H. B. 3149


(By Delegate Williams)
[Introduced February 21, 2003; referred to the
Committee on the Judiciary then Finance.]




A BILL to amend article two, chapter six-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section one-a; and to amend and reenact section one-a, article five, chapter eighteen, all relating to providing that county school board members or county school board members-elect, or others desiring to become members of county boards, may apply for and receive advisory opinions from the West Virginia commission committee on incompatible public offices; providing, that such persons relying in good faith on advisory opinions have a defense to actions taken against them that claim ethics violations; providing for reimbursement by county boards of attorneys' fees and other related expenses incurred by persons who defend themselves against actions claiming ethical violations when they have relied in good faith on advisory opinions; providing that votes cast by persons relying on advisory opinions cannot be invalidated; and requiring the West Virginia ethics commission to create the West Virginia ethics commission committee on incompatible public offices.

Be it enacted by the Legislature of West Virginia:
That article two, chapter six-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section one-a; and that section one-a, article five, chapter eighteen of said code be amended and reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES; DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES.

§6B-2-1a. Committee on incompatible public offices.
The West Virginia ethics commission, pursuant to subsection (j), section one, article two, chapter six-b of this code , shall appoint from the membership of the commission a subcommittee of three persons which is hereby designated as the West Virginia ethics commission committee on incompatible public offices. The chairperson of the West Virginia ethics commission shall designate one of the persons appointed to chair the committee. In addition to the three members of the committee, two additional members of the commission shall be designated to serve as alternative members of the committee. The chairperson of the committee or the executive director shall call meetings of the committee to act on requests for advisory opinions made under subsection (c), section one-a, chapter eighteen of this code. Advisory opinions shall be issued in a timely manner, not to exceed thirty days from the date an application for an opinion is received.
 ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-1a. Eligibility of members.
(a) No person shall be eligible for membership on any county board who is not a citizen, resident in such county, or who accepts a position as teacher or service personnel in the school district in which he or she is a resident or who is an elected or an appointed member of any political party executive committee, or who becomes a candidate for any other office than to succeed oneself.
(b) No member or member-elect of any board shall be eligible for nomination, election or appointment to any public office, other than to succeed oneself, or for election or appointment as a member of any political party executive committee, unless and until after that membership on the board, or his or her status as member-elect to the board, has been terminated at or before the time of his or her filing for such nomination for, or appointment to, such public office or committee.
(c) A member or member-elect of any county board, or a person desiring to become a member of any county board, may make application in writing to the West Virginia ethics commission committee on incompatible public offices provided for under article two, chapter six-b of this code for an advisory opinion addressing whether another elected or appointed public position is an "office" or "public office" within the meaning of subsections (a) and (b) of this section. The committee shall respond within thirty days from the receipt of the request by issuing a written advisory opinion addressing the matter raised in the request. All advisory opinions shall promptly be published and indexed on the internet at the West Virginia ethics commission's website and published and indexed in the code of state rules by the secretary of state: Provided, That before an advisory opinion is made public, any material which may identify the person who is the subject of the opinion shall, to the fullest extent possible, be deleted and the identity of the person who made the request may not be revealed.
(d) A person who relies in good faith upon an advisory opinion of the West Virginia ethics commission committee on incompatible public offices that another elected or appointed position is not an "office" or "public office" within the meaning of subsections (a) and (b) of this section and against whom an action is subsequently brought under section seven, article six, chapter six of this code for removal from a county board on the ground that the other elected or appointed position is an "office" or "public office" within the meaning of subsections (a) and (b) of this section shall be entitled to reimbursement from the county board for the reasonable attorney's fees and court costs he or she may incur in opposing the action, regardless of the outcome of the action. No vote cast by a person who has in good faith relied on an advisory opinion of the West Virginia ethics commission committee on incompatible public offices concerning his or her eligibility to be a board member may be invalidated solely on the ground that another elected or appointed position is an "office" or "public office" within the meaning of subsections (a) and (b) of this section. A member or member elect of any county board, and a person desiring to become a member of any county board, may rely upon the advisory opinion of the West Virginia ethics commission committee on incompatible public offices , and any person acting in good faith reliance on such an opinion has an absolute defense to any other civil suit or criminal prosecution for any action taken in good faith reliance on the opinion.
(e) Any person who is elected or appointed to a county board on or after the fifth day of May, one thousand nine hundred ninety-two, shall possess at least a high school diploma or a general educational development (GED) diploma: Provided, That this provision shall not apply to members or members-elect who have taken office prior to the fifth day of May, one thousand nine hundred ninety-two, and who serve continuously therefrom.
(f) No person elected to a county board after the first day of July, one thousand nine hundred ninety, shall assume the duties of board member unless he or she has first attended and completed a course of orientation relating to boardsmanship and governance effectiveness which shall be given between the date of election and the beginning of the member's term of office: Provided, That a portion or portions of subsequent training such as that offered in orientation may be provided to members after they have commenced their term of office: Provided, however, That attendance at the session of orientation given between the date of election and the beginning of the member's term of office shall permit such member or members to assume the duties of board member, as specified in this section. Members appointed to the board shall attend and complete the next such course offered following their appointment: Provided further, That the provisions of this section relating to orientation shall not apply to members who have taken office prior to the first day of July, one thousand nine hundred eighty-eight, and who serve continuously therefrom.
(g) Commencing on the effective date of this section, members shall annually receive seven clock hours of training in areas relating to boardsmanship and governance effectiveness. Such orientation and training shall be approved by the state board and conducted by the West Virginia school board association or other organization or organizations approved by the state board. Failure to attend and complete such an approved course of orientation and training relating to boardsmanship and governance effectiveness without good cause as determined by legislative rules of the state board shall constitute neglect of duty.
(h) In the final year of any four-year term of office, a member shall satisfy the annual training requirement before the first day of January. The state board shall petition the circuit court of Kanawha County to remove any county board member who has failed to or who refuses to attend and complete the approved course of orientation and training. If the county board member fails to show good cause for not attending the approved course of orientation and training, the court shall remove the member from office.

NOTE: The purpose of this bill is to provide that county school board members or county school board members-elect, or others desiring to become members of county boards, may apply for and receive advisory opinions from the West Virginia commission committee on incompatible public offices concerning whether they hold any office that creates an ethical breach if they serve on a county board. In accordance with making application for advisory opinions the bill also provides that such persons relying in good faith on advisory opinions have a defense to actions taken against them that claim ethics violations while, additionally, providing for reimbursement by county boards of attorneys' fees and other related expenses incurred by persons who defend themselves against actions claiming ethical violations when such persons have relied in good faith on advisory opinions. The bill also provides that votes cast by persons on county school boards who have relied in good faith on advisory opinions cannot be invalidated. Finally, the bill would require the West Virginia ethics commission to create the West Virginia ethics commission committee on incompatible public offices for the purpose of addressing applications from persons seeking advisory opinions on whether they have a conflict that would prevent them from serving on a county school board.

§6B-2-1a is new; therefore, strike-throughs and underscoring have been omitted.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.