Can a West Virginia city council remove one of its own members by a vote under the city's charter, or does it have to follow the state-law removal process?

Plain-English summary

Mineral County's prosecutor asked the AG about a removal that had happened in Keyser. The Keyser City Council had voted to remove one of its own members for "conduct unbecoming an elected official, slanderous remarks, and creating a hostile work environment." The Council relied on a removal procedure in the city charter. After the fact, the prosecutor's office got a complaint and asked whether the charter-based removal was lawful.

Attorney General Patrick Morrisey said no. The state-law process in W. Va. Code § 6-6-7 governs removal of any elected municipal officer for cause, and a charter cannot supplant it. The opinion's reasoning has two parts.

Part 1: Home rule has limits. West Virginia gives municipalities broad "home rule" authority under W. Va. Const. art. VI, § 39(a) and W. Va. Code § 8-12-2(a) to handle their own affairs by charter or ordinance. But that authority extends only as far as state law allows. A charter provision is "invalid and void if inconsistent or in conflict with the constitution or the general laws of the state." A charter that addresses the same general topic as a state law is fine, if the two can coexist. A charter that contradicts state law is void in the area of conflict.

Part 2: Section 6-6-7's specific procedure. The statute applies to any "county, school district, or municipal office" elected or appointed. City council members count, per Papandreas v. Kawecki (2017). The grounds are "official misconduct, malfeasance in office, incompetence, neglect of duty or gross immorality" plus "any of the causes or on any of the grounds provided by any other statute." But the process is mandatory and strictly construed:

1. Initiation. Removal must be initiated by a duly enacted resolution of the governing body, by the prosecuting attorney, or by petition of a qualified number of citizens.
2. Filing. If initiated by resolution, the clerk must file a certified copy with the circuit court within five business days.
3. Prosecution before a three-judge panel.
4. Decision. Only the court can actually remove the officer, and only upon "satisfactory proof of the charges by clear and convincing evidence."

The Keyser process skipped most of that. Even granting that the Council's vote could have served as the initiating "duly enacted resolution," there was no filing with the circuit court, no three-judge proceeding, and no judicial removal order. The charter procedure that omitted those steps directly conflicted with § 6-6-7 and was therefore unenforceable. Any action taken under it was void.

The opinion compared the situation to Miller v. Palmer, where a local provision created an easier path for challenging municipal service fees than state law allowed and was struck down for direct conflict. It distinguished Stamm v. City of Salem, where a local forfeiture-for-ineligibility procedure could coexist with § 6-6-7's removal-for-cause process. The Keyser case did not have that kind of coexistence. Both the charter and § 6-6-7 governed removal of a council member for cause, so the more demanding state procedure controlled.

A footnote in the original opinion clarified that § 6-6-7 only governs involuntary removal. An officer can still resign voluntarily even when the council's removal procedure is legally invalid.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What grounds does § 6-6-7 list for removal?
A: "Official misconduct, malfeasance in office, incompetence, neglect of duty or gross immorality." The statute also captures "any of the causes or on any of the grounds provided by any other statute," so other statute-based removal grounds can apply, but the procedure stays the same.

Q: Can residents petition to remove a council member?
A: Yes. Section 6-6-7(b)(2)(C) allows initiation by petition of "a qualified number of citizens." The exact number is set by the statute, which the opinion does not quote in full. A prosecutor's office or local attorney can advise on the specific signature threshold.

Q: Who actually removes the officer once the process starts?
A: A three-judge panel of the circuit court, not the local body. Section 6-6-7(g) is explicit: the court "shall remove" the officer "upon satisfactory proof of the charges by clear and convincing evidence." Local councils cannot remove their own members for cause.

Q: Is the standard of proof high?
A: Yes. Clear and convincing evidence, which is more demanding than the preponderance standard used in most civil cases. The Supreme Court of Appeals in Smith v. Gooby called removal "a drastic remedy" that requires strict construction of the statute.

Q: Can a charter say something different about removal grounds, even if the procedure is the same?
A: This opinion did not need to reach that question, because Keyser's charter conflicted on procedure. But the broader framework, charter cannot conflict with state law, suggests that adding new grounds inconsistent with § 6-6-7 would also fail. Charters can address topics outside § 6-6-7 (like Stamm's forfeiture-for-ineligibility procedure) without triggering preemption.

Q: What happens to the council vote that purported to remove the member?
A: It was void as to the removal itself. The opinion didn't say what should happen next mechanically (whether the member can return to active duty, whether the seat is treated as vacant, whether a new initiation is needed), because those questions depend on facts beyond the opinion's scope. But the bottom line is that the member was never legally removed by the council's action.

Q: Could the Council still try to remove the member properly?
A: Yes. The Council could pass a fresh "duly enacted resolution" initiating the § 6-6-7 process, get it certified to the circuit court within five business days, and present its case to a three-judge panel under the clear-and-convincing-evidence standard. The process is not blocked, just procedural.

Background and statutory framework

The factual core: in 2018, Keyser City Council voted to remove a member for conduct-related grounds, citing the city charter's removal procedure. The complaint reaching the prosecutor questioned whether that procedure was legally valid.

The legal framework is the West Virginia balance between home rule and state preemption.

Home rule authority. W. Va. Const. art. VI, § 39(a) gives municipalities "plenary power and authority... to provide for the government, regulation and control of the city's municipal affairs." W. Va. Code § 8-12-2(a) confirms that authority. Both provisions explicitly cap home rule at "consistent with the Constitution and state law."

Conflict-preemption doctrine. The Court has applied this in different ways:
- Miller v. Palmer (1985): a local fee-challenge procedure more lenient than state law was struck down.
- Stamm v. City of Salem (2013): a local forfeiture-for-ineligibility procedure was upheld as a different topic from § 6-6-7's removal-for-cause.
- State ex rel. City of Charleston v. Hutchinson (1970), State ex rel. Constanzo v. Robinson (1920), and Marra v. Zink (1979): general principle that conflicting local laws "must fail."

Section 6-6-7 procedure. The opinion lays out the four mandatory steps: initiation, filing with the circuit court, three-judge prosecution, and judicial removal. Smith v. Gooby (1970) reversed a circuit court's removal because the proof did not meet the statutory standard, illustrating the "drastic remedy" framing and strict-construction approach.

Council members are covered. Papandreas v. Kawecki (2017) applied § 6-6-7 to a Morgantown City Council removal petition, confirming that elected council members count as municipal officers.

Citations and references

Constitutional and statutory authority:
- W. Va. Const. art. VI, § 39(a) (home rule)
- W. Va. Code § 5-3-2 (AG advice to prosecutors)
- W. Va. Code § 6-6-7 (removal of municipal officers; full procedure)
- W. Va. Code § 8-12-2(a) (municipal plenary power, with limits)
- W. Va. Code §§ 8-5-7, 8-5-9 (council elections, terms)

Cases:
- Miller v. Palmer, 175 W. Va. 565, 336 S.E.2d 213 (1985)
- Stamm v. City of Salem, 2013 WL 6604855 (W. Va. Dec. 16, 2013) (mem. decision)
- Papandreas v. Kawecki, 2017 WL 383782 (W. Va. Jan. 27, 2017) (mem. decision)
- Smith v. Gooby, 154 W. Va. 190, 174 S.E.2d 165 (1970)
- State ex rel. City of Charleston v. Hutchinson, 154 W. Va. 585, 176 S.E.2d 691 (1970)
- State ex rel. Constanzo v. Robinson, 87 W. Va. 374, 104 S.E. 473 (1920)
- Marra v. Zink, 163 W. Va. 400, 256 S.E.2d 581 (1979)

Source

• Landing page: https://ago.wv.gov/media/17711/download?inline
• Original PDF: https://ago.wv.gov/media/17711/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

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 grants municipalities "home rule authority," which empowers them to "pass all laws and ordinances relating to [their] municipal affairs." W. Va. Const. art. VI, § 39(a). Broadly speaking, home rule gives cities "plenary power and authority . . . to provide for the government, regulation and control of the city's municipal affairs" through charter provisions or ordinance. W. Va. Code § 8-12-2(a). Nevertheless, this power extends only to actions consistent with the Constitution and state law; any municipal "charter or amendment thereto, and any [city] law or ordinance" is "invalid and void if inconsistent or in conflict with the constitution or the general laws of the state." W. Va. Const. art. VI, § 39(a); see also W. Va. Code § 8-12-2(a) (cities have plenary power "by charter provision [or] ordinance" "not inconsistent or in conflict" with the Constitution or general laws).

The requirement that municipal charters and codes may not conflict with state law is generally interpreted to mean that any local law squarely contradicting state law is void. By contrast, a charter provision or municipal code will not be invalidated simply because it addresses the same general topic as a state statute or constitutional provision; the laws must actually be "inconsistent or in conflict." W. Va. Const. art. VI, § 39(a). For example, the Supreme Court of Appeals invalidated a local provision that established a process by which voters could challenge municipal service fees that was more lenient than the process governing the same issue under the West Virginia Code. Miller v. Palmer, 175 W. Va. 565, 569, 336 S.E.2d 213, 217 (1985). The Court reached the opposite result when addressing a challenge to city charter procedures by which municipal officers who become ineligible to hold office are forced to forfeit their offices. Stamm v. City of Salem, 2013 WL 6604855, at 2 (W. Va. Dec. 16, 2013) (mem. decision). There, the Court found no direct conflict with state law: As discussed more below, West Virginia Code Section 6-6-7 sets forth the process for removing a municipal officer for cause. The challenged local provision involved "forfeiture of office due to ineligibility," distinctions the Court found sufficient to deem the local law consistent with Section 6-6-7. Id.* (emphases added).

Where a local ordinance or charter does, in fact, conflict with state law, that provision is "unenforceable." State ex rel. City of Charleston v. Hutchinson, 154 W. Va. 585, 593, 176 S.E.2d 691, 696 (1970) (quoting Syl. pt. 2, State ex rel. Constanzo v. Robinson, Judge, 87 W. Va. 374, 104 S.E. 473 (1920)); see also Syl. pt. 2, Miller 175 W. Va. at 566, 336 S.E.2d at 214 ("In the event of an inconsistency or conflict between a provision of a city charter and a general law, the latter will prevail"); Marra v. Zink, 163 W. Va. 400, 404, 256 S.E.2d 581, 584-85 (1979) ("If a city charter provision conflicts with either our Constitution or our general laws, the provision, being the inferior law, must fail."). Similarly, any action a city council takes under color of an unenforceable ordinance or charter provision is void. See State v. Robinson, 87 W. Va. 374, 104 S.E. 473, 476-77 (1920) (writ of prohibition issued to prohibit prosecution under an ordinance that contradicted a state statute).

As relevant to your question, West Virginia Code Section 6-6-7 governs the removal process for individuals "holding any county, school district, or municipal office," elected or appointed, where the office's "term or tenure" is "fixed by law." W. Va. Code § 6-6-7(a). The statute further provides that these officers may be removed "in the manner provided in this section for official misconduct, malfeasance in office, incompetence, neglect of duty or gross immorality or for any of the causes or on any of the grounds provided by any other statute." Id. City council members are elected "municipal officers" subject to these procedures. Papandreas v. Kawecki, 2017 WL 383782, at 4 (W. Va. Jan. 27, 2017) (mem. decision) (applying the Section 6-6-7 framework to an appeal involving a petition to remove Morgantown City Council members); see also* W. Va. Code §§ 8-5-7 (providing for election of council members), 8-5-9 (fixing term of office for municipal officers).

Because "[t]he remedy for the removal from office of a public officer is a drastic remedy," Section 6-6-7 "is given strict construction." Syl. pt. 2, Smith v. Gooby, 154 W. Va. 190, 190, 174 S.E.2d 165, 167 (1970) (reversing circuit court and ordering officer be reinstated). The removal process may be initiated only by "a duly enacted resolution of the governing body of the municipality," "the prosecuting attorney of the county," or a petition by a qualified number of citizens. W. Va. Code § 6-6-7(b)(2)(A)-(C). Once a removal is initiated through one of these means, it must be prosecuted. In cases where removal is initiated by resolution, a certified copy of the resolution must be "served by the clerk of the . . . municipal governing body upon the circuit court in whose jurisdiction the officer serves within five business days." Id. § 6-6-7(c). The governing body is then responsible for prosecuting the removal before a three-judge panel. Only the court has authority to remove the officer: the court "shall remove" the individual from office "upon satisfactory proof of the charges by clear and convincing evidence." Id. § 6-6-7(c), (g); see also Syl. pt. 3, Smith, 154 W. Va. at 190, 174 S.E.2d at 167 ("[Section 6-6-7] expressly requires that to remove a person from office the charge against him must be established by satisfactory proof.").

It does not appear that the City Council complied with the Section 6-6-7 process. Even assuming that the vote to remove the member in question satisfied the requirement to initiate removal of an officer through a "duly enacted resolution of the governing body of the municipality," there is no indication that the removal process was completed. The City Council does not appear to have served a copy of the resolution on the circuit court in Mineral County, nor proven the charges against the member in question before a three judge panel. And because only the court may remove an officer pursuant to the statute, the removal process here was incomplete.[^1]

[^1]: We note that the Section 6-6-7 process applies only to involuntary removal; an individual may choose to resign from municipal office even in circumstances where removal proceedings do not comply with state law.

The critical question, then, is whether the City Council's alternate process for removing council members is "inconsistent or in conflict with" Section 6-6-7. We conclude that it is.

This situation is not like Stamm, where the local law related to a separate (albeit related) topic than that addressed under state law. There, the local process governing forfeiture of office due to ineligibility could coexist with the state-law process for removing an officer for cause. The same is not true here: Section 6-6-7 and Keyser's local code both govern removal of municipal officers for cause. Following the local process necessarily omits elements of the state-law process, creating a direct conflict with state law. And just as a local process for challenging municipal service fees could not stand in the face of a more stringent state law governing that same process in Miller, so too for a local provision for removing city council members that omits Section 6-6-7's evidentiary standards and judicial oversight. Thus, because municipalities' powers do not extend to specifying removal procedures for cause that are inconsistent with Section 6-6-7, the City Council cannot rely on local provisions allowing for removal of a council member solely by vote of the remaining members.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

Thomas Lampman
Assistant Attorney General