COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 518

(By Senators Palumbo, Foster, Jenkins, Klempa, Browning and Williams)

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[Originating in the Committee on the Judiciary;

reported February 15, 2012.]

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A BILL to amend and reenact §6-5-5 of the Code of West Virginia, 1931, as amended; to amend and reenact §6-6-1 and §6-6-9 of said code; to amend and reenact §61-5-4 and §61-5-5 of said code; and to amend and reenact §61-5A-9 of said code, all relating to matters affecting the right to hold office; prohibiting certain persons from being elected or appointed to positions under the laws of the State of West Virginia; requiring certain persons to vacate office upon conviction of certain crimes; defining terms; removing superfluous language; and making technical edits.

Be it enacted by the Legislature of West Virginia:

    That §6-5-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §6-6-1 and §6-6-9 of said code be amended and reenacted; that §61-5-4 and §61-5-5 of said code be amended and reenacted; and that §61-5A-9 of said code be amended and reenacted, all to read as follows:

CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.

ARTICLE 5. TERMS OF OFFICE; MATTERS AFFECTING THE RIGHT TO HOLD OFFICE.

§6-5-5. Disqualification by conviction of treason, felony, or bribery or perjury.

    (a) No person under conviction for treason, perjury, bribery or any felony may be elected or appointed to any public office under the laws of this state.

    (b) As used in this section:

    (1) “Felony” means a crime punishable by incarceration for a period in excess of one year in the courts of this state, another state or the United States; and

    (2) “Under conviction” means a finding of guilt which has not been reversed, vacated or expunged by a court of competent jurisdiction or unconditionally pardoned by an executive or entity with the authority to so act.

ARTICLE 6. REMOVAL OF OFFICERS.

§6-6-1. Definitions.

    As used in this article:

    (1) The term "neglect of duty" or the term "official misconduct" as used in this article, shall include the willful waste of public funds by any officer or officers, or the appointment by him the officer or them the officers of an incompetent or disqualified person to any office or position and the retention of such person in office, or in the position to which he the person was appointed, after such incompetency or disqualification is made to appear, when it is in the power of such officer to remove such incompetent or disqualified person.

    (2) The term "incompetence" as used in this article, shall include the wasting or misappropriation of public funds by any officer, habitual drunkenness, habitual addiction to the use of narcotic drugs, adultery, neglect of duty or gross immorality on the part of any officer.

    (3) The term "incompetent person" as used in this section, shall include any appointee or employee of any officer or officers, including county court, municipal bodies or officers and boards of education, who willfully wastes or misappropriates public funds, or who is guilty of habitual drunkenness, habitual addiction to the use of narcotic drugs, adultery, neglect of duty or gross immorality.

    (4) The term “felony” means a crime punishable by incarceration for a period in excess of one year in the courts of this state, another state or the United States.

    (5) The term “conviction becomes final” means a finding of guilt after all opportunity for direct appeal has expired or all direct appeals have concluded without the conviction being reversed, vacated or expunged by a court of competent jurisdiction.

§6-6-9. Forfeiture of office on conviction of offense.

    Any person holding any elected or appointed public office, who is convicted in any court of any felony offense or any misdemeanor offense, where the misdemeanor offense has a penalty requiring forfeiture of office or disqualifying a person from holding any office or position of honor, trust or profit in this state, the punishment or penalty for which, under any provision of the Constitution of the State, or any law now in effect, or which may hereafter become effective, entails a forfeiture of the office held by the person convicted, shall be removed from office by the judgment of the court, entered upon such conviction once the conviction becomes final.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.

§61-5-4. Bribery or attempted bribery; penalty.

    If any person shall bribe, by directly or indirectly giving to or bestowing upon, or shall attempt to bribe by directly or indirectly giving to or bestowing upon, any executive, legislative, judicial, or ministerial officer of this state, or any member of the Legislature, after his or her election or appointment and either before or after he or she shall have been qualified or shall have taken his or her seat, any gift, gratuity, money, testimonial or other valuable thing, or shall make promise thereof, in order to influence him or her in the performance of any of his or her official, public duties, or with intent to influence his or her act, vote, opinion, decision or judgment on any matter, question, cause or proceeding, or to induce or procure him or her to vote or withhold his or her vote on any question or proceeding which is then or may thereafter be pending, or may by law come or be brought before him or her in his or her official capacity, he or she shall be guilty of a felony, and, upon conviction, shall be imprisoned in the penitentiary not less than one nor more than ten years. and shall, moreover, be forever disqualified from holding any office or position of honor, trust or profit in this state.

§61-5-5. Demanding or receiving bribes; penalty.

    Any executive, legislative, judicial or ministerial officer, or member of the Legislature, who shall demand, receive or accept any gift, gratuity, money, testimonial or other valuable thing, or shall exact any promise to make such gift or to pay to him or her, money, testimonial or other valuable thing, or to do any act beneficial to such officer or member of the Legislature, from any person, company or corporation, under an agreement or understanding that his or her vote, opinion, judgment or decision shall be given or withheld in any particular manner upon a particular side of any question, cause or proceeding, which is, or may be by law brought before him or her in his or her official capacity, or that in such capacity he or she shall make any particular nomination or appointment, or for any vote or influence he or she may give or withhold as such officer or member of the Legislature, or that such officer will fail to perform or improperly perform any of his or her official, public duties, shall be guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary not less than one nor more than ten years. and in addition thereto such officer or member of the Legislature shall forfeit the office then held by him and shall be forever disqualified from holding any office or position of honor, trust or profit in this state.

ARTICLE 5A. BRIBERY AND CORRUPT PRACTICES.

§61-5A-9. Penalties; disqualification to hold office; statute of limitations for misdemeanor offenses.

    (a) Any person who violates any of the provisions of section three of this article shall be guilty of a felony, and, upon conviction thereof, shall be punished, if an individual, by imprisonment in the penitentiary not less than one nor more than ten years, and, if a corporation, by a fine of not exceeding $50,000. Any person convicted of violating any of the provisions of section three of this article shall also be forever disqualified from holding any office or position of honor, trust or profit of government in this state.

    (b) Any person who violates any of the provisions of section four of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by confinement in jail not less than three months nor more than one year or by a fine of not exceeding $5,000 or, in the discretion of the court, by both such confinement and fine.

    (c) Any person who violates any of the provisions of section five of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by confinement in jail not less than three months nor more than one year or by a fine of not exceeding $5,000 or, in the discretion of the court, by both such confinement and fine, unless such person threatened to commit a crime or made a threat with the purpose to influence an administrative or judicial proceeding, in which event, he or she shall, upon conviction thereof, be guilty of a felony and shall be punished as specified in subsection (a) of this section for a violation of any of the provisions of section three of this article.

    (d) Any person who violates any of the provisions of section six or section seven of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by confinement in jail not less than three months nor more than one year or by a fine of not less than $50 nor more than $1,000 or, in the discretion of the court, by both such confinement and fine.

    (e) Notwithstanding the provisions of section nine, article eleven of this chapter or any other provision of law to the contrary, a prosecution for a misdemeanor under the provisions of this article shall be commenced within six years after the offense was committed.