Patrick Morrisey Attorney General
AGO 080417
No. 080417
West Virginia Attorney General Opinions
State of West Virginia Office of the Attorney General
August 4, 2017
The
Honorable Bill J. Crouch
Secretary
of the West Virginia Department of Health and Human Resources
Office
of the Secretary
One
Davis Square, Suite 100 East
Charleston,
WV 25301
Dear
Secretary Crouch:
You
have asked for an Opinion of the Attorney General about the
circumstances under which a state employee may forfeit his or
her job by failing to cooperate with investigations conducted
by agency employees of complaints made by other employees,
clients, customers, patients, or residents. This Opinion is
being issued pursuant to West Virginia Code § 5-3-1,
which provides that the Attorney General "shall give
written opinions and advise upon questions of law, . ..
whenever required to do so, in writing, by ... any .. . state
officer, board, or commission." To the extent this
Opinion relies on facts, it is based solely upon the factual
assertions set forth in your correspondence with the Office
of the Attorney General.
In your
letter, you explain that union representatives have advised
Department of Health and Human Resources ("DHHR")
employees not to answer any questions posed to them during
internal investigations of employee, client, customer,
patient, or resident complaints. You indicate that this lack
of cooperation makes it more difficult for DHHR to
investigate complaints effectively. You also note that DHHR
is currently revising its Employee Conduct policy to
encompass an employee's obligation to comply with an
internal investigation. In that regard, you have asked a
series of questions relating to the potential application of
West Virginia Code § 29-6-19, which provides that
employees who refuse or fail to cooperate in certain
proceedings relating to the affairs or government of the
State shall forfeit their employment.
While
your letter poses ten distinct questions, those questions
fall into two general categories. First, you inquire
into whether, and in what circumstances, West Virginia Code
§ 29-6-19 mandates that an employee who refuses or fails
to participate in an investigation conducted by agency
employees shall forfeit his or her employment. While you do
not provide details on the precise type of investigation you
have in mind, we assume for purposes of this letter that you
mean an internal and informal disciplinary investigation into
an employee's conduct conducted by DHHR's human
resources personnel and/or supervisory or managerial
employees. For purposes of this letter, we shall refer to
that type of investigation as an "internal
investigation" to distinguish
State
Capitol Building 1, Room E-26, 1900 Kanawha Boulevard East,
Charleston, WV 25305 it from a proceeding that a state
employee might initiate before an external tribunal, such as
the West Virginia Public Employees Grievance Board. We also
will use the term "agency employees" to refer
generally to managers, supervisors, and human resources
personnel who would be the most likely persons to conduct a
first-level informal investigation into a disciplinary
matter. We conclude that W.Va. Code § 29-6-19 does not
apply to internal investigations conducted by agency
employees, and therefore, the statute does not mandate an
employee who refuses or fails to participate in such
investigations to forfeit his or her employment. Because we
have not been asked, we do not address whether DHHR may
possess inherent discretionary authority, independent of the
statute, to create policies that would impose discipline on
employees for conduct relating to an internal investigation.
Second,
your letter inquires into whether there may be potential
applications of West Virginia Code § 29-6-19 that would
interfere with an employee's right to be free from
self-incrimination under the Fifth Amendment to the U.S.
Constitution or its counterpart under Article III, section 5
of the West Virginia Constitution. Because we conclude that
West Virginia Code §29-6-19 does not apply to internal
investigations conducted by agency employees, it is
unnecessary to...
