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Introduced Version House Bill 4432 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia Legislature

2016 regular session

Introduced

House Bill 4432

By Delegates Cowles, Ihle, O’Neal, Weld, Fleischauer, McCuskey and Pushkin

[Introduced February 8, 2016; Referred
to the Committee on Political Subdivisions then the Judiciary.]

A BILL to amend and reenact §6-6-1 and §6-6-7 of the Code of West Virginia, 1931, as amended, and to amend said code by adding thereto a new section, designated §6-6-10, all relating to removal of officers; defining terms; revising procedures for removal of certain officers and providing for the payment of costs.

Be it enacted by the Legislature of West Virginia:


That §6-6-1 and §6-6-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §6-6-10, all to read as follows:

ARTICLE 6. REMOVAL OF OFFICERS.


§6-6-1. Definitions.

(a) The term "neglect of duty," or the term "official misconduct," as used in this article, means any willful unlawful behavior by a public officer in the performance of the duties of the public office committed during the challenged officer’s present term of office. shall include the willful waste of public funds by any officer or officers, or the appointment by him the officer or them the officers of an incompetent or disqualified person to any office or position and the retention of such person in office, or in the position to which he the person was appointed, after such incompetency or disqualification is made to appear, when it is in the power of such officer to remove such incompetent or disqualified person

(b) The term “neglect of duty” as used in this article, means the knowing refusal or willful failure of a public officer to perform an essential act or duty of the office required by law and occurring during the challenged officer’s present term of office.

(c) The term "incompetence," as used in this article, shall includes the following acts or adjudications committed or arising during the challenged officer’s present term of office; the repeated wasting waste or misappropriation of public funds by any officer, when the officer knew or should have known that such use of funds was inappropriate or inconsistent with the lawful duties of office; or conviction of a misdeameanor involving dishonesty or violence; or conviction of a felony; or having been the subject of the determination of incapacity, as defined by section seven, article thirty, chapter sixteen of this code.  habitual drunkenness, habitual addiction to the use of narcotic drugs, adultery, neglect of duty, or gross immorality, on the part of any officer. The term "incompetent person," as used in this section, shall include any appointee or employee of any officer or officers, including county court, municipal bodies or officers, and boards of education, who willfully wastes or misappropriates public funds, or who is guilty of habitual drunkenness, habitual addiction to the use of narcotic drugs, adultery, neglect of duty or gross immorality

(d) The term “qualified petitioner” as used in this article, means a registered voter who voted in the most recent general election.


§6-6-7. Procedure for removal of county, school district and municipal officers having fixed terms; appeal; grounds.

(a) Any person holding any county, school district or municipal office, including the office of a member of a Board of Education and the office of magistrate, the term or tenure of which office is fixed by law, whether the office be elective or appointive, except judges of the circuit courts, may be removed from such office in the manner provided in this section for neglect of duty, official misconduct, malfeasance in office, incompetence, neglect of duty or gross immorality or for any of the causes or on any of the grounds provided by any other statute.

(b) Charges may be preferred  proffered:

(1) In the case of any county officer, member of a district board of education or magistrate, by a duly enacted resolution of the county commission which shall set forth therein the name and office of the changed officer, the alleged wrongful acts, the dates the alleged acts occurred and the grounds for removal as provided in this article or other tribunal in lieu thereof, any other officer of the county, or by petition with a any number of signatures of qualified petitioners not fewer than ten percent persons other than such county officers, which number shall be the lesser of fifty or one percent of the total number of voters who voted in the most recent general election of the county participating in the general election next preceding the filing of such charges  The petition shall set forth therein the name and office of the challenged officer, the alleged wrongful acts and the grounds for removal as provided in this article.

(2) In the case of any municipal officer, by a duly enacted resolution of the governing body of the municipality which shall set forth therein the name and office of the challenged officer, the alleged wrongful acts, the dates the acts occurred and the grounds for removal as provided in this article, the prosecuting attorney of the county wherein such municipality, or the greater portion thereof, is located, any other elected officer of the municipality, or by petition with a any number of signatures of qualified petitioners not fewer than ten percent of persons other than the prosecuting attorney or other municipal elective officer of the municipality who are residents of the municipality, which number shall be the lesser of twenty-five or one percent of the total number of voters who voted in the most recent municipal general election. of the municipality  A petition shall set forth therein the name and office of the challenged officer, the alleged wrongful acts and the grounds for removal as provided in this article. participating in the election at which the governing body was chosen which election next preceded the filing of the petition.

(3) By the chief inspector and supervisor of public offices of the state where the person sought to be removed is entrusted by law with the collection, custody and expenditure of public moneys because of any intentional or unlawful  misapplication, misappropriation or embezzlement of such moneys.

(c) When removal is proffered by a duly enacted resolution of a county commission or municipal governing body, a certified copy of the resolution shall be served by the clerk of the commission or governing body upon the circuit court in whose jurisdiction the officer serves within five business days of adoption of the resolution.  The proffering county commission or governing body shall be responsible for the prosecution of the removal resolution.  When removal is proffered by petition, the charges shall be reduced to writing and each page on which signatures are affixed shall include the name and office of the challenged officer, the charges or grounds for removal, which may be achieved by attachment to each signature page, and an informed acknowledgement of and agreement with the charges.  in the form of a petition duly verified by at At least one of the persons bringing the same petition shall serve the original petition upon the circuit court in whose jurisdiction the officer serves, and shall be responsible for the prosecution of the removal action. Any such resolution or petition shall be received and entered of record by the court, or the judge thereof in vacation, and a summons shall thereupon be issued by the clerk of such court, together with a copy of the resolution or petition, requiring the officer or person named therein, or legal counsel therefor, to appear before the court for a preliminary hearing, at the courthouse of the county where such officer resides, for the purpose of a judicial determination as to the validity of the resolution or petition and to hear any related objections or motions that may be presented by the officer. and answer the charges on a day to be named therein, which The summons shall be served at least twenty days before the return day thereof in the manner by which a summons commencing a civil suit may be served within five business days of the receipt of the resolution or petition by the court.

(d) The court, or judge thereof in vacation, or in the case of any multijudge circuit, the chief judge thereof, shall, have the authority to evaluate any resolution or petition for any procedural defect, and to consider all the allegations made in the resolution or petition in light of the applicable case law and the required strict construction of the ground asserted, and consulted whether or not the allegations asserted would be sufficient, if proven by clear and convincing evidence, to warrant the removal of the officer from office.  In the case of a petition, the court may require that the clerk responsible for the maintenance of voting records for the governing body for whom the officer serves provide an affidavit verifying the number of qualified petitioner’s signatures and the applicable total number of registered voters.

(e) If the court finds, after consideration of any motions or objections filed by the officer and/or in the court’s discretion consistent with the authority provided herein, that the resolution or petition is defective or the allegations stated therein do not meet the standards for removal set forth herein, the resolution or petition shall be dismissed by the court.  If the court finds that the resolution or petition is sufficient under the standards for removal set forth herein to proceed to a hearing before a three judge court, the court shall,  without delay forward a copy of the resolution or petition to the Supreme Court of Appeals. and shall ask for the impaneling or convening of a three-judge court consisting of three circuit judges of the state.

(f) Upon receipt of said resolution or petition, the chief justice of the Supreme Court of Appeals shall without delay empanel a three judge court which may consist of the judge who has forwarded the resolution or petition to the supreme court, and two additional judges neither  designate and appoint three circuit judges within the state, not more than one of whom shall be from the same circuit in which the petition is filed and, in the order of such appointment, shall designate the date, time and place for the convening of such three-judge court, which date and time shall not be less than twenty days from the date of the receipt by the supreme court of the resolution or the filing of the petition.

Such three-judge court shall, without a jury, hear the charges and any motions filed by either party and all evidence offered in support thereof or in opposition thereto and upon satisfactory proof of the charges by clear and convincing evidence as to warrant the removal of the officer shall remove any such officer or person from office and place the records, papers and property of his or her office in the possession of some other officer or person for safekeeping or in the possession of the person appointed as hereinafter provided to fill the office temporarily. Any final order either removing or refusing to remove any such person from office shall contain such findings of fact and conclusions of law as the three-judge court shall deem sufficient to support its decision of all issues presented to it in the matter.

(d) (g) An appeal from an order of such three-judge court removing or refusing to remove any person from office pursuant to this section may be taken to the Supreme Court of Appeals within thirty days from the date of entry of the order from which the appeal is taken. The Supreme Court of Appeals shall consider and decide the appeal upon the original papers and documents, without requiring the same to be printed and shall enforce its findings by proper writ. From the date of any order of the three-judge court removing an officer under this section until the expiration of thirty days thereafter, and, if an appeal be taken, until the date of suspension of such order, if suspended by the three-judge court and if not suspended, until the final adjudication of the matter by the Supreme Court of Appeals, the officer, commission or body having power to fill a vacancy in such office may fill the same by a temporary appointment until a final decision of the matter, and when a final decision is made by the Supreme Court of Appeals shall fill the vacancy in the manner provided by law for such office.

(e) (h) In any case wherein the charges are preferred by the chief inspector and supervisor of public offices against the county commission or any member thereof or any county, school district or municipal officer, the proceedings under this section shall be conducted and prosecuted in the same manner set forth herein for removal by resolution or petition by the prosecuting attorney of the county in which the officer proceeded against resides, and on any appeal from the order of the three-judge court in any such case, the Attorney General of the state shall represent the people. When any municipal officer is proceeded against the solicitor or municipal attorney for such municipality may assist in the prosecution of the charges.

§6-6-10. Costs.


If a judicial proceeding under this article is dismissed or otherwise resolved in favor of the challenged officer, the political subdivision for which the officer serves shall pay court costs and reasonable attorney fees for the officer.

 

 

 

NOTE: The purpose of this bill is to add definitions, amend thresholds and clarify procedures for removal of office of any person holding any county, school district or municipal office, for neglect of duty, malfeasance of office, official misconduct or for any of the causes or on any of the grounds provided by any other statute.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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