COMMITTEE SUBSTITUTE
FOR
H. B. 3038
(By Delegates Webster, Armstead, Ashley, White,
Campbell, Fleischauer, Brown, Wells,
Hunt and Staggers)
(Originating in the Committee on the Judiciary)
[March 25, 2009]
A BILL to amend and reenact §6-6-7 of the Code of West Virginia,
1931, as amended; to amend and reenact §6B-2-4 of said code;
and to amend said code by adding thereto a new section,
designated §6B-2-12, all relating generally to the enforcement
powers of the Ethics Commission; authorizing the Ethics
Commission to initiate removal proceedings in circuit court
against a county, school district or municipal officer,
who
has been found to have violated the West Virginia Governmental
Ethics Act; authorizing the commission to seek preliminary
injunctive relief upon the filing of a verified complaint
against a county, school district or municipal officer, if it
has reason to believe that the public official is unlawfully
expending public funds, that the local governmental body has
not acted to stop the expenditure and that irreparable harm
may occur if the public official is not enjoined.
Be it enacted by the Legislature of West Virginia:
That §6-6-7 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; that §6B-2-4 of said code be amended and reenacted; and that said code be amended by adding thereto a new
section, designated §6B-2-12, all to read as follows
:
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS
ARTICLE 6. REMOVAL OF OFFICERS.
§6-6-7. Procedure for removal of county, school district and
municipal officers having fixed terms; appeal; grounds
(a) Any person holding any county, school district or
municipal office, including the office of a member of a board of
education and the office of magistrate, the term or tenure of which
office is fixed by law, whether the office be elective or
appointive, except judges of the circuit courts, may be removed
from such office in the manner provided in this section for
official misconduct, malfeasance in office, incompetence, neglect
of duty or gross immorality or for any of the causes or on any of
the grounds provided by any other statute.
(b) Charges may be preferred:
(1) In the case of any county officer, member of a district
board of education or magistrate, by the county commission, or
other tribunal in lieu thereof, any other officer of the county, or
by any number of persons other than such county officers, which
number shall be the lesser of fifty or one percent of the total
number of voters of the county participating in the general
election next preceding the filing of such charges.
(2) In the case of any municipal officer, by the prosecuting
attorney of the county wherein such municipality, or the greater portion thereof, is located, any other elected officer of the
municipality, or by any number of persons other than the
prosecuting attorney or other municipal elective officer of the
municipality who are residents of the municipality, which number
shall be the lesser of twenty-five or one percent of the total
number of voters of the municipality participating in the election
at which the governing body was chosen which election next preceded
the filing of the petition.
(3) By the
West Virginia Ethics Commission or the chief
inspector and supervisor of public offices of the state where the
person sought to be removed is entrusted by law with the
collection, custody and expenditure of public moneys because of any
misapplication, misappropriation or embezzlement of such moneys.
(c) The charges shall be reduced to writing in the form of a
petition duly verified by at least one of the persons bringing the
same, and shall be entered of record by the court, or the judge
thereof in vacation, and a summons shall thereupon be issued by the
clerk of such court, together with a copy of the petition,
requiring the officer or person named therein to appear before the
court, at the courthouse of the county where such officer resides,
and answer the charges on a day to be named therein, which summons
shall be served at least twenty days before the return day thereof
in the manner by which a summons commencing a civil suit may be
served.
The court, or judge thereof in vacation, or in the case of any
multi-judge circuit, the chief judge thereof, shall, without delay forward a copy of the petition to the supreme court of appeals and
shall ask for the impaneling or convening of a three-judge court
consisting of three circuit judges of the state. The chief justice
of the supreme court of appeals shall without delay designate and
appoint three circuit judges within the state, not more than one of
whom shall be from the same circuit in which the petition is filed
and, in the order of such appointment, shall designate the date,
time and place for the convening of such three-judge court, which
date and time shall not be less than twenty days from the date of
the filing of the petition.
Such three-judge court shall, without a jury, hear the charges
and all evidence offered in support thereof or in opposition
thereto and upon satisfactory proof of the charges shall remove any
such officer or person from office and place the records, papers
and property of his office in the possession of some other officer
or person for safekeeping or in the possession of the person
appointed as hereinafter provided to fill the office temporarily.
Any final order either removing or refusing to remove any such
person from office shall contain such findings of fact and
conclusions of law as the three-judge court shall deem sufficient
to support its decision of all issues presented to it in the
matter.
(d) An appeal from an order of such three-judge court removing
or refusing to remove any person from office pursuant to this
section may be taken to the supreme court of appeals within thirty
days from the date of entry of the order from which the appeal is taken. The supreme court of appeals shall consider and decide the
appeal upon the original papers and documents, without requiring
the same to be printed and shall enforce its findings by proper
writ. From the date of any order of the three-judge court removing
an officer under this section until the expiration of thirty days
thereafter, and, if an appeal be taken, until the date of
suspension of such order, if suspended by the three-judge court and
if not suspended, until the final adjudication of the matter by the
supreme court of appeals, the officer, commission or body having
power to fill a vacancy in such office may fill the same by a
temporary appointment until a final decision of the matter, and
when a final decision is made by the supreme court of appeals shall
fill the vacancy in the manner provided by law for such office.
(e) In any case wherein the charges are preferred by the chief
inspector and supervisor of public offices against the county
commission or any member thereof or any county district or
municipal officer, the proceedings under this section shall be
conducted and prosecuted by the prosecuting attorney of the county
in which the officer proceeded against resides, and on any appeal
from the order of the three-judge court in any such case, the
attorney general of the state shall represent the people. When any
municipal officer is proceeded against the solicitor or municipal
attorney for such municipality may assist in the prosecution of the
charges.
CHAPTER 6B. PUBLIC OFFICERS AND EMPLOYEES; ETHICS;
CONFLICTS OF INTEREST; FINANCIAL DISCLOSURE
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS
AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES;
CODE OF CONDUCT FOR ADMINISTRATIVE LAW JUDGES.
§6B-2-4. Processing complaints; dismissals; hearings; disposition;
judicial review.
(a) Upon the filing of a complaint, the Executive Director of
the commission or his or her designee shall, within three working
days, acknowledge the receipt of the complaint by first-class mail
unless the complaint was initiated by the commission or the
complainant or his or her representative personally filed the
complaint with the commission and was given a receipt or other
acknowledgment evidencing the filing of the complaint. No
political party or officer, employee or agent of a political party
acting in his or her official capacity may file a complaint for a
violation of this chapter with the commission. Nothing in this
section prohibits a private citizen, acting in that capacity, from
filing a verified complaint with the commission under this section.
Within fourteen days after the receipt of a complaint, the
Executive Director shall refer the complaint to the review board
created pursuant to section two-a of this article.
(b) Upon the referral of a complaint by the Executive Director
pursuant to subsection (a) of this section, the review board shall
determine whether the allegations of the complaint, if taken as
true, would constitute a violation of law upon which the commission could properly act under the provisions of this chapter. If the
complaint is determined by a majority vote of the review board to
be insufficient in this regard, the review board shall dismiss the
complaint.
(c) Upon a finding by the review board that the complaint is
sufficient, the Executive Director shall give notice of a pending
investigation to the complainant, if any, and to the respondent.
The notice of investigation shall be mailed to the parties and, in
the case of the respondent, shall be mailed as certified mail,
return receipt requested, marked "Addressee only, personal and
confidential". The notice shall describe the conduct of the
respondent which is alleged to violate the law and a copy of the
complaint shall be appended to the notice mailed to the respondent.
Each notice of investigation shall inform the respondent that the
purpose of the investigation is to determine whether probable cause
exists to believe that a violation of law has occurred which may
subject the respondent to administrative sanctions by the
commission, criminal prosecution by the state, or civil liability.
The notice shall further inform the respondent that he or she has
a right to appear before the review board and that he or she may
respond in writing to the commission within thirty days after the
receipt of the notice, but that no fact or allegation shall be
taken as admitted by a failure or refusal to timely respond.
(d) Within the forty-five-day period following the mailing of
a notice of investigation, the review board shall proceed to
consider: (1) The allegations raised in the complaint; (2) any timely received written response of the respondent; and (3) any
other competent evidence gathered by or submitted to the commission
which has a proper bearing on the issue of probable cause. A
respondent may appear before the review board and make an oral
response to the complaint. The commission shall promulgate rules
prescribing the manner in which a respondent may present his or her
oral response. The commission may ask a respondent to disclose
specific amounts received from a source and request other detailed
information not otherwise required to be set forth in a statement
or report filed under the provisions of this chapter if the
information sought is considered to be probative as to the issues
raised by a complaint or an investigation initiated by the
commission. Any information thus received shall be confidential
except as provided by subsection (e) of this section. If a person
asked to provide information fails or refuses to furnish the
information to the commission, the commission may exercise its
subpoena power as provided in this chapter and any subpoena issued
by the commission shall have the same force and effect as a
subpoena issued by a circuit court of this state. Enforcement of
any subpoena may be had upon application to a circuit court of the
county in which the review board is conducting an investigation
through the issuance of a rule or an attachment against the
respondent as in cases of contempt.
(e)
(1) All investigations, complaints, reports, records,
proceedings and other information received by the commission and
related to complaints made to the commission or investigations conducted by the commission pursuant to this section, including the
identity of the complainant or respondent, are confidential and may
not be knowingly and improperly disclosed by any current or former
member or employee of the commission or the review board except as
follows:
(A) Once there has been a finding that probable cause exists
to believe that a respondent has violated the provisions of this
chapter and the respondent has been served by the commission with
a copy of the review board's order and the statement of charges
prepared pursuant to the provisions of subsection (g) of this
section, the complaint and all reports, records, nonprivileged and
nondeliberative material introduced at any probable cause hearing
held pursuant to the complaint cease to be confidential.
(B) After a finding of probable cause, any subsequent hearing
held in the matter for the purpose of receiving evidence or the
arguments of the parties or their representatives shall be open to
the public and all reports, records and nondeliberative materials
introduced into evidence at the hearing, as well as the
commission's orders, are not confidential.
(C) The commission may release any information relating to an
investigation at any time if the release has been agreed to in
writing by the respondent.
(D) The complaint and the identity of the complainant shall be
disclosed to a person named as respondent immediately upon the
respondent's request.
(E) Where the commission is otherwise required by the provisions of this chapter to disclose information or to proceed in
such a manner that disclosure is necessary and required to fulfill
those requirements.
(2) If, in a specific case, the commission finds that there is
a reasonable likelihood that the dissemination of information or
opinion in connection with a pending or imminent proceeding will
interfere with a fair hearing or otherwise prejudice the due
administration of justice, the commission shall order that all or
a portion of the information communicated to the commission to
cause an investigation and all allegations of ethical misconduct or
criminal acts contained in a complaint shall be confidential and
the person providing the information or filing a complaint shall be
bound to confidentiality until further order of the commission.
(f) If the members of the review board fail to find probable
cause, the proceedings shall be dismissed by the commission in an
order signed by the members of the review board. Copies of the
order of dismissal shall be sent to the complainant and served upon
the respondent forthwith. If the review board decides by a
unanimous vote that there is probable cause to believe that a
violation under this chapter has occurred, the members of the
review board shall sign an order directing the commission staff to
prepare a statement of charges and assign the matter for hearing to
the commission or a hearing examiner as the commission may
subsequently direct. The commission shall then schedule a hearing,
to be held within ninety days after the date of the order, to
determine the truth or falsity of the charges. The commission's review of the evidence presented shall be de novo. For the purpose
of this section, service of process upon the respondent is obtained
at the time the respondent or the respondent's agent physically
receives the process, regardless of whether the service of process
is in person or by certified mail.
(g) At least eighty days prior to the date of the hearing, the
commission shall serve the respondent by certified mail, return
receipt requested, with the statement of charges and a notice of
hearing setting forth the date, time and place for the hearing.
The scheduled hearing may be continued only upon a showing of good
cause by the respondent or under other circumstances as the
commission, by legislative rule, directs.
(h) The commission may sit as a hearing board to adjudicate
the case or may permit an assigned hearing examiner employed by the
commission to preside at the taking of evidence. The commission
shall, by legislative rule, establish the general qualifications
for hearing examiners. The legislative rule shall also contain
provisions which ensure that the functions of a hearing examiner
will be conducted in an impartial manner and describe the
circumstances and procedures for disqualification of hearing
examiners.
(i) A member of the commission or a hearing examiner presiding
at a hearing may:
(1) Administer oaths and affirmations, compel the attendance
of witnesses and the production of documents, examine witnesses and
parties and otherwise take testimony and establish a record;
(2) Rule on offers of proof and receive relevant evidence;
(3) Take depositions or have depositions taken when the ends
of justice will be served;
(4) Regulate the course of the hearing;
(5) Hold conferences for the settlement or simplification of
issues by consent of the parties;
(6) Dispose of procedural requests or similar matters;
(7) Accept stipulated agreements;
(8) Take other action authorized by the Ethics Commission
consistent with the provisions of this chapter.
(j) With respect to allegations of a violation under this
chapter, the complainant has the burden of proof. The West
Virginia Rules of Evidence governing proceedings in the courts of
this state shall be given like effect in hearings held before the
commission or a hearing examiner. The commission shall, by rule,
regulate the conduct of hearings so as to provide full procedural
due process to a respondent. Hearings before a hearing examiner
shall be recorded electronically. When requested by either of the
parties, the presiding officer shall order a transcript, verified
by oath or affirmation, of each hearing held and so recorded. In
the discretion of the commission, a record of the proceedings may
be made by a certified court reporter. Unless otherwise ordered by
the commission, the cost of preparing a transcript shall be paid by
the party requesting the transcript. Upon a showing of indigency,
the commission may provide a transcript without charge. Within
fifteen days following the hearing, either party may submit to the hearing examiner that party's proposed findings of fact. The
hearing examiner shall thereafter prepare his or her own proposed
findings of fact and make copies of the findings available to the
parties. The hearing examiner shall then submit the entire record
to the commission for final decision.
(k) The recording of the hearing or the transcript of
testimony, as the case may be, and the exhibits, together with all
papers and requests filed in the proceeding, and the proposed
findings of fact of the hearing examiner and the parties,
constitute the exclusive record for decision by the commission,
unless by leave of the commission a party is permitted to submit
additional documentary evidence or take and file depositions or
otherwise exercise discovery.
(l) The commission shall set a time and place for the hearing
of arguments by the complainant and respondent, or their respective
representatives, and shall notify the parties thereof. Briefs may
be filed by the parties in accordance with procedural rules
promulgated by the commission. The commission shall issue a final
decision in writing within forty-five days of the receipt of the
entire record of a hearing held before a hearing examiner or, in
the case of an evidentiary hearing held by the commission acting as
a hearing board in lieu of a hearing examiner, within twenty-one
days following the close of the evidence.
(m) A decision on the truth or falsity of the charges against
the respondent and a decision to impose sanctions must be approved
by at least seven members of the commission.
(n) Members of the commission shall recuse themselves from a
particular case upon their own motion with the approval of the
commission or for good cause shown upon motion of a party. The
remaining members of the commission may, by majority vote, select
a temporary member to replace a recused member:
Provided, That the
temporary member selected to replace a recused member shall be a
person of the same status or category, provided by subsection (b),
section one of this article, as the recused member.
(o) Except for statements made in the course of official
duties to explain commission procedures, no member or employee or
former member or employee of the commission may make any public or
nonpublic comment about any proceeding previously or currently
before the commission. Any member or employee or former member or
employee of the commission who violates this subsection is subject
to the penalties contained in subsection (e), section ten of this
article. In addition, violation of this subsection by a current
member or employee of the commission is grounds for immediate
removal from office or termination of employment.
(p) A complainant may be assisted by a member of the
commission staff assigned by the commission after a determination
of probable cause.
(q) No employee of the commission assigned to prosecute a
complaint may participate in the commission deliberations or
communicate with commission members or the public concerning the
merits of a complaint.
(r) (1) If the commission finds by evidence beyond a reasonable doubt that the facts alleged in the complaint are true
and constitute a material violation of this article, it may impose
one or more of the following sanctions:
(A) Public reprimand;
(B) Cease and desist orders;
(C) Orders of restitution for money, things of value, or
services taken or received in violation of this chapter;
(D) Fines not to exceed $5,000 per violation; or
(E) Reimbursement to the commission for the actual costs of
investigating and prosecuting a violation. Any reimbursement
ordered by the commission for its costs under this paragraph shall
be collected by the commission and deposited into the special
revenue account created pursuant to section six, article one of
this chapter.
(2)
(A) In addition to imposing the above-specified sanctions,
the commission may recommend to the appropriate governmental body
that a respondent be terminated from employment or removed from
office.
(B) If within sixty days of the commission entering an order
recommending the removal from office of an elected or appointed,
county, school district or municipal officer
, a removal petition
has not been filed, the commission may file a petition for the
removal of the county, school district or municipal officer
pursuant to section seven, article six, chapter six of this code.
(3) The commission may institute civil proceedings in the
circuit court of the county in which a violation occurred for the enforcement of sanctions.
(s) At any stage of the proceedings under this section, the
commission may enter into a conciliation agreement with a
respondent if the agreement is deemed by a majority of the members
of the commission to be in the best interest of the state and the
respondent. Any conciliation agreement must be disclosed to the
public: Provided, That negotiations leading to a conciliation
agreement, as well as information obtained by the commission during
the negotiations, shall remain confidential except as may be
otherwise set forth in the agreement.
(t) Decisions of the commission involving the issuance of
sanctions may be appealed to the circuit court of Kanawha County,
only by the respondent and only upon the grounds set forth in
section four, article five, chapter twenty-nine-a of this code.
(u) (1) Any person who in good faith files a verified
complaint or any person, official or agency who gives credible
information resulting in a formal complaint filed by commission
staff is immune from any civil liability that otherwise might
result by reason of such actions.
(2) If the commission determines, by clear and convincing
evidence, that a person filed a complaint or provided information
which resulted in an investigation knowing that the material
statements in the complaint or the investigation request or the
information provided were not true; filed an unsubstantiated
complaint or request for an investigation in reckless disregard of
the truth or falsity of the statements contained therein; or filed one or more unsubstantiated complaints which constituted abuse of
process, the commission shall:
(A) Order the complainant or informant to reimburse the
respondent for his or her reasonable costs;
(B) Order the complainant or informant to reimburse the
respondent for his or her reasonable attorney fees; and
(C) Order the complainant or informant to reimburse the
commission for the actual costs of its investigation. In addition,
the commission may decline to process any further complaints
brought by the complainant, the initiator of the investigation or
the informant.
(3) The sanctions authorized in this subsection are not
exclusive and do not preclude any other remedies or rights of
action the respondent may have against the complainant or informant
under the law.
(v) (1) If at any stage in the proceedings under this section
it appears to a review board, a hearing examiner or the commission
that there is credible information or evidence that the respondent
may have committed a criminal violation, the matter shall be
referred to the full commission for its consideration. If, by a
vote of two-thirds of the members of the full commission, it is
determined that probable cause exists to believe a criminal
violation has occurred, the commission shall refer the matter to
the appropriate county prosecuting attorney having jurisdiction for
a criminal investigation and possible prosecution. Deliberations
of the commission with regard to referring a matter for criminal investigation by a prosecuting attorney shall be private and
confidential. Notwithstanding any other provision of this article,
once a referral for criminal investigation is made under the
provisions of this subsection, the ethics proceedings shall be held
in abeyance until action on the referred matter is concluded. If
the referral of the matter to the prosecuting attorney results in
a criminal conviction of the respondent, the commission may resume
its investigation or prosecution of the ethics violation, but may
not impose a fine as a sanction if a violation is found to have
occurred.
(2) If fewer than two-thirds of the full commission determine
that a criminal violation has occurred, the commission shall remand
the matter to the review board, the hearing examiner or the
commission itself as a hearing board, as the case may be, for
further proceedings under this article.
(w) The provisions of this section shall apply to violations
of this chapter occurring after September 30, 1989, and within one
year before the filing of a complaint: Provided, That the
applicable statute of limitations for violations which occur on or
after July 1, 2005, is two years after the date on which the
alleged violation occurred.
§6B-2-12. Injunction; restraining order; mandamus.
(a)
Upon the filing of a complaint pursuant to section three-a
or four of this article and the approval of seven of its members,
the commission may bring an action in any court of competent
jurisdiction to enjoin the acts or practices of a county, school district or municipal officer and to enforce compliance with this
article, or any rule or order of the commission, upon a finding
that:
(1) a county, school district or municipal officer
is
unlawfully using public funds or engaging in conduct in clear
violation of this chapter;
(2) a county, school district or municipal officer
has not
acted within its authority to stop the unlawful expenditure of the
public funds;
(3) as a result of a county, school district or municipal
officer's misconduct there is a likelihood of irreparable harm to
a local governmental body or any political subdivision; and
(4) it is in the best interest of the public to enjoin the
unlawful expenditure of public funds by a county, school district
or municipal officer,
Upon a proper showing, a permanent or temporary injunction,
restraining order, restitution, writ of mandamus or other equitable
relief shall be granted.
(b) Notwithstanding the limitations in section four, article
two of this chapter, the existence of a complaint, or information
received or discovered by the commission may be disclosed in court
filings, which the commission shall request the circuit clerk to
put under seal, and in court proceedings which shall be conducted
in camera unless the subject of the complaint agrees to a hearing
in open court or unless the court determines that the public
hearing is necessary to the public interest and the proper administration of justice.
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