Senate Bill No. 391
(By Senators Blatnik and Grubb)
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[Introduced March 17, 1993; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section five, article two, chapter
six-b of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to governmental
ethics and conflicts of interest; and prohibiting a member
of the Legislature from entering into a contract with state
government.
Be it enacted by the Legislature of West Virginia:
That section five, article two, chapter six-b of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS AND
EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES.
§6B-2-5. Ethical standards for elected and appointed officials
and public employees.
(a)
Persons subject to section.
-- The provisions of this
section apply to all elected and appointed public officials and
public employees, whether full or part time, in state, county,
municipal governments and their respective boards, agencies,departments and commissions and in any other regional or local
governmental agency, including county school boards.
(b)
Use of public office for private gain.
-- (1) A public
official or public employee may not knowingly and intentionally
use his or her office or the prestige of his or her office for
his or her own private gain or that of another person. The
performance of usual and customary duties associated with the
office or position or the advancement of public policy goals or
constituent services, without compensation, does not constitute
the use of prestige of office for private gain.
(2) The Legislature, in enacting this subsection (b),
relating to the use of public office or public employment for
private gain, recognizes that there may be certain public
officials or public employees who bring to their respective
offices or employment their own unique personal prestige which is
based upon their intelligence, education, experience, skills and
abilities, or other personal gifts or traits. In many cases,
these persons bring a personal prestige to their office or
employment which inures to the benefit of the state and its
citizens. Such These 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 these persons may
have its own inherent prestige, it would be unfair to such these
individuals and against the best interests of the citizens ofthis state to deny such these 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 these categories the opportunity to apply for an
exemption from the application of the provisions of this
subsection. Such The 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 a public official or public employee may notsolicit 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 prohibits
a candidate for public office from soliciting a lawful political
contribution. No An official or employee may not 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 a 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 toimpair 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 the 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. 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 may be construed so as to
prohibit the giving of a lawful political contribution as defined
by law.
(5) The governor or his designee may, in the name of the
state of West Virginia, accept and receive gifts from any public
or private source. Any such gift so obtained shall become the
property of the state and shall, within thirty days of the
receipt thereof, be registered with the commission and the
division of culture and history.
(d)
Interests in public contracts.
-- (1) In addition to
the provisions of section fifteen, article ten, chapter sixty-one
of this code, no an 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 not be a party to
or have an interest in the profits or benefits of a contract
which such 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 may 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, except the state, 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, anelected or appointed public official or public employee or a
member of his or her immediate family or a business with which he
or she is associated shall not be considered as having an
interest in a public contract when such a person has a limited
interest as an owner, shareholder or creditor of the business
which is the contractor on the public contract involved. A
limited interest for the purposes of this subsection is:
(A) An interest:
(i) Not exceeding ten percent of the partnership or the
outstanding shares of a corporation; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract; or
(B) An interest as a creditor:
(i) Not exceeding ten percent of the total indebtedness of
a business; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract.
(3) Where the provisions of subdivisions (1) and (2) of this
subsection would result in the loss of a quorum in a public body
or agency, in excessive cost, undue hardship, or other
substantial interference with the operation of a state, county,
municipality, county school board or other governmental agency,
the affected governmental body or agency may make written
application to the ethics commission for an exemption from
subdivisions (1) and (2) of this subsection.
(e)
Confidential information.
-- No A present or formerpublic official or employee may not knowingly and improperly
disclose any confidential information acquired by him or her in
the course of his or her official duties nor use such that
information to further his or her personal interests or the
interests of another person.
(f)
Prohibited representation.
-- No A present or former
elected or appointed public official or public employee shall may
not, 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 the representation. A staff
attorney, accountant, or other professional employee who has
represented a government agency in a particular matter shall may
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 does not apply when the
client was not directly involved in the particular matter in
which such professional employee represented the governmentagency, but was involved only as a member of a class. The
provisions of this subsection shall do 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 An elected or appointed
public official and no full-time staff attorney or accountant
shall may not, 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 oralcommunication with, any public agency on behalf of any person:
Provided,
That nothing contained in this subsection shall may
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 may 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 commissionfor an exemption from the six months prohibition against
appearing in a representative capacity, when the person's
education and experience is such that the prohibition would, for
all practical purposes, deprive the person of the ability to earn
a livelihood in this state outside of the governmental agency.
The ethics commission shall by legislative rule establish general
guidelines or standards for granting an exemption or reducing the
time period, but shall decide each application on a case-by-case
basis.
(h)
Seeking employment with regulated person prohibited.
--
(1) No A full-time public official or full-time public employee
who exercises policymaking, nonministerial or regulatory
authority may not 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 A person regulated by a governmental agency shall may
not 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 employeewho would be adversely affected by the provisions of this
subsection may apply to the ethics commission for an exemption
from the prohibition against seeking employment with a person who
is or may be regulated, when the person's education and
experience is such that the prohibition would, for all practical
purposes, deprive the person of the ability to earn a livelihood
in this state outside of the governmental agency. The ethics
commission shall by legislative rule establish general guidelines
or standards for granting an exemption, but shall decide upon
each application on a case-by-case basis.
(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 A public official or employee may
not 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 oremployee or his or her immediate family owns or controls more
than ten percent. No A public official or public employee may
not 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 the 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 A public official or
public employee shall may not knowingly request or accept from
any governmental entity compensation or reimbursement for any
expenses actually paid by a lobbyist and required by the
provisions of this chapter to be reported, or actually paid by
any other person.
(l) Any person who is employed as a member of the faculty or
staff of a public institution of higher education and who is
engaged in teaching, research, consulting or publication
activities in his or her field of expertise with public or
private entities and thereby derives private benefits from such
those activities shall be is 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 the 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.
NOTE: The purpose of this bill is to prohibit members of
the Legislature from entering into business contracts with state
government.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.