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.