by Robert F. Cohen Jr.
Last week Attorney General Patrick Morrisey sent a letter to Morgantown City Attorney Ryan Simonton expressing that the ordinance creating a Civilian Police Review and Advisory Board drafted by a Special Committee of City Council is illegal under West Virginia law.
I was a lawyer in West Virginia for 34 years and then served as a Commissioner on the Federal Mine Safety and Health Review Commission for 10 years, working largely on issues of statutory interpretation. After reviewing Morrisey’s opinion, I believe that it fails to correctly interpret West Virginia statutes and that its conclusions are legally wrong.
The proposed Morgantown ordinance would establish a board with two broad functions. One function is to review policies and procedures of the police department, gather statistical data from the department and input from the public and make recommendations for changes to police policies or procedures. The other is to receive and investigate citizen complaints concerning the police department, determine if they have merit and make recommendations to the chief of police.
The attorney general’s ultimate opinion — that any municipal police review and advisory board is illegal in West Virginia, whether or not it contains investigatory powers — has no logical foundation.
The basis of his opinion is West Virginia Code §8-14-23, which provides that the intent of the civil service provisions of Article 14 (which create a Police Civil Service Commission in Morgantown and other cities) is to “furnish a complete and exclusive system for the appointment, promotion, reinstatement, removal, discharge, suspension and reduction of all members of all paid police departments …”
Clearly, state statutes relating to municipal Police Civil Service Commissions and the Law Enforcement Officer Bill of Rights (“LEOBOR”) affect the scope of what a municipal police review board can do, but they do not preclude one’s existence.
The statutory language relied on by Morrisey does not apply to the first broad function of the proposed Morgantown board — the review of police department policies and procedures. A statute that relates solely to personnel matters under the civil service system does not preclude city council from creating a board whose function is to work with the police department in reviewing policies and procedures.
The other broad function relates to the investigation of complaints involving the police department. The “complete and exclusive system” language of §8-14-23, by its terms, does not preclude a municipal board from investigating citizen complaints.
The proposed ordinance clearly provides that if the Civilian Police Review and Advisory Board finds misconduct on the part of a police officer, the board has no power other than to make a recommendation to the police chief. It has no power to affect the job status of an officer. Even if the police chief should follow a recommendation to discipline an individual officer for misconduct, the officer will retain the full panoply of rights guaranteed by LEOBOR and the Police Civil Service Commission statutes. The existence of a Civilian Police Review and Advisory Board does not change that.
In the letter he sent to the attorney general along with the text of the proposed ordinance, Simonton identified municipalities in 10 other states that have created boards with power to investigate and/or review police conduct in states that have LEOBORs.
He identified two judicial decisions in those states that have upheld the existence of such boards when challenged by the local Fraternal Order of Police.
However, Morrisey asserts that West Virginia’s LEOBOR is “completely unique” because of the “complete and exclusive system” language of §8-14-23. He is wrong. Comparable language exists in the LEOBOR statutes of other states with municipal police review boards, such as Florida.
Space does not permit me to describe other ways in which the attorney general’s opinion relies upon questionable assertions and problematic reasoning. Council should not accept it as gospel. Rather, council has the authority under state law to enact the proposed ordinance creating a Civilian Police Review and Advisory Board for Morgantown.
Robert F. Cohen Jr. was a lawyer in West Virginia for 34 years. He’s also a member of the Morgantown-Kingwood chapter of the NAACP and participated in the city council’s special committee, which drafted the ordinance.
