COMMITTEE SUBSTITUTE
FOR
H. B. 2795
(By Delegates Laird, Staton,
Stemple and Thomas)
(Originating in Committee on the Judiciary)
[April 3, 1997]
A BILL to amend and reenact sections one, three and five, article
fourteen-a, chapter eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
investigation and interrogation rights of police officers and
firemen; defining certain terms, including "accused officer,"
for purposes of the article; providing for composition of
hearing board in civil service and noncivil service
jurisdictions; and providing for appeal rights both for
officers and department chiefs.
Be it enacted by the Legislature of West Virginia:
That sections one, three and five, article fourteen-a, chapter
eight of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to read as
follows:
ARTICLE 14A. MUNICIPAL POLICE OFFICERS AND FIREMEN; PROCEDURE FOR INVESTIGATION.
§8-14A-1. Definitions.
Unless the context clearly indicates otherwise, as used in
this article:
(1) "Accused officer" means any police officer or fireman who
is the subject of an investigation or interrogation which results
in a recommendation of punitive action against him or her.
(2) "Civil service," when followed by the terms "department,"
"officer" or "accused officer," means any department, officer or
accused officer who is subject to the civil service provisions of
article fourteen, chapter eight of this code or article fifteen,
chapter eight of this code.
(3) "Hearing" means any meeting in the course of an
investigatory proceeding, other than an interrogation at which no
testimony is taken under oath, conducted by a hearing board for the
purpose of taking or inducing testimony or receiving evidence.
(4) "Hearing board" means a board appointed to hold a hearing
on a complaint against an accused officer. The hearing board shall
consist of three members to be appointed pursuant to paragraphs
(a), (b) or (c) of this subdivision. Hearing board members
appointed under paragraphs (b) or (c) of this subdivision may be
removed from office as provided under paragraph (d) of this
subdivision.
(a) For civil service departments, the department chief shall appoint the first member, the members of the accused officer's
department shall appoint the second member, and the first and
second members shall appoint the third member by agreement. Should
the first and second members fail to agree on the appointment of
the third member within five days, they shall submit to the
department's civil service commission a list of four qualified
candidates from which list the commission shall appoint the third
member. The appointment of members under this paragraph shall be
subject to the following qualifications and limitations:
(1) No member shall have had any part in the investigation or
interrogation of the accused officer;
(2) Each member shall be a police officer or fireman within
the accused officer's department, or, with the department chief's
approval, a law-enforcement officer or fireman from another law- enforcement agency or fire department;
(3) At least one member shall be of the same rank as the
accused officer; and
(4) If there are fewer than three persons who meet the
qualifications described in subparagraphs (1), (2) and (3) of this
paragraph, then the department's civil service commission shall
appoint as many citizens of the municipality in which the
department is located as may be necessary to constitute the board.
(b) For noncivil service police departments, the hearing board
shall be a standing hearing board. The department chief shall appoint the first member, the local fraternal order of police shall
appoint the second member, and the local chamber of commerce or
local businessman's association shall appoint the third member. If
there is no local fraternal order of police, the state fraternal
order of police shall appoint the second member. If there is no
local chamber of commerce or local businessmen's association, the
first and second members shall appoint the third member by
agreement. Of the three original appointments in each police
department, the first member shall serve for six years from the
date of his or her appointment; the second member shall serve four
years from the date of his or her appointment; and the third member
shall serve for two years from the date of his or her appointment.
After the original appointments, all appointments shall be made for
periods of four years each by the designated appointing authority.
In the event that any member shall cease to be a member due to
death, resignation, final removal or other cause, a new member
shall be appointed within thirty days of the date the ex-member
ceased to be a member. This appointment shall be made by the
officer or body who in the first instance appointed the member who
is no longer a member. When the hearing board is appointed, the
three members shall elect one of their number to act as president
of the board, who shall serve as president for one year. In the
event that a member has had a part in the investigation or
interrogation of an accused officer or is related by consanguinity or affinity to an accused officer, that member shall be recused
from participation in the accused officer's hearing. In such an
instance, the officer or body who in the first instance appointed
the recused member shall appoint another person for sole purpose of
the accused's officer hearing.
No member shall hold any other
office (other than the office of notary public) under the United
States, this state, or any municipality, county or other political
subdivision thereof; nor shall any member serve on any political
committee or take any active part in the management of any
political campaign.
(c) For noncivil service fire departments, the hearing board
shall be a standing hearing board. The department chief shall
appoint the first member, the local international association of
fire fighters shall appoint the second member, and the local
chamber of commerce or local businessman's association shall
appoint the third member. If there is no local international
association of fire fighters in the municipality, the local central
body of the West Virginia Federation of Labor AFL-CIO shall appoint
the second member. If there is no local central body of the West
Virginia Federation of Labor AFL-CIO in the municipality, the West
Virginia Federation of Labor AFL-CIO shall appoint the second
member. If there is no local chamber of commerce or local
businessmen's association, the first and second members shall
appoint the third member by agreement. Of the three original appointments in each fire department, the first member shall serve
for six years from the date of his or her appointment; the second
member shall serve four years from the date of his or her
appointment; and the third member shall serve for two years from
the date of his or her appointment. After the original
appointments, all appointments shall be made for periods of four
years each by the designated appointing authority. In the event
that any member shall cease to be a member due to death,
resignation, final removal or other cause, a new member shall be
appointed within thirty days of the date the ex-member ceased to be
a member. This appointment shall be made by the officer or body
who in the first instance appointed the member who is no longer a
member. Each of the three members shall elect one of their number
to act as president of the board, who shall serve as president for
one year. In the event that a member has had a part in the
investigation or interrogation of an accused officer or is related
by consanguinity or affinity to an accused officer, that member
shall be recused from participation in the accused officer's
hearing. In such an instance, the officer or body who in the first
instance appointed the recused member shall appoint another person
for sole purpose of the accused's officer hearing.
No member shall
hold any other office (other than the office of notary public)
under the United States, this state, or any municipality, county or
other political subdivision thereof; nor shall any member serve on any political committee or take any active part in the management
of any political campaign.
(d) Any member of a hearing board appointed under paragraphs
(b) or (c) of this subdivision may be removed as provided in this
paragraph.
The mayor of the municipality may, at any time, remove any
hearing board member for good cause, which shall be stated in
writing and made a part of the records of the hearing board.
However, within ten days of removing any member, the mayor shall
file in the circuit clerk's office of the county in which the
municipality is located a petition setting forth in full the reason
for the removal and seeking the circuit court's confirmation of the
mayor's removal of the member. The mayor shall file a copy of the
petition with the removed member at the same time it is filed with
the circuit clerk. The petition shall have precedence on the
circuit court's docket and shall be heard as soon as practicable on
the request of the removed member. All rights vested in a circuit
court by this subsection may be exercised by the judge thereof in
vacation. In the event that no term of the circuit court is being
held at the time the petition is filed, and the judge thereof
cannot be reached in the county in which the petition was filed,
the petition shall be heard at the next succeeding circuit court
term, whether regular or special, and the removed member shall
remain removed until a hearing is held on the petition. The court or the judge thereof in vacation shall hear and decide the issues
presented by the petition. The party affected adversely by the
court's or judge's decision shall have the right to petition the
supreme court of appeals for a review of the decision as in other
civil cases. If the mayor fails to file the petition with the
circuit clerk's office within ten days as provided above, the
removed member shall immediately resume his or her position as a
hearing board member.
Any resident of the municipality shall have the right at any
time to seek the removal of any hearing board member. To do so,
the resident shall file a petition in the circuit clerk's office of
the county where the municipality is located. The resident shall
also serve a copy of the petition on the member sought to be
removed. The petition shall be matured for hearing and heard by
the circuit court or the judge thereof in vacation in the same
manner as civil proceedings in the circuit courts of this state are
heard. Any party adversely affected by the circuit court's or
judge's decision shall have the right to petition the supreme court
of appeals for a review of the decision as in other civil cases.
(5) "Noncivil service," when followed by the terms
"department," "officer" or "accused officer," means any department,
officer or accused officer who is not subject to the civil service
provisions of article fourteen, chapter eight of this code or
article fifteen, chapter eight of this code.
(6) "Police officer or fireman" or "officer" means any police
officer or fireman of a police or fire department employed by the
city or municipality, but shall not include (a) the highest ranking
officer of the police or fire department or (b) any non-civil
service officer who has not completed the probationary period
established by the department by which he or she is employed.
(7) "Punitive action" means any action which may lead to
dismissal, demotion, suspension, reduction in salary, written
reprimand or transfer for purposes of punishment.
(8) "Under investigation" or "under interrogation" means any
situation in which any police officer or fireman becomes the focus
of inquiry regarding any matter which may result in punitive
action.
§8-14A-3. Hearing.
(a) Before taking any punitive action against an accused
officer, the police or fire department shall give notice to the
accused officer that he or she is entitled to a hearing on the
issues by a hearing board or the applicable civil service
commission. The notice shall state the time and place of the
hearing and the issues involved and shall be delivered to the
accused officer no later than ten days prior to the hearing.
(b) When a civil service accused officer faces a recommended
punitive action of discharge, suspension or reduction in rank or
pay, but before such punitive action is taken, a hearing board must be appointed and must afford the accused civil service
officer
a hearing conducted pursuant to the provisions of article
fourteen, section twenty, or article fifteen, section twenty-five
of this chapter
: Provided, That the punitive action may be taken
before the hearing board conducts the hearing if exigent
circumstances exist which require it.
(c) When a civil service accused officer faces a recommended
punitive action of written reprimand or transfer for the purpose
of punishment, or when a non-civil service accused officer faces
any recommended punitive action, the applicable hearing board
shall conduct hearing pursuant to the provisions of subsection
(d) of this section.
(d) The following requirements shall govern the operation
conduct of a hearing board under subsection (c) of this section:
(1) The hearing board shall keep an official record of each
hearing it conducts. The official record shall include the
testimony offered and exhibits introduced at the hearing.
(2) Both the police or fire department and the accused
officer shall be given ample opportunity to present evidence and
argument with respect to any issue raised at the hearing.
(3) The hearing board may subpoena witnesses and administer
oaths or affirmations and examine any individual under oath, and
may require and compel the production of records, books, papers,
contracts and other documents, in connection with any issue raised at the hearing.
(4) The hearing board shall prepare a written order
detailing any decision or action it takes as a result of the
hearing. The written order shall include written findings of
fact setting forth a concise statement of the hearing board's
factual findings and conclusions on each issue raised at the
hearing. The hearing board shall hand-deliver or promptly mail a
copy of the written order to the accused officer or his attorney
of record.
(e) A hearing board's order is binding on all parties
involved unless it is overturned in the appeal process described
in section five of this article.
§8-14A-5. Appeal.
(a) For civil service departments, a hearing board's
decision rendered under subsections (b) or (c), section three of
this article may be appealed by the police officer or fireman
adversely affected by the order or by the department chief if he
or she believes that the department would be adversely affected
by the hearing board's order. An appeal under this subsection
shall be made to the applicable civil service commission. Any
party aggrieved by the civil service commission's ruling on the
appeal may further appeal the civil service commission's ruling
pursuant to the provisions of subsection (b), section twenty
,
article fourteen of this chapter or subsection (b), section twenty-five, article fifteen of this chapter
.
(b) For noncivil service departments, a hearing board's
decision rendered under subsection (c), section three of this
article may be appealed by the police officer or fireman
adversely affected by the order or by the department chief if he
or she believes that the department would be adversely affected
by the hearing board's order. An appeal under this subsection
shall be made to the circuit court of the county in which the
police officer or fireman resides.
NOTE: This bill makes significant changes to Article 14A of
Chapter 8, which accords certain procedural rights to police
officers and firemen subject to investigation, interrogation, and
discipline. First, the bill provides a new method for comprising
a hearing board for non-civil service departments. It creates a
standing hearing board much like a civil service commission,
involving the local police and fire organizations and local
chambers of commerce and reducing reliance on the circuit judge
to appoint hearing board members. Second, the bill adds several
new definitions. Third, the bill grants appeal rights to the
affected department and provides that the hearing board's
decision is binding unless overturned on appeal. Finally, the
bill mandates that civil service officers facing serious punitive
action be offered a hearing before the punitive action is taken.
Sections 8-14A-1, 8-14A-3 and 8-14A-5 are completely
rewritten; therefore strike-throughs and underscoring have been
omitted.