BP BHEAD INT H

AN ACT Relating to the appointment of independent counsel; and adding a new chapter to Title 10 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. There is created a supervisory committee within the court of appeals, consisting of three judges, for the purpose of selecting an independent counsel for the investigation and prosecution of persons specified in section 2 of this act. The chief justice of the Washington supreme court shall designate and assign the three judges, one from each division of the court of appeals, to the committee for two-year terms. Any vacancy in the supervisory committee shall be filled only for the remainder of the two-year term in which the vacancy occurs.

NEW SECTION. Sec. 2. (1) The attorney general shall conduct a preliminary investigation in accordance with this chapter whenever the attorney general receives information sufficient to constitute grounds to investigate whether a person specified in subsection (2) of this section might have violated a criminal law other than a violation classified as a misdemeanor or gross misdemeanor.

(2) An elected official of the executive branch, and a director or deputy director of a state agency, are subject to preliminary investigation by the attorney general and appointment of an independent counsel by the supervisory committee of the court of appeals for the investigation and prosecution of violations of criminal law.

(3)(a) In determining whether grounds to investigate exist, the attorney general shall only consider the specificity of the information received and the credibility of the source of the information.

(b) The attorney general shall determine whether grounds to investigate exist not later than thirty days after the information is received. If within that thirty-day period the attorney general determines that the information is not specific or not from a credible source, the attorney general shall close the matter. If within that thirty-day period the attorney general determines that the information is specific and from a credible source, the attorney general shall commence a preliminary investigation with respect to that information. If the attorney general is unable to determine within that thirty-day period whether the information is specific and from a credible source, the attorney general shall commence a preliminary investigation with respect to that information at the end of the thirty-day period.

(c) If information received under this chapter involves the attorney general, the next most senior official in the office of the attorney general who is not also recused shall perform the duties assigned to the attorney general under this chapter. If information received under this chapter involves a person with whom the attorney general has a personal or financial relationship, the attorney general shall recuse himself or herself by designating the next most senior official in the office of the attorney general who is not also recused to perform the duties assigned to the attorney general under this chapter. A determination to recuse must be in writing, must identify the facts considered by the attorney general, and must set forth the reasons for the recusal. The attorney general shall file this determination with any notification or application submitted to the supervisory committee under this chapter with respect to the information.

NEW SECTION. Sec. 3. (1) A preliminary investigation under this chapter must be of such matters as the attorney general considers appropriate in order to make a determination on whether further investigation is warranted, with respect to each potential violation, or allegation of a violation, of criminal law. The attorney general shall make the determination not later than ninety days after the preliminary investigation is commenced, except that, for a preliminary investigation commenced after a legislative request under section 4 of this act, the attorney general shall make the determination not later than ninety days after the request is received. The attorney general shall promptly notify the supervisory committee of the commencement of the preliminary investigation and the date of the commencement. The attorney general may apply to the supervisory committee for a single extension for a period of not more than sixty days. The supervisory committee may grant the extension upon a showing of good cause.

(2)(a) In conducting a preliminary investigation under this chapter, the attorney general may not convene grand juries, plea bargain, grant immunity, or issue subpoenas.

(b) The attorney general may not base a determination that information with respect to a violation of criminal law by a person is not specific and from a credible source upon a determination that the person lacked the state of mind required for the criminal law violation. The attorney general may not base a determination that there are no reasonable grounds to believe that further investigation is warranted upon a determination that the person lacked the state of mind required for the violation of criminal law involved, unless there is clear and convincing evidence that the person lacked the required state of mind.

NEW SECTION. Sec. 4. (1)(a) The attorney general shall apply to the supervisory committee for the appointment of an independent counsel if:

(i) The attorney general determines after completion of the preliminary investigation that there are reasonable grounds to believe that further investigation is warranted; or

(ii) The ninety-day time period for conducting the preliminary investigation and any time extension granted have elapsed and the attorney general has not filed a notification with the supervisory committee.

(b) In determining whether reasonable grounds exist to warrant further investigation, the attorney general shall comply with the written or other established policies of the office of the attorney general with respect to the conduct of criminal investigations.

(2) If the attorney general determines after the completion of a preliminary investigation that there are no reasonable grounds to believe that further investigation is warranted, the attorney general shall promptly notify the supervisory committee of this determination, and the supervisory committee may not appoint an independent counsel with respect to the matters involved. The notification must contain a summary of the information received and a summary of the results of the preliminary investigation.

(3) Upon receipt of a notification from the attorney general that there are no reasonable grounds to believe that further investigation is warranted, the supervisory committee may not overrule this determination but may return the matter to the attorney general for further explanation of the reasons for the determination.

(4) If, after submitting a notification to the supervisory committee that no further investigation is warranted, the attorney general receives additional information sufficient to constitute grounds to investigate, the attorney general shall conduct an additional preliminary investigation the attorney general considers appropriate for a period of not more than ninety days following receipt of the additional information.

(5) An application for the appointment of an independent counsel under this chapter must contain sufficient information to assist the supervisory committee in selecting an independent counsel and in defining that independent counsel's prosecutorial jurisdiction so that the independent counsel has adequate authority to fully investigate and prosecute the subject matter of the investigation and all related matters.

(6) Except as otherwise provided in this chapter or as is deemed necessary for law enforcement purposes, an officer or employee of the office of the attorney general or an office of an independent counsel may not, without leave of the supervisory committee, disclose to an individual outside the office of the attorney general or office of the independent counsel a notification, application, or other document, materials, or memorandum supplied to the supervisory committee under this chapter. This chapter may not be construed as authorizing the withholding of information from the legislature.

(7) The attorney general's determination to apply to the supervisory committee for the appointment of an independent counsel is not reviewable by a court.

(8)(a) The committee on law and justice of either the house of representatives or the senate, by a majority vote of the committee's members and with the concurrence of the house executive rules committee or the senate facilities and operations committee, respectively, may request in writing that the attorney general apply for the appointment of an independent counsel.

(b) Not later than thirty days after receipt of a request under (a) of this subsection, the attorney general shall submit to the legislative committee making the request, or to the committee on which the persons making the request serve, a report on whether the attorney general has begun or will begin a preliminary investigation. The report must set forth the reasons for the attorney general's decision regarding the preliminary investigation as it relates to each of the matters with respect to which the congressional request is made. If the attorney general determines that a preliminary investigation is warranted, the report must include the date on which the preliminary investigation began or will begin.

(c) At the same time as a notification, application, or other document, material, or memorandum is supplied to the supervisory committee for a preliminary investigation of any matter with respect to which a legislative request is made under (a) of this subsection, the notification, application, or other document, material, or memorandum must be supplied to the legislative committee making the request, or to the legislative committee on which the persons making the request serve. If an application for the appointment of an independent counsel is not made to the supervisory committee after completion of the preliminary investigation, the attorney general shall submit a report to the legislative committee stating the reasons why the application was not made, addressing each matter with respect to which the legislative request was made.

(d) A person may not reveal a report, notification, application, or other document, material, or memorandum supplied to a legislative committee under this section to a third party, except that the legislative committee may, either on its own initiative or upon the request of the attorney general, make public a portion or portions of a report, notification, application, document, material, or memorandum that will not in the legislative committee's judgment prejudice the rights of any individual.

NEW SECTION. Sec. 5. (1)(a) Upon receipt of an application for the appointment of an independent counsel, the supervisory committee shall appoint an appropriate independent counsel and shall define that independent counsel's prosecutorial jurisdiction.

(b) The supervisory committee shall appoint as independent counsel an individual who has appropriate experience and who will conduct the investigation and any resulting prosection in a prompt, responsible, and cost-effective manner. The supervisory committee shall seek to appoint as independent counsel an individual who will serve to the extent necessary to complete the investigation and any resulting prosecution without undue delay. The supervisory committee may not appoint as an independent counsel any person who holds an office of profit or trust under the state of Washington.

(c) In defining the independent counsel's prosecutorial jurisdiction, the supervisory committee shall assure that the independent counsel has adequate authority to fully investigate and prosecute the subject matter and all related matters with respect to which the attorney general has requested the appointment of an independent counsel. The jurisdiction of the independent counsel must also include the authority to investigate and prosecute crimes, other than misdemeanors and gross misdemeanors, that might arise out of the investigation or prosecution of the matter being investigated, including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.

(d) An independent counsel's identity and prosecutorial jurisdiction may not be made public except upon the request of the attorney general or upon a determination by the supervisory committee that disclosure would be in the best interests of justice. The identity and prosecutorial jurisdiction of the independent counsel must be made public when an indictment is returned or any criminal information is filed as a result of the independent counsel's investigation.

(2) If the independent counsel discovers or receives information about a possible violation of criminal law by a person specified in section 2 of this act that is not covered by the independent counsel's prosecutorial jurisdiction, the independent counsel may submit the information to the attorney general. The attorney general shall conduct a preliminary investigation of the information not to exceed thirty days from the date the information is received. If the attorney general determines that there are no reasonable grounds to believe that further investigation is warranted, the attorney general shall promptly notify the supervisory committee of this finding and the supervisory committee may not expand the jurisdiction of the independent counsel or appoint another independent counsel with respect to the new matter. If the attorney general determines that there are reasonable grounds to believe that further investigation is warranted, or if the thirty-day period elapses without a notification to the supervisory committee that no further investigation is warranted, the supervisory committee shall expand the jurisdiction of the independent counsel to include the new matters or shall appoint another independent counsel to investigate the new matter.

NEW SECTION. Sec. 6. (1) If a vacancy in the office of independent counsel arises by reason of the resignation, removal, or death of an independent counsel, the supervisory committee shall appoint a new independent counsel to complete the work of the independent counsel whose resignation, removal, or death caused the vacancy. For a vacancy arising by reason of the removal of an independent counsel, the supervisory committee may appoint an acting independent counsel to serve until any judicial review of the removal is completed.

(2) Upon the request of an individual who is the subject of an investigation conducted by an independent counsel under this chapter, the supervisory committee may, if no indictment is brought against the individual as a result of that investigation, award reimbursement for those reasonable attorneys' fees incurred by that individual during the investigation that would not have been incurred but for this chapter.

NEW SECTION. Sec. 7. (1) An independent counsel appointed under this chapter has full power and independent authority to exercise all investigative and prosecutorial functions and powers of the office of the attorney general. The investigative and prosecutorial functions and powers of the independent counsel include:

(a) Conducting proceedings before grand juries and other investigation;

(b) Participating in court proceedings and engaging in litigation, including civil and criminal matters, that the independent counsel considers necessary;

(c) Appealing a decision of a court in a case or proceeding in which the independent counsel participates in an official capacity;

(d) Reviewing all documentary evidence available from any source;

(e) Determining whether to contest the assertion of a testimonial privilege;

(f) Initiating and conducting prosecutions in a court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of a case; and

(g) Consulting a prosecuting attorney for the county in which a violation of law with respect to which the independent counsel is appointed was alleged to have occurred.

(2) An independent counsel may request assistance of the office of the attorney general in carrying out the functions of the independent counsel. The assistance may include access to records, files, or other materials relevant to matters within the independent counsel's prosecutorial jurisdiction, and the use of resources and personnel necessary to perform the independent counsel's duties.

(3)(a) An independent counsel appointed under this chapter must receive compensation pro rated based on the rate for a senior deputy attorney general. For the purposes of carrying out the duties of an office of independent counsel, the independent counsel may appoint, fix the compensation, and assign the duties of any employees the independent counsel considers necessary. The employees of the office of independent counsel must be compensated at levels not to exceed those paid for comparable positions in the office of the attorney general.

(b) The office of the attorney general shall pay all costs relating to the establishment and operation of an office of independent counsel. The attorney general shall submit to the legislature, not later than thirty days after the end of each fiscal year, a report on amounts paid during that year for expenses of investigations and prosecutions by independent counsels.

(4) An independent counsel shall comply with the written or other established policies of the office of the attorney general respecting enforcement of the criminal laws, except to the extent that to do so would be inconsistent with the purposes of this chapter. The independent counsel may dismiss matters within the independent counsel's prosecutorial jurisdiction without conducting an investigation or at a subsequent time before prosecution if to do so would be consistent with the written or other established policies of the office of the attorney general with respect to the enforcement of criminal laws.

(5) If a matter is in the prosecutorial jurisdiction of an independent counsel, the office of the attorney general shall suspend all investigations and proceedings regarding the matter unless the independent counsel agrees in writing that the investigation or proceedings may be continued by the office of the attorney general.

(6)(a) An independent counsel shall file with the supervisory committee every six months after the independent counsel's appointment a written report that identifies and explains major expenses and summarizes all other expenses incurred by the office of independent counsel during that six-month period. Before the termination of the office of independent counsel, the independent counsel shall file a final report with the supervisory committee, setting forth fully and completely a description of the work of the independent counsel, including the disposition of all cases brought.

(b) The supervisory committee may release to the legislature, the public, or an appropriate person, portions of a report made under this subsection that the supervisory committee considers appropriate. The supervisory committee shall make such orders as are appropriate to protect the rights of an individual named in the report and to prevent undue interference with pending prosecution. The supervisory committee may make a portion of a final report available to an individual named in the report for the purposes of receiving any comments or factual information the individual may submit.

NEW SECTION. Sec. 8. (1) During the period in which an independent counsel is serving under this chapter, the independent counsel, and a person associated with a firm with which the independent counsel is associated, may not represent in any matter a person involved in an investigation or prosecution under this chapter.

(2) An independent counsel and a person appointed by that independent counsel may not, for a period of three years following the termination of the independent counsel's or appointed person's service, represent a person in a matter if that individual was the subject of an investigation or prosecution under this chapter conducted by that independent counsel. An independent counsel and a person appointed by that independent counsel may not, for a period of one year following the termination of the independent counsel's or appointed person's service, represent a person in a matter involving an investigation or prosecution under this chapter.

(3) A person associated with a firm with which an independent counsel is associated or becomes associated may not, for one year after the termination of the service of the independent counsel, represent a person in a matter involving an investigation or prosecution under this chapter.

(4) For the purposes of this section, "firm" means an organization providing legal services, whether organized as a partnership, corporation, professional limited liability company, or limited liability partnership.

NEW SECTION. Sec. 9. (1) The appropriate committees of the legislature have oversight jurisdiction with respect to the official conduct of an independent counsel appointed under this chapter, and the independent counsel shall cooperate with the exercise of the oversight jurisdiction. An independent counsel appointed under this chapter shall submit to the legislature annually a report on the activities of the independent counsel, including a description of the progress of any investigation or prosecution conducted by the independent counsel. The independent counsel may omit from the report a matter that in the judgment of the independent counsel should be kept confidential, but shall provide information adequate to justify the expenditures of the office of the independent counsel.

(2) Within fifteen days after receiving an inquiry about a particular case under this chapter from a committee of the legislature with jurisdiction over this chapter, the attorney general shall provide the following information to that committee with respect to the case:

(a) When the information about the case was received;

(b) Whether a preliminary investigation is being conducted and, if so, the date it began; and

(c) Whether an application for the appointment of an independent counsel or a notification that further investigation is not warranted has been filed with the supervisory committee and, if so, the date of the filing.

(3) An independent counsel shall advise the house of representatives of substantial and credible information that the independent counsel receives that might constitute grounds for an impeachment.

NEW SECTION. Sec. 10. (1)(a) An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the attorney general and only for good cause, physical or mental disability, or other condition that substantially impairs the performance of the independent counsel's duties.

(b) If an independent counsel is removed from office, the attorney general shall promptly submit to the supervisory committee and the committees on law and justice of the house of representatives and the senate a report specifying the facts found and the ultimate grounds for the removal. The legislative committees shall make this report available to the public, except that a legislative committee may, if necessary to protect the rights of an individual named in the report or to prevent undue interference with a pending prosecution, postpone or refrain from publishing any of the report. The supervisory committee may release any of the report in accordance with section 7(6)(b) of this act.

(c) An independent counsel removed from office may obtain judicial review of the removal in a civil action commenced in the Thurston county district court. A member of the supervisory committee may not hear or determine the suit or an appeal of the suit. The independent counsel may be reinstated or granted other appropriate relief by order of the court.

(2)(a) An office of independent counsel terminates when:

(i) The independent counsel notifies the attorney general that the investigation of all matters within the prosecutorial jurisdiction of the independent counsel and any resulting prosecutions have been completed or so substantially completed that it would be appropriate for the office of the attorney general to complete the investigation or prosecution; and

(ii) The independent counsel files a final report with the supervisory committee in compliance with section 7(6)(b) of this act.

(b) The supervisory committee, either on its own motion or upon the request of the attorney general, may terminate an office of independent counsel at any time, on the grounds that the investigation of all matters within the prosecutorial jurisdiction of the independent counsel and any resulting prosecutions have been completed or so substantially completed that it would be appropriate for the office of the attorney general to complete the investigations and prosecutions. At the time of termination, the independent counsel shall file the final report required by section 7(6)(b) of this act. If the attorney general has not made a request under this subsection, the supervisory committee shall determine on its own motion whether termination is appropriate no later than two years after the appointment of the independent counsel, at the end of the succeeding two-year period, and thereafter at the end of each succeeding one-year period.

(3) Upon the termination of the office of an independent counsel, the independent counsel shall transfer to the division of archives and records management all records that have been created or received by that office. A record transferred to the division of archives and records management must be maintained, used, and disposed of in accordance with chapter 40.14 RCW.

NEW SECTION. Sec. 11. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 12. Sections 1 through 11 of this act constitute a new chapter in Title 10 RCW.