U.S. Commission on Civil Rights

Coping with Police Misconduct in West Virginia: Citizen Involvement in Officer Disciplinary Procedures

Appendices

APPENDIX 1

Letter from Delegate Carrie Webster, August 2, 2003

[Text Only]

August 2, 2003

Dr. Ranjit Majumder
Chairperson, West Virginia Advisory Committee
U.S. Commission on Civil Rights
624 9th Street N.W.
Washington, DC 20425

Dear Dr. Majumder:

Thank you for your presentation on behalf of West Virginia Advisory Committee before the Joint Select Committee on Minority Issues on June 8, 2003. Your report, Civil Rights Issues in West Virginia, is a very useful document, serving as a sober reminder of the many civil rights problems in our State. I found the report's section on police-community relations particularly compelling. I am certainly anxious to see improvements in the way West Virginia handles allegations of police misconduct and how citizens can become more involved in their community by working with state and local police departments.

The Joint Select Committee will likely examine potential legislative action based on the Committee's report recommendations. In this regard, I am seeking further insight from the Committee on the issue of police misconduct and brutality in West Virginia. As you recall, I have spoken with you and Marc Pentino of the Commission's Eastern Regional Office in the past about the Advisory Committee providing the legislature with additional information on this topic. Since prior bills establishing a citizen review board were introduced in the House of Delegates but did not make it out of subcommittee, the Advisory Committee's input would be a tremendous resource for the Joint Committee on Minority Issues as well as the House Judiciary and Finance Committees in which draft bills were first introduced. It would be of great use if the West Virginia Advisory Committee could provide a background paper elaborating on the problem and describing the current method of officer discipline in West Virginia. As we develop new ideas that may work in our state, we would also be interested in learning of approaches or models that have been tried in other parts of the country that incorporate citizen or outside review of police misconduct. We would find this most useful since the Select Committee will likely be considering criminal justice issues this Fall.

Once again, thank you for your presentation. I look forward to working with you and the Advisory Committee in the future to improve civil rights in West Virginia.

Sincerely,

Delegate Carrie Webster
Co-Chair, Joint Select Committee on Minority Issues

cc: Ki-Taek Chun, director, USCCR, Eastern Regional Office
     Marc Pentino, civil rights analyst, USCCR, Eastern Regional Office

APPENDIX 2

House Bill 2237

Amended House Bill 2237

Final Draft, April 1, 2001

A BILL to amend chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-e, relating to creating a state police review board to hear complaints against state police personnel; providing procedures and requirements for disposition of complaints; limiting public disclosure of certain information; requiring semiannual reports; and addressing effects of complaint process.

Be it enacted by the Legislature of West Virginia:

That chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article two-e, to read as follows:

ARTICLE 2E. LAW ENFORCEMENT AND COMMUNITY RELATIONS APPEALS BOARD.

15-2E-1. Law Enforcement and Community Relations Appeal Board created; members.

(a) The law enforcement and community relations appeals board is hereby created. The Legislature finds the creation of this board is intended to promote public confidence and accountability of state law enforcement agencies, and facilitate fair and complete review of citizen complaints and enhance the reporting, collection and proper analysis of citizen complaints against law enforcement officers.

(b) The board will act as a permanent statutory agency through which a state-wide repository for the receipt of complaints lodged by members of the general public against all law enforcement agencies of the state. The board shall review policies of all other law enforcement agencies of the state, and make recommendations to the respective agencies on methods to promote fair and timely review of citizen complaints.

(c) The board shall also provide a external review board for hearing complaint appeals only relating to the West Virginia state police.

(d) The board is composed of the following members or their designees for the purpose of hearing complaint appeals relating to the West Virginia state police:

(1) The attorney general of West Virginia;

(2) The superintendent of the West Virginia state police;

(3) The executive director of the human rights commission;

(4) The director of public defender services;

(5) The executive director of the West Virginia prosecuting attorneys institute; and

(6) Four citizen members appointed by the governor, not more than two of whom may be from any one congressional district of the state, who each serve for a term of two years. Two of these members shall have professional experience and an educational background in law enforcement or criminal justice. A vacancy in a citizen member position shall be filed in the manner of the original appointment for the remainder of the term;

(8) The executive director shall be an ex officio non-voting member of the commission.

(e) The board shall meet in executive session to review West Virginia state police complaint appeals as often as necessary to perform its functions and duties. Executive session meetings shall not be open to association members appointed pursuant to section three of this article. Board meetings to review state law enforcement complaint procedures and practices shall be open to the public.

(f) In all matters where a quorum is present, a majority vote of the board prevails. A quorum consists of five members.

(g) Citizen members of the commission are entitled to receive compensation for attendance at official meetings not to exceed the amount paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law. All members are entitled to actual and necessary expenses incurred for each day or portion thereof engaged in the discharge of official duties in a manner consistent with guidelines of the travel management office of the department of administration.

(h) The governor shall designate a chair, who is not a public official, for a term to run concurrently with the term of office of the member designated as chair.

(i) The Governor shall appoint, with the advice and consent of the West Virginia Senate, an executive director for the board. He or she shall hold a degree and have professional experience in fields involving law enforcement or criminal justice. The executive director shall provide technical information to support the administrative work of the board, conduct complaint investigations and shall facilitate the submission and disposition of citizen complaints and analysis as provided in this article. The board may hire all necessary staff as needed to assist the executive director and otherwise effectuate the purposes of this article.

(j) The board shall continue to exist until the first day of July, two thousand five, pursuant to article ten, chapter four of this code, unless sooner terminated, continued or reestablished by act of the Legislature.

15-2E-2. Additional board members for state-wide review.

Six ex officio non-voting members shall be appointed to the board to participate and contribute to the board's review and study of policies of all other law enforcement agencies of the state, to make recommendations to the respective agencies on methods to promote fair and timely review of citizen complaints.

The following organizations shall appoint a member, and in his absence a designee, to serve for a term of two years:

(1) The West Virginia sheriffs association;

(2) The West Virginia deputy sheriffs association;

(3) The West Virginia chiefs of police association;

(4) The West Virginia troopers association;

(5) The West Virginia fraternal order of police; and

(6) The West Virginia conservation officers association.

15-2E-3. Complaint procedures; state police.

(a) Any person who claims to have been subjected to, or any person who claims to have personal knowledge of an act or acts of discourtesy, use of excessive force, misconduct, or other unlawful act caused by a state police officer, may make a complaint of the conduct at the office of professional standards division of the state police or at any state police detachment.

(b) For claims against a West Virginia state police officer, a copy of each complaint received shall be provided by the superintendent to the board. The superintendent, upon completion of an investigation, shall also provide the board a copy of the final determination regarding the complaint as provided in subsection (a). The superintendent shall also notify the person making a claim pursuant to subsection (a) of the superintendent's findings and his or her right of appeal to the board. This notice shall be provided within seven days of completion of the investigation, and describe the necessary information for submitting an appeal to the board. If the person making the claim is dissatisfied with the disposition of the case, he or she may appeal the decision to the board. The person making the claim must make the request for review by the board within thirty days of receipt of notice of disposition of the case. For good cause show, the board may consider appeals after this time period.

15-2E-4. Jurisdiction and disposition of complaints.

(a) The board shall consider all appeals as provided in section two of this article. Upon request of the board, the superintendent shall provide all records relating to the superintendent's investigation. Upon receipt of an appeal request, or upon recommendation of the executive director, the board may initiate an investigation into a complaint.

(b) The board may recommend that the relevant law enforcement agency conduct a further investigation and report back to the board the results of its investigation.

(c) The board may direct the executive director to conduct an investigation and report back to the board on the results of the investigation. For purposes of conducting an investigation, the board may also authorize the executive director to subpoena a complainant, any other witnesses and any necessary records.

(d) Upon review of the investigative report of each case, the board shall promptly make any one of the following findings:

(1) That the investigation is complete and that appropriate disposition was made;

(2) That further investigation is warranted and the complaint is returned to the professional standards unit with recommendations on areas of further inquiry; or

(3) That the investigation is complete but that the wrong conclusion was drawn, in which the case is directed to the superintendent along with any recommendations resulting from the executive director s investigation.

(e) The board must make its recommendation to the superintendent within thirty days of receipt of notice of appeal.

(f) The superintendent has final decision-making responsibility for the appropriate disciplinary action in each case, but no final action may be taken disposing of any appealed complaint until the recommendation of the board has been reviewed. The superintendent must return responses to board recommendations to the board within thirty days. For good cause shown the board may extend this time period.

15-2E-5. Law enforcement complaint forms.

(a) The law enforcement and community relations appeals board shall promulgate a form to be utilized by all law enforcement agencies in the state to respond to citizen complaints. This form will include at a minimum, the following:

(1) The name, address and telephone number of the complainant;

(2) The name of the law enforcement officer, if known by the complainant;

(3) The name of the agency employing the law enforcement officer;

(4) Whether the complaint involved the arrest of the complainant;

(5) The date of occurrence;

(6) The time, county and place of occurrence;

(7) A full complaint summary in the words of the complainant;

(8) Names of any witnesses to the incident;

(9) Disclosure of any physical evidence relating to the incident;

(10) Any remedy requested by the complainant;

(11) An acknowledgment that giving false information to a West Virginia state police officer violates state law.

(b) All complaints are confidential and not subject to freedom of information disclosure pursuant to chapter twenty nine-b of the code.

15-5E-6. Complaint procedure for other state law enforcement agencies.

(a) Every head of a state law enforcement agency or his or her designee shall provide a copy to the board of all complaints submitted within ten days of receipt, for each citizen complaint received relating to conduct of an law enforcement officer while performing his or her duties. Copies of complaints shall also be forwarded to the complainant. Disposition letters regarding these complaints shall be submitted to the board within thirty days of completion of the investigation by the law enforcement agency. The board shall send notifications to complainants and the board on the final disposition of their complaints.

(b) For purposes of this section, law-enforcement officer means:

(1) West Virginia state police officers;

(2) municipal police officers;

(3) County sheriff and deputy sheriffs;

(4) campus police officers at state institutions of higher education; and

(5) department of natural resources conservation officers.

(c) The board may also receive complaints by citizens and shall submit them to the head of the law enforcement agency for investigation. The executive director of the board shall compile statistics based on the type of and disposition of each complaint to identify officer conduct which results in citizen complaints and dissatisfaction. The executive director shall also monitor and semi-annually provide reports to the speaker of the house of delegates and president of the senate these statistics, and information on costs to the Board of Risk and Insurance Management resulting from claims made against the state based on the conduct of state law enforcement officers.

15-2E-7. Rights not abrogated.

Nothing contained in this article abrogates any constitutional, statutory or common law right of police personnel against whom a complaint is filed, or of the complainants, investigators or witnesses who participate in the complaint procedure. ***Use of statements of a state police law enforcement officer subject to an internal investigation of the state law enforcement agency shall not be admissible in a court of law.***

15-2E-8. Procedural requirements.

(a) The West Virginia state police superintendent must comply with all legislative rules of the state police on professional standards for investigations and discipline. The provisions of this article are to be construed to comport with the internal investigation and disciplinary procedures of the professional standards unit of the state police.

(b) State law enforcement officers may not be penalized or affected adversely in any way as a result of the collection of complaints for the repository and the policy review procedures set forth in this article except through use of internal investigation procedures established for by the respective law enforcement agency.

(c) Complaint forms must be placed in a conspicuous place and readily available to the public.

15-2E-9. Records; public disclosure.

Records of the board containing the names or identification of police personnel, complainants, investigators or witnesses may not be disclosed or released to the general public and are exempt from disclosure. All complaint forms are confidential and not subject to freedom of information disclosure pursuant to chapter twenty nine-b of the code.

15-2E-10. Semiannual report.

The board shall prepare and publish a semiannual statistical and analytical report regarding the complaints processed under this article and make any recommendations on how law enforcement agencies may improve internal polices to effectuate the purposes of this article.

15-2E-11. Board rules.

The law enforcement and community relations appeals board may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as are necessary to effectuate the provisions of this article.

15-2E-12. Willful and unlawful disclosure of information; penalty.

Any person who willfully and unlawfully discloses any confidential information contained in the repository or other documents or information regarding an investigation other than as provided in this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in the county or regional jail for not more than six months, or both. A person convicted pursuant to this section is also liable for damages in the amount of three hundred dollars or actual damages, whichever is greater.

15-2E-13. Law enforcement agency citizen complaints policy.

Each law enforcement agency of this state as defined in section six of this article shall establish and maintain a written policy for receipt and disposition of citizen complaints against the agency's law enforcement officers, and provide a copy of this policy to the law enforcement and community relations appeals board. Each law enforcement agency shall have this policy in place by the first day of January, two thousand two.

Note: The purpose of this bill is to create a police review board to hear complaints against State Police personnel.

This article is new; therefore, strike-throughs and underscoring have been omitted.

APPENDIX 3

House Bill 2430

West Virginia 78th Legislature

House Bill 2430

(by Delegates Manuel, Doyle and Fleischauer)

[Introduced January 20, 2003; Referred to the Committee on the Judiciary.]

SYNOPSIS: A BILL to amend chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-f, relating to creating a state police review board to hear complaints against state police personnel; providing procedures and requirements for disposition of complaints; limiting public disclosure of certain information; requiring semiannual reports; and addressing effects of complaint process.

Be it enacted by the Legislature of West Virginia:

That chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article two-f, to read as follows:

ARTICLE 2F. STATE POLICE REVIEW BOARD.

Section 15-2F-1. Board created; members.

(a) The state police review board is hereby created to provide a permanent statutory agency through which complaints lodged by members of the general public and state police personnel regarding alleged acts of discourtesy and excessive force by state police personnel are to be processed and evaluated.

(b) The board is composed of the following members or their designees:

(1) The attorney general of West Virginia;

(2) The superintendent of the West Virginia state police;

(3) The executive director of the human rights commission;

(4) The executive director of the West Virginia prosecuting attorneys institute;

(5) The director of public defender services; and

(6) Four citizen members appointed by the governor, who each serve for a term of two years. A vacancy in a citizen member position shall be filled in the manner of the original appointment for the remainder of the term. Citizen members may serve unlimited consecutive terms.

(c) In all matters where a quorum is present, a majority vote of the board prevails. A quorum consists of five members.

(d) The board shall meet in executive session as often as necessary to perform its functions and duties, but it shall meet at least once a month.

Section 15-2F-2. Complaint procedures.

(a) Any person who claims to have been subjected to, or any person who claims to have personal knowledge of an act or acts of discourtesy, use of excessive force or injury resulting from excessive force caused by state police personnel, may make a complaint of the conduct at the office of the internal affairs division of the state police or at any state police station.

(b) The complaint shall be reduced to writing on a special police review board form serially numbered, signed by the complainant and notarized before a duly authorized notary public.

(c) One copy of the completed form shall be retained by the recipient of the complaint and a copy given to the complainant. A copy shall be mailed within forty-eight hours to the internal affairs division and to the secretary of the board.

(d) The secretary of the board shall assign a consecutive number to each complaint and, within forty-eight hours, shall mail a copy to each member of the board. The secretary shall also maintain on file a record of each complaint.

(e) The internal affairs division shall make a comprehensive investigation of each complaint and submit its report of the investigation to the board within ninety days from the date of the complaint.

(f) The board shall review the internal affairs division s report and submit in writing to the superintendent of state police within thirty days from receipt of the report, a statement of its findings and recommendations as provided under section three of this article. The superintendent shall, within thirty days of receipt of the findings and recommendations of the board, forward to the board a statement of his or her disposition in each case. Concurrent with this, the superintendent shall also forward a copy of the board's recommendation and the superintendent's statement of disposition to the complainant and respondent police personnel.

Section 15-2F-3. Jurisdiction and disposition of complaint.

(a) Jurisdiction of the board extends only to complaints against state police personnel with respect to discourtesy and use of excessive force as defined by rules of the state police.

(b) Upon review of the investigative report of each case, the board shall promptly make any one of the following four recommendations to the superintendent:

(1) Sustain the complaint and approve, disapprove or modify the proposed internal affairs division's action against the police personnel;

(2) Dismiss the complaint because of lack or insufficiency of evidence;

(3) Exonerate the police personnel because of the complainant's failure to prove his or her case by clear and convincing evidence; or

(4) Remand the case for further investigation to the internal affairs division or to the West Virginia state police.

(c) The board may request the complainant, witnesses and the police department personnel involved in a particular complaint to submit voluntarily to a polygraph test or to appear voluntarily before the board.

Section 15-2F-4. Final action.

The superintendent has final decision-making responsibility for the appropriate disciplinary action in each case, but no final action may be taken until the recommendation of the board has been reviewed.

Section 15-2F-5. Rights not abrogated.

Nothing contained in this article abrogates any constitutional, statutory or common law right of police personnel against whom a complaint is filed, or of the complainants, investigators or witnesses who participate in the complaint procedure.

Section 15-2F-6. Suspension and dismissal procedures not changed.

This procedure does not affect or change the methods and procedures for suspension or dismissal of members of the state police.

Section 15-2F-7. Procedural requirements.

Police personnel may not be penalized or affected adversely in any way as a result of the procedure set forth in this article without having been first afforded proper written notice of charges against him or her and the right to a hearing before the grievance procedure recommendation board.

Section 15-2F-8. Records; public disclosure.

Records of the board containing the names or identification of police personnel, complainants, investigators or witnesses may not be disclosed or released to the general public.

Section 15-2F-9. Rules of procedure.

The board may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine of this code to carry out the provisions of this article.

Section 15-2F-10. Semiannual report.

The board shall prepare and publish a semiannual statistical and analytical report regarding the complaints processed under this article.

Note: The purpose of this bill is to create the state police review board to hear complaints against state police personnel.

APPENDIX 4

Directory of Oversight Agencies in the United States and Sample Complaint Forms

This list, compiled by the Omaha, Nebraska Public Safety Auditor's office, has been amended to include oversight agencies not initially listed and to improve the readability of the listings. An attempt has been made to ensure the provided links are accurate and active.

This directory should not be considered an exhaustive inventory of oversight mechanisms, but should serve as a reference guide illustrative of the many oversight agencies established throughout the United States. Web site addresses provided should permit interested readers to learn more about individual agencies.

Arizona

California

Colorado

Connecticut

Florida

Idaho

Indiana

Iowa

Massachusetts

Michigan

Minnesota

Missouri

Nebraska

Nevada

New York

New Mexico

Ohio

Oregon

Pennsylvania

Tennessee

Texas

Washington

Washington, DC

Sample Complaint Forms

Note: This list has been drawn heavily from the Public Safety Auditor, City of Omaha, Nebraska, Other U.S. Oversight Agencies, <http://www.ci.omaha.ne.us/departments/public_safety_auditor/Other%20U.S.%20Agencies.pdf> (last accessed  Aug. 21, 2003).