WHEELING - Ohio County Circuit Judge David Sims will decide by Tuesday whether Weirton City Council can meet in special session for a possible second and final reading of an ordinance implementing a business and occupation tax.
An attorney for three companies, Kevin Pearl of Weirton, filed a motion for a restraining order against City Council on Wednesday in Hancock County Circuit Court. The case moved to Ohio County for the convenience of the court and all parties due to the short time remaining before the 6:30 p.m. Tuesday meeting on the proposal.
The B&O tax, when coupled with a proposed 20-percent reduction in the city's police and fire service fee, would bring in an additional $1.7 million in revenue, city officials have said - more than enough to fill the anticipated budget shortfall for the 2015-16 fiscal year.
KEVIN?PEARL:?Lawyer wants a restraining order against enactment of Weirton’s business &?occupation tax.
The proposed tax would be 0.375 percent for retail on gross receipts above $500,000 annually; 0.65 percent for services on receipts above $100,000 annually; and 2 percent on contractors, with a $100,000 per-project exemption.
The June 13 vote in favor of the B&O was 3-2, with Councilman George Gaughenbaugh abstaining, citing an unnamed conflict of interest. George Ash, David Dalrymple and Chuck Wright voted in favor of the tax, with Fred Marsh and Terry Weigel opposed.
The recent resignation of Ronnie Jones, who is moving out of his ward, appears to have paved the way for passage of the tax. A similar proposal was voted down in May, with Jones joining Marsh and Wright in voting no. With Gaughenbaugh also abstaining from that vote, Mayor George Kondik voted no to break a 3-3 tie.
After public opposition to the tax was voiced by Weirton businesses last week, Pearl filed the motion Wednesday on behalf of Tri-State Medical, Ocean Air International and Startrans International.
He argued three members of City Council met privately to discuss the proposed tax.
Normally, with seven council seats, a gathering of four or more council members is considered a quorum, which must be open to the public to avoid violation of Sunshine Laws. Weirton Council has six of its seven council seats filled following Jones' resignation. With Gaughenbaugh abstaining from the vote, Pearl said meetings held with three council members are prohibited by state Sunshine Laws.
The injunction also claims City Council was in violation of Robert's Rules of Order when it scheduled two special council meetings in a row. Pearl asked Sims to restrain council from meeting to allow more time for litigation.
"What we want is to explore the issue so we do not have to go back and try to fix it after it is passed," Pearl said.
Pearl said passage of the ordinance would equal taxation without representation because many business are located in the 1st Ward where a council vacancy exists. He also suggested assessment of the tax would be politically motivated with different remittance structures being issued to different businesses.
He also argued if the issue is enacted and then later revoked through litigation, any money paid by the businesses prior to the revocation would be lost.
Weirton City Attorney Vince Gurrera argued the Sunshine Law had not been broken because three members of a seven-member council do not constitute a quorum. He said the city needs the money to hire more police officers and to offset municipal operating costs.
The case was first assigned to Circuit Judge James Mazzone, but he asked Sims to take it because of a conflict of interest.
"Judge Sims is the only judge in the First Judicial Circuit who does not live in Weirton," Mazzone said. "I felt the issue would affect several family members and close friends of mine."