H. B. 2418
(By Delegates Hamilton, Sobonya, Sumner,
Duke, Howard, Wakim and Tansill)
[Introduced February 16, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §6B-2-5 of the Code of West Virginia,
1931, as amended; and to amend and reenact §6B-2-7 of said
code, all relating to disclosure of political contributions by
persons appointed to any State Board or Commission or any new
state employee.
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; and that §6B-2-7 of said code be amended
and reenacted, all 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. 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) The Legislature, in enacting this subsection (b), relating
to the use of public office or public employment for private gain,
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. Such 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 such
persons may have its own inherent prestige, it would be unfair to such individuals and against the best interests of the citizens of
this State to deny such persons the right to hold public office or
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 such public officials
and public employees, identifying them generally by the office or
employment held, and offering persons who fit within such
categories the opportunity to apply for an exemption from the
application of the provisions of this subsection. Such 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 as such 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 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 speaking engagement at the
meeting;
(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: (1) That official is a part-time
elected public official; (2) the fee is not related to the
official's public position or duties; (3) 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 (4) 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:
Provided, That any public official who is appointed after
the effective date of this section shall disclose each political
contribution of over two hundred fifty dollars made by that person
to a candidate for an elected public office in this state made
within five years prior to his or her appointment. The disclosures
shall include the name of each candidate to whom the contribution
was made, the date and amount of the contribution, and shall be
made upon the financial disclosure statement required by this
article.
(5) The Governor or his designee may, in the name of the State
of West Virginia, accept and receive gifts from any public or
private source. Any such 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:
(i) Advancing the effectiveness, independence, and integrity
of legislatures in the states of the United States;
(ii) Fostering interstate cooperation and facilitating
information exchange among state legislatures;
(iii) Representing the states and their legislatures in the
American federal system of government;
(iv) 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;
(v) 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."
(d)
Interests in public contracts. -- (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 such official or
employee may have direct authority to enter into, or over which he
or she may have control:
Provided, That nothing herein shall be
construed to prevent or make unlawful the employment of any person
with any governmental body:
Provided, however, That nothing herein
shall 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 such part-time appointed public official may have direct
authority to enter into or over which he or she may have control when such official has been recused from deciding or evaluating and
excused from voting on such contract and has fully disclosed the
extent of such interest in the contract.
(2) 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 not be considered as having an interest in a
public contract when such a person has a limited interest as an
owner, shareholder or creditor of the business which is the
contractor on the public contract involved. A limited interest for
the purposes of this subsection is:
(A) An interest:
(i) Not exceeding ten percent of the partnership or the
outstanding shares of a corporation; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract; or
(B) An interest as a creditor:
(i) Not exceeding ten percent of the total indebtedness of a
business; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract.
(3) 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.
(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 such
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 the first day of July, one thousand nine
hundred eighty-nine, 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. -- (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 six months
after the termination of his or her public service or public
employment with a governmental entity authorized to hear contested
cases or promulgate regulations, 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 regulation;
(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 six months 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 six months 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. -- (1) No full-time
official or full-time public employee may seek employment with, be
employed by, or seek to sell or lease real or personal property to
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 to which he or she is
working or a subordinate is known by him or her to be working.
(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 servant 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 subsection (1). 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.
(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 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 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 one thousand dollars 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 articles three, eight,
fourteen, fourteen-a, fifteen, sixteen, twenty, twenty-one or
thirty-one, chapter thirty of this code.
(k)
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.
(l) 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 such institution or
has been approved by the employees' department supervisor or the
president of the institution by which the faculty or staff member
is employed.
(m) 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.
(n) The commission by legislative rule promulgated in
accordance with chapter twenty-nine-a of this code may define
further exemptions from this section as necessary or appropriate.
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-2-7. Financial disclosure statement; contents.
The financial disclosure statement required under this article
shall contain the following information:
(1) The name, residential and business addresses of the person
filing the statement and all names under which the person does
business.
(2) The name and address of each employer of the person.
(3) The name and address of each business in which the person
filing the statement, his spouse or dependent children has or had an interest of ten thousand dollars at fair market value or five
percent (5%) ownership interest or more.
(3) (4)
The identification, by category, of every source of
income over five one thousand dollars received during the preceding
calendar year, in his or her own name or by any other person for
his or her use or benefit, by the person filing the statement, or
the spouse of the person filing the statement, and a brief
description of the nature of the services for which the income was
received. This subdivision does not require a person filing the
statement who derives income from a business, profession or
occupation to disclose the individual sources and items of income
that constitute the gross income of that business, profession or
occupation. nor does this subdivision require a person filing the
statement to report the source or amount of income derived by his
or her spouse
(4) (5)
If the person, or his or her spouse, profited or
benefited in the year prior to the date of filing from a contract
for the sale of goods or services to a state, county, municipal or
other local governmental agency either directly or through a
partnership, corporation or association in which such person owned
or controlled more than ten percent, the person shall describe the
nature of the goods or services and identify the governmental
agencies which purchased the goods or services.
(5) (6)
Each interest group or category listed below doing
business in this state with which either the person filing the
statement, or his or her spouse, did business or furnished services and from which the person or the person's spouse received more than
twenty percent of the person's their income during the preceding
calendar year. The groups or categories are electric utilities,
gas utilities, telephone utilities, water utilities, cable
television companies, interstate transportation companies,
intrastate transportation companies, oil or gas retail companies,
banks, savings and loan associations, loan or finance companies,
manufacturing companies, surface mining companies, deep mining
companies, mining equipment companies, chemical companies,
insurance companies, retail companies, beer, wine or liquor
companies or distributors, recreation related companies, timbering
companies, hospitals or other health care providers, trade
associations, professional associations, associations of public
employees or public officials, counties, cities or towns, labor
organizations, waste disposal companies, wholesale companies,
groups or associations seeking to legalize gambling, gaming or
lotteries, advertising companies, media companies, race tracks and
promotional companies.
(6) (7)
The names of all persons, excluding that person's
immediate family, parents, or grandparents residing or transacting
business in the state to whom the person filing the statement, or
the spouse of the person filing the statement, owes, on the date of
execution of this statement in the aggregate in his or her own name
or in the name of any other person more than twelve five thousand
five hundred dollars: Provided, That nothing herein shall require
the disclosure of a mortgage on the person's primary and secondary residences or of automobile loans on automobiles maintained for the
use of the person's immediate family, or of a student loan, nor
shall this section require the disclosure of debts which result
from the ordinary conduct of such person's business, profession, or
occupation or of debts of the person filing the statement to any
financial institution, credit card company, or business, in which
the person has an ownership interest: Provided, however, That the
previous proviso shall not exclude from disclosure loans obtained
pursuant to the linked deposit program provided for in article one-
a, chapter twelve of this code or any other loan or debt incurred
which requires approval of the state or any of its political
subdivisions.
(7) (8)
The names of all persons except immediate family
members, parents and grandparents residing or transacting business
in the state (other than a demand or savings account in a bank,
savings and loan association, credit union or building and loan
association or other similar depository) who owes on the date of
execution of this statement, more, in the aggregate, than twelve
five thousand five hundred dollars to the person filing the
statement, or the spouse of the person filing the statement, either
in his or her own name or to any other person for his or her use or
benefit. This subdivision does not require the disclosure of debts
owed to the person filing the statement which debts result from the
ordinary conduct of such person's business, profession or
occupation or of loans made by the person filing the statement to
any business in which the person has an ownership interest.
(9) Information, including a street address or location,
regarding any real property in which there is an interest of ten
thousand dollars or more held by the person filing the statement,
or the spouse of the person filing the statement.
(8) (10)
The source of each gift including those described in
subdivision (2) of subsection (c) section five of this article
having a value of over one hundred dollars, received from a person
having a direct and immediate interest in a governmental activity
over which the person filing the statement has control, shall be
reported by the person filing the statement when such gift is given
to said person in his or her name or for his or her use or benefit
during the preceding calendar year: Provided, That gifts received
by will or by virtue of the laws of descent and distribution, or
received from one's spouse, child, grandchild, parents or
grandparents, or received by way of distribution from an inter
vivos or testamentary trust established by the spouse or child,
grandchild, or by an ancestor of the person filing the statement
are not required to be reported: Provided further, That those
gifts described in subdivision (2), subsection (c), section five of
this article that are otherwise required to be reported under
section four, article three of this chapter are not required to be
reported. As used in this subdivision any series or plurality of
gifts which exceeds in the aggregate the sum of one hundred dollars
from the same source or donor, either directly or indirectly, and
in the same calendar year, shall be is regarded as a single gift in
excess of that aggregate amount.
(11) The amount, name of the recipient and the date of each
political contribution by an appointed public official who is
appointed after the effective date of this section made to a
candidate for election to a public office in this State within five
years prior to his or her appointment.
(12) The signature of the person filing the statement.
NOTE: The purpose of this bill is to require persons
appointed to any state board or commission or employed in state
government to disclose political contributions of $251 or more that
were made for a seven-year period prior to the appointment or
employment.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.