Special investigator.

2015
STATE OF WYOMING
15LSO-0113
Numbered
2.1

SENATE FILE

NO.

SF0096

Special investigator.

Sponsored by:
Senator(s) Rothfuss, Coe, Emerich and Landen and Representative(s) Berger, Connolly, Gay, Krone, Madden, Miller, Petroff, Throne, Zwonitzer, Dn. and Zwonitzer, Dv.

A BILL

for

AN ACT relating to the administration of government; creating the office of special investigator; providing for appointment of the special investigator by the Wyoming supreme court; providing duties; providing for assistance by other state agencies as specified; providing for the hiring of deputy special investigators and other assistants; providing for the appointment of an alternative special investigator; providing for removal from office as specified; creating an account; providing for a distribution from severance taxes to the account as specified; providing rulemaking authority; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section
1
.

W.S. 9
‑
20
‑
101 through 9
‑
20
‑
10
7

are
created to read:

ARTICLE 20
OFFICE OF SPECIAL INVESTIGATOR

9
‑
20
‑
101
.

Definitions.

(a)

As used in this act:

(
i
)

"
Member of the judiciary
"
means a justice of the Wyoming
supreme court
, a judge of a state district court or a judge of a state circuit court;

(ii)

"
Member of the legislature
"
means a member of the Wyoming senate or
house of representatives
;

(iii)

"
Official
"
means individuals holding the offices specified in W.S. 9
‑
20
‑
103(
a);

(i
v
)

"
Official legislative capacity
"
or
"
official legislative
function
"
means
an act or duty that
is immune from
civil or criminal prosecution

or an act or duty for which a legislator shall not be questioned in any place outside of the house in which the legislator serves as provided in

article I, section 6, c
lause 1 of the United States
c
onstitution or article 3, s
ection 16 of the
c
onstitution of the s
tate of Wyoming when performed by a legislator, legislative staff or other qualified person;

(
v
)

"
Official misconduct
"
means a crime against public administration as defined in W.S. 6
‑
5
‑
101 through 6
‑
5
‑
118
, a criminal violation of the Ethics and Disclosure Act as provided in W.S. 9
‑
13
‑
10
9
(a)

and other acts which demean or lessen the office to which an official is elected or appointed;

(vi)

"
Statewide elected official
"
means the governor, secretary of state, state treasurer, state auditor and superintendent of public instruction;

(vii)

"
This act
"
means W.S. 9
‑
20
‑
101 through 9
‑
20
‑
10
7
.

9
‑
20
‑
10
2
.

Creation of office of special investigator; appointment
; qualifications
; rules and regulations
.

(a)

There is created the office of special investigator. The office shall be housed within, but independent of, the office of the attorney general.

(b)

The special investigator shall be appointed by the
Wyoming
s
upreme
c
ourt
from a list of three (3) nominees submitted by
the judicial nominating comm
ission.

(c)

A person appointed special investigator shall
:

(
i
)

Have been a practicing attorney for
not less than
four (4) years
;

(ii)

N
ot current
ly
serve
in
federal, stat
e
or local
government
as an elected or appointed official or
as a full or part
‑
time federal, state or local government employee
;

(ii
i
)

Be admitted to practice before

the
state and federal courts in Wyoming
;

(iv)

Be
a
member in good standing of
the Wyoming state bar association; and

(
v
)

Be a resident and elector of the state.

(d)

A special investigator shall serve for a term of four (4) years. A special investigator shall not serve for more than two (2) consecutive terms.

(e)

The special investigator, through the attorney general
'
s office, shall adopt rules and regulations as necessary to effectuate the purposes of this act.

9
‑
20
‑
10
3
.

Duties; action upon a complaint; investigation of state official;
confidentiality;
prosecution of state official.

(a)

Pursuant to the provisions of this article, the special investigator is empowered to investigate credible allegations of official misconduct against:

(
i
)

The governor;

(ii)

The secretary of state;

(iii)

The state treasurer;

(iv)

The
state auditor;

(v)

The superintendent of public instruction;

(vi)

The
attorney general;

(vii)

A member of the judiciary;
and

(viii)

A member of the legislature.

(b)

Upon receipt of a
written
complaint alleging official misconduct
by
an official subject to investigation and prosecution under this
a
ct
, the
special investigator shall determine whether the allegations
in the complaint
constitute
a credible
,
prima facie showing of official miscondu
ct
by
the named official. If the special investigator
determines
that the complaint does not constitute a credible
,
prima facie showing of official
misconduct
,
the special investigator
shall
summarily dismiss the complaint. If the special investigator summarily dismisses the complaint
,
the
compl
ainant and the official
who
was
the
subject of the
complaint
shall be notified
of the
special investigator
'
s determination
in writing.
Except as further provided herein, the complaint and the written determination of the special investigator under this subsection shall be considered confidential documents
which are not subject to disclosure
under the Wyoming Public Records Act.
If, through no affirmative act of the office of the special investigator, a complaint lodged under this section becomes public, the special investigator or the official against whom the complaint was
lodged,
may release the special investigator
'
s written determination.

(c)

If the special investigator determines that the allegations in the complaint constitute a
credible,
prima facie showing of official misconduct, th
e special investigator shall:

(
i
)

P
rovide the named official
not less than fifteen (15)
calendar
days to
respond to the allegations
in the complaint
in writing
;

(ii)

Provide the
complainant
with ten
(
10
) business days to reply to the official
'
s response
to the allegations
;

(
iii
)

Review the response and reply, and any other available evidence
,
and determine whether there is probable cause

to believe the official conducted official misconduct. The special investigator shall provide notice in writing to the official and complainant of his determination under this section.
A determination under this section is not appealable by any person.

(d)

If the special investigator finds
probable cause to believe
that the official committed official misconduct
under subsection (c) of this section
, the special investigator shall initiate an investigation i
nto the complaint
against the official.
When conducting an investigation under this subsection, neither the complainant, the elected official against whom the
complaint is made or any other person shall have t
he right to

testify
, present evidence
or call or examine witnesse
s
unless specifically requested by the special investigator.

(e)

At the conclusion of an investigation initiated under this section, the special invest
igator shall release a report of
the investigation,
which shall include
findings and conclusions. A report under this section shall be a public document,
but

shall
redact
information protected under the Wyoming Public Records Act.
If the special investigator determines that an official committed official misconduct which
constitutes a criminal act, the special investigator may initiate criminal proceedings in a court of competent jurisdiction in this state
and prosecute the case in the name of the state
.

(f)

A complaint, response or reply filed with the special investigator may be supported with such documents, affidavits and oth
er material in a form and as allowed
by the Wyoming Rules of Civil Procedure.

(g)

In conducting an investigation under this section, the special investigator may subpoena witnesses,
compel their attendance, require the production of records and other evidence, administer oaths or affirmations and receive relevant evidence. A person who fails to respond to a subpoena issued under this section is guilty of contempt as provided in W.S. 6
‑
5
‑
306.

9
‑
20
‑
10
4
.

Hiring of deputy special investigators; retaining assistants; requesting assistance from state agencies.

(a)

In conducting an investigation under
W.S. 9
‑
20
‑
103
, the special investigator may

appoint deputy special investigators and
employ
and retain
such legal, investigati
ve or
technical
assistance
as the special investigator deems appropriate.

(b)

The special investigator may request assistance from the office of the attorney general, the div
ision of criminal investigation
or any other state agency
when undertaking duties imposed under this a
ct
. A state agency shall provide assistance requested under this section unless such assistance constitutes a violation of constitutional or statutory duties of the
agency
. If the
special investigator
'
s request for assistance is denied under this section, the special investigator may invoke any authority granted under this a
ct
to obtain the assistance, support or
material necessary to conduct the
investigation.

(c)

All expenditures of the special investigator, including payment of additional employees or
contractors under this section,

shall be
issued
by
the state auditor upon receipt of a voucher signed and attested by the special investigator
.

9
‑
20
‑
10
5
.

Retainer of special investigator;
fees during investigation and prosecution.

(a)

A special investigator appointed under W.S. 9
‑
20
‑
102 shall receive payments
in the form of a retainer fee
as determined by
the attorney general
to act as a special investigator.

(b)

While conducting an investigation or prosecution, or determining whether a complaint contains prima facie evidence that an official conducted official misconduct,
the special investigator shall
be paid
a fee as determined by the

attorney general.

(c)

Retainers under subsection (a) of this section and fees under subsection (b) shall be set at an amount to ensure that competent, qualified individual
s

who will further public trust in that office
will se
rve as the special investigator.

9
‑
20
‑
10
6
.

Conflict of interest; determination; appointment of alternative special investigator
; removal of special investigator
.

(a)

If the special investigator determines that he has a conflict of interest involving any complaint filed with
his
office
,
the special investigator shall notify the Wyoming supreme court of the conflict of interest. The court shall then appoint an alternative special investigator from a group of three (3) nominees submitted by the judicial nominating commi
ssion
. The alternative special investigator shall serve through the conclusion of all proceedings initiated as a result of the complaint.

(b)

An alternative special investigator appointed under this section
shall possess
all of the qualifications and authority of a regularly appointed special investigator.

(c
)

A special investigator appointed under this a
ct
may be removed from office
by
an affirmative
vote

of
four (4)
of

the statewide elected officials
that
the special investigator committed official misconduct or that
removal of the
special investigator is necessary
to restore public trust in the
office. Any dete
rmination under this section is a final agency action
appealable
to the first judicial district court
pursuant to

W.S. 16
‑
3
‑
114(
a)
.

9
‑
20
‑
10
7
.

Office of special investigator account.

(a)

There is created the office of special investigator account. All funds in the account shall be continuously appropriated for the purposes of this section.
Payments from the account shall be issued by the state auditor upon
submittal of a voucher signed
and attested
by the special investigator
.

(b)

If at any time, the account has a balance of less than twenty
‑
five thousan
d dollars ($25,000.00), the governor, or if the governor refuses to act, a majority of the
remaining
statewide elected officials,
shall authorize the transfer of a sufficient amount of funds
from the budget reserve account to the office of special investigator account

to allow the
special investigator
to
continue the duties of
his
office until
funds are deposited in the account pursuant to W.S. 39
‑
14
‑
801(
e)(
i
)
.

Section 2
.

W.S. 39
‑
14
‑
801(
e)(
i
) is amended to read:

39
‑
14
‑
801
.

Severance tax distributions; distribution account created; formula.

(e)

Deposits into the account created by subsection (a) of this section shall be distributed as follows, subject to subsections (b) through (d) of this section:

(
i
)

To the general fund, sixty
‑
two and twenty
‑
six hundredths percent (62.26%)
, except that up to one
‑
half of one percent (0.5%) of this amount shall first be directed to the office of the special investigator
account created by W.S. 9
‑
20
‑
10
7
to provide for a balance of five hundred thousand dollars ($500,000.00) in that account
;

Section 3
.

The office of attorney general shall begin to develop and promulgate rules to effect this act upon
the effective
date of this act. The Wyoming
supreme court
shall not appoint a special investigator prior to October 15, 2015.

Section
4
.

This
act is effective July 1,
2015
.

(END)

1
SF0096