W. Va. Code R. § 153-21-5

Current through Register Vol. XLI, No. 36, September 6, 2024

Section 153-21-5 - Complaint Investigation Process

5.1. Within ten (10) working days of receipt of the complaint the Secretary shall have reviewed the nature of the complaint and shall have determined whether the complaint has met the jurisdictional requirements of subsection 3.2.1.i.

5.1.1. If the Secretary determines that no jurisdiction exists, the Secretary shall dismiss the complaint and notify the complainant of the action.

5.1.2. If the Secretary determines that jurisdiction over the complaint may exist, the Secretary shall provide notice describing the allegations in the complaint, but not the identity of the complainant, to any respondent.

5.1.3. If the Secretary determines that the complaint involves an investigation contemplated by W. Va. Code §§ 3-8-8(0 or 3-1B-4, the Secretary shall notify the requesting party that the complaint has been referred to the State Election Commission.

5.2. Respondent may file any written reply within ten (10) working days from receipt of notice of the complaint.

5.2.1. The respondent's written reply shall be signed and must include a verification or affirmation that the information contained is true and correct.

5.3. Investigations shall be conducted by qualified persons employed by the Secretary under the provisions of W. Va. Code § 3-1A-8.

5.4. Sections subsequent to this section are not applicable if:

5.4.1. Within thirty (30) days of receiving the complaint and after determining that there is jurisdiction, the Secretary determines that:

5.4.1.a. the allegations in the complaint may warrant a criminal investigation, and

5.4.1.b. That any criminal investigation may be impeded or endangered by the administrative complaint procedure contained in this section.

5.4.2 Within three days of finding that the administrative complaint procedure contained in this section does not apply, the Secretary shall notify the complainant in writing that the allegations contained in the complaint may result in a criminal violation and, therefore, the administrative procedure contained in sections 5.5 et seq of this rule is inapplicable.

5.4.3. If the requirements of 5.4.1 and 5.4.2 are not met, then the administrative complaint procedure contained in sections 5.5 et seq pf this rule is applicable.

5.5. Final Determination

5.5.1. Within ninety days of receipt of the complaint form the Secretary shall make a final determination of the complaint in one of the following manners:

5.5.2. Dismissal of the complaint after determination that the alleged violation is not subject to this process per subsection 3.2.1.i.

5.5.3. Dismissal of the complaint after determination that there has been no violation;

5.5.4. Dismissal of the complaint if it alleges a claim for which relief cannot be granted or for which a remedy is not available;

5.5.5. Dismissal of the complaint when a complainant who has requested a hearing fails to appear at the hearing when scheduled;

5.5.6. Completion of investigation and report to local prosecuting attorney concerning possible violations of election laws; or

5.5.7. Completion of investigation and, if mistake or misconduct which does not involve possible violations of election laws is found, inform the responding party of the nature of error committed and take appropriate administrative steps to address any misconduct.

5.5.8. Final determinations and remedies shall not include an award of monetary damages or attorney fees.

5.5.9. A final determination may not invalidate any vote or ballot, or cancel or delay any election. Parties seeking to invalidate or change an election outcome must pursue legal remedies and procedures provided by statute.

5.5.10. A final determination may not be used as evidence, or cited as controlling, in the prosecution or defense of any proceeding arising from the events alleged to have been a violation.

5.6. The complainant may agree to an extension of the ninety (90) day deadline requested by the Secretary.

5.7. The Secretary may consolidate complaints involving the same actions or events or that raise common questions of law or fact.

5.8. Except as otherwise provided by code or this regulation, all details of any investigation, including the existence of any investigation, are confidential and may not be released by the Secretary of State.

W. Va. Code R. § 153-21-5