COMMITTEE SUBSTITUTE
FOR
H. B.
4256
(
By Delegates Stemple, Proudfoot, William
Mahan, Michael, Argento and Perdue
)
(Originating in the Committee on the Judiciary)
[February 17, 2006]
A BILL to amend and reenact §6-6-7 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §6-6-7a, all relating to providing a
procedure for removal of county, district or municipal
officers; providing a procedure for removal of members
appointed to county or municipal boards, authorities or
commissions for fixed terms; requiring written notice of
intent to remove; allowing an appointed member to object in
writing to removal; requiring a hearing when a member objects
to removal; requiring a written decision after a removal
hearing to include findings of fact and conclusions of law
supporting the decision whether or not to remove a member of
a board, authority or commission; setting time periods for
certain actions; authorizing the appeal of a decision to
circuit court; requiring written decisions when removing
members who fail to respond to notice of intent to remove; authorizing appointment of persons to fill vacancies created
when a member is removed; and making technical corrections.
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; and that said code be amended by adding
thereto a new section, designated §6-6-7a, all to read as follows:
ARTICLE 6. REMOVAL OF OFFICERS.
§6-6-7. Procedure for removal of elected county, school district
and municipal officers having fixed terms; appeal;
grounds.
(a) Any person holding any
elective 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
is located, 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 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 the 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 the 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
multijudge 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 the three-judge court,
which date and time
shall may not be less than twenty days from the
date of the filing of the petition.
Such The 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
or her 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 the 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 the 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 the 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 the 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 the 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 the municipality may assist in the prosecution of
the charges.
§6-6-7a. Removal of appointive county, district or municipal
officers with fixed terms.
(a) The governing body or officer authorized by law to appoint
any nonelected person to any county, district, or municipal board,
authority, or commission, the term or tenure of which is fixed by
law, may remove any member appointed to the board, authority or
commission for official misconduct, incompetence, neglect of duty,
malfeasance or gross immorality in accordance with the procedures
set forth in subsection (b).
(b)(1) The member shall be given written notice via certified
mail return receipt requested by addressee only, of the intent to
remove the member from appointed office by the governing body or
officer which made the appointment. The notice shall include the
reasons for removal set forth with specificity and the procedures
by which the member may object to the removal.
(2) A member receiving a notice of intent to remove may
respond to the notice of intent to remove and request a hearing before the governing body or officer. The response shall be in
writing and set forth the specific reasons why the member should
not be removed. The response must be received by the governing
body or officer within twenty days of the member's receipt of the
notice of intent to remove.
(3) Upon receipt of a written response to a notice of intent
to remove, the governing body or officer shall set a date, time and
place for a hearing not more than ten days from the date of receipt
of the response from the member, and shall give written notice of
the hearing to the member setting forth the hearing date, time and
place no less than five days prior to the hearing date.
(4) The governing body or officer which made the appointment
shall hear the charges and all evidence in support of or in
opposition to the removal. The governing body or officer shall
issue a written decision containing findings of fact and
conclusions of law to support its decision either removing or
refusing to remove a member from a board, authority or commission
within five days of the date of the hearing. The written decision
shall be sent to the member and to the board, authority or
commission of which the person was a member.
(5) An appeal from the decision of the governing body or
officer may be taken by a member who is adversely affected by the
decision to the circuit court of the county in which the governing
body or officer is located in accordance with the provisions of
article five, chapter twenty-nine-a of this code governing judicial review of contested cases.
(6) If a member receives a notice of intent to remove and does
not respond to the notice in writing within ten days of receipt of
the notice of intent to remove, the governing body or officer shall
issue a written decision removing that member from the board,
authority or commission effective the day following the expiration
of the ten-day period to respond. A copy of the decision shall be
sent to the removed member and to the board, commission or
authority from which the member was removed.
(7) When a member is removed from a board, authority or
commission in accordance with the provisions of this section, the
governing body or officer may make an appointment to fill the
vacancy for the remainder of the removed member's term.