hb2958 intr

H. B. 2958

(By Delegates Amores, Staton, Webster, R. Thompson,
Wills and Faircloth)
[Introduced March 21, 2001; referred to the
Committee on the Judiciary.]

A BILL to amend and reenact section nine, article two, chapter six- b of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend and reenact section six, article four, chapter seven of said code, all relating to the certain authorization and use of special prosecutors.

Be it enacted by the Legislature of West Virginia:

That section nine, article two, chapter six-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section six, article four, chapter seven of said code be amended and reenacted, all to read as follows:

CHAPTER 6B. PUBLIC OFFICERS AND EMPLOYEES; ETHICS; CONFLICTS OF INTEREST; FINANCIAL DISCLOSURE.

ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES; DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES.

§6B-2-9. Special prosecutor authorized.

(a) If the ethics commission finds as the result of an investigation of a complaint that a pattern of ethics violations or criminal violations under this chapter or under article five-a, chapter sixty-one of this code, exists in a state, county or covered municipal government, county school board or one of their respective departments, agencies, boards or commissions, and also finds that the prosecuting attorney of the county in which the violation occurred is, for some reason, unable or unwilling to take appropriate action, the chairman of the ethics commission may, upon a two-thirds vote of the members of the ethics commission, petition the appropriate circuit court for the appointment of a special prosecutor for the purpose of conducting an investigation to determine whether a violation of the criminal law of this state has occurred.

(b) A special prosecutor shall have the same authority as a county prosecutor to investigate and prosecute persons subject to this act for criminal violations committed in connection with their public office or employment which constitute felonies. Any appointed special prosecuting attorney is not required to take an additional oath of office to serve as a special prosecuting attorney if the special prosecuting attorney has taken an oath of office to serve as a county prosecuting or assistant prosecuting attorney in any county located in the State of West Virginia.

(c) The ethics committee 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 and to pay and to set the compensation to be paid to a special prosecutor in an amount not to exceed seventy-five dollars per hour up to a maximum of fifty thousand dollars per annum.

(d) 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.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 4. PROSECUTING ATTORNEY, REWARDS AND LEGAL ADVICE.
§7-4-6. West Virginia prosecuting attorneys institute.

(a) There is hereby created the West Virginia prosecuting attorneys institute, a public body whose membership shall consist of the fifty-five elected county prosecuting attorneys in the state. The institute shall meet at least once each calendar year and the presence of twenty-eight of the fifty-five prosecutors at any meeting constitutes a quorum for the conduct of the institute's business.

(b) There is hereby created the executive council of the West Virginia prosecuting attorneys institute which shall consist of five prosecuting attorneys elected by the membership of the West Virginia prosecuting attorneys institute at its annual meeting and two persons appointed annually by the county commissioner's association of West Virginia. The executive council shall elect one member of the council to serve as chairman of the institute for a term of one year without compensation. The executive council shall serve as the regular executive body of the institute.

(c) There is hereby created the position of executive director of the West Virginia prosecuting attorneys institute to be employed by the executive council of the institute. The executive director of the West Virginia prosecuting attorneys institute shall serve at the will and pleasure of the executive council of the institute at an annual salary of fifty thousand dollars per year: Beginning the first day of July, one thousand nine hundred ninety-nine, the executive director shall receive an annual salary of fifty-five thousand dollars. The executive director shall be licensed to practice law in the state of West Virginia and shall devote full time to his or her official duties and may not engage in the private practice of law.

(d) The duties and responsibilities of the institute, as implemented by and through its executive council and its executive director, shall include the following:

(1) To provide for special prosecuting attorneys to pursue a criminal matter in any county upon the request of a circuit court judge of that county and upon the approval of the executive council;

(2) To establish and to implement general and specialized training programs for prosecuting attorneys and their professional staffs;

(3) To provide materials for prosecuting attorneys and their professional staffs, including legal research, technical assistance and technical and professional publications;

(4) To compile and disseminate information on behalf of prosecuting attorneys and their professional staffs on current developments and changes in the law and the administration of criminal justice;

(5) To establish and to implement uniform reporting procedures for prosecuting attorneys and their professional staffs in order to maintain and to provide accurate and timely data and information relative to criminal prosecutorial matters;

(6) To accept and expend funds, grants and gifts and accept services from any public or private source;

(7) To enter into agreements and contracts with public or private agencies or educational institutions;

(8) To identify experts and other resources for use by prosecutors in criminal matters;

(9) To make recommendations to the Legislature or the supreme court of appeals of the state of West Virginia on measures required, or procedural rules to be promulgated, to make uniform the processing of juvenile cases in the fifty-five counties of the state; and

(10) To develop a written handbook for prosecutors and their assistants to use which delineates relevant information concerning the elements of various crimes in West Virginia and other information as the institute deems appropriate.

(e) Each prosecuting attorney is subject to appointment by the institute to serve as a special prosecuting attorney in any county where the prosecutor for that county or his or her office has been disqualified from participating in a particular criminal case. The circuit judge of any county of this state, who disqualifies the prosecutor or his or her office from participating in a particular criminal case in that county, shall seek the appointment by the institute of a special prosecuting attorney to substitute for the disqualified prosecutor. The executive director of the institute shall, upon written request to the institute by any circuit judge as a result of disqualification of the prosecutor or for other good cause shown, and upon approval of the executive council, appoint a prosecuting attorney to serve as a special prosecuting attorney. The special prosecuting attorney appointed shall serve without any further compensation other than that paid to him or her by his or her county, except that he or she is entitled to be reimbursed for his or her legitimate expenses associated with travel, mileage and room and board from the county to which he or she is appointed as a prosecutor. The county commission in which county he or she is special prosecutor is responsible for all expenses associated with the prosecution of the criminal action. Any appointed special prosecuting attorney is not required to take an additional oath of office to serve as a special prosecuting attorney if the special prosecuting attorney has taken an oath of office to serve as a county prosecuting or assistant prosecuting attorney in any county located in the State of West Virginia.

(f) The executive director of the institute shall maintain an appointment list that shall include the names of all fifty-five prosecuting attorneys and that shall also include the names of any assistant prosecuting attorney who wishes to serve as a special prosecuting attorney upon the same terms and conditions as set forth in this section. The executive director of the institute, with the approval of the executive council, shall appoint special prosecuting attorneys from the appointment list for any particular matter giving due consideration to the proximity of the proposed special prosecuting attorney's home county to the county requesting a special prosecutor and giving due consideration to the expertise of the special prosecuting attorney.

(g) Commencing on the first day of July, one thousand nine hundred ninety-six, each county commission shall pay, on a monthly basis, a special prosecution premium to the treasurer of the state for the funding of the West Virginia prosecuting attorneys institute. The monthly premiums shall be paid according to the following schedule:
MONTHLY PREMIUMS
Assessed Valuation of Property

of All Classes in the County
Category

Minimum

Maximum

Premium

$1,500,000,000

Unlimited

$400

$1,000,000,000

$1,499,999,000

$375

$ 800,000,000

$ 999,999,000

$350

$ 700,000,000

$ 799,999,000

$325

$ 600,000,000

$ 699,999,000

$300

$ 500,000,000

$ 599,999,000

$250

$ 400,000,000

$ 499,999,000

$200

$ 300,000,000

$ 399,999,000

$150

$ 200,000,000

$ 299,999,000

$100

-0-

$ 199,999,000

$ 50

Upon receipt of a premium, grant, reimbursement or other funding source, excluding federal funds as provided in article two, chapter four of this code, the treasurer shall deposit the funds into a special revenue fund to be known as the "West Virginia prosecuting attorneys institute fund". All costs of operating the West Virginia prosecuting attorneys institute shall be paid from the West Virginia prosecuting attorneys institute fund upon proper authorization by the executive council or by the executive director of the institute and subject to annual appropriation by the Legislature of the amounts contained within the fund.

(h) The West Virginia prosecuting attorneys institute shall continue to exist until the first day of July, two thousand one, unless continued by an act of the Legislature. The institute shall annually by the first day of the regular legislative session provide the joint committee on government and finance with a report setting forth the activities of the institute and suggestions for legislative action.

(i) Neither the institute nor its employees acting in their employment capacity shall engage in activities before governmental bodies which advocate positions on issues other than those issues consistent with the duties of the institute set forth in subsection (d) of this section.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.