H. B. 2198
(By Delegate L. Smith)
[Introduced February 14, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend article two, chapter fifteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by
adding thereto four new sections, designated sections
fifty-one, fifty-two, fifty-three and fifty-four, all relating
to state police officers' rights when faced with accusations
of misconduct or otherwise adverse employment actions;
prescribing standards for the investigation and interrogation
of state police officers accused of misconduct or against whom
adverse employment action is sought; providing hearing
procedures; providing that state police officers have the
right to refuse to disclose personal finances but that
exceptions exist; and, providing for appeal from adverse decisions.
Be it enacted by the Legislature of West Virginia:
That article two, chapter fifteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto four new sections, designated sections
fifty-one, fifty-two, fifty-three and fifty-four, all to read as
follows:
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-51. Investigation and interrogation of a state police
officer.
When any state police officer 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 state police officer 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 off-duty time of the state police officer being
interrogated at any place other than his or her residence, the officer shall be compensated for off-duty time in accordance with
regular department procedure. If the interrogation of the state
police officer occurs during his or her regular duty hours, the
officer may not be released from employment for any work missed due
to interrogation.
(b) Any state police officer under investigation shall be
informed of the nature of the investigation prior to any
interrogation. The 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
may question the officer under investigation.
(c) No state police officer under interrogation may be
subjected to offensive language or threatened with punitive action.
No promise of reward shall be made as an inducement to answering
questions.
(d) The complete interrogation of any state police officer
shall be recorded, either written, taped or transcribed. Upon
request of the officer 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 officer and his or her counsel 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 a state police officer, that
officer shall have the right to be represented by counsel who may
be present at all times during the interrogation.
Nothing herein shall prohibit the immediate temporary
suspension, pending an investigation, from duty of any state police
officer who reports for duty under the influence of alcohol or
controlled substances, or otherwise mentally or emotionally
impaired to the extent the officer's mental state likely would
prevent the officer from performing his or her duties as prescribed
in this article.
§15-2-52. Hearing.
(a) Before taking any punitive action against an accused
officer, the department shall give notice to the accused officer
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 shall be delivered to the accused
officer no later than ten days prior to the hearing.
(b) When an accused officer faces a recommended punitive action of discharge, suspension or reduction in rank or pay, but
before the punitive action is taken, a hearing board must be
appointed and must afford the accused officer a hearing conducted
pursuant to the provisions of section six of this article:
Provided, That the punitive action may be taken before the hearing
board conducts the hearing if exigent circumstances exist which
require it.
(c) When an accused officer faces a recommended punitive
action of written reprimand or transfer for the purpose of
punishment the hearing board shall conduct a 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) The 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
fifty-four of this article.
§15-2-53. Right to refuse to disclose personal finances;
exceptions.
No state police officer may 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 the information
is obtained through proper legal procedures or is necessary for the
employing agency to ascertain the desirability of assigning the officer to a specialized unit in which there is a strong
possibility that bribes or other improper inducements might be
offered.
§15-2-54. Appeal.
A hearing board's decision rendered under the provisions of
section six of this article may be appealed by the state police
officer adversely affected by the order or by the detachment
commander 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 state police officer resides.
NOTE: The purpose of this bill is to add four new sections to
the code addressing state police officers' rights when confronted
with accusations of misconduct or when adverse employment actions
are otherwise sought against them. The bill prescribes standards
for the investigation and interrogation of state police officers
accused of misconduct or against whom adverse employment action is
sought. Further, it provides hearing procedures relative to
opposing accusations and adverse employment actions while providing
that state police officers have the right to refuse to disclose
personal finances with exceptions. Finally, it provides for appeal
from adverse decisions against state police officers.
These sections are new; therefore, strike-throughs and
underscoring have been omitted.
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