H. B. 2795
(By Delegates Laird, Staton,
Stemple and Thomas)
[Introduced March 27, 1997; referred to
the Committee on the Judiciary.]
A BILL to amend and reenact sections one and five, article fourteen
-a, chapter eight of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to investigation
and interrogation rights of police officers and firemen;
defining "accused officer" for purposes of the article;
providing for composition of hearing board in civil service
and non-civil service jurisdictions; and providing for appeal
rights both for officers and department chiefs.
Be it enacted by the Legislature of West Virginia:
That sections one and five, article fourteen-a, chapter eight
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 14A. MUNICIPAL POLICE OFFICERS AND FIREMEN; PROCEDURE FOR
INVESTIGATION.
§8-14A-1. Definitions.
Unless the context clearly indicates otherwise, as used in
this article:
(1) "Accused officer" means any police officer or fireman who
is the subject of an investigation or interrogation which results
in a recommendation of punitive action against him or her.
(1) (2) "Police officer" or "fireman" means any police officer
or fireman of a police or fire department employed by the city or
municipality, but shall not include the highest ranking officer of
such police or fire department.
(2) (3) "Under investigation" or "under interrogation" means
any situation in which any police officer or fireman becomes the
focus of inquiry regarding any matter which may result in punitive
action.
(3) (4) "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
chief of police or chief of the fire department to hold a hearing
on a complaint against a law-enforcement officer or fireman and
which consists of three members, all to be selected from law- enforcement officers or firemen within that agency, or law- enforcement officers or firemen of another agency with the approval
of the chief of police or chief of the fire department of the other
agency and who have had no part in the investigation or interrogation of the law-enforcement officer or fireman under
investigation. One of the members of the board shall be appointed
by the chief of police or chief of the fire department, one shall
be appointed by the police officers or firemen of that agency, and
these two members of the board shall, by mutual agreement, appoint
the third member of the board: Provided, That should 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
policemen's civil service commission or to the firemen's civil
service commission, as may be appropriate, or if there be no civil
service commission, to the chief judge of the circuit court of the
county, a list of four qualified candidates from which list the
commission or chief judge shall appoint the third member of the
board: Provided, however, That in the event one or more members of
the board cannot be appointed as otherwise provided in this
section, then the chief judge shall appoint a sufficient number of
the citizens of the municipality as may be necessary to constitute
the board. At least one member of the hearing board shall be of
the same rank as the law-enforcement officer or fireman against
whom the complaint has been filed.
(5) "Hearing board" means a board appointed to hold a hearing
on a complaint against an accused officer. The hearing board shall
consist of three members to be selected pursuant to subdivisions
(a) or (b) of this subsection.
(a) The provisions of this subdivision shall apply to police
departments subject to the civil service provisions of article
fourteen, chapter eight of this code and fire departments
subject to the civil service provisions of article fifteen,
chapter eight of this code. For these departments, the
department chief shall appoint one board member, the members
of the accused officer's department shall appoint one board
member, and the two members so selected shall appoint the
third board member by agreement. Should the first two board
members fail to agree on the appointment of the third board
member within five days, they shall submit to the department's
civil service commission a list of four qualified candidates
from which list the commission shall appoint the third board
member. The appointment of board members under this
subdivision shall be subject to the following qualifications
and limitations:
(1)No board member shall have had any part in the
investigation or interrogation of the accused officer;
(2) Each board member shall be a police officer or
fireman within the accused officer's department, or, with
the department chief's approval, a law-enforcement
officer or fireman from another law-enforcement agency or
fire department;
(3) At least one board member shall be of the same rank as the accused officer; and
(4) If there are fewer than three persons who meet the
qualifications described in paragraphs (1), (2) and (3)
above, then the department's civil service commission
shall appoint as many citizens of the municipality in
which the department is located as may be necessary to
constitute the board.
(b) The provisions of this subdivision shall apply to police
departments not subject to the civil service provisions of
article fourteen, chapter eight of this code and fire
departments not subject to civil service provisions of article
fifteen, chapter eight of this code. For these departments,
the department chief shall appoint one board member, the local
fraternal order of police shall appoint one board member, and
the local chamber of commerce or local businessman's
association shall appoint one board member. If there is no
local fraternal order of police, the state fraternal order of
police shall appoint the second board member. If there is no
local chamber of commerce or local businessmen's association,
the two board members so appointed shall appoint the third
board member by agreement. Should the first two board members
fail to agree on the appointment of the third board member
within five days, they shall submit a list of four qualified
candidates to the chief judge of the circuit court in which the municipality is located. The chief judge shall then
appoint the third board member from this list. The
appointment of board members under this subdivision shall be
subject to the following qualifications and limitations:
(1)No board member shall have had any part in the
investigation or interrogation of the accused officer;
(2) Each board member shall be (A) a police officer or
fireman within the accused officer's department, (B) a
law-enforcement officer or fireman from another law- enforcement agency or fire department, or (C) a citizen
of the municipality in which the accused officer's
department is located; and
(3) In making appointments under this subdivision, the
persons and groups authorized to appoint board members
shall accord preference first to members of subparagraph
(A) of the preceding paragraph and then to members of
subparagraph (B) of the preceding paragraph: Provided,
however, that this order of preference shall not require
the appointing person or group to exhaust all potential
persons in a higher level of preference before appointing
a person in a lower level of preference.
(5) (6) "Hearing" means any meeting in the course of an
investigatory proceeding, other than an interrogation at which no
testimony is taken under oath, conducted by a hearing board for the purpose of taking or inducing testimony or receiving evidence.
§8-14A-5. Appeal.
Any police officer or fireman adversely affected by any
decision, order or action taken as a result of a hearing as herein
provided shall have the right to appeal the same to the policemen's
or firemen's civil service commission, if applicable, in the manner
provided for in section nineteen, article fourteen and section
twenty-five, article fifteen of this chapter, or if there be is no
civil service commission, to the circuit court of the county
wherein said police officer or fireman resides.
The department chief may also appeal the decision of the
hearing board if he or she believes that the department would be
adversely affected by the order or action of the hearing board.
The order or action of the hearing board is binding upon all
involved parties unless overturned in the appeal process by the
applicable civil service commission or the circuit court.
NOTE: This bill makes several changes to Article 14A of
Chapter 8, which accords certain procedural rights to police
officers and firemen subject to investigation, interrogation, and
discipline. First, the bill provides a new method for comprising
a hearing board for non-civil service departments, involving the
local fraternal order of police and local chamber of commerce and reducing reliance on the circuit judge to appoint hearing board
members. Second, the bill adds a definition for "accused officer."
Finally, the bill grants appeal rights to the affected department
and provides that the hearing board's decision is binding unless
overturned on appeal.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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