FISCAL
NOTE
WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary then Finance.
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding thereto a new article, designated
§12-5A-1, §12-5A-2, §12-5A-3, §12-5A-4, §12-5A-5, §12-5A-6, §12-5A-7 and
§12-5A-8, all related to oversight of law-enforcement
agencies which receive private property through forfeiture laws; and providing
reporting requirements.
Be it enacted by the
Legislature of West Virginia:
That the Code of West
Virginia, 1931, as amended, be amended by adding thereto a new article,
designated §12-5A-1, §12-5A-2, §12-5A-3, §12-5A-4, §12-5A-5, §12-5A-6, §12-5A-7 and §12-5A-8, all to read as follows:
ARTICLE 5A. FORFEITURE
REPORTING ACT.
§12-5A-1. Purpose.
This article provides a
procedure to provide legislators with information necessary for basic oversight
of law-enforcement agencies who obtain private property under state and federal
forfeiture laws. Properties which may be seized and sold include, but are not
limited to, money, securities, negotiable instruments, vehicles and equipment.
Proceeds from sale of forfeited property are used to fund agency activities.
Reporting is required of property seized and forfeited under, but not limited
to, provisions of article two, chapter twenty; article twenty-two-b, chapter
twenty-nine; article seven, chapter sixty-a; and article eight-c and article
thirteen, chapter sixty-one of this code.
§12-5A-2. Definition
of law-enforcement agency.
"Law-enforcement
agency" means any police
force, multijurisdictional task force, fire department, or other local, county
or state agency that has authority under state law or operates in cooperation
with a federal agency under federal law to engage in seizure and forfeiture.
§12-5A-3. Reporting requirement.
(a) On an annual basis,
each law-enforcement agency shall report the following information about each
individual seizure and forfeiture completed by the agency under both state and
federal forfeiture laws:
(1) Data on seizures and
forfeitures including the following:
(A) Date that currency,
vehicles, houses or other types of property were seized;
(B) Type of property
seized, including year, make and model, as applicable;
(C) Type of alleged
crime associated with the seizure of the property;
(D) Outcome of related
criminal action, such as whether: (i) No charges were brought; (ii) a plea
bargain was reached; (iii) a conviction was obtained; or (iv) an acquittal was
issued;
(E) Type of forfeiture
procedure: criminal forfeiture or civil forfeiture;
(F) Type of civil
forfeiture: administrative, judicial or other;
(G) Venue of forfeiture
case: administrative agency, magistrate court, circuit court or other;
(H) Whether property
owner was represented by an attorney in the forfeiture case;
(I) Market value of the
property seized;
(J) Gross amount
received from the forfeiture;
(K) Total administrative
and other expenses deducted as part of the forfeiture process;
(L) Net amount received
from the forfeiture;
(M) Disposition of
property following seizure, such as whether the property was:
(i) Returned to the
owner;
(ii) Destroyed;
(iii) Sold after
forfeiture; or
(iv) Retained after
forfeiture;
(N) Date of the
aforementioned disposition of property; and
(O) Whether the
forfeiture resulted from an adoptive seizure.
An adoptive seizure occurs when one hundred percent of the preseizure
activity and related investigations are performed by the state or local seizing
agency before a request is made to the federal government for adoption. There
must be a state violation and a federal basis for forfeiture in order for the
seizure to be an adoptive seizure. A
seizure resulting from a joint investigation or task force case is not an
adoptive seizure.
(2) Data on expenditures
of forfeiture funds by law- enforcement agencies, including the following:
(A) Crime, gang and
substance-abuse programs;
(B) Witness protection
and victim reparations;
(C) Informant fees and
buy money;
(D) Regular-time
salaries, overtime pay and employee benefits of prosecutors;
(E) Regular-time
salaries, overtime pay and employee benefits of law-enforcement agency
personnel other than prosecutors;
(F) Professional or
outside services, including services related to auditing, court reporting,
expert witnesses and other court costs;
(G) Travel, meals and
entertainment;
(H) Training and
conferences;
(I) Other operating
expenses including supplies;
(J) Vehicles purchased;
(K) Canines, firearms
and equipment, such as tactical gear;
(L) Capital
expenditures, such as furniture, computers and office equipment; and
(M) Other uses of
forfeiture proceeds.
(b) The State Auditor
and the Joint Committee on Government and Finance may also require information
not specified in this section to be reported.
(c) Each law-enforcement
agency shall file with the State Auditor the report required under subsection
(a) of this section for the law-enforcement agency and the corresponding
prosecutor's office. The law-enforcement agency shall file separate reports for
forfeitures completed under state forfeiture law and federal forfeiture law. A
null report shall be filed by a law-enforcement agency that did not engage in
seizures or forfeitures during the reporting period.
§12-5A-4. Standard form, data entry and aggregate
report.
(a) The State Auditor
shall develop a standard form, process and deadlines for electronic data entry
for annual submission of forfeiture data by law-enforcement agencies. The State
Auditor shall compile the submissions and issue an aggregate report of all
forfeitures in the state.
(b) By April 1 of each
year, the State Auditor shall make available on its website the reports
submitted by law-enforcement agencies and its aggregate report. It shall
distribute printed copies of its aggregate report to legislators, other
government officials and the pubic upon request.
§12-5A-5. Recommendations.
The State Auditor shall
include in its aggregate report recommendations to the Legislature to improve
forfeiture statutes to better ensure that forfeiture proceedings are reported
and handled in a manner that is fair to crime victims, innocent property
owners, secured interest holders, citizens and taxpayers.
§12-5A-6. Penalty for failure to report.
The State Auditor shall
include in the aggregate report information on law-enforcement agencies not in
compliance with this article. The state shall withhold payment of any funds due
to those agencies until compliance is achieved.
§12-5A-7. Use of forfeiture proceeds to pay reporting
costs.
The State Auditor may
recoup his or her costs by charging a fee to law-enforcement agencies that
engage in seizures or forfeitures during the reporting period. Each law-enforcement
agency may use forfeiture proceeds to pay the cost of compiling and reporting
data under this article, including any fee imposed by the State Auditor.
§12-5A-8. Public disclosure.
The data and reports
compiled and prepared under this article about completed forfeitures are public
information under the state’s Freedom of Information Act, and are not exempted
from disclosure by section four, article one, chapter twenty-nine-b of this
code.
NOTE: The purpose of this bill is
to provide legislators with information necessary for basic oversight of law-enforcement
agencies who obtain private property under state and federal forfeiture laws.
The information will be available to the public.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.