Senate Bill No. 525
(By Senators Laird and Green)
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[Introduced March 10, 2009; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §7-14C-1, §7-14C-2 and §7-14C-3 of the
Code of West Virginia, 1931, as amended, all relating to the
procedure for investigation of deputy sheriffs; and redefining
parts of "punitive action" and "under investigation".
Be it enacted by the Legislature of West Virginia:
That §7-14C-1, §7-14C-2 and §7-14C-3 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 14C. DEPUTY SHERIFFS; PROCEDURE FOR INVESTIGATION.
§7-14C-1. Definitions.
Unless the context clearly indicates otherwise, as used in
this article:
(1) "Deputy sheriff" means any person appointed by a sheriff
as his or her deputy whose primary duties as deputy are within the
scope of active, general law enforcement and as such is authorized
to carry deadly weapons, patrol the highways, perform police
functions, make arrests or safeguard prisoners. This definition may not be construed to include any person or persons whose sole
duties are the service of civil process and subpoenas as provided
in section fourteen, article one, chapter fifty of this code, but
the exclusion does not preclude the service of civil process or
subpoenas by deputy sheriffs covered by the provisions of this
code.
(2) "Under investigation" or
"under interrogation" "direct
questioning" means any situation in which any deputy sheriff
becomes the focus of inquiry regarding any matter which may result
in punitive action.
(3) "Punitive action" means any action which may lead to
dismissal, demotion, suspension, reduction in salary
written
reprimand or transfer for purposes of punishment.
(4) "Hearing board" means a board which is authorized by the
sheriff to hold a hearing on a complaint against a deputy sheriff
and which consists of three members, all to be selected from deputy
sheriffs within that agency, or law-enforcement officers or
firefighters of another agency with the approval of the sheriff and
who have had no part in the investigation or
interrogation direct
questioning of the deputy sheriff under investigation. One of the
members of the board shall be appointed by the sheriff, one shall
be appointed by the deputy sheriff's association and these two
members of the board shall, by mutual agreement, appoint the third
member of the board:
Provided, That if the first two members of
the board fail to agree upon the appointment of the third member of
the board within five days, they shall submit to the sheriff's civil service commission a list of four qualified candidates from
which list the commission shall appoint the third member of the
board:
Provided, however, That
in the event if one or more members
of the board cannot be appointed as otherwise provided in this
section, then the chief judge of the circuit court of the county
shall appoint a sufficient number of citizens of the county as may
be necessary to constitute the board. At least one member of the
hearing board shall be of the same rank as the deputy sheriff
against whom the complaint has been filed.
(5) "Hearing" means any meeting in the course of an
investigatory proceeding, other than
an interrogation direct
questioning at which no testimony is taken under oath, conducted by
a hearing board for the purpose of taking or inducing testimony or
receiving evidence.
§7-14C-2. Investigation and direct questioning of a deputy
sheriff.
When any deputy sheriff is under investigation and subjected
to interrogation by his or her commanding officer, or any other
member of the department, which could lead to punitive action, the
interrogation direct questioning shall be conducted under the
following conditions:
(a) The
interrogation direct questioning shall be conducted at
a reasonable hour, preferably at a time when the deputy sheriff is
on duty, or during his or her normal working hours, unless the
seriousness of the investigation requires otherwise. If the
interrogation direct questioning does occur during the off-duty time of the deputy sheriff being
interrogated questioned at any
place other than his or her residence, the deputy sheriff shall be
compensated for that off-duty time in accordance with regular
department procedure. If the
interrogation direct questioning of
the deputy sheriff occurs during his or her regular duty hours, the
deputy sheriff may not be released from employment for any work
missed due to
interrogation direct questioning.
(b) Any deputy sheriff under investigation shall be informed
of the nature of the investigation prior to any
interrogation
direct questioning. The deputy sheriff shall also be informed of
the name, rank and command of the officer in charge of the
interrogation direct questioning, the
interrogating investigating
officers and all other persons to be present during the
interrogation direct questioning. No more than three
interrogators
investigating officers at one time may question the deputy sheriff
under investigation.
(c) No deputy sheriff under
interrogation direct questioning
may be subjected to offensive language or threatened with punitive
action. No promise of reward may be made as an inducement to
answering questions.
(d) The complete
interrogation direct questioning of any
deputy sheriff shall be recorded, whether written, taped or
transcribed. Upon request of the deputy sheriff under
investigation or his or her counsel, and upon advance payment of
the reasonable cost thereof, a copy of the record shall be made
available to the deputy sheriff not less than ten days prior to any hearing.
(e) Upon the filing of a formal written statement of charges
or whenever
an interrogation direct questioning focuses on matters
which are likely to result in punitive action against any deputy
sheriff, then that deputy sheriff shall have the right to be
represented by counsel who may be present at all times during the
interrogation direct questioning.
Nothing herein prohibits the immediate temporary suspension
from duty, pending an investigation, of any deputy sheriff who
reports for duty under the influence of alcohol or a controlled
substance which would prevent the deputy from performing his or her
duties as defined in chapter sixty-a of this code, or under the
influence of an apparent mental or emotional disorder.
§7-14C-3. Hearing.
(a) If the investigation or
interrogation direct questioning
of a deputy sheriff results in the recommendation of some punitive
action, then, before taking punitive action the sheriff shall give
notice to the deputy sheriff that he or she is entitled to a
hearing on the issues by a hearing board. The notice shall state
the time and place of the hearing and the issues involved and be
delivered to the deputy sheriff not less than ten days prior to the
hearing. An official record, including testimony and exhibits,
shall be kept of the hearing.
(b) The hearing shall be conducted by the hearing board of the
deputy sheriff except that in the event the recommended punitive
action is discharge, suspension or reduction in rank or pay, and the action has been taken, the hearing shall be pursuant to the
provisions of section seventeen, article fourteen of this chapter,
if applicable. Both the sheriff and the deputy sheriff shall be
given ample opportunity to present evidence and argument with
respect to the issues involved.
(c) With respect to the subject of any investigation or
hearing conducted pursuant to this section, the hearing board may
subpoena witnesses and administer oaths or affirmations and examine
any individual under oath and may require and compel the production
of records, books, papers, contracts and other documents.
(d) Any decision, order or action taken as a result of the
hearing shall be in writing and shall be accompanied by findings of
fact. The findings shall consist of a concise statement upon each
issue in the case. A copy of the decision or order and
accompanying findings and conclusions, along with written
recommendations for action, shall be delivered or mailed promptly
to the deputy sheriff or to his or her attorney of record.
NOTE: The purpose of this bill is to remove partial
definitions in the procedure for investigation of deputy sheriffs.
The bill redefines parts of "punitive action" and "under
investigation" by deleting "under interrogation" and substituting
"direct questioning" instead; and by deleting "written reprimand"
from "punitive action" taken.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.