ENGROSSED
Senate Bill No. 471
(By Senators Burdette, Mr. President, and Boley,
By Request of the Executive)
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[Introduced March 22, 1993; referred to the Committee
on Government Organization.]
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A BILL to amend and reenact section six, article two, chapter
fifteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to division of
public safety; and creating a grievance procedure
recommendation board and its duties.
Be it enacted by the Legislature of West Virginia:
That section six, article two, chapter fifteen of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 2. DIVISION OF PUBLIC SAFETY.
§15-2-6. Division appeals boards; appeal procedures.
(a) On or before the first day of July, one thousand nine
hundred ninety-three, the superintendent shall establish a
grievance procedure recommendation board which shall be composed
of seven members of the division of public safety. Two members
of the board shall be selected by the superintendent. Three
members of the board shall be elected at large by all the
membership of the division of public safety, and two members ofthe board shall be chosen by the trade or professional
organization which has the largest number of members of the
division within its membership. The grievance procedure
recommendation board shall meet as directed by the superintendent
for the purpose of recommending proposed changes or amendments,
if any, to existing procedures and other guidelines for the
administration of grievances brought by members of the division
of public safety as set forth in subsection (b) of this section.
Any changes or amendments recommended by the grievance procedure
recommendation board shall be reviewed by the superintendent and,
after the superintendent's approval, shall be promulgated as
legislative rules in accordance with the provisions of article
one, chapter twenty-nine-a of this code. After the effective
date of said legislative rules, the procedures outlined in
subsection (b) of this section shall cease to be of any force or
effect and shall be void:
Provided, That following promulgation
of the rules as contemplated in this section, the board will
continue to exist for one full year and shall meet at the
direction of the superintendent to assess or make recommendations
regarding the division's grievance procedure.
(b) Appeals of transfers, suspensions, demotions in rank and
discharges shall be heard by boards of appeals convened pursuant
to the provisions of this section. The boards shall each consist
of seven members and five members shall constitute a quorum. A
new board shall be convened to hear and determine each new appeal
filed by a member of the department. There may be more than one
board in existence at the same time meeting on different appeals. A member of the retirement board is eligible to serve on an
appeals board.
The members of a board shall be one member of the department
who is of the rank of trooper and six members of the department
who are of one of each of the six consecutive ranks above
trooper, all of whom shall be chosen by lot by the superintendent
with each member to be so chosen from among all members of each
of the seven ranks. No department member may serve on an appeals
board if he is a member of the same detachment as the member
making the appeal. Within ten days after he has been notified of
his selection and assignment to serve on a board, a member may
for cause request to be relieved of such assignment. The
superintendent shall determine whether the reasons alleged by the
member are sufficient cause to relieve the member of such
assignment. If such request is granted by the superintendent, a
new board member shall be selected by lot from the same rank to
replace the member who has been relieved of such assignment.
A chairman shall be selected by the members of the board.
Each member of a board shall be reimbursed for all reasonable and
necessary expenses actually incurred in attending meetings of a
board. All expenses of a board shall be paid from appropriations
to the department.
Within fifteen days after a member of the department has
received a notice of transfer or a statement of charges and an
order of suspension, demotion in rank or discharge by the
superintendent, he may appeal the transfer or order to an appeals
board by filing a written notice of appeal with thesuperintendent. The superintendent shall promptly record and
file each appeal, select a board, notify each new board member of
his selection, and furnish to each board member a copy of the
notice or order appealed from and the notice of appeal. A
hearing by a board of appeals shall be held within thirty days
after the superintendent has received a member's notice of
appeal. At least fifteen days prior to the hearing date, the
board shall notify the superintendent and the member making the
appeal of the date, time and place of the hearing.
Any member of the department who makes such an appeal, as
aforesaid, may be represented by an attorney or by any member of
the department or retired member who is receiving benefits from
the death, disability and retirement fund. The superintendent
may be represented by counsel of his choice. In the appeal of a
transfer, the superintendent has the burden of proof that the
transfer is for the purpose of the operational needs of the
department. In any other appeal the superintendent has the
burden of proof as to the charges alleged. The procedure in any
hearing before the board shall be informal and without adherence
to the technical rules of evidence required in proceedings in
courts of record. All evidence submitted to the board shall be
submitted under oath. The chairman, or any member of the board,
shall have authority to administer oaths to witnesses, subpoena
witnesses and compel the production of books and papers pertinent
to any appeal or hearing authorized by this section.
If any person subpoenaed to appear at any appeal or hearing
shall refuse to appear, or shall refuse to answer inquiriespropounded at the appeal or hearing or shall fail or refuse to
produce books and papers which have been subpoenaed which are
pertinent to any appeal or hearing authorized by this section,
the board shall report the facts to the circuit court of Kanawha
county or the circuit court of any county in which the hearing is
being conducted and such court may compel obedience to the
subpoena as though such subpoena had been issued by such court in
the first instance. A person giving testimony at an appeal or
hearing authorized by this section shall not be liable for such
testimony given in good faith and without malicious intent.
The board shall designate a reporter for any such hearing
who shall record and transcribe all of the proceedings. Upon his
demand, the member making the appeal shall have a public hearing
on the charges and in the absence of such demand, the board may
determine whether or not the hearing should be public. Any
hearing may be continued, recessed or adjourned by the board.
The superintendent shall provide reasonable space for the
conduct of hearings. The charges of the reporter shall be paid
by the superintendent from available appropriations. At the
conclusion of the hearing, the board shall determine whether or
not the superintendent's order shall be sustained. The board's
decision shall be issued in writing, with copies thereof being
sent by the board to the superintendent and to the appealing
member by certified mail, return receipt requested. A hearing
shall be conducted by at least five members of the board and the
decision of the board shall be made by a majority vote of all the
members of the board.
Either party aggrieved by a decision of a board of appeals
may appeal the decision to the circuit court of Kanawha county
within sixty days of receipt of a copy of the board's decision.
The court shall hear the appeal upon the record and
determine all questions submitted to it on appeal.
In the event any decision sustaining the superintendent's
order or notice is reversed upon judicial review, which reversal
is final, the superintendent shall return the member to his
status prior to the superintendent's order or notice without any
acts or action of reprisal or reprimand, with full payment of any
compensation withheld and with full credit for service between
the date the superintendent issued his order or notice and the
date of the final judicial decision reversing the decision of the
board.
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