COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 300
(By Senator Schoonover)
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[Originating in the Committee on the Judiciary;
reported February 22, 1995.]
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A BILL to amend and reenact sections one, two, three, four and
five, article fourteen-a, chapter eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
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 sections one, two, three, four 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, 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 "firefighter" means any police officer
or 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 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 firefighter and
which consists of three members, all to be selected from law-enforcement officers or firefighters within that agency, or law-
enforcement officers or 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 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 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 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 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 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 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 firefighter
being interrogated at any place other than his residence, such
officer or firefighter shall be compensated for such off-duty time in accordance with regular department procedure. If the
interrogation of the police officer or firefighter occurs during
his regular duty hours, such officer or firefighter shall not be
released from employment for any work missed due to interrogation.
(2) Any police officer or 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 firefighter under investigation.
(3) No police officer or 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
firefighter shall be recorded, either written, taped or
transcribed. Upon request of the law-enforcement officer or
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
firefighter, then that officer or 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 firefighter who reports for duty under the influence of
alcohol or controlled substances which would prevent the officer or
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 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 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
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 conducted
as expeditiously as possible but not to exceed ten working days.
Both the police or fire department and the police officer or
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 orders
for action, shall be delivered or mailed promptly to the police
officer or firefighter, or to his attorney of record.
§8-14A-4. Right to refuse to disclose personal finances;
exceptions.
No police officer or 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 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 police
officer's or 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 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.