Senate Bill No. 616
 (By Senators Bowman and Jenkins)
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 [Introduced February 19, 2010; referred to the Committee on Government Organization; and then to the Committee on Finance.]
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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 All rules and regulations so prescribed may, from time to time, be added to, amended or rescinded.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 report shall be available for public inspection five days after it shall have 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, if the deputy desires to file such written answer, 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. If the deputy demands it, the Civil Service Commission shall grant a public hearing, which 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. 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. 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. 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. 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. 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 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.

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. Before such sheriff shall be allowed to 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 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. Such terms and conditions must prohibit discrimination between deputies with regard to the allocation of additional police work. 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, 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. 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 a hearing before a hearing board . 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 Any hearing by a hearing board 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 pursuant to the provisions of section seventeen, article fourteen of this chapter, if applicable. 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.

Any deputy sheriff adversely affected by any decision, order or action taken as a result of a hearing as herein provided 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, article fourteen of this chapter.
The sheriff may also appeal the decision of the hearing board within thirty calendar days if he or she believes the department would be adversely affected by the order or action of the hearing board.
The 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.



NOTE: The purpose of this bill is to permit 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. The bill eliminates the authority of a county commission from approving the sheriff's plan regarding additional police work by deputy sheriffs. The bill eliminates written reprimands and transfers for purposes of punishment from the definition of "punitive action" as it applies to deputy sheriffs. The bill also permits a deputy sheriff to a hearing in front of a hearing board or the Deputy Sheriff's Civil Service Commission.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

 

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H. B. 4185 

 

(By Delegates Staggers, Perry, Boggs, Ellem, T. Walker, 

Phillips, Marshall, Longstreth, Fleischauer, Doyle) 

 

[Introduced January 27, 2010; referred to the 

Committee on Pensions and Retirement then Finance.]

 

 

A BILL to amend and reenact §7-14-17 of the Code of West Virginia, 1931, as amended, relating to mandatory retirement age of deputy sheriffs; and authorizing continued employment beyond age sixty-five years if approved in writing by the sheriff.

Be it enacted by the Legislature of West Virginia:

That §7-14-17 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 14. CIVIL SERVICE FOR DEPUTY SHERIFFS.

 

§7-14-17. Removal, discharge, suspension or reduction in rank or pay; hearing; attorney fees; appeal; reduction in force; mandatory retirement age.

(a) No A deputy sheriff of any county subject to the provisions of this article may not 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 a deputy may not 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, if the deputy desires to file such written answer, shall be furnished to the civil service commission and entered upon its records. If the deputy demands it, the civil service commission shall grant a public hearing, which 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. 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. 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 If 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 If that the commission reinstates the deputy, the sheriff has an immediate right of appeal to the circuit court. In the event If 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. 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. 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. 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 the right to employ counsel to represent them.
(d) If for reasons of economy or other reasons it is deemed determined 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 if 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 A deputy sheriff in any county subject to the provisions of this article may not serve as a deputy sheriff in any county subject to the provisions of this article after attaining the age of sixty-five years unless the sheriff of the county specifically approves in writing the continued employment of that deputy sheriff.



NOTE: The purpose of this bill is to authorize continued employment beyond the mandatory retirement age of age 65 years for deputy sheriffs, if approved in writing by the sheriff.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.