ENROLLED
Senate Bill No. 414
(By Senators Wooton, Oliverio, Love, Yoder, Buckalew,
Wiedebusch, White, Bailey, Plymale, Wagner, Anderson and Sharpe)
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[Passed March 11, 1995; in effect ninety days from passage.]
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AN ACT to amend chapter seven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article fourteen-c, relating
to deputy sheriffs; procedure for investigation; definitions;
investigation or interrogation of a deputy sheriff; hearing;
right to refuse to disclose personal finances; exceptions; and
appeal.
Be it enacted by the Legislature of West Virginia:
That chapter seven of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended by adding thereto
a new article, designated article fourteen-c, to read as follows:
ARTICLE 14C. DEPUTY SHERIFFS; PROCEDURE FOR INVESTIGATION.
§7-14C-1. Definitions.
Unless the context clearly indicates otherwise, as used in this article:
(1) "Deputy sheriff" means any person appointed by a sheriff
as his or her deputy whose primary duties as deputy are within the
scope of active, general law enforcement and as such is authorized
to carry deadly weapons, patrol the highways, perform police
functions, make arrests or safeguard prisoners. This definition
may not be construed to include any person or persons whose sole
duties are the service of civil process and subpoenas as provided
in section fourteen, article one, chapter fifty of this code, but
the exclusion does not preclude the service of civil process or
subpoenas by deputy sheriffs covered by the provisions of this
code.
(2) "Under investigation" or "under interrogation" means any
situation in which any deputy sheriff 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
sheriff to hold a hearing on a complaint against a deputy sheriff
and which consists of three members, all to be selected from deputy
sheriffs within that agency, or law-enforcement officers or
firefighters of another agency with the approval of the sheriff and who have had no part in the investigation or interrogation of the
deputy sheriff under investigation. One of the members of the
board shall be appointed by the sheriff, one shall be appointed by
the deputy sheriff's association and these two members of the board
shall, by mutual agreement, appoint the third member of the board:
Provided, That if 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 sheriff's civil service commission
a list of four qualified candidates from which list the commission
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 of the circuit court of the county shall appoint a sufficient
number of citizens of the county as may be necessary to constitute
the board. At least one member of the hearing board shall be of
the same rank as the deputy sheriff 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.
§7-14C-2. Investigation and interrogation of a deputy sheriff.
When any deputy sheriff is under investigation and subjected to interrogation by his or her commanding officer, or any other
member of the department, which could lead to punitive action, the
interrogation shall be conducted under the following conditions:
(a) The interrogation shall be conducted at a reasonable hour,
preferably at a time when the deputy sheriff is on duty, or during
his or her normal working hours, unless the seriousness of the
investigation requires otherwise. If the interrogation does occur
during the off-duty time of the deputy sheriff being interrogated
at any place other than his or her residence, the deputy sheriff
shall be compensated for that off-duty time in accordance with
regular department procedure. If the interrogation of the deputy
sheriff occurs during his or her regular duty hours, the deputy
sheriff may not be released from employment for any work missed due
to interrogation.
(b) Any deputy sheriff under investigation shall be informed
of the nature of the investigation prior to any interrogation. The
deputy sheriff 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 may
question the deputy sheriff under investigation.
(c) No deputy sheriff under interrogation may be subjected to
offensive language or threatened with punitive action. No promise of reward may be made as an inducement to answering questions.
(d) The complete interrogation of any deputy sheriff shall be
recorded, whether written, taped or transcribed. Upon request of
the deputy sheriff 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 the deputy sheriff not less than
ten days prior to any hearing.
(e) 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 deputy sheriff, then that
deputy sheriff shall have the right to be represented by counsel
who may be present at all times during the interrogation.
Nothing herein prohibits the immediate temporary suspension
from duty, pending an investigation, of any deputy sheriff who
reports for duty under the influence of alcohol or a controlled
substance which would prevent the deputy from performing his or her
duties as defined in chapter sixty-a of this code, or under the
influence of an apparent mental or emotional disorder.
§7-14C-3. Hearing.
(a) If the investigation or interrogation of a deputy sheriff
results in the recommendation of some punitive action, then, before
taking punitive action the sheriff shall give notice to the deputy
sheriff that he or she 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 deputy
sheriff not less 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
deputy sheriff except that in the event the recommended punitive
action is discharge, suspension or reduction in rank or pay, and
the action has been taken, the hearing shall be pursuant to the
provisions of section seventeen, article fourteen of this chapter,
if applicable. Both the sheriff and the deputy sheriff 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 for action, shall be delivered or mailed promptly
to the deputy sheriff or to his or her attorney of record.
§7-14C-4. Right to refuse to disclose personal finances;
exceptions.
For the purposes of job assignment or other personnel action,
a sheriff may not require or request a deputy sheriff to disclose
any item if his or her property, income, assets, sources 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
deputy sheriff to a specialized unit in which there is a strong
possibility that bribes or other improper inducements might be
offered.
§7-14C-5. Appeal.
Any deputy sheriff adversely affected by any decision, order
or action taken as a result of a hearing as herein provided has the
right to appeal the decision, order or action to the deputy
sheriff's civil service commission, in the manner provided for in
section fifteen, article fourteen of this chapter.
The sheriff 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 in the appeal process by the
deputy sheriff's civil service commission or the circuit court of
the county wherein the affected parties reside.