WEST virginia legislature

2019 regular session

Committee Substitute

for

House Bill 2435

By Mr. Speaker (Mr. Hanshaw), Shott, Canestraro, Nelson, Miley and Bates

[Originating in the Committee on the Judiciary, January 18, 2019.]

A BILL to amend and reenact §4-5-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §5-3-2 of said code, all relating to authorizing and empowering the Attorney General to prosecute violations of state criminal law recommended by the Commission on Special Investigations under certain conditions; providing that CSI recommend prosecution of state criminal law violations to appropriate county prosecutor; providing that, if county prosecutor has not pursued the matter within six months, CSI must recommend the matter to the Attorney General; empowering and authorizing the Attorney General to prosecute violations of criminal law referred by CSI under certain conditions; and empowering the Attorney General to impanel a grand jury and prosecute a person indicted by that grand jury. 

Be it enacted by the Legislature of West Virginia:

CHAPTER 4. THE LEGISLATURE.

ARTICLE 5. COMMISSION ON SPECIAL INVESTIGATIONS.

§4-5-2. Powers and duties generally.

(a) The Commission on Special Investigations shall have the power, duty and responsibility, upon a majority vote of the members appointed, to:

(1) Conduct a comprehensive and detailed investigation into the purchasing practices and procedures of the state;

(2) Determine if there is reason to believe that the laws or public policy of the state in connection with purchasing practices and procedures have been violated or are inadequate;

(3) Determine if any criminal or civil statutes relating to the purchasing practices and procedures in this state are necessary to protect and control the expenditures of money by the state;

(4) Investigate or examine any matter involving conflicts of interest, bribery of state officials, malfeasance, misfeasance or nonfeasance in office by any employee or officer of the state;

(5) Conduct comprehensive and detailed investigations to determine if any criminal or civil statutes have been violated at any level of state government;

(6) Determine whether to recommend criminal prosecution or civil action for any violation, either criminal or civil, at any level of state government and, if it is determined that action is necessary, to make appropriate recommendation to the Attorney General, prosecuting attorney or other authority empowered to act on such recommendation; and

(7) Recommend prosecution of state criminal law violations to the appropriate county prosecutor.  If the county prosecutor chooses in his or her discretion not to prosecute the matter, the prosecutor shall notify the Commission on Special Investigations within six months, at which time the Commission on Special Investigations shall refer the matter to the West Virginia Prosecuting Attorneys Institute for appointment of a special prosecutor pursuant to §7-4-6 of this code. If the West Virginia Prosecuting Attorneys Institute does not appoint a special prosecutor within 30 days, the Commission on Special Investigations may refer the matter to the Attorney General, who may prosecute such action pursuant to §5-3-2 of this code.

(7) (8) Make such written reports to the members of the Legislature between sessions thereof as the commission may deem advisable and on the first day of each regular session of the Legislature make an annual report to the Legislature containing the commission's findings and recommendations including in such report drafts of any proposed legislation which it deems necessary to carry such recommendations into effect.

(b) The commission is also expressly empowered and authorized to:

(1) Sit during any recess of the Senate and House of Delegates;

(2) Recommend to the judge of any circuit court that a grand jury be convened pursuant to the provisions of §52-2-14 of this code, to consider any matter which the commission may deem in the public interest and, in support thereof, make available to such court and such grand jury the contents of any reports, files, transcripts of hearings or other evidence pertinent thereto;

(3) Employ such legal, technical, investigative, clerical, stenographic, advisory and other personnel as it deems needed and, within the appropriation herein specified, fix reasonable compensation of such persons and firms as may be employed: Provided, That such personnel as the commission may determine shall have the authority to administer oaths and take affidavits and depositions anywhere in the state.

(4) Consult and confer with all persons and agencies, public (whether federal, state or local) and private, that have information and data pertinent to an investigation; and all state and local governmental personnel and agencies shall cooperate to the fullest extent with the commission;

(5) Call upon any department or agency of state or local government for such services, information and assistance as it may deem advisable; and

(6) Refer such matters as are appropriate to the office of the United States attorney and cooperate with such office in the disposition of matters so referred.

(c) Notwithstanding any provision of this code to the contrary, specific personnel may be designated by the commission to carry a firearm in the course of performing his or her official duties: Provided, That as a precondition of being authorized to carry a concealed weapon in the course of their official duties, any such designated personnel must have first successfully completed a firearms training and certification program which is equivalent to that which is required of members of the state police. The designated persons must also possess a license to carry a concealed deadly weapon in the manner prescribed in §61-7-1 et seq. of this code.

CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

ARTICLE 3. ATTORNEY GENERAL.

§5-3-2. Act as counsel for state; duties and powers as to prosecuting attorneys; defense of National Guardsmen.

(a) The Attorney General shall appear as counsel for the state in all causes pending in the Supreme Court of Appeals, or in any federal court, in which the state is interested; he the Attorney General shall appear in any cause in which the state is interested that is pending in any other court in the state, on the written request of the Governor, and when such appearance is entered he the Attorney General shall take charge of and have control of such cause; he the Attorney General shall defend all actions and proceedings against any state officer in his official capacity in any of the courts of this state or any of the federal courts when the state is not interested in such cause against such officer, but should the state be interested against such officer, he the Attorney General shall appear for the state; he the Attorney General shall institute and prosecute all civil actions and proceedings in favor of or for the use of the state which may be necessary in the execution of the official duties of any state officer, board or commission on the written request of such officer, board or commission; he the Attorney General shall, when requested by the prosecuting attorney of a county wherein a state institution of correction is located, provide attorneys for appointment as special prosecuting attorneys to assist the prosecuting attorney of said county in the prosecution of criminal proceedings when, in the opinion of the circuit judge of said county, or a justice of the West Virginia Supreme Court of Appeals, extraordinary circumstances exist at said institution which render the financial resources of the office of the prosecuting attorney inadequate to prosecute said cases; he the Attorney General may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office, and may require a written report from them of the state and condition of the several causes, in which the state is a party, pending in the courts of their respective counties; he the Attorney General may require the several prosecuting attorneys to perform, within the respective counties in which they are elected, any of the legal duties required to be performed by the Attorney General which are not inconsistent with the duties of the prosecuting attorneys as the legal representatives of their respective counties; when the performance of any such duties by the prosecuting attorney conflicts with his or her duties as the legal representative of his or her county, or for any reason any prosecuting attorney is disqualified from performing such duties, the Attorney General may require the prosecuting attorney of any other county to perform such duties in any county other than that in which such prosecuting attorney is elected and for the performance of which duties outside of the county in which he or she is elected the prosecuting attorney shall be paid his or her actual traveling and other expenses out of the appropriation for contingent expenses for the department for which such services are rendered; the Attorney General may prosecute all civil actions and proceedings in favor of or for the use of the state which may be necessary in the execution of the official duties of any state officer, board or commission on the written request of such officer, board or commission the Attorney General shall keep in proper books, a register of all causes prosecuted or defended by him or her in behalf of the state or its officers and of the proceedings had in relation thereto, and deliver the same to his or her successor in office; and he the Attorney General shall preserve in his or her office all his official opinions of the Office of the Attorney General and publish the same in his or her biennial report.

(b) Upon request of any member of the West Virginia National Guard who has been named defendant in any civil action arising out of that guardsman's action while under orders from the Governor relating to National Guard assistance in disasters and civil disorders, the Attorney General shall appear as counsel for and represent such guardsman.

(c) The Attorney General may prosecute criminal cases that have been investigated and recommended for prosecution by the Commission on Special Investigations pursuant to §4-5-2 of this code. In all matters referred to the Attorney General pursuant to §4-5-2 of this code, the Attorney General may make a presentment to any regularly or specially impaneled grand jury in the appointing circuit court and prosecute any person indicted by such grand jury.

NOTE: The purpose of this bill is to authorize and empower the Attorney General to prosecute violations of state criminal law recommended by the Commission on Special Investigations under certain conditions; to provide that CSI recommend prosecution of state criminal law violations to appropriate county prosecutor; to provide that, if county prosecutor has not pursued the matter within six months, CSI must recommend the matter to the Attorney General; empowering and authorizing the Attorney General to prosecute violations of state criminal law referred by CSI under certain conditions; and empower the Attorney General to impanel a grand jury and prosecute a person indicted by that grand jury. 

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.