State v. Neary

• Citation: 365 S.E.2d 395,179 W.Va. 115
• Decision Date: 21 December 1987
• Docket Number: No. 17303,17303
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Frank NEARY.

Page 395

365 S.E.2d 395

179 W.Va. 115

STATE of West Virginia v. Frank NEARY.

No. 17303.

Supreme Court of Appeals of

West Virginia.

Dec. 21, 1987.

Rehearing Denied Feb. 3, 1988.

Syllabus by the Court

1. The public policy of this State, as evidenced by W.Va.Code, 61-10-15, as amended, is not directed against actual fraud or collusion, but is for the purpose of preventing those acts and eliminating any opportunity therefor. The purpose of the statute is to protect public funds, and give official recognition to the fact that a person cannot properly represent the public in transacting business with himself.

2. Upon becoming a member of a county commission, a person who is pecuniarily interested in the proceeds of any contract or service with a public service district violates the conflict of interest statute, W.Va.Code, 61-10-15, because such person by virtue of the position has some voice, influence or control over the continuation of the contract.

3. "An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based." Syllabus Point 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983).

4. "Instructions in a criminal case which are confusing, misleading or incorrectly state the law should not be given." Syllabus Point 3, State v. Bolling, 162 W.Va. 103, 246 S.E.2d 631 (1978).

5. The acceptance by a county commissioner of a card containing a telephone access code does not constitute a "pecuniary benefit" as defined in W.Va.Code, 61-5A-2(8), where the purpose of the card is to facilitate a commissioner's ability to perform the county commission's business.

J. Bradley Russell, Asst. Atty. Gen., for plaintiff.

Rudolph L. diTrapano, Rebecca A. Baitty, Charleston, for defendant.

MILLER, Justice:

Frank Neary, a member of the Putnam County Commission, was convicted of being or becoming pecuniarily interested in a contract over which he may have had some voice or influence, and of accepting a pecuniary benefit, a telephone access code card, for having voted on a county telephone contract. He was ordered to pay fines totaling $5,500 for the two misdemeanor convictions and was removed from office as required by statute. His motion for a judgment of acquittal or, in the alternative, for a new trial was denied, and upon appeal he assigns as error the sufficiency of the evidence as to both offenses, the sufficiency of the indictments, and the rulings of the trial court on a number of instructions.

I.

The defendant assumed office as a county commissioner on the Putnam County Commission in January, 1983, following the 1982 general election. Since 1972, he had been performing various maintenance services for the Kanawha Orchard Public Service District (PSD) located in Putnam County, including marking and repairing water lines and reading water meters. He was paid for these services by the PSD, which is a governmental entity authorized by the Putnam County Commission and regulated as a public utility by the West Virginia Public Service Commission. After assuming office in 1983, he continued to perform maintenance services for the PSD.

It was stipulated that in the year before his indictment, he made approximately $30,000 a year from this contract work. On September 4, 1985, he was indicted by a grand jury in Putnam County for having a pecuniary interest in a contract in violation of W.Va.Code, 61-10-15 (1977). ¹

The defendant contends that the evidence is, as a matter of law, insufficient to support a conviction under the statute because the State did not prove beyond a reasonable doubt that he had "any voice, influence, or control as a county commissioner over the ... PSD's contract with himself." The defendant argues there must be a connection between the official's action as a public official and his pecuniary interest in the proceeds of a contract or service. Merely having some possible voice, influence or control is not enough.

The State argues the law does not require the prosecution to show an actual exercise of influence, and that a violation of the conflict of interest statute can be proven by showing the public official became or remained interested in the proceeds of a contract or service in which, by virtue of his office, he may have any voice, influence or control.

The State points to the fact that the defendant nominated and voted for the PSD member who replaced his wife on the PSD. The defendant's wife had resigned when the defendant assumed his office on the county commission. The State also points to evidence which reveals that the defendant and another member of the Commission, over the objection of the remaining member, voted to remove all the members of another PSD, the Putnam Union Public Service District. The State argues that this was done under the Commission's statutory power to remove members of the PSD and would obviously indicate to the PSD commissioners the control exercised over them. ²

In this same vein, the State argues that a county commissioner has the power to influence contractual transactions of a PSD by virtue of the broad powers county commissions have over public service districts under the provisions of W.Va.Code, 16-13A-1, et seq. This authority includes the power to create, enlarge or reduce the area of a public service district, ³ and to appoint ⁴ and remove ⁵ PSD members.

We believe the State's position is consistent with the intent of the legislature as reflected by the broad language of the statute and our precedents interpreting it. Although our decisions applying the statute have been rendered in the context of a removal proceeding, we believe they are nonetheless applicable in a criminal proceeding to determine the legislative intent and purpose of the statute. There is little, if any, leeway present to construe the statute since, as stated in Alexander v. Ritchie, 132 W.Va. 865, 871, 53 S.E.2d 735, 739 (1949), "Code, 61-10-15, implements the public policy of this State, and its provisions are clear and unambiguous. Although harsh, its objects and purposes are salutary."

The misdemeanor offense created by W.Va.Code, 61-10-15, does not require a showing of criminal intent. Alexander v. Ritchie, 132 W.Va. at 872, 53 S.E.2d at 740; Hunt v. Allen, 131 W.Va. 627, 635, 53 S.E.2d 509, 514 (1948). See also, Arbogast v. Shields, 123 W.Va. 167, 14 S.E.2d 4 (1941). Commission of the prohibited act, here merely being pecuniarily interested in the proceeds of a contract over which one may have any voice, influence or control, constitutes a violation of the statute.

This Court has consistently recognized the broad purpose of the conflict of interest statute as is reflected in the following language of Jordan v. McCourt, 135 W.Va. 79, 86, 62 S.E.2d 555, 560 (1950):

"The public policy of this State, as evidenced by Code, 61-10-15, as amended, is not directed against actual fraud or collusion, but is for the purpose of preventing those acts and eliminating any opportunity therefor. As this Court said in Alexander v. Ritchie, [132 W.Va. at 871, 53 S.E.2d at 739 (1949) ] ...: 'The purpose of the statute is to protect public funds, and give official recognition to the fact that a person cannot properly represent the public in transacting business with himself. To permit such conduct would open the door to fraud. The statute is designed to remove from public officers any and all temptation for personal advantage.' "

See also, 63A Am.Jur.2d, Public Officers and Employees § 338 (1984).

The decision in Fisher v. Jackson, 107 W.Va. 138, 147 S.E. 541 (1929), also typifies this Court's decisions implementing the public policy purpose of the statute. There, a member of a county board of education had performed carpentry services in connection with a construction project that had begun before his induction into office. His employment was by the contractor, a Mr. Herring, who had contracted with the other two members of the board to supervise the project. Payment for the work was made by warrant to Herring. The defendant voted to authorize the payment and eventually presented it for payment and received some $47.00 for his services. The defendant board member's argument was that he worked for Herring, not the board of education, and was thus not subject to removal. The Court rejected this theory:

"Even if this were true, the statute covers such a situation. A member of the board will not be permitted to participate in the letting of a contract to one, and then derive benefit indirectly therefrom by working for the party obtaining the contract. The plain mandate of the statute denies him the right to receive a benefit by indirection where he may not profit directly.

"The purpose of the statute is to safeguard the public purse. It extends to all contracts or service in which a member 'may have any voice or control'. To permit a member of a district school board, by reason of non-action on his part in regard to a particular matter, to receive pecuniary benefit therefrom, either directly or indirectly, would defeat the very purpose of the statute, for it would permit connivance on the part of the several members and the awarding of contracts so as to inure indirectly to their benefit." 107 W.Va. at 140, 147 S.E. at 542.

We believe the State proved a violation of the statute. Although we acknowledge that any ambiguity in a criminal statute must be strictly construed against the State, ⁶ the language of the statute brings the defendant's conduct clearly within its ambit. The statute is violated if one "be or become" pecuniarily interested in the proceeds of any contract or service over which as a member of a county commission he may have any "voice, influence or control." His contract with the PSD undoubtedly was a pecuniary interest. The only open question...