Introduced Version - Originating in Committee
Senate Bill 701 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 701
(By Senators Kessler, Browning, Chafin, Foster, Jenkins, Laird,
Minard, Oliverio, Palumbo, Snyder, Stollings, Williams, Yost,
Deem and Hall)
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[Originating in the Committee on the Judiciary; reported March 2,
2010.]
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A BILL to
amend and reenact §4-5-2 and §4-5-
3
of the Code of West
Virginia, 1931, as amended,
all relating to the Commission on
Special Investigations generally; granting certain commission
personnel the right to carry firearms in the course of their
employment; authorizing commission to seek special prosecutor
when county prosecutor is disqualified for a conflict of
interest or ill health; and granting to commission personnel
authority to present criminal complaints to courts.
Be it enacted by the Legislature of West Virginia:
That
§4-5-2
and
§4-5-3
of the Code of West Virginia, 1931, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 5. COMMISSION ON SPECIAL INVESTIGATIONS.
§4-5-2. Powers and duties generally.
The commission on special investigations shall have the power, duty and responsibility, upon a majority vote of the members
appointed, to:
(1) Conduct a comprehensive and detailed investigation into
the purchasing practices and procedures of the state;
(2) Determine if there is reason to believe that the laws or
public policy of the state in connection with purchasing practices
and procedures have been violated or are inadequate;
(3) Determine if any criminal or civil statutes relating to
the purchasing practices and procedures in this state are necessary
to protect and control the expenditures of money by the state;
(4) Investigate or examine any matter involving conflicts of
interest, bribery of state officials, malfeasance, misfeasance or
nonfeasance in office by any employee or officer of the state;
(5) Conduct comprehensive and detailed investigations to
determine if any criminal or civil statutes have been violated at
any level of state government;
(6) Determine whether to recommend criminal prosecution or
civil action for any violation, either criminal or civil, at any
level of state government and, if it is determined that action is
necessary, to make appropriate recommendation to the attorney
general, prosecuting attorney or other authority empowered to act
on such recommendation;
(7) Make such written reports to the members of the
Legislature between sessions thereof as the commission may deem advisable and on the first day of each regular session of the
Legislature make an annual report to the Legislature containing the
commission's findings and recommendations including in such report
drafts of any proposed legislation which it deems necessary to
carry such recommendations into effect.
The commission is also expressly empowered and authorized to:
(1) Sit during any recess of the Senate and House of
Delegates;
(2) Recommend to the judge of any circuit court that a grand
jury be convened pursuant to the provisions of section fourteen,
article two, chapter fifty-two of this code, to consider any matter
which the commission may deem in the public interest and, in
support thereof, make available to such court and such grand jury
the contents of any reports, files, transcripts of hearings or
other evidence pertinent thereto;
(3) Employ such legal, technical, investigative, clerical,
stenographic, advisory and other personnel as it deems needed and,
within the appropriation herein specified, fix reasonable
compensation of such persons and firms as may be employed:
Provided, That such personnel as the commission may determine shall
have the authority to administer oaths and take affidavits and
depositions anywhere in the state: Provided further, That
notwithstanding any provision of this code to the contrary, such
personnel as the commission may determine by majority vote shall have the authority to carry firearms in their course of their
employment;
(4) Consult and confer with all persons and agencies, public
(whether federal, state or local) and private, that have
information and data pertinent to an investigation; and all state
and local governmental personnel and agencies shall cooperate to
the fullest extent with the commission;
(5) Call upon any department or agency of state or local
government for such services, information and assistance as it may
deem advisable; and
(6) Refer such matters as are appropriate to the office of the
United States attorney and cooperate with such office in the
disposition of matters so referred.; and
(7)
If after referral to the appropriate county prosecuting
attorney under this section the commission finds that a county
prosecuting attorney is, due to ill health or conflict of interest,
unable to undertake a criminal investigation or prosecution, the
co-chairmen of the commission may, upon a majority vote of the
members of the commission, petition the appropriate circuit court
for the appointment of a special prosecutor through the West
Virginia Prosecuting Attorneys Institute pursuant to the provisions
of section six, article four, chapter seven of this Code for the
purpose of conducting an investigation to determine whether a
violation of the criminal law of this state has occurred.
(A) A special prosecutor shall have the same authority as a
county prosecutor to investigate and prosecute persons subject to
this article for criminal violations that fall under the purview of
the commission as provided in this section which constitute
felonies. No person who is serving as a prosecuting attorney or an
assistant prosecuting attorney of any county is required to take an
additional oath when appointed to serve as a special prosecuting
attorney.
(B) The commission shall be authorized to employ and assign
the necessary professional and clerical staff to assist any such
special prosecutor in the performance of his or her duties.
(C) The special prosecutor shall be empowered to make a
presentment to any regularly or specially impaneled grand jury in
the appointing circuit court. The special prosecutor shall be
empowered to prosecute any person indicted by such grand jury:
Provided, That nothing in this section shall be construed to
require a prosecuting attorney or special prosecuting attorney to
prosecute a matter.
§4-5-3. Executive sessions; hearings; subpoena power; enforcement
provisions
.
The commission shall have the power and authority to hold
executive sessions for the purpose of establishing business,
policy, an agenda and the interrogation of a witness or witnesses:
Provided, That if a witness desires a public or open hearing he shall have the right to demand the same and shall not be heard
otherwise: Provided, however, That if a witness desires a hearing
in an executive session, he shall have the right to demand the same
and shall not be heard otherwise. However, members of the staff of
the commission may be permitted to attend executive sessions with
permission of the commission.
The commission is hereby empowered and authorized to examine
witnesses and to subpoena such persons and books, records,
documents, papers or any other tangible things as it believes
should be examined to make a complete investigation. All witnesses
appearing before the commission shall testify under oath or
affirmation, and any member of the commission may administer oaths
or affirmations to such witnesses. To compel the attendance of
witnesses at such hearings or the production of any books, records,
documents, papers or any other tangible thing, the commission is
hereby empowered and authorized to issue subpoenas, signed by one
of the cochairmen, in accordance with section five, article one,
chapter four of this code. Such subpoenas shall be served by any
person authorized by law to serve and execute legal process and
service shall be made without charge. Witnesses subpoenaed to
attend hearings shall be allowed the same mileage and per diem as
is allowed witnesses before any petit jury in this state.
If any person subpoenaed to appear at any hearing shall refuse
to appear or to answer inquiries there propounded, or shall fail or refuse to produce books, records, documents, papers or any other
tangible thing within his control when the same are demanded, the
commission shall report the facts to the circuit court of Kanawha
county or any other court of competent jurisdiction and such court
may compel obedience to the subpoena as though such subpoena had
been issued by such court in the first instance.
Notwithstanding any other provision of this code to the
contrary, any person authorized under this article to initiate and
conduct investigations may submit complaints directly to a
magistrate or circuit court after review and approval by the
prosecuting attorney, if the complaint is related to an
investigation directed by the commission and may be prosecuted as
a violation of the criminal law of this state.
The complaint shall be in the form of a written statement of
the essential facts constituting the offense charged. The
complaint shall be presented to and sworn before a magistrate in
the county where the offense is alleged to have occurred.
If it appears from the complaint, or from an affidavit or
affidavits filed with the complaint, that there is probable cause
to believe that an offense has been committed and that the
defendant committed it, a warrant for the arrest of the defendant
shall be issued to any officer authorized by law to arrest persons
charged with offenses against the state.