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.