H. B. 4524
(By Delegates Webster, Mahan, Long, Lane, Proudfoot and Brown)
[Introduced February 13, 2008
; referred to the committee on the
Judiciary .]
A BILL to amend and reenact §6B-1-3, §6B-2-1, §6B-2-2a, §6B-2-3a,
§6B-2-4, §6B-2-5, §6B-3-3c, and §6B-3-4 of the Code of West
Virginia, 1931, as amended; all relating generally to the
ethical standards of public officers, employees and lobbyists;
defining additional terms; providing compensation for
telephonic participation in meetings; creating a procedure for
replacing recused members of the Probable Cause Review Board;
clarifying when a pending complaint against a candidate for
public office is stayed; establishing a time frame for
candidates to waive stay provisions; clarifying the procedure
for replacing recused members of the Commission hearing a
complaint; providing for exclusive appeal of decisions by the
Commission imposing sanctions to the circuit court of Kanawha
County; permitting personal use of frequent traveler bonus
points acquired on official government business; redefining
and clarifying what constitutes a limited interest in a public
contract; prohibiting public employees or officials from
influencing contracts in which they have a financial interest; providing that full-time public officials and full-time public
employees may not seek employment with or be employed by a
vendor over whose public contract the public official or
public employee exercises authority or control; providing a
procedure for granting exceptions to the restriction on
purchases of personal property from regulated persons and
vendors; providing that public officials and employees may not
decide matters regarding a vendor with whom the official or
employee is seeking employment or has an agreement concerning
future employment; providing standards for determining when
public officials may or may not vote on matters involving a
for profit or not for profit business, including financial
institutions, with whom either they or a an immediate family
member are associated; providing that lobbyists must complete
an ethics training course during each two-year registration
cycle; clarifying that notice of suspension of a lobbyist's
lobbying privileges be sent to the affected lobbyist by
certified mail; and making technical corrections.
Be it enacted by the Legislature of West Virginia:
That §6B-1-3, §6b-2-1, §6b-2-2a, §6B-2-3a, §6B-2-4, §6B-2-5,
§6B-3-3c, and §6B-3-4
of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
CHAPTER 6B. PUBLIC OFFICERS AND EMPLOYEES; ETHICS;
CONFLICTS OF INTEREST; FINANCIAL DISCLOSURE.
ARTICLE 1. SHORT TITLE; LEGISLATIVE FINDINGS, PURPOSES AND
INTENT; CONSTRUCTION AND APPLICATION OF CHAPTER;
SEVERABILITY.
§6B-1-3. Definitions.
As used in this chapter, unless the context in which used
clearly requires otherwise:
(a) "Review Board" means the Probable Cause Review Board
created by section two-a, article two of this chapter.
(b) "Business" means any entity through which business for
profit is conducted including a corporation, partnership,
proprietorship, franchise, association, organization or self-
employed individual.
(b) (c) "Compensation" means money, thing of value or
financial benefit. The term "compensation" does not include
reimbursement for actual reasonable and necessary expenses
incurred in the performance of one's official duties.
(c) (d) "Employee" means any person in the service of
another under any contract of hire, whether express or implied,
oral or written, where the employer or an agent of the employer
or a public official has the right or power to control and direct
such person in the material details of how work is to be
performed and who is not responsible for the making of policy nor
for recommending official action.
(d) (e) "Ethics Commission" or "Commission" means the West
Virginia Ethics Commission.
(e) (f) "Immediate family", with respect to an individual,
means a spouse
, with whom the individual is living as husband and
wife and any dependent child or children, dependent grandchild or
grandchildren and dependent parent or parents.
(f) (g) "Ministerial functions" means actions or functions
performed by an individual under a given state of facts in a
prescribed manner in accordance with a mandate of legal authority, without regard to, or without the exercise of, the
individual's own judgment as to the propriety of the action being
taken.
(g) (h) "Person" means an individual, corporation, business
entity, labor union, association, firm, partnership, limited
partnership, committee, club or other organization or group of
persons, irrespective of the denomination given such organization
or group.
(h) (i) "Political contribution" means and has the same
definition as is given that term under the provisions of article
eight, chapter three of this code.
(i) (j) "Public employee" means any full-time or part-time
employee of any state, county or municipal governmental body or
any political subdivision thereof, including county school
boards.
(j) (k)"Public official" means any person who is elected or
appointed to any state, county or municipal office or position
and who is responsible for the making of policy or takes official
action which is either ministerial or nonministerial, or both,
with respect to: (1) Contracting for, or procurement of, goods or
services; (2) administering or monitoring grants or subsidies;
(3) planning or zoning; (4) inspecting, licensing, regulating or
auditing any person; or (5) any other activity where the official
action has an economic impact of greater than a de minimis nature
on the interest or interests of any person.
(l) "Relative" means spouse, mother, father, sister,
brother, son, daughter, grandmother, grandfather, grandchild,
mother-in-law, father-in-law, sister-in-law, brother-in-law, son-in-law or daughter-in-law.
(k) (m) "Respondent" means a person who is the subject of an
investigation by the Commission or against whom a complaint has
been filed with the Commission.
(l) (n) "Thing of value", "other thing of value" or
"anything of value" means and includes: (1) Money, bank bills or
notes, United States treasury notes and other bills, bonds or
notes issued by lawful authority and intended to pass and
circulate as money; (2) goods and chattels; (3) promissory notes,
bills of exchange, orders, drafts, warrants, checks, bonds given
for the payment of money or the forbearance of money due or
owing; (4) receipts given for the payment of money or other
property; (5) any right or chose in action; (6) chattels real or
personal or things which savor of realty and are, at the time
taken, a part of a freehold, whether they are of the substance or
produce thereof or affixed thereto, although there may be no
interval between the severing and the taking away thereof; (7)
any interest in realty, including, but not limited to, fee simple
estates, life estates, estates for a term or period of time,
joint tenancies, cotenancies, tenancies in common, partial
interests, present or future interests, contingent or vested
interests, beneficial interests, leasehold interests or any other
interest or interests in realty of whatsoever nature; (8) any
promise of employment, present or future; (9) donation or gift;
(10) rendering of services or the payment thereof; (11) any
advance or pledge; (12) a promise of present or future interest
in any business or contract or other agreement; or (13) every
other thing or item, whether tangible or intangible, having economic worth. "Thing of value", "other thing of value" or
"anything of value" shall not include anything which is de
minimis in nature nor a lawful political contribution reported as
required by law.
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS
AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES;
CODE OF CONDUCT FOR ADMINISTRATIVE LAW JUDGES.
§6B-2-1. West Virginia Ethics Commission created; members;
appointment, term of office and oath; compensation
and reimbursement for expenses; meetings and quorum.
(a) There is hereby created the West Virginia Ethics
Commission, consisting of twelve members, no more than seven of
whom shall be members of the same political party. The members of
the Commission shall be appointed by the Governor with the advice
and consent of the Senate. Within thirty days of the effective
date of this section, the Governor shall make the initial
appointments to the Commission. No person may be appointed to the
Commission or continue to serve as a member of the Commission who
holds elected or appointed office under the government of the
United States, the state of West Virginia or any of its political
subdivisions, or who is a candidate for any of those offices, who
is employed as a registered lobbyist, or who is otherwise subject
to the provisions of this chapter other than by reason of his or
her appointment to or service on the Commission. A member may
contribute to a political campaign, but no member shall hold any
political party office or participate in a campaign relating to a
referendum or other ballot issue.
(b) At least two members of the Commission shall have served
as a member of the West Virginia Legislature; at least two
members of the Commission shall have been employed in a full-time
elected or appointed office in state government; at least one
member shall have served as an elected official in a county or
municipal government or on a county school board; at least one
member shall have been employed full time as a county or
municipal officer or employee; and at least two members shall
have served part time as a member or director of a state, county
or municipal board, commission or public service district and at
least four members shall be selected from the public at large. No
more than four members of the Commission shall reside in the same
congressional district.
(c) Of the initial appointments made to the Commission, two
shall be for a term ending one year after the effective date of
this section, two for a term ending two years after the effective
date of this section, two for a term ending three years after the
effective date of this section, three for a term ending four
years after the effective date of this section and three shall be
for terms ending five years after the effective date of this
section. Thereafter, terms of office shall be for five years,
each term ending on the same day of the same month of the year as
did the term which it succeeds. Each member shall hold office
from the date of his or her appointment until the end of the term
for which he or she was appointed or until his or her successor
qualifies for office. When a vacancy occurs as a result of death,
resignation or removal in the membership of this Commission, it
shall be filled by appointment within thirty days of the vacancy for the unexpired portion of the term in the same manner as
original appointments. No member shall serve more than two
consecutive full or partial terms and no person may be
reappointed to the Commission until at least two years have
elapsed after the completion of a second successive term.
(d) Each member of the Commission shall take and subscribe
to the oath or affirmation required pursuant to section five,
article IV of the Constitution of West Virginia. A member may be
removed by the Governor for substantial neglect of duty, gross
misconduct in office or violation of this chapter, after written
notice and opportunity for reply.
(e) The Commission shall meet within thirty days of the
initial appointments to the Commission at a time and place to be
determined by the Governor, who shall designate a member to
preside at that meeting until a chairman is elected. At its first
meeting, the Commission shall elect a chairman and other officers
as are necessary. The Commission shall within ninety days after
its first meeting adopt rules for its procedures.
(f) Seven members of the Commission shall constitute a
quorum, except that when the Commission is sitting as a hearing
board pursuant to section four of this article, then five members
shall constitute a quorum. Except as may be otherwise provided in
this article, a majority of the total membership shall be
necessary to act at all times.
(g) Members of the Commission shall receive the same
compensation and expense reimbursement as is paid to members of
the Legislature for their interim duties as recommended by the
Citizens Legislative Compensation Commission and authorized by law for each day or portion thereof engaged in the discharge of
official duties:
Provided, That
to be eligible for compensation
and expense reimbursement, the member must
be in personal
attendance at the meeting in which the duties are performed.
participate in a meeting or adjudicatory session.
(h) The Commission shall appoint an executive director to
assist the Commission in carrying out its functions in accordance
with Commission rules and with applicable law. The executive
director shall be paid a salary fixed by the Commission or as
otherwise provided by law. The Commission shall appoint and
discharge counsel and employees and shall fix the compensation of
employees and prescribe their duties. Counsel to the Commission
shall advise the Commission on all legal matters and on the
instruction of the Commission may commence appropriate civil
actions: Provided, That no counsel shall both advise the
Commission and act in a representative capacity in any
proceeding.
(i) The Commission may delegate authority to the chairman or
executive director to act in the name of the Commission between
meetings of the Commission, except that the Commission shall not
delegate the power to hold hearings and determine violations to
the chairman or executive director.
(j) The principal office of the Commission shall be in the
seat of government but it or its designated subcommittees may
meet and exercise its power at any other place in the state.
Meetings of the Commission shall be public unless: (1) They are
required to be private by the provisions of this chapter relating to confidentiality; or (2) they involve discussions of Commission
personnel, planned or ongoing litigation and planned or ongoing
investigations.
(k) Meetings of the Commission shall be upon the call of the
chair and may be conducted by telephonic or other electronic
conferencing: Provided, That telephone or other electronic
conferencing and voting are not permitted when the Commission is
acting as a hearing board under section four of this article or
when an investigative panel the Probable Cause Review Board meets
to receive an oral response as authorized under subsection (d),
section four of this article. Members shall be given notice of
meetings held by telephone or other electronic conferencing in
the same manner as meetings at which the members are required to
attend in person. Telephone or other electronic conferences shall
be electronically recorded and the recordings shall be retained
by the Commission in accordance with its record retention policy.
§6B-2-2a. Probable Cause Review Board.
(a) There is hereby established a Probable Cause Review
Board that shall conduct hearings to determine whether there is
probable cause to believe that a violation of the West Virginia
Governmental Ethics Act has occurred and, if so, to refer that
investigation to the Ethics Commission. The Review Board is an
autonomous board, not under the direction or control of the
Ethics Commission. The Review Board will review complaints
received or initiated by the Ethics Commission to make a
threshold determination of whether probable cause exists to
believe that a violation of the West Virginia Governmental Ethics Act has occurred.
(b) The Governor, by and with the advice and consent of the
Senate, shall appoint three persons as members of the Review
Board, each of whom shall be a resident and citizen of the state.
Each member of the Review Board shall hold office until his
successor has been appointed and qualified. At least one member
of the Board must be an attorney licensed by the state of West
Virginia and no more than two members can belong to the same
political party. The members of the Review Board shall be
appointed for overlapping terms of two years, except that the
original appointments shall be for terms of one, two and three
years, respectively. Any member whose term expires may be
reappointed by the Governor. In the event a Review Board member
is unable to complete his or her term, a the Governor shall
appoint a person with similar qualification to complete that
term. Each Review Board member shall receive the same
compensation and expense reimbursement as provided to Ethics
Commission members pursuant to section one of this article. These
and all other costs incurred by the Review Board shall be paid
from the budget of the Ethics Commission.
(c) No person may be appointed to the Review Board or
continue to serve as a member of the Review Board who holds
elected or appointed office under the government of the United
States, the state of West Virginia or any of its political
subdivisions, or who is a candidate for any of such offices, or
who is a registered lobbyist, or who is otherwise subject to the
provisions of this chapter other than by reason of his or her appointment to or service on the Review Board. A Review Board
member may contribute to a political campaign, but no member
shall hold any political party office or participate in a
campaign relating to a referendum or other ballot issue.
(d) Members of the Review Board may recuse themselves from a
particular case upon their own motion, with the approval of the
Review Board, and shall recuse themselves, for good cause shown,
upon motion of a party. The remaining members of the Review Board
may, by majority vote, select a temporary member to replace a
recused member: Provided, That the temporary member selected to
replace a recused member shall be a person who meets all
requirements for appointment provided by subsection (c), section
two-a of this article, and whose political affiliation is the
same as the recused member.
(d) (e) The Ethics Commission shall propose, for approval by
the Review Board, any procedural and interpretative rules
governing the operation of the Review Board. The Commission shall
propose these rules pursuant to article three, chapter twenty-
nine-a of the code.
(e) (f) The Ethics Commission shall provide staffing and a
location for the Review Board to conduct hearings. The Ethics
Commission is authorized to employ and assign the necessary
professional and clerical staff to assist the Review Board in the
performance of its duties and Commission staff shall, as the
Commission deems appropriate, also serve as staff to the Review
Board. All investigations and proceedings of the Review Board are
deemed confidential as provided in section four of this article and members of the Review Board are bound to the same
confidentiality requirements applicable to the Ethics Commission
pursuant to this article.
(f) (g) The Review Board may subpoena witnesses, compel
their attendance and testimony, administer oaths and
affirmations, take evidence and require by subpoena the
production of books, papers, records or other evidence needed for
the performance of the Review Board's duties.
(g) (h) Upon decision by the Review Board that probable
cause exists to believe that a violation of this chapter has
occurred, Commission staff shall send notice to the Commission
members of the Review Board's finding. After an ethics complaint
has been submitted to the Review Board in accordance with section
four of this article, the Commission may take no further action
until it receives the Review Board's probable cause finding.
§6B-2-3a. Complaints.
(a) The Commission may commence an investigation, pursuant
to section four of this article, on the filing of a complaint
duly verified by oath or affirmation, by any person.
(b) The Commission may order the executive director to
prepare a complaint, upon a majority affirmative vote of its
members, if it receives or discovers credible information which,
if true, would merit an inquiry into whether a violation of this
article has occurred.
(c) (1) No complaint may be accepted or initiated by the
Commission against a public official or public employee during the sixty days before a primary or general election at which the
public official or public employees is a candidate for elective
office.
(2) The Commission shall stay any proceedings with regard to
an ethics complaint filed against a public official or public
employee candidate more than sixty days prior to the election:
Provided, Where there has not yet been a probable cause
determination with regard to the allegations in the complaint,
the public official or public employee candidate may waive the
postponement in writing, in which case the Commission and the
Review Board shall process the complaint and provide the
candidate with a probable cause determination at least thirty
days prior to the election. If a complaint is pending against a
public official or public employee who is also a candidate for
public office, then the commission shall stay the processing of
the complaint for the sixty day time period preceding the primary
election or general election, or both, unless the candidate
waives the stay in writing. If the Commission receives a written
waiver of the stay at least sixty days prior to the election, and
if the Review Board has not yet ruled whether probable cause
exists to believe there has a been a violation of the Ethics Act,
then the Review Board will process the complaint and make a
probable cause determination at least thirty days prior to the
election; Provided, That, the stay provisions of this subdivision
do not apply to complaints which have already been adjudicated by
the Commission and are pending on appeal.
(3) For purposes of this subsection, any provisions of this chapter setting time periods for initiating a complaint or for
performing any other action are considered tolled until after the
election at which the public official or public employee
candidate stands for elective office.
§6B-2-4. Processing complaints; dismissals; hearings;
disposition; judicial review.
(a) Upon the filing of a complaint, the Executive Director
of the Commission or his or her designee shall, within three
working days, acknowledge the receipt of the complaint by first-
class mail unless the complaint was initiated by the Commission
or the complainant or his or her representative personally filed
the complaint with the Commission and was given a receipt or
other acknowledgment evidencing the filing of the complaint. No
political party or officer, employee or agent of a political
party acting in his or her official capacity may file a complaint
for a violation of this chapter with the Commission. Nothing in
this section prohibits a private citizen, acting in that
capacity, from filing a verified complaint with the Commission
under this section. Within fourteen days after the receipt of a
complaint, the Executive Director shall refer the complaint to
the Review Board created pursuant to section two-a of this
article.
(b) Upon the referral of a complaint by the Executive
Director pursuant to subsection (a) of this section, the Review
Board shall determine whether the allegations of the complaint,
if taken as true, would constitute a violation of law upon which
the Commission could properly act under the provisions of this chapter. If the complaint is determined by a majority vote of the
Review Board to be insufficient in this regard, the Review Board
shall dismiss the complaint.
(c) Upon a finding by the Review Board that the complaint is
sufficient, the Executive Director shall give notice of a pending
investigation to the complainant, if any, and to the respondent.
The notice of investigation shall be mailed to the parties and,
in the case of the respondent, shall be mailed as certified mail,
return receipt requested, marked "Addressee only, personal and
confidential". The notice shall describe the conduct of the
respondent which is alleged to violate the law and a copy of the
complaint shall be appended to the notice mailed to the
respondent. Each notice of investigation shall inform the
respondent that the purpose of the investigation is to determine
whether probable cause exists to believe that a violation of law
has occurred which may subject the respondent to administrative
sanctions by the Commission, criminal prosecution by the state,
or civil liability. The notice shall further inform the
respondent that he or she has a right to appear before the Review
Board and that he or she may respond in writing to the Commission
within thirty days after the receipt of the notice, but that no
fact or allegation shall be taken as admitted by a failure or
refusal to timely respond.
(d) Within the 45-day period following the mailing of a
notice of investigation, the Review Board shall proceed to
consider:
(1) The allegations raised in the complaint;
(2) any timely received written response of the respondent;
and
(3) any other competent evidence gathered by or submitted to
the Commission which has a proper bearing on the issue of
probable cause.
A respondent may appear before the Review Board and make an oral
response to the complaint. The Commission shall promulgate rules
prescribing the manner in which a respondent may present his or
her oral response. The Commission may ask a respondent to
disclose specific amounts received from a source and request
other detailed information not otherwise required to be set forth
in a statement or report filed under the provisions of this
chapter if the information sought is considered to be probative
as to the issues raised by a complaint or an investigation
initiated by the Commission. Any information thus received shall
be confidential except as provided by subsection (e) of this
section. If a person asked to provide information fails or
refuses to furnish the information to the Commission, the
Commission may exercise its subpoena power as provided in this
chapter and any subpoena issued by the Commission shall have the
same force and effect as a subpoena issued by a circuit court of
this state. Enforcement of any subpoena may be had upon
application to a circuit court of the county in which the Review
Board is conducting an investigation through the issuance of a
rule or an attachment against the respondent as in cases of
contempt.
(e) All investigations, complaints, reports, records, proceedings and other information received by the Commission and
related to complaints made to the Commission or investigations
conducted by the Commission pursuant to this section, including
the identity of the complainant or respondent, are confidential
and may not be knowingly and improperly disclosed by any current
or former member or employee of the Commission or the Review
Board except as follows:
(A) Once there has been a finding that probable cause exists
to believe that a respondent has violated the provisions of this
chapter and the respondent has been served by the Commission with
a copy of the Review Board's order and the statement of charges
prepared pursuant to the provisions of subsection (g) of this
section, the complaint and all reports, records, nonprivileged
and nondeliberative material introduced at any probable cause
hearing held pursuant to the complaint cease to be confidential.
(B) After a finding of probable cause, any subsequent
hearing held in the matter for the purpose of receiving evidence
or the arguments of the parties or their representatives shall be
open to the public and all reports, records and nondeliberative
materials introduced into evidence at the hearing, as well as the
Commission's orders, are not confidential.
(C) The Commission may release any information relating to
an investigation at any time if the release has been agreed to in
writing by the respondent.
(D) The complaint and the identity of the complainant shall
be disclosed to a person named as respondent immediately upon the
respondent's request.
(E) Where the Commission is otherwise required by the
provisions of this chapter to disclose information or to proceed
in such a manner that disclosure is necessary and required to
fulfill those requirements.
(2) If, in a specific case, the Commission finds that there
is a reasonable likelihood that the dissemination of information
or opinion in connection with a pending or imminent proceeding
will interfere with a fair hearing or otherwise prejudice the due
administration of justice, the Commission shall order that all or
a portion of the information communicated to the Commission to
cause an investigation and all allegations of ethical misconduct
or criminal acts contained in a complaint shall be confidential
and the person providing the information or filing a complaint
shall be bound to confidentiality until further order of the
Commission.
(f) If the members of the Review Board fail to find probable
cause, the proceedings shall be dismissed by the Commission in an
order signed by the members of the Review Board. Copies of the
order of dismissal shall be sent to the complainant and served
upon the respondent forthwith. If the Review Board decides by a
unanimous vote that there is probable cause to believe that a
violation under this chapter has occurred, the members of the
Review Board shall sign an order directing the Commission staff
to prepare a statement of charges and assign the matter for
hearing to the Commission or a hearing examiner as the Commission
may subsequently direct. The Commission shall then schedule a
hearing, to be held within ninety days after the date of the order, to determine the truth or falsity of the charges. The
Commission's review of the evidence presented shall be de novo.
For the purpose of this section, service of process upon the
respondent is obtained at the time the respondent or the
respondent's agent physically receives the process, regardless of
whether the service of process is in person or by certified mail.
(g) At least eighty days prior to the date of the hearing,
the Commission shall serve the respondent by certified mail,
return receipt requested, with the statement of charges and a
notice of hearing setting forth the date, time and place for the
hearing. The scheduled hearing may be continued only upon a
showing of good cause by the respondent or under other
circumstances as the Commission, by legislative rule, directs.
(h) The Commission may sit as a hearing board to adjudicate
the case or may permit an assigned hearing examiner employed by
the Commission to preside at the taking of evidence. The
Commission shall, by legislative rule, establish the general
qualifications for hearing examiners. The legislative rule shall
also contain provisions which ensure that the functions of a
hearing examiner will be conducted in an impartial manner and
describe the circumstances and procedures for disqualification of
hearing examiners.
(i) A member of the Commission or a hearing examiner
presiding at a hearing may:
(1) Administer oaths and affirmations, compel the attendance
of witnesses and the production of documents, examine witnesses
and parties and otherwise take testimony and establish a record;
(2) Rule on offers of proof and receive relevant evidence;
(3) Take depositions or have depositions taken when the ends
of justice will be served;
(4) Regulate the course of the hearing;
(5) Hold conferences for the settlement or simplification of
issues by consent of the parties;
(6) Dispose of procedural requests or similar matters;
(7) Accept stipulated agreements;
(8) Take other action authorized by the Ethics Commission
consistent with the provisions of this chapter.
(j) With respect to allegations of a violation under this
chapter, the complainant has the burden of proof. The West
Virginia Rules of Evidence governing proceedings in the courts of
this state shall be given like effect in hearings held before the
Commission or a hearing examiner. The Commission shall, by rule,
regulate the conduct of hearings so as to provide full procedural
due process to a respondent. Hearings before a hearing examiner
shall be recorded electronically. When requested by either of the
parties, the presiding officer shall order a transcript, verified
by oath or affirmation, of each hearing held and so recorded. In
the discretion of the Commission, a record of the proceedings may
be made by a certified court reporter. Unless otherwise ordered
by the Commission, the cost of preparing a transcript shall be
paid by the party requesting the transcript. Upon a showing of
indigency, the Commission may provide a transcript without
charge. Within fifteen days following the hearing, either party may submit to the hearing examiner that party's proposed findings
of fact. The hearing examiner shall thereafter prepare his or her
own proposed findings of fact and make copies of the findings
available to the parties. The hearing examiner shall then submit
the entire record to the Commission for final decision.
(k) The recording of the hearing or the transcript of
testimony, as the case may be, and the exhibits, together with
all papers and requests filed in the proceeding, and the proposed
findings of fact of the hearing examiner and the parties,
constitute the exclusive record for decision by the Commission,
unless by leave of the Commission a party is permitted to submit
additional documentary evidence or take and file depositions or
otherwise exercise discovery.
(l) The Commission shall set a time and place for the hearing
of arguments by the complainant and respondent, or their
respective representatives, and shall notify the parties thereof.
Briefs may be filed by the parties in accordance with procedural
rules promulgated by the Commission. The Commission shall issue a
final decision in writing within forty-five days of the receipt
of the entire record of a hearing held before a hearing examiner
or, in the case of an evidentiary hearing held by the Commission
acting as a hearing board in lieu of a hearing examiner, within
twenty-one days following the close of the evidence.
(m) A decision on the truth or falsity of the charges
against the respondent and a decision to impose sanctions must be
approved by at least seven members of the Commission.
(n) Members of the Commission shall recuse themselves from a particular case upon their own motion with the approval of the
Commission or for good cause shown upon motion of a party. The
remaining members of the Commission shall may, by majority vote,
select a temporary member of the Commission to replace a recused
member: Provided, That the temporary member selected to replace a
recused member shall be a person of the same status or category,
provided by subsection (b), section one of this article, as the
recused member.
(o) Except for statements made in the course of official
duties to explain Commission procedures, no member or employee or
former member or employee of the Commission may make any public
or nonpublic comment about any proceeding previously or currently
before the Commission. Any member or employee or former member or
employee of the Commission who violates this subsection is
subject to the penalties contained in subsection (e), section ten
of this article. In addition, violation of this subsection by a
current member or employee of the Commission is grounds for
immediate removal from office or termination of employment.
(p) A complainant may be assisted by a member of the
Commission staff assigned by the Commission after a determination
of probable cause.
(q) No employee of the Commission assigned to prosecute a
complaint may participate in the Commission deliberations or
communicate with Commission members or the public concerning the
merits of a complaint.
(r)(1) If the Commission finds by evidence beyond a
reasonable doubt that the facts alleged in the complaint are true and constitute a material violation of this article, it may
impose one or more of the following sanctions:
(A) Public reprimand;
(B) Cease and desist orders;
(C) Orders of restitution for money, things of value, or
services taken or received in violation of this chapter;
(D) Fines not to exceed five thousand dollars per violation;
or
(E) Reimbursement to the Commission for the actual costs of
investigating and prosecuting a violation. Any reimbursement
ordered by the Commission for its costs under this paragraph
shall be collected by the Commission and deposited into the
special revenue account created pursuant to section six, article
one of this chapter.
(2) In addition to imposing the above-specified sanctions,
the Commission may recommend to the appropriate governmental body
that a respondent be terminated from employment or removed from
office.
(3) The Commission may institute civil proceedings in the
circuit court of the county in which a violation occurred for the
enforcement of sanctions.
(s) At any stage of the proceedings under this section, the
Commission may enter into a conciliation agreement with a
respondent if the agreement is deemed by a majority of the
members of the Commission to be in the best interest of the state
and the respondent. Any conciliation agreement must be disclosed to the public: Provided, That negotiations leading to a
conciliation agreement, as well as information obtained by the
Commission during the negotiations, shall remain confidential
except as may be otherwise set forth in the agreement.
(t) Decisions of the Commission involving the issuance of
sanctions may be appealed to the circuit court of Kanawha County,
or to the circuit court of the county where the violation is
alleged to have occurred, only by the respondent and only upon
the grounds set forth in section four, article five, chapter
twenty- nine-a of this code.
(u)(1) Any person who in good faith files a verified
complaint or any person, official or agency who gives credible
information resulting in a formal complaint filed by Commission
staff is immune from any civil liability that otherwise might
result by reason of such actions.
(2) If the Commission determines, by clear and convincing
evidence, that a person filed a complaint or provided information
which resulted in an investigation knowing that the material
statements in the complaint or the investigation request or the
information provided were not true; filed an unsubstantiated
complaint or request for an investigation in reckless disregard
of the truth or falsity of the statements contained therein; or
filed one or more unsubstantiated complaints which constituted
abuse of process, the Commission shall:
(A) Order the complainant or informant to reimburse the
respondent for his or her reasonable costs;
(B) Order the complainant or informant to reimburse the
respondent for his or her reasonable attorney fees; and
(C) Order the complainant or informant to reimburse the
Commission for the actual costs of its investigation. In
addition, the Commission may decline to process any further
complaints brought by the complainant, the initiator of the
investigation or the informant.
(3) The sanctions authorized in this subsection are not
exclusive and do not preclude any other remedies or rights of
action the respondent may have against the complainant or
informant under the law.
(v) (1) If at any stage in the proceedings under this
section it appears to a Review Board, a hearing examiner or the
Commission that there is credible information or evidence that
the respondent may have committed a criminal violation, the
matter shall be referred to the full Commission for its
consideration. If, by a vote of two thirds of the members of the
full Commission, it is determined that probable cause exists to
believe a criminal violation has occurred, the Commission shall
refer the matter to the appropriate county prosecuting attorney
having jurisdiction for a criminal investigation and possible
prosecution. Deliberations of the Commission with regard to
referring a matter for criminal investigation by a prosecuting
attorney shall be private and confidential. Notwithstanding any
other provision of this article, once a referral for criminal
investigation is made under the provisions of this subsection,
the ethics proceedings shall be held in abeyance until action on the referred matter is concluded. If the referral of the matter
to the prosecuting attorney results in a criminal conviction of
the respondent, the Commission may resume its investigation or
prosecution of the ethics violation, but may not impose a fine as
a sanction if a violation is found to have occurred.
(2) If fewer than two thirds of the full Commission
determine that a criminal violation has occurred, the Commission
shall remand the matter to the Review Board, the hearing examiner
or the Commission itself as a hearing board, as the case may be,
for further proceedings under this article.
(w) The provisions of this section shall apply to violations
of this chapter occurring after the thirtieth day of September,
one thousand nine hundred eighty-nine, and within one year before
the filing of a complaint: Provided, That the applicable statute
of limitations for violations which occur on or after the first
day of July, two thousand five, is two years after the date on
which the alleged violation occurred.
§6B-2-5. Ethical standards for elected and appointed officials
and public employees.
(a) Persons subject to section. -- The provisions of this
section apply to all elected and appointed public officials and
public employees, whether full or part time, in state, county,
municipal governments and their respective boards, agencies,
departments and commissions and in any other regional or local
governmental agency, including county school boards.
(b) Use of public office for private gain. -- (1) A public official or public employee may not knowingly and intentionally
use his or her office or the prestige of his or her office for
his or her own private gain or that of another person. Incidental
use of equipment or resources available to a public official or
public employee by virtue of his or her position for personal or
business purposes resulting in de minimis private gain does not
constitute use of public office for private gain under this
subsection. The performance of usual and customary duties
associated with the office or position or the advancement of
public policy goals or constituent services, without
compensation, does not constitute the use of prestige of office
for private gain.
(2) Notwithstanding the general prohibition against use of
office for private gain, public officials and public employees
may use bonus points acquired through participation in frequent
traveler programs while traveling on official government
business; Provided, that the official's or employee's
participation in such program, or acquisition of such points,
does not result in additional costs to the government.
(2) (3) The Legislature, in enacting this subsection,
recognizes that there may be certain public officials or public
employees who bring to their respective offices or employment
their own unique personal prestige which is based upon their
intelligence, education, experience, skills and abilities, or
other personal gifts or traits. In many cases, these persons
bring a personal prestige to their office or employment which
inures to the benefit of the state and its citizens. Those persons may, in fact, be sought by the state to serve in their
office or employment because, through their unusual gifts or
traits, they bring stature and recognition to their office or
employment and to the state itself. While the office or
employment held or to be held by those persons may have its own
inherent prestige, it would be unfair to those individuals and
against the best interests of the citizens of this state to deny
those persons the right to hold public office or to be publicly
employed on the grounds that they would, in addition to the
emoluments of their office or employment, be in a position to
benefit financially from the personal prestige which otherwise
inheres to them. Accordingly, the Commission is directed, by
legislative rule, to establish categories of public officials and
public employees, identifying them generally by the office or
employment held, and offering persons who fit within those
categories the opportunity to apply for an exemption from the
application of the provisions of this subsection. Exemptions may
be granted by the Commission, on a case-by-case basis, when it is
shown that: (A) The public office held or the public employment
engaged in is not such that it would ordinarily be available or
offered to a substantial number of the citizens of this state;
(B) the office held or the employment engaged in is such that it
normally or specifically requires a person who possesses personal
prestige; and (C) the person's employment contract or letter of
appointment provides or anticipates that the person will gain
financially from activities which are not a part of his or her
office or employment.
(c) Gifts. -- (1) A public official or public employee may
not solicit any gift unless the solicitation is for a charitable
purpose with no resulting direct pecuniary benefit conferred upon
the official or employee or his or her immediate family:
Provided, That no public official or public employee may solicit
for a charitable purpose any gift from any person who is also an
official or employee of the state and whose position is
subordinate to the soliciting official or employee: Provided,
however, That nothing herein shall prohibit a candidate for
public office from soliciting a lawful political contribution. No
official or employee may knowingly accept any gift, directly or
indirectly, from a lobbyist or from any person whom the official
or employee knows or has reason to know:
(A) Is doing or seeking to do business of any kind with his
or her agency;
(B) Is engaged in activities which are regulated or
controlled by his or her agency; or
(C) Has financial interests which may be substantially and
materially affected, in a manner distinguishable from the public
generally, by the performance or nonperformance of his or her
official duties.
(2) Notwithstanding the provisions of subdivision (1) of
this subsection, a person who is a public official or public
employee may accept a gift described in this subdivision, and
there shall be a presumption that the receipt of such gift does
not impair the impartiality and independent judgment of the
person. This presumption may be rebutted only by direct objective evidence that the gift did impair the impartiality and
independent judgment of the person or that the person knew or had
reason to know that the gift was offered with the intent to
impair his or her impartiality and independent judgment. The
provisions of subdivision (1) of this subsection do not apply to:
(A) Meals and beverages;
(B) Ceremonial gifts or awards which have insignificant
monetary value;
(C) Unsolicited gifts of nominal value or trivial items of
informational value;
(D) Reasonable expenses for food, travel and lodging of the
official or employee for a meeting at which the official or
employee participates in a panel or has a speaking engagement;
(E) Gifts of tickets or free admission extended to a public
official or public employee to attend charitable, cultural or
political events, if the purpose of such gift or admission is a
courtesy or ceremony customarily extended to the office;
(F) Gifts that are purely private and personal in nature; or
(G) Gifts from relatives by blood or marriage, or a member
of the same household.
(3) The Commission shall, through legislative rule
promulgated pursuant to chapter twenty-nine-a of this code,
establish guidelines for the acceptance of a reasonable
honorarium by public officials and elected officials. The rule
promulgated shall be consistent with this section. Any elected
public official may accept an honorarium only when:
(1) (A) That official is a part-time elected public
official;
(2) (B) the fee is not related to the official's public
position or duties;
(3) (C) the fee is for services provided by the public
official that are related to the public official's regular,
nonpublic trade, profession, occupation, hobby or avocation; and
(4) (D) the honorarium is not provided in exchange for any
promise or action on the part of the public official.
(4) Nothing in this section shall be construed so as to
prohibit the giving of a lawful political contribution as defined
by law.
(5) The Governor or his designee may, in the name of the
state of West Virginia, accept and receive gifts from any public
or private source. Any gift so obtained shall become the property
of the state and shall, within thirty days of the receipt
thereof, be registered with the Commission and the division of
culture and history.
(6) Upon prior approval of the joint committee on government
and finance, any member of the Legislature may solicit donations
for a regional or national legislative organization conference or
other legislative organization function to be held in the state
for the purpose of deferring costs to the state for hosting of
the conference or function. Legislative organizations are
bipartisan regional or national organizations in which the joint
committee on government and finance authorizes payment of dues or other membership fees for the Legislature's participation and
which assist this and other state legislatures and their staff
through any of the following:
(i) (A) Advancing the effectiveness, independence and
integrity of legislatures in the states of the United States;
(ii) (B) Fostering interstate cooperation and facilitating
information exchange among state legislatures;
(iii) (C) Representing the states and their legislatures in
the American federal system of government;
(iv) (D) Improving the operations and management of state
legislatures and the effectiveness of legislators and legislative
staff, and to encourage the practice of high standards of conduct
by legislators and legislative staff;
(v) (E) Promoting cooperation between state legislatures in
the United States and legislatures in other countries.
The solicitations may only be made in writing. The
legislative organization may act as fiscal agent for the
conference and receive all donations. In the alternative, a bona
fide banking institution may act as the fiscal agent. The
official letterhead of the Legislature may not be used by the
legislative member in conjunction with the fund raising or
solicitation effort. The legislative organization for which
solicitations are being made shall file with the Joint Committee
on Government and Finance and with the Secretary of State for
publication in the State Register as provided in article two of
chapter twenty-nine-a of the Code, copies of letters, brochures and other solicitation documents, along with a complete list of
the names and last known addresses of all donors and the amount
of donations received. Any solicitation by a legislative member
shall contain the following disclaimer:
"This solicitation is endorsed by [name of member]. This
endorsement does not imply support of the soliciting
organization, nor of the sponsors who may respond to the
solicitation. A copy of all solicitations are on file with the
West Virginia Legislature's Joint Committee on Government and
Finance, and with the Secretary of State and are available for
public review."
(7) Upon written notice to the Commission, any member of the
Board of Public Works may solicit donations for a regional or
national organization conference or other function related to the
office of the member to be held in the state for the purpose of
deferring costs to the state for hosting of the conference or
function. The solicitations may only be made in writing. The
organization may act as fiscal agent for the conference and
receive all donations. In the alternative, a bona fide banking
institution may act as the fiscal agent. The official letterhead
of the office of the Board of Public Works member may not be used
in conjunction with the fund raising or solicitation effort. The
organization for which solicitations are being made shall file
with the Joint Committee on Government and Finance, with the
Secretary of State for publication in the state register as
provided in article two of chapter twenty-nine-a of the code and
with the Commission, copies of letters, brochures and other solicitation documents, along with a complete list of the names
and last known addresses of all donors and the amount of
donations received. Any solicitation by a member of the Board of
Public Works shall contain the following disclaimer: "This
solicitation is endorsed by (name of member of Board of Public
Works.) This endorsement does not imply support of the soliciting
organization, nor of the sponsors who may respond to the
solicitation. Copies of all solicitations are on file with the
West Virginia Legislature's Joint Committee on Government and
Finance, with the West Virginia Secretary of State and with the
West Virginia Ethics Commission and are available for public
review." Any moneys in excess of those donations needed for the
conference or function shall be deposited in the Capitol Dome and
Capitol Improvement Fund established in section two, article four
of chapter five-a of this code.
(d) Interests in public contracts. -
(1) In addition to the provisions of section fifteen,
article ten, chapter sixty-one of this code, no elected or
appointed public official or public employee or member of his or
her immediate family or business with which he or she is
associated may be a party to or have an interest in the profits
or benefits of a contract which the official or employee may have
direct authority to enter into, or over which he or she may have
control: Provided, That nothing herein shall be construed to
prevent or make unlawful the employment of any person with any
governmental body: Provided, however, That nothing herein shall
be construed to prohibit a member of the Legislature from entering into a contract with any governmental body, or prohibit
a part-time appointed public official from entering into a
contract which the part-time appointed public official may have
direct authority to enter into or over which he or she may have
control when the official has not participated in the review or
evaluation thereof, has been recused from deciding or evaluating
and has been excused from voting on the contract and has fully
disclosed the extent of his or her interest in the contract.
(2) In the absence of bribery or a purpose to defraud, an elected
or appointed public official or public employee or a member of
his or her immediate family or a business with which he or she is
associated shall not be considered as having an a prohibited
financial interest in a public contract when such a person has a
limited interest as an owner, shareholder or creditor of the
business which is awarded a public contract the contractor on the
public contract involved. A limited interest for the purposes of
this subsection is:
(A) An interest:
(i) Not exceeding ten percent of the partnership
or the outstanding shares of a corporation; or
(ii) Not exceeding thirty thousand dollars
interest in the profits or benefits of the contract; or
(B) An interest as a creditor:
(i) Not exceeding ten percent of the total
indebtedness of a business; or
(ii) Not exceeding thirty thousand dollars interest in the profits or benefits of the contract.
(A) An interest which does not exceed one thousand dollars
in the profits or benefits of the public contract or contracts in
a calendar year;
(B) An interest as a creditor of a public employee or
official who exercises control over the contract, or a member of
his or her immediate family, if the amount is less than five
thousand dollars.
(3) If a public official or employee has an interest in the
profits or benefits of a contract, then he or she may not make,
participate in making, or in any way attempt to use his office or
employment to influence a government decision affecting his or
her financial or limited financial interest. Public officials
shall also comply with the voting rules prescribed in subsection
(j) of this section.
(3) (4) Where the provisions of subdivisions (1) and (2) of
this subsection would result in the loss of a quorum in a public
body or agency, in excessive cost, undue hardship, or other
substantial interference with the operation of a state, county,
municipality, county school board or other governmental agency,
the affected governmental body or agency may make written
application to the Ethics Commission for an exemption from
subdivisions (1) and (2) of this subsection.
(e) Confidential information. -- No present or former public
official or employee may knowingly and improperly disclose any
confidential information acquired by him or her in the course of his or her official duties nor use such information to further
his or her personal interests or the interests of another person.
(f) Prohibited representation. -- No present or former
elected or appointed public official or public employee shall,
during or after his or her public employment or service,
represent a client or act in a representative capacity with or
without compensation on behalf of any person in a contested case,
rate-making proceeding, license or permit application, regulation
filing or other particular matter involving a specific party or
parties which arose during his or her period of public service or
employment and in which he or she personally and substantially
participated in a decision-making, advisory or staff support
capacity, unless the appropriate government agency, after
consultation, consents to such representation. A staff attorney,
accountant or other professional employee who has represented a
government agency in a particular matter shall not thereafter
represent another client in the same or substantially related
matter in which that client's interests are materially adverse to
the interests of the government agency, without the consent of
the government agency: Provided, That this prohibition on
representation shall not apply when the client was not directly
involved in the particular matter in which the professional
employee represented the government agency, but was involved only
as a member of a class. The provisions of this subsection shall
not apply to legislators who were in office and legislative staff
who were employed at the time it originally became effective on
the first day of July, one thousand nine hundred eighty-nine, and those who have since become legislators or legislative staff and
those who shall serve hereafter as legislators or legislative
staff.
(g) Limitation on practice before a board, agency,
commission or department. -- (1) No elected or appointed public
official and no full-time staff attorney or accountant shall,
during his or her public service or public employment or for a
period of one year after the termination of his or her public
service or public employment with a governmental entity
authorized to hear contested cases or promulgate or propose
rules, appear in a representative capacity before the
governmental entity in which he or she serves or served or is or
was employed in the following matters:
(A) A contested case involving an administrative sanction,
action or refusal to act;
(B) To support or oppose a proposed rule;
(C) To support or contest the issuance or denial of a
license or permit;
(D) A rate-making proceeding; and
(E) To influence the expenditure of public funds.
(2) As used in this subsection, "represent" includes any
formal or informal appearance before, or any written or oral
communication with, any public agency on behalf of any person:
Provided, That nothing contained in this subsection shall
prohibit, during any period, a former public official or employee
from being retained by or employed to represent, assist or act in a representative capacity on behalf of the public agency by which
he or she was employed or in which he or she served. Nothing in
this subsection shall be construed to prevent a former public
official or employee from representing another state, county,
municipal or other governmental entity before the governmental
entity in which he or she served or was employed within one year
after the termination of his or her employment or service in the
entity.
(3) A present or former public official or employee may
appear at any time in a representative capacity before the
Legislature, a county commission, city or town council or county
school board in relation to the consideration of a statute,
budget, ordinance, rule, resolution or enactment.
(4) Members and former members of the Legislature and
professional employees and former professional employees of the
Legislature shall be permitted to appear in a representative
capacity on behalf of clients before any governmental agency of
the state or of county or municipal governments, including county
school boards.
(5) An elected or appointed public official, full-time
staff attorney or accountant who would be adversely affected by
the provisions of this subsection may apply to the Ethics
Commission for an exemption from the six months one year
prohibition against appearing in a representative capacity, when
the person's education and experience is such that the
prohibition would, for all practical purposes, deprive the person
of the ability to earn a livelihood in this state outside of the governmental agency. The Ethics Commission shall by legislative
rule establish general guidelines or standards for granting an
exemption or reducing the time period, but shall decide each
application on a case-by-case basis.
(h) Employment by regulated persons and vendors. -- (1) No
full-time official or full-time public employee may seek
employment with, be employed by, or seek to purchase, sell or
lease real or personal property to or from any person who:
(A) Had a matter on which he or she took, or a subordinate
is known to have taken, regulatory action within the preceding
twelve months; or
(B) Has a matter before the agency to on which he or she is
working or a subordinate is known by him or her to be working.
(C) Is a vendor to the agency where the official serves or
public employee is employed and the official or public employee,
or a subordinate of the official or public employee, exercises
authority or control over a public contract with such vendor,
including but not limited to:
(I) Drafting bid specifications or requests for proposals;
(ii) recommending selection of the vendor;
(iii) conducting inspections or investigations,
(iv) approving the method or manner of payment to the
vendor;
(v) providing legal or technical guidance on the formation,
implementation or execution of the contract; or,
(vi)taking other nonministerial action which may affect the
financial interests of the vendor.
(2) Within the meaning of this section, the term
"employment" includes professional services and other services
rendered by the public official or public employee, whether
rendered as employee or as an independent contractor; "seek
employment" includes responding to unsolicited offers of
employment as well as any direct or indirect contact with a
potential employer relating to the availability or conditions of
employment in furtherance of obtaining employment; and
"subordinate" includes only those agency personnel over whom the
public official or public employee has supervisory
responsibility.
(3) A full-time public official or full-time public employee
who would be adversely affected by the provisions of this
subsection may apply to the Ethics Commission for an exemption
from the prohibition contained in subdivision (1), of this
subsection.
(A). The Ethics Commission shall by legislative rule
establish general guidelines or standards for granting an
exemption, but shall decide each application on a case-by-case
basis;
(B) A person adversely affected by the restriction on the
purchase of personal property may make such purchase after
seeking and obtaining approval from the Commission or in good
faith reliance upon an official guideline promulgated by the
Commission, written advisory opinions issued by the Commission, or a Legislative Rule.
(C) The Commission may establish exceptions to the personal
property purchase restrictions through the adoption of
guidelines, advisory opinions or legislative rule.
(4) A full-time public official or full-time public employee
may not take personal regulatory action on a matter affecting a
person by whom he or she is employed or with whom he or she is
seeking employment or has an agreement concerning future
employment.
(5) A full-time public official or full-time public employee
may not personally participate in a decision, approval,
disapproval, recommendation, rendering advice, investigation,
inspection or other substantial exercise of nonministerial
administrative discretion involving a vendor with whom he or she
is seeking employment or has an agreement concerning future
employment.
(5) (6) A full-time public official or full-time public
employee may not receive private compensation for providing
information or services that he or she is required to provide in
carrying out his or her public job responsibilities.
(i) Members of the Legislature required to vote. -- Members
of the Legislature who have asked to be excused from voting or
who have made inquiry as to whether they should be excused from
voting on a particular matter and who are required by the
presiding officer of the House of Delegates or Senate of West
Virginia to vote under the rules of the particular house shall not be guilty of any violation of ethics under the provisions of
this section for a vote so cast.
(j) Limitations on Voting.
(1) Public officials, excluding Members of the Legislature
who are governed by subsection (i) of this section, may not vote
on a matter:
(A) In which they, an immediate family member, or a
business with which they or an immediate family members is
associated have a financial interest. Business with which they
are associated means a business of which the person or an
immediate family member is a director, officer, owner, employee,
compensated agent, or holder of stock which constitute five
percent or more of the total outstanding stocks of any class.
(B) If a public official is employed by a financial
institution and his or her primary responsibilities include
consumer and commercial lending, the public official may not vote
on a matter which directly affects the financial interests of a
customer of the financial institution if the public official is
directly involved in approving a loan request from the person or
business appearing before the government body or if the public
official has been directly involved in approving a loan for that
person or business within the past 12 months: Provided, That,
this limitation only applies if the total amount of the loan or
loans exceeds fifteen thousand dollars.
(C) A personnel matter involving the public official's
spouse or relative;
(D) The appropriations of public monies or the
awarding of a contract to a nonprofit corporation if the public
official or an immediate family member is employed by the
nonprofit.
2. A public official may vote:
(A) If the public official, his or her spouse,
immediate family members or relatives or business with which they
are associated are affected as a member of, and to no greater
extent than any other member of a profession, occupation, class
of persons or class of businesses. A class shall consist of not
fewer than five similarly situated persons or businesses; or
(B) If the matter affects a publicly traded company when:
(I) The public official, or dependent family members
individually or jointly own less than five percent of the issued
stock in the publicly traded company and the value of the stocks
individually or jointly owned is less than ten thousand dollars;
and,
(ii) Prior to casting a vote the public official discloses
his or her interest in the publicly traded company.
(3) For a public official's recusal to be effective, it is
necessary to excuse him or herself from participating in the
discussion and decision-making process by physically removing him
or herself from the room during the period, fully disclosing his
or her interests, and recusing him or herself from voting on the
issue.
(j) (k) Limitations on participation in licensing and rate-making proceedings. -- No public official or employee may
participate within the scope of his or her duties as a public
official or employee, except through ministerial functions as
defined in section three, article one of this chapter, in any
license or rate-making proceeding that directly affects the
license or rates of any person, partnership, trust, business
trust, corporation or association in which the public official or
employee or his or her immediate family owns or controls more
than ten percent. No public official or public employee may
participate within the scope of his or her duties as a public
official or public employee, except through ministerial functions
as defined in section three, article one of this chapter, in any
license or rate-making proceeding that directly affects the
license or rates of any person to whom the public official or
public employee or his or her immediate family, or a partnership,
trust, business trust, corporation or association of which the
public official or employee, or his or her immediate family, owns
or controls more than ten percent, has sold goods or services
totaling more than one thousand dollars during the preceding
year, unless the public official or public employee has filed a
written statement acknowledging such sale with the public agency
and the statement is entered in any public record of the agency's
proceedings. This subsection shall not be construed to require
the disclosure of clients of attorneys or of patients or clients
of persons licensed pursuant to article three, eight, fourteen,
fourteen-a, fifteen, sixteen, twenty, twenty-one or thirty-one,
chapter thirty of this code.
(k) (l) Certain compensation prohibited. -- (1) A public employee
may not receive additional compensation from another publicly-
funded state, county or municipal office or employment for
working the same hours, unless:
(A) The public employee's compensation from one public
employer is reduced by the amount of compensation received from
the other public employer;
(B) The public employee's compensation from one public
employer is reduced on a pro rata basis for any work time missed
to perform duties for the other public employer;
(C) The public employee uses earned paid vacation, personal
or compensatory time or takes unpaid leave from his or her public
employment to perform the duties of another public office or
employment; or
(D) A part-time public employee who does not have regularly
scheduled work hours or a public employee who is authorized by
one public employer to make up, outside of regularly scheduled
work hours, time missed to perform the duties of another public
office or employment maintains time records, verified by the
public employee and his or her immediate supervisor at least once
every pay period, showing the hours that the public employee did,
in fact, work for each public employer. The public employer shall
submit these time records to the Ethics Commission on a quarterly
basis.
(2) This section does not prohibit a retired public official
or public employee from receiving compensation from a publicly- funded office or employment in addition to any retirement
benefits to which the retired public official or public employee
is entitled.
(l) (m) Certain expenses prohibited. -- No public official or
public employee shall knowingly request or accept from any
governmental entity compensation or reimbursement for any
expenses actually paid by a lobbyist and required by the
provisions of this chapter to be reported, or actually paid by
any other person.
(m) (n) Any person who is employed as a member of the faculty or
staff of a public institution of higher education and who is
engaged in teaching, research, consulting or publication
activities in his or her field of expertise with public or
private entities and thereby derives private benefits from such
activities shall be exempt from the prohibitions contained in
subsections (b), (c) and (d) of this section when the activity is
approved as a part of an employment contract with the governing
board of the institution or has been approved by the employee's
department supervisor or the president of the institution by
which the faculty or staff member is employed.
(n) (o) Except as provided in this section, a person who is a
public official or public employee may not solicit private
business from a subordinate public official or public employee
whom he or she has the authority to direct, supervise or control.
A person who is a public official or public employee may solicit
private business from a subordinate public official or public
employee whom he or she has the authority to direct, supervise or control when:
(A) The solicitation is a general solicitation directed to
the public at large through the mailing or other means of
distribution of a letter, pamphlet, handbill, circular or other
written or printed media; or
(B) The solicitation is limited to the posting of a notice
in a communal work area; or
(C) The solicitation is for the sale of property of a kind
that the person is not regularly engaged in selling; or
(D) The solicitation is made at the location of a private
business owned or operated by the person to which the subordinate
public official or public employee has come on his or her own
initiative.
(o) (p) The Commission may, by legislative rule promulgated in
accordance with chapter twenty-nine-a of this Code, define
further exemptions from this section as necessary or appropriate.
ARTICLE 3. LOBBYISTS.
§6B-3-3c. Lobbyist training course.
The Commission shall provide a training course for
registered lobbyists and prospective lobbyists at least twice
each year regarding the provisions of the ethics code relevant to
lobbyists. One such course shall be conducted during the month of
January. In addition to the registration fees authorized in
section three-a of this article, the Commission may collect a
reasonable fee established by legislative rule authorized
pursuant to article three, chapter twenty-nine-a of this code from those attending lobbyist training, which is to be collected
by the Ethics Commission and deposited pursuant to section six,
article one of this chapter. To maintain registration and engage
in lobbying activities, a lobbyist must complete one such
training course per year during each two-year registration cycle
as described in section three-a of this article.
§6B-3-4. Reporting by lobbyists.
(a) A registered lobbyist shall file with the Commission
reports of his or her lobbying activities, signed by the
lobbyist. The reports shall be filed three times a year as
follows:
(1) On or before the fifteenth day of May, a lobbyist shall
report all lobbying activities in which he or she engaged from
the first day of January through the thirtieth day of April.
(2) On or before the fifteenth day of September, a lobbyist
shall report all lobbying activities in which he or she engaged
from the first day of May through the thirty-first day of August;
(3) On or before the fifteenth day of January, a lobbyist
shall report all lobbying activities in which he or she engaged
from the first day of September through the thirty-first day of
December.
(b) If the date on which a lobbyist expenditure report is
due falls on a Saturday, Sunday or legal holiday, the report will
be considered timely filed if it is postmarked not later than the
next business day. If a registered lobbyist files a late report,
the lobbyist shall pay the Commission a fee of ten dollars for each late day, not to exceed a total of two hundred fifty
dollars. If a registered lobbyist fails to file a report or to
pay the required fee for filing an untimely report, the
Commission may, after written notice sent by registered certified
mail, return receipt requested, suspend the lobbyist's privileges
as a registered lobbyist until the lobbyist has satisfactorily
complied with all reporting requirements and paid the required
fee.
(c)(1) Except as otherwise provided in this section, each
report filed by a lobbyist shall show the total amount of all
expenditures for lobbying activities made or incurred by on
behalf of the lobbyist during the period covered by the report.
The report shall also show subtotals segregated according to
financial category, including meals and beverages; living
accommodations; advertising; travel; contributions; gifts to
public officials or employees or to members of the immediate
family of a public official or employee; and other expenses or
services.
(2) Lobbyists are not required to report the following:
(A) Unreimbursed personal living and travel expenses not
incurred directly for lobbying;
(B) Any expenses incurred for the lobbyist's own living
accommodations;
(C) Any expenses incurred for the lobbyist's own travel to
and from public meetings or hearings of the legislative and
executive branches; or
(D) Any expenses incurred for telephone and any office
expenses, including rent and salaries and wages paid for staff
and secretarial assistance.
(d) If a lobbyist is employed by more than one employer, the
report shall show the proportionate amount of the expenditures in
each category incurred on behalf of each of his or her employers.
(e) The report shall describe the subject matter of the
lobbying activities in which the lobbyist has been engaged during
the reporting period.
(f) If, during the period covered by the report, the
lobbyist made expenditures or expenditures were made or incurred
on behalf of the lobbyist in the reporting categories of meals
and beverages, living accommodations, travel, gifts or other
expenditures, other than for those expenditures governed by
subsection (g) of this section, the lobbyist shall report the
name of the public official or employee to whom or on whose
behalf the expenditures were made, the total amount of the
expenditures, and the subject matter of the lobbying activity, if
any: Provided, That a registered lobbyist who entertains more
than one public official or public employee at a time with meals
and beverages complies with the provisions of this section if he
or she reports the names of the public officials or public
employees entertained and the total amount expended for meals and
beverages for all of the public officials or public employees
entertained: Provided, however, That where several lobbyists join
in entertaining one or more public officials or public employees
at a time with meals and beverages, each lobbyist complies with the provisions of this section by reporting the names of the
public officials or public employees entertained and his or her
proportionate share of the total amount expended for meals and
beverages for all of the public officials or public employees
entertained. Under this subsection, no portion of the amount of
an expenditure for a dinner, party or other function sponsored by
a lobbyist's employer need be attributed to a particular public
official or employee who attends the function if the sponsor has
invited to the function all the members of: (1) The Legislature;
(2) either house of the Legislature; (3) a standing or select
committee of either house; or (4) a joint committee of the two
houses of the Legislature. However, the amount spent for the
function shall be added to other expenditures for the purpose of
determining the total amount of expenditures reported under
subdivision (1), subsection (c) of this section: Provided
further, That if the expenditure is for a function to which the
entire membership of the Legislature has been invited, the
lobbyist need only report that fact, the total amount of the
expenditure and the subject matter of the lobbying activity.
(g) If, during the period covered by the report, the lobbyist
made expenditures in the reporting categories of meals and
beverages, lodging, travel, gifts and scheduled entertainment for
or on behalf of a particular public official or public employee
in return for the participation of the public official or
employee in a panel or speaking engagement at a meeting, the
lobbyist shall report the name of the public official or employee
to whom or on whose behalf the expenditures were made and the total amount of the expenditures.
NOTE: The purpose of this bill is to strengthen the Ethics
Act by further defining prohibited conduct and to provide
additional guidance to public officials, excluding Members of the
Legislature, on voting. The bill also includes technical clean-
up.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.