Senate Bill No. 477
(By Senators Hunter, Burnette and Unger)
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[Introduced March 14, 2001; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact sections five, seven and ten, article
two, chapter six-b of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, all relating to the
governmental ethics disclosure statutes; requiring legislators
and immediate family members to disclose sources of income and
assets; prohibiting legislators from voting on legislation
from which they will derive personal financial benefit; and
including violations of these requirements in criminal
penalties section of the statute.
Be it enacted by the Legislature of West Virginia:
That sections five, seven and ten, article two, chapter six-b
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC
OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES.
§6B-2-5. 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 of this 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
those 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 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 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 prohibits 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
is a presumption that the receipt of such the 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 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 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 must 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 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 becomes 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 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 may 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 the part-time appointed public
official may have direct authority to enter into or over which he
or she may have control when such the official has been recused
from deciding or evaluating and excused from voting on such the
contract and has fully disclosed the extent of such the 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 is not considered as having an interest
in a public contract when such a that 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 may, 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 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 the
professional employee represented the government agency, 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 elected or appointed public official and
no full-time staff attorney or accountant shall may, 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
prohibits, 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 are 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 subdivision (1) of this
subsection. 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: Provided, That no member of the Legislature may vote
on a particular legislation which, if passed, benefits that
legislator financially in any manner, whether individually or as a
member of a particular class.
(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 the sale with the
public agency and the statement is entered in any public record of
the agency's proceedings. This subsection shall may 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 may 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) 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) The commission by legislative rule promulgated in
accordance with chapter twenty-nine-a of this code may define further exemptions from this section as necessary or appropriate.
§6B-2-7. Financial disclosure statement; contents.
The financial disclosure statement required under this article
shall contain the following information:
(1) The name, residential and business addresses of the person
filing the statement and all names under which the person does
business.
(2) The name and address of each employer of the person.
(3) The identification, by category, of every source of income
over five thousand dollars received during the preceding calendar
year, in his or her own name or by any other person for his or her
use or benefit, by the person filing the statement, and a brief
description of the nature of the services for which the income was
received. This subdivision does not require a person filing the
statement who derives income from a business, profession or
occupation to disclose the individual sources and items of income
that constitute the gross income of that business, profession or
occupation. nor does this subdivision require a person filing the
statement to report the source or amount of income derived by his
or her spouse
(4) If the person profited or benefited in the year prior to
the date of filing from a contract for the sale of goods or
services to a state, county, municipal or other local governmental
agency either directly or through a partnership, corporation or
association in which such that person owned or controlled more than ten percent, the person shall describe the nature of the goods or
services and identify the governmental agencies which purchased the
goods or services.
(5) Each interest group or category listed below doing
business in this state with which the person filing the statement
did business or furnished services and from which the person
received more than twenty percent of the person's gross income
during the preceding calendar year. The groups or categories are
electric utilities, gas utilities, telephone utilities, water
utilities, cable television companies, interstate transportation
companies, intrastate transportation companies, oil or gas retail
companies, banks, savings and loan associations, loan or finance
companies, manufacturing companies, surface mining companies, deep
mining companies, mining equipment companies, chemical companies,
insurance companies, retail companies, beer, wine or liquor
companies or distributors, recreation related companies, timbering
companies, hospitals or other health care providers, trade
associations, professional associations, associations of public
employees or public officials, counties, cities or towns, labor
organizations, waste disposal companies, wholesale companies,
groups or associations seeking to legalize gambling, advertising
companies, media companies, race tracks and promotional companies.
(6) The names of all persons, excluding that person's
immediate family, parents or grandparents residing or transacting
business in the state to whom the person filing the statement owes, on the date of execution of this statement in the aggregate in his
or her own name or in the name of any other person more than twelve
thousand five hundred dollars: Provided, That nothing herein shall
require requires the disclosure of a mortgage on the person's
primary and secondary residences or of automobile loans on
automobiles maintained for the use of the person's immediate
family, or of a student loan, nor shall this section require the
disclosure of debts which result from the ordinary conduct of such
person's business, profession, or occupation or of debts of the
person filing the statement to any financial institution, credit
card company, or business, in which the person has an ownership
interest: Provided, however, That the previous proviso shall does
not exclude from disclosure loans obtained pursuant to the linked
deposit program provided for in article one-a, chapter twelve of
this code or any other loan or debt incurred which requires
approval of the state or any of its political subdivisions.
(7) The names of all persons except immediate family members,
parents and grandparents residing or transacting business in the
state (other than a demand or savings account in a bank, savings
and loan association, credit union or building and loan association
or other similar depository) who owes on the date of execution of
this statement, more, in the aggregate, than twelve thousand five
hundred dollars to the person filing the statement, either in his
or her own name or to any other person for his or her use or benefit. This subdivision does not require the disclosure of debts
owed to the person filing the statement which debts result from the
ordinary conduct of
such the
person's business, profession or
occupation or of loans made by the person filing the statement to
any business in which the person has an ownership interest.
(8) The source of each gift having a value of over one hundred
dollars, received from a person having a direct and immediate
interest in a governmental activity over which the person filing
the statement has control, shall must be reported by the person
filing the statement when such the gift is given to said the person
in his or her name or for his or her use or benefit during the
preceding calendar year: Provided, That gifts received by will or
by virtue of the laws of descent and distribution, or received from
one's spouse, child, grandchild, parents or grandparents, or
received by way of distribution from an inter vivos or testamentary
trust established by the spouse or child, grandchild, or by an
ancestor of the person filing the statement are not required to be
reported. As used in this subdivision any series or plurality of
gifts which exceeds in the aggregate the sum of one hundred dollars
from the same source or donor, either directly or indirectly, and
in the same calendar year, shall be are regarded as a single gift
in excess of that aggregate amount.
§6B-2-10. Violations and penalties.
(a) If any person violates the provisions of subsection (e), (f), or (g) or (i), section five of this article, or violates the
provisions of subdivision (1), subsection (e), section four of this
article, such that person, upon conviction thereof, shall be guilty
of a misdemeanor, and shall be punished by confinement
such
confinement and fine fined and imprisoned. If any person violating
who violates the provisions of subdivision (1), subsection (e),
section four of this article shall be is a member of the commission
or an employee thereof, he or she shall, upon conviction, be
subject to immediate removal or discharge.
(b) If any person violates the provisions of subsection (f),
section six of this article by willfully and knowingly filing a
false financial statement, such that person shall, upon conviction
thereof, be deemed guilty of false swearing is guilty of false
swearing and, upon conviction thereof, and shall be punished as
provided in section three, article five, chapter sixty-one of this
code.
(c) If any person knowingly fails or refuses to file a
financial statement required by section six of this article, such
that person upon conviction thereof, shall be guilty of a
misdemeanor, and
(d) If Any complainant who violates the provisions of
subdivision (2), subsection (f), section four, article two of this
chapter by knowingly and willfully disclosing any information made
confidential by an order of the commission he or she shall be is
subject to administrative sanction by the commission as provided
for in subsection (r), section four of this article.
NOTE: The purpose of this bill is to amend
the governmental
ethics disclosure statutes to require legislators and immediate
family members to disclose sources of income and assets; and
prohibit legislators from voting on legislation from which they
will derive personal financial benefit. It also includes
violations of these requirements in the criminal penalties section
of the statute.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.