SENATE
HOUSE
JOINT
BILL STATUS
STATE LAW
REPORTS
EDUCATIONAL
CONTACT
home
home
Introduced Version - Originating in Committee Senate Bill 701 History

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

Senate Bill No. 701

(By Senators Kessler, Browning, Chafin, Foster, Jenkins, Laird, Minard, Oliverio, Palumbo, Snyder, Stollings, Williams, Yost, Deem and Hall)

____________

[Originating in the Committee on the Judiciary; reported March 2, 2010.]

_____________


A BILL to amend and reenact §4-5-2 and §4-5- 3 of the Code of West Virginia, 1931, as amended, all relating to the Commission on Special Investigations generally; granting certain commission personnel the right to carry firearms in the course of their employment; authorizing commission to seek special prosecutor when county prosecutor is disqualified for a conflict of interest or ill health; and granting to commission personnel authority to present criminal complaints to courts.

Be it enacted by the Legislature of West Virginia:
That
§4-5-2 and §4-5-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 5. COMMISSION ON SPECIAL INVESTIGATIONS.
§4-5-2. Powers and duties generally.

The commission on special investigations shall have the power, duty and responsibility, upon a majority vote of the members appointed, to:
(1) Conduct a comprehensive and detailed investigation into the purchasing practices and procedures of the state;
(2) Determine if there is reason to believe that the laws or public policy of the state in connection with purchasing practices and procedures have been violated or are inadequate;
(3) Determine if any criminal or civil statutes relating to the purchasing practices and procedures in this state are necessary to protect and control the expenditures of money by the state;
(4) Investigate or examine any matter involving conflicts of interest, bribery of state officials, malfeasance, misfeasance or nonfeasance in office by any employee or officer of the state;
(5) Conduct comprehensive and detailed investigations to determine if any criminal or civil statutes have been violated at any level of state government;
(6) Determine whether to recommend criminal prosecution or civil action for any violation, either criminal or civil, at any level of state government and, if it is determined that action is necessary, to make appropriate recommendation to the attorney general, prosecuting attorney or other authority empowered to act on such recommendation;
(7) Make such written reports to the members of the Legislature between sessions thereof as the commission may deem advisable and on the first day of each regular session of the Legislature make an annual report to the Legislature containing the commission's findings and recommendations including in such report drafts of any proposed legislation which it deems necessary to carry such recommendations into effect.
The commission is also expressly empowered and authorized to:
(1) Sit during any recess of the Senate and House of Delegates;
(2) Recommend to the judge of any circuit court that a grand jury be convened pursuant to the provisions of section fourteen, article two, chapter fifty-two of this code, to consider any matter which the commission may deem in the public interest and, in support thereof, make available to such court and such grand jury the contents of any reports, files, transcripts of hearings or other evidence pertinent thereto;
(3) Employ such legal, technical, investigative, clerical, stenographic, advisory and other personnel as it deems needed and, within the appropriation herein specified, fix reasonable compensation of such persons and firms as may be employed: Provided, That such personnel as the commission may determine shall have the authority to administer oaths and take affidavits and depositions anywhere in the state: Provided further, That notwithstanding any provision of this code to the contrary, such personnel as the commission may determine by majority vote shall have the authority to carry firearms in their course of their employment;
(4) Consult and confer with all persons and agencies, public (whether federal, state or local) and private, that have information and data pertinent to an investigation; and all state and local governmental personnel and agencies shall cooperate to the fullest extent with the commission;
(5) Call upon any department or agency of state or local government for such services, information and assistance as it may deem advisable; and
(6) Refer such matters as are appropriate to the office of the United States attorney and cooperate with such office in the disposition of matters so referred.; and
(7)
If after referral to the appropriate county prosecuting

attorney under this section the commission finds that a county prosecuting attorney is, due to ill health or conflict of interest, unable to undertake a criminal investigation or prosecution, the co-chairmen of the commission may, upon a majority vote of the members of the commission, petition the appropriate circuit court for the appointment of a special prosecutor through the West Virginia Prosecuting Attorneys Institute pursuant to the provisions of section six, article four, chapter seven of this Code for the purpose of conducting an investigation to determine whether a violation of the criminal law of this state has occurred.
(A) A special prosecutor shall have the same authority as a county prosecutor to investigate and prosecute persons subject to this article for criminal violations that fall under the purview of the commission as provided in this section which constitute felonies. No person who is serving as a prosecuting attorney or an assistant prosecuting attorney of any county is required to take an additional oath when appointed to serve as a special prosecuting attorney.
(B) The commission shall be authorized to employ and assign the necessary professional and clerical staff to assist any such special prosecutor in the performance of his or her duties.
(C) The special prosecutor shall be empowered to make a presentment to any regularly or specially impaneled grand jury in the appointing circuit court. The special prosecutor shall be empowered to prosecute any person indicted by such grand jury:
Provided, That nothing in this section shall be construed to require a prosecuting attorney or special prosecuting attorney to prosecute a matter.

§4-5-3. Executive sessions; hearings; subpoena power; enforcement provisions.

The commission shall have the power and authority to hold executive sessions for the purpose of establishing business, policy, an agenda and the interrogation of a witness or witnesses: Provided, That if a witness desires a public or open hearing he shall have the right to demand the same and shall not be heard otherwise: Provided, however, That if a witness desires a hearing in an executive session, he shall have the right to demand the same and shall not be heard otherwise. However, members of the staff of the commission may be permitted to attend executive sessions with permission of the commission.
The commission is hereby empowered and authorized to examine witnesses and to subpoena such persons and books, records, documents, papers or any other tangible things as it believes should be examined to make a complete investigation. All witnesses appearing before the commission shall testify under oath or affirmation, and any member of the commission may administer oaths or affirmations to such witnesses. To compel the attendance of witnesses at such hearings or the production of any books, records, documents, papers or any other tangible thing, the commission is hereby empowered and authorized to issue subpoenas, signed by one of the cochairmen, in accordance with section five, article one, chapter four of this code. Such subpoenas shall be served by any person authorized by law to serve and execute legal process and service shall be made without charge. Witnesses subpoenaed to attend hearings shall be allowed the same mileage and per diem as is allowed witnesses before any petit jury in this state.
If any person subpoenaed to appear at any hearing shall refuse to appear or to answer inquiries there propounded, or shall fail or refuse to produce books, records, documents, papers or any other tangible thing within his control when the same are demanded, the commission shall report the facts to the circuit court of Kanawha county or any other court of competent jurisdiction and such court may compel obedience to the subpoena as though such subpoena had been issued by such court in the first instance.
Notwithstanding any other provision of this code to the contrary, any person authorized under this article to initiate and conduct investigations may submit complaints directly to a magistrate or circuit court after review and approval by the prosecuting attorney, if the complaint is related to an investigation directed by the commission and may be prosecuted as a violation of the criminal law of this state.
The complaint shall be in the form of a written statement of the essential facts constituting the offense charged. The complaint shall be presented to and sworn before a magistrate in the county where the offense is alleged to have occurred.
If it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant committed it, a warrant for the arrest of the defendant shall be issued to any officer authorized by law to arrest persons charged with offenses against the state.
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Email WebmasterWebmaster   |   © 2024 West Virginia Legislature **


X

Print On Demand

Name:
Email:
Phone:

Print