ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B.
4256
(
By Delegates Stemple, Proudfoot, William
Mahan, Michael, Argento and Perdue
)
[Passed March 9, 2006; in effect ninety days from passage.]
AN ACT to amend and reenact §6-6-7 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §6-6-7a, all relating to providing a
procedure for removal of county, district or municipal
officers; providing a procedure for removal of members
appointed to county or municipal boards, authorities or
commissions for fixed terms; requiring written notice of
intent to remove; allowing an appointed member to object in
writing to removal; requiring a hearing when a member objects
to removal; requiring a written decision after a removal
hearing to include findings of fact and conclusions of law
supporting the decision whether or not to remove a member of
a board, authority or commission; setting time periods for
certain actions; authorizing the appeal of a decision to
circuit court; requiring written decisions when removing
members who fail to respond to notice of intent to remove;
authorizing appointment of persons to fill vacancies created when a member is removed; and making technical corrections.
Be it enacted by the Legislature of West Virginia:
That §6-6-7 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that said code be amended by adding
thereto a new section, designated §6-6-7a, all to read as follows:
ARTICLE 6. REMOVAL OF OFFICERS.
§6-6-7. Procedure for removal of elected county, school district
and municipal officers having fixed terms; appeal;
grounds.
(a) Any person holding any elective county, school district or
municipal office, including the office of a member of a board of
education and the office of magistrate, the term or tenure of which
office is fixed by law, except judges of the circuit courts, may be
removed from office in the manner provided in this section for
official misconduct, malfeasance in office, incompetence, neglect
of duty or gross immorality or for any of the causes or on any of
the grounds provided by any other statute.
(b) Charges may be preferred:
(1) In the case of any county officer, member of a district
board of education or magistrate, by the county commission, or
other tribunal in lieu thereof, any other officer of the county, or
by any number of persons other than county officers, which number
shall be the lesser of fifty or one percent of the total number of
voters of the county participating in the general election next preceding the filing of charges.
(2) In the case of any municipal officer, by the prosecuting
attorney of the county wherein municipality is located, or the
greater portion thereof, is located, any other elected officer of
the municipality, or by any number of persons other than the
prosecuting attorney or other municipal elective officer of the
municipality who are residents of the municipality, which number
shall be the lesser of twenty-five or one percent of the total
number of voters of the municipality participating in the election
at which the governing body was chosen which election next preceded
the filing of the petition.
(3) By the chief inspector and supervisor of public offices of
the state where the person sought to be removed is entrusted by law
with the collection, custody and expenditure of public moneys
because of any misapplication, misappropriation or embezzlement of
moneys.
(c) The charges shall be reduced to writing in the form of a
petition duly verified by at least one of the persons bringing the
same, and shall be entered of record by the court, or the judge
thereof in vacation, and a summons shall thereupon be issued by the
clerk of the court, together with a copy of the petition, requiring
the officer or person named therein to appear before the court, at
the courthouse of the county where the officer resides, and answer
the charges on a day to be named therein, which summons shall be
served at least twenty days before the return day thereof in the manner by which a summons commencing a civil suit may be served.
The court, or judge thereof in vacation, or in the case of any
multijudge circuit, the chief judge thereof, shall, without delay
forward a copy of the petition to the Supreme Court of Appeals and
shall ask for the impaneling or convening of a three-judge court
consisting of three circuit judges of the state. The Chief Justice
of the Supreme Court of Appeals shall without delay designate and
appoint three circuit judges within the state, not more than one of
whom shall be from the same circuit in which the petition is filed
and, in the order of appointment, shall designate the date, time
and place for the convening of the three-judge court, which date
and time may not be less than twenty days from the date of the
filing of the petition.
The three-judge court shall, without a jury, hear the charges
and all evidence offered in support thereof or in opposition
thereto and upon satisfactory proof of the charges shall remove any
officer or person from office and place the records, papers and
property of his or her office in the possession of some other
officer or person for safekeeping or in the possession of the
person appointed as hereinafter provided to fill the office
temporarily. Any final order either removing or refusing to remove
any person from office shall contain findings of fact and
conclusions of law as the three-judge court shall deem sufficient
to support its decision of all issues presented to it in the
matter.
(d) An appeal from an order of the three-judge court removing
or refusing to remove any person from office pursuant to this
section may be taken to the Supreme Court of Appeals within thirty
days from the date of entry of the order from which the appeal is
taken. The Supreme Court of Appeals shall consider and decide the
appeal upon the original papers and documents, without requiring
the same to be printed and shall enforce its findings by proper
writ. From the date of any order of the three-judge court removing
an officer under this section until the expiration of thirty days
thereafter, and, if an appeal be taken, until the date of
suspension of the order, if suspended by the three-judge court and
if not suspended, until the final adjudication of the matter by the
Supreme Court of Appeals, the officer, commission or body having
power to fill a vacancy in the office may fill the same by a
temporary appointment until a final decision of the matter, and
when a final decision is made by the Supreme Court of Appeals shall
fill the vacancy in the manner provided by law for the office.
(e) In any case wherein the charges are preferred by the chief
inspector and supervisor of public offices against the county
commission or any member thereof or any county district or
municipal officer, the proceedings under this section shall be
conducted and prosecuted by the prosecuting attorney of the county
in which the officer proceeded against resides, and on any appeal
from the order of the three-judge court in the case, the Attorney
General of the state shall represent the people. When any municipal officer is proceeded against the solicitor or municipal
attorney for the municipality may assist in the prosecution of the
charges.
§6-6-7a. Removal of appointive county, district or municipal
officers with fixed terms.
(a) The governing body or officer authorized by law to appoint
any nonelected person to any county, district, or municipal board,
authority, or commission, the term or tenure of which is fixed by
law, may remove any member appointed to the board, authority or
commission for official misconduct, incompetence, neglect of duty,
malfeasance or gross immorality in accordance with the procedures
set forth in subsection (b).
(b)(1) The member shall be given written notice via certified
mail return receipt requested by addressee only, of the intent to
remove the member from appointed office by the governing body or
officer which made the appointment. The notice shall include the
reasons for removal set forth with specificity and the procedures
by which the member may object to the removal.
(2) A member receiving a notice of intent to remove may
respond to the notice of intent to remove and request a hearing
before the governing body or officer. The response shall be in
writing and set forth the specific reasons why the member should
not be removed. The response must be received by the governing
body or officer within twenty days of the member's receipt of the
notice of intent to remove.
(3) Upon receipt of a written response to a notice of intent
to remove, the governing body or officer shall set a date, time and
place for a hearing not more than ten days from the date of receipt
of the response from the member, and shall give written notice of
the hearing to the member setting forth the hearing date, time and
place no less than five days prior to the hearing date.
(4) The governing body or officer which made the appointment
shall hear the charges and all evidence in support of or in
opposition to the removal. The governing body or officer shall
issue a written decision containing findings of fact and
conclusions of law to support its decision either removing or
refusing to remove a member from a board, authority or commission
within five days of the date of the hearing. The written decision
shall be sent to the member and to the board, authority or
commission of which the person was a member.
(5) An appeal from the decision of the governing body or
officer may be taken by a member who is adversely affected by the
decision to the circuit court of the county in which the governing
body or officer is located in accordance with the provisions of
article five, chapter twenty-nine-a of this code governing judicial
review of contested cases.
(6) If a member receives a notice of intent to remove and does
not respond to the notice in writing within ten days of receipt of
the notice of intent to remove, the governing body or officer shall
issue a written decision removing that member from the board, authority or commission effective the day following the expiration
of the ten-day period to respond. A copy of the decision shall be
sent to the removed member and to the board, commission or
authority from which the member was removed.
(7) When a member is removed from a board, authority or
commission in accordance with the provisions of this section, the
governing body or officer may make an appointment to fill the
vacancy for the remainder of the removed member's term.