COMMITTEE SUBSTITUTE

FOR

H. B. 2165

(By Delegates Amores, Stalnaker and Everson)


(Originating in the Committee on the Judiciary)


[April 2, 1997]


A BILL to amend article twenty-nine, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section ten, relating to providing immunity from liability for civil damages for certain disclosures of information made by chief executives of law-enforcement agencies, law-enforcement officials and members of the governor's committee on crime, delinquency and correction regarding prospective, current or former law-enforcement officers; presumption of good faith; rebuttal of presumption; and nature of the term "information".

Be it enacted by the Legislature of West Virginia:
That article twenty-nine, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section ten, to read as follows:
ARTICLE 29. LAW-ENFORCEMENT TRAINING AND CERTIFICATION.
§30-29-10. Disclosure of employment information.
(a)(1) Any chief executive as defined in section one of this article, any law-enforcement official as defined in section one of this article, or any person employed by the chief executive or the law-enforcement official, who discloses information about a the job performance of a law-enforcement officer currently or formerly employed by the chief executive or the law-enforcement official to a prospective employer is presumed to be acting in good faith. Unless lack of good faith is shown, the chief executive, the law-enforcement official, or the employee thereof is immune from liability for civil damages for such disclosure or its consequences. For purposes of this section, the presumption of good faith may be rebutted upon a showing by a preponderance of evidence that the information disclosed by such chief executive, law-enforcement official or employee thereof was knowingly false, was deliberately misleading, was rendered with malicious purpose, was disclosed in violation of a nondisclosure agreement, or was otherwise confidential according to applicable federal or state statute, rule or regulation.
(2) As used in this subsection, "information" is written information that is contained in a personnel file maintained by the chief executive or law-enforcement official that has been made available to the employee for inspection and copying at the expense of the employer prior to disclosure, or had been made available to the former employee for inspection and copying at the expense of the employer at the conclusion of the employment, and includes:
(A) Information about the job performance or work characteristics of a law-enforcement officer currently or formerly employed by the chief executive or the law-enforcement official;
(B) Information about any act committed by such law- enforcement officer that would constitute a violation of federal, state or local law; or
(C) An evaluation of the ability or lack of ability of the law-enforcement officer to accomplish or comply with the duties or standards of the position held by such law-enforcement officer.
(b)(1) Any member of the governor's committee on crime, delinquency and correction, or any person employed by the governor's committee, who discloses information about a prospective, current or former law-enforcement officer's training or job performance to a current or prospective employer is presumed to be acting in good faith. Unless lack of good faith is shown, the member or person is immune from liability for civil damages for such disclosure or its consequences. For purposes of this section, the presumption of good faith may be rebutted upon a showing by a preponderance of evidence that the information disclosed by such member or person was knowingly false, was deliberately misleading, was rendered with malicious purpose, was disclosed in violation of a nondisclosure agreement, or was otherwise confidential according to applicable federal or state statute, rule or regulation.
(2) As used in this section, "information" is written information that is contained in any file maintained by the governor's committee on crime, delinquency and correction that has been made available to the law enforcement officer for inspection and copying at the expense of the committee prior to disclosure, and includes:
(A) Information about the training or job performance or work characteristics of a prospective, current or former law- enforcement officer;
(B) Information about any act committed by such prospective, current or former law-enforcement officer that would constitute a violation of federal, state or local law;
(C) An evaluation of the ability or lack of ability of the prospective, current or former law-enforcement officer to comply with the duties or meet the standards of the position held by such prospective, current or former law-enforcement officer or to meet the standards governing law-enforcement training curricula.
(c) Nothing in this section shall affect the rights, duties, defenses, immunities or causes of actions created by article one, chapter six-c of this code or created by any federal law that affords the same or similar protections, rights, duties, defenses, immunities or causes of actions as those created by article one, chapter six-c of this code.