Among the amendments to the West Virginia Constitution to be considered by the state's voters in a special election on September 9, 1989, is the proposal that (1) counties may consolidate with other counties or parts thereof, (2) not less than three optional forms of county government may replace the single existing form, (3) the legislature may provide for county home rule, and (4) the legislature may provide for city-county consolidation. This proposed amendment, known as the "County Organization Reform Amendment," represents a bold step on the part of the West Virginia Legislature to provide the voters with means to alter or change their form of county government.
What do we mean by the term "consolidation" as used in this proposed amendment? Basically, the consolidation of counties, or a city and a county, means that they are united indistinguishably. The identity of at least one government is always extinguished and thiswill invariably affect the political and governmental machinery of the consolidated unit. If, for example, two counties were to consolidate, one county would disappear in its entirety. Where two separate counties existed before, after consolidation there would be one set of county officials, one county health board, one county courthouse, and the merged counties would become one in every legal respect. The same could also be said of citycounty consolidation, although the consolidation of a city and a county is somewhat more complex because the city and the county exercise somewhat different powers and functions. Neither county-county consolidation nor citycounty consolidation is presently allowed to the voters of the state and this proposed constitutional amendment would change that.
The purpose of this brief article is to examine this proposed amendment and certain of its ramifications so that the voters of the state may make a meaningful choice in casting their ballots "For" or "Against" the amendment. If the amendment is passed by the voters of the state, then it will be up to the legislature to spell out in subsequent legislative sessions precisely what the amendment means. This will be done by means of statutory law passed in the legislature. Thus, while there is no way to predict absolutely what the legislature will do, the practices and procedures of neighboring states are known, and we will hazard certain "guesses" asto what might be done in the West Virginia Legislature.
Present County Government in West Virginia
In order to understand the proposed constitutional amendment, it is first necessary to review the existing structure of county government in the state. In this manner, it is possible to make certain comparisons between the present structure of county government and what is proposed bythis amendment to the West Virginia Constitution.
When West Virginia became a state in 1863, there were 44 counties. Six additional counties joined with the adoption of the state constitution in 1863, and the remaining counties were created by the state legislature to make a total of 55 counties-the last being Mingo County, created in 1895. In essence, all 55 counties owe their creation and existence either to the Virginia or West Virginia legislature. The purpose of West Virginia counties is to fulfill "state functions"-that is, thosedutiesand responsibilities granted or assigned by the Constitution or the state legislature to county government. Indeed, under the present Constitution, legislative powerover county government is almost total and the counties are viewed basically as "agents of the state." Counties can do nothing without legislative approval.
At the same time, counties may perform certain optional duties orfunctions. These are usually called "local functions" and are granted by the state legislature to the counties by permissive legislation. Each county commission may or may not choose to perform these duties or functions. If a county commission chooses to do so, the legislative act must be followed. One example of a "local function" provided by the legislature is the power to engage in county planning or zoning, yet an overwhelming majority of counties have not chosen to utilize this power.
Counties are authorized under Article 9 of the West Virginia Constitution of 1872. Sections of this article make provision for the election of "constitutional officers" who are elected by the voters of each county. These include the county commissioners, a county clerk, a sheriff who is ex officio treasurer and tax collector, a prosecuting attorney, an assessor of property values, a land surveyor, and a clerk of the circuit court. Each officer is selected independently by the voters and, for this reason, it is said that county government is "d isi n teg rated "-that is, there is no single head of county government. Perhaps the nearest thing to a single head are the county commissioners who have power to approve and pass the county budget. This enables the county commission to exercise a modicum of control over other county officers but that control is by no means complete. The county commissioners, for example, cannot "fire" the sheriff or assessor or any other constitutional officer as their duties are generally fixed by the state legislature. There is one limitation on the creation of county government imposed on the state legislature by Article 9, section 8 of the West Virginia Constitution. This states:
No new county shall hereafter be formed in this State with an area of less than four hundred square miles; nor with a population of less than six thousand; nor shall any county, from which a new county, or part thereof shall be taken, be reduced in area belowfour hundred square miles, nor in population below six thousand....
Article 9, section 13 of the Constitution is somewhat more complicated but it provides the ability "to reform, alter, or modifythe county commission" following a petition from the county voters to the legislature and a referendum by those voters in that county on the question. The practical effect of this provision is only to allow counties the option of an increase in the number of commissioners abovethe minimum of three (Jefferson County, forexample, presently has eight).
The proposed amendment to the West Virginia Constitution would and does affect Article 9, sections 8 and 13 and also adds two new sections to be designated sections 14 and 15.
Counties May Consolidate
The proposed amendment allows a county to consolidate with another county or a "division of a county and the consolidation of the division ... with one or more counties." Moreover, the proposed amendment states that "No new county may hereafter be formed in this state except by the consolidation of counties."
The proposed amendment requires that a referendum must be held in each county proposing to consolidate. The vote must be favorable in both counties by a majority of voters casting ballots in each county. Except for the fact that each county, or parts thereof, shall be responsible for their respective liabilities, no other provision is made in this amendment regarding county consolidation. However, if this amendment is passed by the voters of the state, the legislature must provide for its implementation by state law.
Subsequent legislation to be enacted by the West Virginia legislature implementing this amendment is the crux of the matter. The legislature must provide a guide for the consolidation of counties. As this is provided for in otherstates, it is thought that the two county commissions, or agents thereof, would have to work out a consolidation agreementto be submitted to the voters of the participating counties. Minimally, this agreement would haveto providethe location of the new county courthouse, the name of the new county, the election and date for selecting new county officers, excess tax levies, the disposition of assets and liabilities, the county health unit, and resolutions passed by both counties. Not all of these items would necessarily be included in the consolidation agreement, but enough information should be given to county voters so that they might make an informed choice on the wisdom of consolidation.
One interesting aspect of the proposed amendment is the statement that "No new county may be formed except by consolidation." This constitutes a limitation on the power of the legislature because it surrenders legislative power to create new counties. In essence it "freezes" the number of counties at 55 and only by consolidation might that number be reduced. As such, it displaces the constitutional provision in Article 9, section 8 which provides that new counties can be formed only if there is an area of 400 square miles and a population of no less than 6,000.
It might be said, parenthetically, that few, if any, counties are likely to be consolidated immediately as a result of this amendment. The history of county-county consolidations in America is bleak and this amendment will not change that. Any county-county consolidation would require a favorable vote by citizens of both counties and the chances of that happening are very slim indeed. Still and all, it does remain as an option thaf is not presently given by the West Virginia legislature and it will be up to the voters of each county to decide on this aspect of the amendment.
Counties May Adopt Optional Forms of Organization
This provision constitutes an amendment to Article 9, sections 9-13 of the West Virginia Constitution. There are three parts to this amendment dealing with the organization of county government that allows certain optional forms to come into being if the voters of the county so wish. These forms are (1) the county manager form or the county executive form, (2) the traditional or existing form of county government, and (3) a form which provides for "the consolidation of the officers and functions of one or more elected county officers." Once again, the West Virginia legislature mustactto implementat least these three optional forms, provided, of course, the voters approve this constitutional amendment.
The first option provides for either a county manager or a county executive. Neither exists in West Virginia at the moment, but, drawing on the experience that exists in other states , there is a significant difference between thetwo. In the county manager form, there is usually a professional manager trained in the art and science of public administration. This is not a prerequisite but it is generally true. The county manager is hired by the county commission and serves an indefinite term at the will and pleasure of the commission. A county manager can be fired or removed at any time by a simple vote of the county commission. On the other hand, a county executive is an elected official and is chosen by the voters of the county. In both cases, however, the county commission is the legislative body and the manager or county executive heads the administrative branch. Both forms have the effect of administratively integrating county government under a single person.
The county manager and the county executive forms are neither new nor recent. States such as Arizona, Maryland, Florida, and Virginia presently use the county manager or county executive forms although not exclusively for all counties in thosestates. Thecounty managerand thecounty executive forms usually exist in counties with larger urban populations where the county provides services typically handled by city government and where the county budget is sufficient to hire a county manager or support a county executive. Although it is something of a guess, probably no more than five counties in West Virginia-Kanawha, Cabell, Ohio, Wood, and Berkeley-would be at all interested in such a plan.
If the county manager or the county executive plan were adopted in any county, how would this affect the constitutional officers in those counties? What would happen to the assessor or the sheriff or the county clerk? Would the duties of these officers be reduced orgiven overto the county manager or county executive? This, of course, is up to the legislature to decide, presuming the amendment is passed by the voters. But one guess that might be hazarded is that these offices would be affected very little. There is a very slim possibility that the sheriff's tax division might be transferred to the county manager or the county executive. However, making radical changes would necessitate the modification of a wide range of statutory law and this is not likely to be undertaken by the legislature.
What would the county manager or the county executive actually do? Once again, the question is problematical but the manager or executive would basically oversee the performance of "local" functions of county government. The manager or executive could be charged with drawing up a county budget and the authority to hire and fire personnel. In addition, the manager might serve as a liaison between the various county boards, or, upon the advice of the commission, undertake certain plans for the consolidation of sewer and/or water systems. The precise nature of the manager's duties would be up to the state legislature and it is somewhat idle to speculate on whatthose duties orfunctions should be. However, a county manager or a county executive should provide somewhat greater administrative integration in county government and should be able to inform the voters where the county is going and why.
The traditional form of government is the second option and this will probably be the most appealing to counties in West Virginia. In the language of the proposed amendment, this will be the "organization and government ... in effect in the counties upon the date of the enactment of this amendment." This includes all of the officers mentioned in Articles8 and 9 of theWestVirginia Constitution. In essence, county government will go on with no change and it is presumed that the county voters will not have to readopt their traditional form of county government.
The third option posed bythisamendment providesforthe "consolidation of the officesand thefunctions of oneor more elected county officers provided for in the constitution and general laws ... when this amendment takes effect." The proposed amendment does not specify what those functions are or what offices shall be involved. This is left "open ended" and it is up to the discretion of the legislature. The offices are (1) the clerk of the circuit court, (2) the county clerk, (3) the prosecuting attorney, (4) theassessor, (5) thesheriff, and (6) the county commission.
By way of example, however, the West Virginia legislature might continue to allow counties to combine the offices of clerk of the circuit court and the county clerk. This is done, for instance, in the Commonwealth of Virginia where a single clerk performs the functions of both the clerk of the circuit court and the county clerk. On the other hand, since the current W.V. Code 7-7-4 and 7-7-7 permits counties to combine the clerks' offices, and since few counties have availed themselves of this option, it is not likely that the duties of the constitutional officers would be changed greatly for any particular county by the adoption of this amendment.
County Home Rule
County home rule is provided for in this proposed amendment by the following language: "Any of such forms of organization and governments may provide that counties have the power to pass such laws and ordinances relating to their local affairs as the Legislature may authorize."
West Virginia counties technically do not now have what is commonly known as "home rule." Most county functions are classified as "state functions" rather than "local." Counties under this amendment may have the option to adopt home rule legislation-that is, counties may or may not choose to adopt certain functions orduties allowed tothern bythestate legislature. By way of a simple example, West Virginia counties do not now have the power to install street lights in residential areas of the county. But, under home rule legislation, this power might be granted to counties. Therefore, if the county chose to utilize this "home rule" option, it would be available provided the legislature passed it.
Here again, one can only hazard a guess as to what powers or functions the legislature might assign to the county. But it is certain that the legislature is not likely to diminish those powers and functions which counties already have been given, as, for example, the option to provide sewers, garbage collection, f ire service, public transportation, ambulance and health services, zoning, parks and recreation, and economic development, among others.
City-County Consolidation
This proposed constitutional amendment states:
The Legislature shall provide by law that two or more municipal governments or municipal and county governments may be merged into one consolidated government with one set of officers but, as to a municipal and county merger into one consolidated government, the county shall remain as a geographical area after such consolidation. (Emphasis added.)
First, contrary to what might be an initial interpretation, this portion of the amendment does not allow for the consolidation of cities as cities already may consolidate pursuant to the Code of West Virginia, sections 8-8-1 to 8-8-18. This simply allows one or more municipalities to join the proposed consolidation with a county.
But, secondly, what is meant by the phrase "the county shall remain as a geographic area after consolidation?" Does it mean that in a merger, the city would retain its name? This has occurred in most consolidations such as Lexington, Kentucky; Jacksonville, Florida; Nashville, Tennessee; and Virginia Beach, Virginia. Or does it mean that the city government would be extinguished? The term "geographic area" has no meaning in law and it might have been better had the amendment used the phrase "political subdivision" or "sole unit of government" in place of "geographic area." However, for our purposes here, it may be assumed that the city of consolidation would disappear, and the former city would be governed by the county commission. In any city, then, the offices that would "disappear" would be the city council, the mayor, and the city manager if that is provided for, and the city clerk or recorder. County government would assume the burden of running the former city. Of course, if this amendment passes, interpretation of the phrase 11 geographic area" would be left up to the state legislature and then it will be known positively what it means.
Fortunately, the proposed amendment gives broad powers to the county commission. The amendment states:
. . . the officers or government bodies of such governments may exercise any powers vested in, or perform any duties imposed upon, counties and municipalities and their offices and officers by this constitution or by general laws.
If we were dealing with a small town, city-county consolidation would represent a minor problem. But with a city of some size, say about 25,000 people, it would be another matter. A city-county consolidation would most likely necessitate the adoption by the county voters of the county manager plan or the county executive form of government and this would have to precede any city-county consolidation. Under traditional county government, there would be no way to carry out, coordinate, and direct the day-to-day activities of the former city government. The maintenance of streets, planning and zoning, police and fire matters, and financial problems pertaining to the former city would be but a few of the problems affecting formercity residents. "Urban" counties no doubt would want to consider the manager or executive form in the event that a serious consolidation movement develops.
In a city-county consolidation, there would have to be a priorstudy on the wisdom and effectsof consolidation bythe city council and the county commissioners. This may be clonejointly by appointed agents of thecityand the county or joint meetings of the city council and commissioners themselves. This might be termed the "initiation phase" of consolidation wherein both parties examine closely the act to be passed by the West Virginia legislature allowing consolidation. Clearly, this act is absolutely critical to any consolidation. Whilethere are no hard and fast guidelinesfor making consolidation attractive to both parties, it is a fact that consolidation must satisfy both parties politically and administratively. Essentially, the actto be passed bytheWest Virginia legislature should allow for wide flexibility in allowing the city and the county to work out problems.
One such problem is the differing taxes levied by the county and the city. While both provide for a tax on property, municipal taxation involves such things as a business and occupation tax, the public utilities tax, and the city garbage fee which is not levied by counties. Fortunately, the proposed amendment provides for different levels of taxation according to the services provided. The amendment states:
The Legislature may provide that such consolidation governments may have all or any part of the combined taxing powers of municipalities and counties, that such consolidated governments may establish taxing districts within their jurisdiction in which different rates of taxes may be imposed based upon the type of services within each district....
In other city-county consolidations, this has meant that two or three different taxes have been levied within the consolidated county. Basically, for the consolidation in Lexington, Kentucky, this has meant three levels of taxes by districts in the county. The lowest taxes are in the general service area and that includes rural areas. The next highest level is partly urban and partly rural where the residents receive some but not all of the urban services. And the highest level is the former city. This is, of course, illustrative, but the West Virginia legislature must provide for taxing districts for a consolidated county.
The taxing power is extremely important in consolidation matters and the proposed amendment wisely allows for special taxing districts. The nature and scope of taxing districts should be known in advance of the referendum on consolidation if merger is to have any chance of succeeding. Here is where maximum flexibility comes into play by the proposed legislative act by the West Virginia legislature. The nature and scope of the taxing districts must be left up to a "consolidation agreement" proposed by both thecity council and the county commission prior to the referendum on consolidation by the voters of the city and county. The consolidation agreement would be a document which the voters could examine.
There is perhaps a "constitutional problem" regarding the taxation of real property in West Virginia. Oddly enough, this might benefit taxpayers of the former city. The Constitution in Article 10, the Property Tax Limitation Amendment of 1932, specifies that all property inside municipalities may be taxed at the rate of $2.00 per $100.00 of assessed valuation and this is termed Class IV property. However, if consolidation were to occur and the city would disappear, then the municipal tax rate would not apply. Rather, it would be at the county tax rate for Class 11 property in which the rate is $1.00 per $100.00 of assessed valuation in homes occupied by the resident, or Class I I I property at the rate of $1.50 per $100.00 of assessed valuation in the case of mobile homes. Most all cities do levy at the maximum tax rate of $2.00 per $100.00and this might createa problem of municipal finance.
Elections are provided for in both the city and the county by a majority vote in each jurisdiction. In other words, the residents of the city vote "For" or "Against" consolidation and county residents likewise cast a similar vote. The vote must be favorable in both jurisdictions for consolidation to occur. The proposed amendment is precise on this matter. The amendment states:
No county government shall conduct an election on a merger pursuant to this section without first receiving consent from a majority of the members of the governing body of any municipality proposed to be included in said consolidated government.
No such consolidated government may be formed without the consent of a majority of the electorate voting upon the question and residing within the boundaries of each incorporated municipality that is proposed to be merged into a consolidated government and a majority of the electorate voting upon the question and residing within the boundaries of the proposed consolidated county and not within the boundaries of any incorporated municipality included in the proposed consolidation.
For city-county consolidation to occur, there will have to be a multitude of practical problems worked out before the voters choose in referendum. For example, how will the former city policemen be joined with the county sheriff's office and who would do what? What will be done with paid firemen in former cities as opposed to volunteer companies that exist in the county? What will be done about the pay scales, retirement, and benefits paid to former city workers? All of these things, and more, will have to be worked out with some guidance from the state legislature.
Finally, if consolidation is to occur, the West Virginia legislature will have to do something about annexation law and practice as it currently exists in West Virginia municipalities. This will mean that the former city or cities must be rendered "annexation proof." That is to say that a former city that engaged in consolidation should not be subjected to annexation by a city or town which chose to remain apart from the consolidation.
Although somewhat peripheral to the purposes of this article, and based upon consolidation experience in other states, at least three elements must converge in order to win voter approval for consolidation. These are (1) there should be substantial approval of consolidation by the city council, the county commission and their respective employeesboth politically and administratively, (2) the proponents of consolidation will have to work actively on its behalf to explain and defend consolidation with both city and county voters, and (3) some sort of a "local crisis" may be necessary to point up the need for consolidation-such as widespread corruption as occurred in the City of Jacksonville and the concomitant loss of public school accreditation in surrounding Duval County.
The first of these would seemingly be obvious-the city council, the county commission and most employees would have to agree that consolidation was in the interest of all parties and that no overt opposition would be forthcoming. Secondly, the proponents of consolidation should participate actively in meetings with city and county voters to explain and defend the proposal. All too frequently, consolidations have failed because of inattention by proponents to the political and administrative details of merger. Persons giving their time to consolidation should be both knowledgeable and candid with the voters as to what will happen when and if consolidation occurs. Third, and finally, it would be helpful to consolidation if there were some sort of "local crisis" that merger might solve. In the Nashville-Davidson County merger, for example, there was a significant annexation threat by the City of Nashville and the infamous "green sticker tax" to be levied on county residents by the City of Nashville for the privilege of parking any car in city parking lots.
It is apparent, then, that even if the proposed amendment is passed by the voters of West Virginia, city-county consolidation will be exceedingly difficult to achieve.
Conclusions
This proposed amendment is not necessarily unique. Half of the states have enacted similar proposals either by statutory law or by their state constitution. Moreover, it should be stressed that if this amendment were passed by the voters of West Virginia, it wi I I in noway automatically alter the form of government that exists in any county. More properly, it will allow the voters of a county to change their form of government at a future time if they wish to do so.
Issues such as those presented by this amendment have been around in West Virginia for some time. Questions regarding city-county consolidation, forexample, have been raised previously by residents in Kanawha County, Ohio County and Berkeley County onlyto learn that nothing could be done for lack of statutory authority. This amendment, if passed, will serve to quiet these complaints. At least, the proposed amendment and subsequent legislation would allow counties to explore these options. But, as we have attempted to note, the barriers to county-county consolidation, to adopting optional forms of county government, or to city-county consolidation are immense and formidable.
The proposed amendment represents a significant step on the part of the West Virginia legislature to modernize county government. It has been charged by some that county government is archaic, out of date with the times, and that county government represents "the dark continent of American politics." This is not necessarily true. County government is now performing more and different functions than in the past and performing those functions reasonably well. The proposed amendmentwill allowsome governments to perform these functions even better and it will make county government more responsive to county citizens. The choice is up to the voters of West Virginia.