H. B. 3132
(By Delegate Manuel)
[Introduced March 30, 2001; referred to the
Committee on Government Organization then Finance.]
A BILL to amend chapter twenty-five of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article seven, relating to
the creation of an office of corrections ombudsman in the
office of the attorney general.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article seven, to read as
follows:
ARTICLE 7. OFFICE OF CORRECTIONS OMBUDSMAN.
§25-7-1. Office established; appointment by attorney general.
The office of corrections ombudsman is established in the
office of the attorney general. The attorney general shall appoint
the corrections ombudsman.
§25-7-2. Qualifications for office.
The corrections ombudsman shall be a person of recognized
judgment, objectivity and integrity who is qualified by training
and experience to analyze problems of law enforcement, corrections
administration and public policy.
§25-7-3. Deputy and additional officers and employees.
The attorney general may appoint a deputy ombudsman and any
other subordinate officers and employees necessary to the
performance of the duties of the ombudsman and shall prescribe
their duties and fix their compensation. The corrections ombudsman
may require that deputy ombudsman or other subordinate officers and
employees be stationed in correctional facilities operated by the
division of corrections. The commissioner of the division of
corrections shall provide office space within a correctional
facility if requested by the corrections ombudsman.
§25-7-4. General duties and powers.
The corrections ombudsman has the power:
(1) To investigate, on complaint or on the ombudsman's own
motion, any action by the division of corrections or any employee
of the division without regard to its finality;
(2) To adopt rules required for the discharge of the duties of
office, including procedures for receiving and processing
complaints, conducting investigations and reporting findings;
(3) To examine the records and documents of the division of corrections or any employee of the division;
(4) To enter and inspect without notice any premises under the
jurisdiction of the division of corrections;
(5) To subpoena any person to appear, to give sworn testimony
or to produce documentary or other evidence that is reasonably
material to an inquiry;
(6) To undertake, participate in or cooperate with persons and
agencies in conferences, inquiries, meetings or studies as might
lead to improvements in the functioning of the division of
corrections;
(7) To establish and administer a budget for the office; and
(8) To recommend procedures and practices which may lessen the
possibility that objectionable corrections actions will occur.
§25-7-5. Investigatory authority.
(a) The corrections ombudsman shall investigate, on complaint
or on the ombudsman's own motion, any corrections action that is or
is alleged to be:
(1) Contrary to or inconsistent with law or division of
corrections practice;
(2) Based on mistaken facts or irrelevant considerations;
(3) Inadequately explained when reasons should have been
revealed;
(4) Inefficiently performed; or
(5) Unreasonable, unfair or otherwise objectionable, even though in accordance with law.
(b) Notwithstanding subsection (a) of this section, the
corrections ombudsman may decide not to investigate because:
(1) The complainant could reasonably be expected to use a
different administrative remedy or action;
(2) The complaint is trivial, frivolous, vexatious or not made
in good faith; or
(3) The complaint has been too long delayed to justify present
examination.
§25-7-6. Investigative priority; confidentiality of matters;
charging fees prohibited.
The corrections ombudsman shall:
(1) Give priority to investigating administrative actions that
are not otherwise reviewable by either administrative or judicial
action;
(2) Treat confidentially all matters and the identities of the
complainants or witnesses coming before the ombudsman; and
(3) Not levy any fees for the submission or investigation of
complaints.
§25-7-7. Recommendations following investigation; notice from
division of corrections of action taken; notice to
joint committee on government and finance of
recommended statutory changes.
(a) After investigation of any action, the corrections ombudsman shall state the recommendations and reasons if, in the
ombudsman's opinion, the division of corrections or any employee of
the division should:
(1) Consider the matter further;
(2) Modify or cancel any action;
(3) Alter a rule, practice or ruling;
(4) Explain more fully the administrative action in question;
(5) Rectify an omission; or
(6) Take any other action.
(b) If the corrections ombudsman so requests, the division of
corrections shall, within the time specified, inform the ombudsman
about the action taken on the recommendations or the reasons for
not complying with them. After a reasonable period of time has
elapsed, the corrections ombudsman may issue a report.
(c) If the corrections ombudsman believes that any action has
been dictated by laws whose results are unfair or otherwise
objectionable, and could be revised by legislative action, the
ombudsman shall submit to the joint committee on government and
finance, by filing them with the legislative librarian, any
recommendations concerning desirable statutory change.
§25-7-8. Letters between ombudsman and persons in custody;
immunity of complainants and ombudsman; privilege
against giving evidence or testifying.
(a) A letter to the corrections ombudsman from a person held in custody, including by detention, incarceration and
hospitalization, by the division of corrections shall be forwarded
immediately, unopened, to the corrections ombudsman. A letter from
the corrections ombudsman to the person shall be immediately
delivered, unopened, to the person.
(b) No person who files a complaint pursuant to this article
may be subjected to any penalties, sanctions or restrictions
because of the complaint.
(c) The corrections ombudsman and the staff of the office have
the same immunities from civil and criminal liabilities as a judge
of this state.
(d) The corrections ombudsman and the staff of the ombudsman
may not be compelled to testify or produce evidence in any judicial
or administrative proceeding with respect to any matter involving
the exercise of their official duties except as may be necessary to
enforce this article.
§25-7-9. Witness rights; fees; expenses of state agency personnel.
(a) Any person required to testify under this article shall be
accorded the same privileges and immunities, receive the same fees
and mileage as witnesses in proceedings in the circuit courts of
this state.
(b) The fees and mileage shall be paid by warrant upon the
auditor upon the certificate of the corrections ombudsman.
Notwithstanding any other provision of law, no tender of witness fees or mileage in advance is necessary.
(c) Notwithstanding subsection (a) of this section, a
representative of a state agency may receive actual necessary
traveling expenses only.
§25-7-10. Contempt proceedings against person interfering with
ombudsman.
If any person willfully obstructs or hinders the proper and
lawful exercise of the corrections ombudsman's powers, or willfully
misleads or attempts to mislead the corrections ombudsman in
inquiries under this article, the circuit court of Kanawha County,
on application of the ombudsman, shall compel obedience by
proceedings for contempt as in the case of disobedience of the
requirements of a subpoena issued from the court or a refusal to
testify in the court.
NOTE: The purpose of this bill is to create an office of
Corrections Ombudsman in the office of the Attorney General. The
Ombudsman would be authorized to investigate any action of the
Division of Corrections or any employee of the Division.
This article is new; therefore, strike-throughs and
underscoring have been omitted.