H. B. 2003
(By Mr. Speaker, Mr. Chambers, and Delegates Staton,
Gallagher and Trump)
(Introduced January 11, 1995; referred to the Committee
on the Judiciary.)
A BILL to amend article ten, chapter sixty-one of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated
section thirty-two, creating the misdemeanor offense of
demoting or discharging or threatening to demote or
discharge a government employee upon the ground of the
employee's political affiliation; requiring specific
findings or special interrogatories as to certain elements
of the offense; defining certain terms; providing a
penalty for such misdemeanor offense; providing that a
conviction constitutes grounds for impeachment or removal
from office; and establishing venue and jurisdiction for
offenses.
Be it enacted by the Legislature of West Virginia:
That article ten, chapter sixty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section
thirty-two, to read as follows:
ARTICLE 10. CRIMES AGAINST PUBLIC POLICY.
§61-10-32. Unlawful demotion or discharge of government
employee for political affiliation; penalties.
(a) It is unlawful for any elected or appointed public
official to demote or discharge or threaten to demote or
discharge a government employee upon the ground of the
employee's political affiliation.
(b) In addition to any other elements of an alleged
offense under this section which must be proved, no conviction
may be had under the provisions of this section unless the
trier of fact determines, either through specific findings made
by the court in a trial without a jury, or through special
interrogatories to the jury in a jury trial, that all of the
following facts are proved beyond a reasonable doubt:
(1) That the employee was demoted or discharged or
threatened with demotion or discharge by the defendant or at
the defendant's direction;
(2) That the employee was satisfactorily performing his
or her duties and was not subject to demotion or discharge for
good cause or for any other lawful reason;
(3) That the employee was not employed as a policymaking
employee;
(4) That the employee was not employed in a position
which required the employee to share a confidential relationship with a public official;
(5) That the employee's political affiliation was not an
appropriate requirement for the effective performance of the
employment involved; and
(6) That the defendant public official demoted or
discharged the employee because of the employee's affiliation
with a specific political party or a faction thereof; or that
the defendant conditioned the employee's continued employment
upon the employee affiliating with a specific political party
or a faction thereof, obtaining the support of a specific
political party or a faction thereof, or obtaining the
sponsorship of a member of a specific political party or a
faction thereof.
(c) In this section, unless a different meaning plainly
is required:
(1) "Confidential relationship" means a relationship
whereby an employee is entrusted with the confidence of a
public official or with the confidence of such public
official's secret affairs or purposes. A confidential
relationship is not limited to any specific relationship
between a public official and his or her employee, and
includes, but is not limited to, a relationship which exists
between a public official and his or her personal secretary, a
relationship which exists between a public official and his or
her attorney, and any other such similar relationship which
requires the utmost good faith and sense of duty in transactions arising between a public official and his or her
employee.
(2) "Demotion" means a reduction in pay or benefits.
Demotion does not include a reassignment of duties which would
move an employee from a policymaking position or a confidential
relationship.
(3) "Good cause" means a substantial ground or reason for
demotion or discharge of a government employee which arises out
of incompetence, insubordination, willful neglect of duty or
immorality. A ground or grounds for demotion or discharge for
good cause exists when an employee has either failed or refused
to perform the duties for which the employee is employed, or
the employee is unfit to perform the duties for which the
employee is employed. The cause for dismissal must specially
relate to and affect the administration of the office, and must
be restricted to something of a substantial nature directly
affecting the rights and interests of the public.
(4) "Government employee" means an employee of this state
or any of its political subdivisions who is not a policymaking
employee or who does not hold an employment position which
requires the employee to share a confidential relationship with
a public official.
(5) "Policymaking employee" means an employee who (A)
acts as an advisor to, or formulates plans for the
implementation of broad goals for, the executive or
administrative head of a governmental agency, (B) is in charge of a major administrative component of the agency and (C)
reports directly and is directly accountable to the
administrative or executive head of the agency.
(d) Any person who violates the provisions of this
section is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than one thousand dollars nor
more than ten thousand dollars.
(e) When a conviction under this section becomes final,
and is properly based upon the specific findings required by
subsection (b) of this section, the conviction constitutes
official misconduct or malfeasance in office under any
provisions of the Constitution of West Virginia, pertinent
statutory law, or principles of common law which govern the
impeachment or removal from office of public officers or
employees:
Provided,
That an absence of prosecution or an
acquittal on a charge brought pursuant to the provisions of
this section shall not bar an independent proceeding for
impeachment or removal from office in which proof as to the
elements described in subdivisions (1) through (6), subsection
(b) of this section may form the basis for the impeachment or
removal from office. For purposes of this subsection, a
conviction becomes final when the trial court affirms the
verdict of the trier of fact by its action on a defendant's
final attempt to secure a new trial at the trial court level
prior to an initial appeal, or when a defendant fails to take a
necessary action to perfect an appeal, whichever is sooner.
(f) Venue for an offense under the provisions of this
section shall be in the county wherein the government employee
who is alleged to have been demoted or discharged, or is
alleged to have been threatened with demotion or discharge, had
his or her principal place of employment as a government
employee. The circuit courts of this state shall have
exclusive jurisdiction of offenses under this section.
NOTE: The purpose of this bill is to make it a misdemeanor
offense to unlawfully demote or discharge or threaten to demote
or discharge a government employee upon the ground of the
employee's political affiliation. The proposed bill also
provides that a public officer or employee who demotes or
discharges or threatens to demote or discharge a government
employee upon the ground of the employee's political
affiliation may be impeached or removed from office.