Senate Bill No. 593
(By Senators Bowman and Buckalew)
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[Introduced February 18, 1998; referred to the
Committee on Labor; and then to the Committee on the Judiciary.]
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A BILL to amend and reenact sections one, three and five, article
fourteen-a, chapter eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating
to investigation and interrogation rights of police officers
and firefighters; deleting written reprimands from the
definition of punitive action; providing that a hearing
board's order is not binding but is a recommendation of
action to be taken; and eliminating right of a department
chief to appeal a hearing board's decision based on a belief
that the department would be adversely affected thereby.
Be it enacted by the Legislature of West Virginia:
That sections one, three and five, article fourteen-a,
chapter eight of the code of West Virginia, one thousand nine
hundred thirty-one, 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 paragraphs paragraph (a), (b) or (c) of this subdivision.
Hearing board members appointed under paragraphs paragraph (b) or
(c) of this subdivision may be removed from office as provided
under paragraph (d) of this subdivision.
(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) No member shall have had any part in the investigation
or interrogation of the accused officer;
(2) 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) At least one member shall be of the same rank as the
accused officer; and
(4) If there are fewer than three persons who meet the
qualifications described in subparagraphs (1), (2) and (3) 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) 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 the sole purpose of the accused's officer 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) 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) Any member of a hearing board appointed under
paragraphs
paragraph
(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)
the highest ranking officer of the police or fire department or
(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
discharge, dismissal, demotion, suspension, reduction in salary
written reprimand or transfer for purposes of punishment rank or
pay.
(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 be appointed and must afford 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 noncivil service accused officer faces
any recommended punitive action, the applicable hearing board
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 or her
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 a recommendation of the action
to be taken.
§8-14A-5. Appeal.
(a) For civil service departments, a hearing board's
decision rendered under subsections subsection (b) or (c),
section three of this article may be appealed by the police
officer or firefighter adversely affected by the order or by the
department chief if he or she believes that the department would
be adversely affected by the hearing board's order. An appeal
under this subsection shall be made to the applicable civil
service commission. Any party aggrieved by the civil service
commission's ruling on the appeal may further appeal the civil
service commission's ruling
pursuant to the provisions of
subsection (b), section twenty
, article fourteen of this chapter
or subsection (b), section twenty-five, article fifteen of this chapter
.
(b) For noncivil service departments, a hearing board's
decision rendered under subsection (c), section three of this
article may be appealed by the police officer or firefighter
adversely affected by the order or by the department chief if he
or she believes that the department would be adversely affected
by the hearing board's order. An appeal under this subsection
shall be made to the circuit court of the county in which the
police officer or firefighter resides.
NOTE: The purpose of this bill is to modify provisions
relating to the investigation and interrogation rights of
municipal police officers and firefighters.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.