Senate Bill No. 300
(By Senator Schoonover)
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[Introduced February 9, 1995; referred to the Committee
on the Judiciary.]
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A BILL to repeal section twenty, article fourteen-a, chapter
eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
sections one, two, three, four and five of said article, all
relating to the removal, discharge, suspension or reduction
in rank or pay of municipal police officers or firefighters;
definitions; procedure for investigation; interrogation;
providing for expeditious hearings; and appeals by the
police officer, firefighter or respective department.
Be it enacted by the Legislature of West Virginia:
That section twenty, article fourteen-a, chapter eight of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be repealed; and that sections one, two, three, four
and five of said article be amended and reenacted, all to read as
follows:
ARTICLE 14A. MUNICIPAL POLICE OFFICERS AND FIREFIGHTERS; PROCEDURE FOR INVESTIGATION.
§8-14A-1. Definitions.
Unless the context clearly indicates otherwise, as used in
this article:
(1) "Police officer" or
"fireman" "firefighter" means any
police officer or
fireman firefighter 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) "Under investigation" or "under interrogation" means any
situation in which any police officer or
fireman firefighter
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
chief of police or chief of the fire department to hold a hearing
on a complaint against a law-enforcement officer or
fireman
firefighter and which consists of three members, all to be
selected from law-enforcement officers or
firemen firefighters
within that agency, or law-enforcement officers or
firemen
firefighters 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 firefighter 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
firefighters 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 firefighter'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 firefighter against whom the complaint has been filed.
(5) "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-2. Investigation and interrogation of a police officer
or firefighter.
When any police officer or
fireman firefighter is under
investigation and subjected to interrogation by his commanding
officer, or any other member of the employing police or fire
department, which could lead to punitive action, such
interrogation shall be conducted under the following conditions:
(1) The interrogation shall be conducted at a reasonable
hour, preferably at a time when the police officer or
fireman
firefighter is on duty, or during his normal working hours,
unless the seriousness of the investigation requires otherwise.
If such interrogation does occur during off-duty time of the
police officer or
fireman firefighter being interrogated at any
place other than his residence, such officer or
fireman
firefighter shall be compensated for such off-duty time in
accordance with regular department procedure. If the
interrogation of the police officer or
fireman firefighter occurs
during his regular duty hours, such officer or
fireman
firefighter shall not be released from employment for any work
missed due to interrogation.
(2) Any police officer or
fireman firefighter under
investigation shall be informed of the nature of the
investigation prior to any interrogation. Such officer shall
also be informed of the name, rank and command of the officer in charge of the interrogation, the interrogating officers, and all
other persons to be present during the interrogation. No more
than three interrogators at one time shall question the officer
or
fireman firefighter under investigation.
(3) No police officer or
fireman firefighter under
interrogation shall be subjected to offensive language or
threatened with punitive action. No promise of reward shall be
made as an inducement to answering questions.
(4) The complete interrogation of any police officer or
fireman firefighter shall be recorded, either written, taped or
transcribed. Upon request of the law-enforcement officer or
fireman firefighter under investigation or his counsel, and upon
advance payment of the reasonable cost thereof a copy of the
record shall be made available to him not less than ten days
prior to any hearing.
(5) Upon the filing of a formal written statement of charges
or whenever an interrogation focuses on matters which are likely
to result in punitive action against any police officer or
fireman firefighter, then that officer or
fireman firefighter
shall have the right to be represented by counsel who may be
present at all times during such interrogation.
Nothing herein shall prohibit the immediate temporary
suspension, pending an investigation, from duty of any police
officer or
fireman firefighter who reports for duty under the
influence of alcohol or controlled substances which would prevent the officer or
fireman firefighter from performing his duties as
defined in chapter sixty-a of this code, or under the influence
of an apparent mental or emotional disorder.
§8-14A-3. Hearing.
(a) If the investigation or interrogation of a police
officer or
fireman firefighter results in the recommendation of
some punitive action, then, before taking such action the police
or fire department shall give notice to the police officer or
fireman firefighter that he 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 police officer or
fireman firefighter no later 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 police or fire department except that in the event the
recommended punitive action is discharge, suspension or reduction
in rank or pay, and such action has been taken the hearing shall
be
pursuant to the provisions of article fourteen, section
twenty, and article fifteen, section twenty-five of this chapter,
if applicable conducted as expeditiously as possible but not to
exceed ten working days. Both the police or fire department and
the police officer or
fireman firefighter 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 orders for action, shall be delivered or mailed
promptly to the police officer or
fireman firefighter, or to his
attorney of record.
§8-14A-4. Right to refuse to disclose personal finances;
exceptions.
No police officer or
fireman firefighter shall be required
or requested for purposes of job assignment or other personnel
action to disclose any item of his property, income, assets,
source of income, debts or personal or domestic expenditures
unless such information is obtained through proper legal
procedures or is necessary for the employing agency to ascertain
the desirability of assigning the police officer to a specialized
unit in which there is a strong possibility that bribes or other
improper inducements might be offered.
§8-14A-5. Appeal.
Any police officer or
fireman firefighter 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 police officer's or
firemen's firefighter'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 no civil service
commission, to the circuit court of the county wherein said
police officer or
fireman firefighter resides.
The top ranking police or fire official may also appeal the
decision of the hearing board if he or she believes 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 through the appeal process by
the police officer's or firefighter's civil service commission or
the circuit court of the county wherein the affected parties
reside.
NOTE: The bill relates to the investigation and hearing
process involved in the removal, discharge, suspension or
reduction in rank or pay of municipal police officers or
firefighters. It redefines "fireman" as "firefighter"; it
provides for hearings to be held within 10 working days of the
request; and permits the top ranking police or fire official to
appeal the decisions of a hearing board - the same right afforded
a police officer or firefighter adversely affected by a hearing
board's decision.
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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