Senate Bill No. 3
(By Senators Boley, Dugan, Buckalew and Minear)
____________
[Introduced January 10, 1996; referred to the Committee
on the Judiciary.]
____________
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; ethical standards for elected and appointed
officials and public employees; and prohibition against
certain solicitations by public officials and public
employees.
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 persons may, in fact, be sought by the state to
serve in their office or employment because, through their
unusual gifts or traits, they bring stature and recognition to
their office or employment and to the state itself. While the
office or employment held or to be held by such persons may have
its own inherent prestige, it would be unfair to such individuals
and against the best interests of the citizens of this state to
deny such persons the right to hold public office or be publicly
employed on the grounds that they would, in addition to the
emoluments of their office or employment, be in a position to
benefit financially from the personal prestige which otherwise
inheres to them. Accordingly, the commission is directed, by
legislative rule, to establish categories of such public
officials and public employees, identifying them generally by the
office or employment held, and offering persons who fit within
such categories the opportunity to apply for an exemption from the application of the provisions of this subsection. Such
exemptions may be granted by the commission, on a case-by-case
basis, when it is shown that: (A) The public office held or the
public employment engaged in is not such that it would ordinarily
be available or offered to a substantial number of the citizens
of this state; (B) the office held or the employment engaged in
is such that it normally or specifically requires a person who
possesses personal prestige; and (C) the person's employment
contract or letter of appointment provides or anticipates that
the person will gain financially from activities which are not a
part of his or her office or employment.
(c) Gifts. -- (1) A public official or public employee may
not solicit any gift unless the solicitation is for a charitable
purpose with no resulting direct pecuniary benefit conferred upon
the official or employee or his or her immediate family:
Provided, That no public official or public employee may solicit
for a charitable purpose any gift from any person who is also an
official or employee of the state and whose position as such is
subordinate to the soliciting official or employee: Provided,
however, That nothing herein shall prohibit a candidate for
public office from soliciting a lawful political contribution. No official or employee may knowingly accept any gift, directly
or indirectly, from a lobbyist or from any person whom the
official or employee knows or has reason to know:
(A) Is doing or seeking to do business of any kind with his
or her agency;
(B) Is engaged in activities which are regulated or
controlled by his or her agency; or
(C) Has financial interests which may be substantially and
materially affected, in a manner distinguishable from the public
generally, by the performance or nonperformance of his official
duties.
(2) Notwithstanding the provisions of subdivision (1) of
this subsection, a person who is a public official or public
employee may accept a gift described in this subdivision, and
there shall be a presumption that the receipt of such gift does
not impair the impartiality and independent judgment of the
person. This presumption may be rebutted only by direct
objective evidence that the gift did impair the impartiality and
independent judgment of the person or that the person knew or had
reason to know that the gift was offered with the intent to
impair his or her impartiality and independent judgment. The provisions of subdivision (1) of this subsection do not apply to:
(A) Meals and beverages;
(B) Ceremonial gifts or awards which have insignificant
monetary value;
(C) Unsolicited gifts of nominal value or trivial items of
informational value;
(D) Reasonable expenses for food, travel and lodging of the
official or employee for a meeting at which the official or
employee participates in a panel or speaking engagement at the
meeting;
(E) Gifts of tickets or free admission extended to a public
official or public employee to attend charitable, cultural or
political events, if the purpose of such gift or admission is a
courtesy or ceremony customarily extended to the office;
(F) Gifts that are purely private and personal in nature; or
(G) Gifts from relatives by blood or marriage, or a member
of the same household.
(3) The 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) That
official is a part-time elected public official; (2) the fee is
not related to the official's public position or duties; (3) 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) 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 such gift so obtained shall become the
property of the state and shall, within thirty days of the
receipt thereof, be registered with the commission and the
division of culture and history.
(d) Interests in public contracts. -- (1) In addition to the
provisions of section fifteen, article ten, chapter sixty-one of
this code, no elected or appointed public official or public employee or member of his or her immediate family or business
with which he or she is associated may be a party to or have an
interest in the profits or benefits of a contract which such
official or employee may have direct authority to enter into, or
over which he or she may have control: Provided, That nothing
herein shall be construed to prevent or make unlawful the
employment of any person with any governmental body: Provided,
however, That nothing herein shall be construed to prohibit a
member of the Legislature from entering into a contract with any
governmental body, or prohibit a part-time appointed public
official from entering into a contract which such part-time
appointed public official may have direct authority to enter into
or over which he or she may have control when such official has
been recused from deciding or evaluating and excused from voting
on such contract and has fully disclosed the extent of such
interest in the contract.
(2) In the absence of bribery or a purpose to defraud, an
elected or appointed public official or public employee or a
member of his or her immediate family or a business with which he
or she is associated shall not be considered as having an
interest in a public contract when such a person has a limited interest as an owner, shareholder or creditor of the business
which is the contractor on the public contract involved. A
limited interest for the purposes of this subsection is:
(A) An interest:
(i) Not exceeding ten percent of the partnership or the
outstanding shares of a corporation; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract; or
(B) An interest as a creditor:
(i) Not exceeding ten percent of the total indebtedness of
a business; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract.
(3) Where the provisions of subdivisions (1) and (2) of this
subsection would result in the loss of a quorum in a public body
or agency, in excessive cost, undue hardship, or other
substantial interference with the operation of a state, county,
municipality, county school board or other governmental agency,
the affected governmental body or agency may make written
application to the ethics commission for an exemption from
subdivisions (1) and (2) of this subsection.
(e) Confidential information. -- No present or former public
official or employee may knowingly and improperly disclose any
confidential information acquired by him or her in the course of
his or her official duties nor use such information to further
his or her personal interests or the interests of another person.
(f) Prohibited representation. -- No present or former
elected or appointed public official or public employee shall,
during or after his or her public employment or service,
represent a client or act in a representative capacity with or
without compensation on behalf of any person in a contested case,
rate-making proceeding, license or permit application, regulation
filing or other particular matter involving a specific party or
parties which arose during his or her period of public service or
employment and in which he or she personally and substantially
participated in a decision-making, advisory or staff support
capacity, unless the appropriate government agency, after
consultation, consents to such representation. A staff attorney,
accountant or other professional employee who has represented a
government agency in a particular matter shall not thereafter
represent another client in the same or substantially related
matter in which that client's interests are materially adverse to the interests of the government agency, without the consent of
the government agency: Provided, That this prohibition on
representation shall not apply when the client was not directly
involved in the particular matter in which such professional
employee represented the government agency, but was involved only
as a member of a class. The provisions of this subsection shall
not apply to legislators who were in office and legislative staff
who were employed at the time it originally became effective on
the first day of July, one thousand nine hundred eighty-nine, and
those who have since become legislators or legislative staff and
those who shall serve hereafter as legislators or legislative
staff.
(g) Limitation on practice before a board, agency,
commission or department. -- (1) No elected or appointed public
official and no full-time staff attorney or accountant shall,
during his or her public service or public employment or for a
period of six months after the termination of his or her public
service or public employment with a governmental entity
authorized to hear contested cases or promulgate regulations,
appear in a representative capacity before the governmental
entity in which he or she serves or served or is or was employed in the following matters:
(A) A contested case involving an administrative sanction,
action or refusal to act;
(B) To support or oppose a proposed regulation;
(C) To support or contest the issuance or denial of a
license or permit;
(D) A rate-making proceeding; and
(E) To influence the expenditure of public funds.
(2) As used in this subsection, "represent" includes any
formal or informal appearance before, or any written or oral
communication with, any public agency on behalf of any person:
Provided, That nothing contained in this subsection shall
prohibit, during any period, a former public official or employee
from being retained by or employed to represent, assist, or act
in a representative capacity on behalf of the public agency by
which he or she was employed or in which he or she served.
Nothing in this subsection shall be construed to prevent a former
public official or employee from representing another state,
county, municipal or other governmental entity before the
governmental entity in which he or she served or was employed
within six months after the termination of his or her employment or service in the entity.
(3) A present or former public official or employee may
appear at any time in a representative capacity before the
Legislature, a county commission, city or town council or county
school board in relation to the consideration of a statute,
budget, ordinance, rule, resolution or enactment.
(4) Members and former members of the Legislature and
professional employees and former professional employees of the
Legislature shall be permitted to appear in a representative
capacity on behalf of clients before any governmental agency of
the state, or of county or municipal governments including county
school boards.
(5) An elected or appointed public official, full-time staff
attorney or accountant who would be adversely affected by the
provisions of this subsection may apply to the ethics commission
for an exemption from the six months prohibition against
appearing in a representative capacity, when the person's
education and experience is such that the prohibition would, for
all practical purposes, deprive the person of the ability to earn
a livelihood in this state outside of the governmental agency.
The ethics commission shall by legislative rule establish general guidelines or standards for granting an exemption or reducing the
time period, but shall decide each application on a case-by-case
basis.
(h) Employment by regulated persons. -- (1) No full-time
official or full-time public employee may seek employment with,
be employed by, or seek to sell or lease real or personal
property to 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 which he or she is
working or a subordinate is known by him or her to be working.
(2) Within the meaning of this section, the term
"employment" includes professional services and other services
rendered by the public official or public employee, whether
rendered as 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 servant has supervisory responsibility.
(3) A full-time public official or full-time public employee
who would be adversely affected by the provisions of this
subsection may apply to the ethics commission for an exemption
from the prohibition contained in subsection (1). 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.
(4) A full-time public official or full-time public employee
may not take personal regulatory action on a matter affecting a
person by whom he or she is employed or with whom he or she is
seeking employment or has an agreement concerning future
employment.
(5) A full-time public official or full-time public employee
may not receive private compensation for providing information or
services that he or she is required to provide in carrying out
his or her public job responsibilities.
(i) Members of the Legislature required to vote. -- Members
of the Legislature who have asked to be excused from voting or
who have made inquiry as to whether they should be excused from
voting on a particular matter and who are required by the presiding officer of the House of Delegates or Senate of West
Virginia to vote under the rules of the particular house shall
not be guilty of any violation of ethics under the provisions of
this section for a vote so cast.
(j) Limitations on participation in licensing and
rate-making proceedings. -- No public official or employee may
participate within the scope of his or her duties as a public
official or employee, except through ministerial functions as
defined in section three, article one of this chapter, in any
license or rate-making proceeding that directly affects the
license or rates of any person, partnership, trust, business
trust, corporation or association in which the public official or
employee or his or her immediate family owns or controls more
than ten percent. No public official or public employee may
participate within the scope of his or her duties as a public
official or public employee, except through ministerial functions
as defined in section three, article one of this chapter, in any
license or rate-making proceeding that directly affects the
license or rates of any person to whom the public official or
public employee or his or her immediate family, or a partnership,
trust, business trust, corporation or association of which the public official or employee, or his or her immediate family, owns
or controls more than ten percent, has sold goods or services
totaling more than one thousand dollars during the preceding
year, unless the public official or public employee has filed a
written statement acknowledging such sale with the public agency
and the statement is entered in any public record of the agency's
proceedings. This subsection shall not be construed to require
the disclosure of clients of attorneys or of patients or clients
of persons licensed pursuant to articles three, eight, fourteen,
fourteen-a, fifteen, sixteen, twenty, twenty-one or thirty-one,
chapter thirty of this code.
(k) Certain expenses prohibited. -- No public official or
public employee shall knowingly request or accept from any
governmental entity compensation or reimbursement for any
expenses actually paid by a lobbyist and required by the
provisions of this chapter to be reported, or actually paid by
any other person.
(l) Any person who is employed as a member of the faculty or
staff of a public institution of higher education and who is
engaged in teaching, research, consulting or publication
activities in his or her field of expertise with public or private entities and thereby derives private benefits from such
activities shall be exempt from the prohibitions contained in
subsections (b), (c) and (d) of this section when the activity is
approved as a part of an employment contract with the governing
board of such institution or has been approved by the employees'
department supervisor or the president of the institution by
which the faculty or staff member is employed.
(m) 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.
(n) No public official or public employee may offer, solicit
or accept, or make any promise or offer to provide or perform, or
cause to be provided or performed, directly or indirectly, to any
public official, any service or material that is provided by the
state or any political subdivision thereof and which is to be
provided or performed within any county or political district
from which the recipient public official is elected or appointed
or in which the recipient public official has jurisdiction to
exercise his or her authority, if such promise or offer would
tend to impair the impartiality and independent judgment of the
recipient public official, or, if of significant value, would
create the appearance of influencing the recipient public
official or if the recipient public official believes or has
reason to believe that such offer, promise or solicitation was
intended to do so. For purposes of this subsection, "recipient public official" means the public official to whom any offer or
promise was made or who solicited the offer or promise.
(o) 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 public
officials and public employees from making or accepting certain
promises, offers and solicitation to or from other public
officials.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.