State preemption of local government is all the rage among conservative legislators around the country these days. Here’s how it works. Suppose the Jefferson County Commission wished to pass an ordinance banning plastic bags at grocery stores as a threat to the environment. Or suppose the city of Beckley declared it unlawful for a private employer within the city to ask for information about race or sexual orientation on employment applications. State preemption seeks to strip local governments of the right to regulate certain matters within their own borders. Usually these matters are of concern to progressive cities but not conservative Republican-majority state legislatures. And preventing West Virginia local governments from adopting progressive policies is just what the Panhandle’s own Senator Patricia Rucker and her conservative Republican colleagues are now seeking to do.
West Virginia is one of the states that follows Dillon’s Rule. In a nutshell this principle of law states that municipal governments owe their existence to state legislatures. They can be created, eliminated or limited in authority any way the state legislature decides. Unless a power is expressly given to the local governments, they don’t possess that power. Even in those areas where local governments have express power to regulate, those regulations cannot be inconsistent in any way with state law. This played out in the rejection of Morgantown’s local ban on fracking, which was found by the U.S. Fourth Circuit Court of Appeals to be inconsistent with the state’s licensing of drillers under its broad oil and gas laws.
The Legislature has expressly granted certain “home rule” powers to all West Virginia cities in WV Code 8-12-5. Among these are the powers to furnish local services, to protect order, safety and health, and to tax under certain limitations. West Virginia has also created the Home Rule Pilot Program, under which 34 cities can apply for extra power to solve specified problems. Martinsburg, Shepherdstown, Charles Town, Harpers Ferry and Ranson have been granted these limited extra powers.
But standard home rule power under WV Code 8-12-5 is generalized, leaving the municipalities much room for interpretation and action. For example, in order to protect order, safety and health a city might pass an ordinance banning handguns. That is where state preemption comes in. At the behest of the NRA, the West Virginia Legislature has specifically preempted localities from regulating firearms.
Other Republican-controlled states have gone much further to shackle local governments than preempting firearm regulation. Michigan, for example, passed what opponents called the “Death Star” bill because of the extent to which it imposed state control. That statute affected local government ability to pass ordinances that raised minimum wages, raised benefits, required sick leave, regulated union organizing and strikes, or regulated apprenticeship programs. As originally proposed, the Death Star would have retroactively invalidated local ordinances protecting the LGBT community. That feature was removed and the bill that passed has prospective effect only.
The vehicle for state preemption of local governments in West Virginia is SB 458 sponsored by Sen. Rucker and a handful of other Republican Senators. The Bill passed the Senate on February 15, 2018 on a vote of 22 to 12. Panhandle Senators Rucker, Charles Trump (R-Berkeley/Morgan, 15) and Craig Blair (R-Berkeley/Morgan, 15) voted in favor, while Sen. John Unger (D-Berkeley/Jefferson, 16) voted against. The Bill is now with the House Judiciary Committee. The Bill is worded to apply to county governments as well as cities.
SB 458 is nearly identical to the Michigan Death Star bill. In fact, it is worse in some ways. It would retroactively invalidate any local ordinances that regulate matters the bill now would declare off limits to local governments. In addition to prohibiting local governments from regulating wages, benefits, paid leave, strikes and apprenticeship programs, SB 458 would preempt any effort by local government to restrict what information a private employer requests on an employment application. And in an obvious concession to certain business interests, SB 458 would preempt any local regulation of consumer products or their packaging. Think plastic grocery bags.
The retroactivity provision of SB 458 would invalidate several current West Virginia city Human Rights ordinances that regulate what a private employer may ask on an employment application. A non-exhaustive survey shows that Charleston (Code 62-81 (2)(a)), Beckley (Art IV, 10-450 (2)(a)), and Martinsburg (Code 154.03 (2)(a)) all have such ordinances.
It is no coincidence that the Death Star bills in Michigan and West Virginia are so similar. Both were taken from “model” laws written by the American Legislative Exchange Council (ALEC), of which Sen. Rucker is State Chair. ALEC was formed and is funded by big business and the notorious billionaire Koch brothers. It is determined to strangle local democracy because it rightly sees the normally more progressive cities as a threat to the libertarian agenda.
West Virginia’s local governments cannot be responsive to local needs and interests if their power to act is snuffed out from the start by conservative Republicans in the state legislature. Stopping SB 458 deserves your attention and action.