Pancake, 032919 WVAGO, AGO 032919

Docket Nº:AGO 032919
Case Date:March 29, 2019
Court:West Virginia
The Honorable F. Cody Pancake, III
AGO 032919
No. 032919
West Virginia Attorney General Opinion
State of West Virginia Office of the Attorney General
March 29, 2019
         The Honorable F. Cody Pancake, III          Mineral County Prosecuting Attorney          P.O. Drawer 458          Keyser, WV, 26726          Dear Prosecutor Pancake:          You have asked for an Opinion of the Attorney General concerning the requirements under state law to remove a city council member from office. This Opinion is being issued pursuant to West Virginia Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely on the factual assertions in your correspondence with the Office of the Attorney General.          In your letter, you indicate that the Keyser City Council ("City Council") voted last year to remove a member from office. You explain that your office has received a complaint about whether the process used to remove this member complied with applicable law. As we understand from our communications with your office and publicly available information, the City Council adopted a resolution purporting to remove a member from office on the grounds of "conduct unbecoming an elected official, slanderous remarks, and creating a hostile work environment." The City Council indicated that in taking these actions it relied on a provision in Keyser's city charter governing removal of city council members.          Your letter raises the following legal question:
May a city council remove a member pursuant to the process set forth in the city's charter if that process conflicts with the process for removing municipal officers established by state law?
         We conclude that cities may set procedures by which a city council may remove one of its own members from office, provided that such process does not conflict with state law. Here, where it appears that the City Council purported to remove a member in a manner directly at odds with applicable state law—specifically, the process outlined in West Virginia Code § 6-6-7—the state law process controls.          Discussion          The West Virginia Constitution...

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