• County Board Submission of Excess Levy Proposals to County Commissions
  • January 25, 2017
  • Law Firm: McCormick Barstow Sheppard Wayte Carruth LLP - Fresno Office
  • Q. What is supposed to happen after a county board of education (“Board”) adopts an Order proposing an excess levy be submitted to a vote in the District at the general election pursuant to W.Va. Code § 11-8-16?

    Answer: The practice of submitting this and other Orders to the County Commission (“Commission”) of the same county appears to have a long history with an unknown origin. It is understandable that this information is transmitted to the Commission so that the Commission is apprised of the activities of the Board and the addition of the levy on the upcoming ballot by the County Clerk. However, Commission does not have authority to “reject” or “deny” the duly adopted Order of the Board and any such vote of the Commission to “reject” or “deny” the Order has no legal effect.

    As a local levying body, the Board is empowered by statute to call for an election to increase the levies by entering on its record of proceedings an order setting forth the following seven statutory requirements:

    (1) The purpose for which additional funds are needed;
    (2) The amount for each purpose;
    (3) The total amount needed;
    (4) The separate and aggregate assessed valuation of each class of taxable property within its jurisdiction;
    (5) The proposed additional rate of levy in cents on each class of property;
    (6) The proposed number of years, not to exceed five, to which the additional levy applies;
    (7) The fact that the local levying body will or will not issue bonds, as provided by this section, upon approval of the proposed increased levy.

    W. Va. Code § 11-8-16.

    Pursuant to the Order, and applicable law, the County Clerk and the other two members of the County Board of Ballot Commissioners must place the Proposed Excess Levy on the official ballot for the upcoming election in the county. Relevant state law provides that the board of ballot commissioners for each county (i.e., the county clerk, ex officio, plus two other members, one each appointed by each of the two major political parties’ respective executive committees) shall provide the ballots and sample ballots necessary for conducting every election in which the voters of the county participate. Additionally, the officers conducting the general election at each place of voting have a statutory obligation to conduct the election ordered by the Board on the question of the school levy and canvass and certify the result thereof to the commissioners of the county court in the same manner, so far as applicable, as they are required to conduct and certify the result of the general election.

    As a result, while providing the Order to the Commission, as a courtesy, the Board should provide the Order to the County Clerk and request that the County Clerk convene the County Board of Ballot Commissioners to complete the duties required to ensure the levy is appropriately placed on the ballot for an election by the voters.

    To do otherwise would be to erroneously permit the Commission to substitute its judgment in place of the judgment of the Board and, more egregiously, the ultimate judgment of the voters of the District.