Engrossed Committee Substitute
House Bill 4524 History
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ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 4524
(By Delegates Webster, Mahan, Long, Lane, Proudfoot and Brown
)
(Originating in the House Committee on the Judiciary)
[February 15, 2008]
A BILL to amend and reenact §6B-1-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §6B-2-1, §6B-2-2a, §6B-
2-3a, §6B-2-4, §6B-2-5 of said code; and to amend reenact §6B-
3-3c, and §6B-3-4 of said code,
all relating generally to the
ethical standards of public officers, employees and lobbyists;
defining additional terms; providing compensation for
telephonic participation in meetings; creating a procedure for
replacing recused members of the Probable Cause Review Board;
altering requirements for pending complaint against a
candidate for public office is stayed; establishing a time-
frame for candidates to waive stay provisions; clarifying the
procedure for replacing recused members of the commission
hearing a complaint; providing for exclusive appeal of
decisions by the commission imposing sanctions to the circuit
court of Kanawha County; permitting personal use of frequent
traveler bonus points acquired on official government
business; redefining and clarifying what constitutes a limited
interest in a public contract; prohibiting public employees or officials from influencing contracts in which they have a
financial interest; providing that full-time public officials
and full-time public employees may not seek employment with or
be employed by a vendor over whose public contract the public
official or public employee exercises authority or control;
providing a procedure for granting exceptions to the
restriction on purchases of personal property from regulated
persons and vendors; providing that public officials and
employees may not decide matters regarding a vendor with whom
the official or employee is seeking employment or has an
agreement concerning future employment; providing standards
for determining when public officials may or may not vote on
matters involving a for profit or not for profit business,
including financial institutions, with whom either they or a
an immediate family member are associated; providing that
lobbyists must complete an ethics training course during each
two-year registration cycle; clarifying that notice of
suspension of a lobbyist's lobbying privileges be sent to the
affected lobbyist by certified mail; requiring lobbyist
complete training prior to lobbying; and making technical
corrections.
Be it enacted by the Legislature of West Virginia:
That §6B-1-3
of the Code of West Virginia, 1931, as amended,
that §6b-2-1, §6b-2-2a, §6B-2-3a, §6B-2-4 and §6B-2-5 of said code
be amended and reenacted; and that §6B-3-3c, and §6B-3-4
be amended
and reenacted, all to read as follows:
ARTICLE 1. SHORT TITLE; LEGISLATIVE FINDINGS, PURPOSES AND
INTENT; CONSTRUCTION AND APPLICATION OF CHAPTER; SEVERABILITY.
§6B-1-3. Definitions.
As used in this chapter, unless the context in which used
clearly requires otherwise:
(a) "Review Board" means the Probable Cause Review Board
created by section two-a, article two of this chapter.
(b) "Business" means any entity through which business for
profit is conducted including a corporation, partnership,
proprietorship, franchise, association, organization or self-
employed individual.
(b) (c) "Compensation" means money, thing of value or
financial benefit. The term "compensation" does not include
reimbursement for actual reasonable and necessary expenses incurred
in the performance of one's official duties.
(c) (d) "Employee" means any person in the service of another
under any contract of hire, whether express or implied, oral or
written, where the employer or an agent of the employer or a public
official has the right or power to control and direct such person
in the material details of how work is to be performed and who is
not responsible for the making of policy nor for recommending
official action.
(d) (e) "Ethics Commission" or "commission" means the West
Virginia Ethics Commission.
(e) (f) "Immediate family", with respect to an individual,
means a spouse with whom the individual is living as husband and
wife and any dependent child or children, dependent grandchild or
grandchildren and dependent parent or parents.
(f) (g) "Ministerial functions" means actions or functions performed by an individual under a given state of facts in a
prescribed manner in accordance with a mandate of legal authority,
without regard to, or without the exercise of, the individual's own
judgment as to the propriety of the action being taken.
(g) (h) "Person" means an individual, corporation, business
entity, labor union, association, firm, partnership, limited
partnership, committee, club or other organization or group of
persons, irrespective of the denomination given such organization
or group.
(h) (i) "Political contribution" means and has the same
definition as is given that term under the provisions of article
eight, chapter three of this code.
(i) (j) "Public employee" means any full-time or part-time
employee of any state, county or municipal governmental body or any
political subdivision thereof, including county school boards.
(j) (k)"Public official" means any person who is elected or
appointed to any state, county or municipal office or position and
who is responsible for the making of policy or takes official
action which is either ministerial or nonministerial, or both, with
respect to: (1) Contracting for, or procurement of, goods or
services; (2) administering or monitoring grants or subsidies; (3)
planning or zoning; (4) inspecting, licensing, regulating or
auditing any person; or (5) any other activity where the official
action has an economic impact of greater than a de minimis nature
on the interest or interests of any person.
(l) "Relative" means spouse, mother, father, sister, brother,
son, daughter, grandmother, grandfather, grandchild, mother-in-law,
father-in-law, sister-in-law, brother-in-law, son-in-law or daughter-in-law.
(k) (m) "Respondent" means a person who is the subject of an
investigation by the commission or against whom a complaint has
been filed with the commission.
(l) (n) "Thing of value", "other thing of value" or "anything
of value" means and includes: (1) Money, bank bills or notes,
United States treasury notes and other bills, bonds or notes issued
by lawful authority and intended to pass and circulate as money;
(2) goods and chattels; (3) promissory notes, bills of exchange,
orders, drafts, warrants, checks, bonds given for the payment of
money or the forbearance of money due or owing; (4) receipts given
for the payment of money or other property; (5) any right or chose
in action; (6) chattels real or personal or things which savor of
realty and are, at the time taken, a part of a freehold, whether
they are of the substance or produce thereof or affixed thereto,
although there may be no interval between the severing and the
taking away thereof; (7) any interest in realty, including, but not
limited to, fee simple estates, life estates, estates for a term or
period of time, joint tenancies, cotenancies, tenancies in common,
partial interests, present or future interests, contingent or
vested interests, beneficial interests, leasehold interests or any
other interest or interests in realty of whatsoever nature; (8) any
promise of employment, present or future; (9) donation or gift;
(10) rendering of services or the payment thereof; (11) any advance
or pledge; (12) a promise of present or future interest in any
business or contract or other agreement; or (13) every other thing
or item, whether tangible or intangible, having economic worth.
"Thing of value", "other thing of value" or "anything of value" shall not include anything which is de minimis in nature nor a
lawful political contribution reported as required by law.
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-2-1. West Virginia Ethics Commission created; members;
appointment, term of office and oath; compensation
and reimbursement for expenses; meetings and quorum.
(a) There is hereby created the West Virginia Ethics
Commission, consisting of twelve members, no more than seven of
whom shall be members of the same political party. The members of
the commission shall be appointed by the Governor with the advice
and consent of the Senate. Within thirty days of the effective date
of this section, the Governor shall make the initial appointments
to the commission. No person may be appointed to the commission or
continue to serve as a member of the commission who holds elected
or appointed office under the government of the United States, the
State of West Virginia or any of its political subdivisions, or who
is a candidate for any of those offices, who is employed as a
registered lobbyist, or who is otherwise subject to the provisions
of this chapter other than by reason of his or her appointment to
or service on the commission. A member may contribute to a
political campaign, but no member shall hold any political party
office or participate in a campaign relating to a referendum or
other ballot issue.
(b) At least two members of the commission shall have served
as a member of the West Virginia Legislature; at least two members of the commission shall have been employed in a full-time elected
or appointed office in state government; at least one member shall
have served as an elected official in a county or municipal
government or on a county school board; at least one member shall
have been employed full-time as a county or municipal officer or
employee; and at least two members shall have served part time as
a member or director of a state, county or municipal board,
commission or public service district and at least four members
shall be selected from the public at large. No more than four
members of the commission shall reside in the same congressional
district.
(c) Of the initial appointments made to the commission, two
shall be for a term ending one year after the effective date of
this section, two for a term ending two years after the effective
date of this section, two for a term ending three years after the
effective date of this section, three for a term ending four years
after the effective date of this section and three shall be for
terms ending five years after the effective date of this section.
Thereafter, terms of office shall be for five years, each term
ending on the same day of the same month of the year as did the
term which it succeeds. Each member shall hold office from the date
of his or her appointment until the end of the term for which he or
she was appointed or until his or her successor qualifies for
office. When a vacancy occurs as a result of death, resignation or
removal in the membership of this commission, it shall be filled by
appointment within thirty days of the vacancy for the unexpired
portion of the term in the same manner as original appointments. No
member shall serve more than two consecutive full or partial terms and no person may be reappointed to the commission until at least
two years have elapsed after the completion of a second successive
term.
(d) Each member of the commission shall take and subscribe to
the oath or affirmation required pursuant to section five, article
IV of the Constitution of West Virginia. A member may be removed by
the Governor for substantial neglect of duty, gross misconduct in
office or violation of this chapter, after written notice and
opportunity for reply.
(e) The commission shall meet within thirty days of the initial
appointments to the commission at a time and place to be determined
by the Governor, who shall designate a member to preside at that
meeting until a chairman is elected. At its first meeting, the
commission shall elect a chairman and other officers as are
necessary. The commission shall within ninety days after its first
meeting adopt rules for its procedures.
(f) Seven members of the commission shall constitute a quorum,
except that when the commission is sitting as a hearing board
pursuant to section four of this article, then five members shall
constitute a quorum. Except as may be otherwise provided in this
article, a majority of the total membership shall be necessary to
act at all times.
(g) Members of the commission shall receive the same
compensation and expense reimbursement as is paid to members of the
Legislature for their interim duties as recommended by the Citizens
Legislative Compensation Commission and authorized by law for each
day or portion thereof engaged in the discharge of official duties:
Provided, That to be eligible for compensation and expense reimbursement, the member must be in personal attendance at the
meeting in which the duties are performed. participate in a meeting
or adjudicatory session: Provided, however, That the member is not
eligible for expense reimbursement if he or she does not attend a
meeting or adjudicatory session in person.
(h) The commission shall appoint an executive director to
assist the commission in carrying out its functions in accordance
with commission rules and with applicable law. The executive
director shall be paid a salary fixed by the commission or as
otherwise provided by law. The commission shall appoint and
discharge counsel and employees and shall fix the compensation of
employees and prescribe their duties. Counsel to the commission
shall advise the commission on all legal matters and on the
instruction of the commission may commence appropriate civil
actions: Provided, That no counsel shall both advise the commission
and act in a representative capacity in any proceeding.
(i) The commission may delegate authority to the chairman or
executive director to act in the name of the commission between
meetings of the commission, except that the commission shall not
delegate the power to hold hearings and determine violations to the
chairman or executive director.
(j) The principal office of the commission shall be in the
seat of government but it or its designated subcommittees may meet
and exercise its power at any other place in the state. Meetings of
the commission shall be public unless: (1) They are required to be
private by the provisions of this chapter relating to
confidentiality; or (2) they involve discussions of commission personnel, planned or ongoing litigation and planned or ongoing
investigations.
(k) Meetings of the commission shall be upon the call of the
chair and may be conducted by telephonic or other electronic
conferencing: Provided, That telephone or other electronic
conferencing and voting are not permitted when the commission is
acting as a hearing board under section four of this article or
when an investigative panel the Probable Cause Review Board meets
to receive an oral response as authorized under subsection (d),
section four of this article. Members shall be given notice of
meetings held by telephone or other electronic conferencing in the
same manner as meetings at which the members are required to attend
in person. Telephone or other electronic conferences shall be
electronically recorded and the recordings shall be retained by the
commission in accordance with its record retention policy.
§6B-2-2a. Probable Cause Review Board.
(a) There is hereby established a Probable Cause Review Board
that shall conduct hearings to determine whether there is probable
cause to believe that a violation of the West Virginia Governmental
Ethics Act has occurred and, if so, to refer that investigation to
the Ethics Commission. The Review Board is an autonomous board, not
under the direction or control of the Ethics Commission. The Review
Board will review complaints received or initiated by the Ethics
Commission to make a threshold determination of whether probable
cause exists to believe that a violation of the West Virginia
Governmental Ethics Act has occurred.
(b) The Governor, by and with the advice and consent of the Senate, shall appoint three persons as members of the Review Board,
each of whom shall be a resident and citizen of the state. Each
member of the Review Board shall hold office until his or her
successor has been appointed and qualified. At least one member of
the board must be an attorney licensed by the State of West
Virginia and no more than two members can belong to the same
political party. The members of the Review Board shall be appointed
for overlapping terms of two years, except that the original
appointments shall be for terms of one, two and three years,
respectively. Any member whose term expires may be reappointed by
the Governor. In the event a Review Board member is unable to
complete his or her term, a the Governor shall appoint a person
with similar qualification to complete that term. Each Review
Board member shall receive the same compensation and expense
reimbursement as provided to Ethics Commission members pursuant to
section one of this article. These and all other costs incurred by
the Review Board shall be paid from the budget of the Ethics
Commission.
(c) No person may be appointed to the Review Board or continue
to serve as a member of the Review Board who holds elected or
appointed office under the government of the United States, the
State of West Virginia or any of its political subdivisions, or who
is a candidate for any of such offices, or who is a registered
lobbyist, or who is otherwise subject to the provisions of this
chapter other than by reason of his or her appointment to or
service on the Review Board. A Review Board member may contribute
to a political campaign, but no member shall hold any political party office or participate in a campaign relating to a referendum
or other ballot issue.
(d) Members of the Review Board may recuse themselves from a
particular case upon their own motion, with the approval of the
Review Board, and shall recuse themselves, for good cause shown,
upon motion of a party. The remaining members of the Review Board
may, by majority vote, select a temporary member to replace a
recused member: Provided, That the temporary member selected to
replace a recused member shall be a person who meets all
requirements for appointment provided by subsection (c), section
two-a of this article, and whose political affiliation is the same
as the recused member.
(d) (e) The Ethics Commission shall propose, for approval by
the Review Board, any procedural and interpretative rules governing
the operation of the Review Board. The commission shall propose
these rules pursuant to article three, chapter twenty-nine-a of the
code.
(e) (f) The Ethics Commission shall provide staffing and a
location for the Review Board to conduct hearings. The Ethics
Commission is authorized to employ and assign the necessary
professional and clerical staff to assist the Review Board in the
performance of its duties and commission staff shall, as the
commission deems appropriate, also serve as staff to the Review
Board. All investigations and proceedings of the Review Board are
deemed confidential as provided in section four of this article and
members of the Review Board are bound to the same confidentiality
requirements applicable to the Ethics Commission pursuant to this article.
(f) (g) The Review Board may subpoena witnesses, compel their
attendance and testimony, administer oaths and affirmations, take
evidence and require by subpoena the production of books, papers,
records or other evidence needed for the performance of the Review
Board's duties.
(g) (h) Upon decision by the Review Board that probable cause
exists to believe that a violation of this chapter has occurred,
commission staff shall send notice to the commission members of the
Review Board's finding. After an ethics complaint has been
submitted to the Review Board in accordance with section four of
this article, the commission may take no further action until it
receives the Review Board's probable cause finding.
§6B-2-3a. Complaints.
(a) The commission may commence an investigation, pursuant to
section four of this article, on the filing of a complaint duly
verified by oath or affirmation, by any person.
(b) The commission may order the executive director to prepare
a complaint, upon a majority affirmative vote of its members, if it
receives or discovers credible information which, if true, would
merit an inquiry into whether a violation of this article has
occurred.
(c) (1) No complaint may be accepted or initiated by the
commission against a public official or public employee during the
sixty days before a primary or general election at which the public
official or public employees is a candidate for elective office.
(2) The Commission shall stay any proceedings with regard to
an ethics complaint filed against a public official or public
employee candidate more than sixty days prior to the election:
Provided, Where there has not yet been a probable cause
determination with regard to the allegations in the complaint, the
public official or public employee candidate may waive the
postponement in writing, in which case the Commission and the
Review Board shall process the complaint and provide the candidate
with a probable cause determination at least thirty days prior to
the election. If a complaint is pending against a public official
or public employee who is also a candidate for public office, then
the commission shall stay the processing of the complaint for the
sixty day time period preceding the primary election or general
election, or both, unless the candidate waives the stay in writing.
If the commission receives a written waiver of the stay at least
sixty days prior to the election, and if the Review Board has not
yet ruled whether probable cause exists to believe there has been
a violation of the Ethics Act, then the Review Board will process
the complaint and make a probable cause determination at least
thirty days prior to the election; Provided, That, the stay
provisions of this subdivision do not apply to complaints which
have already been adjudicated by the commission and are pending on
appeal.
(3) For purposes of this subsection, any provisions of this
chapter setting time periods for initiating a complaint or for
performing any other action are considered tolled until after the
election at which the public official or public employee candidate stands for elective office.
§6B-2-4. Processing complaints; dismissals; hearings;
disposition; judicial review.
(a) Upon the filing of a complaint, the Executive Director of
the commission or his or her designee shall, within three working
days, acknowledge the receipt of the complaint by first-class mail
unless the complaint was initiated by the commission or the
complainant or his or her representative personally filed the
complaint with the commission and was given a receipt or other
acknowledgment evidencing the filing of the complaint. No
political party or officer, employee or agent of a political party
acting in his or her official capacity may file a complaint for a
violation of this chapter with the commission. Nothing in this
section prohibits a private citizen, acting in that capacity, from
filing a verified complaint with the commission under this section.
Within fourteen days after the receipt of a complaint, the
Executive Director shall refer the complaint to the Review Board
created pursuant to section two-a of this article.
(b) Upon the referral of a complaint by the Executive Director
pursuant to subsection (a) of this section, the Review Board shall
determine whether the allegations of the complaint, if taken as
true, would constitute a violation of law upon which the commission
could properly act under the provisions of this chapter. If the
complaint is determined by a majority vote of the Review Board to
be insufficient in this regard, the Review Board shall dismiss the
complaint.
(c) Upon a finding by the Review Board that the complaint is sufficient, the Executive Director shall give notice of a pending
investigation to the complainant, if any, and to the respondent.
The notice of investigation shall be mailed to the parties and, in
the case of the respondent, shall be mailed as certified mail,
return receipt requested, marked "Addressee only, personal and
confidential". The notice shall describe the conduct of the
respondent which is alleged to violate the law and a copy of the
complaint shall be appended to the notice mailed to the respondent.
Each notice of investigation shall inform the respondent that the
purpose of the investigation is to determine whether probable cause
exists to believe that a violation of law has occurred which may
subject the respondent to administrative sanctions by the
commission, criminal prosecution by the state, or civil liability.
The notice shall further inform the respondent that he or she has
a right to appear before the Review Board and that he or she may
respond in writing to the commission within thirty days after the
receipt of the notice, but that no fact or allegation shall be
taken as admitted by a failure or refusal to timely respond.
(d) Within the 45-day period following the mailing of a notice
of investigation, the Review Board shall proceed to consider(1) The
allegations raised in the complaint; (2) Any timely received
written response of the respondent; and (3) Any other competent
evidence gathered by or submitted to the commission which has a
proper bearing on the issue of probable cause. A respondent may
appear before the Review Board and make an oral response to the
complaint. The commission shall promulgate rules prescribing the
manner in which a respondent may present his or her oral response. The commission may ask a respondent to disclose specific amounts
received from a source and request other detailed information not
otherwise required to be set forth in a statement or report filed
under the provisions of this chapter if the information sought is
considered to be probative as to the issues raised by a complaint
or an investigation initiated by the commission. Any information
thus received shall be confidential except as provided by
subsection (e) of this section. If a person asked to provide
information fails or refuses to furnish the information to the
commission, the commission may exercise its subpoena power as
provided in this chapter and any subpoena issued by the commission
shall have the same force and effect as a subpoena issued by a
circuit court of this state. Enforcement of any subpoena may be had
upon application to a circuit court of the county in which the
Review Board is conducting an investigation through the issuance of
a rule or an attachment against the respondent as in cases of
contempt.
(e) All investigations, complaints, reports, records,
proceedings and other information received by the commission and
related to complaints made to the commission or investigations
conducted by the commission pursuant to this section, including the
identity of the complainant or respondent, are confidential and may
not be knowingly and improperly disclosed by any current or former
member or employee of the commission or the Review Board except as
follows:
(A) Once there has been a finding that probable cause exists
to believe that a respondent has violated the provisions of this chapter and the respondent has been served by the commission with
a copy of the Review Board's order and the statement of charges
prepared pursuant to the provisions of subsection (g) of this
section, the complaint and all reports, records, nonprivileged and
nondeliberative material introduced at any probable cause hearing
held pursuant to the complaint cease to be confidential.
(B) After a finding of probable cause, any subsequent hearing
held in the matter for the purpose of receiving evidence or the
arguments of the parties or their representatives shall be open to
the public and all reports, records and nondeliberative materials
introduced into evidence at the hearing, as well as the
commission's orders, are not confidential.
(C) The commission may release any information relating to an
investigation at any time if the release has been agreed to in
writing by the respondent.
(D) The complaint and the identity of the complainant shall be
disclosed to a person named as respondent immediately upon the
respondent's request.
(E) Where the commission is otherwise required by the
provisions of this chapter to disclose information or to proceed in
such a manner that disclosure is necessary and required to fulfill
those requirements.
(2) If, in a specific case, the commission finds that there is
a reasonable likelihood that the dissemination of information or
opinion in connection with a pending or imminent proceeding will
interfere with a fair hearing or otherwise prejudice the due administration of justice, the commission shall order that all or
a portion of the information communicated to the commission to
cause an investigation and all allegations of ethical misconduct or
criminal acts contained in a complaint shall be confidential and
the person providing the information or filing a complaint shall be
bound to confidentiality until further order of the commission.
(f) If the members of the Review Board fail to find probable
cause, the proceedings shall be dismissed by the commission in an
order signed by the members of the Review Board. Copies of the
order of dismissal shall be sent to the complainant and served upon
the respondent forthwith. If the Review Board decides by a
unanimous vote that there is probable cause to believe that a
violation under this chapter has occurred, the members of the
Review Board shall sign an order directing the commission staff to
prepare a statement of charges and assign the matter for hearing to
the commission or a hearing examiner as the Commission may
subsequently direct. The commission shall then schedule a hearing,
to be held within ninety days after the date of the order, to
determine the truth or falsity of the charges. The commission's
review of the evidence presented shall be de novo. For the purpose
of this section, service of process upon the respondent is obtained
at the time the respondent or the respondent's agent physically
receives the process, regardless of whether the service of process
is in person or by certified mail.
(g) At least eighty days prior to the date of the hearing, the
commission shall serve the respondent by certified mail, return
receipt requested, with the statement of charges and a notice of hearing setting forth the date, time and place for the hearing. The
scheduled hearing may be continued only upon a showing of good
cause by the respondent or under other circumstances as the
commission, by legislative rule, directs.
(h) The Commission may sit as a hearing board to adjudicate the
case or may permit an assigned hearing examiner employed by the
commission to preside at the taking of evidence. The commission
shall, by legislative rule, establish the general qualifications
for hearing examiners. The legislative rule shall also contain
provisions which ensure that the functions of a hearing examiner
will be conducted in an impartial manner and describe the
circumstances and procedures for disqualification of hearing
examiners.
(i) A member of the commission or a hearing examiner presiding
at a hearing may:
(1) Administer oaths and affirmations, compel the attendance
of witnesses and the production of documents, examine witnesses and
parties and otherwise take testimony and establish a record;
(2) Rule on offers of proof and receive relevant evidence;
(3) Take depositions or have depositions taken when the ends
of justice will be served;
(4) Regulate the course of the hearing;
(5) Hold conferences for the settlement or simplification of
issues by consent of the parties;
(6) Dispose of procedural requests or similar matters;
(7) Accept stipulated agreements;
(8) Take other action authorized by the Ethics Commission
consistent with the provisions of this chapter.
(j) With respect to allegations of a violation under this
chapter, the complainant has the burden of proof. The West Virginia
Rules of Evidence governing proceedings in the courts of this state
shall be given like effect in hearings held before the commission
or a hearing examiner. The commission shall, by rule, regulate the
conduct of hearings so as to provide full procedural due process to
a respondent. Hearings before a hearing examiner shall be recorded
electronically. When requested by either of the parties, the
presiding officer shall order a transcript, verified by oath or
affirmation, of each hearing held and so recorded. In the
discretion of the commission, a record of the proceedings may be
made by a certified court reporter. Unless otherwise ordered by the
commission, the cost of preparing a transcript shall be paid by the
party requesting the transcript. Upon a showing of indigency, the
commission may provide a transcript without charge. Within fifteen
days following the hearing, either party may submit to the hearing
examiner that party's proposed findings of fact. The hearing
examiner shall thereafter prepare his or her own proposed findings
of fact and make copies of the findings available to the parties.
The hearing examiner shall then submit the entire record to the
commission for final decision.
(k) The recording of the hearing or the transcript of
testimony, as the case may be, and the exhibits, together with all
papers and requests filed in the proceeding, and the proposed
findings of fact of the hearing examiner and the parties, constitute the exclusive record for decision by the commission,
unless by leave of the commission a party is permitted to submit
additional documentary evidence or take and file depositions or
otherwise exercise discovery.
(l) The commission shall set a time and place for the hearing
of arguments by the complainant and respondent, or their respective
representatives, and shall notify the parties thereof. Briefs may
be filed by the parties in accordance with procedural rules
promulgated by the commission. The commission shall issue a final
decision in writing within forty-five days of the receipt of the
entire record of a hearing held before a hearing examiner or, in
the case of an evidentiary hearing held by the commission acting as
a hearing board in lieu of a hearing examiner, within twenty-one
days following the close of the evidence.
(m) A decision on the truth or falsity of the charges against
the respondent and a decision to impose sanctions must be approved
by at least seven members of the commission.
(n) Members of the commission shall recuse themselves from a
particular case upon their own motion with the approval of the
commission or for good cause shown upon motion of a party. The
remaining members of the commission shall may, by majority vote,
select a temporary member of the Commission to replace a recused
member: Provided, That the temporary member selected to replace a
recused member shall be a person of the same status or category,
provided by subsection (b), section one of this article, as the
recused member.
(o) Except for statements made in the course of official duties to explain commission procedures, no member or employee or
former member or employee of the commission may make any public or
nonpublic comment about any proceeding previously or currently
before the commission. Any member or employee or former member or
employee of the commission who violates this subsection is subject
to the penalties contained in subsection (e), section ten of this
article. In addition, violation of this subsection by a current
member or employee of the Commission is grounds for immediate
removal from office or termination of employment.
(p) A complainant may be assisted by a member of the
Commission staff assigned by the commission after a determination
of probable cause.
(q) No employee of the commission assigned to prosecute a
complaint may participate in the commission deliberations or
communicate with commission members or the public concerning the
merits of a complaint.
(r)(1) If the commission finds by evidence beyond a reasonable
doubt that the facts alleged in the complaint are true and
constitute a material violation of this article, it may impose one
or more of the following sanctions:
(A) Public reprimand;
(B) Cease and desist orders;
(C) Orders of restitution for money, things of value, or
services taken or received in violation of this chapter;
(D) Fines not to exceed five thousand dollars per violation;
or
(E) Reimbursement to the commission for the actual costs of
investigating and prosecuting a violation. Any reimbursement
ordered by the commission for its costs under this paragraph shall
be collected by the commission and deposited into the special
revenue account created pursuant to section six, article one of
this chapter.
(2) In addition to imposing the above-specified sanctions, the
commission may recommend to the appropriate governmental body that
a respondent be terminated from employment or removed from office.
(3) The commission may institute civil proceedings in the
circuit court of the county in which a violation occurred for the
enforcement of sanctions.
(s) At any stage of the proceedings under this section, the
commission may enter into a conciliation agreement with a
respondent if the agreement is deemed by a majority of the members
of the commission to be in the best interest of the state and the
respondent. Any conciliation agreement must be disclosed to the
public: Provided, That negotiations leading to a conciliation
agreement, as well as information obtained by the commission during
the negotiations, shall remain confidential except as may be
otherwise set forth in the agreement.
(t) Decisions of the commission involving the issuance of
sanctions may be appealed to the circuit court of Kanawha County,
or to the circuit court of the county where the violation is
alleged to have occurred, only by the respondent and only upon the
grounds set forth in section four, article five, chapter twenty-
nine-a of this code.
(u)(1) Any person who in good faith files a verified complaint
or any person, official or agency who gives credible information
resulting in a formal complaint filed by commission staff is immune
from any civil liability that otherwise might result by reason of
such actions.
(2) If the commission determines, by clear and convincing
evidence, that a person filed a complaint or provided information
which resulted in an investigation knowing that the material
statements in the complaint or the investigation request or the
information provided were not true; filed an unsubstantiated
complaint or request for an investigation in reckless disregard of
the truth or falsity of the statements contained therein; or filed
one or more unsubstantiated complaints which constituted abuse of
process, the commission shall:
(A) Order the complainant or informant to reimburse the
respondent for his or her reasonable costs;
(B) Order the complainant or informant to reimburse the
respondent for his or her reasonable attorney fees; and
(C) Order the complainant or informant to reimburse the
commission for the actual costs of its investigation. In addition,
the commission may decline to process any further complaints
brought by the complainant, the initiator of the investigation or
the informant.
(3) The sanctions authorized in this subsection are not
exclusive and do not preclude any other remedies or rights of
action the respondent may have against the complainant or informant under the law.
(v) (1) If at any stage in the proceedings under this section
it appears to a Review Board, a hearing examiner or the commission
that there is credible information or evidence that the respondent
may have committed a criminal violation, the matter shall be
referred to the full commission for its consideration. If, by a
vote of two thirds of the members of the full commission, it is
determined that probable cause exists to believe a criminal
violation has occurred, the commission shall refer the matter to
the appropriate county prosecuting attorney having jurisdiction for
a criminal investigation and possible prosecution. Deliberations of
the commission with regard to referring a matter for criminal
investigation by a prosecuting attorney shall be private and
confidential. Notwithstanding any other provision of this article,
once a referral for criminal investigation is made under the
provisions of this subsection, the ethics proceedings shall be held
in abeyance until action on the referred matter is concluded. If
the referral of the matter to the prosecuting attorney results in
a criminal conviction of the respondent, the commission may resume
its investigation or prosecution of the ethics violation, but may
not impose a fine as a sanction if a violation is found to have
occurred.
(2) If fewer than two thirds of the full commission determine
that a criminal violation has occurred, the commission shall remand
the matter to the Review Board, the hearing examiner or the
commission itself as a hearing board, as the case may be, for
further proceedings under this article.
(w) The provisions of this section shall apply to violations
of this chapter occurring after the thirtieth day of September, one
thousand nine hundred eighty-nine, and within one year before the
filing of a complaint: Provided, That the applicable statute of
limitations for violations which occur on or after the first day of
July, two thousand five, is two years after the date on which the
alleged violation occurred.
§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.
(2) (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:
(1) (A) That official is a part-time elected public official;
(2) (B) The fee is not related to the official's public
position or duties;
(3) (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
(4) (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 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:
(i) (A) Advancing the effectiveness, independence and
integrity of legislatures in the states of the United States;
(ii) (B) Fostering interstate cooperation and facilitating
information exchange among state legislatures;
(iii) (C) Representing the states and their legislatures in
the American federal system of government;
(iv) (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;
(v) (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. -
(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 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 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) 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 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 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.
(A) An interest which does not exceed one thousand dollars 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 five thousand dollars.
(3) 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 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.
(3) (4) 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 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 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. -- 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 six months 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 to 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.
(5) (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.
(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, 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 12 months: Provided, That, this limitation only
applies if the total amount of the loan or loans exceeds fifteen
thousand dollars.
(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 the nonprofit.
(II) 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 ten thousand dollars; 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.
(j) (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 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 article
three, eight, fourteen, fourteen-a, fifteen, sixteen, twenty,
twenty-one or thirty-one, chapter thirty of this code.
(k) (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.
(l) (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.
(m) (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.
(n) (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.
(o) (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.
ARTICLE 3. LOBBYISTS.
§6B-3-3c. Lobbyist training course.
The commission shall provide a training course for registered
lobbyists and prospective lobbyists at least twice each year
regarding the provisions of the ethics code relevant to lobbyists.
One such course shall be conducted during the month of January. In
addition to the registration fees authorized in section three-a of
this article, the commission may collect a reasonable fee
established by legislative rule authorized pursuant to article
three, chapter twenty-nine-a of this code from those attending
lobbyist training, which is to be collected by the Ethics Commission
and deposited pursuant to section six, article one of this chapter.
To maintain registration and engage in lobbying activities, a
lobbyist must complete one such training course per year during each
two-year registration cycle as described in section three-a of this
article: Provided, That a lobbyist must attend such training course
prior to engaging in lobbying activities.
§6B-3-4. Reporting by lobbyists.
(a) A registered lobbyist shall file with the commission
reports of his or her lobbying activities, signed by the lobbyist.
The reports shall be filed three times a year as follows:
(1) On or before the fifteenth day of May, a lobbyist shall
report all lobbying activities in which he or she engaged from the
first day of January through the thirtieth day of April.
(2) On or before the fifteenth day of September, a lobbyist
shall report all lobbying activities in which he or she engaged from
the first day of May through the thirty-first day of August;
(3) On or before the fifteenth day of January, a lobbyist shall
report all lobbying activities in which he or she engaged from the
first day of September through the thirty-first day of December.
(b) If the date on which a lobbyist expenditure report is due
falls on a Saturday, Sunday or legal holiday, the report will be
considered timely filed if it is postmarked not later than the next
business day. If a registered lobbyist files a late report, the
lobbyist shall pay the commission a fee of ten dollars for each late
day, not to exceed a total of two hundred fifty dollars. If a
registered lobbyist fails to file a report or to pay the required
fee for filing an untimely report, the commission may, after written
notice sent by registered certified mail, return receipt requested,
suspend the lobbyist's privileges as a registered lobbyist until the
lobbyist has satisfactorily complied with all reporting requirements
and paid the required fee.
(c)(1) Except as otherwise provided in this section, each
report filed by a lobbyist shall show the total amount of all expenditures for lobbying activities made or incurred by on behalf
of the lobbyist during the period covered by the report. The report
shall also show subtotals segregated according to financial
category, including meals and beverages; living accommodations;
advertising; travel; contributions; gifts to public officials or
employees or to members of the immediate family of a public official
or employee; and other expenses or services.
(2) Lobbyists are not required to report the following:
(A) Unreimbursed personal living and travel expenses not
incurred directly for lobbying;
(B) Any expenses incurred for the lobbyist's own living
accommodations;
(C) Any expenses incurred for the lobbyist's own travel to and
from public meetings or hearings of the legislative and executive
branches; or
(D) Any expenses incurred for telephone and any office
expenses, including rent and salaries and wages paid for staff and
secretarial assistance.
(d) If a lobbyist is employed by more than one employer, the
report shall show the proportionate amount of the expenditures in
each category incurred on behalf of each of his or her employers.
(e) The report shall describe the subject matter of the
lobbying activities in which the lobbyist has been engaged during
the reporting period.
(f) If, during the period covered by the report, the lobbyist
made expenditures or expenditures were made or incurred on behalf of the lobbyist in the reporting categories of meals and beverages,
living accommodations, travel, gifts or other expenditures, other
than for those expenditures governed by subsection (g) of this
section, the lobbyist shall report the name of the public official
or employee to whom or on whose behalf the expenditures were made,
the total amount of the expenditures, and the subject matter of the
lobbying activity, if any: Provided, That a registered lobbyist who
entertains more than one public official or public employee at a
time with meals and beverages complies with the provisions of this
section if he or she reports the names of the public officials or
public employees entertained and the total amount expended for meals
and beverages for all of the public officials or public employees
entertained: Provided, however, That where several lobbyists join
in entertaining one or more public officials or public employees at
a time with meals and beverages, each lobbyist complies with the
provisions of this section by reporting the names of the public
officials or public employees entertained and his or her
proportionate share of the total amount expended for meals and
beverages for all of the public officials or public employees
entertained. Under this subsection, no portion of the amount of an
expenditure for a dinner, party or other function sponsored by a
lobbyist's employer need be attributed to a particular public
official or employee who attends the function if the sponsor has
invited to the function all the members of: (1) The Legislature; (2)
either house of the Legislature; (3) a standing or select committee
of either house; or (4) a joint committee of the two houses of the
Legislature. However, the amount spent for the function shall be
added to other expenditures for the purpose of determining the total amount of expenditures reported under subdivision (1), subsection
(c) of this section: Provided further, That if the expenditure is
for a function to which the entire membership of the Legislature has
been invited, the lobbyist need only report that fact, the total
amount of the expenditure and the subject matter of the lobbying
activity.
(g) If, during the period covered by the report, the lobbyist made
expenditures in the reporting categories of meals and beverages,
lodging, travel, gifts and scheduled entertainment for or on behalf
of a particular public official or public employee in return for the
participation of the public official or employee in a panel or
speaking engagement at a meeting, the lobbyist shall report the name
of the public official or employee to whom or on whose behalf the
expenditures were made and the total amount of the expenditures.