H. B. 2104


(By Delegate Staton)

[Introduced February 14, 2001 ; referred to the

Committee on the Judiciary.]





A BILL to amend article ten, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section thirty-two, relating to creating the misdemeanor offense of demoting or discharging or threatening to demote or discharge a government employee upon the ground of the employee's political affiliation; requiring specific findings or special interrogatories as to certain elements of the offense; defining certain terms; providing a penalty for that misdemeanor offense; providing that a conviction constitutes grounds for impeachment or removal from office; and establishing venue and jurisdiction for offenses.

Be it enacted by the Legislature of West Virginia:
That article ten, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section thirty-two, to read as follows:
ARTICLE 10. CRIMES AGAINST PUBLIC POLICY.

§61-10-32. Unlawful demotion or discharge of government employee for political affiliation; penalties.

(a) It is unlawful for any elected or appointed public official to demote or discharge or threaten to demote or discharge a government employee upon the ground of the employee's political affiliation.
(b) In addition to any other elements of an alleged offense under this section which must be proved, no conviction may be had under the provisions of this section unless the trier of fact determines, either through specific findings made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proved beyond a reasonable doubt:
(1) That the employee was demoted or discharged or threatened with demotion or discharge by the defendant or at the defendant's direction;
(2) That the employee was satisfactorily performing his or her duties and was not subject to demotion or discharge for good cause or for any other lawful reason;
(3) That the employee was not employed as a policymaking employee;
(4) That the employee was not employed in a position which required the employee to share a confidential relationship with a public official;
(5) That the employee's political affiliation was not an appropriate requirement for the effective performance of the employment involved; and
(6) That the defendant public official demoted or discharged the employee because of the employee's affiliation with a specific political party or a faction thereof; or that the defendant conditioned the employee's continued employment upon the employee affiliating with a specific political party or a faction thereof, obtaining the support of a specific political party or a faction thereof, or obtaining the sponsorship of a member of a specific political party or a faction thereof.
(c) In this section, unless a different meaning plainly is required:
(1) "Confidential relationship" means a relationship whereby an employee is entrusted with the confidence of a public official or with the confidence of the public official's secret affairs or purposes. A confidential relationship is not limited to any specific relationship between a public official and his or her employee, and includes, but is not limited to, a relationship which exists between a public official and his or her personal secretary, a relationship which exists between a public official and his or her attorney, and any other similar relationship which requires the utmost good faith and sense of duty in transactions arising between a public official and his or her employee.
(2) "Demotion" means a reduction in pay or benefits. Demotion does not include a reassignment of duties which would move an employee from a policymaking position or a confidential relationship.
(3) "Good cause" means a substantial ground or reason for demotion or discharge of a government employee which arises out of incompetence, insubordination, willful neglect of duty or immorality. A ground or grounds for demotion or discharge for good cause exists when an employee has either failed or refused to perform the duties for which the employee is employed, or the employee is unfit to perform the duties for which the employee is employed. The cause for dismissal must specially relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.
(4) "Government employee" means an employee of this state or any of its political subdivisions who is not a policymaking employee or who does not hold an employment position which requires the employee to share a confidential relationship with a public official.
(5) "Policymaking employee" means an employee who: (A) Acts as an advisor to, or formulates plans for the implementation of broad goals for, the executive or administrative head of a governmental agency; (B) is in charge of a major administrative component of the agency; and (C) reports directly and is directly accountable to the administrative or executive head of the agency.
(d) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than ten thousand dollars.
(e) When a conviction under this section becomes final, and is properly based upon the specific findings required by subsection (b) of this section, the conviction constitutes official misconduct or malfeasance in office under any provisions of the constitution of West Virginia, pertinent statutory law, or principles of common law which govern the impeachment or removal from office of public officers or employees: Provided, That an absence of prosecution or an acquittal on a charge brought pursuant to the provisions of this section does not bar an independent proceeding for impeachment or removal from office in which proof as to the elements described in subdivisions (1) through (6), subsection (b) of this section may form the basis for the impeachment or removal from office. For purposes of this subsection, a conviction becomes final when the trial court affirms the verdict of the trier of fact by its action on a defendant's final attempt to secure a new trial at the trial court level prior to an initial appeal, or when a defendant fails to take a necessary action to perfect an appeal, whichever is sooner.
(f) Venue for an offense under the provisions of this section shall be in the county wherein the government employee who is alleged to have been demoted or discharged, or is alleged to have been threatened with demotion or discharge, had his or her principal place of employment as a government employee. The circuit courts of this state have exclusive jurisdiction of offenses under this section.
NOTE: The purpose of this bill is to make it a misdemeanor offense to unlawfully demote or discharge or threaten to demote or discharge a government employee upon the ground of the employee's political affiliation. The proposed bill also provides that a public officer or employee who demotes or discharges or threatens to demote or discharge a government employee upon the ground of the employee's political affiliation may be impeached or removed from office.
This section is new; therefore, strike-throughs and underscoring have been omitted.