H. B. 4681
(By Delegate Hutchins (By Request))
[Introduced February 18, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §8-14A-1 and §8-14A-3 of the Code of
West Virginia, 1931, as amended, relating to definitions; and
the process and procedure for hearing boards.
Be it enacted by the Legislature of West Virginia:
That §8-14A-1 and §8-14A-3 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 14A. MUNICIPAL POLICE OFFICERS AND FIREFIGHTERS; PROCEDURE
FOR INVESTIGATION.
§8-14A-1. Definitions.
Unless the context clearly indicates otherwise, as used in
this article:
(1) "Accused officer" means any police officer or firefighter
who is the subject of an investigation or interrogation which
results in a recommendation of punitive action against him or her.
(2) "Civil service," when followed by the terms "department,"
"officer" or "accused officer", means any department, officer or
accused officer who is subject to the civil service provisions of article fourteen, chapter eight of this code or article fifteen,
chapter eight of this code.
(3) "Hearing" means any meeting in the course of an
investigatory proceeding, other than an interrogation at which no
testimony is taken under oath, conducted by a hearing board for the
purpose of taking or inducing testimony or receiving evidence.
(4) "Hearing board" means a board appointed to hold a hearing
on a complaint against an accused officer. The hearing board shall
consist of three members to be appointed pursuant to paragraph
(a),
(b) or (c) (A), (B) or (C) of this subdivision. Hearing board
members appointed under paragraph
(b) or (c) (B) or (C) of this
subdivision may be removed from office as provided under paragraph
(d) (D) of this subdivision.
(a) (A) For civil service departments, the department chief
shall appoint the first member, the members of the accused
officer's department shall appoint the second member, and the first
and second members shall appoint the third member by agreement.
Should the first and second members fail to agree on the
appointment of the third member within five days, they shall submit
to the department's civil service commission a list of four
qualified candidates from which list the commission shall appoint
the third member. The appointment of members under this paragraph
shall be subject to the following qualifications and limitations:
(1) (i) No member shall have had any part in the investigation
or interrogation of the accused officer;
(2) (ii) Each member shall be a police officer or firefighter within the accused officer's department, or, with the department
chief's approval, a law-enforcement officer or firefighter from
another law-enforcement agency or fire department;
(3) (iii) At least one member shall be of the same rank as the
accused officer; and
(4) (iv) If there are fewer than three persons who meet the
qualifications described in subparagraphs
(1), (2) and (3) (i),
(ii) and (iii) of this paragraph, then the department's civil
service commission shall appoint as many citizens of the
municipality in which the department is located as may be necessary
to constitute the board.
(b) (B) For noncivil service police departments, the hearing
board shall be a standing hearing board. The department chief
shall appoint the first member, the local fraternal order of police
shall appoint the second member, and the local chamber of commerce
or local businessmen's association shall appoint the third member.
If there is no local fraternal order of police, the state fraternal
order of police shall appoint the second member. If there is no
local chamber of commerce or local businessmen's association, the
first and second members shall appoint the third member by
agreement. Of the three original appointments in each police
department, the first member shall serve for six years from the
date of his or her appointment; the second member shall serve four
years from the date of his or her appointment; and the third member
shall serve for two years from the date of his or her appointment.
After the original appointments, all appointments shall be made for periods of four years each by the designated appointing authority.
In the event that any member shall cease to be a member due to
death, resignation, final removal or other cause, a new member
shall be appointed within thirty days of the date the ex-member
ceased to be a member. This appointment shall be made by the
officer or body who in the first instance appointed the member who
is no longer a member. When the hearing board is appointed, the
three members shall elect one of their number to act as president
of the board, who shall serve as president for one year. In the
event that a member has had a part in the investigation or
interrogation of an accused officer or is related by consanguinity
or affinity to an accused officer, that member shall be recused
from participation in the accused officer's hearing. In such an
instance, the officer or body who in the first instance appointed
the recused member shall appoint another person for sole purpose of
the accused officer's hearing. No member shall hold any other
office (other than the office of notary public) under the United
States, this state, or any municipality, county or other political
subdivision thereof; nor shall any member serve on any political
committee or take any active part in the management of any
political campaign.
(c) (C) For noncivil service fire departments, the hearing
board shall be a standing hearing board. The department chief
shall appoint the first member, the local international association
of firefighters shall appoint the second member, and the local
chamber of commerce or local businessmen's association shall appoint the third member. If there is no local international
association of firefighters in the municipality, the local central
body of the West Virginia Federation of Labor AFL-CIO shall appoint
the second member. If there is no local central body of the West
Virginia Federation of Labor AFL-CIO in the municipality, the West
Virginia Federation of Labor AFL-CIO shall appoint the second
member. If there is no local chamber of commerce or local
businessmen's association, the first and second members shall
appoint the third member by agreement. Of the three original
appointments in each fire department, the first member shall serve
for six years from the date of his or her appointment; the second
member shall serve four years from the date of his or her
appointment; and the third member shall serve for two years from
the date of his or her appointment. After the original
appointments, all appointments shall be made for periods of four
years each by the designated appointing authority. In the event
that any member shall cease to be a member due to death,
resignation, final removal or other cause, a new member shall be
appointed within thirty days of the date the ex-member ceased to be
a member. This appointment shall be made by the officer or body
who in the first instance appointed the member who is no longer a
member. Each of the three members shall elect one of their number
to act as president of the board, who shall serve as president for
one year. In the event that a member has had a part in the
investigation or interrogation of an accused officer or is related
by consanguinity or affinity to an accused officer, that member shall be recused from participation in the accused officer's
hearing. In such an instance, the officer or body who in the first
instance appointed the recused member shall appoint another person
for the sole purpose of the accused officer's hearing. No member
shall hold any other office (other than the office of notary
public) under the United States, this state, or any municipality,
county or other political subdivision thereof; nor shall any member
serve on any political committee or take any active part in the
management of any political campaign.
(d) (D) Any member of a hearing board appointed under
paragraph
(b) or (c) (B) or (C) of this subdivision may be removed
as provided in this paragraph.
The mayor of the municipality may, at any time, remove any
hearing board member for good cause, which shall be stated in
writing and made a part of the records of the hearing board.
However, within ten days of removing any member, the mayor shall
file in the circuit clerk's office of the county in which the
municipality is located a petition setting forth in full the reason
for the removal and seeking the circuit court's confirmation of the
mayor's removal of the member. The mayor shall file a copy of the
petition with the removed member at the same time it is filed with
the circuit clerk. The petition shall have precedence on the
circuit court's docket and shall be heard as soon as practicable on
the request of the removed member. All rights vested in a circuit
court by this subsection may be exercised by the judge thereof in
vacation. In the event that no term of the circuit court is being held at the time the petition is filed, and the judge thereof
cannot be reached in the county in which the petition was filed,
the petition shall be heard at the next succeeding circuit court
term, whether regular or special, and the removed member shall
remain removed until a hearing is held on the petition. The court
or the judge thereof in vacation shall hear and decide the issues
presented by the petition. The party affected adversely by the
court's or judge's decision shall have the right to petition the
supreme court of appeals for a review of the decision as in other
civil cases. If the mayor fails to file the petition with the
circuit clerk's office within ten days as provided above, the
removed member shall immediately resume his or her position as a
hearing board member.
Any resident of the municipality shall have the right at any
time to seek the removal of any hearing board member. To do so,
the resident shall file a petition in the circuit clerk's office of
the county where the municipality is located. The resident shall
also serve a copy of the petition on the member sought to be
removed. The petition shall be matured for hearing and heard by
the circuit court or the judge thereof in vacation in the same
manner as civil proceedings in the circuit courts of this state are
heard. Any party adversely affected by the circuit court's or
judge's decision shall have the right to petition the Supreme Court
of Appeals for a review of the decision as in other civil cases.
(5) "Noncivil service," when followed by the terms
"department," "officer" or "accused officer", means any department, officer or accused officer who is not subject to the civil service
provisions of article fourteen, chapter eight of this code or
article fifteen, chapter eight of this code.
(6) "Police officer or firefighter" or "officer" means any
police officer or firefighter of a police or fire department
employed by the city or municipality, but shall not include
(a) (A)
the highest ranking officer of the police or fire department or
(b)
(B) any noncivil service officer who has not completed the
probationary period established by the department by which he or
she is employed.
(7) "Punitive action" means
any action which may lead to
dismissal, demotion, suspension
or reduction in salary,
written
reprimand or transfer for purposes of punishment.
(8) "Under investigation" or "under interrogation" means any
situation in which any police officer or firefighter becomes the
focus of inquiry regarding any matter which may result in punitive
action.
§8-14A-3. Hearing.
(a) Before taking any punitive action against an accused
officer, the police or fire department shall give notice to the
accused officer that he or she is entitled to a hearing on the
issues by a hearing board or the applicable civil service
commission.
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 a civil service accused officer faces a recommended punitive action of discharge, suspension or reduction in rank or
pay, but before such punitive action is taken, a hearing board
must
shall be
appointed and must afford afforded to the accused civil
service officer
a hearing conducted pursuant to the provisions of
article fourteen, section twenty, or article fifteen, section
twenty-five of this chapter:
Provided, That the punitive action
may be taken before the hearing board conducts the hearing if
exigent circumstances exist which require it.
(c)
When a civil service accused officer faces a recommended
punitive action of written reprimand or transfer for the purpose of
punishment, or When a
civil service or noncivil service accused
officer faces any recommended punitive action, the applicable
hearing board
if requested shall conduct 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) Both the police or fire 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 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
five of this article.
NOTE: The purpose of this bill is to bring the statutes up to
date and clarify the process and procedure for hearing boards.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.