H. B. 2231
(By Mr. Speaker, Mr. Chambers, and Delegates Rowe, Douglas,
Kime, Riggs, Fleischauer and Manuel)
[Introduced January 25, 1995; referred to the Committee
on the Judiciary.]
A BILL to amend and reenact section four, article two, chapter
six-b of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to the powers and
duties of the West Virginia ethics commission; penalties for
violations of article; rights of persons charged with
violations of article.
Be it enacted by the Legislature of West Virginia:
That section four, article two, chapter six-b of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC
OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC
AGENCIES.
§6B-2-4. Complaints; dismissals; hearings; disposition; judicial
review.
(a) Upon the filing by any person with the commission of a
complaint which is duly verified by oath or affirmation, 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 complainant or his or
her representative personally filed the complaint with the
commission and was given a receipt or other acknowledgement
evidencing the filing. Within fourteen days after the receipt of
a complaint, an investigative panel shall be appointed to
investigate the substance of the allegations in the complaint and
to determine whether there is probable cause to believe that a
violation of this chapter has occurred. The commission shall
establish by legislative rule promulgated in accordance with
chapter twenty-nine-a of this code a rotation system for the
selection of commission members to sit on investigative panels
whereby the caseload of commission investigations is distributed
among commission members as evenly and randomly as possible.
(b) The commission may investigate a probable violation of
this chapter, in the absence of a filed complaint, in accordance
with the provisions of this subsection.
(1) In the absence of a filed complaint, if the commission
otherwise receives or discovers factual information which, by its
general terms, fairly raises a question as to whether a violation
of this chapter might have occurred, the commission may proceed
to a preliminary evaluation of such information in accordance
with the provisions of this section. In conducting such
preliminary evaluation, the commission shall resolve the
following questions:
(A) Does the information, absent any evidentiary matters or
argumentative statements included therein, set forth a plain and
concise statement of an issue or issues which may properly be considered and resolved by the commission?
(B) Would the allegations of facts contained in such
information, if eventually proved, be sufficient to constitute a
material violation of this chapter?
(C) Is it reasonable to expect that upon further
investigation, sufficient admissible evidence of consequence
would be obtainable to support or refute the existence of the
alleged facts and therefore make a determination by the
commission as to the existence of a violation of this chapter
more probable or less probable than it would be without such
evidence?
(2) To assist the commission in its consideration of the
findings required to be made by this subdivision, staff of the
commission shall prepare a list of all sources of information and
a written summary of the information which has been provided by
each source including the identity of each individual providing
the information. No information from anonymous sources shall be
tendered by the staff of the commission or be received or
considered by the commission.
(3) If, by a recorded vote, eight of the members of the
commission vote in the affirmative on each of the questions
required by the preliminary evaluation described in subdivision
one of this section, then the commission shall appoint an
investigative panel of three of its members to investigate the
matter further to determine whether there is probable cause to
believe that a violation of this chapter has occurred.
(4) If less than eight of the members of the commission
answer in the affirmative as to any of the questions required to be answered by subdivision one of this subsection, or if the
investigative panel appointed pursuant to subdivision three of
this subsection shall decline to present a statement of charges,
then all reports, records and documents of the commission
pertaining to the matter shall be laid before the commission and
the commission shall thereupon seal the same and identify the
sealed record only by a coded number or other appropriate
notation which will secure the confidentiality of its contents in
conformity with the provisions of this chapter. The sealed
record shall be reopened only for the conduct of a proceeding
which charges a source of information with having acted in bad
faith as provided for in subsection (u) of this section, or upon
the written request of the person who was the subject of the
alleged violation or his or her counsel, or upon the concurring
vote of not less than eight members of the commission for the
purpose of a subsequent proceeding, or pursuant to the
appropriate order of a court of competent jurisdiction.
(5) Unless and until a finding of probable cause is made by
the investigative panel, the proceedings under this subsection
shall be as confidential in all respects as proceedings commenced
by reason of a filed complaint, and such proceedings shall be
conducted by the commission in executive session or sessions.
The vote of the commission taken pursuant to the provisions of
subdivision three of this subsection shall be made in executive
session and shall not be subject to disclosure nor set forth in
the public minutes of the commission, notwithstanding the
provisions of chapter six, article nine-a of this code.
(b) (c) In the case of a filed complaint, the first inquiry of the investigative panel shall be a question as to whether or
not 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 investigative
panel to be insufficient in this regard, or if it is apparent on
the face of the complaint that the time period for limitations on
proceedings has passed, the investigative panel shall dismiss the
complaint. A dismissal under this subsection shall not preclude
the commission from initiating an investigation on its own
initiative under the provisions of subsection (b) of this
section.
(c) (d) After the commission receives a complaint found by
the investigative panel to be sufficient, or makes a decision to
investigate probable violations after a preliminary evaluation
made in accordance with the provisions of subsection (b) of this
section, the executive director shall give notice of a pending
investigation by the investigative panel to the complainant and
respondent and, where appropriate, the complainant. 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 the basis for an alleged violation of law,
and if a complaint has been filed, 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 investigative panel, 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) (e) Within the forty-five day period following the
mailing of a notice of investigation, the investigative panel
shall proceed to consider (1) the allegations raised in the
complaint or by the commission's inquiry, (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 shall be afforded the opportunity to appear before the
investigative panel and make an oral response to the complaint.
The commission shall, in promulgating legislative rules pursuant
to the provisions of subsection (a), section two of the article,
prescribe the manner in which a respondent may present his or her
oral response to the investigative panel. The commission may
request a respondent to disclose specific amounts received from
a source, and 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 deemed
to be probative as to issues raised by a complaint or an
investigation initiated by the commission. Any information thus received shall be confidential except as provided by subsection
(f) of this section. If the person so requested fails or refuses
to furnish the information to the commission, the commission may
exercise its subpoena power as provided for elsewhere in the
chapter, and any subpoena issued thereunder shall have the same
force and effect as a subpoena issued by a circuit court of this
state, and enforcement of any such subpoena may be had upon
application to a circuit court of the county in which the
investigative panel is conducting an investigation, through the
issuance of a rule or an attachment against the respondent as in
cases of contempt.
(e) (f) (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,
shall be confidential and shall not be knowingly and improperly
disclosed by any member or former member of the commission or its
staff, except as follows:
(A) Upon a finding that probable cause exists to believe that
a respondent has violated the provisions of this chapter, the
complaint and all reports, records, non-privileged and non-
deliberative material introduced at any probable cause hearing
held pursuant to the complaint are thereafter not confidential:
Provided, That confidentiality of such information shall remain
in full force and effect until the respondent has been served by
the commission with a copy of the investigative panel's order
finding probable cause and with the statement of charges prepared pursuant to the provisions of subsection (g) of this section.
(B) After a finding of probable cause as aforesaid, 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 non-deliberative materials introduced into evidence
at such subsequent hearing, as well as the commission's orders,
are not confidential.
(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.
(D) The complaint as well as the identity of the complainant
shall be disclosed to a person named as respondent in any such
complaint filed with the commission immediately upon such
respondent's request.
(E) Where the commission is otherwise required by the
provisions of this chapter to disclose such information or to
proceed in such a manner that disclosure is necessary and
required to fulfill such 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 such information or filing a complaint shall be bound to confidentiality until further order of the
commission.
(3) In any matter in which the commission or its staff has
opened a file for information relating to a possible violation of
this chapter by an individual which information did not result in
the filing of a statement of charges, the file containing such
information shall be destroyed in the presence of the commission
at the expiration of five years after such file was opened except
that the commission may fix an earlier date for the expunging of
any class of such files for which it determines that preservation
for five years is not necessary.
(f) (g) If a majority of the members of the investigative
panel fails to find probable cause, the proceedings shall be
dismissed by the commission in an order signed by the majority
members of the panel, and copies of the order of dismissal shall
be sent to the complainant, if any, and served upon the
respondent forthwith. Upon the written request of a person
subjected to an investigation that does not proceed to a finding
of probable cause, the commission shall include in its public
meeting minutes a notation that the investigation was concluded
without a finding of probable cause. If the investigative panel
decided by a majority vote that there is probable cause to
believe that a violation under this chapter has occurred, the
majority members of the investigative panel 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, and to
schedule a hearing to determine the truth or falsity of the charges, such hearing to be held within ninety days after the
date of the order. 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. Once a finding of probable cause
has been made, the prior findings and determination of the
commission shall not be inquired into further or reviewed, and
the matter shall proceed upon the investigative panel's statement
of charges.
(g) (h) At least eighty days prior to the date of the
hearing, the respondent shall be served 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 such other circumstances as
the commission shall, by legislative rule, direct.
(hi) The commission members who have not served as members
of an investigative panel in a particular case 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. Such
legislative rule shall also contain provisions which seek to
insure that the functions of a hearing examiner will be conducted
in a impartial manner, and shall describe the circumstances and
procedures for disqualification of hearing examiners.
(i) (j) 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 may 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) (k) With respect to allegations of a violation under
this chapter, the complainant has the burden of proof. The West
Virginia rules of evidence as used to govern 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 legislative 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 make 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
indigencye, 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 finding
available to the parties. The hearing examiner shall then submit
the entire record to the commission for final decision.
(kl) 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
finding of fact of the hearing examiner and the parties,
constitute the exclusive record for decision by the commission
members who have not served as members of the investigative
panel, 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) (m) 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,
and briefs may be filed by the parties in accordance with
procedural rules promulgated by the commission. The final
decision of the commission shall be made by the commission
members who have not served as members of the investigative panel
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 board in lieu of a
hearing examiner, within twenty-one days following the close of the evidence.
(m) (n) 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 six members of the commission who have not
served as members of the investigative panel.
(no) 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 a 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) (p) A complainant may be assisted by a member of the
commission staff assigned by the commission after a determination
of probable cause.
(p) (q) No member of the commission staff may participate
in the commission deliberations or communicate with commission
members concerning the merits of a complaint after being assigned
to prosecute a complaint.
(qr) If the commission finds by evidence beyond a
reasonable doubt that the facts alleged in the complaint
statement of charges are true and constitute a material violation
of this article, it may impose one or more of the following
sanctions:
(1) Public reprimand;
(2) Cease and desist orders;
(3) Orders of restitution for money, things of value or
services taken or received in violation of this chapter; or
(4) Fines not to exceed one thousand dollars per violation.
In addition to imposing such sanctions, the commission may
recommend to the appropriate governmental body that a respondent
be terminated from employment or removed from office, or
suspended for a definite period of time with or without salary.
The commission may institute civil proceedings in the
circuit court of the county wherein a violation occurred for the
enforcement of sanctions.
(r) (s) At any stage of the proceedings under this section,
the commission may enter into a conciliation agreement with a
respondent if such 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 such negotiations shall remain confidential
except as may be otherwise set forth in the agreement.
(s) (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 is section four,
article five, chapter twenty-nine-a of this code.
(t) (u) In the event the commission finds in favor of the
person complained against, respondent and that the complaint or
an accusation made to the commission which caused the investigation was without merit and was brought or made in bad
faith, the commission shall order reimbursement of all actual
costs incurred, including, but not limited to, attorney fees to
be paid to the person complained against respondent by the
complainant, if the commission finds that the complaint was
brought or made in bad faith. In addition, the aggrieved party
or the person whose accusation made to the Commission caused the
commission to investigate an alleged violation on its own
initiative and the respondent shall have a cause of action and be
entitled to compensatory damages, punitive damages, costs and
attorney fees for a complaint made or brought in bad faith from
such person.
(u) (v) If at any stage in the proceedings under this
section, it appears to an investigative panel, a hearing examiner
or the commission that a criminal violation may have been
committed by the respondent, such situation shall be brought
before the full commission for its consideration. If, by a vote
of two-thirds of the full commission, it is determined that
probable cause exists to believe a criminal violation has
occurred, it may recommend to the appropriate county prosecuting
attorney having jurisdiction over the case that a criminal
investigation be commenced. Deliberations of the commission with
regard to a recommendation 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 commission determines that a criminal violation has not
occurred, the commission shall remand the matter to the
investigative panel, the hearing examiner or the commission
itself as a hearing board, as the case may be, for further
proceedings under this article.
(v) (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 two years before the filing of a complaint under subsection
(a) of this section or the appointment of an investigative panel
by the commission under subsection (b) of this section and not
more than three years prior to the filing of a statement of
charges unless the commission makes a referral for a criminal
investigation pursuant to subsection (v) of this section prior to
filing a statement of charges. In cases where a referral is made
pursuant to subsection (v) of this section prior to the filing of
a statement of charges, the commission must file a statement of
charges within one year after action on the referred matter is
concluded.
NOTE: The purpose of this bill is to give the West Virginia
Ethics Commission the power to begin an investigation only if
eight of its members find there is credible evidence to suggest
that a material violation of the Ethics Act has occurred. The
bill also gives the Ethics Commission the power to punish a
person who, acting in bad faith, makes an unsworn complaint or
accusation which causes the Commission to begin an investigation
which proved to be without merit. It also gives the Commission
the authority to recommend that a person who is found to have
violated the Act should be suspended or demoted with loss of pay.
The bill makes technical changes and corrects typographical
errors.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.