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Introduced Version House Bill 3132 History

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Key: Green = existing Code. Red = new code to be enacted


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.
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