H. B. 2737
(By Delegates Manchin, Doyle, Lawrence, Longstreth,
Miley and Varner)
[Introduced January 21, 2011; referred to the
Committee on Political Subdivision then the Judiciary.]
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 twenty 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 twenty 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 twenty 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.
NOTE: The purpose of this bill is to allow local governments to remove, for just cause, any appointments that they currently have the authority to make. The bill provides a procedure for removal of county, district or municipal officers and a procedure for removal of members appointed to county or municipal boards, authorities or commissions for fixed terms that requires written notice of intent to remove. The bill allows an appointed member to object in writing to removal and requires a hearing when a member objects to removal. The bill also requires a written decision after a removal hearing that includes findings of fact and conclusions of law supporting the decision whether or not to remove a member of a board, authority or commission. The bill authorizes the appeal of a decision to circuit court and requires written decisions when removing members who fail to respond to notice of intent to remove. The bill additionally authorizes appointment of persons to fill vacancies created when a member is removed and makes technical corrections.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
§6-6-7a is new; therefore, it has been completely underscored.