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Introduced Version House Bill 4473 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2018 regular session

Introduced

House Bill 4473

By Delegates Sobonya, C. Romine, Westfall, Overington, Ambler, Butler, C. Miller, Rowan, Ward, Householder and Rohrbach

[Introduced February 8, 2018; Referred to the Committee on the Judiciary.]

A BILL to amend and reenact §6B-2B-1, §6B-2B-2 and §6B-2B-4 of the Code of West Virginia, 1931, as amended, all relating to use of state funds for advertising to promote a public official or government office; defining terms; and clarifying limitations on the production of educational materials and press releases produced with public funds.

Be it enacted by the Legislature of West Virginia:


ARTICLE 2B. LIMITATIONS ON A PUBLIC OFFICIAL FROM USING HIS OR HER NAME OR LIKENESS.

§6B-2B-1. Definitions.

As used in this article:

(a) “Advertising” means publishing, distributing, disseminating, communicating, or displaying information to the general public through audio, visual, or other media tools with the purpose, in whole or in part, of promoting the activities, accomplishments, or efforts of a public official or a political partyIt includesAdvertising” may include, but is not limited to, billboard, radio, television, mail, electronic mail, publications, banners, table skirts, magazines, social media, websites, and other forms of publication, dissemination, display, or communication.

(b) “Agent” means any volunteer or employee, contractual or permanent, serving at the discretion of a public official or public employee.

(c) “Educational materials” means publications, guides, calendars, handouts, pamphlets, reports, or booklets intended to provide information about the public official or governmental office.  It includes information or details about the office, services the office provides to the public, updates on laws and services, and other informational items that are intended to educate the public.

(d) “Instructional material” means written instructions explaining or detailing steps for completion of a governmental agency document or form.

(e) “Likeness” means a photograph, drawing, or other depiction of an individual.

(f) “Mass media communication” means communication through audio, visual, or other media tools, including U.S. mail, electronic mail, and social media, intended for general dissemination to the public.  Examples include mass mailing by U.S. mail, list-serve emails and streaming clips on websites. It does not include: (i) Regular responses to constituent requests or questions during the normal course of business; or (ii) communications that are authorized or required by law to be publicly disseminated, such as legal notices.

(g) “Press release” means a written, audio, or video communication issued by an official or agency to members and organizations of the news media to report specific, but brief information about an event, circumstance, or other happening.

(g) (h) "Public employee" means any full-time or part-time employee of any state, or political subdivision of the state, and their respective boards, agencies, departments, and commissions, or in any other regional or local governmental agency.

(h) (i) "Public official" means any person who is elected or appointed to any state, county, or municipal office or position, including boards, agencies, departments, and commissions, or in any other regional or local governmental agency.

(i) (j) “Public payroll” means payment of public moneys as a wage or salary from the state, or political subdivision of the state, or any other regional or local governmental agency, whether accepted or not.

(j) (k) “Social media” means forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content. It includes web and mobile-based technologies which are used to turn communication to interactive dialogue among organizations, communities, and individuals. Examples include, but are not limited to, Facebook, Myspace, Twitter, and YouTube.

(k) (l) “Trinkets” means items of tangible personal property that are not vital or necessary to the duties of the public official's or public employee's office, including, but not limited to, the following: magnets, mugs, cups, key chains, pill holders, band-aid dispensers, fans, nail files, matches, and bags.

§6B-2B-2. Limitations on a public official from using his or her name or likeness.


(a) Trinkets. – Public officials, their agents, or anyone on public payroll may not place the public official's name or likeness on trinkets paid for with public funds: Provided, That when appropriate and reasonable, public officials may expend a minimal amount of public funds for the purchase of pens, pencils or other markers to be used during ceremonial signings.

(b) Advertising. – (1) Public officials, their agents, or anyone on public payroll may not use public funds, including funds of the office held by the public official, public employees, or public resources to distribute, disseminate, publish, or display the public official's name or likeness for the purpose of advertising to the general public.

(2) Notwithstanding the prohibitions in subdivision (1) of this subsection, the following conduct is not prohibited:

(A) A public official’s name and likeness may be used in a public announcement or mass media communication when necessary, reasonable, and appropriate to relay specific public safety, health, or emergency information.

(B) A public official’s name and likeness may appear on an agency’s social media and website provided if it complies with section three of this article.

(C) Dissemination of office press releases or agency information via email, social media or other public media tools for official purposes is not considered advertising or prohibited under this subsection, if it: (i) Is intended for a legitimate news or informational purpose; (ii) is not intended as a means of promotion of the public official; and (iii) is not being used as educational material.

(3) Banners and table skirts are considered advertising and may not include the public official’s name or likeness.

(4) Nothing in this article shall be interpreted as prohibiting public officials from using public funds to communicate with constituents in the normal course of their duties as public officials if the communications do not include any reference to voting in favor of the public official in an election.

(c) Vehicles. – Public officials, their agents, or any person on public payroll may not use or place the public official's name or likeness on any publicly owned vehicles.

(d) Educational Materials. – A public official’s name or likeness may not be placed on any educational material, that is paid for with public funds, in a form, manner or context that would serve a purpose of advertising by the public official or producer of the materials: Provided, That this prohibition does not apply to the submission of a report required to be issued by law.  The names of officials at any level within an agency or agencies may be included in directories, reports, reference books, or other educational materials, including, but not limited to, the West Virginia Blue Book, under the following conditions:

(1) The primary purpose of the material is to provide information about the processes, operations, structure, functions, or history of an agency, agencies, or branch of government, or to provide lists of contact information or other identifying information about multiple individuals; and

(2) No named official is singled out, given preferential treatment, or otherwise presented in a form, manner, or context that has the purpose or effect of promoting the activities, accomplishments, or efforts of that official or of a political party.

(e) Press releases. – The name of a public official may be included in a press release, produced with public funds and disseminated by any means, if the press release is intended for a legitimate news or informational purpose and, considered as a whole, does not feature or present the public official in a form, manner, or context intended to promote the official. A press release produced with public funds may not request, solicit, or promote voting for an official or political party.

§6B-2B-4.  Exceptions to use of name or likeness.


(a) A public official may use his or her name or likeness on any official record or report, letterhead, document, or certificate or instructional material issued in the course of his or her duties as a public official: Provided, That other official documents used in the normal course of the agency, including, but not limited to, facsimile cover sheets, press release headers, office signage, and envelopes may include the public official’s name: Provided, however, if the That when official documents are reproduced for distribution or dissemination to the public as educational material, the items are subject to the prohibitions in subsection (d), section two of this article.

(b) When appropriate and reasonable, the West Virginia Division of Tourism may use a public official’s name and likeness on material used for tourism promotion.

(c) The prohibitions contained in this article do not apply to any person who is employed as a member of the faculty, staff, administration, or president of a public institution of higher education and who is engaged in teaching, research, consulting, coaching, recruiting, or publication activities: Provided, That the activity is approved as a part of an employment contract with the governing board of the institution of higher education 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.

(d) The prohibitions contained in section two of this article do not apply to a public official’s campaign-related expenditures or materials items paid from the public official’s campaign funds.

(e) The prohibitions contained in section two of this article do not apply to items paid for with the public official’s personal money.

(f) The prohibitions contained in section two of this article do not apply to items or materials required by law to contain the public official’s name or likeness.

 

NOTE: The purpose of this bill is to clarify the definition of “advertising” relating to the promotion of a public official or government office and to distinguish between advertising and purely educational materials and to make allowances for press releases intended for legitimate news and informational purposes.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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