H. B. 3149
(By Delegate Williams)
[Introduced February 21, 2003; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend article two, chapter six-b of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by
adding thereto a new section, designated section one-a; and to
amend and reenact section one-a, article five, chapter
eighteen, all relating to providing that county school board
members or county school board members-elect, or others
desiring to become members of county boards, may apply for and
receive advisory opinions from the West Virginia commission
committee on incompatible public offices; providing, that such
persons relying in good faith on advisory opinions have a
defense to actions taken against them that claim ethics
violations; providing for reimbursement by county boards of
attorneys' fees and other related expenses incurred by persons
who defend themselves against actions claiming ethical
violations when they have relied in good faith on advisory opinions; providing that votes cast by persons relying on
advisory opinions cannot be invalidated; and requiring the
West Virginia ethics commission to create the West Virginia
ethics commission committee on incompatible public offices.
Be it enacted by the Legislature of West Virginia:
That article two, chapter six-b of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new section, designated section one-a; and that
section one-a, article five, chapter eighteen of said code be
amended and reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC
OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC
AGENCIES.
§6B-2-1a. Committee on incompatible public offices.
The West Virginia ethics commission, pursuant to subsection
(j), section one, article two, chapter six-b of this code
, shall
appoint from the membership of the commission a subcommittee of
three persons which is hereby designated as the West Virginia
ethics commission committee on incompatible public offices. The
chairperson of the West Virginia ethics commission shall designate
one of the persons appointed to chair the committee. In addition
to the three members of the committee, two additional members of
the commission shall be designated to serve as alternative members of the committee. The chairperson of the committee or the
executive director shall call meetings of the committee to act on
requests for advisory opinions made under subsection (c), section
one-a, chapter eighteen of this code. Advisory opinions shall be
issued in a timely manner, not to exceed thirty days from the date
an application for an opinion is received.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-1a. Eligibility of members.
(a) No person shall be eligible for membership on any county
board who is not a citizen, resident in such county, or who accepts
a position as teacher or service personnel in the school district
in which he or she is a resident or who is an elected or an
appointed member of any political party executive committee, or who
becomes a candidate for any other office than to succeed oneself.
(b) No member or member-elect of any board shall be eligible
for nomination, election or appointment to any public office, other
than to succeed oneself, or for election or appointment as a member
of any political party executive committee, unless and until after
that membership on the board, or his or her status as member-elect
to the board, has been terminated at or before the time of his or
her
filing for such nomination for, or appointment to, such public
office or committee.
(c) A member or member-elect of any county board, or a person
desiring to become a member of any county board, may make application in writing to the West Virginia ethics commission
committee on incompatible public offices
provided for under article
two, chapter six-b of this code for an advisory opinion addressing
whether another elected or appointed public position is an "office"
or "public office" within the meaning of subsections (a) and (b) of
this section. The committee shall respond within thirty days from
the receipt of the request by issuing a written advisory opinion
addressing the matter raised in the request. All advisory opinions
shall promptly be published and indexed on the internet at the West
Virginia ethics commission's website and published and indexed in
the code of state rules by the secretary of state: Provided, That
before an advisory opinion is made public, any material which may
identify the person who is the subject of the opinion shall, to the
fullest extent possible, be deleted and the identity of the person
who made the request may not be revealed.
(d) A person who relies in good faith upon an advisory opinion
of the West Virginia ethics commission
committee on incompatible
public offices
that another elected or appointed position is not an
"office" or "public office" within the meaning of subsections (a)
and (b) of this section and against whom an action is subsequently
brought under section seven, article six, chapter six of this code
for removal from a county board on the ground that the other
elected or appointed position is an "office" or "public office"
within the meaning of subsections (a) and (b) of this section shall be entitled to reimbursement from the county board for the
reasonable attorney's fees and court costs he or she may incur in
opposing the action, regardless of the outcome of the action. No
vote cast by a person who has in good faith relied on an advisory
opinion of the West Virginia ethics commission
committee on
incompatible public offices
concerning his or her eligibility to be
a board member may be invalidated solely on the ground that another
elected or appointed position is an "office" or "public office"
within the meaning of subsections (a) and (b) of this section. A
member or member elect of any county board, and a person desiring
to become a member of any county board, may rely upon the advisory
opinion of the West Virginia ethics commission
committee on
incompatible public offices
, and any person acting in good faith
reliance on such an opinion has an absolute defense to any other
civil suit or criminal prosecution for any action taken in good
faith reliance on the opinion.
(e) Any person who is elected or appointed to a county board
on or after the fifth day of May, one thousand nine hundred
ninety-two, shall possess at least a high school diploma or a
general educational development (GED) diploma: Provided, That this
provision shall not apply to members or members-elect who have
taken office prior to the fifth day of May, one thousand nine
hundred ninety-two, and who serve continuously therefrom.
(f) No person elected to a county board after the first day of July, one thousand nine hundred ninety, shall assume the duties of
board member unless he or she has first attended and completed a
course of orientation relating to boardsmanship and governance
effectiveness which shall be given between the date of election and
the beginning of the member's term of office: Provided, That a
portion or portions of subsequent training such as that offered in
orientation may be provided to members after they have commenced
their term of office: Provided, however, That attendance at the
session of orientation given between the date of election and the
beginning of the member's term of office shall permit such member
or members to assume the duties of board member, as specified in
this section. Members appointed to the board shall attend and
complete the next such course offered following their appointment:
Provided further, That the provisions of this section relating to
orientation shall not apply to members who have taken office prior
to the first day of July, one thousand nine hundred eighty-eight,
and who serve continuously therefrom.
(g) Commencing on the effective date of this section, members
shall annually receive seven clock hours of training in areas
relating to boardsmanship and governance effectiveness. Such
orientation and training shall be approved by the state board and
conducted by the West Virginia school board association or other
organization or organizations approved by the state board. Failure
to attend and complete such an approved course of orientation and training relating to boardsmanship and governance effectiveness
without good cause as determined by legislative rules of the state
board shall constitute neglect of duty.
(h) In the final year of any four-year term of office, a
member shall satisfy the annual training requirement before the
first day of January. The state board shall petition the circuit
court of Kanawha County to remove any county board member who has
failed to or who refuses to attend and complete the approved course
of orientation and training. If the county board member fails to
show good cause for not attending the approved course of
orientation and training, the court shall remove the member from
office.
NOTE: The purpose of this bill is to
provide that county
school board members or county school board members-elect, or
others desiring to become members of county boards, may apply for
and receive advisory opinions from the West Virginia commission
committee on incompatible public offices concerning whether they
hold any office that creates an ethical breach if they serve on a
county board. In accordance with making application for advisory
opinions the bill also provides that such persons relying in good
faith on advisory opinions have a defense to actions taken against
them that claim ethics violations while, additionally, providing
for reimbursement by county boards of attorneys' fees and other
related expenses incurred by persons who defend themselves against
actions claiming ethical violations when such persons have relied
in good faith on advisory opinions. The bill also provides that
votes cast by persons on county school boards who have relied in
good faith on advisory opinions cannot be invalidated. Finally,
the bill would require the West Virginia ethics commission to
create the West Virginia ethics commission committee on
incompatible public offices for the purpose of addressing
applications from persons seeking advisory opinions on whether they
have a conflict that would prevent them from serving on a county
school board.
§6B-2-1a is new; therefore, strike-throughs and underscoring
have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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