Introduced Version
House Bill 2489 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2489
(By Delegates Howell, Storch, Canterbury, Azinger,
Border, Smith,R., Nelson,J., Folk, Hamrick, Kump and
McCuskey)
[Introduced February 15, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §6B-4-1, §6B-4-2, and §6B-
4-3; all relating to official misconduct by a public officer or
employee in a public capacity or under color of the officer's or
employee's office or employment; penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §6B-4-1, §6B-4-2 and
§6B-4-3, all to read as follows:
ARTICLE 4. OFFICIAL MISCONDUCT BY PUBLIC OFFICER OR EMPLOYEE.
§6B-4-1. Official misconduct defined; penalties.
_(a) Official misconduct is any of the following acts committed
by a public officer or employee in the officer or employee's public
capacity or under color of the officer or employee's office or
employment:
_____(1) Knowingly using or authorizing the use of any aircraft, as defined in §8-29B-2 of this code; vehicle, as defined in §17-1-4 of
this code, or watercraft, as defined in §11-14C-2 of this code,
under the officer's or employee's control or direction, or in the
officer's or employee's custody, exclusively for the private benefit
or gain of the officer or employee or another: Provided, That the
provisions of subsection(a)(l) shall not apply to any use of persons
or property which at the time of the use, is authorized by law or
by formal written policy of the governmental entity;
_____(2) Knowingly failing to serve civil process when required by
law;
_____(3) Using confidential information acquired in the course of
and related to the officer's or employee's office or employment for
the private benefit or gain of the officer or employee or another
or to intentionally cause harm to another;
_____(4) Except as authorized by law, with the intent to reduce or
eliminate competition among bidders or prospective bidders on any
contract or proposed contract:
_____(A) Disclosing confidential information regarding proposals or
communications from bidders or prospective bidders on any contract
or proposed contract;
_____(B) Accepting any bid or proposal on a contract or proposed
contract after the deadline for acceptance of such bid or proposal;
or
_____(C) Altering any bid or proposal submitted by a bidder on a contract or proposed contract;
_____(5) Except as authorized by law, knowingly destroying,
tampering with or concealing evidence of a crime; or
_____(6) Knowingly submitting to a governmental entity a claim for
expenses which is false or duplicates expenses for which a claim is
submitted to the governmental entity, another governmental or
private entity; or
_____(7) As part of a determination of whether to grant another
person access to a publicly accessible venue or form of
transportation, intentionally and without probable cause:
_____(A) Touches the genitals, buttocks, anus or female breasts of
the person, including touching through clothing;
_____(B) Removes a child younger than eighteen years of age from the
physical custody or control of the child's parent or legal guardian,
or a person standing in the stead of the child's parent or legal
guardian;
_____(C) Commits a violation of subsection (a) or (b) of §61-2-9 of
this code; or
_____(D) Harasses, delays, coerces, threatens, intimidates, or
denies or conditions the person's accessibility because of the
person's refusal to consent to subdivisions(a)(7)(A),(a)(7)(B) or
(a)(7)(C).
_____(b) (1) A persons who commits an offense of official misconduct
as provided in subdivisions (a)(1) through (a)(4) is guilty of a misdemeanor and, upon conviction thereof, shall be fined no more
than $5,000 or confined in jail no more than one year, or both
fined and confined.
_____(2) A person who commits official misconduct as described in
subdivision (a)(5), if in connection with a crime that is a felony,
is guilty of a felony and, upon conviction thereof, shall be fined
between $2,000 and $25,000 or imprisoned in a state correctional
facility from one year to twenty years, or both fined and
imprisoned. If the person commits the offense in connection with a
crime that is a misdemeanor, the person is guilty of a misdemeanor
and, upon conviction thereof, shall be fined no more than $5,000 or
confined in jail no more than one year, or both fined and confined.
_____(3) A person who commits official misconduct as described in
subdivision (a)(6) of this section, if the claim is for less than
$1,000, is guilty of a misdemeanor and, upon conviction thereof,
shall be fined no more than $5,000 or confined in jail no more than
one year, or both fined and confined. If the misconduct is related
to a claim of more than $1,000, the person is guilty of a felony
and, upon conviction thereof, shall be fined from $2,000 to $25,000
or imprisoned in a state correctional facility for from one to
twenty years, or both fined and imprisoned.
_____(4) A person who commits official misconduct as described in
subdivision (a)(7) of this section is guilty of a misdemeanor and,
upon conviction thereof, shall be fined no more than $5,000 or confined in jail no more than one year, or both fined and confined.
_____(c) As used in relation to subdivision (a)(7), "public officer
or employee" includes, but is not limited to:
_____(l) An officer, employee or agent of:
_____(A) A federal branch, department or agency; or
_____(B) Any person acting under a contract with a federal branch,
department or agency to provide a security or law-enforcement
service; or
_____(2) Any person acting under color of federal law.
_____(d) As used in this section, "confidential" means any
information that is not subject to mandatory disclosure pursuant
to the state's Freedom of Information Act, article 1, chapter 29-b
of this code.
§6B-4-2. Forfeiture of office or employment upon conviction.
_____Upon conviction of official misconduct a public officer or
employee shall forfeit the officer's or employee's office or
employment.
§6B-4-3. Attorney General may defend validity of the article.
_____The Attorney General, with the consent of the proper county or
district attorney, shall take any actions necessary on behalf of the
State of West Virginia to defend the validity of provisions of this
article, if any provision is challenged on grounds of
unconstitutionality, preemption or sovereign immunity. The Attorney
General may make any legal arguments the Attorney General considers appropriate, including, but not limited to, a valid exercise of the
state's police powers, liberty interests secured by the Constitution
of the United States, powers reserved to the states by the tenth
amendment of the Constitution of the United States or any rights and
protections secured by the Constitution of the State of West
Virginia.
NOTE: The purpose of this bill is to provide for forfeiture of
office or employment by a public official who is guilty of official
misconduct.
The article is new; therefore, it has been completely
underscored.
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