WEST virginia legislature
2018 regular session
Introduced
Senate Bill 377
By Senators Boso and Cline
[Introduced January
25, 2018; Referred
to the Committee on Government Organization; and then to the Committee on the
Judiciary]
A BILL to amend and reenact §8-14A-1, §8-14A-2, §8-14A-3, §8-14A-4, and §8-14A-5 of the Code of West Virginia, 1931, as amended, all relating to removing firefighters from municipal procedures for the investigation and hearing of allegations of misconduct that may result in punitive action.
Be it enacted by the Legislature of West Virginia:
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 firefighter who is the subject of an investigation
or interrogation which results in a recommendation of punitive action against
him or her.
(2) “Civil service,” when
followed by the terms “department,” “officer”, or “accused officer”, means any
department, officer, or accused officer who is subject to the civil service
provisions of §8-14-1 et seq. of this code. or §8-15-1 et seq. of
this code
(3) “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.
(4) “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 appointed pursuant to
paragraph (a), (b) or (c) (A) or (B) of this subdivision. Hearing
board members appointed under paragraph (b) or (c) (B) of this
subdivision may be removed from office as provided under paragraph (d) (C)
of this subdivision.
(a) (A) For civil service departments, the
department chief shall appoint the first member, the members of the accused
officer's department shall appoint the second member, and the first and second
members shall appoint the third member by agreement. Should the first and
second members fail to agree on the appointment of the third 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 member. The appointment of members under this paragraph shall be subject
to the following qualifications and limitations:
(1) No member shall have had any part in the investigation or interrogation of the accused officer;
(2) Each member shall be a
police officer or firefighter within the accused officer's department,
or, with the department chief's approval, a law-enforcement officer or
firefighter from another law-enforcement agency or fire department;
(3) At least one 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 subparagraphs (1), (2) and (3) of this paragraph, 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) (B) For noncivil service police departments,
the hearing board shall be a standing hearing board. The department chief shall
appoint the first member, the local fraternal order of police shall appoint the
second member, and the local chamber of commerce or local businessmen's
association shall appoint the third member. If there is no local fraternal
order of police, the state fraternal order of police shall appoint the second
member. If there is no local chamber of commerce or local businessmen's
association, the first and second members shall appoint the third member by agreement.
Of the three original appointments in each police department, the first member
shall serve for six years from the date of his or her appointment; the second
member shall serve four years from the date of his or her appointment; and the
third member shall serve for two years from the date of his or her appointment.
After the original appointments, all appointments shall be made for periods of
four years each by the designated appointing authority. In the event that any
member shall cease to be a member due to death, resignation, final removal or
other cause, a new member shall be appointed within 30 days of the date the
ex-member ceased to be a member. This appointment shall be made by the officer
or body who in the first instance appointed the member who is no longer a
member. When the hearing board is appointed, the three members shall elect one
of their number to act as president of the board, who shall serve as president
for one year. In the event that a member has had a part in the investigation or
interrogation of an accused officer or is related by consanguinity or affinity
to an accused officer, that member shall be recused from participation in the
accused officer's hearing. In such an instance, the officer or body who in the
first instance appointed the recused member shall appoint another person for
sole purpose of the accused officer's hearing. No member shall hold any other
office (other than the office of notary public) under the United States, this
state, or any municipality, county or other political subdivision thereof; nor
shall any member serve on any political committee or take any active part in
the management of any political campaign.
(c) For noncivil service
fire departments, the hearing board shall be a standing hearing board. The
department chief shall appoint the first member, the local international
association of firefighters shall appoint the second member, and the local
chamber of commerce or local businessmen's association shall appoint the third
member. If there is no local international association of firefighters in the
municipality, the local central body of the West Virginia Federation of Labor
AFL-CIO shall appoint the second member. If there is no local central body of
the West Virginia Federation of Labor AFL-CIO in the municipality, the West
Virginia Federation of Labor AFL-CIO shall appoint the second member. If there
is no local chamber of commerce or local businessmen's association, the first
and second members shall appoint the third member by agreement. Of the three
original appointments in each fire department, the first member shall serve for
six years from the date of his or her appointment; the second member shall
serve four years from the date of his or her appointment; and the third member
shall serve for two years from the date of his or her appointment. After the
original appointments, all appointments shall be made for periods of four years
each by the designated appointing authority. In the event that any member shall
cease to be a member due to death, resignation, final removal or other cause, a
new member shall be appointed within thirty days of the date the ex-member
ceased to be a member. This appointment shall be made by the officer or body
who in the first instance appointed the member who is no longer a member. Each
of the three members shall elect one of their number to act as president of the
board, who shall serve as president for one year. In the event that a member
has had a part in the investigation or interrogation of an accused officer or is
related by consanguinity or affinity to an accused officer, that member shall
be recused from participation in the accused officer's hearing. In such an
instance, the officer or body who in the first instance appointed the recused
member shall appoint another person for the sole purpose of the accused officer's
hearing. No member shall hold any other office (other than the office of notary
public) under the United States, this state, or any municipality, county or
other political subdivision thereof; nor shall any member serve on any
political committee or take any active part in the management of any political
campaign
(d) (C) Any member of a hearing board appointed
under paragraph (b) or (c) of this subdivision may be removed as provided
in this paragraph:
The mayor of the municipality may, at any time, remove any hearing board member for good cause, which shall be stated in writing and made a part of the records of the hearing board. However, within 10 days of removing any member, the mayor shall file in the circuit clerk's office of the county in which the municipality is located a petition setting forth in full the reason for the removal and seeking the circuit court's confirmation of the mayor's removal of the member. The mayor shall file a copy of the petition with the removed member at the same time it is filed with the circuit clerk. The petition shall have precedence on the circuit court's docket and shall be heard as soon as practicable on the request of the removed member. All rights vested in a circuit court by this subsection may be exercised by the judge thereof in vacation. In the event that no term of the circuit court is being held at the time the petition is filed, and the judge thereof cannot be reached in the county in which the petition was filed, the petition shall be heard at the next succeeding circuit court term, whether regular or special, and the removed member shall remain removed until a hearing is held on the petition. The court or the judge thereof in vacation shall hear and decide the issues presented by the petition. The party affected adversely by the court's or judge's decision shall have the right to petition the Supreme Court of Appeals for a review of the decision as in other civil cases. If the mayor fails to file the petition with the circuit clerk's office within ten days as provided above, the removed member shall immediately resume his or her position as a hearing board member.
Any resident of the municipality shall have the right at any time to seek the removal of any hearing board member. To do so, the resident shall file a petition in the circuit clerk's office of the county where the municipality is located. The resident shall also serve a copy of the petition on the member sought to be removed. The petition shall be matured for hearing and heard by the circuit court or the judge thereof in vacation in the same manner as civil proceedings in the circuit courts of this state are heard. Any party adversely affected by the circuit court's or judge's decision shall have the right to petition the Supreme Court of Appeals for a review of the decision as in other civil cases.
(5) “Noncivil service,”
when followed by the terms “department”, “officer”, or “accused officer”, means
any department, officer, or accused officer who is not subject to the civil
service provisions of §8-14-1 et seq. of this code. or article
fifteen, chapter eight of this code
(6) “Police officer or
firefighter” or “officer” means any police officer or firefighter of
a police or fire department employed by the city or municipality, but
shall not include (a) the highest ranking officer of the police or fire
department or (b) any noncivil service officer who has not completed the
probationary period established by the department by which he or she is
employed.
(7) “Punitive action” means any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.
(8) “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.
§8-14A-2. Investigation and interrogation of a police officer or fireman.
When any police officer or
fireman is under investigation and subjected to interrogation by his or
her 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 is on duty, or during his or her 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 being interrogated at any place other than his or her
residence, such officer or fireman shall be compensated for such
off-duty time in accordance with regular department procedure. If the
interrogation of the police officer or fireman occurs during his or
her regular duty hours, such officer or fireman shall not be
released from employment for any work missed due to interrogation.
(2) Any police officer or
fireman 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 under investigation.
(3) No police officer or
fireman 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 shall be recorded, either
written, taped or transcribed. Upon request of the law-enforcement officer or
fireman under investigation or his or her counsel, and upon advance
payment of the reasonable cost thereof a copy of the record shall be made
available to him or her not less than 10 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, then that officer or fireman 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 who reports for duty under the
influence of alcohol or controlled substances which would prevent the officer or
fireman from performing his or her duties as defined in chapter 60A
of this code, or under the influence of an apparent mental or emotional disorder.
§8-14A-3. Hearing.
(a) Before taking any
punitive action against an accused officer, the police or fire
department shall give notice to the accused officer that he or she is entitled
to a hearing on the issues by a hearing board or the applicable civil service commission.
The notice shall state the time and place of the hearing and the issues
involved and shall be delivered to the accused officer no later than 10 days
prior to the hearing.
(b) When a civil service
accused officer faces a recommended punitive action of discharge, suspension,
or reduction in rank or pay, but before such punitive action is taken, a
hearing board must be appointed and must afford the accused civil service
officer a hearing conducted pursuant to the provisions of §8-14-20 of this code:
or article fifteen, section twenty-five of this chapter Provided,
That the punitive action may be taken before the hearing board conducts the
hearing if exigent circumstances exist which require it.
(c) When a civil service accused officer faces a recommended punitive action of written reprimand or transfer for the purpose of punishment, or when a noncivil service accused officer faces any recommended punitive action, the applicable hearing board shall conduct hearing pursuant to the provisions of subsection (d) of this section.
(d) The following requirements shall govern the operation conduct of a hearing board under subsection (c) of this section:
(1) The hearing board shall keep an official record of each hearing it conducts. The official record shall include the testimony offered and exhibits introduced at the hearing.
(2) Both the police or
fire department and the accused officer shall be given ample opportunity to
present evidence and argument with respect to any issue raised at the hearing.
(3) 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, in connection with any issue raised at the hearing.
(4) The hearing board shall prepare a written order detailing any decision or action it takes as a result of the hearing. The written order shall include written findings of fact setting forth a concise statement of the hearing board's factual findings and conclusions on each issue raised at the hearing. The hearing board shall hand-deliver or promptly mail a copy of the written order to the accused officer or his or her attorney of record.
(e) A hearing board's order is binding on all parties involved unless it is overturned in the appeal process described in section five of this article.
§8-14A-4. Right to refuse to disclose personal finances; exceptions.
No police officer or fireman
shall be required or requested for purposes of job assignment or other
personnel action to disclose any item of his or her 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.
(a) For civil service
departments, a hearing board's decision rendered under subsection (b) or (c),
section three of this article may be appealed by the police officer or
firefighter adversely affected by the order or by the department chief if
he or she believes that the department would be adversely affected by the
hearing board's order. An appeal under this subsection shall be made to the
applicable civil service commission. Any party aggrieved by the civil service commission's
ruling on the appeal may further appeal the civil service commission's ruling
pursuant to the provisions of §8-14-20(b) of this code. or subsection (b), section twenty-five, article
fifteen of this chapter
(b) For noncivil service
departments, a hearing board's decision rendered under subsection (c), section
three of this article may be appealed by the police officer or firefighter
adversely affected by the order or by the department chief if he or she
believes that the department would be adversely affected by the hearing board's
order. An appeal under this subsection shall be made to the circuit court of
the county in which the police officer or firefighter resides.
NOTE: The purpose of this bill is to exempt municipal firefighters from certain procedures for the investigation and hearing of allegations of misconduct.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.