H. B. 2194
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced February 10, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §6B-2-4 and §6B-2-10 of the Code of
West Virginia, 1931, as amended, all relating generally to the
ethical standards of public officers and employees; providing
for confidentiality requirements as to Commission members and
staff, the Review Board, complainants and informants;
prohibiting the submission of false information to the
Commission; and providing for penalties.
Be it enacted by the Legislature of West Virginia:
That §6B-2-4 and §6B-2-10 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC
OFFICIALS AND EMPLOYEES; APPEARANCE BEFORE PUBLIC
AGENCIES.
§6B-2-4. Processing complaints; dismissals; hearings; disposition; judicial review.
(a) Upon the filing of a complaint, the Executive Director of
the Commission or his or her designee shall, within three working
days, acknowledge the receipt of the complaint by first-class mail
unless the complaint was initiated by the Commission or the
complainant or his or her representative personally filed the
complaint with the Commission and was given a receipt or other
acknowledgment evidencing the filing of the complaint. No
political party or officer, employee or agent of a political party
acting in his or her official capacity may file a complaint for a
violation of this chapter with the Commission. Nothing in this
section prohibits a private citizen, acting in that capacity, from
filing a verified complaint with the Commission under this section.
Within fourteen days after the receipt of a complaint, the
Executive Director shall refer the complaint to the Review Board
created pursuant to section two-a of this article.
(b) Upon the referral of a complaint by the Executive Director
pursuant to subsection (a) of this section, the Review Board shall
determine whether the allegations of the complaint, if taken as
true, would constitute a violation of law upon which the Commission
could properly act under the provisions of this chapter. If the
complaint is determined by a majority vote of the Review Board to
be insufficient in this regard, the Review Board shall dismiss the
complaint.
(c) Upon a finding by the Review Board that the complaint is
sufficient, the Executive Director shall give notice of a pending
investigation to the complainant, if any, and to the respondent.
The notice of investigation shall be mailed to the parties, and, in
the case of the respondent, shall be mailed as certified mail,
return receipt requested, marked "Addressee only, personal and
confidential". The notice shall describe the conduct of the
respondent which is alleged to violate the law and a copy of the
complaint shall be appended to the notice mailed to the respondent.
Each notice of investigation shall inform the respondent that the
purpose of the investigation is to determine whether probable cause
exists to believe that a violation of law has occurred which may
subject the respondent to administrative sanctions by the
Commission, criminal prosecution by the state, or civil liability.
The notice shall further inform the respondent that he or she has
a right to appear before the Review Board and that he or she may
respond in writing to the Commission within thirty days after the
receipt of the notice, but that no fact or allegation shall be
taken as admitted by a failure or refusal to timely respond.
(d) Within the forty-five day period following the mailing of
a notice of investigation, the Review Board shall proceed to
consider: (1) The allegations raised in the complaint; (2) any
timely received written response of the respondent; and (3) any
other competent evidence gathered by or submitted to the Commission which has a proper bearing on the issue of probable cause. A
respondent may appear before the Review Board and make an oral
response to the complaint. The Commission shall promulgate rules
prescribing the manner in which a respondent may present his or her
oral response. The Commission may ask a respondent to disclose
specific amounts received from a source and request other detailed
information not otherwise required to be set forth in a statement
or report filed under the provisions of this chapter, if the
information sought is considered to be probative as to the issues
raised by a complaint or an investigation initiated by the
Commission. Any information thus received shall be confidential
except as provided by subsection (e) of this section. If
a person
asked to provide information fails or refuses to furnish the
information to the Commission, the Commission may exercise its
subpoena power as provided in this chapter, and any subpoena issued
by the Commission shall have the same force and effect as a
subpoena issued by a circuit court of this state. Enforcement of
any subpoena may be had upon application to a circuit court of the
county in which the Review Board is conducting an investigation,
through the issuance of a rule or an attachment against the
respondent as in cases of contempt.
(e)
(1) No person who has filed a complaint, provided
information to the Commission or has knowledge that the Commission
is undertaking an investigation and no Commission member or employee or former member or employee shall disclose:
(A) His or her knowledge that a complaint has been filed or an
investigation has been undertaken;
(B) Any information he or she obtained as a result of having
interacted with the Commission in connection with a particular
investigation;
(C) The fact that he or she has filed a complaint, provided
information to or testified before the Commission or otherwise
participated in the Commission investigation; or
(D) The contents of any (1) All investigations, complaints,
reports, records, proceedings and other information received by the
Commission and related to complaints made to the Commission or
investigations conducted by the Commission pursuant to this
section, including the identity of the complainant or respondent,
are confidential and may not be knowingly and improperly disclosed
by any current or former member or employee of the Commission or
the Review Board, except as follows:
(i) (A) Once there has been a finding that probable cause
exists to believe that a respondent has violated the provisions of
this chapter and the respondent has been served by the Commission
with a copy of the Review Board's order and the statement of
charges prepared pursuant to the provisions of subsection (g) of
this section, the complaint and all reports, records, non-
privileged and nondeliberative material introduced at any probable cause hearing held pursuant to the complaint cease to be
confidential.
(ii) (B) After a finding of probable cause, any subsequent
hearing held in the matter for the purpose of receiving evidence or
the arguments of the parties or their representatives shall be open
to the public and all reports, records and nondeliberative
materials introduced into evidence at the hearing, as well as the
Commission's orders, are not confidential.
(iii) (C) The Commission may release any information relating
to an investigation at any time if the release has been agreed to
in writing by the respondent.
(iv) (D) The complaint and the identity of the complainant
shall be disclosed to a person named as respondent immediately upon
the respondent's request.
(v) (E) Where the Commission is otherwise required by the
provisions of this chapter to disclose information or to proceed in
such a manner that disclosure is necessary and required to fulfill
those requirements.
(2) If, in a specific case, the Commission finds that there is
a reasonable likelihood that the dissemination of information or
opinion in connection with a pending or imminent proceeding will
interfere with a fair hearing or otherwise prejudice the due
administration of justice, the Commission shall order that all or
a portion of the information communicated to the Commission to cause an investigation and all allegations of ethical misconduct or
criminal acts contained in a complaint shall be confidential, and
the person providing the information or filing a complaint shall be
bound to confidentiality until further order of the Commission.
(3) If a complainant knowingly discloses confidential
information in violation of this subsection, the Commission may
impose the sanctions specified in subsection (r) of this section
and in addition, or in lieu thereof, dismiss the complaint.
(f) If the members of the Review Board fail to find probable
cause, the proceedings shall be dismissed by the Commission in an
order signed by the
majority members of the Review Board. Copies
of the order of dismissal shall be sent to the complainant and
served upon the respondent forthwith. If the Review Board decides
by a unanimous vote that there is probable cause to believe that a
violation under this chapter has occurred, the members of the
Review Board shall sign an order directing the Commission staff to
prepare a statement of charges, to assign the matter for hearing to
the Commission or a hearing examiner as the Commission may
subsequently direct. The Commission shall then schedule a hearing,
to be held within ninety days after the date of the order, to
determine the truth or falsity of the charges. The Commission's
review of the evidence presented shall be de novo. For the purpose
of this section, service of process upon the respondent is obtained
at the time the respondent or the respondent's agent physically receives the process, regardless of whether the service of process
is in person or by certified mail.
(g) At least eighty days prior to the date of the hearing, the
Commission shall serve the respondent by certified mail, return
receipt requested, with the statement of charges and a notice of
hearing setting forth the date, time and place for the hearing.
The scheduled hearing may be continued only upon a showing of good
cause by the respondent or under other circumstances as the
Commission, by legislative rule, directs.
(h) The Commission may sit as a hearing board to adjudicate
the case or may permit an assigned hearing examiner employed by the
Commission to preside at the taking of evidence. The Commission
shall, by legislative rule, establish the general qualifications
for hearing examiners. The legislative rule shall also contain
provisions which ensure that the functions of a hearing examiner
will be conducted in an impartial manner and describe the
circumstances and procedures for disqualification of hearing
examiners.
(i) A member of the Commission or a hearing examiner presiding
at a hearing may:
(1) Administer oaths and affirmations, compel the attendance
of witnesses and the production of documents, examine witnesses and
parties and otherwise take testimony and establish a record;
(2) Rule on offers of proof and receive relevant evidence;
(3) Take depositions or have depositions taken when the ends
of justice will be served;
(4) Regulate the course of the hearing;
(5) Hold conferences for the settlement or simplification of
issues by consent of the parties;
(6) Dispose of procedural requests or similar matters;
(7) Accept stipulated agreements;
(8) Take other action authorized by the Ethics Commission
consistent with the provisions of this chapter.
(j) With respect to allegations of a violation under this
chapter, the complainant has the burden of proof. The West
Virginia Rules of Evidence governing proceedings in the courts of
this state shall be given like effect in hearings held before the
Commission or a hearing examiner. The Commission shall, by rule,
regulate the conduct of hearings so as to provide full procedural
due process to a respondent. Hearings before a hearing examiner
shall be recorded electronically. When requested by either of the
parties, the presiding officer shall order a transcript, verified
by oath or affirmation, of each hearing held and so recorded. In
the discretion of the Commission, a record of the proceedings may
be made by a certified court reporter. Unless otherwise ordered by
the Commission, the cost of preparing a transcript shall be paid by
the party requesting the transcript. Upon a showing of indigency,
the Commission may provide a transcript without charge. Within fifteen days following the hearing, either party may submit to the
hearing examiner that party's proposed findings of fact. The
hearing examiner shall thereafter prepare his or her own proposed
findings of fact and make copies of the findings available to the
parties. The hearing examiner shall then submit the entire record
to the Commission for final decision.
(k) The recording of the hearing or the transcript of
testimony, as the case may be, and the exhibits, together with all
papers and requests filed in the proceeding, and the proposed
findings of fact of the hearing examiner and the parties,
constitute the exclusive record for decision by the Commission,
unless by leave of the Commission a party is permitted to submit
additional documentary evidence or take and file depositions or
otherwise exercise discovery.
(l) The Commission shall set a time and place for the hearing
of arguments by the complainant and respondent, or their respective
representatives, and shall notify the parties thereof. Briefs may
be filed by the parties in accordance with procedural rules
promulgated by the Commission. The Commission shall issue a final
decision in writing within forty-five days of the receipt of the
entire record of a hearing held before a hearing examiner or, in
the case of an evidentiary hearing held by the Commission, acting
as a hearing board in lieu of a hearing examiner, within twenty-one
days following the close of the evidence.
(m) A decision on the truth or falsity of the charges against
the respondent and a decision to impose sanctions must be approved
by at least seven members of the Commission.
(n) Members of the Commission shall recuse themselves from a
particular case upon their own motion with the approval of the
Commission or for good cause shown upon motion of a party. The
remaining members of the Commission shall, by majority vote, select
a temporary member of the Commission to replace a recused member:
Provided, That the temporary member selected to replace a recused
member shall be a person of the same status or category, provided
by subsection (b), section one of this article, as the recused
member.
(o) Except for statements made in the course of official
duties to explain Commission procedures, no member or employee or
former member or employee of the Commission may make any public or
nonpublic comment about any proceeding previously or currently
before the Commission. Any member or employee or former member or
employee of the Commission who violates this subsection is subject
to the penalties contained in subsection (e), section ten of this
article. In addition, violation of this subsection by a current
member or employee of the Commission is grounds for immediate
removal from office or termination of employment.
(p) A complainant may be assisted by a member of the
Commission staff assigned by the Commission after a determination of probable cause.
(q) No employee of the Commission assigned to prosecute a
complaint may participate in the Commission deliberations or
communicate with Commission members or the public concerning the
merits of a complaint.
(r)(1) If the Commission finds by evidence beyond a reasonable
doubt that the facts alleged in the complaint are true and
constitute a material violation of this article, it may impose one
or more of the following sanctions:
(A) Public reprimand;
(B) Cease and desist orders;
(C) Orders of restitution for money, things of value, or
services taken or received in violation of this chapter;
(D) Fines not to exceed five thousand dollars per violation;
or
(E) Reimbursement to the Commission for the actual costs of
investigating and prosecuting a violation. Any reimbursement
ordered by the Commission for its costs under this paragraph shall
be collected by the Commission and deposited into the special
revenue account created pursuant to section six, article one of
this chapter.
(2) In addition to imposing the above-specified sanctions, the
Commission may recommend to the appropriate governmental body that
a respondent be terminated from employment or removed from office.
(3) The Commission may institute civil proceedings in the
circuit court of the county in which a violation occurred for the
enforcement of sanctions.
(s) At any stage of the proceedings under this section, the
Commission may enter into a conciliation agreement with a
respondent if the agreement is deemed by a majority of the members
of the Commission to be in the best interest of the state and the
respondent. Any conciliation agreement must be disclosed to the
public:
Provided, That negotiations leading to a conciliation
agreement, as well as information obtained by the Commission during
the negotiations, shall remain confidential except as may be
otherwise set forth in the agreement.
(t) Decisions of the Commission involving the issuance of
sanctions may be appealed to the Circuit Court of Kanawha County,
West Virginia, or to the circuit court of the county where the
violation is alleged to have occurred, only by the respondent, and
only upon the grounds set forth in section four, article five,
chapter twenty-nine-a of this code.
(u)(1) Any person who in good faith files a verified complaint
or any person, official, or agency who gives credible information
resulting in a formal complaint filed by Commission staff is immune
from any civil liability that otherwise might result by reason of
such actions.
(2) If the Commission determines, by clear and convincing evidence, that a person filed a complaint or provided information
which resulted in an investigation knowing that the material
statements in the complaint or the investigation request or the
information provided were not true; filed an unsubstantiated
complaint or request for an investigation in reckless disregard of
the truth or falsity of the statements contained therein; or filed
one or more unsubstantiated complaints which constituted abuse of
process, the Commission shall:
(A) Order the complainant or informant to reimburse the
respondent for his or her reasonable costs;
(B) Order the complainant or informant to reimburse the
respondent for his or her reasonable attorney fees; and
(C) Order the complainant or informant to reimburse the
Commission for the actual costs of its investigation.
In addition, the Commission may decline to process any further
complaints brought by the complainant, the initiator of the
investigation or the informant.
(3) The sanctions authorized in this subsection are not
exclusive and do not preclude any other remedies or rights of
action the respondent may have against the complainant or informant
under the law.
(v) (1) If at any stage in the proceedings under this section
it appears to a Review Board, a hearing examiner or the Commission
that there is credible information or evidence that the respondent may have committed a criminal violation, the matter shall be
referred to the full Commission for its consideration. If, by a
vote of two thirds of the members of the full Commission, it is
determined that probable cause exists to believe a criminal
violation has occurred, the Commission shall refer the matter to
the appropriate county prosecuting attorney having jurisdiction for
a criminal investigation and possible prosecution. Deliberations
of the Commission with regard to referring a matter for criminal
investigation by a prosecuting attorney shall be private and
confidential. Notwithstanding any other provision of this article,
once a referral for criminal investigation is made under the
provisions of this subsection, the ethics proceedings shall be held
in abeyance until action on the referred matter is concluded. If
the referral of the matter to the prosecuting attorney results in
a criminal conviction of the respondent, the Commission may resume
its investigation or prosecution of the ethics violation, but may
not impose a fine as a sanction if a violation is found to have
occurred.
(2) If fewer than two thirds of the full Commission determine
that a criminal violation has occurred, the Commission shall remand
the matter to the Review Board, the hearing examiner or the
Commission itself as a hearing board, as the case may be, for
further proceedings under this article.
(w) The provisions of this section shall apply to violations of this chapter occurring after the thirtieth day of September, one
thousand nine hundred eighty-nine, and within one year before the
filing of a complaint:
Provided, That the applicable statute of
limitations for violations which occur on or after the first day of
July, two thousand five, is two years after the date on which the
alleged violation occurred.
§6B-2-10. Violations and penalties.
(a) Any person who violates the provisions of subsection (e),
(f) or (g), section five of this article,
and any person, other
than a complainant, who or violates the provisions of
subdivision
(1), subsection (e), section four of this article is guilty of a
misdemeanor and, upon conviction, shall be confined in the
county
or regional jail for a period not to exceed six months or
shall be
fined not more than one thousand dollars, or both. A member or
employee of the Commission
or the Review Board convicted of
violating
subdivision (1), subsection (e), section four of this
article is subject to immediate removal from office or discharge
from employment.
(b) Any person who violates the provisions of subsection (f),
section six of this article by willfully and knowingly filing a
false financial statement or knowingly and willfully concealing a
material fact in filing the statement is guilty of a misdemeanor
and, upon conviction, shall be fined not more than one thousand
dollars, or confined in
the county or regional jail not more than one year, or both.
(c) Any person who knowingly fails or refuses to file a
financial statement required by section six of this article, is
guilty of a misdemeanor and, upon conviction, shall be fined not
less than one hundred dollars nor more than one thousand dollars.
(d) If any Commission member or staff knowingly violates
subsection (o), section four of this article, such person, upon
conviction thereof, shall be guilty of a misdemeanor and shall be
fined not less than one hundred dollars nor more than one thousand
dollars.
(e) Any person who violates the provisions of subdivision (2),
subsection (e), section four, article two of this chapter by
knowingly and willfully disclosing any information made
confidential by an order of the Commission, is subject to
administrative sanction by the Commission as provided in subsection
(r), section four of this article.
(f) Any person who knowingly gives false or misleading
material information to the Commission or who induces or procures
another person to give false or misleading material information to
the Commission is subject to administrative sanction by the
Commission as provided in subsection (r), section four of this
article.
NOTE: The purpose of this bill is to modify the
confidentiality provisions relating to proceedings before the Ethics Commission, to prohibit the submission of false information,
and to provide for and modify penalties for breaching such
confidentiality provisions and submitting such false information.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.