COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 616
(By Senators Bowman and Jenkins)
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[Originating in the Committee on Government Organization;
reported February 26, 2010.]
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A BILL to amend and reenact §7-14-6, §7-14-17 and §7-14-19a of the
Code of West Virginia, 1931, as amended; and to amend and
reenact §7-14C-1, §7-14C-3 and §7-14C-5 of said code, all
relating to deputy sheriffs; permitting the civil service
commission of each county to hear appeals from hearing boards;
establishing time periods for the filing of answers and
appeals; permitting all deputy sheriffs to perform police work
in addition to their normal duties; eliminating the authority
of a county commission from approving the sheriff's plan
regarding additional police work by deputy sheriffs;
eliminating written reprimands and transfers for purposes of
punishment from the definition of "punitive action" as it
applies to deputy sheriffs; and permitting a deputy sheriff to
a hearing in front of a hearing board or the deputy sheriff's
civil service commission.
Be it enacted by the Legislature of West Virginia:
That §7-14-6, §7-14-17 and §7-14-19a of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that §7-
14C-1, §7-14C-3 and §7-14C-5 of said code be amended and reenacted,
all to read as follows:
ARTICLE 14. CIVIL SERVICE FOR DEPUTY SHERIFFS.
§7-14-6. Powers and duties of commission.
The Civil Service Commission in each such county shall:
(1) Prescribe and enforce rules
and regulations for carrying
into effect
the provisions of this article. All rules
and
regulations so prescribed may, from time to time, be added to,
amended or rescinded.
(2) Keep minutes of its own proceedings and records of its
examinations and other official actions. All recommendations of
applicants for the position of deputy sheriff received by the
commission or by the sheriff shall be kept
and preserved for a
period of ten years, and all
such records, recommendations of
former employees excepted, and all written causes of removal, filed
with the commission, shall, subject to reasonable rule
and
regulation, be open to public inspection.
(3) Make investigations, either sitting as a body or through
a single commissioner, concerning all matters touching the
enforcement and effect of
the provisions of this article and the
rules
and regulations prescribed hereunder or concerning the action
of any examiner or subordinate of the commission or any person in
the public service with respect to the execution of this article; and, in the course of such investigations, each commissioner shall
have the power to administer oaths and affirmations and to take
testimony.
(4) Have power to subpoena and require the attendance of
witnesses and the production of books and papers pertinent to the
investigations and inquiries herein authorized, and examine them
and such public records as it shall require, in relation to any
matter which it has the authority to investigate. The fee of such
witnesses for attendance and travel shall be the same as for
witnesses before the circuit courts of this state and shall be paid
from the appropriation for the incidental expenses of the
commission. All officers in the public service and their deputies,
clerks, subordinates and employees shall attend and testify when
required to do so by the commission. Any disobedience to, or
neglect of, any subpoena issued by the commissioners, or any one of
them, to any person, shall be held a contempt of court, and shall
be punished by the circuit court of the county in which the Civil
Service Commission is located, or the judge thereof in vacation, as
if such subpoena had been issued by the court. The judge of the
circuit court shall, upon the application of any one commissioner,
in any such case, cause the process of that court to issue to
compel any person or persons, disobeying or neglecting any such
subpoena to appear and to give testimony and produce evidence
before the commissioners, or any one of them, and shall have power
to punish any such contempt.
The commission shall hear appeals
from decisions of any hearing board conducted pursuant to section three, article fourteen-c of this chapter upon the original record
before the hearing board.
(5) Prepare a position classification and promotion plan.
(6) Make an annual report to the county court and sheriff
showing its own actions, its rules
and regulations, including all
exceptions thereto in force, and the practical effects thereof, and
any suggestions it may have for the more effectual accomplishment
of the purposes of this article.
Such The report shall be available
for public inspection five days after it
shall have has been
delivered to the county court and sheriff.
§7-14-17. Removal, discharge, suspension or reduction in rank or
pay; hearing; attorney fees; appeal; reduction in
force; mandatory retirement age.
(a) No deputy sheriff of any county subject to
the provisions
of this article may be removed, discharged, suspended or reduced in
rank or pay except for just cause, which may not be religious or
political, except as provided in section fifteen of this article;
and no such deputy may be removed, discharged, suspended or reduced
in rank or pay except as provided in this article and in no event
until the deputy has been furnished with a written statement of the
reasons for the action.
In every case of such removal, discharge,
suspension or reduction, a copy of the statement of reasons therefor
and of the written answer thereto, the deputy shall do so within
seven calendar days and that answer shall be furnished to the civil
service commission and entered upon its records.
(1) In every case of removal, discharge, suspension or
reduction, a copy of the statement of reasons therefor shall be
furnished to the Civil Service Commission and entered upon the
records.
(2) If the deputy desires to file a written answer to the
statement, the deputy shall furnish his or her answer to the Civil
Service Commission within seven days and the deputy's written answer
shall be entered upon the records.
(3) If the deputy demands it, the Civil Service Commission
shall grant a public hearing,
which and that hearing shall be held
within a period of ten days from the filing of the charges in
writing or the written answer thereto, whichever shall last occur.
The commission shall enter an order upholding or vacating the action
of the sheriff within thirty days of the disciplinary action.
(4) At the hearing, the burden shall be upon the sheriff to
justify his or her action, and in the event the sheriff fails to
justify the action before the commission, then the deputy shall be
reinstated with full pay, forthwith and without any additional
order, for the entire period during which the deputy may have been
prevented from performing his or her usual employment, and no
charges may be officially recorded against the deputy's record. The
deputy, if reinstated or exonerated, shall, if represented by legal
counsel, be awarded reasonable attorney fees to be determined by the
commission and paid by the sheriff from county funds.
(5) A written record of all testimony taken at the hearing
shall be kept and preserved by the Civil Service Commission, which record shall be sealed and not be open to public inspection unless
an appeal is taken from the action of the commission.
(b) In the event the Civil Service Commission sustains the
action of the sheriff, the deputy has an immediate right of appeal
to the circuit court of the county. In the event that the
commission reinstates the deputy, the sheriff has an immediate right
of appeal to the circuit court. In the event either the sheriff or
the deputy objects to the amount of the attorney fees awarded to the
deputy, the objecting party has an immediate right of appeal to the
circuit court.
(1) Any appeal must be taken within ninety days from the date
of entry by the Civil Service Commission of its final order. Upon
an appeal being taken and docketed with the clerk of the circuit
court of the county, the circuit court shall proceed to hear the
appeal upon the original record made before the commission and no
additional proof may be permitted to be introduced.
(2) The circuit court's decision is final, but the deputy or
sheriff, as the case may be, against whom the decision of the
circuit court is rendered has the right to petition the Supreme
Court of Appeals for a review of the circuit court's decision as in
other civil cases. The deputy or sheriff also has the right, where
appropriate, to seek, in lieu of an appeal, a writ of mandamus.
(3) The deputy, if reinstated or exonerated by the circuit
court or by the Supreme Court of Appeals, shall, if represented by
legal counsel, be awarded reasonable attorney fees as approved by
the court and the fees shall be paid by the sheriff from county funds.
(c) The removing sheriff and the deputy shall at all times,
both before the Civil Service Commission and upon appeal,
be given
have the right to employ counsel to represent them.
(d) If for reasons of economy or other reasons it is deemed
necessary by any appointing sheriff to reduce the number of his or
her deputies, the sheriff shall follow the procedure set forth in
this subsection. The reduction in the numbers of the deputy
sheriffs of the county shall be effected by suspending the last
person or persons, including probationers, who have been appointed
as deputies. The removal shall be accomplished by suspending the
number desired in the inverse order of their appointment:
Provided,
That in the event the number of deputies is increased in numbers to
the strength existing prior to the reduction of deputies, the
deputies suspended under the terms of this subsection shall be
reinstated in the inverse order of their suspension before any new
appointments of deputy sheriffs in the county are made.
(e) Notwithstanding any other provision of this article to the
contrary, no deputy sheriff in any county subject to
the provisions
of this article may serve as a deputy sheriff in any county subject
to
the provisions of this article after attaining the age of
sixty-five years.
§7-14-19a. Additional police work for deputy sheriffs in noncivil
service counties.
(a) The sheriff of any county
with a population of less than
twelve thousand five hundred which has not adopted civil service for deputy sheriffs pursuant to the provisions of section nineteen,
article fourteen, chapter seven, may allow his
or her deputy
sheriffs to do additional police work in addition to their normal
duties as a deputy sheriff. However, they may not be allowed to
engage in such police work for any party engaged in or involved in
any labor trouble or dispute between employer and employee.
(b) Before
such the sheriff
shall be allowed to may grant such
additional police work to his
or her deputy sheriffs,
he the sheriff
must prepare a plan setting forth the terms and conditions under
which his
or her deputy sheriffs may engage in additional police
work.
Such The terms and conditions must prohibit discrimination
between deputies with regard to the allocation of additional police
work.
Such plans shall be submitted to the county commission of
such county and shall be subject to the approval of said county
commission. No sheriff may have a direct or indirect pecuniary
interest in any outside employment.
The terms and conditions must
prohibit discrimination between deputies with regard to the
allocation of additional police work.
(c) A deputy sheriff performing additional police work shall
wear an identifying armband to indicate special duty.
ARTICLE 14C. DEPUTY SHERIFFS; PROCEDURE FOR INVESTIGATION.
§7-14C-1. Definitions.
Unless the context clearly indicates otherwise, as used in this
article:
(1) "Deputy sheriff" means any person appointed by a sheriff
as his or her deputy whose primary duties as deputy are within the scope of active, general law enforcement and as such is authorized
to carry deadly weapons, patrol the highways, perform police
functions, make arrests or safeguard prisoners. This definition may
not be construed to include any person or persons whose sole duties
are the service of civil process and subpoenas as provided in
section fourteen, article one, chapter fifty of this code, but the
exclusion does not preclude the service of civil process or
subpoenas by deputy sheriffs covered by the provisions of this code.
(2) "Under investigation" or "under interrogation" means any
situation in which any deputy sheriff becomes the focus of inquiry
regarding any matter which may result in punitive action.
(3) "Punitive action" means any action which may lead to
dismissal, demotion, suspension or reduction in salary. written
reprimand or transfer for purposes of punishment.
(4) "Hearing board" means a board which is authorized by the
sheriff to hold a hearing on a complaint against a deputy sheriff
and which consists of three members, all to be selected from deputy
sheriffs within that agency, or law-enforcement officers or
firefighters of another agency with the approval of the sheriff and
who have had no part in the investigation or interrogation of the
deputy sheriff under investigation. One of the members of the board
shall be appointed by the sheriff, one shall be appointed by the
deputy sheriff's association and these two members of the board
shall, by mutual agreement, appoint the third member of the board:
Provided, That if the first two members of the board fail to agree
upon the appointment of the third member of the board within five days, they shall submit to the sheriff's Civil Service Commission
a list of four qualified candidates from which list the commission
shall appoint the third member of the board: Provided, however,
That in the event one or more members of the board cannot be
appointed as otherwise provided in this section, then the chief
judge of the circuit court of the county shall appoint a sufficient
number of citizens of the county as may be necessary to constitute
the board. At least one member of the hearing board shall be of the
same rank as the deputy sheriff against whom the complaint has been
filed.
(5) "Hearing" means any meeting in the course of an
investigatory proceeding, other than an interrogation at which no
testimony is taken under oath, conducted by a hearing board for the
purpose of taking or inducing testimony or receiving evidence.
§7-14C-3. Hearing.
(a) If the investigation or interrogation of a deputy sheriff
results in the recommendation of some punitive action, then, before
taking punitive action the sheriff shall give notice to the deputy
sheriff that he or she is entitled to a hearing on the issues by a
hearing board,
or by the Deputy Sheriffs' Civil Service Commission
pursuant to section seventeen, article fourteen of this chapter. In
the event that the deputy sheriff requests a hearing by a hearing
board, the sheriff will schedule a hearing board and provide the
deputy sheriff notice of the hearing.
The notice shall state the
time and place of the hearing and the issues involved and be
delivered to the deputy sheriff not less than ten days prior to the hearing. An official record, including testimony and exhibits,
shall be kept of the hearing.
(b) The hearing shall be conducted by the hearing board of the
deputy sheriff except that in the event the recommended punitive
action is discharge, suspension or reduction in rank or pay, and the
action has been taken, the hearing shall be board shall conduct all
hearings pursuant to the provisions of section seventeen, article
fourteen of this chapter, if applicable. Both The hearing board
shall give both the sheriff and the deputy sheriff shall be given
ample opportunity to present evidence and argument with respect to
the issues involved.
(c) With respect to the subject of any investigation or hearing
conducted pursuant to this section, the hearing board may subpoena
witnesses; and administer oaths or affirmations; and examine any
individual under oath and may require and compel the production of
records, books, papers, contracts and other documents.
(d) Any decision, order or action taken as a result of the
hearing shall be in writing and shall be accompanied by findings of
fact. The findings shall consist of a concise statement upon each
issue in the case. A copy of the decision or order and accompanying
findings and conclusions, along with written recommendations for
action, shall be delivered or mailed promptly to the deputy sheriff
or to his or her attorney of record.
§7-14C-5. Appeal.
(a) Any deputy sheriff adversely affected by any decision,
order or action taken as a result of a hearing as herein provided of the hearing board has the right to appeal the decision, order or
action to the Deputy Sheriff's Civil Service Commission within
thirty calendar days, in the manner provided for in section fifteen,
seventeen article fourteen of this chapter.
(b) The sheriff may also appeal the decision, order or action
of the hearing board within thirty calendar days if he or she
believes the department would be adversely affected by the decision,
order or action of the hearing board.
(c) The decision, order or action of the hearing board is
binding upon all involved parties unless overturned in the appeal
process by the Deputy Sheriff's Civil Service Commission or the
circuit court of the county wherein the affected parties reside.