H.
B.
4689
(By Mr. Speaker, Mr. Chambers, and Delegate Doyle)
[Introduced March 2, 1994; referred to the
Committee on Government Organization.]
A BILL to amend chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article thirteen, relating to establishing the office of citizen's aide; defining certain terms; providing for the appointment, qualifications, term and removal procedures for the citizens' aide; providing for the appointment of staff; prohibiting certain activities by the citizens' aide; providing for confidentiality of citizens' aide files; enumerating certain powers of the citizens' aide; providing that services to citizens are free; identifying subjects for investigation by the citizens' aide; providing for the investigation of complaints; providing for certain notices to complainant; procedure when complaint originates in a correctional or hospital setting; requiring certain documents accompany reports critical of an agency or official; providing for the publication of conclusions and recommendations; providing for reports to the Legislature; providing for referral of certain officials for criminal or disciplinary proceedings; providing for immunity from prosecution for certain actions; providing for witness statements and costs; and establishing penalties for interference with citizens' aide.
Be it enacted by the Legislature of West Virginia:
That chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article thirteen, to read as follows:
ARTICLE 13. CITIZENS' AIDE.
§
4-13-1. Definitions.
As used in this article:
(a) "Administrative action" means any policy or action taken by an agency or failure to act pursuant to law.
(b) "Agency" means all governmental entities, departments, boards, commissions, councils or institutions, and any officer, employee or member thereof acting or purporting to act in the exercise of official duties, but it does not include:
(1) Any court or judge or appurtenant judicial staff;
(2) The members, committees or permanent or temporary staffs of the West Virginia Legislature;
(3) The governor of West Virginia or the governor's personal staff;
(4) Any instrumentality formed pursuant to an interstate compact and answerable to more than one state.
(c) "Employee" means any employee of an agency.
(d) "Officer" means any officer of an agency.
(e) "Person" means an individual, aggregate of individuals, corporation, partnership or unincorporated association.
§
4-13-2. Office established.
The office of citizens' aide is established.
§
4-13-3. Appointment; vacancy.
The citizens' aide shall be appointed by the joint committee on government and finance with the approval and confirmation of a constitutional majority of the Senate and with the approval and confirmation of a constitutional majority of the House of Delegates. The joint committee on government and finance shall fill a vacancy in this office in the same manner as the original appointment. If the appointment or vacancy occurs while the Legislature is not in session, such appointment shall be reported to the Senate and the House of Delegates within thirty days of their convening at their next regular session for approval and confirmation.
The citizens' aide shall employ and supervise all employees under the citizens' aide's direction in such positions and at such salaries as shall be authorized by the joint committee on government and finance. The joint committee on government and finance shall hear and act upon appeals of aggrieved employees of the office of the citizens' aide.
§
4-13-4. Citizen of United States and resident of West Virginia.
The citizens' aide shall be a citizen of the United States and a resident of the state of West Virginia and shall be qualified to analyze problems of law, administration and public policy.
§
4-13-5. Term; removal.
The citizens' aide shall hold office for six years from the first day of July of the year of approval by the Senate and the House of Delegates, and until a successor is appointed by the joint committee on government and finance, unless the citizens' aide can no longer perform the official duties, or is removed from office. The citizens' aide may at any time be removed from office by majority vote of the two houses of the Legislature. If a vacancy occurs in the office of citizens' aide, the deputy citizens' aide shall act as citizens' aide until the vacancy is filled by the joint committee on government and finance.
§
4-13-6. Deputy; assistant for penal agencies.
The citizens' aide shall designate one of the members of the staff as the deputy citizens' aide, with authority to act as citizens' aide when the citizens' aide is absent from the state or becomes disabled. The citizens' aide may delegate to members of the staff any of the citizens' aide's authority or duties except the duty of formally making recommendations to agencies or reports to the governor or the Legislature.
The citizens' aide shall appoint an assistant who shall be primarily responsible for investigating complaints relating to penal or correctional agencies.
§
4-13-7. Prohibited activities.
Neither the citizens' aide nor any member of the staff shall:
(1) Hold another public office of trust or profit under the laws of this state other than the office of notary public;
(2) Engage in other employment for remuneration with an agency against which a complaint may be filed under this article or that could create a conflict of interest or interfere in the performance of the person's duties under this article;
(3) Knowingly engage in or maintain any business transactions with persons employed by agencies against whom complaints may be made under the provisions of this article;
(4) Be actively involved in partisan political affairs;
(5) Be appointed within two years of the last day of service in the Legislature.
§
4-13-8. Closed files.
The citizens' aide may maintain secrecy in respect to all matters including the identities of the complainants or witnesses coming before the citizens' aide, except that the Legislature, any standing committee of the Legislature or the governor may require disclosure of any matter and shall have complete access to the records and files of the citizens' aide. The citizens' aide may conduct private hearings.
§
4-13-9. Powers.
The citizens' aide may:
(1) Investigate, on complaint or on the citizens' aide's own motion, any administrative action of any agency, without regard to the finality of the administrative action, except that the citizens' aide shall not investigate the complaint of an employee of an agency in regard to that employee's employment relationship with the agency. A communication or receipt of information made pursuant to the powers prescribed in this article shall not be considered an ex parte communication;
(2) Prescribe the methods by which complaints are to be made, received and acted upon, determine the scope and manner of investigations to be made, and subject to the requirements of this article, determine the form, frequency and distribution of the conclusions and recommendations of the citizens' aide;
(3) Request and receive from each agency assistance and information as necessary in the performance of the duties of the office. Pursuant to an investigation, the citizens' aide may examine any and all records and documents of any agency unless its custodian demonstrates that the examination would violate federal law or result in the denial of federal funds to the agency. Confidential documents provided to the citizens' aide by other agencies shall continue to maintain their confidential status. The citizens' aide is subject to the same policies and penalties regarding the confidentiality of the document as an employee of the agency. The citizens' aide may enter and inspect premises within any agency's control and may observe proceedings and attend hearings, with the consent of the interested party, including those held under a provision of confidentiality, conducted by any agency unless the agency demonstrates that the attendance or observation would violate federal law or result in the denial of federal funds to that agency. This subsection does not permit the examination of records of access to hearings and proceedings which are the work product of an attorney or which are privileged communications;
(4) Issue a subpoena to compel any person to appear, give sworn testimony or produce documentary or other evidence relevant to a matter under inquiry. The citizens' aide, deputies and assistants of the citizens' aide may administer oaths to persons giving testimony before them. If a witness either fails or refuses to obey a subpoena issued by the citizens' aide, the citizens' aide may petition the circuit court having jurisdiction for an order directing obedience to the subpoena. If the court finds that the subpoena should be obeyed, it shall enter an order requiring obedience to the subpoena, and refusal to obey the court order is subject to punishment for contempt;
(5) Establish rules relating to the operation, organization and procedure of the office of the citizens' aide. The rules are exempt from the provisions of chapter twenty-nine-a of this code, but shall be published in the West Virginia administrative code;
(6) Provide information and referral services to citizens seeking access to state agencies, designating the proper agency official responsible for answering citizen inquiries.
§
4-13-10. No charge for services.
No monetary or other charge shall be levied upon any person as a prerequisite to presentation of a complaint to the citizens' aide.
§
4-13-11. Subjects for investigations.
An appropriate subject for investigation by the office of the citizens' aide is an administrative action that might be:
(1) Contrary to law or regulation;
(2) Unreasonable, unfair, oppressive or inconsistent with the general course of an agency's functioning, even though in accordance with law;
(3) Based on a mistake of law or arbitrary in ascertainments of fact;
(4) Based on improper motivation or irrelevant consideration;
(5) Unaccompanied by an adequate statement of reasons. The citizens' aide may also be concerned with strengthening procedures and practices which lessen the risk that objectionable administrative actions will occur.
§
4-13-12. Complaints investigated.
(a) The citizens' aide may receive a complaint from any source concerning an administrative action. The citizen's aide shall conduct a suitable investigation into the administrative actions complained of unless the citizens' aide finds substantiating facts that:
(1) The complainant has available another remedy or channel of complaint which the complainant could reasonably be expected to use;
(2) The grievance pertains to a matter outside the citizens' aide power;
(3) The complainant has no substantive or procedural interest which is directly affected by the matter complained about;
(4) The complaint is trivial, frivolous, vexatious or not made in good faith;
(5) Other complaints are more worthy of attention;
(6) The citizens' aide resources are insufficient for adequate investigation;
(7) The complaint has been delayed too long to justify present examination of its merit;
(8) The complaint is a collective bargaining issue;
(9) The complaint is a personal argument between individuals not impacting on public policy.
(b) The citizens' aide may decline to investigate a complaint, but shall not be prohibited from inquiring into the matter complained about or into related problems at some future time.
§
4-13-13. No investigation; notice to complainant.
If the citizens' aide decides not to investigate, the complainant shall be informed of the reasons for the decision. If the citizens' aide decides to investigate, the complainant and the agency shall be notified of the decision. After completing consideration of a complaint, whether or not it has been investigated, the citizens' aide shall without delay inform the complainant of the fact, and if appropriate, shall inform the administrative agency involved. The citizens' aide shall on request of the complaint, and as appropriate, report the status of the investigation to the complainant.
§
4-13-14. Institutionalized complaints.
A letter to the citizens' aide from a person in a correctional institution, a hospital or other institution under the control of an administrative agency shall be immediately forwarded, unopened to the citizens' aide by the institution where the writer of the letter is a resident. A letter from the citizens' aide to such a person shall be immediately delivered, unopened to the person.
§
4-13-15. Reports critical of agency or officer.
Before announcing a conclusion or recommendation that criticizes an agency or any officer or employee, the citizens' aide shall consult with that agency, officer or employee, and shall attach to every report sent or made under the provisions of this article a copy of any unedited comments made by or on behalf of the officer, employee or agency.
§
4-13-16. Recommendations to agency.
If, having considered a complaint and whatever material the citizens' aide deems pertinent, the citizens' aide finds substantiating facts that:
(1) A matter should be further considered by the agency;
(2) An administrative action should be modified or canceled;
(3) A rule on which an administrative action is based should be altered;
(4) Reasons should be given for an administrative action; or
(5) Any other action should be taken by the agency, the citizens' aide shall state the recommendations to the agency. If the citizens' aide requests, the agency shall within twenty working days notify the citizens' aide of any action taken on the recommendations or the reasons for not complying with them.
If the citizens' aide believes that an administrative action has occurred because of laws of which results are unfair or otherwise objectionable, the citizens' aide shall notify the Legislature concerning desirable statutory change.
§
4-13-17. Publication of conclusions.
The citizens' aide may publish the conclusions, recommendations and suggestions and transmit them to the governor, the Legislature or any of its committees. When publishing an opinion adverse to an administrative agency or official the citizens' aide shall, unless excused by the agency or official affected, include with the opinion any unedited reply made by the agency.
Any conclusions, recommendations and suggestions so published may at the same time be made available to the news media or other who may be concerned.
§
4-13-18. Report to Legislature.
The citizens' aide shall by the first day of January of each year submit an economically designed and reproduced report to the Legislature and to the governor concerning the exercise of the citizens' aide functions during the preceding calendar year. In discussing matters with which the citizens' aide has been concerned, the citizens' aide shall not identify specific persons if to do so would cause needless hardship. If the annual report criticizes a named agency or official, it shall also include unedited replies made by the agency or official to the criticism, unless excused by the agency or official affected.
§
4-13-19. Disciplinary action recommended.
If the citizens' aide believes that any public official, employee or other person has acted in a manner warranting criminal or disciplinary proceedings, the citizens' aide shall refer the matter to the appropriate authorities.
§
4-13-20. Immunities.
No civil action, except removal from office, or proceeding shall be commenced against the citizens' aide or any member of the staff for any act or omission performed pursuant to the provisions of this article unless the act or omission is actuated by malice or is grossly negligent, nor shall the citizens' aide or any member of the staff be compelled to testify in any court with respect to any matter involving the exercise of the citizens' aide's official duties except as may be necessary to enforce the provisions of this article.
§
4-13-21. Witness.
A person required by the citizens' aide to provide information shall be paid the same fees and travel allowances as are extended to witnesses whose attendance has been required in the circuit courts of this state. Officers and employees of an agency shall not be entitled to such fees and allowances. A person who, with or without service of compulsory process, provides oral or documentary information requested by the citizens' aide shall be accorded the same privileges and immunities as are extended to witnesses in the courts of this state, and shall also be entitled to be accompanied and advised by the counsel while being questioned.
§
4-13-22. Penalties.
A person who willfully obstructs or hinders the lawful actions of the citizens' aide or the citizens' aide's staff, or who willfully misleads or attempts to mislead the citizens' aide in the citizens' aide's inquiries, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one thousand dollars or confined in the county or regional jail for not more than one year, or both fined and imprisoned.
NOTE: The purpose of this bill is to establish the office of citizen's aide. The bill provides that a Citizens' Aide shall be appointed by the Joint Committee on Government and Finance to investigate citizen complaints against state agencies and to provide information and referral services to citizens. The Citizens' Aide must be a state resident and be qualified to analyze problems of law, administration and public policy. Under the bill, the Citizens' Aide may investigate citizen complaints or he or she may initiate investigations into administrative actions by agencies which are contrary to law or regulation; unreasonable, unfair, oppressive or inconsistent with the general course of an agency's functioning; based on a mistake of law or arbitrary as to ascertainment of facts; based on improper motivation or irrelevant consideration; or unaccompanied by an adequate statement of reasons. The services of the Citizens' Aide are free.
The bill also requires the Citizens' Aide to report to the Legislature each year on the activities of the office for the past year. Penalties for interference with the Citizens' Aide are provided in the bill.
Article thirteen is new; therefore, strike-throughs and underscoring have been omitted.