WEST virginia legislature

2016 regular session

Committee Substitute

for

Senate Bill 344

By Senators Cole (Mr. President), Hall, Kessler and Trump

[Originating in the Committee on the Judiciary; reported on February 24, 2016]

A BILL to amend and reenact §4-5-1, §4-5-2, §4-5-3, §4-5-4, §4-5-5 and §4-5-6 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §4-5-7 and §4-5-8, all relating to Commission on Special Investigations; clarifying composition and chairmanship of commission; redefining what constitutes a quorum for voting procedures of commission; clarifying contents of commission’s annual report; listing existing and necessary commission staff positions; defining a person’s or federal or state agency’s duty to cooperate with commission during investigations and requiring  persons and agencies to disclose information and documents to commission; establishing requirements for commission to enter into executive session; establishing procedures for conducting executive session; removing requirement that Joint Committee on Government and Finance approve expenses of commission; establishing procedure for commission retention and disposal of records; defining new felony offense of making false statement to commission; setting penalties for making false statement to commission; defining new felony offense of impersonating a commission member or staff member; setting penalties for impersonating a commission member or staff member; allowing the commission award duty weapons to certain members on retirement; and disposal of surplus weapons.

Be it enacted by the Legislature of West Virginia:

That §4-5-1, §4-5-2, §4-5-3, §4-5-4, §4-5-5 and §4-5-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §4-5-7 and §4-5-8, all to read as follows:

ARTICLE 5. COMMISSION ON SPECIAL INVESTIGATIONS.

§4-5-1. Commission continued as Commission on Special Investigations continued; composition; appointment and terms of members.

The purchasing practices and procedures commission, heretofore created, shall continue in existence but on and after the effective date of this section shall be named and designated the Commission on Special Investigations is continued. The commission shall continue to be composed of five the President of the Senate and four members of the Senate, to be appointed by the president thereof, President of the Senate, no more than three two of whom shall be from the same political party; and five the Speaker of the House of Delegates and four members of the House of Delegates, to be appointed by the speaker Speaker of the House of Delegates thereof, no more than three two of whom shall be appointed from the same political party: Provided, That in the event the membership of a political party is less than fifteen percent in the House of Delegates or Senate, then the membership of that political party from the legislative house with less than fifteen percent membership may be one from that house. The commission shall be headed chaired by two cochairmen, one to be selected by and from the members appointed from the Senate, and one to be selected by and from the members appointed from the House of Delegates the President of the Senate and the Speaker of the House of Delegates. All members of the commission shall appointed to the commission by the commission chairs serve until their successors shall have been are appointed as heretofore provided in this section.

§4-5-2. Powers and duties generally.

(a) The Commission on Special Investigations shall have the power, duty and responsibility may, upon a majority vote by a quorum of the members appointed, to:

(1) Conduct a comprehensive and detailed investigation into the purchasing practices and procedures of the state;

(2) Determine if there is reason to believe that the laws or public policy of the state in connection with purchasing practices and procedures have been violated or are inadequate;

(3) Determine if any criminal or civil statutes relating to the purchasing practices and procedures in this state are necessary to protect and control the expenditures of money by the state;

(4) Investigate or examine any matter involving conflicts of interest, bribery of state officials, malfeasance, misfeasance or nonfeasance in office by any employee or officer of the state;

(5) Conduct comprehensive and detailed investigations to determine if any criminal or civil statutes have been violated at any level of state government;

(6) Determine whether to recommend criminal prosecution or civil action for any violation, either criminal or civil, at any level of state government and, if it is determined that action is necessary, to make appropriate recommendation to the Attorney General, prosecuting attorney or other authority empowered to act on such the recommendation; and

(7) Make such written reports determined advisable by the commission to the members of the Legislature between its sessions. thereof as the commission may deem advisable and on On the first day of each regular session of the Legislature, the commission shall make an annual report on its activities to the Legislature containing the commission's findings and recommendations including in such report drafts of for any proposed legislation which it deems considers necessary to carry such the recommendations into effect.

(b) The commission is also expressly empowered and authorized to may also:

(1) Sit during any recess of the Senate and House of Delegates;

(2) Recommend to the judge of any circuit court that a grand jury be convened pursuant to the provisions of section fourteen, article two, chapter fifty-two of this code to consider any matter which the commission may deem considers in the public interest and, in support thereof, make available to such the court and such the grand jury the contents of any reports, files, transcripts of hearings or other evidence pertinent thereto to the matter;

(3) Employ such necessary legal, technical, investigative, clerical, stenographic, advisory and other personnel as it deems needed and, within the appropriation herein specified in section four of this article, fix reasonable compensation of such  any persons and firms as may be that are employed. The commission’s investigative staff shall consist of a director, deputy director, senior investigators and investigators, as approved by the cochairs: Provided, That such personnel as the commission may determine shall have the authority authorize certain personnel to administer oaths and take affidavits and depositions anywhere in the state.;

(4) Consult and confer with all public and private persons and agencies, public (whether federal, state or local) and private, including federal and state agencies and state political subdivisions that have information and data pertinent to an investigation; and all state and local governmental personnel and agencies and state political subdivisions shall cooperate to the fullest extent with the commission. Notwithstanding any provision of this code that imposes an obligation of confidentiality or secrecy, other than the provisions of Rule 6(e) of the West Virginia Rules of Criminal Procedure or matters relating to a person’s attorney-client privilege, for the purposes of this subdivision, the term “cooperate” includes the disclosure and production of any documents, reports or other items in the possession of a state agency or state political subdivision and its personnel, upon the commission’s request to assist it in its investigation: Provided, That the commission is not required to issue a subpoena as provided for in section three of this article when requesting disclosure of any information or the production of any documents;

(5) Call upon any department or agency of state or local government or state political subdivision for such any services, information and assistance as it may deem it considers advisable; and

(6) Refer such appropriate matters as are appropriate to the office of the United States attorney Attorney and cooperate with such  that office in the disposition of matters so referred.

(c) Notwithstanding any provision of this code to the contrary, specific personnel may be designated by the commission to carry a firearm in the course of performing his or her official duties: Provided, That as a precondition of being authorized to carry a concealed weapon in the course of their official duties, any such designated personnel must have shall first successfully completed complete a firearms training and certification program which is equivalent to that which is required of members of the state police State Police. The designated persons must shall also possess a license to carry a concealed deadly weapon in the manner prescribed in article seven, chapter sixty-one of this code.

§4-5-3. Executive sessions; hearings; subpoena power; enforcement provisions.

(a) Upon a quorum vote, The the commission shall have the power and authority to may hold executive sessions for the purpose of establishing business, establishing policy, an agenda and the interrogation of and reviewing investigations and interrogating a witness or witnesses: Provided, That if a witness desires a public or open hearing he the witness shall have the right to may demand the same one and shall not be heard otherwise: Provided, however, That if a witness desires a hearing in an executive session, he shall have the right to the witness may demand the same one and shall not be heard otherwise. However, Members of the staff of the commission may be permitted to attend executive sessions with permission of the commission chairs.

(b) The commission is hereby empowered and authorized to may examine witnesses and to subpoena such any persons and books, records, documents, papers or any other tangible things as it believes should be examined to make a complete investigation. All witnesses appearing before the commission shall testify under oath or affirmation, and any member of the commission or member of the commission staff may administer oaths or affirmations to such the witnesses. To compel the attendance of witnesses at such hearings to attend a hearing or the production of produce any books, records, documents, papers or any other tangible thing, in any form in which they may exist, the commission is hereby empowered and authorized to may issue subpoenas, signed by one of the cochairmen cochairs in accordance with section five, article one, chapter four of this code. Such The subpoenas shall be served by any person authorized by law to serve and execute legal process and service shall be made without charge. Witnesses subpoenaed to attend hearings shall be allowed the same mileage and per diem as is allowed witnesses before any petit jury in this state.

(c) If any person subpoenaed to appear at any hearing shall refuse refuses to appear or to answer inquiries there propounded, or shall fail or refuse fails or refuses to produce books, records, documents, papers or any other tangible thing within his or her control when the same they are demanded, the commission shall report the facts to the circuit court Circuit Court of Kanawha county County or any other court of competent jurisdiction and such the court may compel obedience to the subpoena as though such the subpoena had been issued by such the court in the first instance.

§4-5-4. Compensation and expenses of members; other expenses; how paid. joint committee approval.

The members of the commission shall receive travel, interim and out-of-state expenses, as authorized in sections six, eight and nine, article two-a of this chapter. Such expenses and all other expenses including those incurred in the employment of legal, technical, investigative, clerical, stenographic, advisory and other personnel shall be paid from the appropriation under Account No. 103 for Joint Expenses. but no expense of any kind whatever shall be incurred unless the approval of the Joint Committee on Government and Finance therefor is first had and obtained by the commission.

§4-5-5. Investigations exempt from public disclosure requirements; retention and disposal of commission records.

(a) The investigations conducted by the commission and the materials placed in the files of the commission as a result of any such investigation are exempt from public disclosure under the provisions of chapter twenty-nine-b of this code.

(b) Notwithstanding any other provision of this code to the contrary, the commission may dispose of printed materials placed in its files upon a vote of the commission: Provided, That the commission shall save copies of materials filed on or after January 1, 2010, in electronic form prior to their disposal.

§4-5-6. False statements to commission; felony.

(a) A person is guilty of making a false statement to the Commission on Special Investigations when:

(1) Such That person, with the intent to impede the commission or to impede an investigator of the commission acting in the lawful exercise of his or her official duties, knowingly and willfully makes any false, fictitious or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry;

(2) Such The statement, representation, writing or document is made or given to the commission or an investigator of the commission acting in the lawful exercise of his or her official duties; and

(3) The misrepresentation is material.

(b) The provisions of subsection (a) of this section are not applicable to a person in the relation of husband and wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, of an individual who is the subject of an investigation by the commission.

(c) Any person who violates the provisions of this section is guilty of a misdemeanor felony and, upon conviction thereof, shall be committed to the custody of the Division of Corrections for not less than one and not more than five years, or fined not less than $100 $1,000 nor more than $1,000 or confined in jail for not more than one year, $5,000, or both, in the discretion of the circuit court.

§4-5-7. Impersonation of commission member or staff; felony.

(a) A person is guilty of impersonating a Commission on Special Investigations member or staff if he or she does one of the following:

(1) Falsely represents himself or herself to be a member or staff member of the commission;

(2) Falsely represents himself or herself to be under the order or direction of the commission or commission staff; or

(3) Falsely presents a badge, credentials, other insignia, or likeness thereof, used by the commission for identification as a commission member or staff.

(b) Any person who violates the provisions of this section is guilty of a felony. Upon conviction for impersonating a commission member or staff, a person will be committed to the custody of the Division of Corrections for not less than one and not more than five years, or fined not more than $5,000, or both, in the discretion of the circuit court.

§4-5-8. Awarding duty weapon upon retirement and disposal of duty weapon when replaced due to routine wear.

(a) Upon the retirement of a member of the commission’s investigative staff, the cochairs shall award to the retiring member his or her primary duty weapon, without charge, upon determining that the retiring member is retiring honorably with:

(1) At least twenty years of previously recognized law-enforcement service and an additional ten years of actual service as a member of the commission’s investigative staff:

(2) At least twenty years of actual service as a member of the commission’s investigative staff; or

(3) Less than the required service time, based upon a determination that he or she is totally physically disabled as a result of his or her service with the commission.

(b) Notwithstanding the provisions of subsection (a) of this section, the cochairs shall not award his or her primary duty weapon to any retiring member whom the cochairs find to be mentally incapacitated or who constitutes a danger to any person or the community.

(c) The disposal of the commission’s primary and secondary duty weapons, when replaced due to age or routine wear, shall not fall under the jurisdiction of the agency for surplus property within the Purchasing Division of the Department of Administration. The commission may offer these surplus weapons for sale at fair market value to any active or retired member of the commission’s investigative staff that is or was previously designated by the commission to carry a firearm with the proceeds from any sales used to offset the cost of new weapons. Any unsold weapons may be included as trade-ins toward the purchase of new weapons.