Senate Bill No. 344
(By Senator Walker)
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[Introduced February 14, 1995; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact sections five, six and ten, article
two, chapter six-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend
and reenact sections one, two and four, article three of
said chapter, all relating to the ethical standards for
elected and appointed officials and public employees;
financial disclosure statements, filing requirements;
definitions; registration of lobbyists; and reporting by
lobbyists.
Be it enacted by the Legislature of West Virginia:
That sections five, six and ten, article two, chapter six-b
of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that sections one,
two and four, article three of said chapter be amended and
reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC
OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC
AGENCIES.
§6B-2-5. Ethical standards for elected and appointed officials
and public employees.
(a)
Persons subject to section. -- The provisions of this
section apply to all elected and appointed public officials and
public employees, whether full or part time, in state, county,
municipal governments and their respective boards, agencies,
departments and commissions and in any other regional or local
governmental agency, including county school boards.
(b)
Use of public office for private gain. -- (1) A public
official or public employee may not knowingly and intentionally
use his or her office or the prestige of his or her office for
his or her own private gain or that of another person. The
performance of usual and customary duties associated with the
office or position or the advancement of public policy goals or
constituent services, without compensation, does not constitute the use of prestige of office for private gain.
(2) The Legislature, in enacting this subsection (b),
relating to the use of public office or public employment for
private gain, recognizes that there may be certain public
officials or public employees who bring to their respective
offices or employment their own unique personal prestige which is
based upon their intelligence, education, experience, skills and
abilities, or other personal gifts or traits. In many cases,
these persons bring a personal prestige to their office or
employment which inures to the benefit of the state and its
citizens. Such persons may, in fact, be sought by the state to
serve in their office or employment because, through their
unusual gifts or traits, they bring stature and recognition to
their office or employment and to the state itself. While the
office or employment held or to be held by such persons may have
its own inherent prestige, it would be unfair to such individuals
and against the best interests of the citizens of this state to
deny such persons the right to hold public office or be publicly
employed on the grounds that they would, in addition to the emoluments of their office or employment, be in a position to
benefit financially from the personal prestige which otherwise
inheres to them. Accordingly, the commission is directed, by
legislative rule, to establish categories of such public
officials and public employees, identifying them generally by the
office or employment held, and offering persons who fit within
such categories the opportunity to apply for an exemption from
the application of the provisions of this subsection. Such
exemptions may be granted by the commission, on a case-by-case
basis, when it is shown that: (A) The public office held or the
public employment engaged in is not such that it would ordinarily
be available or offered to a substantial number of the citizens
of this state; (B) the office held or the employment engaged in
is such that it normally or specifically requires a person who
possesses personal prestige; and (C) the person's employment
contract or letter of appointment provides or anticipates that
the person will gain financially from activities which are not a
part of his or her office or employment.
(c)
Gifts. -- (1) A public official or public employee may not solicit any gift unless the solicitation is for a charitable
purpose with no resulting direct pecuniary benefit conferred upon
the official or employee or his or her immediate family:
Provided, That no public official or public employee may solicit
for a charitable purpose any gift from any person who is also an
official or employee of the state and whose position as such is
subordinate to the soliciting official or employee:
Provided,
however, That nothing herein shall prohibit a candidate for
public office from soliciting a lawful political contribution.
No official or employee may knowingly accept any gift, directly
or indirectly, from a lobbyist or from any person whom the
official or employee knows or has reason to know:
(A) Is doing or seeking to do business of any kind with his
or her agency;
(B) Is engaged in activities which are regulated or
controlled by his or her agency; or
(C) Has financial interests which may be substantially and
materially affected, in a manner distinguishable from the public
generally, by the performance or nonperformance of his official duties.
(2) Notwithstanding the provisions of subdivision (1) of
this subsection, a person who is a public official or public
employee may accept a gift described in this subdivision, and
there shall be a presumption that the receipt of such gift does
not impair the impartiality and independent judgment of the
person. This presumption may be rebutted only by direct
objective evidence that the gift did impair the impartiality and
independent judgment of the person or that the person knew or had
reason to know that the gift was offered with the intent to
impair his or her impartiality and independent judgment. The
provisions of subdivision (1) of this subsection do not apply to:
(A) Meals and beverages;
(B) Ceremonial gifts or awards which have insignificant
monetary value;
(C) Unsolicited gifts of nominal value or trivial items of
informational value;
(D) Reasonable expenses for food, travel and lodging of the
official or employee for a meeting at which the official or employee participates in a panel or speaking engagement at the
meeting;
(E) Gifts of tickets or free admission extended to a public
official or public employee to attend charitable, cultural or
political events, if the purpose of such gift or admission is a
courtesy or ceremony customarily extended to the office;
(F) Gifts that are purely private and personal in nature; or
(G) Gifts from relatives by blood or marriage, or a member
of the same household.
(3) The acceptance of an honorarium by an elected public
official is prohibited
except that, in the absence of any showing
that the elected public official promised or furnished an
official action quid pro quo, an honorarium or fee for services
actually rendered by a part-time elected public official may be
accepted where such honorarium or fee is in no way related to the
official's public position and is for services actually rendered
in connection with the part-time elected public official's
regular, nonpublic trade, profession, occupation, hobby or
avocation. The commission shall, by legislative rule, establish guidelines for the acceptance of reasonable honorariums by all
other public officials and public employees.
other than elected
public officials
(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 such gift so obtained shall become the
property of the state and shall, within thirty days of the
receipt thereof, be registered with the commission and the
division of culture and history.
(d)
Interests in public contracts. -- (1) In addition to
the provisions of section fifteen, article ten, chapter sixty-one
of this code, no elected or appointed public official or public
employee or member of his or her immediate family or business
with which he or she is associated may be a party to or have an
interest in the profits or benefits of a contract which such
official or employee may have direct authority to enter into, or over which he or she may have control:
Provided, That nothing
herein shall be construed to prevent or make unlawful the
employment of any person with any governmental body:
Provided,
however, That nothing herein shall be construed to prohibit a
member of the Legislature from entering into a contract with any
governmental body, or prohibit a part-time appointed public
official from entering into a contract which such part-time
appointed public official may have direct authority to enter into
or over which he or she may have control when such official has
been recused from deciding or evaluating and excused from voting
on such contract and has fully disclosed the extent of such
interest in the contract.
(2) In the absence of bribery or a purpose to defraud, an
elected or appointed public official or public employee or a
member of his or her immediate family or a business with which he
or she is associated shall not be considered as having an
interest in a public contract when such a person has a limited
interest as an owner, shareholder or creditor of the business
which is the contractor on the public contract involved. A limited interest for the purposes of this subsection is:
(A) An interest:
(i) Not exceeding ten percent of the partnership or the
outstanding shares of a corporation; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract; or
(B) An interest as a creditor:
(i) Not exceeding ten percent of the total indebtedness of
a business; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract.
(3) Where the provisions of subdivisions (1) and (2) of this
subsection would result in the loss of a quorum in a public body
or agency, in excessive cost, undue hardship, or other
substantial interference with the operation of a state, county,
municipality, county school board or other governmental agency,
the affected governmental body or agency may make written
application to the ethics commission for an exemption from
subdivisions (1) and (2) of this subsection.
(e)
Confidential information. -- No present or former public
official or employee may knowingly and improperly disclose any
confidential information acquired by him or her in the course of
his or her official duties nor use such information to further
his or her personal interests or the interests of another person.
(f)
Prohibited representation. -- No present or former
elected or appointed public official or public employee shall,
during or after his or her public employment or service,
represent a client or act in a representative capacity with or
without compensation on behalf of any person in a contested case,
rate-making proceeding, license or permit application, regulation
filing or other particular matter involving a specific party or
parties which arose during his or her period of public service or
employment and in which he or she personally and substantially
participated in a decision-making, advisory or staff support
capacity, unless the appropriate government agency, after
consultation, consents to such representation. A staff attorney,
accountant or other professional employee who has represented a
government agency in a particular matter shall not thereafter represent another client in the same or substantially related
matter in which that client's interests are materially adverse to
the interests of the government agency, without the consent of
the government agency:
Provided, That this prohibition on
representation shall not apply when the client was not directly
involved in the particular matter in which such professional
employee represented the government agency, but was involved only
as a member of a class. The provisions of this subsection shall
not apply to legislators who were in office and legislative staff
who were employed at the time it originally became effective on
the first day of July, one thousand nine hundred eighty-nine and
those who have since become legislators or legislative staff and
those who shall serve hereafter as legislators or legislative
staff.
(g)
Limitation on practice before a board, agency,
commission or department. -- (1) No elected or appointed public
official and no full-time staff attorney or accountant shall,
during his or her public service or public employment or for a
period of six months after the termination of his or her public service or public employment with a governmental entity
authorized to hear contested cases or promulgate regulations,
appear in a representative capacity before the governmental
entity in which he or she serves or served or is or was employed
in the following matters:
(A) A contested case involving an administrative sanction,
action or refusal to act;
(B) To support or oppose a proposed regulation;
(C) To support or contest the issuance or denial of a
license or permit;
(D) A rate-making proceeding; and
(E) To influence the expenditure of public funds.
(2) As used in this subsection, "represent" includes any
formal or informal appearance before, or any written or oral
communication with, any public agency on behalf of any person:
Provided, That nothing contained in this subsection shall
prohibit, during any period, a former public official or employee
from being retained by or employed to represent, assist, or act
in a representative capacity on behalf of the public agency by which he or she was employed or in which he or she served.
Nothing in this subsection shall be construed to prevent a former
public official or employee from representing another state,
county, municipal or other governmental entity before the
governmental entity in which he or she served or was employed
within six months after the termination of his or her employment
or service in the entity.
(3) A present or former public official or employee may
appear at any time in a representative capacity before the
Legislature, a county commission, city or town council or county
school board in relation to the consideration of a statute,
budget, ordinance, rule, resolution or enactment.
(4) Members and former members of the Legislature and
professional employees and former professional employees of the
Legislature shall be permitted to appear in a representative
capacity on behalf of clients before any governmental agency of
the state, or of county or municipal governments including county
school boards.
(5) An elected or appointed public official, full-time staff attorney or accountant who would be adversely affected by the
provisions of this subsection may apply to the ethics commission
for an exemption from the six months prohibition against
appearing in a representative capacity, when the person's
education and experience is such that the prohibition would, for
all practical purposes, deprive the person of the ability to earn
a livelihood in this state outside of the governmental agency.
The ethics commission shall by legislative rule establish general
guidelines or standards for granting an exemption or reducing the
time period, but shall decide each application on a case-by-case
basis.
(h)
Seeking employment with regulated person prohibited. --
(1) No full-time public official or full-time public employee
who
exercises policymaking, nonministerial or regulatory authority
may seek employment with, or allow himself or herself to be
employed by, any person who is or may be regulated by the
governmental body which he or she serves while he or she is
employed or serves in the governmental agency. The term
"employment" within the meaning of this section includes professional services and other services rendered by the public
official or public employee whether rendered as an employee or as
an independent contractor.
(2) No person regulated by a governmental agency shall offer
employment to a full-time public official or full-time public
employee of the regulating governmental agency during the period
of time the public official or employee works or serves in such
agency.
(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 against seeking employment with a person who
is or may be regulated, 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, but shall decide upon
each application on a case-by-case basis. may seek employment with, or allow himself or herself to be employed by any person
who:
(A) Is subject, on a recurring basis, to his or her personal
regulatory action or the personal regulatory action of a
subordinate; or
(B) Had a matter on which he or she took regulatory action
within the preceding six months; or
(C) Has a matter before the agency on which he or she is
working or a subordinate is known by him or her to be working.
(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 an employee or as an independent contractor, as well
as the sale and lease of real and personal property; "seek
employment" includes responding to unsolicited offers of
employment as well as any direct or indirect contact with a
potential employer relating to the availability or conditions of
employment in furtherance of obtaining employment; and
"subordinate" includes only those agency personnel over whom the public servant has supervisory responsibility.
(3) A full-time public official or full-time public employee
who would be adversely affected by the provisions of this
subsection may apply to the ethics commission for an exemption
from the prohibition contained in subdivision (1) of this
subsection. The ethics commission shall by legislative rule
establish general guidelines or standards for granting an
exemption, but shall decide upon each application on a case-by-
case basis.
(4) A full-time public official or full-time public employee
may not take personal regulatory action on a matter affecting a
person by whom he or she is employed or with whom he or she is
seeking employment or has an agreement concerning future
employment.
(5) A full-time public official or full-time public employee
may not receive private compensation for providing information or
services that he or she is required to provide in carrying out
his or her public job responsibilities.
(i)
Members of the Legislature required to vote. -- Members of the Legislature who have asked to be excused from voting or
who have made inquiry as to whether they should be excused from
voting on a particular matter and who are required by the
presiding officer of the House of Delegates or Senate of West
Virginia to vote under the rules of the particular house shall
not be guilty of any violation of ethics under the provisions of
this section for a vote so cast.
(j)
Limitations on participation in licensing and rate-
making proceedings. -- No public official or employee may
participate within the scope of his or her duties as a public
official or employee, except through ministerial functions as
defined in section three, article one of this chapter, in any
license or rate-making proceeding that directly affects the
license or rates of any person, partnership, trust, business
trust, corporation or association in which the public official or
employee or his or her immediate family owns or controls more
than ten percent. No public official or public employee may
participate within the scope of his or her duties as a public
official or public employee, except through ministerial functions as defined in section three, article one of this chapter, in any
license or rate-making proceeding that directly affects the
license or rates of any person to whom the public official or
public employee or his or her immediate family, or a partnership,
trust, business trust, corporation or association of which the
public official or employee, or his or her immediate family, owns
or controls more than ten percent, has sold goods or services
totaling more than one thousand dollars during the preceding
year, unless the public official or public employee has filed a
written statement acknowledging such sale with the public agency
and the statement is entered in any public record of the agency's
proceedings. This subsection shall not be construed to require
the disclosure of clients of attorneys or of patients or clients
of persons licensed pursuant to articles three, eight, fourteen,
fourteen-a, fifteen, sixteen, twenty, twenty-one or thirty-one,
chapter thirty of this code.
(k)
Certain expenses prohibited. -- No public official or
public employee shall knowingly request or accept from any
governmental entity compensation or reimbursement for any expenses actually paid by a lobbyist and required by the
provisions of this chapter to be reported, or actually paid by
any other person.
(l) Any person who is employed as a member of the faculty or
staff of a public institution of higher education and who is
engaged in teaching, research, consulting or publication
activities in his or her field of expertise with public or
private entities and thereby derives private benefits from such
activities shall be exempt from the prohibitions contained in
subsections (b), (c) and (d) of this section when the activity is
approved as a part of an employment contract with the governing
board of such institution or has been approved by the employees'
department supervisor or the president of the institution by
which the faculty or staff member is employed.
(m) Business solicitation of subordinates prohibited.
Public officials and public employees may not personally solicit
private business from a person they know to be subordinate to
them in the governmental agency in which they serve. Prohibited
personal solicitations include solicitations made in person, by phone or personal letter. Prohibited personal solicitations do
not include mail solicitations directed to the public at large or
solicitations at a place of business maintained by the public
official or public employee to which the subordinate has come on
his or her own initiative. This prohibition shall apply to
members of the West Virginia Legislature only in regard to
subordinate legislative employees.
(m) (n) The commission by legislative rule promulgated in
accordance with chapter twenty-nine-a of this code may define
further exemptions from this section as necessary or appropriate.
§6B-2-6. Financial disclosure statement; filing requirements.
(a) The requirements for filing a financial disclosure
statement shall become initially effective on the first day of
February, one thousand nine hundred ninety, for all persons
holding public office or employment on that date and who are
otherwise required to file such statement under the provisions of
this section. The initial financial disclosure statement shall
cover the period from the first day of July, one thousand nine
hundred eighty-nine, for the period ending the thirty-first day of January, one thousand nine hundred ninety. Thereafter, the
financial disclosure statement shall be filed on the first day of
February of each calendar year to cover the period of the
preceding calendar year, except insofar as may be otherwise
provided herein. The following persons must file the financial
disclosure statement required by this section with the ethics
commission:
(1) All elected officials in this state, including, but not
limited to, all persons elected statewide, all county elected
officials, municipal elected officials in municipalities which
have, by ordinance, opted to be covered by the disclosure
provisions of this section, all members of the several county or
district boards of education and all county or district school
board superintendents;
(2) All members of state boards, commissions and agencies
appointed by the governor; and
(3) Secretaries of departments, commissioners, deputy
commissioners, assistant commissioners, directors, deputy
directors, assistant directors, department heads, deputy department heads and assistant department heads.
A person who is required to file a financial disclosure
statement under this section by virtue of becoming an elected or
appointed public official whose office is described in
subdivision (1), (2) or (3) of this subsection, and who assumes
the office less than ten days before a filing date established
herein or who assumes the office after the filing date, shall
file a financial disclosure statement for the previous twelve
months no later than thirty days after the date on which the
person assumes the duties of the office, unless the person has
filed a financial disclosure statement with the commission during
the twelve-month period before he or she assumed office.
(b) A candidate for public office shall file a financial
disclosure statement for the previous
twelve months calendar year
with the state ethics commission no later than ten days after he
or she files a certificate of candidacy, but in all
circumstances, not later than ten days prior to the election,
unless he or she has filed a financial disclosure statement with
the state ethics commission during the previous
twelve months calendar year.
The ethics commission shall file a duplicate copy of the
financial disclosure statement required in this section in the
following offices within ten days of the receipt of the
candidate's statement of disclosure:
(1) Municipal candidates in municipalities which have opted,
by ordinance, to be covered by the disclosure provisions of this
section, in the office of the clerk of the municipality in which
the candidate is seeking office;
(2) Legislative candidates in single county districts and
candidates for a county office or county school board in the
office of the clerk of the county commission of the county in
which the candidate is seeking office;
(3) Legislative candidates from multicounty districts and
congressional candidates in the office of the clerk of the county
commission of the county of the candidate's residence.
After a ninety day period following any election, the clerks
who receive the financial disclosure statements of candidates,
may destroy or dispose of those statements filed by candidates who were unsuccessful in the election.
(c) No candidate for public office may maintain his or her
place on a ballot and no public official may take the oath of
office or enter or continue upon his or her duties or receive
compensation from public funds, unless he or she has filed a
financial disclosure statement with the state ethics commission
as required by the provisions of this section.
(d) The state ethics commission may, upon request of any
person required to file a financial disclosure statement, and for
good cause shown, extend the deadline for filing such statement
for a reasonable period of time:
Provided, That no extension of
time shall be granted to a candidate who has not filed a
financial disclosure statement for the preceding filing period.
(e) No person shall fail to file a statement required by
this section.
(f) No person shall knowingly file a materially false
statement that is required to be filed under this section.
§6B-2-10. Violations and penalties.
(a) If any person violates the provisions of subsection
(e), (f), or (g) (f), (g) or (h), section five of this article, or
violates the provisions of subdivision (1), subsection (f),
section four of this article, such person, upon conviction
thereof, shall be guilty of a misdemeanor, and, shall be punished
by confinement in the county jail for a period not to exceed six
months or shall be fined not more than one thousand dollars, or
both such confinement and fine. If any person violating the
provisions of subdivision (1), subsection (f), section four of
this article shall be a member of the commission or an employee
thereof, he or she shall, upon conviction, be subject to
immediate removal or discharge.
(b) If any person violates the provisions of subsection (f),
section six of this article by willfully and knowingly filing a
false financial statement, such person shall, upon conviction
thereof, be deemed guilty of false swearing and shall be punished
as provided in section three, article five, chapter sixty-one of
this code.
(c) If any person knowingly fails or refuses to file a
financial statement required by section six of this article, such person, upon conviction thereof, shall be guilty of a
misdemeanor, and, shall be fined not less than one hundred
dollars nor more than one thousand dollars.
(d) If any complainant violates the provisions of
subdivision (2), subsection (f), section four, article two of
this chapter by knowingly and willfully disclosing any
information made confidential by an order of the commission, he
or she shall be subject to administrative sanction by the
commission as provided for in subsection (r), section four of
this article.
ARTICLE 3. LOBBYISTS.
§6B-3-1. Definitions.
As used in this article, unless the context in which used
clearly indicates otherwise:
(1) "Compensation" means money or any other thing of value
received or to be received by a lobbyist from an employer for
services rendered.
(2) "Employer" or "lobbyist's employer" means any person who
employs or retains a lobbyist.
(3) "Expenditure" means payment, distribution, loan, advance deposit, reimbursement, or gift of money, real or personal
property or any other thing of value; or a contract, promise or
agreement, whether or not legally enforceable.
(4) "Government officer or employee" means a member of the
Legislature, a legislative employee, the governor and other
members of the board of public works, heads of executive
departments, and any other public officer or public employee
under the legislative or executive branch of state government
who is empowered or authorized to make policy and perform non-
ministerial functions. In the case of elected offices included
herein, the term "government officer or employee" shall include
candidates who have been elected but who have not yet assumed
office.
(5) "Legislation" means bills, resolutions, motions,
amendments, nominations, and other matters pending or proposed in
either house of the Legislature, and includes any other matters
that may be the subject of action by either house or any
committee of the Legislature and all bills or resolutions that,
having passed both houses, are pending approval or veto by the governor.
(6) "Lobbying" or "lobbying activity" means the act of
communicating with a government officer or employee to promote,
advocate or oppose or otherwise attempt to influence:
(i) The passage or defeat or the executive approval or veto
of any legislation which may be considered by the Legislature of
this state; or
(ii) The adoption or rejection of any rule, regulation,
legislative rule, standard, rate, fee or other delegated
legislative or quasi-legislative action to be taken or withheld
by any executive department.
(7)(A) "Lobbyist" means a person who, through communication
with a government officer or employee, promotes, advocates or
opposes or otherwise attempts to influence:
(i) The passage or defeat or the executive approval or veto
of any legislation which may be considered by the Legislature of
this state; or
(ii) The adoption or rejection of any rule, regulation,
legislative rule, standard, rate, fee or other delegated legislative or quasi-legislative action to be taken or withheld
by any executive department.
(B) The term "lobbyist" shall not include the following
persons, who shall be exempt from the registration and reporting
requirements set forth in this article, unless such persons
engage in activities which would otherwise subject them to the
registration and reporting requirements:
(i) Persons who limit their lobbying activities to appearing
before public sessions of committees of the Legislature, or
public hearings of state agencies, are exempt.
(ii) Persons who limit their lobbying activities to
attending receptions, dinners, parties or other group functions
and make no expenditure for or on behalf of any governmental
official or employee in connection with such lobbying are exempt.
(ii) (iii) Persons who engage in news or feature reporting
activities and editorial comment as working members of the press,
radio, or television and persons who publish or disseminate such
news, features or editorial comment through a newspaper, book,
regularly published periodical, radio station or television station, are exempt.
(iii) (iv) Persons who lobby without compensation or other
consideration for acting as lobbyists,
when such persons make no
expenditure for or on behalf of any government officer or
employee in connection with such lobbying and whose total
expenditures for or on behalf of government officers and
employees in connection with such lobbying do not exceed twenty-
five dollars during any calendar year, are exempt. The exemption
contained in this subparagraph
(iii) (iv) is and subparagraph
(ii) are intended to permit and encourage citizens of this state
to exercise their constitutional rights to assemble in a
peaceable manner, consult for the common good, instruct their
representatives, and apply for a redress of grievances.
Accordingly, such persons may lobby without incurring any
registration or reporting obligation under this article. Any
person exempt under this subparagraph
(iii) (iv) or subparagraph
(ii) may at his or her option register and report under this
article.
(iv) (v) Persons who lobby on behalf of a nonprofit organization with regard to legislation, without compensation,
and who restrict their lobbying activities to no more than twenty
days or parts thereof during any regular session of the
Legislature, are exempt. The commission may promulgate a
legislative rule to require registration and reporting by persons
who would otherwise be exempt under this subparagraph, if it
determines that such rule is necessary to prevent frustration of
the purposes of this article. Any person exempt under this
subparagraph may at his or her option register and report under
this article.
(v) (vi) The governor, members of the governor's staff,
members of the board of public works, officers and employees of
the executive branch who communicate with a member of the
Legislature on the request of that member, or who communicate
with the Legislature, through the proper official channels,
requests for legislative action or appropriations which are
deemed necessary for the efficient conduct of the public business
or which are made in the proper performance of their official
duties, are exempt.
(vi) (vii) Members of the Legislature are exempt.
(vii) (viii) Persons employed by the Legislature for the
purpose of aiding in the preparation or enactment of legislation
or the performance of legislative duties are exempt.
(viii) (ix) Persons rendering professional services in
drafting proposed legislation or in advising or rendering
opinions to clients as to the construction and effect of proposed
or pending legislation, are exempt.
(8) "Person" means any individual, partnership, trust,
estate, business trust, association, or corporation; any
department, commission, board, publicly supported college or
university, division, institution, bureau, or any other
instrumentality of the state; or any county, municipal
corporation, school district or any other political subdivision
of the state.
§6B-3-2. Registration of lobbyists.
(a) Before engaging in any lobbying activity, or within
thirty days after being employed as a lobbyist, whichever occurs
first, a lobbyist shall register with the ethics commission by filing a lobbyist registration statement, signed under oath or
affirmation. The registration statement shall contain such
information and be in such form as the ethics commission may
prescribe by legislative rule, including, but not limited to, the
following information:
(1) The registrant's name, business address, telephone
numbers and any temporary residential and business addresses and
telephone numbers used or to be used by the registrant while
lobbying during a legislative session;
(2) The name, address and occupation or business of the
registrant's employer;
(3) A statement as to whether the registrant is employed or
retained by his or her employer solely as a lobbyist or is a
regular employee performing services for the employer which
include, but are not limited to, lobbying;
(4) A statement as to whether the registrant is employed or
retained by his or her employer under any agreement, arrangement
or understanding according to which the registrant's
compensation, or any portion thereof, is or will be contingent upon the success of his or her lobbying activity;
(5) The general subject or subjects, if known, on which the
registrant will lobby or employ some other person to lobby in a
manner which requires registration under this article;
(6) An appended written authorization from each of the
lobbyist's employers confirming the lobbyist's employment and the
subjects on which the employer is to be represented.
(b) A registrant who lobbies with regard to matters before
the Legislature must file duplicate copies of the lobbyist's
registration statement required by subsection (a) or (d) of this
section with the clerk of the Senate and the clerk of the House
of Delegates contemporaneously with the filing with the ethics
commission before engaging in any lobbying activity.
(c) Any lobbyist who receives or is to receive compensation
from more than one person for services as a lobbyist shall file
a separate notice of representation with respect to each person
compensating him or her for services performed as a lobbyist.
When a lobbyist whose fee for lobbying with respect to the same
subject is to be paid or contributed by more than one person, then such lobbyist may file a single statement, in which he shall
detail the name, business address and occupation of each person
so paying or contributing.
(d) Whenever a change, modification or termination of the
lobbyist's employment occurs, the lobbyist shall, within one week
of such change, modification or termination, furnish full
information regarding the same by filing with the commission an
amended registration statement.
(e) Each lobbyist who has registered shall file a new
registration statement, revised as appropriate, on the
second
Monday
preceding the second Wednesday in January of each
odd-numbered year, and failure to do so shall terminate his
registration. Until such registration is renewed, the person may
not engage in lobbying activities unless he or she is otherwise
exempt under paragraph (B), subdivision (7), section one of this
article.
§6B-3-4. Reporting by lobbyists.
(a) A lobbyist shall file with the commission reports of his
lobbying activities, signed under oath or affirmation by the lobbyist. Lobbyists who are required under this article to file
copies of their registration statements with the clerks of the
respective houses of the Legislature shall also contemporaneously
file copies of all reports required under this section with the
clerks. Such reports shall be filed as follows:
(1) On or before the
second Monday
preceding the second
Wednesday in January of each year, a lobbyist shall file an
annual report of all lobbying activities which he or she engaged
in during the preceding calendar year; and
(2) If a lobbyist engages in lobbying with respect to
legislation, then:
(A) Between the fortieth and forty-fifth days of any regular
session of the Legislature in which any such lobbying occurred,
the lobbyist shall file a report describing all of his or her
lobbying activities which occurred since the beginning of the
calendar year; and
(B) Within twenty-one days after the adjournment sine die of
any regular or extraordinary session of the Legislature in which
any such lobbying occurred, the lobbyist shall file a report describing all of his or her lobbying activities which occurred
since the beginning of the calendar year or since the filing of
the last report required by this section, whichever is later.
(b)(1) Except as otherwise provided in this section, each
report filed by a lobbyist shall show the total amount of all
expenditures for lobbying made or incurred by such lobbyist, or
on behalf of such lobbyist by the lobbyist's employer, 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 such persons; 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 his or her own living
accommodations;
(C) Any expenses incurred for his or her own travel to and from public meetings or hearings of the legislative and executive
branches;
(D) Any expenses incurred for telephone, and any office
expenses, including rent and salaries and wages paid for staff
and secretarial assistance; and
(E) Separate expenditures to or on behalf of a public
official or employee in an amount of less than five dollars.
(c) If a lobbyist is employed by more than one employer, the
report shall show the proportionate amount of such expenditures
in each category incurred on behalf of each of his employers.
(d) The report shall describe the subject matter of the
lobbying activities in which the lobbyist has been engaged during
the reporting period.
(e) If, during the period covered by the report, the
lobbyist made expenditures in the reporting categories of meals
and beverages, living accommodations, travel, gifts or other
expenditures, other than for those expenditures governed by
subsection (f) of this section, which expenditures in any such
reporting category total more than twenty-five dollars to or on behalf of any particular public official or employee, 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. Under this subsection (e), no portion
of the amount of an expenditure for a dinner, party or other
function sponsored by a lobbyist or a lobbyist's employer need be
attributed to or counted toward the reporting amount of twenty-
five dollars for a particular public official or employee who
attends such 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 such function shall be added to
other expenditures for the purpose of determining the total
amount of expenditures reported under subsection (b) of this
section.
(f) 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, which reporting expenditures in any such reporting
category total more than twenty-five dollars 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 the 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.
NOTE: The purpose of this bill is to amend the ban on
receiving honorariums so that elected officials may receive
honorariums if they are not related to their public office. It
also amends the prohibition on full-time public servants seeking
employment with regulated persons by limiting the ban to those
persons subject to personal regulatory action on a recurring
basis or within the preceding six months and those persons who
have a matter before the agency the public servant or a
subordinate is working on.
The bill adds a prohibition against public servants
soliciting private business from subordinates unless the
subordinate initiates the communication or the solicitation is
part of an offer of services aimed to the public at large.
The bill provides for minor adjustment in the period covered
by the financial disclosure statements so that all statements
cover the same time period.
The bill creates two new categories for exemption from the
lobbyist registration and reporting requirements: (1) Those who
limit their lobbying activities to attending dinners and other
group functions and make no lobbying expenditures; and (2) those
who spend no more than twenty-five dollars on lobbying activities
in a calendar year. The bill also adjusts the dates for lobbyist
registration and annual reporting to ensure that such information
is available prior to the start of the regular session.
The bill makes technical changes and corrects typographical
errors.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.