When 10% of qualified voters petition the county commission to impose a fire service fee under W. Va. Code § 7-17-12, does the commission have to impose the fee, or can it still say no?

Plain-English summary

The Wood County Commission and the Wood County Fire Board disagreed. The Fire Board read W. Va. Code § 7-17-12 to obligate the Commission to impose a fire service fee whenever 10% of qualified voters petition for one. The Commission read the same statute to give it discretion. The county prosecutor asked the AG.

The AG sided with the Commission.

Statutory anatomy. § 7-17-12 has three moving parts:

• Plenary authority clause: "Every county commission which provides fire protection services has plenary power and authority to provide by ordinance for the continuance or improvement of such service, to make regulations with respect thereto and to impose by ordinance, upon the users of such services, reasonable fire service rates, fees and charges to be collected in the manner specified in the ordinance."
• 10% petition condition precedent: "However, before a county commission can impose by ordinance, upon the users of such service, a reasonable fire service fee, ten percent of the qualified voters shall present a petition duly signed by them in their own handwriting, and filed with the clerk of the county commission directing that the county commission impose such a fee."
• 30% objection-petition referendum trigger: A timely objection by 30% of the qualified voters delays the fee "until it is ratified by a majority of the legal votes cast thereon" at the next election.

Why the petition is permission, not direction. Five textual moves:

1. "Plenary power and authority" means complete and unqualified discretion (State ex rel. Clark v. Blue Cross Blue Shield, citing Black's Law Dictionary). Reading the statute to compel action by 10% of voters would conflict with the plenary grant.
2. "Before a county commission can impose" uses "can," not "shall." "Can" signals discretion.
3. "Petition" in plain English is a "formal written request" (Black's Law Dictionary). Requests do not create binding obligations.
4. "Directing that the county commission impose such a fee" describes the substance of what the petition must request, not a command on the commission.
5. The 30% objection-petition mechanism shows the Legislature's design: voters can stop a fee, but cannot force one. The 10% petition opens the door; the commission decides whether to walk through.

Confirming case law. Putnam County Fire Service Bd. v. Kelly (1994) describes the petition as "asking the Commission to impose an ordinance" and notes that the Commission then "adopted" the petition, two action verbs that frame the petition as a request, not a command. Scott v. Marion County Comm'n (1988) refers to petitions as initiating the fee process, "initiate" meaning to start, not to compel. McMahon v. Co. Comm'n of Morgan Co. (N.D. W. Va. 1992) reads the statute as requiring 10% before "the ordinance can be presented", "presented" implies the commission's downstream choice on adoption.

Practical workflow. A 10% petition lets the commission consider an ordinance. The commission may pass it, modify it, or decline. If it passes a fee, opponents can collect 30% objection-petition signatures to force a public referendum. If the commission declines, the voters' remedy is electoral: vote out commissioners who refused to act.

Currency note

This opinion was issued in 2015. 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.

W. Va. Code § 7-17-12 has been amended in subsequent legislative sessions. Anyone working a current fire-service-fee question should pull the present text and check for amendments to either the petition thresholds or the procedural requirements.

Common questions

Q: Why did the Fire Board read the statute the other way?
A: The Fire Board emphasized the phrase "directing that the county commission impose such a fee." Read in isolation, "directing" sounds like a command. The AG read it as describing what the petition must say, not as binding the commission's response.

Q: Why does "plenary power and authority" matter so much?
A: "Plenary" is a strong word in legal usage: full, complete, absolute, unqualified (Black's Law Dictionary, cited in Clark). The Legislature put it at the front of the statute. Reading later procedural conditions to neutralize the plenary grant would be unusual and would require clear language. The 10% petition language does not provide it.

Q: Could the Commission impose a fee without any petition at all?
A: No. § 7-17-12 conditions imposition on the petition. The petition is necessary; it is just not sufficient. Skipping the petition would render any fee invalid.

Q: What if the petition is technically deficient?
A: The Commission has authority to verify that the petition meets statutory requirements (10% of qualified voters, handwritten signatures, properly filed). A defective petition does not satisfy the condition precedent.

Q: Can voters force a referendum to compel the Commission to impose a fee?
A: No. The 30% objection-petition mechanism only delays an already-adopted fee until voters ratify it. There is no mirror-image mechanism to force adoption. The Legislature gave voters a brake, not an accelerator.

Q: What is the right tool if voters strongly want a fire fee but the commission refuses?
A: Political accountability. Vote at the next county-commission election. If the issue is durable enough to motivate a 10% petition, it is potentially significant enough to motivate a campaign for commissioners willing to act on it.

Q: Does the same logic apply to other county-commission service fees?
A: Each fee statute has its own structure. Some grant the commission unilateral authority; some require a petition; some require a referendum. The commission-discretion-with-petition-precondition structure of § 7-17-12 is distinctive. Always read the specific statute.

Background and statutory framework

The statute. W. Va. Code § 7-17-12 grants county commissions providing fire protection services "plenary power and authority to provide by ordinance" for the service and "to impose by ordinance . . . reasonable fire service rates, fees and charges." Imposition is conditioned on a 10% qualified-voter petition. A 30% objection-petition mechanism allows voters to delay any fee pending a referendum.

Plain meaning of "plenary." State ex rel. Clark v. Blue Cross Blue Shield of W. Va., Inc., 203 W. Va. 690 (1998) (quoting Black's Law Dictionary 1154 (6th ed. 1990)): "[f]ull, entire, complete, absolute, perfect, unqualified."

Plain meaning of "petition." Black's Law Dictionary (10th ed. 2014): "formal written request presented to a court or other official body."

Case law on petition function. Putnam County Fire Service Bd. v. Kelly, 192 W. Va. 37 (1994) (Commission "adopted" the petition); Scott v. Marion County Comm'n, 180 W. Va. 483 (1988) (a petition "initiate[s]" the fee process); McMahon v. Co. Comm'n of Morgan Co., No. 91-30-M, 1992 WL 691152 (N.D. W. Va. 1992) ("the ordinance can be presented" after the petition).

Citations

• W. Va. Code §§ 5-3-2; 7-17-12
• State ex rel. Clark v. Blue Cross Blue Shield of W. Va., Inc., 203 W. Va. 690 (1998)
• Putnam County Fire Service Bd. v. Kelly, 192 W. Va. 37 (1994)
• Scott v. Marion County Comm'n, 180 W. Va. 483 (1988)
• McMahon v. Co. Comm'n of Morgan Co., No. 91-30-M, 1992 WL 691152 (N.D. W. Va. 1992)

Source

• Landing page: https://ago.wv.gov/media/17956/download?inline
• Original PDF: https://ago.wv.gov/media/17956/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

May 27, 2015
Honorable Jason A. Wharton
Prosecuting Attorney
Wood County Prosecuting Attorney's Office
317 Market Street
Parkersburg, WV 26101

Dear Prosecutor Wharton:

You have asked for an Opinion of the Attorney General that addresses the imposition of a county fire service fee under West Virginia Code § 7-17-12 and the significance of the petition required under that statute. 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 set forth in your correspondence with the Office of the Attorney General.

You explain in your letter that the Wood County Commission (the "Commission") and the Wood County Fire Board (the "Board") disagree over the scope of the Commission's authority to impose a county fire service fee under Section 7-17-12. The statute requires that the Commission receive a petition signed by 10% of qualified voters "directing" the imposition of a reasonable service fee "before" the Commission "can impose" such a fee. According to your letter, the Commission argues that the required petition is a condition precedent to its exercise of authority to adopt an ordinance imposing a reasonable service fee, but that it has the discretion to refuse such a petition. You further state that the Board disagrees and contends that the Commission is obligated to impose the fee upon receipt of a petition that satisfies the statutory requirements.

Your letter raises the following legal question:

Does West Virginia Code § 7-17-12 mandate that a county commission impose an ordinance setting forth a reasonable fire service fee upon receiving a petition signed by 10% of qualified voters that directs the commission to impose such a fee?

We conclude that the Commission, and not the Board, is correct. West Virginia Code § 7-17-12 provides that "[e]very county commission which provides fire protection services has plenary power and authority to provide by ordinance for the continuance or improvement of such service, to make regulations with respect thereto and to impose by ordinance, upon the users of such services, reasonable fire service rates, fees and charges to be collected in the manner specified in the ordinance." W. Va. Code § 7-17-12 (emphasis added). "However," the statute continues, "before a county commission can impose by ordinance, upon the users of such service, a reasonable fire service fee, ten percent of the qualified voters shall present a petition duly signed by them in their own handwriting, and filed with the clerk of the county commission directing that the county commission impose such a fee." Id. The statute further provides that a timely objection by "thirty percent of the qualified voters of the county by petition duly signed by them in their own handwriting and filed with the clerk of the county commission," id., will delay the effectiveness of any such fee "until it is ratified by a majority of the legal votes cast thereon by the qualified voters of such county at any primary, general or special election as the county commission directs," id. As we explain below, we believe that the plain language of this statute makes clear that the required petition of 10% of qualified voters is a non-binding condition precedent to the Commission's exercise of its discretionary authority to impose a reasonable fire fee.

Read together, numerous provisions in the statute indicate that the petition in question is merely a non-binding condition precedent to the Commission's exercise of its own discretion. First, the statute grants the Commission the "plenary power and authority" to impose a reasonable fire service fee. As the West Virginia Supreme Court of Appeals has noted, the word "plenary" means "[f]ull, entire, complete, absolute, perfect, unqualified.'" State ex rel. Clark v. Blue Cross Blue Shield of W. Virginia, Inc., 203 W. Va. 690, 701, 510 S.E.2d 764, 775 (1998) (quoting Black's Law Dictionary 1154 (6th ed. 1990)). It would be inconsistent with the settled meaning of "plenary power" to bind the Commission to follow the dictate of a group constituting only 10% of qualified voters. Second, the law plainly states that the petition must be filed "before a county commission can impose" the fee. W. Va. Code § 7-17-12 (emphasis added). The word "can", as opposed to "shall", suggests discretion on the part of the Commission. Third, there is nothing in the statute that alters the ordinary meaning of the word "petition", a "formal written request presented to a court or other official body" to make it binding on the Commission. Black's Law Dictionary 1329 (10th ed. 2014) (emphasis added). You explain that the Board focuses on the phrase "directing that the county commission impose such a fee," but we believe that phrase simply describes the substance of the request that the petition must make to satisfy the statute. Fourth, the provision that allows an opposing petition signed by 30% of qualified voters to force a referendum vote on any new or amended fire service fee, see W. Va. Code § 7-17-12, suggests that the Legislature's overriding purpose was to protect county residents from a fee that they do not support. In light of that purpose, it would be strange to bind the Commission to impose a fee based on a petition signed by only 10% of qualified voters.

Case law supports this plain reading of the statute. In Putnam County Fire Service Board v. Kelly, the West Virginia Supreme Court of Appeals upheld the constitutionality of West Virginia Code § 7-17-12, and in doing so noted that the Putnam County Commission had been presented with a petition "asking the Commission to impose an ordinance creating a fire service fee in the county," and that the Commission then "adopted" the petition. 192 W. Va. 37, 38-39, 449 S.E.2d 508 (1994) (emphasis added). Similarly, the Supreme Court of Appeals held in Scott v. Marion County Commission that "a petition to initiate a fire service fee for the benefit of county volunteer fire departments required the signatures of ten percent of the registered voters only in the area that would pay the fee and receive the benefit of the service." Syl., 180 W. Va. 483, 377 S.E.2d 476 (1988) (emphasis added). The word "initiate," which is commonly defined as "to cause the beginning of (something)," again suggests that the Court understood the required petition as simply the start of the procedural process. Initiate, Merriam-Webster Online (last visited May 26, 2015). Finally, the U.S. District Court for the Northern District of West Virginia has explained that Section 7-17-12 "requires that 10% of the qualified voters must petition for the imposition of the fee before the ordinance can be presented." McMahon v. Co. Comm'n of Morgan Co., No. 91-30-M, 1992 WL 691152, at *3 (N.D. W. Va. 1992). The word "presented" suggests that a county commission retains discretion over whether to adopt the ordinance.

In sum, we conclude that the petition at issue is merely a condition precedent to the Commission's otherwise plenary power and authority to enact an ordinance imposing a reasonable service fee. Under West Virginia Code § 7-17-12, the Commission may only enact an ordinance imposing a reasonable fire service fee upon the receipt of a petition signed by 10% of qualified voters, but receipt of such a petition does not mandate that the Commission adopt the requested fee.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Julie Warren
Assistant Attorney General