Senate Bill No. 511
(By Senator Walker)
____________
[Introduced February 21, 1994; referred to the Committee
on the Judiciary.]
____________
A BILL to amend and reenact sections four, 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 governmental ethics generally;
providing for the filing of complaints and the procedures
for hearing such complaints by the West Virginia ethics
commission; authorizing the commission to investigate
purported ethics violations in the absence of a filed
complaint, and prescribing limitations on such
investigations; clarifying public contract prohibition
exemption; amending employment restrictions; adding conflict
of interest prohibition; adding exemptions from lobbyist
registration; and altering lobbying registration and
reporting dates.
Be it enacted by the Legislature of West Virginia:
That sections four, five, six and ten, article two, chaptersix-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-2-4. Complaints; dismissals; hearings; disposition; judicial
review.
(a) Upon the filing by any person with the commission of a
complaint which is duly verified by oath or affirmation, 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 complainant or his or
her representative personally filed the complaint with the
commission and was given a receipt or other acknowledgement
evidencing the filing. Within fourteen days after the receipt of
a complaint, an investigative panel shall be appointed to
investigate the substance of the allegations in the complaint and
to determine whether there is probable cause to believe that a
violation of this chapter has occurred. The commission shall
establish by legislative rule promulgated in accordance with
chapter twenty-nine-a of this code a rotation system for the
selection of commission members to sit on investigative panels
whereby the caseload of commission investigations is distributed
among commission members as evenly and randomly as possible.
(1) In the absence of a filed complaint, if the commission
otherwise receives or discovers factual information which, by its
general terms, fairly raises a question as to whether a violation
of this chapter might have occurred, the commission may proceed
to a preliminary evaluation of such information in accordance
with the provisions of this section. In conducting such
preliminary evaluation, the commission shall resolve the
following questions:
(A) Does the information, absent any evidentiary matters or
argumentative statements included therein, set forth a plain and
concise statement of an issue or issues which may properly be
considered and resolved by the commission?
(B) Would the allegations of facts contained in such
information, if eventually proved, be sufficient to constitute a
material violation of this chapter?
(C) Is it reasonable to expect that upon further
investigation, sufficient admissible evidence of consequence
would be obtainable to support or refute the existence of the
alleged facts and therefore make a determination by the
commission as to the existence of a violation of this chapter
more probable or less probable than it would be without such
evidence?
(2) After conducting the evaluation prescribed bysubdivision one of this subsection, a majority of the commission
shall make and record its findings as to each of the questions
set forth therein. To assist the commission in its consideration
of the findings required to be made by this subdivision, staff of
the commission shall prepare a list of all sources of information
and a written summary of the information which has been provided
by each source. No information from anonymous sources shall be
tendered by the staff of the commission or be received or
considered by the commission.
(3) If the investigative panel shall find that probable
cause exists to believe that a violation of this chapter has
occurred, the panel shall prepare and tender to the commission a
statement of charges as in the case of a filed complaint, and the
matter shall proceed in the same manner as if a complaint had
been filed. Once a finding of probable cause has been made, the
prior findings and determination of the commission shall not be
inquired into further or reviewed, and the matter shall proceed
upon the investigative panel's statement of charges.
(4) If, by a recorded vote, eight of the members of the
commission vote in the affirmative on each of the three questions
required by the preliminary evaluation described in subdivision
one of this section, then the commission shall appoint an
investigative panel of three of its members to investigate the
matter further to determine whether there is probable cause to
believe that a violation of this chapter has occurred:
Provided,
That commission members appointed to such investigative panelshall not participate in subsequent hearings or decisions of the
commission as to any statement of charges which may be brought in
accordance with the provisions of subdivision four of this
subsection by reason of the deliberations of the panel.
(5) If a majority of the commission declines to make any or
all of the findings required by subdivision two of this
subsection, or if less than eight of the members fail to answer
in the affirmative as to any of the questions required to be
answered by subdivision one of this subsection, or if the
investigative panel constituted pursuant to subdivision three of
this subsection shall decline to to present a statement of
charges, then all reports, records and documents of the
commission pertaining to the matter shall be laid before the
commission and the commission shall thereupon seal the same and
identify the sealed record only by a coded number or other
appropriate notation which will secure the confidentiality of its
contents in conformity with the provisions of this chapter. The
sealed record shall be reopened only for the conduct of a
proceeding which charges a source of information with having
acted in bad faith as provided for in subsection (u) of this
section, or upon the written request of the person who was the
subject of the purported violation or his or her counsel, or upon
the concurring vote of not less than eight members of the
commission for the purpose of a subsequent proceeding, or
pursuant to the appropriate order of a court of competent
jurisdiction.
(6) Unless and until a finding of probable cause is made by
the investigative panel, the proceedings under this subsection
shall be as confidential in all respects as proceedings commenced
by reason of a filed complaint, and such proceedings shall be
conducted by the commission in executive session or sessions.
The vote of the commission taken pursuant to the provisions of
subdivision three of this subsection shall be made in executive
session and shall not be subject to disclosure nor set forth in
the public meetings of the commission, notwithstanding the
provisions of chapter six, article nine-a of this code.
(b) (c) In the case of a filed complaint, the first inquiry
of the investigative panel shall be a question as to whether or
not 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 investigative
panel to be insufficient in this regard, or if it is apparent on
the face of the complaint that the time period for limitations on
proceedings has passed, the investigative panel shall dismiss the
complaint. A dismissal under this subsection shall not preclude
the commission from initiating an investigation on its own
initiative under the provisions of subsection (b) of this
section.
(c) (d) After the commission receives a complaint found by
the investigative panel to be sufficient, or makes a decision to
investigate probable violations after a preliminary evaluationmade in accordance with the provisions of subsection (b) of this
section, the executive director shall give notice of a pending
investigation by the investigative panel to the complainant and
respondent and, where appropriate, the complainant. 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 the basis for an alleged violation of law,
and if a complaint has been filed, 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 investigative panel, 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) (e) Within the forty-five day period following the
mailing of a notice of investigation, the investigative panel
shall proceed to consider (1) the allegations raised in the
complaint, or by the commission's inquiry, (2) any timelyreceived 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 shall be afforded the opportunity to appear before the
investigative panel and make an oral response to the complaint.
The commission shall, in promulgating legislative rules pursuant
to the provisions of subsection (a), section two of this article,
prescribe the manner in which a respondent may present his or her
oral response to the investigative panel. The commission may
request a respondent to disclose specific amounts received from
a source, and 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 deemed
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
(f) of this section. If the person so requested fails or refuses
to furnish the information to the commission, the commission may
exercise its subpoena power as provided for elsewhere in this
chapter, and any subpoena issued thereunder shall have the same
force and effect as a subpoena issued by a circuit court of this
state, and enforcement of any such subpoena may be had upon
application to a circuit court of the county in which the
investigative panel is conducting an investigation, through the
issuance of a rule or an attachment against the respondent as in
cases of contempt.
(e) (f) (1) 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,
shall be confidential and shall not be knowingly and improperly
disclosed by any member or former member of the commission or its
staff, except as follows:
(A) Upon a finding that probable cause exists to believe
that a respondent has violated the provisions of this chapter,
the complaint and all reports, records, non-privileged and
nondeliberative material introduced at any probable cause hearing
held pursuant to the complaint are thereafter not confidential:
Provided,
That confidentiality of such information shall remain
in full force and effect until the respondent has been served by
the commission with a copy of the investigative panel's order
finding probable cause and with the statement of charges prepared
pursuant to the provisions of subsection (g) of this section.
(B) After a finding of probable cause as aforesaid, 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
such subsequent hearing, as well as the commission's orders, are
not confidential.
(C) The commission may release any information relating toan investigation at any time if the release has been agreed to in
writing by the respondent.
(D) The complaint as well as the identity of the complainant
shall be disclosed to a person named as respondent in any such
complaint filed with the commission immediately upon such
respondent's request.
(E) Where the commission is otherwise required by the
provisions of this chapter to disclose such information or to
proceed in such a manner that disclosure is necessary and
required to fulfill such 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 such information or filing a complaint
shall be bound to confidentiality until further order of the
commission.
(3) In any matter in which the commission or its staff has
opened a file for information relating to a possible violation of
this chapter by an individual which information did not result in
the filing of a statement of charges, the file containing such
information shall be destroyed in the presence of the commissionat the expiration of five years after such file was opened except
that the commission may fix an earlier date before the expunging
of any class of such files for which it determines that
preservation for five years is not necessary.
(f) (g) If a majority of the members of the investigative
panel fails to find probable cause, the proceedings shall be
dismissed by the commission in an order signed by the majority
members of the panel, and copies of the order of dismissal shall
be sent to the complainant if any, and served upon the respondent
forthwith. Upon written request of a person subjected to an
investigation that does not proceed to a finding of probable
cause, the commission shall include in its public meeting minutes
a notation that the investigation was concluded without a finding
of probable cause. If the investigative panel decides by a
majority vote that there is probable cause to believe that a
violation under this chapter has occurred, the majority members
of the investigative panel shall sign an order directing the
commission staff to prepare a statement of charges, to assign
the matter for hearing to the commission or a hearing examiner as
the commission may subsequently direct, and to schedule a hearing
to determine the truth or falsity of the charges, such hearing to
be held within ninety days after the date of the order. 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) (h) At least eighty days prior to the date of the
hearing, the respondent shall be served 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 such other circumstances as
the commission shall, by legislative rule, direct.
(h) (i) The commission members who have not served as
members of an investigative panel in a particular case 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. Such
legislative rule shall also contain provisions which seek to
ensure that the functions of a hearing examiner will be conducted
in an impartial manner, and shall describe the circumstances and
procedures for disqualification of hearing examiners.
(i) (j) 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 may 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) (k) With respect to allegations of a violation under
this chapter, the complainant has the burden of proof. The West
Virginia rules of evidence as used to govern 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 legislative 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 make 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 findingsavailable to the parties. The hearing examiner shall then submit
the entire record to the commission for final decision.
(k) (l) 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
members who have not served as members of the investigative
panel, 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) (m) 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,
and briefs may be filed by the parties in accordance with
procedural rules promulgated by the commission. The final
decision of the commission shall be made by the commission
members who have not served as members of the investigative panel
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 board in lieu of a
hearing examiner, within twenty-one days following the close of
the evidence.
(m) (n) 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 six members of the commission who have notserved as members of the investigative panel.
(n) (o) 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, 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) (p) A complainant may be assisted by a member of the
commission staff assigned by the commission after a determination
of probable cause.
(p) (q) No member of the commission staff may participate in
the commission deliberations or communicate with commission
members concerning the merits of a complaint after being assigned
to prosecute a complaint.
(q) (r) If the commission finds by evidence beyond a
reasonable doubt that the facts alleged in the complaint
statement of charges are true and constitute a material violation
of this article, it may impose one or more of the following
sanctions:
(1) Public reprimand;
(2) Cease and desist orders;
(3) Orders of restitution for money, things of value, or
services taken or received in violation of this chapter; or
(4) Fines not to exceed one thousand dollars per violation.
In addition to imposing such sanctions, the commission may
recommend to the appropriate governmental body that a respondent
be terminated from employment or removed from office or suspended
for a definite period of time with or without salary.
The commission may institute civil proceedings in the
circuit court of the county wherein a violation occurred for the
enforcement of sanctions.
(r) (s) At any stage of the proceedings under this section,
the commission may enter into a conciliation agreement with a
respondent if such 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 such negotiations, shall remain confidential
except as may be otherwise set forth in the agreement.
(s) (t) Decisions of the commission involving the issuance
of sanctions may be appealed to the circuit court of Kanawha
County, West Virginia, 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.
(t) (u) In the event the commission finds in favor of the
person complained against respondent and that the complaint or
the accusation which caused the investigation was without meritand was brought or made in bad faith, the commission shall order
reimbursement of all actual costs incurred, including, but not
limited to, attorney fees to be paid to the person complained
against respondent by the complainant, if the commission finds
that the complaint was brought or made in bad faith. In
addition, the aggrieved party or the person whose accusation
caused the commission to investigate an alleged violation on its
own initiative and the respondent shall have a cause of action
and be entitled to compensatory damages, punitive damages, costs
and attorney fees for a complaint made or brought in bad faith
from such person.
(u) (v) If at any stage in the proceedings under this
section, it appears to an investigative panel, a hearing examiner
or the commission that a criminal violation may have been
committed by a respondent, such situation shall be brought before
the full commission for its consideration. If, by a vote of two
thirds of the full commission, it is determined that probable
cause exists to believe a criminal violation has occurred, it may
recommend to the appropriate county prosecuting attorney having
jurisdiction over the case that a criminal investigation be
commenced. Deliberations of the commission with regard to a
recommendation 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 onthe referred matter is concluded. If the commission determines
that a criminal violation has not occurred, the commission shall
remand the matter to the investigative panel, the hearing
examiner or the commission itself as a hearing board, as the case
may be, for further proceedings under this article.
(v) (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 under subsection (a) of
this section or the appointment of an investigative panel by the
commission under subsection (b) of this section.
§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 constitutethe 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 fromthe 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 an 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 elected public official's regular, non-
public 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 theproperty 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 aninterest 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 furtherhis 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 andthose 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 actin 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 earna 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 andexperience 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.
(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 functionsas 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 orprivate 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) 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 state-wide, 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
subdivisions 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 financialdisclosure 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 subsections
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 valuereceived 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 ofcommunicating 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, orpublic 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
exemptions 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 lobbys with regard to matters before
the Legislature must file duplicate copies of the lobbyist's
registration statement required by subsections (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 samesubject 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 secondWednesday 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, thelobbyist 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 theexpenditures.
NOTE: The purpose of this bill is to amend existing law
relating to governmental ethics by incorporating the following:
Providing for the filing of complaints and the procedures for
hearing such complaints by the West Virginia ethics commissions;
authorizing the commissions to investigate purported ethics
violations in absence of a filed complaint, and prescribing
limitations on such investigations; clarifying public contract
prohibition exemption; amending employment restrictions; adding
conflict of interest prohibition; adding exemptions from lobbyist
registration; and altering lobbying registration and reporting
dates.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Email
Webmaster | © 2024 West Virginia Legislature **
