WEST virginia Legislature

2016 regular session

Introduced

House Bill 4302

By Mr. Speaker (Mr. Armstead) and Delegates Bates, Miley, Lane and Shott

[Introduced January 27, 2016; Referred
to the Committee on the Judiciary.]

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 a new section, designated §4-5-7, all relating to the Commission on Special Investigations; clarifying the composition and chairmanship of the commission; redefining what constitutes a quorum for the voting procedures of the commission; clarifying the contents of the commission’s annual report; listing the existing and necessary commission staff positions; defining an agency’s duty to cooperate with the commission during investigations and requiring agencies to disclose information and documents to commission; establishing the requirements for the commission to enter into executive session; establishing procedures for conducting executive session; removing the requirement that the Joint Committee on Government and Finance approve expenses of the commission; establishing a procedure for commission retention and disposal of records; defining a new felony offense of making a false statement to the commission; setting penalties for making a false statement to the commission; defining a new felony offense of impersonating a commission member or staff member; and setting penalties for impersonating a commission member or staff member.

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 Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §4-5-7, all to read as follows:

ARTICLE 5. COMMISSION ON SPECIAL INVESTIGATIONS.

§4-5-1. Commission continued as "Commission on Special Investigations"; 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." 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, 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 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, upon a majority vote by a quorum of the members appointed, with a quorum consisting of a majority of the total authorized membership of the commission, 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 recommendation; and

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

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

(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 in the public interest and, in support thereof, make available to such court and such grand jury the contents of any reports, files, transcripts of hearings or other evidence pertinent thereto;

(3) Employ such legal, technical, investigative, clerical, stenographic, advisory and other personnel as it deems needed and, within the appropriation herein specified, fix reasonable compensation of such persons and firms as may be 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 to administer oaths and take affidavits and depositions anywhere in the state;

(4) Consult and confer with all persons and agencies, public (whether federal, state or local) and private, that have information and data pertinent to an investigation; and all state and local governmental personnel and agencies shall cooperate to the fullest extent with the commission. For the purposes of this subdivision the term “cooperate” includes the disclosure and production to the commission or commission staff of any documents, reports or other items in the possession of the person, agency of the state or local government upon the commission’s request to assist it in its investigation, notwithstanding any provision of law 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 carrying out its responsibilities under this chapter, the commission investigative staff shall be deemed a criminal justice agency under all federal and state laws and regulations and as such shall have access to any information that is available to other criminal justice agencies;

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

(6) Refer such matters as are appropriate to the office of the United States attorney and cooperate with such 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 first successfully completed a firearms training and certification program which is equivalent to that which is required of members of the State Police. The designated persons must 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.

The commission shall have the power and authority to hold executive sessions for the purpose of establishing business, establishing policy, an agenda and the interrogation of 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 demand the same and shall not be heard otherwise: Provided, however, That if a witness desires a hearing in an executive session, he the witness shall have the right to demand the same 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: Provided, That for the purpose of entering into executive session, a quorum vote of the commission is required.

The commission is hereby empowered and authorized to examine witnesses and to subpoena such 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 witnesses. To compel the attendance of witnesses at such hearings or the production of any books, records, documents, papers or any other tangible thing, in any form they may exist, the commission is hereby empowered and authorized to issue subpoenas, signed by one of the cochairmen cochairs in accordance with section five, article one, chapter four of this code. Such 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.

If any person subpoenaed to appear at any hearing shall refuse to appear or to answer inquiries there propounded, or shall fail or refuse to produce books, records, documents, papers or any other tangible thing within his or her control when the same are demanded, the commission shall report the facts to the circuit court of Kanawha county or any other court of competent jurisdiction and such court may compel obedience to the subpoena as though such subpoena had been issued by such 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, chapter four of this code. 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, printed materials placed in the files of the commission may be disposed of upon a vote of the commission: Provided, That copies of materials placed in the commission files on or after January 1, 2010, shall be saved in electronic form prior to 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 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 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 him or herself to be a member or staff member of the commission;

(2) Falsely represents him 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.

NOTE: The purpose of this bill is to clarify the composition and chairmanship of the Commission on Special Investigations; redefine what constitutes a quorum for the voting procedures of the commission; clarify the contents of the commission’s annual report; list the existing and necessary commission staff positions; define an agency’s duty to cooperate with the commission during investigations and requiring agencies to disclose information and documents to commission; establish the requirements for the commission to enter into executive session; establish procedures for conducting executive session; remove the requirement that the Joint Committee on Government and Finance approve expenses of the commission; establish a procedure for commission retention and disposal of records; define a new felony offense of making a false statement to the commission; set penalties for making a false statement to the commission; define a new felony offense of impersonating a commission member or staff member; and set penalties for impersonating a commission member or staff member.

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