WEST virginia Legislature
2016 regular session
Introduced
House Bill 4432
By Delegates Cowles, Ihle, O’Neal, Weld, Fleischauer, McCuskey and Pushkin
[Introduced February 8, 2016;
Referred
to the Committee on Political Subdivisions then the Judiciary.]
A BILL to amend and reenact §6-6-1 and §6-6-7 of the Code of West Virginia, 1931, as amended, and to amend said code by adding thereto a new section, designated §6-6-10, all relating to removal of officers; defining terms; revising procedures for removal of certain officers and providing for the payment of costs.
Be it enacted by the Legislature of West Virginia:
That §6-6-1 and §6-6-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §6-6-10, all to read as follows:
ARTICLE 6. REMOVAL OF OFFICERS.
§6-6-1. Definitions.
(a) The term "neglect of duty," or the term
"official misconduct," as used in this article, means any willful
unlawful behavior by a public officer in the performance of the duties of the
public office committed during the challenged officer’s present term of
office. shall include the willful waste of public funds by any officer
or officers, or the appointment by him the officer or them the officers of an
incompetent or disqualified person to any office or position and the retention
of such person in office, or in the position to which he the person was
appointed, after such incompetency or disqualification is made to appear, when
it is in the power of such officer to remove such incompetent or
disqualified person
(b) The term “neglect of duty” as used in this article, means the knowing refusal or willful failure of a public officer to perform an essential act or duty of the office required by law and occurring during the challenged officer’s present term of office.
(c) The term
"incompetence," as used in this article, shall includes the
following acts or adjudications committed or arising during the
challenged officer’s present term of office; the repeated wasting
waste or misappropriation of public funds by any officer, when the
officer knew or should have known that such use of funds was inappropriate or
inconsistent with the lawful duties of office; or conviction of a misdeameanor
involving dishonesty or violence; or conviction of a felony; or having been the
subject of the determination of incapacity, as defined by section seven,
article thirty, chapter sixteen of this code. habitual drunkenness,
habitual addiction to the use of narcotic drugs, adultery, neglect of duty, or
gross immorality, on the part of any officer. The term "incompetent
person," as used in this section, shall include any appointee or employee
of any officer or officers, including county court, municipal bodies or
officers, and boards of education, who willfully wastes or misappropriates
public funds, or who is guilty of habitual drunkenness, habitual addiction to
the use of narcotic drugs, adultery, neglect of duty or gross immorality
(d) The term “qualified petitioner” as used in this article, means a registered voter who voted in the most recent general election.
§6-6-7. Procedure for removal of county, school district and municipal officers having fixed terms; appeal; grounds.
(a) Any person holding any
county, school district or municipal office, including the office of a member
of a Board of Education and the office of magistrate, the term or tenure of
which office is fixed by law, whether the office be elective or appointive,
except judges of the circuit courts, may be removed from such office in the
manner provided in this section for neglect of duty, official
misconduct, malfeasance in office, incompetence, neglect of duty or
gross immorality or for any of the causes or on any of the grounds provided
by any other statute.
(b) Charges may be preferred
proffered:
(1) In the case of any
county officer, member of a district board of education or magistrate,
by a duly enacted resolution of the county commission which shall set
forth therein the name and office of the changed officer, the alleged wrongful
acts, the dates the alleged acts occurred and the grounds for removal as
provided in this article or other tribunal in lieu thereof, any other
officer of the county, or by petition with a any number of signatures
of qualified petitioners not fewer than ten percent persons other than
such county officers, which number shall be the lesser of fifty or one
percent of the total number of voters who voted in the most recent
general election of the county participating in the general
election next preceding the filing of such charges The petition shall
set forth therein the name and office of the challenged officer, the alleged
wrongful acts and the grounds for removal as provided in this article.
(2) In the case of any
municipal officer, by a duly enacted resolution of the governing body of the
municipality which shall set forth therein the name and office of the
challenged officer, the alleged wrongful acts, the dates the acts
occurred and the grounds for removal as provided in this article, the
prosecuting attorney of the county wherein such municipality, or the greater
portion thereof, is located, any other elected officer of the municipality,
or by petition with a any number of signatures of qualified
petitioners not fewer than ten percent of persons other than the
prosecuting attorney or other municipal elective officer of the municipality
who are residents of the municipality, which number shall be the lesser of
twenty-five or one percent of the total number of voters who voted in
the most recent municipal general election. of the municipality A
petition shall set forth therein the name and office of the challenged officer,
the alleged wrongful acts and the grounds for removal as provided in this
article. participating in the election at which the governing body was
chosen which election next preceded the filing of the petition.
(3) By the chief inspector and supervisor of public offices of the state where the person sought to be removed is entrusted by law with the collection, custody and expenditure of public moneys because of any intentional or unlawful misapplication, misappropriation or embezzlement of such moneys.
(c) When removal is
proffered by a duly enacted resolution of a county commission or municipal
governing body, a certified copy of the resolution shall be served by the clerk
of the commission or governing body upon the circuit court in whose
jurisdiction the officer serves within five business days of adoption of the
resolution. The proffering county commission or governing body shall be
responsible for the prosecution of the removal resolution. When removal is
proffered by petition, the charges shall be reduced to writing and each
page on which signatures are affixed shall include the name and office of the
challenged officer, the charges or grounds for removal, which may be achieved
by attachment to each signature page, and an informed acknowledgement of and
agreement with the charges. in the form of a petition duly verified by
at At least one of the persons bringing the same petition shall
serve the original petition upon the circuit court in whose jurisdiction the
officer serves, and shall be responsible for the prosecution of the
removal action. Any such resolution or petition shall be received and
entered of record by the court, or the judge thereof in vacation, and a summons
shall thereupon be issued by the clerk of such court, together with a copy of
the resolution or petition, requiring the officer or person named
therein, or legal counsel therefor, to appear before the court for a
preliminary hearing, at the courthouse of the county where such officer
resides, for the purpose of a judicial determination as to the validity of
the resolution or petition and to hear any related objections or motions that
may be presented by the officer. and answer the charges on a day to be
named therein, which The summons shall be served at least twenty
days before the return day thereof in the manner by which a summons commencing
a civil suit may be served within five business days of the receipt of the
resolution or petition by the court.
(d) The court, or judge thereof in vacation, or in the case of any multijudge circuit, the chief judge thereof, shall, have the authority to evaluate any resolution or petition for any procedural defect, and to consider all the allegations made in the resolution or petition in light of the applicable case law and the required strict construction of the ground asserted, and consulted whether or not the allegations asserted would be sufficient, if proven by clear and convincing evidence, to warrant the removal of the officer from office. In the case of a petition, the court may require that the clerk responsible for the maintenance of voting records for the governing body for whom the officer serves provide an affidavit verifying the number of qualified petitioner’s signatures and the applicable total number of registered voters.
(e) If the court finds,
after consideration of any motions or objections filed by the officer and/or in
the court’s discretion consistent with the authority provided herein, that the
resolution or petition is defective or the allegations stated therein do not
meet the standards for removal set forth herein, the resolution or petition
shall be dismissed by the court. If the court finds that the resolution or
petition is sufficient under the standards for removal set forth herein to
proceed to a hearing before a three judge court, the court shall, without delay forward a copy of the resolution
or petition to the Supreme Court of Appeals. and shall ask for the
impaneling or convening of a three-judge court consisting of three circuit
judges of the state.
(f) Upon receipt of said
resolution or petition, the chief
justice of the Supreme Court of Appeals shall without delay empanel a three
judge court which may consist of the judge who has forwarded the resolution or
petition to the supreme court, and two additional judges neither designate
and appoint three circuit judges within the state, not more than one of
whom shall be from the same circuit in which the petition is filed and, in the
order of such appointment, shall designate the date, time and place for the
convening of such three-judge court, which date and time shall not be less than
twenty days from the date of the receipt by the supreme court of the
resolution or the filing of the petition.
Such three-judge court
shall, without a jury, hear the charges and any motions filed by either
party and all evidence offered in support thereof or in opposition thereto
and upon satisfactory proof of the charges by clear and convincing
evidence as to warrant the removal of the officer shall remove any
such officer or person from office and place the records, papers and property
of his or her office in the possession of some other officer or person
for safekeeping or in the possession of the person appointed as hereinafter
provided to fill the office temporarily. Any final order either removing or
refusing to remove any such person from office shall contain such findings of
fact and conclusions of law as the three-judge court shall deem sufficient to
support its decision of all issues presented to it in the matter.
(d) (g) An appeal from an order of such
three-judge court removing or refusing to remove any person from office
pursuant to this section may be taken to the Supreme Court of Appeals within
thirty days from the date of entry of the order from which the appeal is taken.
The Supreme Court of Appeals shall consider and decide the appeal upon the
original papers and documents, without requiring the same to be printed and
shall enforce its findings by proper writ. From the date of any order of the
three-judge court removing an officer under this section until the expiration
of thirty days thereafter, and, if an appeal be taken, until the date of
suspension of such order, if suspended by the three-judge court and if not
suspended, until the final adjudication of the matter by the Supreme Court of
Appeals, the officer, commission or body having power to fill a vacancy in such
office may fill the same by a temporary appointment until a final decision of
the matter, and when a final decision is made by the Supreme Court of Appeals
shall fill the vacancy in the manner provided by law for such office.
(e) (h) In any case wherein the charges are
preferred by the chief inspector and supervisor of public offices against the
county commission or any member thereof or any county, school district
or municipal officer, the proceedings under this section shall be conducted and
prosecuted in the same manner set forth herein for removal by resolution or
petition by the prosecuting attorney of the county in which the officer
proceeded against resides, and on any appeal from the order of the three-judge
court in any such case, the Attorney General of the state shall represent the
people. When any municipal officer is proceeded against the solicitor or
municipal attorney for such municipality may assist in the prosecution of the
charges.
§6-6-10. Costs.
If a judicial proceeding under this article is dismissed or otherwise resolved in favor of the challenged officer, the political subdivision for which the officer serves shall pay court costs and reasonable attorney fees for the officer.
NOTE: The purpose of this bill is to add definitions, amend thresholds and clarify procedures for removal of office of any person holding any county, school district or municipal office, for neglect of duty, malfeasance of office, official misconduct or for any of the causes or on any of the grounds provided by any other statute.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.