WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary.
A BILL to amend and reenact §6B-2-5
of the Code of West Virginia, 1931, as amended, relating to prohibited
interests in public contracts and appropriations of moneys under the Ethics
Act; prohibiting elected or appointed mayors of a municipality or members of a
municipality’s governing body or council from being employed by the
municipality in which they serve; and requiring public officials, except
members of the Legislature, to recuse themselves from voting on the
appropriation of moneys or award of contract to a nonprofit corporation if the
public official or an immediate family member is employed by or an officer or
board member of the nonprofit, whether compensated or not.
Be it enacted by the
Legislature of West Virginia:
That §6B-2-5 of the
Code of West Virginia, 1931, as amended, be amended and reenacted to read as
follows:
ARTICLE 2. WEST VIRGINIA
ETHICS COMMISSION; POWERS AND DUTIES; DISCLOSURE OF FINANCIAL INTEREST BY
PUBLIC OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES; CODE OF
CONDUCT FOR ADMINISTRATIVE LAW JUDGES.
§6B-2-5. Ethical
standards for elected and appointed officials and public employees.
(a) Persons subject to
section. -- The provisions of this section apply to all elected and
appointed public officials and public employees, whether full or part time, in
state, county, municipal governments and their respective boards, agencies,
departments and commissions and in any other regional or local governmental
agency, including county school boards.
(b) Use of public office
for private gain. -- (1) A public official or public employee may not
knowingly and intentionally use his or her office or the prestige of his or her
office for his or her own private gain or that of another person. Incidental
use of equipment or resources available to a public official or public employee
by virtue of his or her position for personal or business purposes resulting in
de minimis private gain does not
constitute use of public office for private gain under this subsection. The
performance of usual and customary duties associated with the office or
position or the advancement of public policy goals or constituent services,
without compensation, does not constitute the use of prestige of office for
private gain.
(2) Notwithstanding the
general prohibition against use of office for private gain, public officials
and public employees may use bonus points acquired through participation in
frequent traveler programs while traveling on official government business: Provided,
That the official's or employee's participation in such program, or acquisition of
such points, does not result in additional costs to the government.
(3) The Legislature, in
enacting this subsection, recognizes that there may be certain public officials
or public employees who bring to their respective offices or employment their
own unique personal prestige which is based upon their intelligence, education,
experience, skills and abilities, or other personal gifts or traits. In many
cases, these persons bring a personal prestige to their office or employment
which inures to the benefit of the state and its citizens. Those persons may,
in fact, be sought by the state to serve in their office or employment because,
through their unusual gifts or traits, they bring stature and recognition to
their office or employment and to the state itself. While the office or
employment held or to be held by those persons may have its own inherent
prestige, it would be unfair to those individuals and against the best
interests of the citizens of this state to deny those persons the right to hold
public office or to be publicly employed on the grounds that they would, in
addition to the emoluments of their office or employment, be in a position to
benefit financially from the personal prestige which otherwise inheres to them.
Accordingly, the commission is directed, by legislative rule, to establish
categories of public officials and public employees, identifying them generally
by the office or employment held, and offering persons who fit within those
categories the opportunity to apply for an exemption from the application of
the provisions of this subsection. Exemptions may be granted by the commission,
on a case-by-case basis, when it is shown that: (A) The public office held or
the public employment engaged in is not such that it would ordinarily be
available or offered to a substantial number of the citizens of this state; (B)
the office held or the employment engaged in is such that it normally or
specifically requires a person who possesses personal prestige; and (C) the
person's employment contract or letter of appointment provides or anticipates
that the person will gain financially from activities which are not a part of
his or her office or employment.
(c) Gifts. -- (1) A
public official or public employee may not solicit any gift unless the
solicitation is for a charitable purpose with no resulting direct pecuniary
benefit conferred upon the official or employee or his or her immediate family:
Provided, That no public official or public employee may solicit for a
charitable purpose any gift from any person who is also an official or employee
of the state and whose position is subordinate to the soliciting official or
employee: Provided, however, That nothing herein shall prohibit a candidate
for public office from soliciting a lawful political contribution. No official
or employee may knowingly accept any gift, directly or indirectly, from a
lobbyist or from any person whom the official or employee knows or has reason
to know:
(A) Is doing or seeking to
do business of any kind with his or her agency;
(B) Is engaged in
activities which are regulated or controlled by his or her agency; or
(C) Has financial interests
which may be substantially and materially affected, in a manner distinguishable
from the public generally, by the performance or nonperformance of his or her
official duties.
(2) Notwithstanding the
provisions of subdivision (1) of this subsection, a person who is a public
official or public employee may accept a gift described in this subdivision,
and there shall be a presumption that the receipt of such gift does not impair
the impartiality and independent judgment of the person. This presumption may
be rebutted only by direct objective evidence that the gift did impair the impartiality
and independent judgment of the person or that the person knew or had reason to
know that the gift was offered with the intent to impair his or her
impartiality and independent judgment. The provisions of subdivision (1) of
this subsection do not apply to:
(A) Meals and beverages;
(B) Ceremonial gifts or
awards which have insignificant monetary value;
(C) Unsolicited gifts of
nominal value or trivial items of informational value;
(D) Reasonable expenses for
food, travel and lodging of the official or employee for a meeting at which the
official or employee participates in a panel or has a speaking engagement;
(E) Gifts of tickets or
free admission extended to a public official or public employee to attend
charitable, cultural or political events, if the purpose of such gift or
admission is a courtesy or ceremony customarily extended to the office;
(F) Gifts that are purely
private and personal in nature; or
(G) Gifts from relatives by
blood or marriage, or a member of the same household.
(3) The commission shall,
through legislative rule promulgated pursuant to chapter twenty-nine-a of this
code, establish guidelines for the acceptance of a reasonable honorarium by
public officials and elected officials. The rule promulgated shall be
consistent with this section. Any elected public official may accept an
honorarium only when:
(A) That official is a
part-time elected public official;
(B) The fee is not related
to the official's public position or duties;
(C) The fee is for services
provided by the public official that are related to the public official's
regular, nonpublic trade, profession, occupation, hobby or avocation; and
(D) The honorarium is not
provided in exchange for any promise or action on the part of the public
official.
(4) Nothing in this section
shall be construed so as to prohibit the giving of a lawful political
contribution as defined by law.
(5) The Governor or his or
her designee may, in the name of the State of West Virginia, accept and
receive gifts from any public or private source. Any gift so obtained shall
become the property of the state and shall, within thirty days of the receipt
thereof, be registered with the commission and the Division of Culture and
History.
(6) Upon prior approval of
the Joint Committee on Government and Finance, any member of the Legislature
may solicit donations for a regional or national legislative organization
conference or other legislative organization function to be held in the state
for the purpose of deferring costs to the state for hosting of the conference
or function. Legislative organizations are bipartisan regional or national
organizations in which the Joint Committee on Government and Finance authorizes
payment of dues or other membership fees for the Legislature's participation
and which assist this and other State Legislatures and their staff through any
of the following:
(A) Advancing the
effectiveness, independence and integrity of Legislatures in the states of the
United States;
(B) Fostering interstate
cooperation and facilitating information exchange among State Legislatures;
(C) Representing the states
and their Legislatures in the American federal system of government;
(D) Improving the
operations and management of State Legislatures and the effectiveness of
legislators and legislative staff, and to encourage the practice of high
standards of conduct by legislators and legislative staff;
(E) Promoting cooperation
between State Legislatures in the United States and Legislatures in other
countries.
The solicitations may only
be made in writing. The legislative organization may act as fiscal agent for
the conference and receive all donations. In the alternative, a bona fide
banking institution may act as the fiscal agent. The official letterhead of the
Legislature may not be used by the legislative member in conjunction with the
fund raising or solicitation effort. The legislative organization for which
solicitations are being made shall file with the Joint Committee on Government
and Finance and with the Secretary of State for publication in the State
Register as provided in article two of chapter twenty-nine-a of the code,
copies of letters, brochures and other solicitation documents, along with a
complete list of the names and last known addresses of all donors and the
amount of donations received. Any solicitation by a legislative member shall
contain the following disclaimer:
"This solicitation is
endorsed by [name of member]. This endorsement does not imply support of the
soliciting organization, nor of the sponsors who may respond to the
solicitation. A copy of all solicitations are on file with the West Virginia
Legislature's Joint Committee on Government and Finance, and with the Secretary
of State and are available for public review."
(7) Upon written notice to
the commission, any member of the board of Public Works may solicit donations
for a regional or national organization conference or other function related to
the office of the member to be held in the state for the purpose of deferring
costs to the state for hosting of the conference or function. The solicitations
may only be made in writing. The organization may act as fiscal agent for the
conference and receive all donations. In the alternative, a bona fide banking
institution may act as the fiscal agent. The official letterhead of the office
of the board of Public Works member may not be used in conjunction with the
fund raising or solicitation effort. The organization for which solicitations
are being made shall file with the Joint Committee on Government and Finance, with
the Secretary of State for publication in the State Register as provided in
article two of chapter twenty-nine-a of the code and with the commission,
copies of letters, brochures and other solicitation documents, along with a
complete list of the names and last known addresses of all donors and the
amount of donations received. Any solicitation by a member of the board of
Public Works shall contain the following disclaimer: "This solicitation is
endorsed by (name of member of Board of Public Works.) This endorsement does
not imply support of the soliciting organization, nor of the sponsors who may
respond to the solicitation. Copies of all solicitations are on file with the
West Virginia Legislature's Joint Committee on Government and Finance, with the
West Virginia Secretary of State and with the West Virginia Ethics Commission
and are available for public review." Any moneys in excess of those
donations needed for the conference or function shall be deposited in the
Capitol Dome and Capitol Improvement Fund established in section two, article
four of chapter five-a of this code.
(d) Interests in public
contracts. -B
(1) In addition to the
provisions of section fifteen, article ten, chapter sixty-one of this code, no
elected or appointed public official or public employee or member of his or her
immediate family or business with which he or she is associated may be a party
to or have an interest in the profits or benefits of a contract which the
official or employee may have direct authority to enter into, or over which he
or she may have control: Provided, That unless prohibited by
subdivision (2) of this subsection, nothing herein shall may be
construed to prevent or make unlawful the employment of any person with any
governmental body: Provided, however, That nothing herein shall may
be construed to prohibit a member of the Legislature from entering into a
contract with any governmental body, or prohibit a part-time appointed public
official from entering into a contract which the part-time appointed public
official may have direct authority to enter into or over which he or she may
have control when the official has not participated in the review or evaluation
thereof, has been recused from deciding or evaluating and has been excused from
voting on the contract and has fully disclosed the extent of his or her
interest in the contract.
(2) No elected or
appointed mayor of a municipality or member of a municipality’s governing body
or council may be employed by the same municipality: Provided, That this prohibition does not apply to class IV
municipalities as established pursuant to section three, article one, chapter
eight of this chapter.
(2) (3) In the absence of bribery or a purpose to
defraud, an elected or appointed public official or public employee or a member
of his or her immediate family or a business with which he or she is associated
shall may not be considered as having a prohibited financial
interest in a public contract when such a person has a limited interest as an
owner, shareholder or creditor of the business which is awarded a public
contract. A limited interest for the purposes of this subsection is:
(A) An interest which does
not exceed $1,000 in the profits or benefits of the public contract or
contracts in a calendar year;
(B) An interest as a
creditor of a public employee or official who exercises control over the
contract, or a member of his or her immediate family, if the amount is less
than $5,000.
(3) (4) If a public official or employee has an
interest in the profits or benefits of a contract, then he or she may not make,
participate in making, or in any way attempt to use his or her office or
employment to influence a government decision affecting his or her financial or
limited financial interest. Public officials shall also comply with the voting
rules prescribed in subsection (j) of this section.
(4) (5) Where the provisions of subdivisions (1)
and (2) of this subsection would result in the loss of a quorum in a public
body or agency, in excessive cost, undue hardship, or other substantial
interference with the operation of a state, county, municipality, county school
board or other governmental agency, the affected governmental body or agency
may make written application to the Ethics Commission for an exemption from subdivisions
(1) and (2) of this subsection: Provided, That if the contract
exemption request relates to the prohibition in subdivision (2), then the
Ethics Commission may grant an exemption if there is a lack of qualified
candidates that have run for the election of mayor or a position on the
municipal council or that apply for appointment to such a council or mayoral
position.
(e) Confidential
information. -- No present or former public official or employee may
knowingly and improperly disclose any confidential information acquired by him
or her in the course of his or her official duties nor use such information to
further his or her personal interests or the interests of another person.
(f) Prohibited
representation. -- No present or former elected or appointed public
official or public employee shall, during or after his or her public employment
or service, represent a client or act in a representative capacity with or
without compensation on behalf of any person in a contested case, rate-making
proceeding, license or permit application, regulation filing or other
particular matter involving a specific party or parties which arose during his
or her period of public service or employment and in which he or she personally
and substantially participated in a decision-making, advisory or staff support
capacity, unless the appropriate government agency, after consultation, consents
to such representation. A staff attorney, accountant or other professional
employee who has represented a government agency in a particular matter shall
not thereafter represent another client in the same or substantially related
matter in which that client's interests are materially adverse to the interests
of the government agency, without the consent of the government agency: Provided,
That this prohibition on representation shall not apply when the client was not
directly involved in the particular matter in which the professional employee
represented the government agency, but was involved only as a member of a
class. The provisions of this subsection shall not apply to legislators who
were in office and legislative staff who were employed at the time it
originally became effective on July 1, 1989, and those who have since become
legislators or legislative staff and those who shall serve hereafter as
legislators or legislative staff.
(g) Limitation on
practice before a board, agency, commission or department. -- Except as
otherwise provided in section three, four or five, article two, chapter eight-a
of this code: (1) No elected or appointed public official and no full-time
staff attorney or accountant shall, during his or her public service or public
employment or for a period of one year after the termination of his or her
public service or public employment with a governmental entity authorized to
hear contested cases or promulgate or propose rules, appear in a representative
capacity before the governmental entity in which he or she serves or served or
is or was employed in the following matters:
(A) A contested case
involving an administrative sanction, action or refusal to act;
(B) To support or oppose a
proposed rule;
(C) To support or contest
the issuance or denial of a license or permit;
(D) A rate-making
proceeding; and
(E) To influence the
expenditure of public funds.
(2) As used in this
subsection, "represent" includes any formal or informal appearance
before, or any written or oral communication with, any public agency on behalf
of any person: Provided, That nothing contained in this subsection shall
prohibit, during any period, a former public official or employee from being
retained by or employed to represent, assist or act in a representative
capacity on behalf of the public agency by which he or she was employed or in
which he or she served. Nothing in this subsection shall be construed to
prevent a former public official or employee from representing another state,
county, municipal or other governmental entity before the governmental entity
in which he or she served or was employed within one year after the termination
of his or her employment or service in the entity.
(3) A present or former
public official or employee may appear at any time in a representative capacity
before the Legislature, a county commission, city or town council or county
school board in relation to the consideration of a statute, budget, ordinance,
rule, resolution or enactment.
(4) Members and former
members of the Legislature and professional employees and former professional
employees of the Legislature shall be permitted to appear in a representative
capacity on behalf of clients before any governmental agency of the state or of
county or municipal governments, including county school boards.
(5) An elected or appointed
public official, full-time staff attorney or accountant who would be adversely
affected by the provisions of this subsection may apply to the Ethics
Commission for an exemption from the one year prohibition against appearing in
a representative capacity, when the person's education and experience is such
that the prohibition would, for all practical purposes, deprive the person of
the ability to earn a livelihood in this state outside of the governmental
agency. The Ethics Commission shall by legislative rule establish general
guidelines or standards for granting an exemption or reducing the time period,
but shall decide each application on a case-by-case basis.
(h) Employment by
regulated persons and vendors. -- (1) No full-time official or full-time
public employee may seek employment with, be employed by, or seek to purchase,
sell or lease real or personal property to or from any person who:
(A) Had a matter on which
he or she took, or a subordinate is known to have taken, regulatory action
within the preceding twelve months; or
(B) Has a matter before the
agency on which he or she is working or a subordinate is known by him or her to
be working.
(C) Is a vendor to the
agency where the official serves or public employee is employed and the
official or public employee, or a subordinate of the official or public
employee, exercises authority or control over a public contract with such
vendor, including, but not limited to:
(i) Drafting bid
specifications or requests for proposals;
(ii) Recommending selection
of the vendor;
(iii) Conducting
inspections or investigations;
(iv) Approving the method
or manner of payment to the vendor;
(v) Providing legal or
technical guidance on the formation, implementation or execution of the
contract; or
(vi) Taking other
nonministerial action which may affect the financial interests of the vendor.
(2) Within the meaning of
this section, the term "employment" includes professional services
and other services rendered by the public official or public employee, whether
rendered as employee or as an independent contractor; "seek
employment" includes responding to unsolicited offers of employment as
well as any direct or indirect contact with a potential employer relating to the
availability or conditions of employment in furtherance of obtaining
employment; and "subordinate" includes only those agency personnel
over whom the public official or public employee has supervisory
responsibility.
(3) A full-time public
official or full-time public employee who would be adversely affected by the
provisions of this subsection may apply to the Ethics Commission for an
exemption from the prohibition contained in subdivision (1) of this subsection.
(A) The Ethics Commission
shall by legislative rule establish general guidelines or standards for
granting an exemption, but shall decide each application on a case-by-case
basis;
(B) A person adversely
affected by the restriction on the purchase of personal property may make such
purchase after seeking and obtaining approval from the commission or in good
faith reliance upon an official guideline promulgated by the commission,
written advisory opinions issued by the commission, or a legislative rule.
(C) The commission may
establish exceptions to the personal property purchase restrictions through the
adoption of guidelines, advisory opinions or legislative rule.
(4) A full-time public
official or full-time public employee may not take personal regulatory action
on a matter affecting a person by whom he or she is employed or with whom he or
she is seeking employment or has an agreement concerning future employment.
(5) A full-time public
official or full-time public employee may not personally participate in a
decision, approval, disapproval, recommendation, rendering advice,
investigation, inspection or other substantial exercise of nonministerial
administrative discretion involving a vendor with whom he or she is seeking
employment or has an agreement concerning future employment.
(6) A full-time public
official or full-time public employee may not receive private compensation for
providing information or services that he or she is required to provide in
carrying out his or her public job responsibilities.
(i) Members of the
Legislature required to vote. -- Members of the Legislature who have asked
to be excused from voting or who have made inquiry as to whether they should be
excused from voting on a particular matter and who are required by the
presiding officer of the House of Delegates or Senate of West Virginia to vote
under the rules of the particular house shall not be guilty of any violation of
ethics under the provisions of this section for a vote so cast.
(j) Limitations on
voting. -B
(1) Public officials,
excluding members of the Legislature who are governed by subsection (i) of this
section, may not vote on a matter:
(A) In which they, or an
immediate family member, or a business with which they or an immediate family
member is associated, have a financial interest. Business with which they are
associated means a business of which the person or an immediate family member
is a director, officer, owner, employee, compensated agent, or holder of stock
which constitutes five percent or more of the total outstanding stocks of any
class.
(B) If a public official is
employed by a financial institution and his or her primary responsibilities
include consumer and commercial lending, the public official may not vote on a
matter which directly affects the financial interests of a customer of the financial
institution if the public official is directly involved in approving a loan
request from the person or business appearing before the governmental body or
if the public official has been directly involved in approving a loan for that
person or business within the past twelve months: Provided, That this
limitation only applies if the total amount of the loan or loans exceeds
$15,000.
(C) A personnel matter
involving the public official's spouse or
relative;
(D) The appropriations of
public moneys or the awarding of a contract to a nonprofit corporation if the
public official or an immediate family member is employed by, or an officer
or board member of, the nonprofit, whether compensated or not.
(II) (2) A public official may vote:
(A) If the public official,
his or her spouse, immediate family members or relatives or business with which
they are associated are affected as a member of, and to no greater extent than
any other member of a profession, occupation, class of persons or class of
businesses. A class shall consist of not fewer than five similarly situated
persons or businesses; or
(B) If the matter affects a
publicly traded company when:
(i) The public official, or
dependent family members individually or jointly own less than five percent of
the issued stock in the publicly traded company and the value of the stocks
individually or jointly owned is less than $10,000; and
(ii) Prior to casting a
vote the public official discloses his or her interest in the publicly traded
company.
(3) For a public official's recusal to be effective, it is necessary to excuse
him or herself from participating in the discussion and decision-making process
by physically removing him or herself from the room during the period, fully
disclosing his or her interests, and recusing him or herself from voting on the
issue.
(k) Limitations on
participation in licensing and rate-making proceedings. -- No public official or employee may participate
within the scope of his or her duties as a public official or employee, except
through ministerial functions as defined in section three, article one of this
chapter, in any license or rate-making proceeding that directly affects the
license or rates of any person, partnership, trust, business trust, corporation
or association in which the public official or employee or his or her immediate
family owns or controls more than ten percent. No public official or public
employee may participate within the scope of his or her duties as a public
official or public employee, except through ministerial functions as defined in
section three, article one of this chapter, in any license or rate-making
proceeding that directly affects the license or rates of any person to whom the
public official or public employee or his or her immediate family, or a
partnership, trust, business trust, corporation or association of which the
public official or employee, or his or her immediate family, owns or controls
more than ten percent, has sold goods or services totaling more than $1,000
during the preceding year, unless the public official or public employee has
filed a written statement acknowledging such sale with the public agency and
the statement is entered in any public record of the agency's proceedings. This
subsection shall not be construed to require the disclosure of clients of
attorneys or of patients or clients of persons licensed pursuant to article
three, eight, fourteen, fourteen-a, fifteen, sixteen, twenty, twenty-one or
thirty-one, chapter thirty of this code.
(l) Certain compensation
prohibited. -- (1) A public employee may not receive additional
compensation from another publicly-funded state, county or municipal office or
employment for working the same hours, unless:
(A) The public employee's
compensation from one public employer is reduced by the amount of compensation
received from the other public employer;
(B) The public employee's
compensation from one public employer is reduced on a pro rata basis for any
work time missed to perform duties for the other public employer;
(C) The public employee
uses earned paid vacation, personal or compensatory time or takes unpaid leave
from his or her public employment to perform the duties of another public
office or employment; or
(D) A part-time public
employee who does not have regularly scheduled work hours or a public employee
who is authorized by one public employer to make up, outside of regularly
scheduled work hours, time missed to perform the duties of another public
office or employment maintains time records, verified by the public employee and
his or her immediate supervisor at least once every pay period, showing the
hours that the public employee did, in fact, work for each public employer. The
public employer shall submit these time records to the Ethics Commission on a
quarterly basis.
(2) This section does not
prohibit a retired public official or public employee from receiving
compensation from a publicly-funded office or employment in addition to any
retirement benefits to which the retired public official or public employee is
entitled.
(m) Certain expenses
prohibited. -- No public official or public employee shall knowingly
request or accept from any governmental entity compensation or reimbursement
for any expenses actually paid by a lobbyist and required by the provisions of
this chapter to be reported, or actually paid by any other person.
(n) Any person who is
employed as a member of the faculty or staff of a public institution of higher
education and who is engaged in teaching, research, consulting or publication
activities in his or her field of expertise with public or private entities and
thereby derives private benefits from such activities shall be exempt from the
prohibitions contained in subsections (b), (c) and (d) of this section when the
activity is approved as a part of an employment contract with the governing
board of the institution or has been approved by the employee's department
supervisor or the president of the institution by which the faculty or staff
member is employed.
(o) Except as provided in
this section, a person who is a public official or public employee may not
solicit private business from a subordinate public official or public employee
whom he or she has the authority to direct, supervise or control. A person who
is a public official or public employee may solicit private business from a
subordinate public official or public employee whom he or she has the authority
to direct, supervise or control when:
(A) The solicitation is a
general solicitation directed to the public at large through the mailing or
other means of distribution of a letter, pamphlet, handbill, circular or other
written or printed media; or
(B) The solicitation is
limited to the posting of a notice in a communal work area; or
(C) The solicitation is for
the sale of property of a kind that the person is not regularly engaged in
selling; or
(D) The solicitation is
made at the location of a private business owned or operated by the person to
which the subordinate public official or public employee has come on his or her
own initiative.
(p) The commission may, by
legislative rule promulgated in accordance with chapter twenty-nine-a of this
code, define further exemptions from this section as necessary or appropriate.
NOTE: The purpose of this bill is
to require public officials, except members of the Legislature, to recuse
themselves from voting on the appropriation of moneys or award of contract to a
nonprofit corporation if the public official or an immediate family member is
employed by or an officer or board member of the nonprofit, whether compensated
or not. The bill additionally prohibits mayors and members of a municipality’s
governing body or council from being employed by the municipality.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.