MORGANTOWN – An attorney representing the Mon-Preston Fraternal Order of Police has sent a letter to Morgantown city officials warning of a legal challenge if City Council passes an ordinance creating a Citizens’ Police Review Board.
The letter, sent February 1 by attorney Teresa Toriseva, says the creation of the board is unnecessary as well as a violation of state law. City Council was scheduled to meet later in the day, and a vote on the ordinance is on the agenda.
“In short, the provisions of West Virginia code that establish a police civil service commission also make clear that such provisions are the exclusive remedy for all matters touched upon by the act,” Toriseva wrote. “ As such, please consider this letter a notice that if City Council passes this ordinance as written, the members of the Mon-Preston FOP, which constitute nearly all members of the Morgantown Police Department, will challenge its enforcement immediately by way of a writ of prohibition in circuit court and if necessary, to the West Virginia Supreme Court of Appeals.”
Toriseva
The letter was addressed to Mayor Ron Dulaney, Deputy Mayor Rachel L. Fetty and City Council members Bill Kawecki, Zackery Cruze, Jennifer Selin, David Harshbarger and Barry Lee Wendell. City attorney Ryan Simonton also received the letter.
In the letter, Toriseva says the Morgantown Police Department already operates according to the highest standards.
She notes that every use of force is documented and reviewed, choke holds are banned, all officers complete annual training, all officers are required to wear body cameras and every police vehicle has in-car cameras.
“The city of Morgantown has a Human Rights Commission that receives any complaints that could be the result of any form of bias,” Toriseva writes. “But the main reason the proposed ordinance is unnecessary is because Morgantown already has a Civil Service Commission as required by state law.
“Any West Virginia city of a certain number of residents with a paid police department must have a civil service commission. … The Commission has broad and sweeping authority to control the hiring, firing, investigation, and discipline of paid members of the police department.”
Toriseva says the proposed ordinance establishing a Citizens’ Police Review Board violates the provisions of the police officers’ civil service act.
“No law may be passed or alternative board created that conflicts with the powers granted to the civil service commission,” she wrote. “Here, for example, the extensive investigative, subpoena and general court powers granted to this board do exactly what is prohibited.
“Additionally, the proposed ordinance violates the rights of police officers by creating burdensome dual systems of investigations and authorities which may govern their actions.”
She also criticizes the argument that the newly created board would be legal because it would have no authority to discipline or terminate officers and could only make discipline recommendations to the police chief.
“Such an argument resonates hollow as the mere existence of such a Board empowered with investigative and subpoena powers is in direct conflict with (state code),” Toriseva writes. “Further, if this Board has no real power, what is the purpose of its existence?
“It is clear the proposed ordinance is illegal upon its inception because it attempts to replace and invade upon the authority granted to the civil service commission by the West Virginia legislature. The proposed ordinance would give its board members power equal to the members of the civil service commission, and in this way, violate state law.”
Last fall, West Virginia Attorney General Patrick Morrisey’s office warned Morgantown officials the ordinance would violate state law. That letter even suggested cities may lack the power to create citizen review boards at all.
“That is a question that will likely only be resolved by our State Supreme Court of Appeals,” Toriseva wrote. “But even if cities can create these boards (admittedly this question is not clear), they certainly cannot violate civil service provisions in doing so.”
Toriseva declined further comment.
After Morrisey sent his letter to city officials in September, Mayor Dulaney issued a statement saying the purpose of the board was to be a voice for those who need it most, not to tell police what to do.
“The intent is not to limit the authority of a Civil Service Commission, circumvent state law or give power to an independent board to directly discipline officers or instruct who is and is not hired within our police force,” Dulaney wrote. “The intent is to lead the way in providing opportunities for our family members, friends and neighbors who are most affected by racial discrimination inherent in our rational justice system to be more fully heard.”