Although the one-sentence description of home rule is that it gives municipalities more freedom to pass their own local regulations and ordinances, there are a few important caveats and exceptions where the rubber meets the road.
State Control of Local Rule
One of the most significant is that the West Virginia Municipal Home Rule Board decides whether municipalities can become home rule communities in the first place, based on written plans outlining what they plan to do with home rule – the state’s way of maintaining some regulatory control over home rule cities.
Municipalities apply to the board, submitting their written plans, and are either approved or rejected. (The Municipal Home Rule Pilot Program of 2007 allowed for five cities to be approved as the state’s first home rule communities. But only four applied – Wheeling, Bridgeport, Charleston and Huntington – and they were all approved.)
Prior to 2015, the West Virginia Municipal Home Rule Board also approved or rejected each individual regulatory change proposed by home rule communities. New legislation in 2015 eliminated that provision, though the board will continue to evaluate any amendments to the written plans submitted by home rule communities.
And, although Home Rule gives municipalities the authority to implement ordinances, acts, resolutions, rules and regulations without regard to state laws, there are important restrictions. Proposals must comply with the U.S. Constitution, the West Virginia Constitution, federal law, chapters 60A (“uniform Controlled Substance Act”), 61 (“Crimes and Their Punishment”), and 62 (Criminal Procedure”) of the West Virginia Code.
Local Enforcement Officers
Proposed changes to Home Rule regulations this year is aimed at ensuring that cities are not able to license their own police and fire officers. After Clarksburg and Bridgeport used Home Rule to certify their own local code enforcement officers, effectively bypassing the authority of the West Virginia Fire Commission, concerns were raised that this could open the door to cities also accrediting other public safety personnel.
Senate Bill 441, which gets its first reading on the Senate floor today, would prevent cities and towns from certifying public safety officials, if the State of West Virginia has already established the process for certifying those officials.
Fees and Taxes
The current legislation on Home Rule also contain restrictions on tax increases. Municipalities are capped at sales tax increases of 1 percent. And if they do institute a sales tax they must also reduce or eliminate the city’s municipal business and occupation (B&0) tax.
Municipalities may not use home rule powers to pass an ordinance, act, resolution, rule or regulation that affects people outside the boundaries of the municipality, or enact a tax or fee payable by a nonresident of that municipality.
Of the 34 Home Rule communities, 27 have implemented a local taxing initiative. Two other cities – Morgantown and Shinnston – have a sales tax increase in their home rule plans, but are yet to implement such plans.
The reality in play here is that home rule does not circumvent existing democratic procedures, and political and social pressures – all home rule proposals still have to pass a vote of the municipal council.