Senate Bill No. 413
(By Senators Wooton, Ball, Sharpe, Oliverio,
Bailey, Minard, Helmick, Kessler and Ross)
____________
[Introduced February 4, 2000; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
____________
A BILL to amend and reenact section three, article ten, chapter
fifteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section four hundred nine, article four, chapter thirty-two of
said code, all relating to allowing the auditor as the
commissioner of securities to cooperate with other
law-enforcement agencies in criminal investigations without
compromising the investigation; and to provide for the
commissioner and enforcement staff of the commissioner of
securities to be sworn law-enforcement personnel.
Be it enacted by the Legislature of West Virginia:
That section three, article ten, chapter fifteen of the code
of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section four hundred nine,
article four, chapter thirty-two of said code be amended and
reenacted, all to read as follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 10. COOPERATION BETWEEN LAW-ENFORCEMENT AGENCIES.
§15-10-3. Definitions.
In this article, unless a different meaning plainly is
required:
(1) "Criminal justice enforcement personnel" means those
persons:
(A) Within the state criminal justice system who are actually
employed as members of the division of public safety West Virginia
state police, members of the division of protective services, state
conservation officers, chiefs of police and police of incorporated
municipalities and county sheriffs and their deputies, and whose
primary duties are the investigation of crime and the apprehension
of criminals; and
(B) Within the office of the state auditor, charged with the
enforcement of chapter thirty-two of this code.
(2) "Head of a law-enforcement agency" means the
superintendent of the division of public safety West Virginia state police, the director of the division of protective services, the
chief conservation officer of the division of natural resources, a
chief of police of an incorporated municipality or a county
sheriff.
CHAPTER 32. UNIFORM SECURITIES ACT.
ARTICLE 4. GENERAL PROVISIONS.
§32-4-409. Criminal penalties, agency cooperation and
participation in criminal investigations with
other law enforcement agencies; cooperative
criminal investigation efforts between
commissioner of securities and other law
enforcement agencies; exemption from open
governmental meetings act and freedom of
information act; swearing of oaths; no
limitation upon punishment under other sections
of the code.
(a) Any person who willfully violates any provision of this
chapter, except section 404, or who willfully violates any rule or
order under this chapter, or who willfully violates section 404
knowing the statement made to be false or misleading in any
material respect, shall be is guilty of a felony and, upon
conviction thereof, shall be fined not more than fifty thousand dollars, or imprisoned in the penitentiary a state correctional
facility not less than one nor more than three years, or both fined
and imprisoned. but No person may be imprisoned for the violation
of any rule or order if he or she proves that he or she had no
knowledge of the rule or order. No indictment may be returned
under this chapter more than five years after the alleged
violation.
(b) The commissioner may refer such evidence as that is
available concerning violations of this chapter or of any rule or
order hereunder promulgated or issued under this chapter to the
proper prosecuting attorney, who may, with or without such a
reference, institute the appropriate criminal proceedings under
this chapter.
(c) Notwithstanding any other provision of the code to the
contrary, the commissioner of securities, or designee and the
commissioner's enforcement staff are empowered and authorized to
cooperate with criminal investigations of securities-related
violations, which may include the exchange, sharing or provision of
information among other law-enforcement agencies and the
commissioner of securities and the commissioner's enforcement
staff. The cooperation, participation, sharing, provision of and exchange of information is not a waiver of investigatory
confidentiality or immunity by any agency participating in the
cooperative arrangements or the commissioner of securities and the
commissioner's enforcement staff. The cooperation and sharing of
information between other law-enforcement agencies and the
commissioner of securities and the commissioner's enforcement staff
is between or among sworn law-enforcement officers and the staff
designated by the commissioner of securities as sworn members of
the commissioner of securities and the commissioner's enforcement
staff. The commissioner of securities may deputize and administer
oaths to additional staff as the commissioner considers necessary
to effectuate the purpose of this chapter and related chapters of
the code.
(d) Cooperative, legitimate and lawful enforcement activities
between the commissioner of securities and the commissioner's
enforcement staff and any other law-enforcement agency or
individual employed by the agency are expressly exempt from the
provisions of section four, article one, chapter twenty-nine-a and
chapter twenty-nine-b of this code.
(e) The commissioner of securities prior to entering upon the
discharge of his or her duties shall take and subscribe to an oath, before a member of the supreme court of appeals, which shall be in
form and effect as the oath provided in subsection (f) of this
section. Each of the members of the commissioner's enforcement
staff prior to entering upon the discharge of his or her duties
shall take and subscribe to an oath before the commissioner, which
shall be in form and effect as the oath provided in subsection (f)
of this section.
(f)(1) The oath required by the provisions of subsection (e)
of this section is:
State of West Virginia,
County of ........................., to wit:
I, ........................., do solemnly swear that I will
support the Constitution of the United States, the Constitution of
the State of West Virginia, and I will honestly and faithfully
perform the duties imposed on me under the provisions of law as
(the commissioner of securities or a member of the West Virginia
commissioner of securities' enforcement staff, as applicable) to
the best of my skill and judgment.
...............................
Taken, subscribed and sworn to before me, this the ...... day
of .......................
............................... .
(2) The oaths of the commissioner and the commissioner's
enforcement staff shall be filed and preserved in the office of the
state auditor.
(c) (g) Nothing in this chapter limits the power of the state
to punish any person for any conduct which constitutes is a crime
by statute or at common law.
NOTE: The purpose of this bill is to allow the West Virginia
Commissioner of Securities and the Commissioner's enforcement staff
to cooperate with other law-enforcement agencies in criminal
investigations without compromising the investigation and to
provide for the Commissioner of Securities and the Commissioner's
enforcement staff to be classified as sworn law-enforcement
personnel.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.