedure or proceedings, notices, consents or approvals shall be required in connection therewith except as may be prescribed by this article.

PART XI. DISSOLUTION OF AUTHORITY; WORKERS' COMPENSATION.

§8-27-26. Dissolution of authority; disposition of assets after payment of debts.

In the event full and adequate provision is made for the payment of all of the debts of an authority, the participating municipalities or counties or any combination thereof which have contributed at least sixty percent of the total value of all moneys and property (the value of which property is determined as specified in section five of this article) contributed to the authority by the participating municipalities and counties may by resolution provide for the dissolution of the authority and for (1) the conveyance of the real and tangible personal property contributed to it to those participating municipalities and counties which contributed the same, (2) equitable distribution among the contributing municipalities and counties of any real and tangible personal property purchased or condemned by the authority or of the proceeds of sale thereof, or the fair value thereof, and (3) the equitable distribution of all moneys on hand to the participating municipalities and counties in direct proportion to the contribution of moneys by them.

§8-27-27. Employees to be covered by workers' compensation.

All eligible employees of any authority shall be considered to be within the workers' compensation statute of this state and premiums on their compensation shall be paid by the authority as required by law.

§8-27A-1. Definitions.

The following terms, whenever used or referred to in this article, shall have the following meanings unless a different meaning clearly appears from the context:

(a) "Alternative fuels" include compressed natural gas, liquified natural gas, liquified petroleum gas, methanol, ethanol, fuel mixtures containing eighty-five percent or more by volume of methanol, ethanol and other alcohols with gasoline or other fuels, coal-derived liquid fuels and electricity (including electricity from solar energy).

(b) "Alternative fuel vehicle" means a motor vehicle that operates solely on one alternative fuel, a motor vehicle that is capable of operating on one or more alternative fuels or a motor vehicle that is capable of operating on an alternative fuel and is capable of operating on gasoline or diesel fuel.

(c) "Fleet" means fifteen or more motor vehicles that are centrally fueled or capable of being centrally fueled and are owned, operated, leased or otherwise controlled by or assigned to an agency of a political subdivision.

(d) "Political subdivision" means a county, municipality and any other unit of local government authorized by law to perform governmental functions, but does not include school boards or school districts.

§8-27A-2. Purchase or lease of fleet vehicles; use of alternative fuels.

(a) After September 1, 1993, a political subdivision may purchase or lease alternative fuel vehicles for use by any agency of the political subdivision as follows:

(1) Any agency of a political subdivision may acquire or be provided with equipment or refueling facilities necessary to operate alternative fuel vehicles by any of the following methods:

(A) Purchase or lease as authorized by law;

(B) Gift or loan of the equipment or facilities; or

(C) Gift or loan of the equipment or facilities or other arrangement pursuant to a service contract for the supply of alternative fuels.

(2) If the equipment or facilities are donated, loaned or provided through other arrangement with the supplier of alternative fuels, the supplier shall be entitled to recoup its actual cost of donating, loaning or providing the equipment or facilities through its fuel charges under the fuel supply contract.

(b) Of the total number of fleet vehicles acquired by each political subdivision for use by any agency of each political subdivision:

(1) Twenty percent in fiscal year 1995;

(2) Thirty percent in fiscal year 1996; and

(3) Fifty percent in fiscal year 1997 shall be alternative fuel vehicles.

(c) The governing authority of each political subdivision shall review this alternative fuel use program on or before December 31, 1997, and if the governing authority determines that the program is effective in reducing costs to the political subdivision, taking into consideration the cost of operating alternative fuel vehicles over the expected useful life of the vehicles, the governing authority shall, of the total number of vehicles acquired in each fiscal year, acquire at least seventy-five percent alternative fuel vehicles for fleets of the agencies of the political subdivision beginning September 1, 1998, and thereafter.

(d) The governing authority of each political subdivision, in the development of the alternative fuel use program, shall consult with agency fleet operators, vehicle manufacturers and converters, fuel distributors and others to delineate the vehicles to be covered, taking into consideration range, specialty uses, fuel availability, vehicle manufacturing and conversion capability, safety, resale values and other relevant factors. In order to maximize the savings to the political subdivision, the governing authority of each political subdivision shall attempt to the extent possible to convert first those vehicles that are used the most often for the most miles. The governing authority may meet the percentage requirements of this section through purchase or lease of new vehicles, purchase or lease of used alternative fuel vehicles or the conversion of existing vehicles, in accordance with federal and state requirements and applicable safety laws and standards, to use alternative fuels.

(e) The governing authority of each political subdivision may reduce any percentage specified or waive the requirements of subsection (b) of this section for any agency upon a determination by the governing authority, in its sole discretion, that either of the following situations apply:

(1) The agency's vehicles will be operating primarily in an area in which neither the agency nor a supplier has or can reasonably be expected to establish a central refueling station for alternative fuels; or

(2) The agency is unable to acquire or be provided equipment or refueling facilities necessary to operate alternative fuel vehicles at a projected cost that is reasonably expected to result in no greater net costs than the continued use of traditional gasoline or diesel fuels measured over the expected useful life of the equipment or facilities supplies.

(f) The provisions of this section shall not apply to:

(1) Vehicles operated by law-enforcement agencies;

(2) Emergency vehicles;

(3) Vehicles operated by public transit authorities;

(4) School buses; or

(5) Nonroad vehicles, including farm and construction vehicles.

§8-27A-3. Prohibition of subsidies or incentive payments.

Except as provided by section three-d, article thirteen-d, chapter eleven of this code, a political subdivision shall not enter into any program providing subsidies or incentive payments for the production of compressed natural gas, liquified natural gas, liquified petroleum gas, methanol, ethanol or coal-derived liquid fuels.

PART I. DEFINITIONS; OPERATION OF AIRPORTS.

§8-28-1. Definitions.

When used in this article, the terms "airport" and "aircraft" shall have the meanings ascribed to them in section one, article two-a, chapter twenty-nine of this code.

§8-28-2. Establishment, lease and operation of airports by municipalities and counties; jurisdiction of county court.

Any municipality or county may acquire, establish, construct, lease, equip, improve, maintain and operate for such municipality or county an airport for the use of aircraft, and may acquire or lease for such purpose real property within or without or partly within and partly without the corporate limits of such municipality, or within or without or partly within and partly without such county, or may set apart and use for such purpose real property owned by the municipality or county, which is not needed for any other public use, however such real property was acquired. Any county court now owning or leasing or hereafter acquiring or leasing any real property without or partly without the limits of its county for the purpose of acquiring, establishing, constructing, improving, maintaining and operating an airport, shall have the same and all jurisdiction over such property, its maintenance and operation, as it has with respect to real property owned or leased and operated by it for airport purposes within the limits of its own county.

§8-28-3. Acquisition of property for airport; payment therefor.

Real property necessary for such airport may be acquired by gift, or by purchase if such municipality or county is able to agree with the owners of such real property on the terms thereof, and otherwise by condemnation, in the manner provided by law under which such municipality or county is authorized to acquire real property for public use. The purchase price or award for any property acquired for airport purposes may be paid by appropriation of moneys available therefor or wholly or partly from the proceeds of sale of the bonds of such municipality or county, as the governing body or county court shall determine, subject, however, to the general provisions of law for the issuance and sale of bonds of municipalities and counties for public purposes generally.

§8-28-4. Construction, maintenance and operation of airport; expenses; rules and regulations and fees.

The governing body or county court of such municipality or county may direct or employ or vest jurisdiction in any appropriate officer, board or body of such municipality or county to locate, acquire, establish, construct, lease, equip, improve, maintain and operate such airport for such municipality or county, but the site so located and the acquisition, establishment, construction, leasing, equipment, improvement, maintenance and operation of such airport shall be subject to the approval of such governing body or county court, as the case may be. The expense of the acquisition, establishment, construction, leasing, equipment, improvement, maintenance and operation shall be a municipal or county charge, as the case may be.

The governing body or county court may adopt rules and regulations and establish fees or charges for the use of such airport, or may authorize the officer, board or body of such municipality or county having jurisdiction to adopt such rules and regulations and establish such fees and charges, subject, however, to the approval of such governing body or county court before they shall take effect.

§8-28-5. Rules and regulations to control vehicular and pedestrian traffic within quarter mile of airport; violation of rule and regulation a misdemeanor; penalty.

(a) The governing body or county court is hereby empowered and authorized to adopt and promulgate rules and regulations to:

(1) Control the movement and disposition of vehicular and pedestrian traffic within 1/4 mile of any building or installation of any airport owned or operated or owned and operated by any such municipality or county court;

(2) Regulate and control vehicular parking within such areas by the installation of parking meters or by other methods; and

(3) Impose reasonable charges for the use of the parking space so metered or otherwise allocated, so as to provide maximum opportunity for the public use thereof.

(b) Violation of any such rule and regulation shall constitute a misdemeanor and, the offender, upon conviction in the manner provided by law, may be fined not less than $10 nor more than $30 for each such violation.

(c) Magistrates shall have concurrent jurisdiction with the circuit courts and with statutory courts of record having criminal jurisdiction for the trial of offenses under this section.

PART III. JOINT OPERATION OF AIRPORTS.

§8-28-6. Airports maintained jointly; abandonment and sale thereof; suits concerning disposition, etc., of airport.

One or more municipalities or counties or both may join with another or other municipalities or counties or both for the purpose of acquiring, establishing, constructing, leasing, equipping, improving, maintaining and operating an airport. Any such airport may be located at such point as the governing bodies and county courts of the municipalities and counties joining therein may agree upon, and such municipalities and counties may raise, by levy or otherwise as provided in this article, funds for the purpose of acquiring, establishing, constructing, leasing, equipping, improving, maintaining and operating any such airport, and the municipalities and counties shall agree upon the proportionate part of the cost and expense of such airport to be paid by each municipality and county joining therein. The provisions of sections two, three, four, five, seven and eight of this article shall apply to any such joint airport, and as to section five, the rules and regulations authorized therein shall be jointly adopted and promulgated.

In case any such joint airport is abandoned and such airport is owned by such municipalities and counties, the same may be sold with the approval of the governing bodies and county courts of the municipalities and counties jointly owning same. The proceeds of such sale shall be distributed to the municipalities and counties in the proportion to which such municipalities and counties had contributed to the acquisition, establishment, construction, equipment, improvement, maintenance and operation of such airport. In case of a failure of the municipalities and counties to agree upon the disposition of such airport and the equipment thereat or connected therewith or used in its maintenance or operation, any one or more of the municipalities and counties interested therein may bring a suit in the circuit court of the county in which such airport or the major portion thereof is located, and upon a trial of the cause, held in the manner provided by law for other civil actions seeking equitable relief, the court shall make such decree or decrees with reference to the disposition of the property and distribution of the proceeds or other moneys involved as to the court may seem to the best interests of all the parties involved, and an appeal from any such decree or decrees to the Supreme Court of Appeals shall lie as in other civil actions.

PART IV. LEASE OF AIRPORTS TO OTHERS.

§8-28-7. State and political subdivisions empowered and authorized to lease airports and grounds to others.

The state, acting through the aeronautics commission, or any municipality or county, owning, either severally or jointly with other governmental units, an airport and any grounds used or useful in connection therewith may severally or jointly lease the same to others, for use as an airport and for any other purposes incidental to and not inconsistent therewith, for a term not exceeding thirty years: Provided, That no lease shall be executed by such owner or owners of any such airport or grounds unless and until such owner or owners shall have given notice by publication of the following described notice as a Class II 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 the state if it is the state which proposes to make such lease or the political subdivision or subdivisions involved if it is a political subdivision or subdivisions which propose to make such lease. The notice shall state its or their intent to lease said airport or grounds, shall accurately describe what is proposed to be leased, the purpose or purposes for which the same may be used and the terms of said lease, shall state the time and place for the public opening of proposals for such lease, and shall reserve the right to reject any and all proposals. Nothing herein contained, however, shall prevent such owner or owners of any such airport or grounds from granting or renting landing rights for airplanes, hangar space, gasoline storage space, handling facilities, ticket or general office space, or any other facilities or rights in connection with such airport or grounds, covering or affecting less than the whole thereof, without notice and upon such terms as such owner or owners may deem advisable. All income received by a municipality or county court under the terms of any such lease or grant shall be paid to the state sinking fund commission to retire the bonded indebtedness, if any, created for the acquisition, establishment, construction, equipment, improvement, maintenance and operation of such airport or grounds, and if there be no such outstanding bonded indebtedness, then such income shall be paid into the General Funds of such municipality or county.

PART V. FUNDS FOR AIRPORTS.

§8-28-8. Levy for airport; funds for its maintenance and operation.

The governing body of a municipality or the county court of a county to which this article is applicable may lay a levy, not to exceed 5¢ on each $100 of valuation, for a period not exceeding three years, and appropriate therefrom funds for the purpose of acquiring, establishing, constructing, equipping or improving an airport. Funds necessary for providing maintenance and operating expenses for such airport may be appropriated out of the General Funds of the municipality or county: Provided, That nothing contained herein shall in any way affect any rights, powers and privileges of any municipality or county court under any special act of the Legislature providing for the laying of levies or the expenditure of funds for acquiring, establishing, constructing, equipping, improving, maintaining or operating an airport.

PART VI. MUNICIPALITIES IN ADJOINING STATES

AND AIRPORT LAND IN THIS STATE.

§8-28-9. Construction, maintenance and operation of airports by municipalities of an adjoining state; acquisition of property therefor; property tax exempt.

Notwithstanding any other provision of law to the contrary, a municipality organized and existing under the laws of an adjoining state, the nearest corporate limits thereof being not more than ten miles distant from the nearest boundary of this state, may acquire or lease real property situate within this state, the nearest boundary of such real property being not greater than ten miles from the nearest corporate limits of such municipality of an adjoining state, for use in connection with the acquisition, establishment, construction, lease, equipment, improvement, maintenance or operation for such municipality of an adjoining state of an airport exclusively for nonprofit public use; and any such municipality shall have the right to acquire real property necessary for such airport by gift or by purchase, and otherwise by condemnation, and the use of real property in this state under the provisions hereof shall be deemed to be a public use for which private property may be taken or damaged, for just compensation. All property, real and personal, acquired, held and used in this state pursuant to the provisions of this section shall be public property and therefore exempt from taxation in the manner provided by section nine, article three, chapter eleven of this code.

§8-29-1. Airport authorities authorized; definitions.

(a) Any two or more municipalities, any two or more contiguous counties, or any county or two or more contiguous counties and one or more municipalities located therein or partly therein, of this state, are hereby authorized to create and establish one or more authorities for the purpose of acquiring, establishing, constructing, equipping, improving, financing, maintaining, and operating a regional airport or international airport and ancillary airports, as the case may be, for the use of aircraft: Provided, That no such municipality or county shall participate in such authority unless and until the governing body or county court so provides.

(b) As used in this article, the following terms have the following meanings:

(1) “Abandoned aircraft” means either:

(A) An aircraft left in a wrecked, inoperative, or partially dismantled condition on an airport for 45 consecutive calendar days and without a contractual agreement in force between the owner or operator of the aircraft and the airport authority for use of the airport premises; or

(B) An aircraft that has remained in an idle state on an airport for 45 consecutive calendar days without a contractual agreement between the owner or operator of the aircraft and the airport authority for use of the airport premises;

(2) “Aircraft” has the meaning provided in §29-2A-1 of this code;

(3) “Airport” means any airport, heliport, helistop, vertiport, gliderport, seaplane base, ultralight flightpark, manned balloon launching facility, or other aircraft landing or takeoff area operated by an airport operator as that term is defined in §8-29B-2(3);

(4) “Ancillary airport” means any airport, heliport, helistop, vertiport, gliderport, seaplane base, ultralight flightpark, manned balloon launching facility, or other aircraft landing or takeoff area that is owned and operated or operated by agreement by another authority as defined in §8-29-1 of this code;

(5) “Authority” means a regional airport authority created pursuant to the provisions of this article;

(6) “Contiguous counties” means two or more counties which constitute a compact territorial unit within an unbroken boundary wherein one county touches at least one other county but does not require that each county touch all of the other counties so combining; and

(7) “Derelict aircraft” means any aircraft that is not in a flyable condition, does not have a current certificate of air worthiness issued by the federal aviation administration, and whose owner cannot produce satisfactory written documentation from a licensed third-party aircraft mechanic evidencing that they have been hired to actively and fully repair the aircraft to both an airworthy and properly registered condition within six calendar months from the date notice is given to the owner.

§8-29-2. Authorities to be public corporations.

Each authority when created and established, and the members thereof, shall constitute a public corporation and as such, shall have perpetual succession, may contract and be contracted with, sue and be sued, and have and use a common seal.

§8-29-3. Authorities empowered and authorized to acquire, operate, etc., airports and develop industrial parks; state aeronautics commission.

Each authority is hereby empowered and authorized to acquire, establish, construct, equip, improve, finance, maintain, and operate an international airport, a regional airport, or other airport or landing field and appurtenant facilities so located to best serve the region in which they are located, including, but not limited to, industrial, research, and business parks. Each authority shall be subject to the jurisdiction of the state aeronautics commission to the same extent as a state or municipal airport.

§8-29-4. Management of authority vested in members; appointment and terms of members; vote of members; valuation of property contributed to an authority; participation by additional municipalities or counties without state.

The management and control of each authority, its property, operations, business and affairs shall be lodged in a board of not less than five nor more than twenty-one individuals who shall be known as members of the authority and who shall be appointed for terms of three years each by the municipalities and county courts contributing moneys or property to the authority. However, the first board shall be comprised of one member appointed by each participating municipality and one member appointed by each participating county court, and any such member shall serve a term of one year, beginning as of the date the authority is created. No more than three members shall serve from one county on the first board.

Each municipality or county shall have one vote for each $5,000 it has contributed to the authority in the form of moneys or property. When property is contributed, the contributing municipality or county court and the authority shall agree in writing at the time the contribution is made as to the fair market value of such property, which valuation shall determine the number of votes to be allocated to the municipality or county on the basis thereof. For the fiscal year during which any authority is formed, the number of votes to which any municipality or county shall be entitled shall be determined as of the time of formation of the authority and shall govern until the end of that fiscal year, even though additional moneys or property are contributed during that fiscal year. Thereafter, the number of votes shall be determined at the end of each fiscal year and such determination shall govern for the ensuing fiscal year, even though additional moneys or property are contributed during that fiscal year. Subsequent to its formation, any authority may permit any municipality or county without this state to participate in the affairs of the authority, to appoint members of the authority in the same manner, and to have such vote or votes beginning as of the next ensuing fiscal year, as prescribed by law with respect to the original participating municipalities or counties or any combination thereof.

§8-29-5. Substitution of members.

If any member of an authority die, or resign, or be removed, or for any other reason cease to be a member of the authority, the municipality or the county court (or other similar body in the case of an out-of-state participating county) which such member represented shall appoint another individual to fill the unexpired portion of the term of such member.

§8-29-6. Qualification of members.

All members of the board of each authority shall be residents of the municipality or county which said members represent.

§8-29-7. Compensation of members.

No member of the board of an authority shall receive any compensation, whether in form of salary, per diem allowance or otherwise, for or in connection with his services as such member. Each member shall, however, be entitled to reimbursement by the authority for all reasonable and necessary expenses actually incurred in connection with the performance of his duties as such member.

§8-29-8. Powers of authorities generally.

Each authority is hereby given plenary power and authority as follows:

(1) To make and adopt all necessary bylaws and rules for its organization and operations not inconsistent with law;

(2) To elect its own officers, to appoint committees and to employ and fix the compensation for personnel necessary for its operation;

(3) To enter into contracts with any person, including both public and private corporations, or governmental department or agency, and generally to do any and all things necessary or convenient for the purpose of acquiring, establishing, constructing, equipping, improving, financing, maintaining, and operating a public airport to best serve the region in which it is located, including the development of an industrial, research, or business park in the same general area;

(4) To delegate any authority given to it by law to any of its officers, committees, agents, or employees;

(5) To apply for, receive, and use grants-in-aid, donations, and contributions from any source or sources, including, but not limited to, the federal government and any department or agency thereof, and this state subject to any Constitutional and statutory limitations with respect thereto, and to accept and use bequests, devises, gifts, and donations from any person;

(6) To acquire, receive, take, and hold property, whether by purchase, gift, lease, devise, or otherwise, and to use and manage said property, and to develop, improve, and maintain any property owned, leased or controlled by it;

(7) To purchase, own, hold, sell, and dispose of personal property and to sell, lease, or otherwise dispose of any real property which it may own;

(8) To borrow money and execute and deliver negotiable notes, mortgage bonds, other bonds, debentures, and other evidences of indebtedness therefor, and give such security therefor as shall be requisite, including giving a mortgage or deed of trust on its airport properties and facilities or assigning or pledging the gross or net revenues therefrom;

(9) To raise funds by the issuance and sale of revenue bonds in the manner provided by the applicable provisions of §8-16-1 et seq. of this code, it being hereby expressly provided that for the purpose of the issuance and sale of revenue bonds, each authority is a “governing body” as that term is used in said article only;

(10) To establish, charge, and collect reasonable fees and charges for services or for the use of any part of its property or facilities, or for both services and such use;

(11) To expend its funds in the execution of the powers and authority herein given;

(12) To apply for, receive, and use loans, grants, donations, technical assistance, and contributions from any regional or area commissions that may be established;

(13) To prescribe by bylaw the manner of financial participation by members;

(14) To construct, acquire, establish, improve, extend, enlarge, reconstruct, equip, maintain, and repair buildings, structures, and facilities, including roadway access, suitable for use as manufacturing plants, industrial plants, and facilities; research parks and facilities; business parks and facilities; retail shopping areas or centers; parks; exhibits; exhibitions; or the conduct of any lawful business, heliport, or aircraft landing area owned or operated by such authority, and to lease or let such buildings, structures, and facilities or any one or more of them to such tenant or tenants for such term or terms, at such compensation or rental and subject to such provisions, limitations, and conditions as the authority may require or approve; and

(15) To enter into a management agreement or agreements with any county, city, or town in the state for the management by the authority of an existing airport upon such terms and conditions as may be mutually agreeable.

(16) An authority may only exercise the powers delegated to it in this section in the county in which the airport is located or any county contiguous to the county in which the airport is located: Provided, That nothing in this subsection shall prohibit an authority from entering into a management agreement for an existing airport with a county that is not contiguous to the county in which the existing airport is located or a city or town located in a county that is not contiguous to the county in which the airport is located.

§8-29-9. Rules and regulations to control vehicular and pedestrian traffic within quarter mile of airport; violation of rule and regulation a misdemeanor; penalty.

(a) The airport authority or the county court of the county in which any such airport or the major portion thereof is located is hereby empowered and authorized, upon request of the authority, may adopt and promulgate rules and regulations to:

(1) Control the movement and disposition of vehicular and pedestrian traffic within 1/4 mile of any building or installation of any such airport;

(2) Regulate and control vehicular parking within such areas by the installation of parking meters or by other methods; and

(3) Impose reasonable charges for the use of the parking space so metered or otherwise allocated, so as to provide maximum opportunity for the public use thereof.

(b) Violation of any such rule and regulation shall constitute a misdemeanor and, the offender, upon conviction in the manner provided by law, may be fined not less than $10 nor more than $30 for each such violation.

(c) Magistrates shall have concurrent jurisdiction with the circuit courts and with statutory courts of record having criminal jurisdiction for the trial of offenses under this section.

PART IV. INDEBTEDNESS; FUNDS; EMINENT DOMAIN; EXEMPTION

FROM TAXATION; DISPOSITION OF SURPLUSES.

§8-29-10. Indebtedness of authorities.

Each authority may incur any proper indebtedness and issue any obligations and give any security therefor which it may deem necessary and advisable in connection with carrying out its purposes as hereinbefore mentioned.

No indebtedness or obligation incurred by an authority shall give any right against any member of the governing body of any of said municipalities, or the county court (or other similar body in the case of an out-of-state participating county) of any of said counties, or any member of the board of the authority. No indebtedness of any nature of an authority shall constitute an indebtedness of any municipality or county or the governing body of any such municipality or the county court (or other similar body in the case of an out-of-state participating county) of any such county, or be a charge against any property of any municipality or county. The rights of creditors of an authority shall be solely against the authority as a corporate body and shall be satisfied only out of property held by it in its corporate capacity.

§8-29-11. Agreements in connection with obtaining funds.

Each authority may, in connection with obtaining moneys or property for its purposes, enter into any agreement with any person, including the federal government, or any department, agency or subdivision thereof, containing such provisions, covenants, terms and conditions as the authority may deem advisable.

§8-29-12. Authorities to have right of eminent domain.

Whenever it shall be deemed necessary by an authority, in connection with the exercise of its powers herein conferred, to take or acquire any lands, structures or buildings or other rights, either in fee or as easements, for the purposes herein set forth, the authority may purchase the same directly or through its agents from the owner or owners thereof, or failing to agree with the owner or owners thereof, the authority may exercise the power of eminent domain in the manner provided for condemnation proceedings in Chapter 54 of this code, and such purposes are hereby declared to be public uses for which private property may be taken or damaged.

§8-29-13. Property, bonds and obligations of authorities exempt from taxation.

Each authority shall be exempt from the payment of any taxes or fees to the state or any subdivisions thereof or any municipalities or to any officer or employee of the state or of any subdivision thereof or of any municipality.

The property of each authority shall be exempt from all municipal and county taxes. Bonds, notes, debentures and other evidences of indebtedness of the authority are declared to be issued for a public purpose and to be public instrumentalities, and, together with interest thereon, shall be exempt from taxation.

§8-29-14. Authorities may lease facilities.

Each authority may lease its airport and all or any part of the appurtenances and facilities therewith to any available lessee, subject to all Constitutional and statutory limitations with respect thereto, at such rental and upon such terms and conditions as the authority deems proper. The leases shall be subordinate to any mortgage or deed of trust executed by the authority. An authority may lease land, the original taking of which was necessary for airport purposes, for economic development purposes compatible with, but not necessarily associated with, airport activities.

§8-29-15. Disposition of surplus of authorities.

If an authority should realize a surplus, whether from operating the airport or leasing it for operation, over and above the amount required for the equipping, improvement, maintenance and operation of the airport and for meeting all required payments on its obligations, it shall set aside such reserve for future equipping, improvements, maintenance, operations and contingencies as it shall deem proper and shall then apply the residue of such surplus, if any, to the payment of any recognized and established obligations not then due, and after all such recognized and established obligations have been paid off and discharged in full, the authority shall, at the end of each fiscal year, set aside the reserve for future equipping, improvements, maintenance, operations and contingencies, as aforesaid, and then pay the residue of such surplus, if any, to the municipalities and counties in direct proportion to their contribution of moneys and property.

§8-29-16. Contributions to authorities; funds and accounts of authorities.

Contributions of moneys may be made to authorities from time to time by the participating municipalities and counties, and persons that shall desire to do so. All such moneys and all other moneys received by an authority shall be deposited in such banking institution or banking institutions as the authority may direct and shall be withdrawn therefrom in such manner as the authority may direct. Each authority shall keep strict account of all of its receipts and expenditures and shall each quarter make a quarterly report thereon to the municipalities and counties which have made contributions of moneys or property, and such report shall contain an itemized account of its receipts and disbursements during the preceding quarter. Such report shall be made within sixty days after the termination of the quarter. Within sixty days after the end of each fiscal year, each authority shall make an annual report containing a summary of its receipts and disbursements for the preceding fiscal year, and publish the same as a Class II-0 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 the municipalities and counties, as provided in section one of this article. The books, records and accounts of each authority shall be subject to audit and examination by the office of the State Tax Commissioner and by any other proper public official or body in the manner provided by law.

§8-29-17. Participation.

(a) The municipalities and counties or any one or more of them participating therein, jointly or severally, may appoint members of the said authorities and to contribute to the cost of acquiring, establishing, constructing, equipping, improving, and maintaining and operating the said airports and appurtenant facilities.

(b) Any of the municipalities or counties as provided in section one of this article may convey or transfer to the authorities property of any kind heretofore acquired by the municipalities or counties for airport purposes.

PART V. DISSOLUTION OF AUTHORITIES; WORKMEN'S

COMPENSATION; CONSTRUCTION.

§8-29-18. Dissolution of authority; disposition of assets after payment of debts.

In the event full and adequate provision is made for the payment of all of the debts of an authority, the participating municipalities or counties or any combination thereof which have contributed at least sixty percent of the total value of all moneys and property (the value of which property is determined as specified in section four of this article) contributed to the authority by the participating municipalities and counties may by resolution provide for the dissolution of the authority and for (1) the conveyance of the real and tangible personal property contributed to it to those participating municipalities and counties which contributed the same, (2) equitable distribution among the contributing municipalities and counties of any real and tangible personal property purchased or condemned by the authority or of the proceeds of sale thereof, or the fair value thereof, and (3) the equitable distribution of all moneys on hand to the participating municipalities and counties in direct proportion to the contribution of moneys by them.

§8-29-19. Employees to be covered by workmen's compensation.

All eligible employees of any authority shall be deemed to be within the workmen's compensation statute of this state and premiums on their compensation shall be paid by the authority as required by law.

§8-29-20. Liberal construction of article.

The purposes of this article are to provide for the acquisition, establishment, construction, equipping, improvement, financing, maintenance, and operation of airports in a prudent and economical manner, and this article shall be liberally construed as giving to any authority created and established hereunder full and complete power reasonably required to give effect to the purposes hereof. The provisions of this article are in addition to and not in derogation of any power granted to or vested in municipalities and county courts under any Constitutional, statutory, or charter provisions which may now or hereafter be in effect.

§8-29A-1. County airport authority authorized as public agency.

The county commission of a county is hereby authorized to create and establish as a public agency a county airport authority to be known as the "County Airport Authority" for the purposes and in the manner hereinafter set forth.

§8-29A-2. Appointment of members; powers and duties; compensation; terms; removal or replacement.

(a) The management and control of the county airport authority, its property, operations, business, and affairs, shall be lodged in a board of five persons who shall be known as Members of the Authority. The board shall constitute and be a public corporation under the name of “County Airport Authority” and as such shall have perpetual succession, may contract, and be contracted with, sue and be sued, plead and be impleaded, and have and use a common seal.

(b) All members shall be appointed by the county commission: Provided, That one member of the authority shall be a member of the county commission: Provided, however, That of the remaining four members of the authority no more than two shall be members of the same political party. At least a majority of members shall be residents of the county and be appointed for a term of five years, except that as to the first four appointed to the first board appointed, the term of one member shall expire on July 1, next ensuing and the term of the next member shall expire on July 1, two years thereafter, the term of another member shall expire on July 1, three years thereafter and the term of the remaining member shall expire on July 1, four years thereafter: Provided further, That the county commissioner appointed to serve as a member of the authority shall not serve for a term as member of the authority which is longer than the term of office as a member of the county commission.

(c) The members of the board shall receive no compensation for their services, but they are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties as members of the board. They may not be personally interested, directly or indirectly, in any contract entered into by the board, or hold any remunerative position in connection with the establishment, construction, improvement, extension, development, maintenance or operation of any of the property under their control as members of the board: Provided, That nothing herein may be construed to prevent or make unlawful under this chapter or any other chapter of this code, the appointment to the board of any person whose only interest in any property under the control of the board is that the person in a noncommercial manner leases hangar space, purchases fuel, or contracts for any other goods or service provided by the airport authority subject to the control and management of the board.

(d) The county commission may remove any member of the authority for consistent violations of any provisions of this article, for reasonable cause which shall include, but not be limited to, a continued failure to attend meetings of the authority, failure to diligently pursue the objectives for which the authority was created or failure to perform any other duty prescribed by law, or for any misconduct in office: Provided, That if the county commission desires to remove a member of the authority it shall notify said member in writing, stating the reasons for the county commission desiring said removal. Within 10 days of the receipt of the written notice of removal by the member of the authority, the member may request a hearing before the county commission, and any such hearing shall be held within 10 days of the member’s request for said hearing.

If any member of the authority dies, resigns, or is removed, or for any other reason ceases to be a member of the authority, the county commission shall within 30 days appoint another person to fill the unexpired portion of the term of that member.

§8-29A-3. Powers generally.

(a) The authority is hereby authorized and empowered to acquire, equip, construct, improve, maintain and operate a public airport within the county, with all usual and convenient appurtenances and facilities pertaining thereto, including, but not limited to, an industrial park and a waterworks or sewerage system or a combined waterworks and sewerage system, and said airport shall be for the convenience and accommodation of the inhabitants of the county and the public generally.

(b) A county airport authority is hereby given power and authority as follows:

(1) To make and adopt all necessary bylaws, rules and regulations for its organization and operations not inconsistent with law;

(2) To elect its own officers, to appoint committees and to employ and fix the compensation for personnel including attorneys necessary for its operation;

(3) To delegate any authority given to it by law to any of its officers, committees, agents or employees;

(4) To enter into contracts with any person, governmental department, firm or corporation, and generally to do any and all things necessary or convenient for the purpose of acquiring, equipping, constructing, maintaining, improving, extending, financing and operating a public airport, including the development of an industrial park in the same general area;

(5) To apply for, receive and use grants-in-aid, donations and contributions from any source or sources, including, but not limited to, the federal government and any agency thereof, and the State of West Virginia, and to accept and use bequests, devises, gifts and donations from any person, firm or corporation;

(6) To enter into any agreement with any person, including the federal or state government, or any agency or subdivision thereof, in connection with obtaining funds for its purposes, which agreement may contain such provisions, covenants, terms and conditions as the authority may deem advisable;

(7) To accept contributions from time to time by the county commission and by any persons that shall desire so to do;

(8) To acquire lands, structures or buildings and hold title thereto in its own name, including, whenever it shall be deemed necessary by the authority, to take or acquire such property either in fee or as easements, to purchase same directly or through its agents from the owner or owners thereof, or to exercise the power of eminent domain in the manner provided for condemnation proceedings in chapter fifty-four of this code inasmuch as such purposes are hereby declared to be public uses for which private property may be taken: Provided, That such right of eminent domain shall not apply to the development of an industrial park;

(9) To sell, lease or otherwise dispose of any real estate which it may own;

(10) To purchase, own, hold, sell and dispose of personal property;

(11) To borrow money and execute and deliver negotiable notes, mortgage bonds, revenue bonds, other bonds, debentures and other evidences of indebtedness therefor, and give such security therefor as shall be requisite, including giving a mortgage or deed of trust on its airport properties and facilities or assigning or pledging the gross or net revenues therefrom;

(12) To raise funds by the issuance and sale of revenue bonds or refunding bonds in the manner provided by the applicable provisions of article sixteen of this chapter, it being hereby expressly provided that, for that purpose, a county airport authority shall be treated as a municipality or board as those terms are used in said article sixteen;

(13) To acquire, construct, establish, equip, maintain and operate, within a reasonable distance of the airport, a waterworks, a sewerage system or a combined waterworks and sewerage system for its own use and for the use of any person, and to finance the same by the issuance of revenue bonds as provided in this article: Provided, That no existing waterworks or sewerage system, or any part thereof, may be acquired without the prior consent and approval of the Public Service Commission;

(14) To establish, charge and collect reasonable fees and charges for services or for the use of any part of its property or facilities, or for both services and such use;

(15) To lease its airport and all or any part of the appurtenances and facilities therewith to any available lessee, subject to all Constitutional and statutory limitations with respect thereto, at such rental and upon such terms and conditions as the authority shall deem proper: Provided, That such lease shall be for some purpose associated with airport activities and subordinate to any mortgage or deed of trust executed by the authority; and

(16) To expend its funds in the execution of the powers and authority herein given.

§8-29A-4. Funds; accounting; reporting.

All funds received by the authority from whatever source shall be deposited in such bank or banks as the authority may direct and shall be withdrawn therefrom in such manner as the authority may direct. The authority shall keep strict account of all its receipts and expenditures and shall each quarter make a quarterly report to the county commission containing an itemized account of its receipts and disbursements during the preceding quarter. Such report shall be made within sixty days after the termination of the quarter.

Within sixty days after the end of each fiscal year, the authority shall make an annual report containing an itemized statement of its receipts and disbursements for the preceding year, and such annual report shall be published as a Class II-0 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 the county. The books, records and accounts of the authority shall be subject to audit and examination by the office of the State Tax Commissioner of West Virginia and by any other proper public official or body in the manner provided by law.

§8-29A-5. Full-time employees of the authority to be public employees.

Any person who serves regularly as an employee, full time, on a salary basis, whose tenure is not restricted as to temporary or provisional appointment, in the service of, and whose compensation is payable in whole or in part by the authority, shall be deemed to be a public employee and shall be subject to any and all applicable provisions of law relating thereto, including, but not limited to, the workers' compensation act and the West Virginia public employees insurance act.

§8-29A-6. Authority may incur indebtedness; county not liable for indebtedness.

The authority may incur any proper indebtedness and issue any obligations and give any security therefor which it may deem necessary or advisable in connection with carrying out its purposes. No statutory limitation with respect to the nature or amount of indebtedness which may be incurred by municipalities or other bodies shall apply to indebtedness of the authority. No indebtedness of any nature of the authority shall constitute an indebtedness of the county commission, nor of the county, or a charge against any property of the county. No obligation incurred by the authority shall give any right against any member of the county commission or any member of the board of the authority. The rights of creditors of the authority shall be solely against the authority as a corporate body and shall be satisfied only out of property held by it in its corporate capacity.

§8-29A-7. Exemption from taxes; payment for portion used as industrial park.

The authority shall be exempt from the payment of any taxes or fees to the state or any subdivisions thereof or any municipalities or to any officer or employee of the state or of any subdivision thereof or of any municipalities. The property of the authority shall be exempt from all local and municipal taxes. Bonds, notes, debentures and other evidence of indebtedness of the authority are declared to be issued for a public purpose and to be public instrumentalities, and, together with interest thereon, shall be exempt from taxes.

It shall be the duty of the county assessor on July 1, of each year to ascertain what portion of the real and personal property of the authority, if any, is devoted to use as an industrial park and to appraise such property as if taxable. The assessor shall likewise determine the tax which would be levied upon such property if it were taxable. On August 1, of the year following such determination and February 1 thereafter, the authority shall pay unto the sheriff of the county a sum of money equal to that which would have been due if the property were taxable, which sums shall be distributed by the sheriff as if such sums were tax receipts.

§8-29A-8. County commission authorized to convey present airport properties and facilities to the authority.

Notwithstanding any other provision of law to the contrary, the county commission of a county is hereby authorized to convey to the authority the present airport property owned by the county, if any, situate in the county, together with all the appurtenances and facilities therewith, such conveyance to be without consideration or for such price and upon such terms and conditions as the county commission shall deem proper.

§8-29A-9. Disposition of surplus.

If the authority should realize a surplus, whether from operating the airport or leasing it for operation, over and above the amount required for the maintenance, improvement and operation of the airport and for meeting all required payments on its obligations, it shall set aside such reserve for future operations, improvements and contingencies as it shall deem proper and shall then apply the residue of such surplus, if any, to the payment of any recognized and established obligations not then due; and after all such recognized and established obligations have been paid off and discharged in full, the authority shall, at the end of each fiscal year, set aside the reserve for future operations, improvements and contingencies, as aforesaid, and then pay the residue of such surplus, if any, to the county commission, to be used by the county commission for general county purposes.

§8-29A-10. Procedure for dissolution of authority.

The authority may at any time pay off and discharge in full all of its indebtedness, obligations and liabilities, convey the airport properties, appurtenances and facilities to the county commission and be dissolved. Before making such conveyance of its properties, the authority shall give notice of its intention to do so and of its intention to be dissolved, and said notice shall be published as a Class I-0 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 the county. Affidavits from the publishers of the newspapers showing such publication shall be filed with the county commission before the deed conveying said properties is delivered. Any funds remaining in the hands of the authority at the time of the conveyance of said properties shall be by the authority paid over to the county commission to be used by it for purposes in connection with said airport. Upon the payment of its indebtedness, obligations and liabilities, the publishing of the notices aforesaid, the conveyance of its properties, and the paying over to the county commission of any funds remaining in its hands, the authority shall cause a certificate showing its dissolution to be executed under its name and seal and to be recorded in the office of the clerk of the county commission and thereupon its dissolution shall be complete.

§8-29A-11. Purpose of article; liberal construction; article cumulative.

It is the purpose of this article to provide for the acquisition, construction, improvement, extension, maintenance and operation of a public airport and related facilities in a prudent and economical manner, and this article shall be liberally construed as giving to the authority full and complete power reasonably required to give effect to the purposes hereof. The provisions of this article are in addition to and not in derogation of any power existing in the county commission of a county under any Constitutional or statutory provisions which it may now have, or may hereafter acquire.

§8-29A-12.

Repealed.

Acts, 1991 Reg. Sess., Ch. 113.

§8-29A-13.

Repealed.

Acts, 1991 Reg. Sess., Ch. 113.

§8-29A-14.

Repealed.

Acts, 1991 Reg. Sess., Ch. 113.

§8-29A-15.

Repealed.

Acts, 1991 Reg. Sess., Ch. 113.

§8-29A-16.

Repealed.

Acts, 1991 Reg. Sess., Ch. 113.

§8-29A-17.

Repealed.

Acts, 1991 Reg. Sess., Ch. 113.

§8-29A-18.

Repealed.

Acts, 1991 Reg. Sess., Ch. 113.

§8-29A-19.

Repealed.

Acts, 1991 Reg. Sess., Ch. 113.

§8-29A-20.

Repealed.

Acts, 1991 Reg. Sess., Ch. 113.

§8-29A-21.

Repealed.

Acts, 1991 Reg. Sess., Ch. 113.

§8-29B-1. Legislative findings and purpose.

The Legislature hereby finds and declares that there is an ever increasing need to eliminate the highjacking of aircraft, air piracy and other criminal and terrorist activities involving air passengers, airport personnel, aircraft and airport property and facilities. This article is enacted in view of this finding and the purpose of this article is to facilitate the providing of airport security.

§8-29B-2. Definitions.

As used in this article:

(1) “Aircraft” has the meaning provided in §29-2A-1 of this code.

(2) “Airport” means any area of land or water which is used, or intended for use, for the landing and takeoff of aircraft, as defined above, any appurtenant areas which are used, or intended for use, for airport buildings or other airport facilities or rights-of-way, together with all airport buildings and facilities located thereon as well as any heliport, helistop, vertiport, gliderport, seaplane base, ultralight flightpark, manned balloon launching facility, or other aircraft landing or takeoff area operated by an airport operator as that term is defined in §8-29B-2(3) of this code.

(3) “Airport operator” means a governing body, regional airport authority, or county airport authority, under §8-28-1 et seq., §8-29-1 et seq., or §8-29A-1 et seq. of this code, or a board, commission, authority, or committee operating under any local act of the Legislature, charged with the operation and management of an airport.

(4) “Airport police officer” means any individual assigned, appointed, or designated by an airport operator, to serve as a police officer at an airport.

§8-29B-3. Rules and regulations; penalties.

Each airport operator shall have plenary power and authority to manage and control the airport under its jurisdiction, to promulgate rules and regulations concerning the management and control of such airport, and to enforce any such rules and regulations so promulgated. Any rules and regulations promulgated shall be printed and posted in a conspicuous public place on the airport premises. The violation of any such rule or regulation shall constitute a misdemeanor and, any person convicted of any such violation shall be punished by a fine of not less than $50 nor more than $500 or confined in jail for a period not exceeding 30 days, or by both such fine and confined. Justices of the peace of the county shall have concurrent jurisdiction with the circuit court and other courts of record having criminal jurisdiction of any misdemeanor offenses arising under this article. Violation of any such rule or regulation which also constitutes the violation of any federal or state law or municipal ordinance may be prosecuted and punished as a violation of such federal or state law or municipal ordinance rather than under the provisions of this article. It shall be the duty of every airport operator in this state to promulgate all rules and regulations deemed necessary for airport security.

§8-29B-4. Arrangements for airport police officers; uniform and badge; firearm required.

(a) To enforce any federal or state law or rules and regulations relating to airports and airport security and any rules and regulations promulgated by the airport operator, to protect air passengers, airport personnel, aircraft and the airport and to preserve law and order in connection therewith, the airport operator shall have plenary power and authority to make arrangements for one or more airport police officers, pursuant to the provisions of subsections (b) and (c) of this section.

(b) In those instances in which the airport operator is the governing body of a municipality, and if requested by such airport operator, one or more police officers of such municipality shall be assigned by the mayor thereof to serve as an airport police officer or officers. In those instances in which the airport operator is the governing body of a county or is a county airport authority, and if requested by such airport operator, one or more deputy sheriffs of such county may be assigned by the sheriff of such county, in his discretion, to serve as airport police officer or officers. Compensation for the performance of duties by any such officer assigned as an airport police officer shall be paid as agreed between the airport operator and the mayor or sheriff, as the case may be.

(c) In lieu of or in addition to obtaining one or more airport police officers pursuant to the provisions of subsection (b) of this section and in all instances in which the airport operator is other than as specified in said subsection (b), the airport operator may provide for the appointment and supervision of, or contract for the furnishing by any private security force and the designation by such airport operator of, one or more airport police officers, and pay the agreed compensation thereto or therefor. Any person appointed or designated as an airport police officer pursuant to the provisions of this subsection (c) shall, before entering upon the performance of his duties, qualify in the same manner as is required of a constable by the taking and filing of an oath of office as required by article one, chapter six of this code and by the filing of an official bond as required by article two of said chapter six.

(d) The airport operator may terminate the assignment of an airport police officer assigned pursuant to the provisions of subsection (b) of this section by notice to the mayor or sheriff, as the case may be, who made the assignment, and the airport operator may relieve any person appointed or designated, pursuant to the provisions of subsection (c) of this section, from his duty as an airport police officer, by filing a notice to such effect in the office in which such person's oath of office as an airport police officer was officially filed.

(e) The airport operator shall specify a uniform, badge or other indicia of authority to be worn by all airport police officers while on duty: Provided, That as to any airport police officer who is either a municipal police officer or deputy sheriff, the uniform, badge or other indicia of authority specified shall be the uniform, badge or other indicia of authority worn by such individual as a municipal police officer or deputy sheriff, as the case may be.

(f) Every airport police officer shall be trained in the use of firearms and shall, unless otherwise provided by rules and regulations promulgated by the airport operator, carry a firearm at all times while on duty.

§8-29B-5. Jurisdiction of airport police officers; insurance coverage; bonds.

(a) The following areas shall be under the jurisdiction of airport police officers:

(1) Any area under the jurisdiction and control of the airport operator, or in connection with the airport;

(2) Any property leased, operated, managed, utilized, or controlled by a regional airport

authority; or

(3) Any area upon which a regional airport authority facilitates training activities pursuant to a written agreement.

(b) The jurisdiction of airport police officers shall include any area entered into in pursuit of one or more individuals from one of the areas described in subsection (a) of this section.

(c) When exercising the jurisdiction authorized by this section, airport police officers shall have:

(1) All of the power and authority which a regularly appointed deputy sheriff of a county in this state has in enforcing the criminal laws of this state;

(2) Full power and authority to enforce any and all federal laws and rules and regulations relating to airports, air passengers, baggage inspection, the screening of air passengers, and other airport security measures;

(3) Full power and authority to enforce any and all rules and regulations promulgated by the airport operator; and

(4) The power to search persons, packages, containers, and baggage and the power to arrest persons: Provided, That the foregoing provisions of this section shall under no circumstances whatever be construed as in any way limiting the power and authority of a municipal police officer or deputy sheriff who has been assigned to serve as an airport police officer which he or she has by virtue of his or her being a municipal police officer or deputy sheriff, and under no circumstances whatever shall the assignment or appointment or designation of one or more airport police officers at an airport be deemed in any way to supersede or limit the power and authority of other peace officers to preserve law and order at such airport.

(d) Consistent with the provisions of §61-7-5 of this code, any municipal police officer or deputy sheriff assigned as an airport police officer pursuant to §8-29B-4(b) of this code, and (notwithstanding any provision of this code to the contrary) any person appointed or designated as an airport police officer pursuant to §8-29B-4(c) of this code, shall not be required to obtain a state license to carry a deadly weapon, as provided for in §61-7-2 of this code. Any municipal police officer or deputy sheriff assigned as an airport police officer pursuant to the provisions of §8-29B-4(b) of this code shall not be required to furnish any bond under §61-7-5 of this code, other than the bond furnished thereunder as such municipal police officer or deputy sheriff.

(e) When one or more policies of public liability insurance are obtained providing insurance coverage for legal liability of an airport police officer for bodily injury, personal injury, or damage (including, but not limited to, false arrest and false imprisonment) and property damage, and affording said airport police officer insurance coverage against any and all legal liability arising from, growing out of, or by reason of, or in any way connected with, any acts or omissions of said airport police officer in the performance of his or her official duties, and so long as the coverage aforesaid remains in full force and effect as to such airport police officer, then the bond specified in §61-7-5 of this code shall not be required as to such airport police officer: Provided, That such bond shall otherwise be required and must be furnished.

§8-29B-6. Required security measures.

In addition to any and all other security measures which may be required by an airport operator, and unless otherwise provided by rules and regulations promulgated by such airport operator, at least one airport police officer must be present prior to, at the point of, and throughout the final passenger screening process prior to the boarding of an aircraft at an airport (other than a charter or commuter flight), and such police officer shall be present continuously until all doors on such aircraft being boarded are closed and such aircraft has taxied away from the boarding area. An airport police officer shall have the same duty and responsibility in the event such aircraft returns to the boarding area prior to takeoff.

§8-30-1. Establishment and operation of flood control projects by municipalities and counties.

Any municipality or county may establish, construct, maintain and operate for such municipality or county a flood control project, including the removal of accumulated snags and other debris from and the clearing and straightening of the channel of navigable streams and tributaries thereof, and any such municipality or county may accept any and all benefits, moneys, services and assistance from the federal government in connection with any agreement as authorized by federal statutes and laws relating to flood control, and any such municipality or county under such agreements as are required by section 701c, Title 33, United States Code or other federal statutes is hereby empowered and authorized to give assurances satisfactory to the secretary of the army or other proper federal authority that such municipality or county will: (a) Provide without cost to the United States, all lands, easements and right-of-ways necessary for the construction of the project; (b) hold and save the United States free from damages due to the construction works; and (c) maintain and operate all the works after completion in accordance with regulations prescribed by the secretary of the army.

Any such municipality or county is hereby further empowered and authorized to levy, within all Constitutional and statutory limitations, for the maintenance or operation of a flood control project; to purchase land situate therein for the same; to institute condemnation proceedings for the acquiring of any land required under the flood control project; and to authorize the issuance and sale of bonds within all Constitutional and statutory limitations, as is provided under general law for the issuance and sale of bonds by municipalities and counties for public purposes generally. Any levy shall be equal and uniform throughout the municipality or county, as the case may be. Real or personal property or moneys may also be acquired for such purpose by gifts to such municipality or county.

Any municipality or county is hereby empowered and authorized to adopt zoning ordinances restricting the use of the lands and the construction of buildings and structures within the flood control area and one hundred feet on each side thereof and to enforce such ordinances by fine or imprisonment, or both, in the circuit court of the county in which the offense occurred in the case of a county ordinance, or by injunction proceedings in the circuit court of the county in which the offense occurred. Prosecution for violation of any such municipal ordinance shall be as in any other municipal ordinance violation case.

The power and authority granted by this section may be exercised by any municipality or county in cooperation with each other or separately where such flood control project is located, regardless of the sponsoring agency of such project.

PART I. GRANTING OF FRANCHISE.

§8-31-1. Conditions to granting of franchise by governing body or county court; term of franchise; Public Service Commission power and authority not affected.

Every municipality and every county court are hereby empowered and authorized to grant an exclusive or nonexclusive franchise to any person. No franchise, however, shall hereafter be granted by the governing body of any municipality or by the county court of any county where the application for such franchise has not been filed, with the recorder of such municipality or the clerk of such county court, at least thirty days prior to the time when it is to be acted upon by such governing body or county court, and where notice of such application, stating the object of such franchise, has not been given by publication thereof as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, for which publication the publication area shall be the municipality or the county, as the case may be, wherein such franchise is to be granted. No such franchise shall be granted within thirty days after the application has been filed, nor until an opportunity has been given any person interested in the granting or refusing of such franchise to be heard. No such franchise shall hereafter be granted by any municipality or county court for a longer term than fifty years: Provided, That nothing in this section shall prevent the renewal of any such franchise for a term not exceeding fifty years, when the same shall have expired. No such franchise hereafter granted for any longer term than fifty years shall be of any force or validity. Notwithstanding the provisions of this article or any other provisions of this chapter, other general law or any charter, the failure or inability of any person to obtain from any municipality or county court a franchise for the rendering of a public service shall in no way whatever affect the power and authority granted to, and the duties and obligations imposed upon, such person under the provisions of chapter twenty-four of this code or by the Public Service Commission.

PART II. COMPELLING COMPLIANCE WITH FRANCHISE.

§8-31-2. Compelling compliance with franchise obligations; damages; forfeiture.

When any person has obtained or shall hereafter obtain any franchise, and the terms, conditions or manner of exercising such franchise are embodied in the ordinance of the municipality or the order of the county court granting such franchise, or are otherwise either voluntarily assumed, or by law imposed upon such person, then and in each of such cases the circuit court of the county (except so far as the powers herein conferred upon the circuit court are, by chapter twenty-four of this code, conferred upon the Public Service Commission) in which the municipality or the major portion of the territory thereof is located or for which the county court acted shall have power by mandamus to compel such person, and the successors and assigns of such person, to use and exercise such franchise in accordance with the lawful terms and conditions and in the manner so prescribed in such ordinance or order or otherwise lawfully so defined or assumed, and to do and perform each and every lawful obligation or duty attached to such franchise, whether such obligation or duty be voluntarily assumed or imposed by law.

Such mandamus may be awarded at the instance of such municipality or county, and this section shall not be construed to deprive such municipality or county, or any inhabitant thereof, of any other remedy to compel such person to comply with the terms, conditions and agreements of such franchise, or of the right to recover damages for noncompliance therewith or to affect, remove or lessen the liability of such person to forfeiture of such franchise for failure so to use and exercise such franchise.

PART I. MUSEUMS; CULTURAL CENTERS, ETC.

§8-32-1. Legislative findings; authority of municipalities and counties to make appropriations, conveyances or leases; limitations and restrictions.

(a) The Legislature hereby finds that the support of nonstock, nonprofit corporations dedicated to making available to the general public (1) museums, historic landmarks, facilities or cultural centers for the appreciation, advancement or enjoyment of art, crafts, music, dance, drama, nature, science or other educational and cultural activities or (2) parks, playgrounds, athletic fields, stadiums, swimming pools, skating rinks, arenas or other public park and recreational facilities for the promotion, advancement or enjoyment of education, recreation and health is for the general welfare of the public and is a public purpose. This section is enacted in view of this finding and shall be liberally construed in the light thereof.

(b) When a nonstock, nonprofit corporation, chartered under the laws of this state, or licensed to do business in this state, (1) is organized for the construction, maintenance or operation of (i) museums, historic landmarks, facilities or cultural centers for the appreciation, advancement or enjoyment of art, crafts, music, dance, drama, nature, science or other educational and cultural activities or (ii) parks, playgrounds, athletic fields, stadiums, swimming pools, skating rinks, arenas or other public park and recreational facilities for the promotion, advancement or enjoyment of education, recreation and health and provides in its charter that its buildings or facilities, or a designated portion thereof, shall be devoted to the use by the public for all purposes set forth in such charter without regard to race, sex, religion, national origin or economic circumstance, and free from charge except such as is necessary to provide the means to keep the buildings, facilities and grounds in proper condition and repair, and to pay the cost of insurance, care, management, operations, teaching and attendants, so that the general public may have the benefit of such establishment for the uses set forth in such corporation's charter at as little expense as possible, (2) provides in its charter that no member trustee, or member of the board of directors (by whatever name the same may be called), of the corporation shall receive any compensation, gain or profit from such corporation, and (3) is operated in compliance with such charter provisions as aforesaid, then, notwithstanding any statutory or municipal charter provisions to the contrary, any municipality in which such nonstock, nonprofit corporation is operating or which is or will be served by such nonstock, nonprofit corporation, if any, and the county commission of any county in which such nonstock, nonprofit corporation is operating or which is or will be served by such nonstock, nonprofit corporation, may appropriate funds, subject to the provisions and limitations set forth in subsections (c) and (d) of this section, to such nonstock, nonprofit corporation, for such public purposes or convey or lease real or personal property, with or without consideration, to such nonstock, nonprofit corporation, for such public purposes, except that no such conveyance or lease may be made by a municipality or a county commission to such nonstock, nonprofit corporation for any of the public purposes set forth in (2) of subsection (a) of this section if such county has a county parks and recreation commission or board operating in or for such county, or participates in a consolidated recreation commission or board with a municipality as the case may be: Provided, That if at any time such property ceases to be used for such public purposes, it shall by operation of law revert to and vest in the municipality or county commission which conveyed or leased the same and such nonstock, nonprofit corporation shall thereafter have no right, title or interest therein or thereto.

In every such case, the governing body of any such municipality or any such county commission and such corporation may agree for the appointment of additional members to the board of directors of such corporation by such governing body or county commission, either as regular members or in an ex officio capacity.

(c) No funds appropriated by a municipality or county commission under the authority of this section shall be disbursed by any such nonstock, nonprofit corporation unless and until the expenditure thereof has been approved by the governing body of such municipality or any such county commission, as the case may be, which made such appropriation, and such corporation shall upon demand at any time make a full and complete accounting of all such funds to such governing body or county commission, as the case may be, and shall in every event without demand make to such governing body or county commission an annual accounting thereof.

(d) Under no circumstances whatever shall any action taken by any municipality or county commission under the authority of this section give rise to or create any indebtedness on the part of the municipality, the governing body of such municipality, the county, such county commission, any member of such governing body or the county commission or any municipal or county official or employee.

§8-32-2. Membership and participation in area development corporations.

Every municipality and county commission is hereby empowered and authorized to become associated with and to participate as a member of any area development corporation chartered as a nonstock, nonprofit corporation under the laws of this state for the purposes of promoting, developing and advancing the business prosperity and economic welfare of the area embraced, its citizens and its industrial complex; encouraging and assisting through loans, investments or other business transactions in locating new business and industry within such area and rehabilitating and assisting existing businesses and industries therein; stimulating and promoting the expansion of all kinds of business and industrial activity which will tend to advance, develop and maintain economic stability and provide maximum opportunities for employment in such area; cooperating and acting in conjunction with other organizations, federal, state or local, in the promotion and advancement of industrial, commercial, agricultural and recreational developments within such area; and furnishing money and credit, land and industrial sites, technical assistance and such other aid as may be deemed requisite for the promotion, development and conduct of all types of business, agricultural and recreational activities within each area: Provided, That it is specified in the charter of such corporation that no member trustee or member of the board of directors (by whatever name the same may be called) of the corporation shall receive any compensation, gain or profit from such corporation, and such corporation is operated in compliance with all charter provisions. The Legislature hereby finds that the aforesaid purposes of such nonstock, nonprofit area development corporations are for the general welfare of the public and are public purposes. This section is enacted in view of this finding and shall be liberally construed in the light thereof.

Every municipality and county commission is hereby empowered and authorized to contribute to the cost of the operations and projects of such area development corporation by appropriating for such purposes money from its general funds not otherwise appropriated. Every municipality and county commission is hereby empowered and authorized, notwithstanding any other provision of this chapter to the contrary, to transfer and convey to such area development corporation property of any kind heretofore acquired by such municipality or county commission for or adaptable to use in industrial and economic development, such transfers or conveyances to be without consideration or for such price and upon such terms and conditions as such municipality or county commission shall deem proper.

Every municipality or county commission shall require as a condition of any such appropriation, transfer or conveyance that the area development corporation receiving the same shall upon demand at any time by such municipality or county commission make a full and complete accounting thereto of all receipts and disbursements and shall in every event without demand, within thirty days after the close of the quarter, make to such municipality or county commission a report containing an itemized statement of its receipts and disbursements during the preceding quarter, and make available to audit and examination by the office of the State Tax Commissioner and any other proper public official or body its books, records and accounts.

Under no circumstances whatever shall any action taken by any municipality or county commission under the authority of this section give rise to or create any indebtedness on the part of the municipality or county commission, the governing body of such municipality or county commission, any member of such governing body or any municipal or county commission official or employee: Provided, That any public entity holding title to real property, and considering transfer of such real property to any municipality or county commission for the purpose of conveying real property to any such area development corporation will publish notice by a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area will be the municipality or county involved. This notice will include the property to be transferred, the area development corporation receiving such property, and the date, time, and place when such public entity will conduct an open hearing to consider public comment regarding the intended transfer. Such notice shall be published initially at least sixty days prior to the published date of the public hearing.

PART III. OBTAINING FEDERAL GRANTS.

§8-32-3. Power to secure federal grants for certain nonprofit organizations.

(a) Notwithstanding any statutory or charter provisions to the contrary, every municipality is, subject to the provisions and limitations set forth in subsections (b) and (c) of this section, hereby empowered and authorized to make application for, receive and accept grants from the federal government, or any agency thereof, for, on behalf of and for use by a nonstock, nonprofit corporation chartered under the laws of this state, or licensed to do business in this state, for charitable, patriotic or philanthropic or other public purposes and operating within the corporate limits of said municipality. The Legislature hereby finds that the support of such nonstock, nonprofit corporations is for the general welfare of the public and is a public purpose. This section is enacted in view of this finding and shall be liberally construed in the light thereof.

(b) No federal funds received by a municipality under the authority of this section shall be disbursed by any such nonstock, nonprofit corporation unless and until the expenditure thereof has been approved by the governing body of such municipality, and such corporation shall upon demand at any time make a full and complete accounting of all such funds to such governing body.

(c) Under no circumstances whatever shall any action taken by any municipality under the authority of this section give rise to or create any indebtedness on the part of such municipality, the governing body of such municipality, any member thereof or any municipal official or employee.

PART IV. HEALTH INSTITUTIONS.

§8-32-4. Legislative findings; authority of municipalities and county commissions to make appropriations; limitations and restrictions.

(a) The Legislature hereby finds that the support of public or nonprofit health institutions dedicated to making available to the general public health and mental health services is for the general welfare of the public and is a public purpose for which funds of a municipality or county commission may be lawfully expended. This section is enacted in view of this finding and shall be liberally construed in the light thereof. As used in this section, the term "health institution" means a hospital, health or mental health clinic, regional or community health or mental health center, mental retardation facility, extended care facility, nursing home, or other health or mental health institution, which is open to the general public.

(b) Notwithstanding any statutory or charter provision to the contrary, municipalities and county commissions are hereby empowered and authorized to appropriate funds, subject to the conditions and limitations set forth in this section, for the establishment, cost, operation, maintenance and projects of any health institution, whether such health institution be situate within or without the confines of any such municipality or county. Funds may not be appropriated by a municipality or county commission for the benefit and use of any health institution unless such health institution is either owned and operated by a unit of government, or is owned and operated by a nonstock, nonprofit corporation chartered under the laws of or licensed to do business in this state which provides in its charter that no member trustee or member of the board of directors (by whatever name the same may be called) shall receive any compensation, gain or profit from such corporation and which is operated in compliance with such charter provisions. Any such appropriation shall be made from the General Funds of such municipality or county commission not otherwise appropriated or from federal revenue sharing funds received by such municipality or county commission.

(c) The recipient of any funds appropriated under the provisions of this section shall upon demand at any time make a full and complete accounting of all such funds to the governing body of the municipality or county commission which made such appropriation and shall in every event without demand make to such governing body an annual accounting thereof.

(d) Under no circumstances whatever shall any action taken by any municipality or county commission under the authority of this section give rise to or create any indebtedness on the part of the municipality, the county, the governing body of such municipality, the county commission, any member of such governing body or county commission or any municipal or county official or employee.

(e) No provision within this article prohibits the ability of a county or municipal hospital to borrow money and to perform such actions and do those things which are reasonably necessary to effectuate the purposes of this section, including, but not limited to, obtaining credit to further the mission of such hospital and acceptance of a loan for working capital requirements, as that term is generally defined: Provided, That the hospital complies with the provisions of subsection (d) of this section so that any indebtedness created is at no time an obligation of any municipality, the county commission, any member of such governing body or county commission or any municipal or county official or employee.

PART V. CELEBRATION OF AMERICAN REVOLUTION BICENTENNIAL.

§8-32-5. Legislative findings; authority of municipalities and counties to make appropriations for the celebration of historical and commemorative events; limitations and restrictions.

(a) The Legislature hereby finds that the support of nonstock, nonprofit corporations dedicated to making available to the general public, programs, activities or events organized by a commission, committee, group, organization or community, for the purpose of providing historical or cultural activities, municipal, county or regional improvement events or other programs related to the celebration of historical and commemorative events, is for the general welfare of the public and is a public purpose for which funds of a municipality or county may be lawfully expended. This section is enacted in view of this finding and shall be liberally construed in the light thereof.

(b) When a commission, committee, group, organization or community (hereinafter referred to as corporation) is chartered as a nonstock, nonprofit corporation under the laws of this state, and, (1) is organized for the purpose of providing historical or cultural activities, municipal, county or regional improvement events or other programs related to the celebration of a historical or commemorative event, and provides in its charter that its programs, activities or events shall be devoted to the use by the public for all purposes set forth in such charter without regard to race, sex, religion, national origin or economic circumstance, and free from charge except such as is necessary to provide the means to keep any buildings, facilities or grounds in proper condition and repair, or to pay the cost of insurance, care, management, operations, programs, activities or events, so that the general public may have the benefit of such establishments, programs, activities or events for the uses set forth in such corporation's charter at as little expense as possible, (2) provides in its charter that no member, trustee or member of the board of directors (by whatever name the same may be called) of the corporation shall receive any compensation, gain or profit from such corporation, and (3) is operated in compliance with such charter provisions as aforesaid, any municipality in the county in which such corporation is operating, and the county commission of any county in which such corporation is operating, are hereby empowered and authorized to appropriate funds to any such corporation, subject to the provisions and limitations set forth in this section.

(c) Any appropriation shall be made from the General Funds of such municipality or county that have not been otherwise appropriated. Each corporation receiving an appropriation from a municipality or county shall upon demand at any time make a full and complete accounting of all such funds to such governing body of the municipality or to the county commission, as the case may be, and shall in every event without demand make to such governing body or county commission an accounting thereof. Each corporation shall return to the county or municipality all of the funds the county or municipality appropriated pursuant to this section or pursuant to the previous enactments of this section for the celebration of the American Revolution Bicentennial which are unexpended after the conclusion of the programs, activities or events relating to the historical or commemorative event. The county or municipality may at any time set a date after the conclusion of the programs, activities or events by which such return shall be made.

(d) Under no circumstances whatever shall any action taken by any municipality or county commission under the authority of this section give rise to or create any indebtedness on the part of the municipality, the governing body of such municipality, the county, such county commission, any member of such governing body or county commission or any municipal or county official or employee.

(e) No municipality or county commission may appropriate funds to any corporation under this article unless and until such corporation has recorded a certified copy of its corporate charter in the county in which the principal office of such corporation is located, and has received from the prosecuting attorney a written statement that the charter of such corporation contains the necessary language to comply with the provisions of this article.

(f) No officer, agent or instrumentality of the state shall require that local government funds be appropriated or expended under this section as a prerequisite for, or as matching funds for, a federal or state grant or as a prerequisite to entitle such corporation to receive a grant of federal or state funds.

PART I. COMMISSIONS AUTHORIZED; ORGANIZATION OF COMMISSIONS.

§8-33-1. Municipal, county and municipal-county building commissions authorized; reference to county courts and county commissions.

Any municipality or county, or one or more municipalities and any county, or any two or more municipalities within any county or counties, or any combination thereof, may create and establish a municipal building commission, a county building commission, or a municipal-county building commission, as the case may be (hereinafter in this article referred to as commission or commissions). Such commissions shall be formed by an ordinance or order, as appropriate, by each governmental body establishing the same. The governing body of a county is hereinafter in this article referred to either as a county court or county commission.

§8-33-2. Commissions are public corporations.

Each commission, when created, shall be a public corporation and shall have perpetual existence.

§8-33-3. Authority vested in board; composition of board; appointment; qualifications and terms of members; vacancies; reimbursement of expenses.

All property, powers and duties and the management and control of each commission shall be vested in a board consisting of representatives appointed by the governmental body or bodies creating and establishing such commission. In the case of a municipal building commission or a county building commission such board shall consist of not less than three nor more than five members and in the case of a municipal-county building commission each participating municipality shall appoint two members and each participating county shall appoint three members. All members of any board shall be appointed for terms of five years. Prior to making the initial appointments to the board, the governmental body or bodies shall make such initial appointments so that approximately one fifth of the total number of members of the board shall be appointed for a term of one year, approximately one fifth of the total number of members of the board shall be appointed for a term of two years, approximately one fifth of the total number of members of the board shall be appointed for a term of three years, approximately one fifth of the total number of members of the board shall be appointed for a term of four years, and approximately one fifth of the total number of members of the board shall be appointed for a term of five years. As the term of each such initial appointee expires the successor to fill the vacancy created by such expired term shall be appointed for a term of five years.

The ordinance or order creating a building commission may provide for the manner of appointments to the membership of such commission by the governmental body creating such commission, which, in the case of a county, shall be the county commission or other tribunal in lieu thereof and, in the case of a municipality, shall be the governing body thereof.

If any member of any board die, resign or for any reason cease to be a member of the board, the governmental body which such member represented shall appoint another individual to fill the unexpired portion of the term of such member. No more than two thirds of the total number of members of the board of each commission shall be from the same political party and no member of any such board shall hold any office (other than the office of notary public) or employment under the United States of America, the State of West Virginia, any county or political subdivision thereof, or any political party. All members of any board shall be residents of the municipality or county for which appointed. No member of any board shall receive any compensation for his services as such, but each member shall be reimbursed by the commission for any reasonable and necessary expenses actually incurred in the discharge of his duties as a member of the board.

§8-33-4. Powers.

Each commission shall have plenary power and authority to:

(a) Sue and be sued;

(b) Contract and be contracted with;

(c) Adopt, use and alter a common seal;

(d) Make and adopt all necessary, appropriate and lawful bylaws and rules and regulations pertaining to its affairs;

(e) Elect such officers, appoint such committees and agents and employ and fix the compensation of such employees and contractors as may be necessary for the conduct of the affairs and operations of the commission;

(f) (1) Acquire, purchase, own and hold any property, real or personal, and (2) acquire, construct, equip, maintain and operate public buildings, structures, projects and appurtenant facilities, of any type or types for which the governmental body or bodies creating such commission are permitted by law to expend public funds (all hereinafter in this article referred to as facilities);

(g) Apply for, receive and use grants-in-aid, donations and contributions from any source or sources, including, but not limited to, the United States of America, or any department or agency thereof, and accept and use bequests, devises, gifts and donations from any source whatsoever;

(h) Sell, encumber or dispose of any property, real or personal;

(i) Issue negotiable bonds, notes, debentures or other evidences of indebtedness and provide for the rights of the holders thereof, incur any proper indebtedness and issue any obligations and give any security therefor, including security interests in any real property owned or leased by the commission regardless of whether such real property is being improved with the proceeds of such indebtedness, which it may deem necessary or advisable in connection with exercising powers as provided herein;

(j) Raise funds by the issuance and sale of revenue bonds in the manner provided by the applicable provisions of §8-16-7, §8-16-10, §8-16-12 and §8-16-16 of this code, without regard to the extent provided in §8-33-5 of this code, to the limitations specified in §8-16-12 of this code, it being hereby expressly provided that for the purpose of the issuance and sale of revenue bonds, each commission is a “governing body” as that term is used in §8-16-1 et seq. of this code only;

(k) Subject to such reasonable limitations and conditions as the governmental body or all of the governmental bodies creating and establishing such building commission may prescribe by ordinance or by order, exercise the power of eminent domain in the manner provided in §54-1-1 et seq. of this code for business corporations, for the purposes set forth in subdivision (f) of this section, which purposes are hereby declared public purposes for which private property may be taken or damaged;

(l) Lease its property or any part thereof, for public purposes, to such persons and upon such terms as the commission deems proper, but when any municipality or county commission is a lessee under any such lease, such lease must contain a provision granting to such municipality or county commission the option to terminate such lease during any fiscal year covered thereby;

(m) Use the proceeds from the sale of pension funding revenue bonds issued pursuant to §8-33-4a of this code to pay the costs of a pension funding program as described in §8-33-4a(c) of this code;

(n) Use the proceeds of rentals for the use of real property owned or leased by the commission and any amounts received pursuant to §8-22-19(d)(2) of this code by the trustee for outstanding pension funding revenue bonds to, among other things, pay the principal, interest, any reserve requirement obligations and administrative expenses of any pension funding revenue bonds issued in connection with any lease by the commission to the municipality which created the commission; any amount received pursuant to §8-22-19(d)(2) of this code shall be used only to pay principal and interest of outstanding pension obligation bonds; and

(o) Do all things reasonable and necessary to carry out the foregoing powers.

PART III. INDEBTEDNESS; SURPLUSES; EXEMPTION FROM

TAXATION; FUNDS; PROPERTY.

§8-33-5. Indebtedness of commission.

No Constitutional or statutory limitation with respect to the nature or amount of or rate of interest on indebtedness which may be incurred by municipalities, counties or other public or governmental bodies shall apply to the indebtedness of a commission. No indebtedness of any nature of a commission shall constitute an indebtedness of any municipality or county creating and establishing such commission or a charge against any property of said municipalities or counties. No indebtedness or obligation incurred by any commission shall give any right against any member of the governing body of any municipality or any member of the county commission of any county or any member of the board of any commission. The rights of creditors of any commission shall be solely against the commission as a corporate body and shall be satisfied only out of property held by it in its corporate capacity.

§8-33-6. Disposition of surplus of commission.

If a commission should realize a surplus over and above the amount required for the improvement, maintenance and operation of its facilities and for meeting all required payments on its obligations, it shall set aside such reserve for future improvements, maintenance, operations and contingencies as it shall deem proper and shall then apply the residue of such surplus, if any, to the payment of any recognized and established obligations not then due, and after all such recognized and established obligations have been paid and discharged in full, the commission shall, at the end of each fiscal year, set aside the reserve for future improvements, maintenance, operations and contingencies, as aforesaid, and then pay the residue of such surplus, if any, to the governmental bodies creating and establishing such commission in direct proportion to their financial contribution.

§8-33-7. Property, bonds and obligations of commissions exempt from taxation.

Each commission shall be exempt from the payment of any taxes or fees to the state or any subdivisions thereof or any municipalities or to any officer or employee of the state or of any subdivision thereof or of any municipality. The property of each commission shall be exempt from all municipal and county taxes. Bonds, notes, debentures and other evidences of indebtedness of each commission are declared to be issued for a public purpose and to be public instrumentalities, and, together with interest thereon, shall be exempt from taxation.

§8-33-8. Contributions to commissions; funds and accounts of commissions; reports; audits.

Contributions may be made to each commission from time to time by the governmental body or bodies creating and establishing it, and persons that shall desire to do so. All funds received by each commission shall be deposited in such banking institution or banking institutions as the board may direct and shall be withdrawn therefrom in such manner as the board may direct. Each commission shall keep strict account of all of its receipts and expenditures and shall each quarter make a quarterly report thereon to the municipalities, counties and persons which have made contributions to it, and such report shall contain an itemized account of its receipts and disbursements during the preceding quarter. Such report shall be made within sixty days after the termination of the quarter. Within sixty days after the end of each fiscal year, each commission shall make an annual report containing an itemized statement of its receipts and disbursements for the preceding fiscal year and publish the same as a Class II-0 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 county in which the commission's facilities are located. The books, records and accounts of each commission shall be subject to audit and examination by the State Tax Commissioner and by other proper public official or body in the manner provided by law.

§8-33-9. Authority to convey or transfer property to commission.

Any municipality or county is hereby empowered and authorized to convey or transfer to a commission which it has created and established either alone or with another governmental body, property of any kind, heretofore acquired by said municipality or county, to carry out the purposes of said commission. When property is conveyed or transferred as aforesaid, the conveying or transferring municipality or county court and the board shall agree in writing at the time the conveyance or transfer is made as to the fair market value of such property. The members of the board appointed by any municipality or county court conveying or transferring property shall not participate in connection with, otherwise than to provide a quorum, or vote on, any motion or resolution by which the board agrees to the fair market value of the property so conveyed or transferred.

§8-33-10. Sale of property by commission.

In the event a majority of the governmental bodies contributing funds or property to a commission shall so direct in writing and if all indebtedness of said commission has been paid in full, the commission shall sell all or any part of its properties and assets so directed and distribute the proceeds thereof among the governmental bodies creating and establishing it in direct proportion to their contributions of funds or property to the commission.

PART IV. WORKERS' COMPENSATION; CONSTRUCTION.

§8-33-11. Workers' compensation.

Each commission shall subscribe to the workers' compensation fund of this state and pay all necessary premiums thereto, to the end that all eligible employees of such commission shall be covered by workers' compensation.

§8-33-12. Liberal construction.

The provisions of this article are hereby declared to be remedial and shall be liberally construed to effectuate the purposes hereof. The provisions of this article are in addition to and not in derogation of any power granted to or vested in municipalities and county courts under any Constitutional, statutory or charter provisions which may now or hereafter be in effect.

§8-34-1. General right of appeal; recordation of jury trial; preparation of record.

(a) Every person sentenced under this chapter by any mayor, acting in a judicial capacity, or municipal court judge to confinement or to the payment of a fine may appeal that sentence to the circuit court as provided in this section. When the municipality is located in more than one county, the appeal shall be taken to the circuit court of the county in which the major portion of the territory of the municipality is located.

(b) For purposes of appeal, when a jury trial is had before a mayor or in municipal court, that court shall be a court of limited record. Trials before a mayor or municipal court when a jury is empaneled shall be recorded electronically. A magnetic tape or other electronic recording medium on which a trial is recorded shall be indexed and securely preserved by the court. When requested by the municipal prosecutor or by the defendant, or by any interested person, that court shall provide a duplicate copy of the tape or other electronic recording medium of each trial held. For evidentiary purposes, a duplicate of such electronic recording prepared by the court shall be a "writing" or "recording" as those terms are defined in rule 1001 of the West Virginia rules of evidence, and unless the duplicate is shown not to reflect the contents accurately, it shall be treated as an original in the same manner that data stored in a computer or similar data is regarded as an "original" under such rule. Unless the requesting party is a defendant proceeding as an indigent, the party shall pay to the court an amount equal to the actual cost of the tape or other medium or the sum of $5, whichever is greater.

(c) If the defendant in such a proceeding waives the right to trial by jury or if no jury trial is required by law, the matter shall be tried by the mayor or municipal court judge sitting without a jury. For purposes of appeal, when a nonjury trial is had before a mayor or municipal court judge that court shall not be a court of limited record and the proceedings shall not be electronically recorded.

(d) Any person convicted of an offense by a mayor or municipal court judge may appeal such conviction to circuit court as a matter of right by requesting such appeal within twenty days after the sentencing for such conviction. The mayor or municipal court judge may require the posting of bond with good security conditioned upon the appearance of the defendant as required in circuit court, but such bond may not exceed the maximum amount of any fine which could be imposed for the offense. The bond may be upon the defendant's own recognizance. If no appeal is perfected within such twenty-day period, the circuit court may, not later than ninety days after the sentencing, grant an appeal upon a showing of good cause why such appeal was not filed within the twenty-day period. The filing or granting of an appeal shall automatically stay the sentence of the mayor or municipal court judge.

(e) In the case of an appeal of such a proceeding tried before a jury, the hearing on the appeal before the circuit court shall be a hearing on the record. In the case of an appeal of such a proceeding tried before the mayor or municipal court judge without a jury, the hearing on the appeal before the circuit court shall be a trial de novo, triable to the court, without a jury.

(f) In the case of an appeal of such a proceeding tried before a jury, the following provisions shall apply:

(1) To prepare the record for appeal, the defendant shall file with the circuit court a petition setting forth the grounds relied upon, and designating those portions of the testimony or other matters reflected in the recording, if any, which he or she will rely upon in prosecuting the appeal. The municipal prosecutor may designate additional portions of the recording. Unless otherwise ordered by the circuit court, the preparation of a transcript of the portions of the recording designated by the defendant, and the payment of the cost thereof shall be the responsibility of the defendant: Provided, That such costs may be waived due to the defendant's indigence. The circuit court may, by general order or by order entered in a specific case, dispense with preparation of a transcript and review the designated portions of the recording orally.

(2) The designated portions of the recording or the transcript thereof, as the case may be, and the exhibits, together with all papers and requests filed in the proceeding, constitute the exclusive record for appeal, and shall be made available to the defendant and the municipal prosecutor.

(3) After the record for appeal is filed in the office of the circuit clerk, the court may, in its discretion, schedule the matter for oral argument or require the parties to submit written memoranda of law. The circuit court shall consider whether the judgment or order of the mayor or municipal court judge is:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in conformance with the law;

(B) Contrary to Constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or short of statutory right;

(D) Without observance of procedure required by law;

(E) Unsupported by the evidence; or

(F) Unwarranted by the facts.

(4) The circuit court may take any of the following actions which may be necessary to dispose of the questions presented on appeal, with justice to the defendant and the municipality:

(A) Dismiss the appeal;

(B) Reverse, affirm or modify the judgment or order being appealed;

(C) Remand the case for further proceedings, with instructions to the mayor or municipal court judge;

(D) Finally dispose of the action by entering judgment on appeal; or

(E) Retain the matter and retry the issues of fact, or some part or portions thereof, as may be required by the provisions of subdivision (5) of this subsection.

(5) If the circuit court finds that a record for appeal is deficient as to matters which might be affected by evidence not considered or inadequately developed, the court may proceed to take such evidence and make independent findings of fact to the extent that questions of fact and law may merge in determining whether the evidence was such, as a matter of law, as to require a particular finding. If the circuit court finds that the proceedings below were subject to error to the extent that the defendant was effectively denied a jury trial, the circuit court may, upon motion of the defendant, empanel a jury to reexamine the issues of fact, or some part or portions thereof.

(6) The review by the court and a decision on the appeal shall be completed within ninety days after the appeal is regularly placed upon the docket of the circuit court.

(g) In the case of an appeal of a municipal court proceeding tried without a jury, the defendant shall file with the circuit court a petition for appeal and trial de novo. The exhibits, together with all papers and requests filed in the proceeding, constitute the exclusive record for appeal and shall be made available to the parties.

(h) Notwithstanding any other provision of this code to the contrary, there shall be no appeal from a plea of guilty where the defendant was represented by counsel at the time the plea was entered: Provided, That the defendant shall have an appeal from a plea of guilty where an extraordinary remedy would lie or where the mayor or municipal court judge lacked jurisdiction.

(i) The designation in this section of a mayor, acting as municipal court judge, or of municipal courts as "courts of limited record" shall not be construed to give standing or eligibility to mayors or municipal court judges to participate or be included in the retirement system for judges of courts of record established under the provisions of article nine, chapter fifty-one of this code.

PART I. FORFEITURE OF CHARTER OR CERTIFICATE OF INCORPORATION.

§8-35-1. Forfeiture of charter or certificate of incorporation; notice; dissolution of municipality.

Any municipality heretofore incorporated or which shall hereafter be incorporated and which has no substantial indebtedness, and which shall fail for one year to exercise its corporate powers and privileges, or which has not twenty qualified voters, or in which there were not twenty legal votes cast at its last election, or the population of which shall be reduced below one hundred persons and so remain for six consecutive months, shall in either event have its charter or certificate of incorporation and all rights, powers and privileges so conferred upon such municipality forfeited.

The county court of the county wherein any such municipality or the major portion of the territory thereof is located shall have jurisdiction to hear and determine all matters relating to the forfeiture of such charter or certificate of incorporation, upon the petition of one or more of its inhabitants, and to dissolve such municipal corporation. Ten days' notice of the filing of such petition with the clerk of the county court of such county, served upon the mayor and recorder or on the last mayor or recorder thereof, shall be sufficient notice upon which such county court shall so act, and upon the proper proof of the allegations of such petition, any such charter or certificate of incorporation shall be declared forfeited and the municipal corporation dissolved and all debts of such municipality shall be ordered paid and the forfeiture and dissolution shall not become effective until such debts have been paid. Upon such forfeiture and dissolution all interest of such municipality in corporate funds, if any, in excess of the amounts required to pay corporate debts shall be and the same is hereby transferred to and vested in the State of West Virginia to be controlled by the State Auditor. If the territory so incorporated, or a major part thereof, either in area or in population, shall, however, within one year next after such declaration of forfeiture and dissolution by the county court be reincorporated under this chapter, then the Auditor of the State of West Virginia shall convey unto such new municipality all of the rights of the State of West Virginia in and to the corporate property, moneys, claims, demands and taxes collected or uncollected, of the former municipal corporation so dissolved.

PART II. VOLUNTARY DISSOLUTION OF CLASS III CITY OR

CLASS IV TOWN OR VILLAGE.

§8-35-2. Voluntary dissolution of Class III city or Class IV town or village.

Upon petition of twenty-five or more percent of the legal voters of any Class III city or Class IV town or village, the governing body thereof shall submit to the qualified voters of such municipal corporation at the next regular municipal election, or at a special municipal election called for that purpose, the question of continuing or dissolving such municipal corporation. It shall be the responsibility of the governing body to verify the total number of eligible petitioners and to determine whether the required percentage of petitioners has been obtained. The ballots, or ballot labels where voting machines are used, shall have written or printed on them the words:

/ For Continuance of Municipal Corporation

/ For Dissolution of Municipal Corporation

If a majority of the legal votes cast be for dissolution, then such municipal corporation shall by operation of law be dissolved upon termination of the term of the governing body then in office: Provided, That all debts or other obligations outstanding against such municipal corporation shall be settled in full. If a majority of the legal votes cast be for continuance, then such municipal corporation shall continue in existence unless and until dissolved at some later date under the provisions of section one of this article or this section two: Provided, however, That another election under the provisions of this section two shall not be held within two years of the last such election. Any election under the provisions of this section two shall be held, conducted and superintended and the result thereof ascertained, certified, returned and canvassed in the same manner and by the same persons as an election for municipal officers of such municipal corporation.

§8-36-1. Constitutionality and severability.

(a) If any article, section, subsection, subdivision, provision, clause or phrase of this chapter or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other articles, sections, subsections, subdivisions, provisions, clauses or phrases or applications of the chapter, and to this end each and every article, section, subsection, subdivision, provision, clause and phrase of this chapter is declared to be severable. The Legislature hereby declares that it would have enacted the remaining articles, sections, subsections, subdivisions, provisions, clauses and phrases of this chapter even if it had known that any articles, sections, subsections, subdivisions, provisions, clauses and phrases thereof would be declared to be unconstitutional or invalid, and that it would have enacted this chapter even if it had known that the application thereof to any person or circumstance would be held to be unconstitutional or invalid.

(b) The provisions of subsection (a) of this section shall be fully applicable to all future amendments or additions to this chapter, with like effect as if the provisions of said subsection (a) were set forth in extenso in every such amendment or addition and were reenacted as a part thereof.

§8-37-1. Short title.

This act may be known and cited as the "Municipal Financial Stabilization Fund Act".

§8-37-2. Findings and declarations.

The Legislature finds and declares that:

(1) Municipalities should maintain a prudent level of financial resources to try to protect against reducing service levels or raising taxes and fees because of temporary revenue shortfalls, unpredicted one-time expenditures or emergency situations; and

(2) The creation, maintenance and use of a financial stabilization fund will provide municipalities with assistance to meet these challenges, as well as enable them to improve their financial management and practices.

§8-37-3. Budget stabilization fund; creation; appropriation; maximum.

(a) A municipality may create a financial stabilization fund by a majority vote of its governing body. The fund may receive appropriations, gifts, grants and any other funds made available.

(b) The governing body may appropriate a sum to the fund from any surplus in the General Fund at the end of each fiscal year or from any other money available.

(c) The amount of money in the fund may not exceed thirty percent of the municipality's most recent general fund budget, as originally adopted. When the fund exceeds the thirty percent, the governing body shall transfer the excess to any fund it considers appropriate.

§8-37-4. Fund investment; usage.

(a) The governing body may invest the money in the fund as it considers appropriate, with the earnings retained by the fund.

(b) The governing body may appropriate money in the financial stabilization fund upon a majority vote for the following purposes:

(1) To cover a general fund shortfall; or

(2) Any other purpose the municipality considers appropriate.

§8-38-1. Short title.

This article is known and may be cited as the “Municipal Economic Opportunity Development District Act”.

§8-38-2. Legislative findings and declaration of purpose.

The Legislature finds that many significant business opportunities initiated within municipalities of this state face financial and other economic obstacles.

The Legislature further finds that there are undeveloped, underdeveloped or seriously deteriorated development areas within certain municipalities of this state which are uniquely situated relative to large populations in other states or to other specific economic recreational or cultural activities or facilities which will attract large populations from this state and other states who would be likely to make substantial retail purchases of tangible personal property and services offered in modern and modernized structures and facilities constructed, supplemented, reconstructed or repaired in such undeveloped, underdeveloped or seriously deteriorated areas within certain municipalities of this state. The Legislature further finds that economic inducements provided by the state are necessary and appropriate to enable the construction, supplementation, reconstruction and repair of such modern and modernized structures and facilities in such undeveloped, underdeveloped or seriously deteriorated areas within certain municipalities of this state. This adversely affects the economic and general well-being of the citizens of those municipalities. Establishment of economic opportunity development districts within municipalities of the state, in accordance with the purpose and powers set forth in this article, will serve a public purpose and promote the health, safety, prosperity, security and general welfare of all citizens in the state. It will also promote the establishment and vitality of significant business opportunities within those municipalities while serving as an effective means for developing or restoring and promoting retail and other business activity within the economic opportunity development districts created herein. This will be of special benefit to the tax base of the municipalities within which any economic development district is created pursuant to this article and will specifically generate substantial incremental increases in excise taxes on sales within such economic opportunity development districts of tangible personal property and services and thereby and otherwise will stimulate economic growth and job creation.

§8-38-3. Definitions.

For purposes of this article, the term:

(1) "Affordable housing" means housing that could be purchased with a cash down payment of at least ten percent and the proceeds of a mortgage loan, the monthly principal and interest payments on which do not exceed thirty percent of the gross monthly income of a household earning one hundred percent of the current median family income, as computed by the United States Department of Housing and Urban Development, for the county in which the district is located. For the purposes of this definition, the monthly principal and interest payments referred to in the preceding sentence are computed using a standard amortization calculation incorporating the prevailing annual rate of interest on mortgage loans offered by financial institutions in the vicinity of the district, as determined by the Development Office at the time of its review of a municipality's application in accordance with section seven of this article, and a thirty year amortization period.

(2) "Development expenditures" means payments for governmental functions, programs, activities, facility construction, improvements and other goods and services which a district board is authorized to perform or provide under section five of this article;

(3) "District" means an economic opportunity development district created pursuant to this article;

(4) "District board" means a district board created pursuant to section ten of this article;

(5) "Eligible property" means any taxable or exempt real property located in a district established pursuant to this article;

(6) "Municipality" is a word of art and means any Class I, Class II and Class III city or any Class IV town or village as classified in section three, article one of this chapter;

(7) "Remediation" means measures undertaken to bring about the reconditioning or restoration of property located within the boundaries of an economic opportunity development district that has been affected by exploration, mining, industrial operations or solid waste disposal and which measures, when undertaken, will eliminate or ameliorate the existing state of the property and enable the property to be commercially developed.

§8-38-4. Authorization to create economic opportunity development districts.

A municipality may, in accordance with the procedures and subject to the limitations set forth in this article:

(1) Create one or more economic opportunity development districts within its limits;

(2) Provide for the administration and financing of development expenditures within the districts; and

(3) Provide for the administration and financing of a continuing program of development expenditures within the districts.

§8-38-5. Development expenditures.

Any municipality that has established an economic opportunity development district under this article may make, or authorize to be made by a district board and other public or private parties, development expenditures as will promote the economic vitality of the district and the general welfare of the municipality, including, but not limited to, expenditures for the following purposes:

(1) Beautification of the district by means including landscaping and construction and erection of fountains, shelters, benches, sculptures, signs, lighting, decorations and similar amenities;

(2) Provision of special or additional public services such as sanitation, security for persons and property and the construction and maintenance of public facilities, including, but not limited to, sidewalks, parking lots, parking garages and other public areas;

(3) Making payments for principal, interest, issuance costs, any of the costs described in section twenty of this article and appropriate reserves for bonds and other instruments and arrangements issued or entered into by the municipality for financing the expenditures of the district described in this section and to otherwise implement the purposes of this article;

(4) Providing financial support for public transportation and vehicle parking facilities open to the general public, whether physically situate within the district's boundaries or on adjacent land;

(5) Acquiring, building, demolishing, razing, constructing, repairing, reconstructing, refurbishing, renovating, rehabilitating, expanding, altering, otherwise developing, operating and maintaining real property generally, parking facilities, commercial structures and other capital improvements to real property, fixtures and tangible personal property, whether or not physically situate within the district's boundaries including, but not limited to, state road improvements pursuant to an intergovernmental agreement with the Commissioner of Highways: Provided, That the expenditure directly benefits the district;

(6) Developing plans for the architectural design of the district and portions thereof and developing plans and programs for the future development of the district;

(7) Developing, promoting and supporting community events and activities open to the general public that benefit the district;

(8) Providing the administrative costs for a district management program;

(9) Providing for the usual and customary maintenance and upkeep of all improvements and amenities in the district as are commercially reasonable and necessary to sustain its economic viability on a permanent basis;

(10) Providing any other services that the municipality or district board is authorized to perform and which the municipality does not also perform to the same extent on a countywide basis;

(11) Making grants to the owners or tenants of economic opportunity development district for the purposes described in this section;

(12) Making grants to the Division of Highways for road projects benefitting an economic opportunity development district;

(13) Acquiring an interest in any entity or entities that own any portion of the real property situate in the district and contributing capital to any entity or entities;

(14) Remediation of publicly or privately owned landfills, former coal or other mining sites, solid waste facilities or hazardous waste sites to facilitate commercial development which would not otherwise be economically feasible; and

(15) To do any and all things necessary, desirable or appropriate to carry out and accomplish the purposes of this article notwithstanding any provision of this code to the contrary.

§8-38-6. Notice; hearing.

(a) General. -- A municipality desiring to create an economic opportunity development district shall conduct a public hearing.

(b) Notice of hearing. -- Notice of the public hearing shall be published as a Class I-0 legal advertisement in compliance with article three, chapter fifty-nine of this code at least twenty days prior to the scheduled hearing. In addition to the time and place of the hearing, the notice must also state:

(1) The purpose of the hearing;

(2) The name of the proposed district;

(3) The general purpose of the proposed district;

(4) The geographic boundaries of the property proposed to be included in the district; and

(5) The proposed method of financing any costs involved, including the base and rate of special district excise tax that may be imposed upon sales of tangible personal property and taxable services from business locations situated within the proposed district.

(c) Opportunity to be heard. -- At the time and place set forth in the notice, the municipality shall afford the opportunity to be heard to any owner of real property situated in the proposed district and any residents of the municipality.

(d) Application to West Virginia Development Office. -- If the municipality, following the public hearing, determines it advisable and in the public interest to establish an economic opportunity development district, it shall apply to the West Virginia Development Office for approval of the economic opportunity development district project pursuant to the procedures provided in section seven of this article.

§8-38-7. Application to Development Office for approval of an economic opportunity development district project.

(a) General. -- The Development Office shall receive and act on applications filed with it by municipalities pursuant to section six of this article. Each application must include:

(1) A true copy of the notice described in section six of this article;

(2) The total cost of the project;

(3) A reasonable estimate of the number of months needed to complete the project;

(4) A general description of the capital improvements, additional or extended services and other proposed development expenditures to be made in the district as part of the project;

(5) A description of the proposed method of financing the development expenditures, together with a description of the reserves to be established for financing ongoing development expenditures necessary to permanently maintain the optimum economic viability of the district following its inception: Provided, That the amounts of the reserves may not exceed the amounts that would be required by prevailing commercial capital market considerations;

(6) A description of the sources and anticipated amounts of all financing, including, but not limited to, proceeds from the issuance of any bonds or other instruments, revenues from the special district excise tax and enhanced revenues from property taxes and fees;

(7) A description of the financial contribution of the municipality to the funding of development expenditures;

(8) Identification of any businesses that the municipality expects to relocate their business locations from the district to another place in the state in connection with the establishment of the district or from another place in this state to the district: Provided, That for purposes of this article, any entities shall be designated “relocated entities”;

(9) Identification of any businesses currently conducting business in the proposed economic opportunity development district that the municipality expects to continue doing business there after the district is created;

(10) A good faith estimate of the aggregate amount of consumers sales and service tax that was actually remitted to the Tax Commissioner by all business locations identified as provided in subdivisions (8) and (9) of this subsection with respect to their sales made and services rendered from their then current business locations that will be relocated from, or to, or remain in the district for the twelve full calendar months next preceding the date of the application: Provided, That for purposes of this article, the aggregate amount is designated as “the base tax revenue amount”;

(11) A good faith estimate of the gross annual district tax revenue amount;

(12) The proposed application of any surplus from all funding sources to further the objectives of this article; and

  (13) Any additional information the Development Office may require.

(b) Review of applications. -- The Development Office shall review all project proposals for conformance to statutory and regulatory requirements, the reasonableness of the project’s budget and timetable for completion and the following criteria:

(1) The quality of the proposed project and how it addresses economic problems in the area in which the project will be located;

(2) The merits of the project determined by a cost-benefit analysis that incorporates all costs and benefits, both public and private;

(3) Whether the project is supported by significant private sector investment and substantial credible evidence that, but for the existence of sales tax increment financing, the project would not be feasible;

(4) Whether the economic opportunity development district excise tax dollars will leverage or be the catalyst for the effective use of private, other local government, state or federal funding that is available;

(5) Whether there is substantial and credible evidence that the project is likely to be started and completed in a timely fashion;

(6) Whether the project will, directly or indirectly, improve the opportunities in the area where the project will be located for the successful establishment or expansion of other industrial or commercial businesses;

(7) Whether the project will, directly or indirectly, assist in the creation of additional long-term employment opportunities in the area and the quality of jobs created in all phases of the project, to include, but not be limited to, wages and benefits;

(8) Whether the project will fulfill a pressing need for the area, or part of the area, in which the economic opportunity district is located;

(9) Whether the municipality has a strategy for economic development in the municipality and whether the project is consistent with that strategy;

(10) Whether the project helps to diversify the local economy;

(11) Whether the project is consistent with the goals of this article;

(12) Whether the project is economically and fiscally sound using recognized business standards of finance and accounting; and

(13)(A) The ability of the municipality and the project developer or project team to carry out the project: Provided, That no project may be approved by the Development Office unless the amount of all development expenditures proposed to be made in the first twenty-four months following the creation of the district results in capital investment of more than $75 million in the district and the municipality submits clear and convincing information, to the satisfaction of the Development Office, that the investment will be made if the Development Office approves the project and the Legislature authorizes the municipality to levy an excise tax on sales of goods and services made within the economic opportunity development district as provided in this article: Provided, however, That such minimum capital investment does not apply to projects proposed by the Commissioner of Highways in accordance with section twenty-three, article twenty-two, chapter seven of this code.

(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, no project involving remediation may be approved by the Development Office unless the amount of all development expenditures proposed to be made in the first forty-eight months following the creation of the district results in capital investment of more than $75 million in the district. In addition to the remaining provisions of paragraph (A) of this subdivision the Development Office may not approve a project involving remediation authorized under section five of this article unless the municipality submits clear and convincing information, to the satisfaction of the Development Office, that the proposed remediation expenditures to be financed by the issuance of bonds or notes pursuant to section sixteen of this article do not constitute more than twenty-five percent of the total development expenditures associated with the project.

(c) Additional criteria. -- The Development Office may establish other criteria for consideration when approving the applications.

(d) Action on the application. -- The Executive Director of the Development Office shall act to approve or not approve any application within thirty days following the receipt of the application or the receipt of any additional information requested by the Development Office, whichever is the later.

(e) Certification of project. -- If the Executive Director of the Development Office approves a municipality’s economic opportunity district project application, he or she shall issue to the municipality a written certificate evidencing the approval.

The certificate shall expressly state a base tax revenue amount, the gross annual district tax revenue amount and the estimated net annual district tax revenue amount which, for purposes of this article, is the difference between the gross annual district tax revenue amount and the base tax revenue amount, all of which the Development Office has determined with respect to the district’s application based on any investigation it considers reasonable and necessary, including, but not limited to, any relevant information the Development Office requests from the Tax Commissioner and the Tax Commissioner provides to the Development Office: Provided, That in determining the net annual district tax revenue amount, the Development Office may not use a base tax revenue amount less than that amount certified by the Tax Commissioner but, in lieu of confirmation from the Tax Commissioner of the gross annual district tax revenue amount, the Development Office may use the estimate of the gross annual district tax revenue amount provided by the municipality pursuant to subsection (a) of this section.

(f) Certification of enlargement or reduction of geographic boundaries of previously certified district. -- If the Executive Director of the Development Office approves a municipality’s economic opportunity district project application to expand or reduce the geographic boundaries of a previously certified district, he or she shall issue to the municipality a written certificate evidencing the approval.

The certificate shall expressly state a base tax revenue amount, the gross annual district tax revenue amount and the estimated net annual district tax revenue amount which, for purposes of this article, is the difference between the gross annual district tax revenue amount and the base tax revenue amount, all of which the Development Office has determined with respect to the district’s application based on any investigation it considers reasonable and necessary, including, but not limited to, any relevant information the Development Office requests from the Tax Commissioner and the Tax Commissioner provides to the Development Office: Provided, That in determining the net annual district tax revenue amount, the Development Office may not use a base tax revenue amount less than that amount certified by the Tax Commissioner, but, in lieu of confirmation from the Tax Commissioner of the gross annual district tax revenue amount, the Development Office may use the estimate of the gross annual district tax revenue amount provided by the municipality pursuant to subsection (a) of this section.

(g) Promulgation of rules. -- The Executive Director of the Development Office may promulgate rules to implement the economic opportunity development district project application approval process and to describe the criteria and procedures it has established in connection therewith. These rules are not subject to the provisions of chapter twenty-nine-a of this code but shall be filed with the Secretary of State.

§8-38-8. Establishment of the Economic Opportunity Development District Fund.

(a) General. -- There is hereby created a special revenue account in the State Treasury designated the "Economic Opportunity Development District Fund" which is an interest-bearing account and shall be invested in the manner described in section nine-c, article six, chapter twelve of this code with the interest income a proper credit to the Fund.

(b) District subaccount. -- A separate and segregated subaccount within the account shall be established for each economic opportunity development district and each joint economic opportunity development district that is approved by the Executive Director of the Development Office. In addition to the economic opportunity district excise tax levied and collected as provided in this article, funds paid into the account for the credit of any subaccount may also be derived from the following sources:

(1) All interest or return on the investment accruing to the subaccount;

(2) Any gifts, grants, bequests, transfers, appropriations or donations which are received from any governmental entity or unit or any person, firm, foundation or corporation; and

(3) Any appropriations by the Legislature which are made for this purpose

§8-38-9. Authorization to levy special district excise tax.

(a) General. — Municipalities have no inherent authority to levy taxes and have only that authority expressly granted to them by the Legislature. The Legislature is specifically extended, and intends by this article to exercise certain relevant powers expressed in section six-a, article X of the Constitution of this state as follows: (1) The Legislature may appropriate state funds for use in matching or maximizing grants-in-aid for public purposes from the United States or any department, bureau, commission or agency thereof, or any other source, to any county, municipality or other political subdivision of the state, under such circumstances and subject to such terms, conditions and restrictions as the Legislature may prescribe by law; and (2) the Legislature may impose a state tax or taxes or dedicate a state tax or taxes or any portion thereof for the benefit of and use by counties, municipalities or other political subdivisions of the state for public purposes, the proceeds of any such imposed or dedicated tax or taxes or portion thereof to be distributed to such counties, municipalities or other political subdivisions of the state under such circumstances and subject to such terms, conditions and restrictions as the Legislature may prescribe.

Because a special district excise tax would have the effect of diverting, for a specified period of years, tax dollars which to the extent, if any, are not essentially incremental to tax dollars currently paid into the General Revenue Fund of the state, the Legislature finds that in order to substantially ensure that such special district excise taxes will not adversely impact the current level of the General Revenue Fund of the state, it is necessary for the Legislature to separately consider and act upon each and every economic development district which is proposed, including the unique characteristics of location, current condition and activity of and within the area included in such proposed economic opportunity development district and that for such reasons a statute more general in ultimate application is not feasible for accomplishment of the intention and purpose of the Legislature in enacting this article. Therefore, no economic opportunity development district excise tax may be levied by a municipality until after the Legislature expressly authorizes the municipality to levy a special district excise tax on sales of tangible personal property and services made within district boundaries approved by the Legislature.

(b) Authorizations. — The Legislature authorizes the following municipalities to levy special district excise taxes on sales of tangible personal property and services made from business locations in the following economic opportunity development districts.

The City of South Charleston may levy a special district excise tax for the benefit of the South Charleston Park Place Economic Opportunity Development District which comprises up to two thousand one hundred contiguous acres of land.

§8-38-10. Ordinance to create district as approved by Development Office and authorized by the Legislature.

(a) General. -- If an economic opportunity development district project has been approved by the Executive Director of the Development Office and the levying of a special district excise tax for the district has been authorized by the Legislature, all in accordance with this article, the municipality may create the district by ordinance entered of record as provided in article one of this chapter: Provided, That the municipality may not amend, alter or change in any manner the boundaries of the economic opportunity development district authorized by the Legislature. In addition to all other requirements, the ordinance shall contain the following:

(1) The name of the district and a description of its boundaries;

(2) A summary of any proposed services to be provided and capital improvements to be made within the district and a reasonable estimate of any attendant costs;

(3) The base and rate of any special district excise tax that may be imposed upon sales by businesses for the privilege of operating within the district, which tax shall be passed on to and paid by the consumer, and the manner in which the taxes will be imposed, administered and collected, all of which shall be in conformity with the requirements of this article; and

(4) The district board members' terms, their method of appointment and a general description of the district board's powers and duties, which powers may include the authority:

(A) To make and adopt all necessary bylaws and rules for its organization and operations not inconsistent with any applicable laws;

(B) To elect its own officers, to appoint committees and to employ and fix compensation for personnel necessary for its operations;

(C) To enter into contracts with any person, agency, government entity, agency or instrumentality, firm, partnership, limited partnership, limited liability company or corporation, including both public and private corporations, and for-profit and not-for-profit organizations and generally to do any and all things necessary or convenient for the purpose of promoting, developing and advancing the purposes described in section two of this article;

(D) To amend or supplement any contracts or leases or to enter into new, additional or further contracts or leases upon the terms and conditions for consideration and for any term of duration, with or without option of renewal, as agreed upon by the district board and any person, agency, government entity, agency or instrumentality, firm, partnership, limited partnership, limited liability company or corporation;

(E) To, unless otherwise provided in, and subject to the provisions of any contracts or leases to operate, repair, manage, and maintain buildings and structures and provide adequate insurance of all types and in connection with the primary use thereof and incidental thereto to provide services, such as retail stores and restaurants, and to effectuate incidental purposes, grant leases, permits, concessions or other authorizations to any person or persons upon the terms and conditions for consideration and for the term of duration as agreed upon by the district board and any person, agency, governmental department, firm or corporation;

(F) To delegate any authority given to it by law to any of its officers, committees, agents or employees;

(G) To apply for, receive and use grants-in-aid, donations and contributions from any source or sources and to accept and use bequests, devises, gifts and donations from any person, firm or corporation;

(H) To acquire real property by gift, purchase or construction or in any other lawful manner and hold title thereto in its own name and to sell, lease or otherwise dispose of all or part of any real property which it may own, either by contract or at public auction, upon the approval by the district board;

(I) To purchase or otherwise acquire, own, hold, sell, lease and dispose of all or part of any personal property which it may own, either by contract or at public auction;

(J) Pursuant to a determination by the district board that there exists a continuing need for development expenditures and that moneys or funds of the district are necessary therefor, to borrow money and execute and deliver the district's negotiable notes and other evidences of indebtedness therefor, on the terms as the district shall determine, and give security therefor as is requisite, including, without limitation, a pledge of the district's rights in its subaccount of the Economic Opportunity Development District Fund;

(K) To acquire (either directly or on behalf of the municipality) an interest in any entity or entities that own any real property situate in the district, to contribute capital to any entity or entities and to exercise the rights of an owner with respect thereto; and

(L) To expend its funds in the execution of the powers and authority given in this section, which expenditures, by the means authorized in this section, are hereby determined and declared as a matter of legislative finding to be for a public purpose and use, in the public interest and for the general welfare of the people of West Virginia, to alleviate and prevent economic deterioration and to relieve the existing critical condition of unemployment existing within the state.

(b) Additional contents of ordinance. -- The municipality's ordinance shall also state the general intention of the municipality to develop and increase services and to make capital improvements within the district.

(c) Mailing of certified copies of ordinance. -- Upon enactment of an ordinance establishing an economic opportunity development district excise tax, a certified copy of the ordinance shall be mailed to the State Auditor, as ex officio the chief inspector and supervisor of public offices, the State Treasurer and the Tax Commissioner.

§8-38-11. District board; duties.

(a) General. -- The council of a municipality that has been authorized by the Development Office to establish an economic opportunity development district, in accordance with this article, shall provide, by ordinance, for the appointment of a district board to oversee the operations of the district: Provided, That the municipality may, in the ordinance, in lieu of appointing a separate district board, designate itself to act as the district board.

(b) Composition of board. -- If a separate district board is to be appointed, it shall be made up of at least seven members, two of which shall be owners, or representatives of owners, of real property situated in the economic opportunity development district and the other five shall be residents of the municipality within which the district is located.

(c) Annual report. -- The district board, in addition to the duties prescribed by the ordinance creating the district, shall submit an annual report to the municipality and the Development Office containing:

(1) An itemized statement of its receipts and disbursements for the preceding fiscal year;

(2) A description of its activities for the preceding fiscal year;

(3) A recommended program of services to be performed and capital improvements to be made within the district for the coming fiscal year; and

(4) A proposed budget to accomplish its objectives.

(d) Conflict of interest exception. -- Nothing in this article prohibits any member of the district board from also serving on the board of directors of a nonprofit corporation with which the municipality may contract to provide specified services within the district.

(e) Compensation of board members. -- Each member of the district board may receive reasonable compensation for services on the board in the amount determined by the municipality: Provided, That when a district board is not created for the district but the work of the board is done by the municipality, the members shall receive no additional compensation.

§8-38-12. Special district excise tax authorized.

(a) General. -- The council of a municipality, authorized by the Legislature to levy a special district excise tax for the benefit of an economic opportunity development district, may, by ordinance, impose that tax on the privilege of selling tangible personal property and rendering select services in the district in accordance with this section.

(b) Tax base. -- The base of a special district excise tax imposed pursuant to this section shall be identical to the base of the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of the district. Sales of gasoline and special fuel are not subject to special district excise tax, but remain subject to the tax levied by article fifteen, chapter eleven of this code. Except for the exemption provided in section nine-f of article fifteen, chapter eleven of this code, all exemptions and exceptions from the consumers sales and service tax also apply to the special district excise tax.

(c) Tax rate. -- The rate or rates of a special district excise tax levied pursuant to this section shall be stated in an ordinance enacted by the municipality and identical to the rate or rates of the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on sales rendered within the boundaries of the district authorized by this section.

(d) Collection by Tax Commissioner. -- The ordinance of the municipality imposing a special district excise tax shall provide for the tax to be collected by the Tax Commissioner in the same manner as the tax levied by section three, article fifteen, chapter eleven of this code is administered, assessed, collected and enforced.

(1) The State Tax Commissioner may require the electronic filing of returns related to the special district excise tax imposed pursuant to this section and may require the electronic payment of the special district excise tax imposed pursuant to this section. The State Tax Commissioner may prescribe by rules adopted or proposed pursuant to article three, chapter twenty-nine-a of this code, administrative notices, and forms and instructions, the procedures and criteria to be followed to electronically file those returns and to electronically pay the special district excise tax imposed pursuant to this section.

(2) Any rules filed by the State Tax Commissioner relating to the special district excise tax imposed pursuant to this section shall set forth the following:

(A) Acceptable indicia of timely payment;

(B) Which type of electronic filing method or methods a particular type of taxpayer may or may not use;

(C) What type of electronic payment method or methods a particular type of taxpayer may or may not use;

(D) What, if any, exceptions are allowable and alternative methods of payment that may be used for any exceptions;

(E) Procedures for making voluntary or mandatory electronic payments or both;

(F)  Procedures for ensuring that taxpayers new to an economic opportunity development district are included within the Tax Commissioner’s database;

(G)  Procedures for ensuring that taxpayers with multiple locations properly allocate their special district excise taxes to the appropriate economic opportunity development district and reflect the allocation of their returns; and

 (H) Any other provisions necessary to ensure the timely electronic filing of returns related to the special district excise tax and the making of payments electronically of the special district excise tax imposed pursuant to this section.

(3)(A) Notwithstanding the provisions of section five-d, article ten, chapter eleven of this code: (i) So long as bonds are outstanding pursuant to this article, the Tax Commissioner shall provide on a monthly basis to the trustee for bonds issued pursuant to this article information on returns submitted pursuant to this article; and (ii) the trustee may share the information so obtained with the municipality that established the economic opportunity development district that issued the bonds pursuant to this article and with the bondholders and with bond counsel for bonds issued pursuant to this article. The Tax Commissioner and the trustee may enter into a written agreement in order to accomplish exchange of the information.

(B) Any confidential information provided pursuant to this subdivision shall be used solely for the protection and enforcement of the rights and remedies of the bondholders of bonds issued pursuant to this article. Any person or entity that is in possession of information disclosed by the Tax Commissioner or shared by the trustee pursuant to subdivision (a) of this subsection is subject to the provisions of section five-d, article ten, chapter eleven of this code as if the person or entity that is in possession of the tax information is an officer, employee, agent or representative of this state or of a local or municipal governmental entity or other governmental subdivision.

(C) Notwithstanding any provision of this code to the contrary, so long as bonds are outstanding pursuant to this article, the Tax Commissioner shall allow a designated representative of the municipality that established the economic opportunity development district for which the bonds were issued to audit the returns filed by the taxpayers in the economic opportunity development district no less often than once each quarter of the fiscal year. The Tax Commissioner may require the audit to be conducted at the Tax Commissioner’s office, may prohibit copying of any returns, and may require the representatives to enter into a written confidentiality agreement.  The Tax Commissioner shall promptly investigate any questions raised by an audit, shall promptly take all actions required to correct any errors, and shall report to the applicable municipality the results of its investigation and actions.

(e) Deposit of net tax collected. --

(1) The ordinance of the municipality imposing a special district excise tax shall provide that the Tax Commissioner deposit the net amount of tax collected in the special Economic Opportunity Development District Fund to the credit of the municipality's subaccount therein for the economic opportunity development district and that the money in the subaccount may only be used to pay for development expenditures as provided in this article except as provided in subsection (f) of this section.

(2)(A) The State Treasurer shall withhold from the municipality's subaccount in the Economic Opportunity Development District Fund and shall deposit in the General Revenue Fund of this state, on or before the twentieth day of each calendar month next following the effective date of a special district excise tax, a sum equal to one twelfth of the base tax revenue amount last certified by the Development Office pursuant to section seven of this article.

(B) In addition to the amounts described in paragraph (A) of this subdivision, the Tax Commissioner shall deposit in the General Revenue Fund of this state on the dates specified in paragraph (A) not less than twenty percent nor more than fifty percent of the excess of the special district excise taxes collected during the preceding month above one twelfth of the base tax revenue, said percentage to be fixed by the Development Office in conjunction with its approval of an application in accordance with section seven of this article based on the amount of state funds, if any, to be expended in conjunction with the respective economic opportunity development district project for items including, but not limited to, the acquisition, construction, reconstruction, improvement, enlargement or extension of roadways, rights-of-way, sidewalks, traffic signals, water or sewer lines and other public infrastructure and such other expenditures of state funds identified by the Development Office: Provided, That the Development Office has the discretion to reduce the minimum percentage of the excess special district excise taxes deposited by the Tax Commissioner in the General Revenue Fund as outlined above from twenty percent to ten percent in conjunction with its approval of an application in accordance with section seven of this article based on its determination that:

(i) The economic development project provides for expenditures in excess of $100 million;

(ii) The economic opportunity development district project does not require the state to expend any additional state funds for items within the district including, but not limited to, the acquisition, construction, reconstruction, improvement, enlargement or extension of roadways, rights-of-way, sidewalks, traffic signals, water or sewer lines and other public infrastructure; and

(iii) The economic development project contains a provision for a mixed use development with a housing component with at least ten percent of housing units in the district allocated as affordable housing.

(f) Effective date of special district excise tax. -- Any taxes imposed pursuant to the authority of this section are effective on the first day of the calendar month that begins at least sixty days after the date of enactment of the ordinance imposing the tax or at any later date expressly designated in the ordinance that begins on the first day of a calendar month.

(g) Copies of ordinance. -- Upon enactment of an ordinance levying a special district excise tax, a certified copy of the ordinance shall be mailed to the State Auditor, as ex officio the chief inspector and supervisor of public offices, the State Treasurer and the Tax Commissioner.

§8-38-13. Requisition of district subaccount funds.

Sixty days after collection of a special district excise tax begins, the State Auditor shall, upon receipt of a monthly requisition from the district board, issue his or her warrant on the state Treasurer for the funds requested from the district's subaccount, which funds are applied for the purposes described in section five of this article and the state Treasurer shall pay the warrant out of funds in the subaccount.

§8-38-14. Modification of included area; notice; hearing.

(a) General. -- The ordinance creating an economic opportunity development district may not be amended to include additional contiguous property until after the amendment is approved by the Executive Director of the Development Office in the same manner as an application to approve the establishment of the district is acted upon under section seven of this article. The order creating an economic opportunity development district may not be amended to remove property until after the amendment is approved by the executive director of the Development Office in the same manner as an application to approve the establishment of the district is acted upon under section seven of this article: Provided, That any such amendment for the purpose of removing property from an economic opportunity development district shall not require authorization from the Legislature and shall ensure that any such district after such an amendment remains contiguous. The order which is entered for the purpose of removing parcels from an existing economic opportunity development district may not be effective any earlier than the first day of the calendar month which begins at least thirty days following the entry of the order or such later date as may be specified by the county commission in the order.

(b) Limitations. -- Additional property may not be included in the district unless it is situated within the boundaries of the municipality and is contiguous to the then current boundaries of the district.

(c) Public hearing required. --

(1) The council of any municipality desiring to amend its ordinance shall designate a time and place for a public hearing upon the proposal to include additional property. The notice shall meet the requirements set forth in section six of this article.

(2) At the time and place set forth in the notice, the municipality shall afford the opportunity to be heard to any owners of real property either currently included in or proposed to be added to the existing district and to any other residents of the municipality.

(d) Application to West Virginia Development Office. -- Following the hearing, the municipality may, by resolution, approve the filing of an application with the Development Office for the inclusion of the additional property in the district or for the removal of the applicable parcels from the district.

(e) Consideration by the Executive Director of the Development Office. -- Before the Executive Director of the Development Office approves inclusion of the additional property in the district, the Development Office shall determine the amount of taxes levied by article fifteen, chapter eleven of this code that were collected by businesses located in the area the municipality proposes to add to the district in the same manner as the base amount of tax was determined when the district was first created. The State Treasurer shall also deposit one twelfth of this additional tax base amount into the General Revenue Fund each month, as provided in section twelve of this article.

(f) Legislative action required to include additional property. -- After the Executive Director of the Development Office approves amending the boundaries of the district to include additional property, the Legislature must amend section nine of this article to allow levy of the special district excise tax on business located in geographic area to be included in the district. After the Legislature amends said section, the municipality may then amend its ordinance: Provided, That the ordinance may not be effective any earlier than the first day of the calendar month that begins sixty days after the effective date of the amended ordinance imposing the levy of the special district excise tax on businesses located in the geographic area to be added to the boundaries of the district for which the tax is levied or the first day of a later calendar month as set forth in the ordinance of the municipality.

(g) Collection of special district excise tax. -- All businesses included in a district because of the boundary amendment shall on the effective date of the ordinance, determined as provided in subsection (f) of this section, collect the special district excise tax on all sales on tangible property or services made from locations in the district on or after the effective date of the municipality's ordinance or a later date as set forth in the ordinance.

(h) Minor modifications. -- Notwithstanding any provision of this article to contrary, a municipality may amend the ordinance creating an economic opportunity development district to make, and may make, modifications to the boundaries of the economic opportunity development district without holding a public hearing or receiving approval of the executive director of the West Virginia Development Office or authorization by the Legislature if the modifications do not increase the total acreage of the economic opportunity development district or result in a change to the base tax revenue amount. The municipality is authorized to levy special district excise taxes on sales of tangible personal property and services made from business locations within the modified boundaries of the economic opportunity development district.

§8-38-15. Abolishment and dissolution of district; notice; hearing.

(a) General. -- Except upon the express written consent of the Executive Director of the Development Office and of all the holders or obligees of any indebtedness or other instruments the proceeds of which were applied to any development expenditures or any indebtedness, the payment of which is secured by revenues payable into the fund provided under section eight of this article or by any public property, a district may only be abolished by the municipality when there is no outstanding indebtedness the proceeds of which were applied to any development expenditures or the payment of which is secured by revenues payable into the fund provided under section eight of this article, or by any public property, and following a public hearing upon the proposed abolishment.

(b) Notice of public hearing. -- Notice of the public hearing required by subsection (a) of this section shall be provided by first-class mail to all owners of real property within the district and shall be published as a Class I-0 legal advertisement in compliance with article three, chapter fifty-nine of this code at least twenty days prior to the public hearing.

(c) Transfer of district assets and funds. -- Upon the abolishment of any economic opportunity development district, any funds or other assets, contractual rights or obligations, claims against holders of indebtedness or other financial benefits, liabilities or obligations existing after full payment has been made on all existing contracts, bonds, notes or other obligations of the district are transferred to and assumed by the municipality. Any funds or other assets transferred shall be used for the benefit of the area included in the district being abolished.

(d) Reinstatement of district. -- Following abolishment of a district pursuant to this section, its reinstatement requires compliance with all requirements and procedures set forth in this article for the initial development, approval, establishment and creation of an economic opportunity development district.

§8-38-16. Bonds issued to finance economic opportunity development district projects.

(a) General. -– The municipality that established the economic opportunity development district may issue bonds or notes for the purpose of financing development expenditures, as described in section five of this article, with respect to one or more projects within the economic opportunity development district.

(b) Limited obligations. -– All bonds and notes issued by a municipality under the authority of this article are limited obligations of the municipality.

(c) Term of obligations. -– No municipality may issue notes, bonds or other instruments for funding district projects or improvements that exceed a repayment schedule of thirty years.

(d) Debt service. -– The principal and interest on the bonds is payable out of the funds on deposit in the subaccount established for the economic opportunity development district pursuant to section eight of this article, including, without limitation, any funds derived from the special district excise tax imposed by section twelve of this article or other revenues derived from the economic opportunity development district to the extent pledged for the purpose by the municipality in the ordinance authorizing the bonds.

(e) Surplus funds. -– To the extent that the average daily amount on deposit in the subaccount established for a district pursuant to section eight of this article exceeds, for more than six consecutive calendar months, the sum of: (1) $100,000; plus (2) the amount required to be kept on deposit pursuant to the documents authorizing, securing or otherwise relating to the bonds or notes issued under this section, then the excess shall be used by the district either to redeem the bonds or notes previously issued or remitted to the General Fund of this state.

(f) Debt not general obligation of municipality. -– Neither the notes or bonds and any interest coupons issued under the authority of this article shall ever constitute an indebtedness of the municipality issuing the notes or bonds within the meaning of any Constitutional provision or statutory limitation and do not constitute or give rise to a pecuniary liability of the municipality issuing the notes or bonds.

(g) Debt not a charge general credit or taxing powers of municipality. -– Neither the bonds or notes, nor interest thereon, is a charge against the general credit or taxing powers of the municipality and that fact shall be plainly stated on the face of each bond or note.

(h) Issuance of bonds or notes. --

(1) Bonds or notes allowed under this section may be executed, issued and delivered at any time and, from time to time, may be in a form and denomination, may be of a tenor, must be negotiable but may be registered as to the principal thereof or as to the principal and interest thereof, may be payable in any amounts and at any time or times, may be payable at any place or places, may bear interest at any rate or rates payable at any place or places and evidenced in any manner and may contain any provisions therein not inconsistent herewith, all as provided in the ordinance of the municipality whereunder the bonds or notes are authorized to be issued.

(2) The bonds may be sold by the municipality at public or private sale at, above or below par as the municipality authorizes.

(3) Bonds and notes issued pursuant to this article shall be signed by the authorized representative of the municipality and attested by the municipal clerk or recorder and be under the seal of the municipality.

(4) Any coupons attached to the bonds shall bear the facsimile signature of the authorized representative of the municipality. If any of the officials whose signatures appear on the bonds, notes or coupons cease to be officers before the delivery of the bonds or notes, their signatures are valid and sufficient for all purposes to the same extent as if they had remained in office until the delivery.

(i) Additional bonds or notes. -– If the proceeds of the bonds or notes, by error of calculation or otherwise, are less than the cost of the economic opportunity development district project, or if additional real or personal property is to be added to the district project or if it is determined that financing is needed for additional development expenditures, additional bonds or notes may, in like manner, be issued to provide the amount of the deficiency or to defray the cost of acquiring or financing any additional real or personal property or development expenditures and, unless otherwise provided in the trust agreement, mortgage or deed of trust, are considered to be of the same issue and are entitled to payment from the same fund, without preference or priority, and are of equal priority as to any security.

§8-38-17. Security for bonds.

(a) General. -– Unless the municipality otherwise determines in the ordinance authorizing the issuance of the bonds or notes under the authority of this article, there is hereby created a statutory lien upon the subaccount created pursuant to section eight of this article and all special district excise tax revenues collected for the benefit of the district pursuant to section eleven-a, article ten, chapter eleven of this code for the purpose of securing the principal of the bonds or notes and the interest thereon.

(b) Security for debt service. -– The principal of and interest on any bonds or notes issued under the authority of this article shall be secured by a pledge of the special district excise tax revenues derived from the economic opportunity development district project by the municipality issuing the bonds or notes to the extent provided in the ordinance adopted by the municipality authorizing the issuance of the bonds or notes.

(c) Trust indenture. --

(1) In the discretion and at the option of the municipality, the bonds and notes may also be secured by a trust indenture by and between the municipality and a corporate trustee, which may be a trust company or bank having trust powers, within or without the State of West Virginia.

(2) The ordinance authorizing the bonds or notes and fixing the details thereof may provide that the trust indenture may contain provisions for the protection and enforcing the rights and remedies of the bondholders as are reasonable and proper, not in violation of law, including covenants setting forth the duties of the municipality in relation to the construction, acquisition or financing of an economic opportunity development district project, or part thereof or an addition thereto, and the improvement, repair, maintenance and insurance thereof and for the custody, safeguarding and application of all moneys and may provide that the economic opportunity development district project shall be constructed and paid for under the supervision and approval of the consulting engineers or architects employed and designated by the municipality or, if directed by the municipality in the ordinance, by the district board, and satisfactory to the purchasers of the bonds or notes, their successors, assigns or nominees who may require the security given by any contractor or any depository of the proceeds of the bonds or notes or the revenues received from the district project be satisfactory to the purchasers, their successors, assigns or nominees.

 (3) The indenture may set forth the rights and remedies of the bondholders, the municipality or trustee and the indenture may provide for accelerating the maturity of the revenue bonds, at the option of the bondholders or the municipality issuing the bonds, upon default in the payment of the amounts due under the bonds.

(4) The municipality may also provide by resolution and in the trust indenture for the payment of the proceeds of the sale of the bonds or notes and the revenues from the economic opportunity development district project to any depository it determines, for the custody and investment thereof and for the method of distribution thereof, with safeguards and restrictions it determines to be necessary or advisable for the protection thereof and upon the filing of a certified copy of the resolution or of the indenture for record with the clerk or recorder of the municipality in which the economic opportunity development project is located, the resolution has the same effect, as to notice, as the recordation of a deed of trust or other recordable instrument.

(5) In the event that more than one certified resolution or indenture is recorded, the security interest granted by the first recorded resolution or indenture has priority in the same manner as an earlier filed deed of trust except to the extent the earlier recorded resolution or indenture provides otherwise.

(d) Mortgage or deed of trust. --

(1) In addition to or in lieu of the indenture provided in subsection (c) of this section, the principal of and interest on the bonds or notes may, but need not, be secured by a mortgage or deed of trust covering all or any part of the economic opportunity development district project from which the revenues pledged are derived and the same may be secured by an assignment or pledge of the income received from the economic opportunity development district project.

(2) The proceedings under which bonds or notes are authorized to be issued, when secured by a mortgage or deed of trust, may contain the same terms, conditions and provisions provided herein when an indenture is entered into between the municipality and a trustee and any mortgage or deed of trust may contain any agreements and provisions customarily contained in instruments securing bonds or notes, including, without limiting the generality of the foregoing, provisions respecting the fixing and collection of revenues from the economic opportunity development district project covered by the proceedings or mortgage, the terms to be incorporated in any lease, sale or financing agreement with respect to the economic opportunity development district project, the improvement, repair, maintenance and insurance of the economic opportunity development district project, the creation and maintenance of special funds from the revenues received from the economic opportunity development district project and the rights and remedies available in event of default to the bondholders or note holders, the municipality, or to the trustee under an agreement, indenture, mortgage or deed of trust, all as the municipality considers advisable and shall not be in conflict with the provisions of this article or any existing law: Provided, That in making any agreements or provisions, a municipality shall not have the power to incur original indebtedness by indenture, ordinance, resolution, mortgage or deed of trust except with respect to the economic opportunity development district project and the application of the revenues therefrom and shall not have the power to incur a pecuniary liability or a charge upon its general credit or against its taxing powers unless approved by the voters in accordance with article one, chapter thirteen of this code or as otherwise permitted by the Constitution of this state.

(e) Enforcement of obligations. --

(1) The proceedings authorizing any bonds and any indenture, mortgage or deed of trust securing the bonds may provide that, in the event of default in payment of the principal of or the interest on the bonds, or notes, or in the performance of any agreement contained in the proceedings, indenture, mortgage or deed of trust, payment and performance may be enforced by the appointment of a receiver in equity with power to charge and collect rents or other amounts and to apply the revenues from the economic opportunity development district project in accordance with the proceedings or the provisions of the agreement, indenture, mortgage or deed of trust.

(2) Any agreement, indenture, mortgage or deed of trust may provide also that, in the event of default in payment or the violation of any agreement contained in the mortgage or deed of trust, the agreement, indenture, mortgage or deed of trust may be foreclosed either by sale at public outcry or by proceedings in equity and may provide that the holder or holders of any of the bonds secured thereby may become the purchaser at any foreclosure sale, if the highest bidder therefor.

(f) No pecuniary liability. -– No breach of any agreement, indenture, mortgage or deed of trust may impose any pecuniary liability upon a municipality or any charge upon its general credit or against its taxing powers.

§8-38-18. Redemption of bonds.

The revenue bonds issued pursuant to this article may contain a provision therein to the effect that they, or any of them, may be called for redemption at any time prior to maturity by the municipality and at the redemption prices or premiums, which terms shall be stated in the bond.

§8-38-19. Refunding bonds.

(a) Any bonds issued under this article and at any time outstanding may at any time, and from time to time, be refunded by a municipality by the issuance of its refunding bonds in amount as the municipality considers necessary to refund the principal of the bonds to be refunded, together with any unpaid interest thereon; to make any improvements or alterations in the economic opportunity development district project; and any premiums and commissions necessary to be paid in connection therewith.

(b) Any refunding may be effected whether the bonds to be refunded shall have then matured or shall thereafter mature, either by sale of the refunding bonds and the application of the proceeds thereof for the redemption of the bonds to be refunded thereby, or by exchange of the refunding bonds for the bonds to be refunded thereby: Provided, That the holders of any bonds to be refunded shall not be compelled without their consent to surrender their bonds for payment or exchange prior to the date on which they are payable or, if they are called for redemption, prior to the date on which they are by their terms subject to redemption.

(c) Any refunding bonds issued under the authority of this article are subject to the provisions contained in section sixteen of this article and shall be secured in accordance with the provisions of section seventeen of this article.

§8-38-20. Use of proceeds from sale of bonds.

(a) General. -– The proceeds from the sale of any bonds issued under authority of this article shall be applied only for the purpose for which the bonds were issued: Provided, That any accrued interest received in any sale shall be applied to the payment of the interest on the bonds sold: Provided, however, That if for any reason any portion of the proceeds may not be needed for the purpose for which the bonds were issued, then the unneeded portion of the proceeds may be applied to the purchase of bonds for cancellation or payment of the principal of or the interest on the bonds, or held in reserve for the payment thereof.

(b) Payment of costs. -– The costs that may be paid with the proceeds of the bonds include all development expenditures described in section five of this article and may also include, but not be limited to, the following:

(1) The cost of acquiring any real estate determined necessary;

(2) The actual cost of the construction of any part of an economic opportunity development district project which may be constructed, including architects', engineers', financial or other consultants' and legal fees;

(3) The purchase price or rental of any part of an economic opportunity development district project that may be acquired by purchase or lease;

(4) All expenses incurred in connection with the authorization, sale and issuance of the bonds to finance the acquisition and the interest on the bonds for a reasonable time prior to construction during construction and for not exceeding twelve months after completion of construction; and

(5) Any other costs and expenses reasonably necessary in the establishment and acquisition of an economic opportunity development district project and the financing thereof.

§8-38-21. Bonds made legal investments.

Bonds issued under the provisions of this article are legal investments for banks, building and loan associations and insurance companies organized under the laws of this state and for a business development corporation organized pursuant to chapter thirty-one, article fourteen of this code.

§8-38-22. Exemption from taxation.

The revenue bonds and notes issued pursuant to this article and the income therefrom are exempt from taxation except inheritance, estate and transfer taxes; and the real and personal property which a municipality or district board acquires pursuant to the provisions of this article are exempt from taxation by the state, or any county, municipality or other levying body, as public property so long as the property is owned by the municipality or district board.

§8-38-23. Joint economic opportunity development districts.

(a) The Legislature hereby finds and declares that the citizens of the state would benefit from coordinated road construction efforts by county commissions and municipalities.

(b) Notwithstanding any other section of this code to the contrary, any two or more county commissions, any two or more municipalities, or any combination thereof, may: (1) Create a combined economic opportunity development district; (2) propose joint applications for the districts; and (3) enter into one or more intergovernmental agreements between themselves and/or the Commissioner of Highways to share: (A) Project expenses; and (B) certain excise tax collections, on a pro rata or other basis, to facilitate construction of projects within the combined economic opportunity development district and to jointly take such other actions as are authorized in the County Economic Opportunity Development District Act.

(c) When a project begins in one county and ends in another county of this state, the county commission of each county included in a multicounty project may, by resolution, adopt a written intergovernmental agreement with each county and/or the Commissioner of Highways regarding the proposed multicounty project. When the project begins or passes through the corporate limits of a municipality, the governing body of that municipality may by resolution adopt a written intergovernmental agreement with the county or counties in which the project is located.

(d) No county commission or municipality may withdraw from an intergovernmental agreement as long as bonds or notes, remain outstanding the proceeds of which were used to finance construction of the project for which the written intergovernmental agreement was executed.

(e) No withdrawing county commission or municipality is entitled to the return of any money or property advanced to the project.

(f) Notwithstanding any provision of this code to the contrary, any county commission or municipality that creates an economic opportunity development district may enter into one or more intergovernmental agreements with one or more other counties or municipalities that also create an economic opportunity development district to finance, in whole or in part, one or more projects, to pool tax increment and other revenues to finance, in whole or in part, contiguous projects on a cash basis or to pay debt service on bonds or notes.

(g) The obligations of the parties under any intergovernmental agreement executed pursuant to this article is not debt within the meaning of sections six or eight, article X of the Constitution of West Virginia.

(h) Any intergovernmental agreement must be approved by resolution adopted by a majority vote of the county commission of each county participating in the agreement, by a majority vote of the governing body of each municipality participating in the agreement and by the Commissioner of Highways.

(i) The Commissioner of Highways is authorized to enter into intergovernmental agreements with county commissions and municipalities of this state, or with the federal government or any agency thereof, respecting the financing, planning, and construction of state roads and bridges, including related infrastructure if any, constructed, in whole or in part, pursuant to this article.

§8-38-24. Application by Division of Highways.

(a) The Commissioner of Highways may propose the creation by a county commission of an economic opportunity development district and project plans, or propose amendments to existing project plans.

(b) Projects proposed by the Commissioner of Highways are limited to those related to the construction, reconstruction, improvement or modernization of state roads, as defined in article four, chapter seventeen of this code, that are part of the state road system, as defined in that article or that will become part of the state road system upon completion of the construction. All construction, reconstruction, improvement or modernization and maintenance of state roads shall be done by or under the supervision of the Commissioner of Highways.

(c) All road projects that are accepted as part of the state road system, and all real property interests and appurtenances, shall be under the exclusive jurisdiction and control of the Commissioner of Highways, who may exercise the same rights and authority as he or she has over other transportation facilities in the state road system.

(d) Except as provided in an intergovernmental agreement executed by one or more county commissions, municipalities and/or the Commissioner of Highways and as provided in this article, a county commission or municipality may not be required to pay for the cost of constructing, reconstructing, improving, maintaining a road that is part of the state road system as defined in article four, chapter seventeen of this code or to pay any other expense fairly related to that road.

(e) The powers conferred by this article on the Commissioner of Highways or the Division of Highways are in addition and supplemental to the powers conferred upon the Commissioner of Highways, the Division of Highways, and the Department of Transportation by the Legislature elsewhere in this code.

§8-14-15a. Veteran qualification for examinations required during probation period.

(a) Any person who has served on active duty in the Armed Forces of the United States,  was honorably discharged from that service, and who has successfully completed the course of instruction required to qualify him or her for rating as a military police officer, law-enforcement specialist or other equivalent rating in his or her particular branch of the Armed Forces, may submit to the Civil Service Commission a photostatic copy of the certificate issued to him or her certifying successful completion of such course of instruction and a photostatic copy of his or her discharge from the Armed Forces. The Civil Service Commission shall allow, upon request of the veteran, that he or she be permitted to take any examinations required during the probationary period without first having to complete a training course for that subject: Provided, That if the veteran does not pass the examination or examinations, he or she may be subject to the same reexamination requirements of persons who have not applied under the provisions of this section.

(b) A veteran wishing to utilize the provisions of section (a) must have first met the requirements contained in §8-14-12 and §8-14-13 of this code.

(c) The veteran must successfully pass all examinations and any other requirements of his or her probation period, to be eligible for absolute appointment.

§8-19-2a. Procedure for changing rates of municipal electric power systems; legislative findings.

 All rates, fees, and charges set by municipal electric power systems shall be just, reasonable, applied without unjust discrimination between or preference for any customer or class of customer, and based primarily on the costs of providing these services. All rates and charges shall be based upon the measured or reasonably estimated cost of service and the equitable sharing of those costs between customers based upon the cost of providing the service received by the customer, including a reasonable slant-in-service depreciation expense. The rates and charges shall be adopted by the power system’s governing board by municipal ordinance to be effective not sooner than 45 days after adoption. The 45-day waiting period may be waived by public vote of the governing body if that body finds and declares the public utility that is a political subdivision of the state to be in financial distress, such that the 45-day waiting period would be detrimental to the ability of the utility to deliver continued and compliant public services: Provided, That notice of intent to effect a rate change shall be specified on the monthly billing statement of the customers of the utility for the month next preceding the month in which the rate change is to become effective, and the governing body shall give its customers other reasonable notices as will allow filing of timely objections to the proposed rate change and full participation in municipal rate legislation through the provision of a public forum in which customers may comment upon the proposed rate change prior to an enactment vote. Notwithstanding the exclusion of municipal power systems’ rates, fees, charges, and rate-making process from the jurisdiction of the Public Service Commission, municipal power systems shall submit information regarding their rates, fees, and charges to the commission as set forth in §24-2-9 of this code.

§8-19-2b. Right of appeal by customers.

Customers may appeal a rate increase to the circuit court of the county in which the municipality is located on the grounds that the rate ordinance or its passage does not comply with the provisions of this article by filing a petition, signed by at least 750 customers or 25 percent of the customers served by the municipal electric utility, whichever is fewer. Any petition challenging the ordinance must be filed within 30 days following the adoption of the rate ordinance.

§8-15-7a. Audit or financial examination of volunteer fire companies.

The Auditor shall have the authority and the duty to make a regular review of the finances of each volunteer fire company constituted under the provisions of this article. Audits or financial examinations are not required to be conducted on an annual basis, but shall be scheduled as to complete a review of each volunteer fire company at least once every five years: Provided, That nothing in this section shall prevent the Auditor from conducting more than one financial examination or audit of a volunteer fire company within the five-year period if the Auditor has cause to believe that loss, mismanagement, misuse, or waste of the funds of the company that may occur or is occurring. The scope of the Auditor’s examination or audit shall include all income of the voluntary fire company, regardless of the source of funds, the assets, liabilities, and all expenditures of the company: Provided, however, That the State Auditor shall implement internal policies to ensure that any costs associated with an audit under this section of the code may be carried by the State Auditor or may be recouped by the volunteer fire company.

§8-12-21. Restriction on the regulation of trades, occupations, and professions.

Except as expressly provided by this code, neither a municipality nor the governing body of any municipality may, by ordinance or otherwise, enact or enforce any law, ordinance, regulation, or rule, requiring the licensing, certification, or registration of any person or business in order to practice or conduct a trade, occupation, or profession within the jurisdiction of the municipality. This section does not limit the authority of a municipality to regulate the repair, alteration, improvement, demolition or removal of buildings, structures, or of any equipment or part of a structure as provided in §8-12-14 and §8-12-16 of this code.

§8-39-1. Accessible municipal records; required information.

(a) Beginning on or before December 31, 2020, each municipality may maintain a website that provides the following information accessible to the public without charge:

(1) The title and name of each elected office holder;

(2) The contact information of each elected office holder, including office telephone number, facsimile number, office location, office hours, and mailing address: Provided, That the municipality may withhold contact information from disclosure that it deems necessary to protect their safety, the safety of their coworkers, and the integrity of law-enforcement operations

(3) A secure electronic means of contacting each elected office holder;

(4) A copy of each municipal ordinance in effect;

(5) A copy of the approved meeting minutes; and

(6) A schedule of regular meeting days for each calendar year.

(b) Each municipality shall update the information required pursuant to this section within 30 days of the date the change occurs and provide the updated information to the Office of Technology who shall update the information on the wv.gov website.

§8-22-28a. Distribution of remaining assets in a closed municipal policemen’s or firemen’s pension and relief fund.

(a)(1) Upon the cessation of any and all benefit payments to retirees or retiree beneficiaries because of death or disqualification, the board shall transfer the remaining assets of a policemen’s pension and relief fund or a firemen’s pension and relief fund to the municipality to be used solely by the municipality’s governing body to fund future retirement obligations for the municipality’s police or fire department members who are in the Municipal Police Officers and Firefighters Retirement System established under §8-22A-1 et seq. of this code, subject to subdivision (2) of this subsection.

(2) If within five years prior to the death of the last remaining retiree or beneficiary the Municipal Pensions Oversight Board provided any state aid to the fund pursuant to §33-3-14d(b)(2) of this code, an amount equal to the aggregate amount of state aid provided to the fund during that period shall be repaid from the assets of the fund to the Municipal Pensions Oversight Board prior to the municipality’s use of the remaining assets for the purposes described in subdivision (1) of this subsection. If the amount to be repaid is greater than the total assets of the fund, then the entire amount of the fund shall be repaid to the Municipal Pensions Oversight Board.

(b) The Municipal Pensions Oversight Board shall deposit any repaid amounts into the Municipal Pensions Security Fund for reallocation to municipal policemen’s or firemen’s pension and relief funds with an actuarial deficiency during the next allocation cycle pursuant to §33-3-14d(b)(2) of this code.

§8-12-22. Foreclosure actions involving abandoned properties.

(a) This section shall be known and may be cited as the Zombie Property Remediation Act of 2021.

(b) No action may be brought pursuant to this section until the municipality has informed any and all mortgagees in writing and by certified mail, return receipt requested, to the mortgagee’s registered agent identified by the mortgagee at the office of the West Virginia Secretary of State or, if not registered with the West Virginia Secretary of State, then to the mortgagee’s principal place of business, of the municipality’s intent to file a proceeding pursuant to subsection (c) of this section and provide the mortgagee 45 days from receipt by the agent or at the principal place of business referenced above of the notice of intent to file an action pursuant to subsection (c) of this section to respond to the notice and notify the municipality of the status of the property, the status of the note and the mortgagee’s response to the notice: Provided, That the municipality may not issue a notice pursuant to this subsection or bring an action pursuant to subsection (c) of this section if the owner of the property is in bankruptcy without the express consent of the bankruptcy court.

(c) If a property has been determined to be unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare pursuant to an ordinance adopted pursuant to §8-12-16 of this code, or determined vacant and abandoned pursuant to subsection (d) of this section, the municipality in which the property is located may commence a proceeding in which the property is located to compel any or all mortgagees to:

(1) If the mortgagee has classified that the note is in default, the trustee or mortgagee shall commence a foreclosure procedure within four months and shall meet all deadlines to ensure the case is ready to be moved to a trustee sale within a reasonable time period but not to exceed one year;

(2) In the case of a loss mitigation application being filed by the borrower, all provisions of this section shall be tolled until such time as the note is again in default and the time period described in subdivision (1) of this subsection of this section has passed, or otherwise until the mortgagee has determined that the borrower is ineligible for loss mitigation;

(3) If a foreclosure has already been commenced, submit the necessary notices and documentation needed to move the foreclosure to a trustee sale within four months; or

(4) Issue a certificate of discharge of the trust deed lien or mortgage within three months and file a release of the lien or mortgage with the office of the clerk of the county commission in the county where the property is located.

(d) As used in this section, “vacant and abandoned property” means real property with respect to which the plaintiff has proven, by a preponderance of the evidence, that it meets any of the following requirements:

(1) No person or persons actually and currently conduct a lawfully licensed business, or lawfully reside, dwell, or live in any part of the building as the legal or equitable owner(s), tenant-occupant(s), owner-occupant(s), or tenant(s) on a permanent, nontransient basis; or

(2) If the exterior maintenance and major systems of the building and the surrounding real property thereof are in violation of applicable building codes or health and sanitation codes and there is no continual utility service evidencing actual use of electric, gas, water service, etc.; or

(3) Each mortgagor has separately issued a sworn written statement, expressing his or her intent to vacate and abandon the property and an inspection of the property shows no evidence of occupancy to indicate that any persons are residing there.

(4) As used in this section, “continual” shall mean to be without more than one 30-day interruption in any given 360-day period and must be more than merely registered to the owner for purposes of billing and must be utilized, at a minimum, in order to keep the property and the major systems of the building in compliance with applicable building and safety codes.

(5) Residential real property may not be considered vacant and abandoned if a structure located on the property meets any of the following:

(A) An unoccupied building that is undergoing construction, renovation, or rehabilitation that is proceeding diligently to completion;

(B) A building occupied on a seasonal basis, but otherwise secure;

(C) A building that is secure, but is the subject of a probate action, action to quit title, or other ownership dispute of which the mortgage servicer has actual notice;

(D) A building damaged by a natural disaster and one or more of its owners intends to repair and reoccupy the property; or

(E) A building occupied by the mortgagor, a relative of the mortgagor, or a tenant lawfully in possession.

(e) For any foreclosure resulting under this section or otherwise pursuant to any trust deed of record, if the successful bidder is the mortgagee, the trustee shall transfer by recorded deed, the property to the mortgagee within 30 days of the foreclosure sale. Any municipality wherein the property is located may seek an injunction to require the trustee, acting on behalf of the mortgagee, to convey the property to the mortgagee by recorded deed of record. Any municipality filing such an action and obtaining relief by injunction may recover attorney’s fees and costs related to the action.

(f) Any property fitting the criteria described in subsection (d) of this section which is not situated within the boundaries of any incorporated municipality may be served in the manner described in subsections (b) and (c) of this section by the county commission of the county in which the property is located, with all attendant duties thereto.

(g) Nothing in this section may be construed to limit or restrain any incorporated municipality’s powers to dispose of unencumbered properties that are unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare pursuant to §8-12-16 of this code.

§8-22A-34. Return to covered employment by retirant.

The annuity of any member who retires under the provisions of this article and who resumes service in covered employment shall be suspended while the member continues in covered employment. The monthly annuity payment for the month in which the service resumes shall be pro rated to the date of commencement of service, and the member shall again become a contributing member during resumption of service. At the conclusion of resumed service in covered employment, the member shall have his or her annuity recalculated to take into account the entirety of service in covered employment.

§8-22A-35. Severability.

If any part of this article is declared unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this article, or the article in its entirety.

§8-12-23. Limitations on municipalities, political subdivisions, and local governing bodies’ authority over energy usage and development.

(a) As used in this section:

“Energy source” means the method of generation, or the fuel source, used to provide or supply utility service to a customer. The term includes any nonrenewable or renewable energy source.

“Governing body” shall mean the mayor and council together, the council, the board of directors, the commission, or other board or body of any municipality with the responsibility of enacting ordnances and determining public policy, as defined in §8-1-2(b)(1) of this code.

“Municipality” shall mean and include 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, as defined in §8-1-2(a)(1) of this code.

“Political subdivision” shall have the meaning as defined in §29-12A-3 of this Code.

“Private property” means real property that is not owned or leased by a municipality or county.

“Utility service” means any service provided by a public utility or private business, including, but not limited to:

(1) The generation, production, transmission, or distribution of electricity to or for the public, for compensation; or the production, manufacture, storage, transportation, distribution, sale, or

(2) furnishing of:

(A) Natural gas; propane; artificial or manufactured gas; or

(B) a mixture of natural gas and artificial or manufactured gas; to or for the public, for compensation; for heat, light, power, or other uses.

(b) A municipality, political subdivision, or governing body, as defined in this section, does not have the power to enact any code, ordinance, or land use regulation, that would prohibit or have the effect of prohibiting, or, to otherwise regulate in any manner prohibiting or have the effect of prohibiting:

(1) A public utility, private business, or department of public utilities from furnishing a utility service to a utility customer based on an energy source provided or used by a utility service;

(2) A customer of a public utility or department of public utilities from purchasing, using, or connecting or reconnecting to a utility service based on the energy source provided or used by a utility service; or

(3) A public utility, private business, or department of public utilities, from utilizing any vehicles, equipment, machinery, or tools, to provide utility services to a utility customer based on the energy source used by or powering vehicles, equipment, machinery, or tools that are used by the utility service.

(c) Any code, ordinance, land use regulation, or general or specific plan provision adopted by a municipality, political subdivision, or governing body, must preserve the ability of an owner of private property to use the utility service of a utility service provider that is otherwise authorized under this code.

§8-12-24. Dedication to or naming municipal property for office holder prohibited.

Notwithstanding any provision of this code to the contrary, no municipalities or governing bodies of municipalities may cause or permit to be caused the dedication or naming of any municipal owned building or public structure for a public official who is holding office at the time of the proposed dedication or naming.

§8-27-21a. Federal grants; wage deductions.

Notwithstanding any provision of this code to the contrary, the term “deductions”, as defined in §21-5-1 of this code and applied to the wages of an employee of an urban mass transportation authority under this article which is a direct or indirect recipient of federal funding from the Federal Transit Administration pursuant to the Urban Mass Transportation Act of 1964, as amended, includes amounts authorized for union or labor organization dues or fees. This section applies only to urban mass transportation authorities under this article.

§8-33-4a. Issuance of pension funding revenue bonds to fund a pension funding program.

(a) In addition to the powers set forth in §8-33-4 of this code and subject to the requirements set forth in this section and in §8-33-4b of this code, a commission formed by a Class I, Class II or Class III municipality may issue pension funding revenue bonds to raise funds for the funding of a pension funding program in the manner provided by this section. A "pension funding program" means a program established by a municipality for reducing the unfunded actuarial accrued liability of a policemen’s or firemen’s pension and relief fund of the municipality with the proceeds of pension funding revenue bonds issued pursuant to this section.

(b) Before any commission shall fund any pension funding program through the issuance of pension funding revenue bonds, the commission shall enact an ordinance or ordinances, which shall (1) set forth a brief and general description of the pension funding program; (2) set forth the estimated cost thereof; (3) order the funding of the pension funding program; (4) direct that pension funding revenue bonds be issued pursuant to this section, in such amount as may be found necessary to pay the cost of the pension funding program; (5) contain such provisions as the commission determines are necessary or desirable with regard to the establishment and setting aside of a debt service reserve fund if deemed beneficial to the commission and for the administration and disposition of the debt service reserve fund; (6) contain provisions establishing and setting aside a debt service contingency reserve fund with the municipality in an amount at least equal to 10 percent of the original principal amount of the pension funding revenue bonds from cash contributed by the municipality or from the proceeds of the pension funding revenue bonds, providing for the replenishment of any amounts drawn from the debt service contingency reserve fund in a reasonable time period, and for the administration and disposition of the debt service contingency reserve fund; and (7) contain such other provisions as may be necessary or proper in the premises. Before any such ordinance shall become effective, an abstract of the ordinance, determined by the commission to contain sufficient information as to give notice of the contents of such ordinance, together with the following described notice, shall be published as a Class II legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code, and the publication area for such publication shall be the municipality which formed the commission. The notice to be published with the abstract of the ordinance shall specify a date, time and place for a public hearing, the date being not less than 10 days after the first publication of the abstract and notice and not prior to the last publication of the abstract and notice, at which time and place all parties and interests may appear before the commission and may be heard as to whether or not said ordinance shall be put into effect, and said notice shall also identify the office in which a certified copy of such ordinance shall be on file for review by interested persons during the office hours of the office. At the public hearing all objections and suggestions shall be heard, and the commission shall take such action as it deems proper in the premises.

(c) (1) The cost of a pension funding program shall include the cost of providing funding of all of the unfunded liability of a policemen’s or firemen’s pension plan; the costs of issuance of pension funding revenue bonds issued to fund a pension funding program, the amount of any debt service reserve and debt service contingency reserve funds funded from the proceeds of pension funding revenue bonds; actuarial, financial advisory and legal expenses associated with the pension funding program and the issuance of the pension funding revenue bonds; expenses for estimates of cost and of revenues; expenses for actuarial studies; and such other expenses as may be necessary or incidental to the financing authorized pursuant to this section, the pension funding program and the performance of the actions required or permitted in connection with any thereof.

(2) Actuarial studies must be performed by a contracted actuary of the Municipal Pension Oversight Board as required by §8-22-20 of this code.

(d) Pension funding revenue bonds shall be in an amount at least equal to the applicable policemen’s and/or firemen’s pension and relief funds then unfunded liability based upon the most recent actuarial valuation reports prepared by an actuary contracted with or employed by the oversight board as required by §8-22-20 of this code for the applicable funds with appropriate adjustments for timing, experience and other factors. The pension funding revenue bonds shall bear interest at not more than 12 percent per annum, payable semiannually, or at shorter intervals, and the bonds allocable to a specific policemen’s or firemen’s pension and relief fund shall mature over a period of time not exceeding the then estimated amortization period for the municipality’s unfunded actuarial accrued liability as set forth in the municipality’s most recent actuarial valuation reports prepared by an actuary contracted with or employed by the oversight board relating to the applicable funds with appropriate adjustments for timing, experience and other factors, as may be determined by the ordinance or ordinances authorizing the issuance of such bonds. The annual principal and interest payments on pension funding revenue bonds shall, to the extent possible, provide for level debt service and be proportionate to the funding requirements for the applicable policemen’s or firemen’s pension and relief funds as shown on the municipality’s most recent actuarial valuation report for the policemen’s or firemen’s pension and relief funds prepared by an actuary contracted with or employed by the oversight board with appropriate adjustments for timing, experience and other factors, as applicable. The bonds may be made redeemable before maturity, at the option of the commission issuing the bonds, to be exercised by the commission, at not more than the par value thereof, and at a premium of not more than five percent, under terms and conditions as may be fixed by the ordinance or ordinances authorizing the issuance of the bonds. The principal and interest of the bonds may be made payable in any lawful medium. The ordinance or ordinances shall determine the form of the bonds, shall set forth any registration or conversion privileges, and shall fix the denomination or denominations of such bonds, and the place or places of the payment of the principal and interest thereof, which may be at any banking institution or trust company within or without the state and which is a vendor of the state. All such bonds shall be, shall have and are hereby declared to have all the qualities and incidents of negotiable instruments, under the Uniform Commercial Code of this state. The bonds shall be executed in the manner the commission may direct. The bonds shall be sold by the commission in a manner as may be determined to be in the best interest of the municipality which created the commission. Any surplus of the bond proceeds over and above the cost of the pension funding program shall be paid into the sinking fund established for the payment of such bonds.

(e) The bonds shall be secured by a trust indenture by and between the commission and a corporate trustee, which may be a trust company or banking institution having powers of a trust company within or without the state and which is a vendor of the state. The ordinance or ordinances authorizing the issuance of the pension funding revenue bonds, and fixing the details thereof, may provide that the trust indenture may contain provisions for protecting and enforcing the rights and remedies of bondholders as may be reasonable and proper, including security interests in any real property owned or leased by the commission regardless of whether such real property is being improved with the proceeds of such indebtedness, not in violation of law. The indenture may set forth the rights and remedies of the bondholders or the trustee, or both. The commission may provide by ordinance or ordinances or in the trust indenture for the payment of the proceeds of the sale of the bonds and the revenues received by the commission with respect to the pension funding program to a depository, as the commission may determine for the custody thereof, and for the method of distribution thereof, with such safeguards and restrictions as the commission may determine. The trust indenture shall provide for a subaccount of the debt service fund into which all premium tax allocations received by the trustee shall, upon receipt, be deposited into for use solely in paying principal and interest on any outstanding pension funding revenue bonds. All interest earnings on the subaccount shall be credited to the subaccount and used solely for the payment of principal and interest on any outstanding pension funding revenue bonds.

(f) Upon the payment in full of an issue of pension funding revenue bonds (other than with the proceeds of refunding bonds) and any final costs related thereto, any amounts remaining in any debt service reserve or contingency reserve funds shall be paid by the trustee of the bonds to the municipality which formed the commission. Any excess moneys held in the subaccount of the debt service fund into which premium tax allocations have been deposited shall be paid to the Municipal Pension Oversight Board. Any other excess moneys held by the trustee at that time shall be paid to the municipality.

(g) Notwithstanding any provision of this code to the contrary, if a municipality with a policemen’s or firemen’s pension and relief fund is using the alternative method of funding provided in §8-22-20(e) of this code, the municipality may only issue pension funding revenue bonds if, on the date of the issuance of the bonds, the fund is closed to participation by police officers or firefighters, as applicable, hired on or after the date of the issuance of the bonds.

§8-33-4b. Approval of municipal pension oversight board of certain pension funding revenue bonds; propose rules.

(a) In addition to the requirements otherwise provided in this article, any issuance of pension funding revenue bonds by a building commission (1) for a Class III municipality or (2) for a Class I or Class II municipality with either a policemen’s or firemen’s pension and relief fund if the municipality only has one such pension and relief fund, or with both policemen’s and firemen’s pension and relief funds that are not funded at a funding ratio of 40 percent or greater based on the most recent actuarial valuation reports prepared by an actuary contracted with or employed by the municipal pensions oversight board for such funds, with appropriate adjustments for timing, experience and other factors, as applicable, shall, prior to such issuance, be approved by the municipal pension oversight board and provided to the Joint Committee on Government and Finance for prior review.

(b) The applicable building commission shall, at least 90 days prior to the proposed issuance date of the pension funding revenue bonds, provide the following to the municipal pension oversight board:

(1) A report setting forth a detailed summary of the then projected terms of the proposed bond issuance and projected impact on the unfunded pension liability of the applicable fund or funds; and

(2) A copy of the municipality’s most recent actuarial valuation reports prepared by an actuary contracted with or employed by the oversight board relating to its policemen’s and firemen’s pension and relief funds.

(c) The municipal pension oversight board shall meet, review the information provided pursuant to subsection (b) of this section and provide its approval or rejection of the proposed issuance of pension funding revenue bonds within 60 days of receipt of the reports required in subsection (b) of this section. The municipal pension oversight board shall issue a written decision within 30 days of the meeting.

(d) Should the municipal pension oversight board approve the issuance of pension funding revenue bonds by a building commission, then it shall promptly provide a copy of its decision and the supporting documents, including a copy of the municipality’s most recent actuarial valuation reports prepared by an actuary contracted with or employed by the oversight board relating to its policemen’s and firemen’s pension and relief funds, to the Joint Committee on Government and Finance.

(e) The municipal pensions oversight board shall propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code as necessary to implement the provisions of this section, and may initially promulgate emergency rules pursuant to §29A-3-15 of this code.

§8-22-25b. Right to benefits not subject to execution, etc.; assignments prohibited; deductions for group insurance; setoffs for fraud; exception for certain domestic relations orders; assets exempt from taxes.

The right of a person to any benefit provided in this article shall not be subject to execution, attachment, garnishment, the operation of bankruptcy or insolvency laws, or other process whatsoever, nor shall any assignment thereof be enforceable in any court except that the benefits or contributions under municipal policemen’s pension and relief funds and firemen’s pension and relief funds shall be subject to “qualified domestic relations orders” as that term is defined in Section 414(p) of the Internal Revenue Code as applicable to governmental plans: Provided, That should a member be covered by a group insurance or prepayment plan participated in by a participating municipality, and should he or she be permitted to, and elect to, continue such coverage as a retirant, he or she may authorize the board of trustees to have deducted from his or her retirement pension the payments required of him or her to continue coverage under such group insurance or prepayment plan: Provided, however, That a participating municipality shall have the right of setoff for any claim arising from embezzlement by, or fraud of, a member, retirant or beneficiary. The assets of the retirement system are exempt from state, county and municipal taxes.

§8-12-25. Authorizing certain municipalities to create a pension funding program.

In addition to all other powers and duties conferred by law upon municipalities, Class I, Class II and Class III municipalities are empowered and authorized to create pension funding programs as defined in §8-33-4a of this code.

§8-29B-8a. Abandoned or derelict aircraft.

(a) If an abandoned or derelict aircraft is discovered on an airport, the airport authority shall:

(1) Make a record of the date the aircraft was discovered on the airport; and

(2) Inquire as to the name and address of any person having an equitable or legal interest in the aircraft, including the owner and any lien holders, by:

(A) Contacting the federal aviation administration, aircraft registration branch, and making a diligent search of the appropriate records; or

(B) Contacting an aircraft title search company.

(b) Within 10 business days of receiving the information requested pursuant to subsection (a) of this section, the airport authority shall notify the owner and all other interested parties by certified mail, return receipt requested:

(1) Of the location of the abandoned or derelict aircraft on the airport;

(2) That fees and charges for the use of the airport by the aircraft have accrued and the amount of those fees and charges;

(3) That the aircraft is subject to a lien pursuant to this section for any unpaid and accrued fees and charges for the use of the airport and for the transportation, storage, and removal of the aircraft;

(4) That the lien is subject to enforcement pursuant to this section;

(5) That the airport may use, trade, sell, or remove the aircraft as described in §8-29-3 of this code if, within 30 calendar days after the date of receipt of the notice, the owner or other interested party has not removed the aircraft from the airport and paid in full all accrued fees and charges for the use of the airport and for the transportation, storage, and removal of the aircraft; and

(6) That the airport authority may remove the aircraft in less than 30 calendar days if the aircraft poses a danger to the health or safety of users of the airport, as determined by the airport authority.

(c) If, after the inquiry required by subdivision (2), subsection (a) of this section, the owner of the aircraft is unknown or cannot be found, the airport authority shall place a notice upon the aircraft in a conspicuous position containing the information required by subdivisions (2) through (6) of subsection (b) of this section: Provided, That said notice shall be not less than eight inches by 10 inches and shall be laminated or otherwise sufficiently weatherproof to withstand normal exposure to rain, snow, and other conditions.

(d) If, after 30 calendar days of the owner or other interested party receiving the inquiry required by subsection (b) of this section or after 30 calendar days of posting the notice on the aircraft required by subsection (c) of this section, whichever occurs sooner, the owner or other interested party has not removed the aircraft from the airport and paid in full all accrued fees and charges for the use of the airport and for the transportation, storage, and removal of the aircraft, or shown reasonable cause for the failure to do so, the airport authority may:

(1) Retain the aircraft for use by the airport, the state, or the unit of local government owning or operating the airport;

(2) Trade the aircraft to another unit of local government or a state agency;

(3) Sell the property; or

(4) Dispose of the property through an appropriate refuse removal company or a company that provides salvage services for aircraft.

(e) If the airport authority elects to sell the aircraft in accordance with subsection (d) of this section, the aircraft shall be sold at public auction after giving notice of the time and place of sale, at least 10 calendar days prior to the date of sale, in a newspaper of general circulation within the county where the airport is located and after providing written notice of the intended sale to all parties known to have an interest in the aircraft.

(f) If the airport authority elects to dispose of the aircraft in accordance with subdivision (4), subsection (d) of this section, the airport authority may negotiate with the company for a price to be received from the company in payment for the aircraft, or, if circumstances so warrant, a price to be paid to the company by the airport authority for the costs of disposing of the aircraft. All information and records pertaining to the establishment of the price and the justification for the amount of the price shall be prepared and maintained by the airport authority.

(g) If the sale price or the negotiated price is less than the airport authority’s then current fees and charges against the aircraft, the owner of the aircraft shall remain liable to the airport authority for the fees and charges that are not offset by the sale price or negotiated price.

(h) All costs incurred by the airport authority in the removal, storage, and sale of any aircraft shall be recoverable against the owner of the aircraft.

(i) The airport authority shall have a lien on an abandoned or derelict aircraft for all unpaid fees and charges for the use of the airport by the aircraft and for all unpaid costs incurred by the airport authority for the transportation, storage, and removal of the aircraft. As a prerequisite to perfecting a lien under this section, the airport authority shall serve a notice in accordance with §8-29-2 of this code on the last registered owner and all persons having an equitable or legal interest in the aircraft.

(j)(1) For the purpose of perfecting its lien under this section, the airport authority shall record a claim of lien that states:

(A) The name and address of the airport;

(B) The name of the last registered owner of the aircraft and all persons having a legal or equitable interest in the aircraft;

(C) The fees and charges incurred by the aircraft for the use of the airport and the costs for the transportation, storage, and removal of the aircraft; and

(D) A description of the aircraft sufficient for identification.

(2) The claim of lien shall be signed and sworn to or affirmed by the airport authority’s director or the director’s designee.

(3) The claim of lien shall be served on the last registered owner of the aircraft and all persons having an equitable or legal interest in the aircraft. The claim of lien shall be so served before recordation.

(4) The claim of lien shall be recorded with the register of the county where the airport is located. The recording of the claim of lien shall be constructive notice to all persons of the contents and effect of such claim. The lien shall attach at the at the time of recordation and shall take priority as of that time.

(k)(1) If the aircraft is sold pursuant to this section, the airport authority shall satisfy the airport authority’s lien, plus the reasonable expenses of notice, advertisement, and sale, from the proceeds of the sale.

(2) The balance of the proceeds of the sale, if any, shall be held by the airport authority, and delivered on demand to the owner of the aircraft.

(3) If no person claims the balance within 12 months of the date of sale, the airport authority shall retain the funds and use the funds for airport operations.

(l) Any person acquiring a legal interest in an aircraft pursuant to this section shall be the lawful owner of the aircraft and all other legal or equitable interests in that aircraft shall be divested: Provided, That the holder of any legal or equitable interest was notified of the intended disposal of the aircraft as required by this section. The airport authority may issue documents of disposition to the purchaser or recipient of an aircraft disposed of pursuant to this section.

§8-15-28. Awarding service weapon upon retirement.

(a) Upon the retirement of a municipal fire marshal, any full-time deputy fire marshal, or any full-time assistant fire marshal employed pursuant to this article, the municipal fire department shall award to the retiring member his or her service weapon, without charge, upon determining:

(1) That the retiring employee is retiring honorably with at least 20 years of service; or

(2) The retiring employee is retiring with less than 20 years of service based upon a determination that the employee is totally physically disabled as a result of his or her service with the municipal fire department.

(b) Notwithstanding the provisions of subsection (a) of this section, the municipal fire department may not award a service weapon to any employee whom the municipal fire department knows is prohibited from possessing a firearm, finds to be mentally incapacitated, or who constitutes a danger to any person or the community.

(c) If a service weapon is taken out of service due to routine wear, the municipal fire department may offer the service weapon for sale to any active or retired municipal fire marshal, assistant fire marshal, or deputy fire marshal, at fair market value, with the proceeds from any sales used to offset the cost of new service weapons. The disposal of service weapons pursuant to this subsection does not fall within the jurisdiction of the Purchasing Division of the Department of Administration.

§8-22A-27a. Credit toward retirement for member’s accrued annual or sick leave days.

(a) For purposes of this section, an annual leave or sick leave day shall be the equivalent of eight hours of leave.

(b) Any member accruing annual leave or sick leave days may, after the effective date of this section, elect to use the days which stand to the member’s credit with the member’s last covered employment employer at the time of retirement to acquire additional credited service in this retirement system. The days shall be applied on the basis of one days’ credit granted for each one day of accrued annual or sick leave days, with each month of retirement service credit to equal 20 days and with any remainder of 10 days or more to constitute a full month of additional credit and any remainder of less than 10 days to be dropped and not used, notwithstanding any provisions of this code to the contrary. The credited service shall be allowed and not considered to controvert the requirement of no more than 12 months’ credited service in any year’s period.

(c) Members employed by any covered employment employer with a policy for the accrual of unused sick and annual leave which is more generous than that of the State of West Virginia for its state agency employees shall receive service credit only for accrued unused sick and annual leave as provided for by the State of West Virginia for state employees who are covered by the rules of the West Virginia Division of Personnel. If the member is paid in a lump sum for accrued unused leave, the Board shall not consider the lump sum payment as annual compensation in computing a member’s final average salary.

§8-12-26. Authorizing municipalities to create private outdoor designated areas.

(a) In addition to all other powers and duties conferred by law upon municipalities, municipalities are empowered and authorized to pass an ordinance establishing private outdoor designated areas as described in §60-7-8g of this code.

(b) The municipality shall include in the ordinance, at a minimum, the following:

(1) Requirements for the purpose of ensuring compliance with all state and municipal laws, and public health and safety within a private outdoor designated area;

(2) The proposed outdoor designated area or proposed licensed premises shall be indicated on a submitted map or survey in sufficient detail to identify the boundaries of the area, subject to the limitations in subsection (b) of this section;

(3) A general statement of the nature and types of qualified permit holders that may operate within the proposed outdoor designated area;

(4) That certain public property that is legally demarcated by the ordinance is within the proposed private outdoor designated area and such area complies with the comprehensive plan or zoning ordinances of the municipality, if the municipality has so adopted, for the consumption of liquor, wine, nonintoxicating beer, and nonintoxicating craft beer;

(5) The specific boundaries of the private outdoor designated area, including street addresses;

(6) The number, spacing, and type of signage identifying the private outdoor designated area;

(7) The days and hours of operation for the private outdoor designated area which may not be greater than, but may be less than authorized by §11-16-1 et seq. and §60-1-1 et seq. of this code, but may be less than;

(8) The estimated number of personnel needed to ensure public safety and efficient operations in the private outdoor designated area;

(9) A sanitation plan that will help maintain the appearance and public health of the private outdoor designated area, including the number of restrooms and trash receptacles;

(10) A requirement that liquor, wine, nonintoxicating beer, and nonintoxicating craft beer be served in non-glass containers, not greater than 18 fluid ounces, approved by the municipality and the commissioner as set forth in §60-7-8g of this code; and

(11) Public health and safety measures, and requirements to meet compliance with current health permitting and zoning requirements.

(c) The municipality shall provide to the commissioner notice of the approval of the private outdoor designated area and identify the qualified permit holders that will be applying for permits set forth in §60-7-8g of this code. As set forth in §60-7-2a of this code, a private outdoor designated area may simultaneously have multiple qualified permit holders as defined in §60-7-1 et seq. of the code, and is expressly authorized.

(d) The municipality shall be responsible for ensuring compliance with its ordinances and compliance with all criminal laws associated with the operation of a private outdoor designated area. The municipality shall provide the commissioner copies of all non-compliance and violations. The commissioner shall ensure all qualified permit holders operate in accordance with requirements set forth in §11-16-1 et seq. and chapter 60 of this code.

(e) The municipality shall have the authority to dissolve a private outdoor designated area by ordinance and further may suspend a private outdoor designated area immediately when in the interest of public safety.

§8-12-27. Prohibiting municipalities from imposing additional alcohol licensure fees.

Notwithstanding any provision of this code to the contrary, any person licensed under §11-16-1 et seq. of this code, shall not be charged any additional alcohol licensure fee by a municipality.

§8-22A-33a. Second special authorization for municipal police or firefighters hired after July 1, 2015.

(a) Notwithstanding any provision of this code to the contrary, any municipality or municipal subdivision that employs individuals as members of paid police departments or paid fire departments and whose current police officers or firefighters are participating in the Public Employees Retirement System may elect, as provided in same manner as provided in §8-22A-28(a) of this code, to become a participating public employer in the plan and thereby include its police officers and firefighters in the membership of the plan subject to the restrictions provided in this section.

(b) The municipality or municipal subdivision may elect to include only police officers or firefighters who have been hired on or after July 1, 2015, to become members of the plan. Police officers or firefighters hired before July 1, 2015, will remain members of the Public Employees Retirement System.

(c) The municipality or municipal subdivision must make its election on or prior to July 1, 2025.

(d) Once a municipality or municipal subdivision makes its election to become a participating public employer pursuant to this section, all police officers or firefighters hired by the municipality or municipal subdivision after the date of election shall be members of the plan: Provided, That police officers or firefighters hired by the municipality or municipal subdivision on or after July 1, 2015, who are members of the Public Employees Retirement System, may choose to become a member of the plan by notifying the municipality or municipal subdivision on a form provided by the Consolidated Public Retirement Board: Provided, however, That he or she make this decision within ninety days of the municipality or municipal subdivision’s decision to participate in the plan. A municipality or municipal subdivision making an election to become a participating public employer pursuant to this section that has hired any police officer or firefighter on or after July 1, 2015, shall notify each police officer or firefighter hired on or after July 1, 2015, of its election to become a participating public employer within thirty days of making the election. This notice shall include instructions as to how a police officer or firefighter may make notification to the municipality or municipal subdivision of his or her decision to become a member in the plan. The municipality or municipal subdivision shall notify the Consolidated Public Retirement Board in writing of any police officer or firefighter hired after July 1, 2015, who has decided to become a member of the plan and terminate his or her membership in the Public Employees Retirement System within thirty days of notification by the police officer or firefighter on forms provided by the Consolidated Public Retirement System.

(e) Notwithstanding any other provision of the code to the contrary, any police officer or firefighter hired by a participating public employer on or after July 1, 2015, who chooses pursuant to this section to be a member of the plan, shall be a member of the plan upon acceptance by the Consolidated Public Retirement Board of the notification by the municipality required by this section.

(1) The Consolidated Public Retirement Board shall transfer assets and service credit earned on or after July 1, 2015, from the Public Employees Retirement System Trust Fund into the West Virginia Municipal Police Officers and Firefighters Retirement Fund for those police officers or firefighters who elect to be a member of the plan and were members in the Public Employees Retirement System no later than sixty days from receipt of notification by the municipality or municipal subdivision of the police officer or firefighter’s election to become a member. The amount of service credit recognized by the plan for the transferring employees shall be the service credit transferred and recognized by the Public Employees Retirement System.

(2) The amount of assets to be transferred for each police officer or firefighter shall be computed as of the actuarial valuation date preceding the notification to the Consolidated Public Retirement Board by the municipality or municipal subdivision of the police officer or firefighter’s election to become a member and updated with seven and one-half percent annual interest to the date of the actual asset transfer. For purposes of this section, the actuarial valuation date is the most recent actuarial valuation of the Public Employees Retirement System approved by the Consolidated Public Retirement Board. The market value of the assets of the transferring employees in the Public Employees Retirement System shall be determined as of the end of the month preceding the actual transfer. To determine the computation of the asset share to be transferred, the Consolidated Public Retirement Board shall:

(A) Compute the market value of the Public Employees Retirement System assets using the actuarial valuation date;

(B) Compute the actuarial accrued liabilities for all Public Employees Retirement System retirees, beneficiaries, disabled retirees and terminated inactive members using the actuarial valuation date:

(C) Compute the market value of active member assets in the Public Retirement System as of the actuarial valuation date by reducing the assets value under paragraph (A) of this subdivision by the inactive liabilities under paragraph (B) of this subdivision;

(D) Compute the actuarial accrued liability for all active Public Employees Retirement System members using the actuarial valuation date immediately preceding the computation date;

(E) Compute the funded percentage of the active members’ actuarial accrued liabilities under the Public Employees Retirement System as of the actuarial valuation date by dividing the active members’ market value of assets under paragraph (C) of this subdivision by the active members’ actuarial accrued liabilities under paragraph (D) of this subsection;

(F) Compute the actuarial accrued liabilities under the Public Employees Retirement System as of the actuarial valuation date for active employees transferring to the plan;

(G) Determine the assets to be transferred from the Public Employees Retirement System to the plan by multiplying the active members’ funded percentage determined under paragraph (E) of this subdivision by the transferring active members’ actuarial accrued liabilities under the Public Employees Retirement System under paragraph (F) of this subdivision and adjusting the asset transfer amount by interest at seven and five-tenths percent for the period from the calculation date of July 1 through the first day of the month in which the asset transfer is to be completed.

(3) Any police officer or firefighter who elects to become a member of the plan must also pay to the plan a four percent contribution no later than June 30, 2027. The contribution shall be calculated as four percent of the member’s total earnings for which assets are transferred, plus interest of seven and one-half percent accumulated from the date of the police officer’s or firefighter’s initial participation in the Public Employees Retirement System through the calculation date. Installment payments may be made over no more than a twenty-four month period plus seven and one-half percent interest shall accrue on the outstanding balance due from the calculation date until paid in full.

(4) Once an employee transfers from the Public Employees Retirement System to the plan, the Public Employees Retirement System shall bar any further liability and said transfer will constitute an agreement whereby the transferring employee forever indemnifies and holds harmless the Public Employees Retirement System from providing him or her any form of retirement benefit whatsoever until that employee obtains other employment which would make him or her eligible to reenter the Public Employees Retirement System with no credit whatsoever for the amounts transferred to the plan.

§8-1-9. Reporting of fraud and misappropriations of funds.

(a) Whenever a governing body for a municipality, or any of a municipality’s boards, committees, or any other entities of any kind or nature authorized in this chapter, obtains information that an employee, officer, or member of the municipality, or any of a municipality’s boards, committees, or any other entities of any kind or nature authorized in this chapter may have misappropriated funds, engaged in fraud, or otherwise violated a law relating to the public trust, the governing body for a municipality, or the municipality’s board, committee, or other entity authorized in this chapter shall timely report that information or allegation in writing to the county prosecutor’s office, the Legislature’s Commission on Special Investigations and the State Auditor.

(b) The reporting of the information under subsection (a) of this section does not prevent, relieve or replace a report to a law-enforcement agency, if appropriate or warranted.