WEST virginia legislature
2019 regular session
Introduced
Senate Bill 71
By Senators Woelfel, Trump, and Boso
[Introduced
January 9, 2019; Referred
to the Committee on the Judiciary]
A BILL to amend and reenact §4-5-1, §4-5-2, §4-5-3, §4-5-4, and §4-5-5 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §4-5-7 and §4-5-8, all relating to the Commission on Special Investigations; clarifying composition and chairmanship of commission; redefining what constitutes a quorum for voting procedures of commission; clarifying contents of commission’s annual report; listing existing and necessary commission staff positions; granting power to conduct interviews and request production from agencies of the state and its political subdivisions of books, records, documents, papers, or any other tangible thing, computers, laptops, computer hard drives, electronic records including, but not limited to, emails, files, documents and metadata, or any other thing, in any form in which they may exist; requiring compliance with such requests; authorizing the director to issue subpoenas on the commission’s behalf; granting authority to the commission to require an agency head to appear before the commission to answer questions regarding a failure to appear or produce requested or subpoenaed material or other related concerns including the basis for the failure to comply; authorizing the commission and director to order or direct that all or a portion of the information communicated to the commission at the commission’s request, including the existence of the investigation, be confidential and not made public; establishing requirements for commission to enter into executive session; establishing procedures for conducting executive session; removing requirement that Joint Committee on Government and Finance approve expenses of commission; establishing procedure for commission retention and disposal of records; defining new offense of impersonating a commission member or staff member and of obstructing a commission member or staff; establishing penalties; allowing the commission to award duty weapons to certain members on retirement; exempting the commission from the jurisdiction of the agency for surplus property within the Purchasing Division of the Department of Administration with respect to the disposal of the commission’s primary and secondary duty weapons; and authorizing sale of surplus weapons to active and retired members of the commission’s investigative staff.
Be it enacted by the Legislature of West Virginia:
ARTICLE 5. COMMISSION ON SPECIAL INVESTIGATIONS.
§4-5-1. Commission continued as Commission on
Special Investigations continued; composition; appointment and terms of
members.
The purchasing practices and procedures commission,
heretofore created, shall continue in existence but on and after the effective
date of this section shall be named and designated the Commission on
Special Investigations is continued. The commission shall continue to
be composed of five the President of the Senate and four members
of the Senate, to be appointed by the president thereof President of
the Senate, no more than three two of whom shall be from the
same political party; and five the Speaker of the House of Delegates
and four members of the House of Delegates, to be appointed by the speaker
Speaker of the House of Delegates thereof, no more than three
two of whom shall be appointed from the same political party: Provided,
That in the event the membership of a political party is less than 15 percent
in the Senate or the House of Delegates, then the membership of that political
party from the legislative house with less than fifteen percent membership may
be one from that house. The commission shall be headed chaired by
two co-chairmen, one to be selected by and from the members appointed from
the Senate, and one to be selected by and from the members appointed from the
House of Delegates the President of the Senate and the Speaker of the
House of Delegates. All members of the commission shall appointed
to the commission by the commission chairs serve until their successors shall
have been are appointed as heretofore provided in this
section.
§4-5-2. Powers and duties generally.
(a) The Commission on Special Investigations shall have
the power, duty and responsibility upon a may, by majority
vote: of the members appointed, to
(1) Conduct a comprehensive and detailed investigation into the purchasing practices and procedures of the state;
(2) Determine if there is reason to believe that the laws or public policy of the state in connection with purchasing practices and procedures have been violated or are inadequate;
(3) Determine if any criminal or civil statutes relating to the purchasing practices and procedures in this state are necessary to protect and control the expenditures of money by the state;
(4) Investigate or examine any matter involving conflicts of interest, bribery of state officials, malfeasance, misfeasance or nonfeasance in office by any employee or officer of the state;
(5) Conduct comprehensive and detailed investigations to determine if any criminal or civil statutes have been violated at any level of state government;
(6) Determine whether to recommend criminal prosecution or
civil action for any violation, either criminal or civil, at any level of state
government and, if it is determined that action is necessary, to make
appropriate recommendation to the Attorney General, prosecuting attorney or
other authority empowered to act on such the recommendation; and
(7) Make such written reports determined
advisable by the commission to the members of the Legislature between its
sessions. thereof as the commission may deem advisable and on On
the first day of each regular session of the Legislature, the commission
shall make an annual report on its activities to the Legislature
containing the commission's findings and recommendations including in
such report drafts of for any proposed legislation which it deems
considers necessary to carry such the recommendations into
effect.
(b) The commission is also expressly empowered and
authorized to may also:
(1) Sit during any recess of the Senate and House of Delegates;
(2) Recommend to the judge of any circuit court that a
grand jury be convened pursuant to the provisions of §52-2-14 of this code to
consider any matter which the commission may deem considers in
the public interest and, in support thereof, make available to such the
court and such the grand jury the contents of any reports, files,
transcripts of hearings or other evidence pertinent thereto to the
matter;
(3) Employ such necessary legal, technical,
investigative, clerical, stenographic, advisory and other personnel as it
deems needed and, within the appropriation herein specified in §4-5-4
of this code, fix reasonable compensation of such any persons
and firms as may be that are employed. The commission’s
investigative staff may consist of a director, deputy director, senior
investigators and investigators as approved by the cochairs: Provided,
That such personnel as the commission may determine shall have the
authority authorize certain personnel to administer oaths and take
affidavits and depositions anywhere in the state;
(4) Consult and confer with all public and private
persons and agencies, public (whether federal, state or local) and private
including federal and state agencies and state political subdivisions,
that have information and data pertinent to an investigation; and all state and
local governmental personnel and agencies and state political
subdivisions shall cooperate to the fullest extent with the commission;
(5) Call upon any department or agency of state or
local government or state political subdivision for such any
services, information and assistance as it may deem it considers
advisable; and
(6) Refer such appropriate matters as are
appropriate to the office of the United States attorney, or other
appropriate state or federal law-enforcement entity, and cooperate with
such office in the disposition of matters so referred;
(7) Interview witnesses and require production from state agencies and subdivisions of the state of books, records, documents, papers, computers, laptops, computer hard drives, electronic records including, but not limited to, emails, electronic files, electronic documents and metadata, or any other thing, in any form in which it may exist, as the commission believes should be examined to make a complete investigation: Provided, That a request for production pursuant to this subdivision may be in the form of a written letter from the director of the commission in lieu of a subpoena; and
(8) Make a finding that there is a reasonable likelihood that the dissemination of information in connection with a pending investigation will interfere with the investigation, or otherwise prejudice the due administration of justice, and may order or direct that all or a portion of the information communicated to the commission at the commission’s request, including the existence of the investigation, be confidential and not made public and the person or agency providing the information shall be bound to such confidentiality until further order or direction of the commission: Provided, That the director may make such order or direction of confidentiality on behalf of the commission: Provided, however, That a person or agency under such confidentiality order or direction of the director or commission may request a hearing before the commission to void or limit such confidentiality.
(c) Notwithstanding any provision of this code to the
contrary, specific personnel may be designated by the commission to carry a firearm
in the course of performing his or her official duties: Provided, That
as a precondition of being authorized to carry a concealed weapon in the course
of their official duties, any such designated personnel must have
shall first successfully completed complete a firearms
training and certification program which is equivalent to that which is
required of members of the West Virginia State Police. The designated persons must
shall also possess a license to carry a concealed deadly weapon in the
manner prescribed in §61-7-1 et seq. of this code.
§4-5-3. Executive sessions; hearings; subpoena power; enforcement provisions.
(a) By majority vote, The the
commission shall have the power and authority to may hold
executive sessions for the purpose of establishing business, establishing
policy, an agenda and the interrogation of reviewing investigations,
and interrogating a witness or witnesses: Provided, That if a
witness desires a public or open hearing, he the witness shall
have the right to may demand the same one and shall
not be heard otherwise: Provided, however, That if a witness desires a
hearing in an executive session, he shall have the right to the
witness may demand the same one and shall not be heard
otherwise. However, Members of the staff of the commission may be
permitted to attend executive sessions with permission of the commission chairs.
(b) The commission is hereby empowered and
authorized to may examine witnesses and to subpoena such
any persons and books, records, documents, papers or any other
tangible things as computers, laptops, computer hard drives, electronic
records, including emails, electronic files, electronic documents and metadata,
or any other thing, in any form in which it may exist, it believes should
be examined to make a complete investigation. All witnesses appearing before
the commission shall testify under oath or affirmation, and any member of the
commission or member of the commission staff may administer oaths or
affirmations to such the witnesses. To compel the attendance
of witnesses at such hearings to attend a hearing or the
production of produce any books, records, documents, papers, or
any other tangible thing the commission is hereby empowered and
authorized to may issue subpoenas, signed by one of the co-chairmen
cochairs, in accordance with §4-1-5 of this code: Provided,
That the commission may specifically authorize, or delegate such power to, its
director to issue subpoenas on its behalf. Such The subpoenas
shall be served by any person authorized by law to serve and execute legal
process and service shall be made without charge. Witnesses subpoenaed to
attend hearings shall be allowed the same mileage and per diem as is allowed
witnesses before any petit jury in this state.
(c) If any person subpoenaed to appear at any
hearing shall refuse refuses to appear or to answer inquiries
there propounded, or shall fail or refuse fails or refuses to
produce books, records, documents, papers or any other tangible thing within
his or her control when the same they are demanded, the
commission shall report the facts to the circuit court of Kanawha County or any
other court of competent jurisdiction and such the court may
compel obedience to the subpoena as though such the subpoena had
been issued by such the court in the first instance: Provided,
That prior to seeking circuit court relief, the commission may, in its
discretion, first demand the head of the public agency in which an employee has
failed to appear or which has failed to produce requested or subpoenaed
material to appear before the commission and address the basis for the failure
to comply and whether compliance will be forthcoming.
§4-5-4. Compensation and expenses of members; other
expenses; how paid. joint committee approval
The members of the commission shall receive travel,
interim and out-of-state expenses, as authorized in §4-2A-6, §4-2A-8, and §4-2A-9
of this code. Such expenses and all other expenses, including those incurred in
the employment of legal, technical, investigative, clerical, stenographic,
advisory and other personnel, shall be paid from the appropriation under
Account No. 103 for Joint Expenses. but no expense of any kind whatever
shall be incurred unless the approval of the Joint Committee on Government and
Finance therefor is first had and obtained by the commission
§4-5-5. Investigations exempt from public disclosure requirements; retention and disposal of commission records.
(a) The investigations conducted by the commission and the materials placed in the files of the commission as a result of any such investigation are exempt from public disclosure under the provisions of §29B-1-1 et seq. of this code.
(b) Notwithstanding any other provision of this code to the contrary, the commission may dispose of printed materials placed in its files upon a vote of the commission: Provided, That the commission shall save copies of materials filed on or after January 1, 2010, in electronic form prior to their disposal.
§4-5-7. Impersonation or obstruction of commission member or staff.
(a) A person is guilty of impersonating a Commission on Special Investigations member or staff if he or she does one of the following:
(1) Falsely represents himself or herself to be a member or staff member of the commission;
(2) Falsely represents himself or herself to be under the order or direction of the commission or commission staff; or
(3) Falsely presents a badge, credentials, other insignia or likeness thereof, used by the commission for identification as a commission member or staff.
(b) Any person who by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder or obstruct a Commission on Special Investigations member or staff acting in his or her official capacity is guilty of obstruction.
(c) Any person who violates the provisions of subsections (a) or (b) of this section, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than one year or fined not less than $500 nor more than $2500, or both fined and confined.
§4-5-8. Awarding duty weapon upon retirement.
(a) Upon the retirement of a member of the commission’s investigative staff, the cochairs shall award to the retiring member his or her primary duty weapon, without charge, upon determining that the retiring member is retiring honorably with:
(1) At least 20 years of previously recognized law-enforcement service and an additional 10 years of actual service as a member of the commission’s investigative staff;
(2) At least 20 years of actual service as a member of the commission’s investigative staff; or
(3) Less than the required service time, based upon a determination that he or she is totally physically disabled as a result of his or her service with the commission.
(b) Notwithstanding the provisions of §4-5-8(a) of this code, the cochairs may not award to any retiring member the member’s primary duty weapon if the cochairs find the member to be mentally incapacitated or a danger to any person or the community.
(c) The disposal of the commission’s primary and secondary duty weapons, when replaced due to age or routine wear, do not fall under the jurisdiction of the Agency for Surplus Property within the Purchasing Division of the Department of Administration. The commission may offer these surplus weapons for sale at fair market value to any active or retired member of the commission’s investigative staff that is or was previously designated by the commission to carry a firearm with the proceeds from any sales used to offset the cost of new weapons. These surplus weapons also may be included as trade-ins toward the purchase of new weapons
NOTE: The purpose of this bill is to modify statutory provisions relating to the Commission on Special Investigations.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.