ENROLLED
Senate Bill No. 422
(By Senators Bowman, Wiedebusch, Schoonover, Buckalew,

Miller, Dittmar, Bailey, Wagner and Blatnik)
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[Passed March 9, 1996; in effect ninety days from passage.]
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AN ACT to amend and reenact section seventeen, article fourteen, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section seventeen, article fourteen-b of said chapter; to amend and reenact section twenty, article fourteen, chapter eight of said code; and to amend and reenact section twenty- five, article fifteen of said chapter, all relating to the recovery of reasonable attorney fees by a deputy sheriff, police officer, firefighter or correctional officer in a civil service proceeding and a subsequent appeal therefrom where the applicable civil service commission or a court has determined that the deputy sheriff, police officer, firefighter or correctional officer has been unlawfully removed, discharged, suspended or reduced in rank or pay.

Be it enacted by the Legislature of West Virginia:
That section seventeen, article fourteen, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one as amended, be amended and reenacted; that section seventeen, article fourteen-b of said chapter be amended and reenacted; that section twenty, article fourteen, chapter eight of said code be amended and reenacted; and that section twenty-five, article fifteen of said chapter be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 14. CIVIL SERVICE FOR DEPUTY SHERIFFS.

§7-14-17. Removal, discharge, suspension or reduction in rank or pay; hearing; attorney fees; appeal; reduction in force; mandatory retirement age.

(a) No deputy sheriff of any county subject to the provisions of this article may be removed, discharged, suspended or reduced in rank or pay except for just cause, which may not be religious or political, except as provided in section fifteen of this article; and no such deputy may be removed, discharged, suspended or reduced in rank or pay except as provided in this article and in no event until the deputy has been furnished with a written statement of the reasons for the action. In every case of such removal, discharge, suspension or reduction, a copy of the statement of reasons therefor and of the written answer thereto, if the deputy desires to file such written answer, shall be furnished to the civil service commission and entered upon its records. If the deputy demands it, the civil service commission shall grant a public hearing, which hearing shall be held within a period of ten days from the filing of the charges in writing or the written answer thereto, whichever shall last occur. At the hearing, the burden shall be upon the sheriff to justify his or her action, and in the event the sheriff fails to justify the action before the commission, then the deputy shall be reinstated with full pay, forthwith and without any additional order, for the entire period during which the deputy may have been prevented from performing his or her usual employment, and no charges may be officially recorded against the deputy's record. The deputy, if reinstated or exonerated, shall, if represented by legal counsel, be awarded reasonable attorney fees to be determined by the commission and paid by the sheriff from county funds. A written record of all testimony taken at the hearing shall be kept and preserved by the civil service commission, which record shall be sealed and not be open to public inspection unless an appeal is taken from the action of the commission.
(b) In the event the civil service commission sustains the action of the sheriff, the deputy has an immediate right of appeal to the circuit court of the county. In the event that the commission reinstates the deputy, the sheriff has an immediate right of appeal to the circuit court. In the event either the sheriff or the deputy objects to the amount of the attorney fees awarded to the deputy, the objecting party has an immediate right of appeal to the circuit court. Any appeal must be taken within ninety days from the date of entry by the civil service commission of its final order. Upon an appeal being taken and docketed with the clerk of the circuit court of the county, the circuit court shall proceed to hear the appeal upon the original record made before the commission and no additional proof may be permitted to be introduced. The circuit court's decision is final, but the deputy or sheriff, as the case may be, against whom the decision of the circuit court is rendered has the right to petition the supreme court of appeals for a review of the circuit court's decision as in other civil cases. The deputy or sheriff also has the right, where appropriate, to seek, in lieu of an appeal, a writ of mandamus. The deputy, if reinstated or exonerated by the circuit court or by the supreme court of appeals, shall, if represented by legal counsel, be awarded reasonable attorney fees as approved by the court and the fees shall be paid by the sheriff from county funds.
(c) The removing sheriff and the deputy shall at all times, both before the civil service commission and upon appeal, be given the right to employ counsel to represent them.
(d) If for reasons of economy or other reasons it is deemed necessary by any appointing sheriff to reduce the number of his or her deputies, the sheriff shall follow the procedure set forth in this subsection. The reduction in the numbers of the deputy sheriffs of the county shall be effected by suspending the last person or persons, including probationers, who have been appointed as deputies. The removal shall be accomplished by suspending the number desired in the inverse order of their appointment: Provided, That in the event the number of deputies is increased in numbers to the strength existing prior to the reduction of deputies, the deputies suspended under the terms of this subsection shall be reinstated in the inverse order of their suspension before any new appointments of deputy sheriffs in the county are made.
(e) Notwithstanding any other provision of this article to the contrary, no deputy sheriff in any county subject to the provisions of this article may serve as a deputy sheriff in any county subject to the provisions of this article after attaining the age of sixty-five years.

ARTICLE 14B. CIVIL SERVICE FOR CORRECTIONAL OFFICERS.

§7-14B-17. Removal, discharge, suspension or reduction in rank or pay; appeal; reduction in force; mandatory retirement age.

(a) No correctional officer of any county subject to the provisions of this article, may be removed, discharged, suspended or reduced in rank or pay except for just cause, which may not be religious or political, except as provided in section fifteen of this article; and no such correctional officer may be removed, discharged, suspended or reduced in rank or pay except as provided in this article and in no event until the correctional officer has been furnished with a written statement of the reasons for the action. In every case of such removal, discharge, suspension or reduction, a copy of the statement of reasons therefor and of the written answer thereto, if the correctional officer desires to file such written answer, shall be furnished to the civil service commission and entered upon its records. If the correctional officer demands it, the civil service commission shall grant him a public hearing, which hearing shall be held within a period of ten days from the filing of the charges in writing or the written answer thereto, whichever shall last occur. At the hearing, the burden shall be upon the sheriff to justify his or her action, and in the event the sheriff fails to justify the action before the commission, then the correctional officer shall be reinstated with full pay, forthwith and without any additional order, for the entire period during which the officer may have been prevented from performing his or her usual employment, and no charges may be officially recorded against the officer's record. The correctional officer, if reinstated or exonerated, shall, if represented by legal counsel, be awarded reasonable attorney fees to be determined by the commission and paid by the sheriff from county funds. A written record of all testimony taken at the hearing shall be kept and preserved by the civil service commission, which record shall be sealed and not be open to public inspection, unless an appeal is taken from the action of the commission.
(b) In the event the civil service commission sustains the action of the sheriff, the correctional officer has an immediate right of appeal to the circuit court of the county. In the event that the commission reinstates the correctional officer, the sheriff has an immediate right of appeal to the circuit court. In the event either the sheriff or the correctional officer objects to the amount of the attorneys fees awarded to the correctional officer, the objecting party has an immediate right of appeal to the circuit court. Any appeal must be taken within ninety days from the date of entry by the civil service commission of its final order. Upon an appeal being taken and docketed with the clerk of the circuit court of the county, the circuit court shall proceed to hear the appeal upon the original record made before the commission and no additional proof may be permitted to be introduced. The circuit court's decision is final, but the correctional officer or sheriff, as the case may be, against whom the decision of the circuit court is rendered has the right to petition the supreme court of appeals for a review of the circuit court's decision as in other civil cases. The correctional officer or sheriff also has the right, where appropriate, to seek in lieu of an appeal, a writ of mandamus. The correctional officer, if reinstated or exonerated by the circuit court or the supreme court of appeals, shall, if represented by legal counsel, be awarded reasonable attorney fees as approved by the court and the fees shall be paid by the sheriff from county funds.
(c) The removing sheriff and the correctional officer shall at all times, both before the civil service commission and upon appeal, be given the right to employ counsel to represent them.
(d) If for reasons of economy or other reasons it is deemed necessary by any appointing sheriff to reduce the number of his or her correctional officers, the sheriff shall follow the procedure set forth in this subsection. The reduction in the numbers of the correctional officers of the county shall be effected by suspending the last person or persons, including probationers, who have been appointed as correctional officers: Provided, That in the event the number of correctional officers is increased in numbers to the strength existing prior to the reduction of correctional officers, the correctional officers suspended under the terms of this subsection shall be reinstated in the inverse order of their suspension before any new appointments of correctional officers in the county are made.
(e) Notwithstanding any other provision of this article to the contrary, no correctional officer in any county subject to the provisions of this article may serve as a correctional officer in any county subject to the provisions of this article after attaining the age of sixty-five years.
CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 14. LAW AND ORDER; POLICE FORCE OR DEPARTMENTS; POWERS, AUTHORITY AND DUTIES OF LAW-ENFORCEMENT OFFICIALS AND POLICEMEN; POLICE MATRONS; SPECIAL SCHOOL ZONE AND PARKING LOT OR PARKING BUILDING; POLICE OFFICERS; CIVIL SERVICE FOR CERTAIN POLICE DEPARTMENTS.

§8-14-20. Removal, discharge, suspension or reduction in rank or pay; hearing; attorney fees; appeal; reduction in number of members.

(a) No member of any paid police department subject to the civil service provisions of this article may be removed, discharged, suspended or reduced in rank or pay except for just cause, which may not be religious or political, except as provided in section nineteen of this article; and no such member may be removed, discharged, suspended or reduced in rank or pay except as provided by the civil service provisions of this article, and in no event until the member has been furnished with a written statement of the reasons for the action. In every case of such removal, discharge, suspension or reduction, a copy of the statement of reasons therefor and of the written answer thereto, if the member desires to file such written answer, shall be furnished to the policemen's civil service commission and entered upon its records. If the member demands it, the commission shall grant a public hearing, which hearing shall be held within a period of ten days from the filing of the charges in writing or the written answer thereto, whichever shall last occur. At the hearing, the burden shall be upon the removing, discharging, suspending or reducing officer, hereinafter in this section referred to as "removing officer", to show just cause for his or her action, and in the event the removing officer fails to show just cause for the action before the commission, then the member shall be reinstated with full pay, forthwith and without any additional order, for the entire period during which the member may have been prevented from performing his or her usual employment, and no charges may be officially recorded against the member's record. The member, if reinstated or exonerated, shall, if represented by legal counsel, be awarded reasonable attorney fees to be determined by the commission and paid by the governing body. A written record of all testimony taken at the hearing shall be kept and preserved by the commission, which record shall be sealed and not be open to public inspection unless an appeal is taken from the action of the commission.
(b) In the event the commission sustains the action of the removing officer, the member has an immediate right of appeal to the circuit court of the county wherein the city or the major portion of the territory thereof is located. In the event that the commission reinstates the member, the removing officer has an immediate right of appeal to the circuit court. In the event either the removing officer or the member objects to the amount of the attorney fees awarded to the member, the objecting party has an immediate right of appeal to the circuit court. Any appeal must be taken within ninety days from the date of entry by the commission of its final order. Upon an appeal being taken and docketed with the clerk of the circuit court of the county, the circuit court shall proceed to hear the appeal upon the original record made before the commission and no additional proof may be permitted to be introduced. The circuit court's decision is final, but the member or removing officer, as the case may be, against whom the decision of the circuit court is rendered has the right to petition the supreme court of appeals for a review of the circuit court's decision as in other civil cases. The member or removing officer also has the right, where appropriate, to seek, in lieu of an appeal, a writ of mandamus. The member, if reinstated or exonerated by the circuit court or by the supreme court of appeals, shall, if represented by legal counsel, be awarded reasonable attorney fees as approved by the court and the fees shall be paid by the governing body.
(c) The removing officer and the member shall at all times, both before the commission and upon appeal, be given the right to employ counsel to represent them.
(d) If for reasons of economy or other reasons it is deemed necessary by any Class I or Class II city to reduce the number of paid members of its paid police department, the city shall follow the procedure set forth in this subsection. The reduction in members of the paid police department of the city shall be effected by suspending the last person or persons, including probationers, who have been appointed to the paid police department. The removal shall be accomplished by suspending the number desired in the inverse order of their appointment: Provided, That in the event the said paid police department is increased in numbers to the strength existing prior to the reduction of members, the members suspended under the terms of this subsection shall be reinstated in the inverse order of their suspension before any new appointments to said paid police department are made.

ARTICLE 15. FIRE FIGHTING; FIRE COMPANIES AND DEPARTMENTS; CIVIL SERVICE FOR PAID FIRE DEPARTMENTS.

§8-15-25. Removal, discharge, suspension or reduction in rank or pay; hearing; attorney fees; appeal; reduction in number of members.

(a) No member of any paid fire department subject to the civil service provisions of this article may be removed, discharged, suspended or reduced in rank or pay except for just cause, which may not be religious or political, except as provided in section twenty-four of this article; and no such member may be removed, discharged, suspended or reduced in rank or pay except as provided by the civil service provisions of this article, and in no event until the member has been furnished with a written statement of the reasons for the action. In every case of such removal, discharge, suspension or reduction, a copy of the statement of reasons therefor and of the written answer thereto, if the member desires to file such written answer, shall be furnished to the firemen's civil service commission and entered upon its records. If the member demands it, the commission shall grant a public hearing, which hearing shall be held within a period of ten days from the filing of the charges in writing or the written answer thereto, whichever shall last occur. At the hearing, the burden shall be upon the removing, discharging, suspending or reducing officer, hereinafter in this section referred to as "removing officer", to show just cause for his or her action, and in the event the removing officer fails to show just cause for the action before the commission, then the member shall be reinstated with full pay, forthwith and without any additional order, for the entire period during which the member may have been prevented from performing his or her usual employment, and no charges may be officially recorded against the member's record. The member, if reinstated or exonerated, shall, if represented by legal counsel, be awarded reasonable attorney fees to be determined by the commission and paid by the governing body. A written record of all testimony taken at the hearing shall be kept and preserved by this commission, which record shall be sealed and not be open to public inspection unless an appeal is taken from the action of the commission.
(b) In the event the commission sustains the action of the removing officer, the member has an immediate right of appeal to the circuit court of the county wherein the municipality or the major portion of the territory thereof is located. In the event that the commission reinstates the member, the removing officer has an immediate right of appeal to the circuit court. In the event either the removing officer or the member objects to the amount of the attorney fees awarded to the member, the objecting party has an immediate right of appeal to the circuit court. Any appeal must be taken within ninety days from the date of entry by the commission of its final order. Upon an appeal being taken and docketed with the clerk of the circuit court of the county, the circuit court shall proceed to hear the appeal upon the original record made before the commission and no additional proof may be permitted to be introduced. The circuit court's decision is final, but the member or removing officer, as the case may be, against whom the decision of the circuit court is rendered has the right to petition the supreme court of appeals for a review of the circuit court's decision as in other civil cases. The member or removing officer also has the right, where appropriate, to seek, in lieu of an appeal, a writ of mandamus. The member, if reinstated or exonerated by the circuit court or by the supreme court of appeals, shall, if represented by legal counsel, be awarded reasonable attorney fees as approved by the court and the fees shall be paid by the governing body.
(c) The removing officer and the member shall at all times, both before the commission and upon appeal, be given the right to employ counsel to represent them.
(d) If for reasons of economy or other reasons it is deemed necessary by any such municipality to reduce the number of paid members of its paid fire department, the municipality shall follow the procedure set forth in this subsection. The reduction in members of the paid fire department of the municipality shall be effected by suspending the last person or persons, including probationers, who have been appointed to the paid fire department. The removal shall be accomplished by suspending the number desired in the inverse order of their appointment: Provided, That in the event the said paid fire department is increased in numbers to the strength existing prior to the reduction of members, the members suspended under the terms of this subsection shall be reinstated in the inverse order of their suspension before any new appointments to said paid fire department are made.