The Senate or House of Delegates may expel a member of the body in the manner prescribed in section twenty-five of article six of the constitution.
In all such hearings before the governor, the evidence of witnesses and the production of documentary evidence may be required at any designated place of hearing by the governor, at his own instance or at the instance of such officer against whom charges may have been brought as aforesaid; and in case of disobedience to a subpoena or other process of the governor, the governor, or such officer, against whom charges may have been brought as aforesaid, may invoke the aid of any circuit court in requiring the evidence and testimony of witnesses and the production of papers, books and documents, and such court, in case of a refusal to obey the subpoena issued to any person, shall issue an order requiring such person to appear before the governor and produce all books and papers, if deemed proper, and give evidence touching the matter in question. Any failure to obey such order of the court may be punished by such court as a contempt thereof. A claim that any such testimony or evidence may tend to incriminate the person giving the same shall not excuse such witness from testifying, but such witness shall never be prosecuted or suffer any penalty or forfeiture for any offense concerning which he is compelled to furnish information or testify. A written record shall be kept of all testimony and other proceedings before the governor.
At the close of the hearing, if the charges are sustained by satisfactory proof, the governor shall remove such officer from the discharge of the duties of his office, and place the records, papers and property pertaining to the office in the possession of some other officer for safekeeping. The order of removal shall become final at the expiration of thirty days from the date thereof, unless appealed from, as hereinafter provided. In the event an appeal is taken from the order of removal, it shall not become final until decided by the supreme court of appeals.
The vacancy in the office shall not be filled until the order of removal becomes final. The governor shall designate some person as deputy of the officer removed, who, in the name of his principal, shall exercise the duties of the office from the date of the order of removal until the suspension thereof, if suspended, and if the order be not suspended, until the same shall be affirmed or vacated; or, if no appeal be taken, until the order becomes final.
Any such officer against whom charges may have been brought as aforesaid, feeling aggrieved by his removal from office by the governor, may present his petition in writing to the supreme court of appeals, or to a judge thereof in vacation, within thirty days after such removal from office by the governor, praying for the suspension, setting aside or vacating of such order of removal. The court, or the judge, shall fix a time for the hearing on the application, but such hearing shall not be held sooner than five days, unless by agreement of the parties, after the presentation of the petition. Notice of the time and place of such hearing shall be forthwith given to the governor, or, in case of his absence from the state or from his office, such notice may be given to him by leaving, or causing to be left, a copy thereof at his office in the state capitol. If the court, or the judge, after such hearing, be of the opinion that a suspending order should issue, the court in its, or the judge in his, discretion, may suspend such removal, and may require bond upon such conditions and in such penalty, and impose such terms and conditions upon the petitioner, as are just and reasonable; and the court, or the judge, shall fix a time for the final hearing on the application. The hearing of the matter shall take precedence over all other matters before the court, except contested elections of secretary of state, auditor, treasurer, attorney general, state superintendent of free schools, commissioner of agriculture, or of a judge of any court. For such final hearing, and before the day fixed therefor, the governor shall file with the clerk of the supreme court of appeals all papers, documents, testimony, evidence and records, or certified copies thereof, introduced or offered at the hearing resulting in such removal; and shall also file with said clerk a written statement of the cause, and his reasons for making such removal. After argument by counsel, the court shall decide the matter in controversy, both as to the law and evidence, as may seem to it to be just and right, and may affirm the order of removal, or may permanently suspend, set aside and vacate such removal and restore such officer to his office; and in case such removal be not suspended, set aside or vacated by the supreme court of appeals, the governor shall fill the vacancy caused by the removal of such officer.
The supreme court 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.
In any case in which the charges are signed and filed by the chief inspector and supervisor of public offices, the proceedings under this section shall be conducted and prosecuted by the attorney general of the state.
(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 such 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 such charges.
(2) In the case of any municipal officer, by the prosecuting attorney of the county wherein such municipality, 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 such 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 such 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 such 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 multi-judge 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 such appointment, shall designate the date, time and place for the convening of such three-judge court, which date and time shall not be less than twenty days from the date of the filing of the petition.
Such 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 such officer or person from office and place the records, papers and property of his 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 such person from office shall contain such 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 such 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 such 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 such 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 such 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 any such case, the attorney general of the state shall represent the people. When any municipal officer is proceeded against the solicitor or municipal attorney for such municipality may assist in the prosecution of the charges.
Note: WV Code updated with legislation passed through the 2013 1st Special Session
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