ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 1003
(By Senators Tomblin, Mr. President, and Sprouse
By Request of the Executive)
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[Originating in the Committee on the Judiciary;
reported January 25, 2005.]
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A BILL to amend and reenact §6B-1-3 of the Code of West Virginia,
1931, as amended; to amend said Code by adding thereto a new
section, designated §6B-1-6; to amend and reenact §6B-2-1,
§6B-2-2, §6B-2-4, §6B-2-5, §6B-2-7, §6B-2-9 and §6B-2-10 of
said Code; to amend said Code by adding thereto a new section,
designated §6B-2-5b; to amend and reenact §6B-3-1, §6B-3-2,
§6B-3-3a, §6B-3-4, and §6B-3-7 of said Code; and to amend said
Code by adding thereto two new sections, designated §6B-3-3b
and §6B-3-11, all relating generally to the ethical standards
of governmental officials and employees and disclosure of
financial interests of such persons; defining certain terms;
creating a special revenue account; clarifying membership
qualifications for the West Virginia Ethics Commission;
requiring service of a complaint upon respondent; providing for procedures with respect to the conduct of meetings of the
Commission; describing the powers, duties and authority of the
Commission; authorizing the Commission to share confidential
information with law-enforcement agencies; providing for
procedures with respect to the filing of complaints against
persons subject to said chapter and the conduct of hearings
with respect thereto; prohibiting a political party or
officer, agent or employee of a political party from filing a
complaint; providing a procedure for the initiation of an
investigation upon the request of a Commission member without
the filing of a formal complaint; prohibiting Commission
members and staff from discussing or commenting on the
substantive aspects or merits of a pending or impending
investigation or complaint in certain circumstances;
authorizing the Commission to collect costs from respondents
found in violation of the Ethics Act; providing civil immunity
for good faith complainants and sanctions for bad faith
filings; clarifying the procedure for referring matters to a
prosecuting attorney for criminal investigation and
prosecution; providing for a two-year statute of limitations
on filing complaints; curtailing investigation or processing
of complaints against a public official or public employee who
is also a candidate for elective office until after the
election; providing ethical standards for elected and
appointed officials and for certain public employees;
clarifying the prohibition on use of public office for private gain; authorizing members of the Board of Public Works to
solicit donations for certain regional or national
organization conferences to be held in this state; prohibiting
legislators from attending certain events designed to
influence legislation; prohibiting a legislative committee
chair from profiting from contracts reviewed in his or her
capacity as chair; prohibiting public officials and public
employees from receiving compensation from more than one
publicly funded office or job in certain circumstances;
prohibiting elected officials from employment with the Board
of Public Works;
penalties; requiring the Commission to
provide ethical training for certain state officers and
employees; requiring the filing of financial disclosure
statements by certain public officials, public employees and
candidates, the contents thereof and the time when such
statements are to be filed; providing for the appointment of
a special prosecutor to investigate allegations of criminal
conduct in certain cases; providing for penalties for
violations of said chapter; creating the offenses of
concealing a material fact in the filing of a financial
disclosure statement and disclosing confidential information
in violation of a Commission order and setting the penalties
therefor; providing for registration and reporting
requirements for lobbyists; increasing lobbyist registration
fees; requiring the Commission to provide lobbyist training courses; clarifying lobbyist reporting requirements; requiring
registered lobbyists to file lobbying activity and expenditure
reports three times each year; describing the duties of
lobbyists and defining certain acts which are violations; and
providing for compliance audits of lobbyist registration
statements and disclosure reports.
Be it enacted by the Legislature of West Virginia:
That §6B-1-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said Code be amended by adding
thereto a new section, designated §6B-1-6; that §6B-2-1, §6B-2-2,
§6B-2-4, §6B-2-5, §6B-2-7, §6B-2-9 and §6B-2-10 of said Code be
amended and reenacted; that said Code be amended by adding thereto
a new section, designated §6B-2-5b; that §6B-3-1, §6B-3-2,
§6B-3-3a, §6B-3-4 and §6B-3-7 of said Code be amended and
reenacted; and that said Code be amended by adding thereto two new
sections, designated §6B-3-3b and §6B-3-11, all to read as follows:
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) "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.
(b) "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 the
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.
(c) "Ethics Commission", "Commission on Ethics" or
"Commission" means the West Virginia Ethics Commission.
(d) "Immediate family", with respect to an individual, means
a spouse residing in the individual's household who is not
separated from the individual within the meaning of section two
hundred thirty-eight, article one, chapter forty-eight of this Code
and any dependent child or children, dependent grandchild or
grandchildren, and dependent parent or parents.
(e) "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, such the
individual's own judgment as to the propriety of the action being
taken.
(f) "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.;
(g) "Political contribution" means and has the same definition
as is given that term under the provisions of article eight,
chapter three of this Code.
(h) "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.
(i) "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: (i) (1) Contracting for, or procurement of, goods or
services; (ii) (2) administering or monitoring grants or subsidies;
(iii) (3) planning or zoning; (iv) (4) inspecting, licensing,
regulating or auditing any person; or (v) (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.
(j) "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.
(k) "Thing of value", "other thing of value" or "anything of value" means and includes: (i) (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; (ii) (2) goods and chattels; (iii) (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;
(iv) (4) receipts given for the payment of money or other property;
(v) (5) any right or chose in action; (vi) (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; (vii)
(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; (viii) (8)
any promise of employment, present or future; (ix) (9) donation or
gift; (x) (10) rendering of services or the payment thereof; (xi)
(11) any advance or pledge; (xii) (12) a promise of present or
future interest in any business or contract or other agreement; or
(xiii) (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.
§6B-1-6.Special revenue account
There is created in the state treasury a special revenue
account to be named the "West Virginia Governmental Ethics
Commission Fund". The fund shall consist of moneys received under
this chapter and funds from any other source. Moneys deposited in
the fund are subject to the annual appropriation of funds by the
Legislature.
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 such 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 5, 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 such 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.
(h) The Commission shall appoint an Executive Director to
assist the Commission in carrying out its functions in accordance
with Commission rules and regulations and with applicable law. Said
The Executive Director shall be paid such a salary as may be 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 such appropriate
civil actions as may be appropriate: 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 chairman shall have the authority to designate
subcommittees of three persons, no more than two of whom may be
members of the same political party, Said subcommittees shall be as
investigative panels which shall have with the powers and duties
set forth hereinafter in this article.
(k) 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: such meetings or hearings
(1) They are required to be private in conformity with by the
provisions of this chapter relating to confidentiality; except that the Commission shall exclude the public from attendance at or (2)
they involve discussions of Commission personnel, planned or
ongoing litigation and planned or ongoing investigations.
(l) Meetings of the Commission shall be upon the call of the
chairman and shall be conducted by the personal attendance of the
Commission members and no meeting shall may be conducted by
telephonic or other electronic conferencing: nor shall any member
be allowed to vote by proxy: Provided, That telephone or other
electronic conferencing and voting may are not be held for the
purpose of approving or rejecting any proposed advisory opinions
prepared by the Commission, or for voting on issues involving the
administrative functions of the Commission permitted when the
Commission is acting as a hearing board under section four of this
article or when an investigative panel meets to receive an oral
response as authorized under subsection (d), section four of this
article. Meetings Members shall be given notice of meetings held by
telephone or other electronic conferencing shall require notice to
members in the same manner as meetings to be personally attended at
which the members are required to attend in person. Telephone or
other electronic conferences shall be electronically recorded and
the recordings shall be made a permanent part of the Commission
records. Members shall not be compensated for meetings other than
those personally attended retained by the Commission in accordance
with its record retention policy.
§6B-2-2. Same -- General powers and duties.
(a) The Commission shall promulgate propose rules and
regulations for promulgation in accordance with the provisions of
chapter twenty-nine-a of this Code to carry out the purposes of
this article within six months of the effective date of this
section. Such rules and regulations shall be legislative rules
subject to legislative rule-making review and subject to the
provisions of the administrative procedures act.
(b) The Commission 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
Commission's duties or exercise of its powers, including its duties
and powers of investigation.
(c) The Commission shall, in addition to its other duties:
(1) Prescribe forms for reports, statements, notices and other
documents required by law;
(2) Prepare and publish manuals and guides explaining the
duties of individuals covered by this law; and giving instructions
and public information materials to facilitate compliance with, and
enforcement of, this act; and
(3) Provide assistance to agencies, officials and employees in
administering the provisions of this act.
(d) The Commission may:
(1) Prepare reports and studies to advance the purpose of the
law;
(2) Contract for any services which cannot satisfactorily be
performed by its employees;
(3) Request Require the Attorney General to provide legal
advice without charge to the Commission, and the Attorney General
shall comply with the request;
(4) Employ additional legal counsel; and
(5) Request appropriate agencies of state government to
provide such any professional assistance as it the Commission may
require in the discharge of its duties: Provided, That the
Commission shall reimburse any agency, providing such assistance
other than the Attorney General, shall be reimbursed by the West
Virginia Ethics Commission the cost of such providing assistance.
(e) In order to assist in the performance of the Commission's
duties under this chapter, the Commission:
(1) May share otherwise confidential documents, materials or
other information with local, state and federal law-enforcement
authorities, provided that the recipient agrees to maintain the
confidentiality and privileged status of the document, material or
other information; and
(2) May receive documents, materials or information, including
otherwise confidential and privileged documents, materials or
information, from local, state and federal law-enforcement agencies and shall maintain as confidential or privileged any document,
material or information received with notice or the understanding
that it is confidential or privileged under the laws of the
jurisdiction that is the source of the document, material or
information.
§6B-2-4. Complaints; dismissals; hearings; disposition; judicial
review.
(a) Upon the filing by any person with the Commission of a
complaint which is duly verified by oath or affirmation, 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 complainant or his or her
representative personally filed the complaint with the Commission
and was given a receipt or other acknowledgement acknowledgment
evidencing the filing. A copy of the verified complaint shall also
be sent to the respondent. 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
(b) (1) Within fourteen days after the receipt of a complaint,
the Commission shall appoint an investigative panel shall be
appointed to investigate the substance of the allegations in the complaint and to determine whether there is probable cause to
believe that a violation of this chapter has occurred. The
Commission shall establish by legislative rule, promulgated in
accordance with chapter twenty-nine-a of this Code, a rotation
system for the selection of Commission members to sit on
investigative panels whereby which distributes the caseload of
Commission investigations is distributed among Commission members
as evenly and randomly as possible.
(c) (2) In the case of a filed complaint After a complaint is
filed, the first inquiry of the investigative panel shall be a
question as to determine whether or not 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 investigative panel to be insufficient in this regard, the
investigative panel shall dismiss the complaint.
(c) In the absence of a complaint, a Commission member may
present to the full Commission a written request that an
investigation be initiated. The written request for an
investigation, signed by the member of the Commission making the
request, shall state with specificity the facts on which the member
relies in making the request, the specific provision of this
chapter which the alleged conduct violates and the date on which
the violation allegedly occurred. If two thirds of the full Commission, excluding the member who requested the investigation,
determines that the allegations contained in the investigation
request, if taken as true, would constitute a violation of law upon
which the Commission could properly act under the provisions of
this chapter, the Commission shall refer the matter to an
investigative panel for investigation and a probable cause
determination in the same manner as a duly verified complaint found
to be sufficient pursuant to subsection (d) of this section. The
Commission member at whose request the investigation was initiated
may not serve on the investigative panel.
(d) After the Commission receives a complaint found by the
investigative panel to be sufficient or refers a request for
investigation to an investigative panel, the Executive Director
shall give notice of a pending investigation by the investigative
panel 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 the
basis for an alleged violation of law alleged to violate this
chapter and if a complaint has been filed, a copy of the complaint
or the written request for an investigation 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
investigative panel 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) (e) Within the forty-five day period following the mailing
of a notice of investigation, the investigative panel shall proceed
to consider: (1) The allegations raised in the complaint or the
request for investigation; (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 shall be afforded the
opportunity to may appear before the investigative panel and make
an oral response to the complaint or request for investigation. The
Commission shall, in promulgating legislative rules pursuant to the
provisions of subsection (a), section two of this article,
prescribe promulgate rules prescribing the manner in which a
respondent may present his or her oral response to the
investigative panel. The Commission may request 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 deemed to be considered 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 (f) of this section. If the a
person so requested asked to provide information fails or refuses
to furnish the information to the Commission, the Commission may
exercise its subpoena power, as provided for elsewhere in this
chapter in this section. and any Any subpoena issued thereunder by
the Commission shall have the same force and effect as a subpoena
issued by a circuit court of this state and enforcement of any such
subpoena may be had upon application to a circuit court of the
county in which the investigative panel is conducting an
investigation, through the issuance of a rule or an attachment
against the respondent as in cases of contempt.
(e) (f) (1) 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, shall be confidential
and shall may not be knowingly and improperly disclosed by any
member or employee or former member of the Commission or its staff,
except as follows:
(A) Upon Once the investigative panel has made 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 investigative panel's order and
the statement of charges prepared pursuant to the provisions of
subsection (h) of this section, the complaint or request for
investigation and all reports, records, nonprivileged and
nondeliberative material introduced at any probable cause hearing
held pursuant to the complaint are thereafter not cease to be
confidential: Provided, That confidentiality of such information
shall remain in full force and effect until the respondent has been
served by the Commission with a copy of the investigative panel's
order finding probable cause and with the statement of charges
prepared pursuant to the provisions of subsection (g) of this
section.
(B) After a finding of probable cause as aforesaid by the
investigative panel, 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 such subsequent 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 as well as or the request for investigation
and the identity of the complainant, if any, shall be disclosed to
a person named as respondent in any such complaint filed with the
Commission immediately upon such the respondent's request.
(E) Where the Commission is otherwise required by the
provisions of this chapter to disclose such information or to
proceed in such a manner that disclosure is necessary and required
to fulfill such 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
that the person providing such the information or filing a
complaint shall be bound to confidentiality until further order of
the Commission.
(f) (g) If a majority of the members of the investigative
panel fails to find probable cause, the proceedings shall be
dismissed by the Commission in an order signed by the majority
members of the panel. and copies Copies of the order of dismissal shall be sent to the complainant, if any, and served upon the
respondent forthwith. If the investigative panel decides by a
majority vote that there is probable cause to believe that a
violation under this chapter has occurred, the majority members of
the investigative panel shall sign an order directing the
Commission staff to prepare a statement of charges, to assign the
matter for hearing to the Commission or to a hearing examiner as
the Commission may subsequently direct and to schedule a hearing,
to be held within ninety days after the date of the order, to
determine the truth or falsity of the charges, such hearing to be
held within ninety days after the date of the order. 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) (h) At least eighty days prior to the date of the hearing,
the Commission shall serve the respondent shall be served 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 such other
circumstances, which are to be specified in a legislative rule, as
the Commission shall, by legislative rule, direct directs.
(h) (i) No Commission member who served on the investigative panel in a particular case or who was responsible for the
initiation of the investigation by the Commission pursuant to
subsection (c) of this section may hear evidence or participate in
the decision on the merits of the case. The Other Commission
members who have not served as members of an investigative panel in
a particular case may sit as a hearing board to adjudicate the a
particular 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. Such The legislative rule
shall also contain provisions which seek to ensure that the
functions of a hearing examiner will be conducted in an impartial
manner and shall which describe the circumstances and procedures
for disqualification of hearing examiners.
(i) (j) 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 may 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) (k) With respect to allegations of a violation under this
chapter, the complainant has the burden of proof. The West Virginia
Rules of Evidence as used to govern 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 legislative 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
make 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) (l) 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
members who have not served as members of the investigative panel,
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) (m) 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.
and briefs Briefs may be filed by the parties in accordance with
procedural rules promulgated by the Commission. The Commission
shall issue a final decision of the Commission shall be made by the
Commission members who have not served as members of the
investigative panel 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) (n) 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 six two thirds of the members of the
Commission who have not served as members of the investigative
panel eligible to decide the case.
(n) (o) 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, 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) (p) A complainant may be assisted in the prosecution of a
complaint by a member of the Commission staff assigned by the
Commission after a determination of probable cause.
(p) (q) (1) No member of the Commission staff who has served
as a member of the investigative panel or requested an
investigation pursuant to subsection (c) of this section and no
employee of the Commission assigned to prosecute a complaint may
participate in the Commission deliberations. or
(2) No member of the Commission who has served as a member of the investigative panel or requested an investigation by the
Commission pursuant to subsection (c) of this section and no
employee of the Commission assigned to prosecute a complaint or of
the investigative panel may communicate ex parte with other
Commission members concerning the merits of a complaint after being
assigned to prosecute a complaint.
(3) 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 substantive aspect or the merits of a
pending or impending complaint or investigation.
(q) (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:
(1) (A) Public reprimand;
(2) (B) Cease and desist orders;
(3) (C) Orders of restitution for money, things of value, or
services taken or received in violation of this chapter; or
(4) (D) Fines not to exceed one five thousand dollars per
violation. ;or
(E) Orders of reimbursement to the Commission for actual
costs incurred by the Commission in the course of investigating and
prosecuting a violation.
(2) In addition to imposing such the above-specified
sanctions, the Commission may recommend to the appropriate
governmental body that a respondent be terminated from employment
or removed from office. The Commission may institute civil
proceedings in the circuit court of the county wherein in which a
violation occurred for the enforcement of sanctions. All
reimbursement to the Commission for its costs shall be deposited
into a special account to be appropriated by the Legislature for
the operation of the Commission.
(r) (s) At any stage of the proceedings under this section,
the Commission may enter into a conciliation agreement with a
respondent if such 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 such the negotiations, shall remain confidential
except as may be otherwise set forth in the agreement.
(s) (t) Decisions of the Commission involving the issuance of
sanctions may be appealed to the Circuit Court of Kanawha County,
West Virginia, 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.
(t) In the event the Commission finds in favor of the person
complained against, the Commission shall order reimbursement of all
actual costs incurred, including, but not limited to, attorney fees
to be paid to the person complained against by the complainant, if
the Commission finds that the complaint was brought or made in bad
faith. In addition, the aggrieved party shall have a cause of
action and be entitled to compensatory damages, punitive damages,
costs and attorney fees for a complaint made or brought in bad
faith.
(u) (1) Any person who, in good faith, files a verified
complaint, requests an investigation or provides credible
information to the Commission resulting in an investigation is
immune from any civil liability that otherwise might result
therefrom.
(2) If the Commission determines, by clear and convincing
evidence, that a person filed a complaint, requested an
investigation 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, initiator of the investigation or
informant to reimburse the respondent for his or her reasonable
costs;
(B) Order the complainant, initiator of the investigation or
informant to reimburse the respondent for his or her reasonable
attorney fees; and
(C) Order the complainant, initiator of the investigation 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.
(u) (v) (1) If, at any stage in the proceedings under
authorized by this section, it appears to an investigative panel,
a hearing examiner or the Commission that the respondent may have
committed a criminal violation, may have been committed by a
respondent, such situation shall be brought before act, the matter
shall be referred to the full Commission for its consideration.
(2) If two thirds of the members of the full Commission
determine by a vote of two thirds of the full Commission, it is determined that probable cause exists to believe a criminal
violation has occurred, it may recommend the Commission shall refer
the matter to the appropriate county prosecuting attorney having
jurisdiction over the case that a criminal for investigation be
commenced and possible prosecution. Deliberations of the
Commission with regard to a recommendation referring a matter to a
prosecuting attorney 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 shall dismiss the ethics complaint
against the respondent.
(3) If the Commission determines that a criminal violation has
not occurred, the Commission shall remand the matter to the
investigative panel, the hearing examiner or the Commission itself
as a hearing board, as the case may be, for further proceedings
under this article.
(v) (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 verified complaint under subsection (a) of this section: or the appointment of an investigative panel by
the Commission under subsection (b) of this section. 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.
(x) (1) The Commission may not initiate an investigation or
process a complaint alleging that a public official or public
employee has violated this chapter during the fifty days preceding
any election at which the public official or public employee is a
candidate for elective office.
(2) The Commission may process a complaint filed against a
public official or public employee candidate more than fifty days
prior to the election if the complaint can be resolved or disposed
of at least thirty days before the election. If the complaint
cannot be processed during that time period, the Commission must
postpone further proceedings on the complaint until after the
election unless the public official or public employee candidate
waives the postponement in writing and requests that the
proceedings continue during the period before the election.
(3) For purposes of this subsection, any limitations on the
time for initiating a complaint or performing any other action set
by this chapter are considered tolled until after the election at
which the public official or public employee candidate stands for
elective office.
§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 public 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) 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 persons may have its own inherent prestige, it would be
unfair to such those individuals and against the best interests of
the citizens of this state to deny such 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 such public officials and public employees,
identifying them generally by the office or employment held, and
offering persons who fit within such those categories the
opportunity to apply for an exemption from the application of the
provisions of this subsection. Such exemptions 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 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 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 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:
Provided, That notwithstanding any provision
of this chapter to the contrary, a legislator may not attend,
during the period of any regular or extraordinary session, any
event where food or beverages are offered at no cost which is
sponsored by any person attempting to influence legislation.
(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.
(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) Advancing the effectiveness, independence and integrity of
legislatures in the states of the United States;
(ii) Fostering interstate cooperation and facilitating
information exchange among state legislatures;
(iii) Representing the states and their legislatures in the
American federal system of government;
(iv) 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) 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. A copy of all solicitations are on file with the West
Virginia Legislature's Joint Committee on Government and Finance,
with the Secretary of State, and with the West Virginia Ethics
Commission, and are available for public review."
(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 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 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 not participated in the review or
evaluation thereof, has been recused from deciding or evaluating and has been 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 considered as having an interest in a
public contract when such a the 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.
(4) As used in this subsection, a member of the Legislature
who serves as chair, or who otherwise is responsible for the
administration of a legislative committee, shall be considered as
participating in the review or evaluation of a contract.
(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 the 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 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 six months 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 regulations 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 regulation 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 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 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. -- (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, or purchase or lease real or personal property 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 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 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.
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 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 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) Certain compensation prohibited. -- (1) A public official
or public employee may not receive compensation from more than one
state-, county-, or municipal-funded office or job unless:
(A) The normal, established working hours of the publicly
funded offices or jobs do not overlap:
(B)The duties and compensation, or part thereof, of both
publicly funded offices or jobs have been combined or assigned to
the public official or public employee by the governing body of the
employer of the public official or public employee;
(C) The public official or public employee takes unpaid leave
from one publicly funded office or job to perform the duties of
another publicly funded office or job;
(D) The public official or public employee uses earned paid
vacation, personal or compensatory leave from one publicly funded
office or job to perform the duties of another publicly funded
office or job;
(E) The public official or public employee has his or her pay
from one publicly funded office or job reduced to reflect hours of
work missed to perform duties of another publicly funded office or
job; or
(D) The public official or public employee is authorized by
one state, county, or municipal employer to make up, outside of
normal, established work hours, work missed from one publicly funded office or job to perform the duties of another publicly
funded office or job and maintains time records, verified by the
public official or public employee and his or her immediate
supervisor at least once every pay period, showing the hours that
the public official or public employee did, in fact, work to make
up for work missed. The public oficial or public employee's
employer shall submit these time records to the Ethics Commission
on a monthly basis.
After the thirty-first day of December, two
thousand five, no elected public official may receive compensation
as an employee of a member of the Board of Public Works.
(3) School administrators whose duties require that they work
regularly during the summer months are not exempt from the
operation of this section.
(4) This section does not prohibit a retired public official
or public employee from receiving compensation from a state-,
county- or municipal-funded office or job in addition to any
retirement benefits to which the retired public official or public
employee is entitled.
(l) (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 such the
institution or has been approved by the employees' employee's
department supervisor or the president of the institution by which
the faculty or staff member is employed.
(m) (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.
(n) (p) 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-2-5b. Ethics training requirements.
An individual who, on or after the effective date of this
subsection, is elected or appointed to serve in the Legislature, as
a member of the Board of Public Works, or to a position in the
executive branch of state government which the Governor designates
by executive order, shall, within six months of filling the
position, attend a training course conducted by the Ethics
Commission on the requirements of this chapter: Provided, That a
public official or public employee who has completed a training
course provided by the Ethics Commission within the previous six
years while serving in another public position shall not be
required to attend.
§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 and
his or her spouse.
(3) The name and address of each business in which the person
filing the statement, his spouse or dependent children has or had,
within the previous year, an ownership interest of ten thousand
dollars at fair market value or five percent or more.
(3) (4) The identification, by category, of every source of
income over five one 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, or
the spouse of 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) (5) If the person, or his or her spouse, 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 the 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) (6) Each interest group or category listed below doing
business in this state with which either the person filing the
statement, or his or her spouse, did business or furnished services
and from which the person or the person's spouse received more than
twenty percent of the person's his or her 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, gaming or
lotteries, advertising companies, media companies, race tracks and
promotional companies.
(6) (7) 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, or
the spouse of 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 five thousand
five hundred dollars: Provided, That nothing herein shall require
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 the 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 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) (8) 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 five thousand five hundred dollars to the person filing the
statement, or the spouse of 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.
(9) Information, including a location, regarding any real
property in which the person filing the statement, or the spouse of
the person filing the statement, has an interest of ten thousand
dollars or more.
(8) (10) The source of each gift, including those described in
subdivision (2), subsection (c), section five of this article,
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 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 the
person is not required to report those gifts described in
subdivision (2), subsection (c), section five of this article that
are otherwise required to be reported under section four, article
three of this chapter: Provided, however, 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
regarded as a single gift in excess of that aggregate amount.
(11) The signature of the person filing the statement.
§6B-2-9. Special prosecutor authorized
(a) If, after referring a matter to the appropriate
prosecuting attorney pursuant to subsection (v), section four of
this article, the Ethics Commission finds as the result of an
investigation of a complaint that a pattern of ethics violations or
criminal violations under this chapter or under article five-a,
chapter sixty-one of this code, exists in a state, county or
covered municipal government, county school board or one of their
respective departments, agencies, boards or commissions, and also
finds that the prosecuting attorney of the county in which the
violation occurred is, for some reason due to ill health or a
conflict of interest, unable or unwilling to take appropriate
action undertake an investigation or prosecution, the chairman chair of the Ethics Commission may, upon a two-thirds vote of the
members of the Ethics Commission, petition the appropriate circuit
court for the appointment of a special prosecutor from the West
Virginia Prosecuting Attorneys Institute pursuant to the provisions
of section six, article four, chapter seven of this Code for the
purpose of conducting an investigation to determine whether a
violation of the criminal law of this state has occurred.
(b) A special prosecutor shall have the same authority as a
county prosecutor to investigate and prosecute persons subject to
this article for criminal violations committed in connection with
their public office or employment which constitute felonies. No
person who is serving as a prosecuting attorney or assistant
prosecuting attorney of any county is required to take an
additional oath when appointed to serve as a special prosecuting
attorney.
(c) The ethics committee shall be authorized to employ and
assign the necessary professional and clerical staff to assist any
such special prosecutor in the performance of his or her duties and
to pay and to set the compensation to be paid to a special
prosecutor in an amount not to exceed seventy-five dollars per hour
up to a maximum of fifty thousand dollars per annum.
(d) The special prosecutor shall be empowered to make a
presentment to any regularly or specially impaneled grand jury in
the appointing circuit court. The special prosecutor shall be empowered to prosecute any person indicted by such grand jury.
§6B-2-10. Violations and penalties.
(a) If any Any person who violates the provisions of
subsection (e), (f) or (g), section five of this article, or
violates the confidentiality provisions of subdivision (1),
subsection (e) (f), section four of this article, such person, upon
conviction thereof, shall be is guilty of a misdemeanor and, upon
conviction thereof, shall be punished by confinement in the county
jail for a period not to exceed six months or shall be fined not
more than one thousand dollars, or both such confinement and fine.
If any person violating the provisions of subdivision (1),
subsection (e), section four of this article shall be Conviction of
a member or employee of the Commission or an employee thereof, he
or she shall, upon conviction, be subject to of violating the
confidentiality provisions of subsection (f) is grounds for
immediate removal from office or discharge from employment.
(b) If any Any person who violates the provisions of
subsection (f), section six of this article by willfully and
knowingly filing a false financial statement, such person shall be
deemed guilty of false swearing and shall be punished as provided
in section three, article five, chapter sixty-one of this Code, by
knowingly and willfully concealing a material fact in filing the
statement is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than one thousand dollars, or confined in a county or regional jail not more than one year, or both.
(c) If any Any person who knowingly fails or refuses to file
a financial statement required by section six of this article, such
person, upon conviction thereof, shall be is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than one hundred dollars nor more than one thousand dollars.
(d) If any Any complainant who discloses confidential
information violates the provisions of in violation of subdivision
(2), subsection (e) (f), section four of this 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
subject to administrative sanction by the Commission as provided
for in subsection (r), section four of this article is quilty of a
misdemeanor and, upon conviction, thereof, shall be fined not less
than one hundred dollars nor more than one thousand dollars.
ARTICLE 3. LOBBYISTS.
§6B-3-1. Definitions.
As used in this article, unless the context in which used
clearly indicates otherwise:
(1) "Compensation" means money or any other thing of value
received or to be received by a lobbyist from an employer for
services rendered.
(2) "Employer" or "lobbyist's employer" means any person who
employs or retains a lobbyist.
(3) "Expenditure" means payment, distribution, loan, advance
deposit, reimbursement, or gift of money, real or personal property
or any other thing of value; or a contract, promise or agreement,
whether or not legally enforceable.
(4) "Government officer or employee" means a member of the
Legislature, a legislative employee, the Governor and other members
of the Board of Public Works, heads of executive departments and
any other public officer or public employee under the legislative
or executive branch of state government who is empowered or
authorized to make policy and perform nonministerial functions. In
the case of elected offices included herein, the term "government
officer or employee" shall include includes candidates who have
been elected but who have not yet assumed office.
(5) "Legislation" means bills, resolutions, motions,
amendments, nominations and other matters pending or proposed in
either house of the Legislature and includes any other matters that
may be the subject of action by either house or any committee of
the Legislature and all bills or resolutions that, having passed
both houses, are pending approval or veto by the Governor.
(6) "Lobbying" or "lobbying activity" means the act of
communicating with a government officer or employee to promote,
advocate or oppose or otherwise attempt to influence:
(i) The passage or defeat or the executive approval or veto of
any legislation which may be considered by the Legislature of this state; or
(ii) The adoption or rejection of any rule, regulation,
legislative rule, standard, rate, fee or other delegated
legislative or quasilegislative action to be taken or withheld by
any executive department.
(7)(A) "Lobbyist" means a person who, through communication
with a government officer or employee, promotes, advocates or
opposes or otherwise attempts to influence:
(i) The passage or defeat or the executive approval or veto of
any legislation which may be considered by the Legislature of this
state; or
(ii) The adoption or rejection of any rule, regulation,
legislative rule, standard, rate, fee or other delegated
legislative or quasilegislative action to be taken or withheld by
any executive department.
(B) The term "lobbyist" shall does not include the following
persons, who shall be are exempt from the registration and
reporting requirements set forth in this article, unless such
persons they engage in activities which would otherwise subject
them to the registration and reporting requirements:
(i) Persons who limit their lobbying activities to appearing
before public sessions of committees of the Legislature, or public
hearings of state agencies, are exempt;
(ii) Persons who limit their lobbying activities to attending receptions, dinners, parties or other group functions and make no
expenditure in connection with such lobbying are exempt;
(iii) Persons who engage in news or feature reporting
activities and editorial comment as working members of the press,
radio, or television and persons who publish or disseminate such
news, features or editorial comment through a newspaper, book,
regularly published periodical, radio station or television
station, are exempt;
(iv) Persons who lobby without compensation or other
consideration for acting as lobbyists and whose total expenditures
in connection with such lobbying do not exceed twenty-five one
hundred fifty dollars during any calendar year, are exempt;
The exemption exemptions contained in this subparagraph (iv)
and subparagraph (ii), paragraph (B), subdivision (7) of this
section are intended to permit and encourage citizens of this state
to exercise their constitutional rights to assemble in a peaceable
manner, consult for the common good, instruct their representatives
and apply for a redress of grievances. Accordingly, such persons
may lobby without incurring any registration or reporting
obligation under this article. Any person exempt under this
subparagraph (iv) or subparagraph (ii), paragraph (B), subdivision
(7) of this section may at his or her option register and report
under this article;
(v) Persons who lobby on behalf of a nonprofit organization with regard to legislation, without compensation, and who restrict
their lobbying activities to no more than twenty days or parts
thereof during any regular session of the Legislature. , are
exempt; The commission may promulgate a legislative rule to
require registration and reporting by persons who would otherwise
be exempt under this subparagraph, if it determines that such rule
is necessary to prevent frustration of the purposes of this
article. Any person exempt under this subparagraph may at his or
her option register and report under this article;
(vi) The Governor, members of the Governor's staff, members of
the Board of Public Works, officers and employees of the executive
branch who communicate with a member of the Legislature on the
request of that member, or who communicate with the Legislature,
through the proper official channels, requests for legislative
action or appropriations which are deemed necessary for the
efficient conduct of the public business or which are made in the
proper performance of their official duties, are exempt;
(vii) Members of the Legislature are exempt;
(viii) Persons employed by the Legislature for the purpose of
aiding in the preparation or enactment of legislation or the
performance of legislative duties are exempt; and
(ix) Persons rendering professional services in drafting
proposed legislation or in advising or rendering opinions to
clients as to the construction and effect of proposed or pending legislation are exempt.
(8) "Person" means any individual, partnership, trust, estate,
business trust, association, or corporation; any department,
commission, board, publicly supported college or university,
division, institution, bureau, or any other instrumentality of the
state; or any county, municipal corporation, school district or
any other political subdivision of the state.
§6B-3-2. Registration of lobbyists.
(a) Before engaging in any lobbying activity, or within thirty
days after being employed as a lobbyist, whichever occurs first, a
lobbyist shall register with the Ethics Commission by filing a
lobbyist registration statement. The registration statement shall
contain information and be in a form prescribed by the Ethics
Commission by legislative rule, including, but not limited to, the
following information:
(1) The registrant's name, business address, telephone numbers
and any temporary residential and business addresses and telephone
numbers used or to be used by the registrant while lobbying during
a legislative session;
(2) The name, address and occupation or business of the
registrant's employer;
(3) A statement as to whether the registrant is employed or
retained by his or her employer solely as a lobbyist or is a
regular employee performing services for the employer which include, but are not limited to, lobbying;
(4) A statement as to whether the registrant is employed or
retained by his or her employer under any agreement, arrangement or
understanding according to which the registrant's compensation, or
any portion of the registrant's compensation, is or will be
contingent upon the success of his or her lobbying activity;
(5) The general subject or subjects, if known, on which the
registrant will lobby or employ some other person to lobby in a
manner which requires registration under this article; and
(6) An appended written authorization from each of the
lobbyist's employers confirming the lobbyist's employment and the
subjects on which the employer is to be represented.
(b) Any lobbyist who receives or is to receive compensation
from more than one person for services as a lobbyist shall file a
separate notice of representation with respect to each person
compensating him or her for services performed as a lobbyist. When
a lobbyist whose fee for lobbying with respect to the same subject
is to be paid or contributed by more than one person, then the
lobbyist may file a single statement in which he or she shall
detail the name, business address and occupation of each person
paying or contributing to the fee.
(c) Whenever a change, modification or termination of the
lobbyist's employment occurs, the lobbyist shall, within one week
of the change, modification or termination, furnish full information regarding the change, modification or termination by
filing with the Commission an amended registration statement.
(d) Each lobbyist who has registered shall file a new
registration statement, revised as appropriate, on the Monday
preceding the second Wednesday in January of each odd-numbered year
and failure to do so terminates his or her registration
authorization to lobby. Until the registration is renewed, the
person may not engage in lobbying activities unless he or she is
otherwise exempt under paragraph (B), subdivision (7), section one
of this article.
§6B-3-3a. Registration fees.
(a) Each lobbyist shall, at the time he or she registers, pay
the Commission a base registration fee of sixty one hundred dollars
plus one hundred dollars for each employer represented not to
exceed a total of four hundred dollars to be filed with the initial
registration statement and with each new registration statement
filed by the lobbyist in subsequent odd-numbered years. Provided,
That if a lobbyist files his or her initial registration after the
first day of January during an even-numbered year, he or she shall
only be required to pay a reduced registration fee of thirty
dollars for the balance of that year Whenever a lobbyist modifies
his registration to add additional employers, an additional
registration fee of one hundred dollars for each additional
employer represented shall be paid to the Commission unless the maximum fee has been previously paid.
(b) The Commission shall collect the registration fees
authorized by this section and pay them into the state treasury to
the credit of the state general fund. All fees authorized and
collected pursuant to this article shall be paid to the Ethics
Commission and thereafter deposited into the special revenue
account created in section six, article one of this chapter to be
appropriated by the Legislature for the operation of the
Commission.
§6B-3-3b. Lobbyist training course.
The Commission shall provide or approve 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 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 from those attending lobbyist training. Fees
collected for training courses are to be deposited in a special
revenue account to be appropriated by the Legislature for the
operation of the Commission. Attendance at one of the training
courses offered by the Commission entitles an otherwise qualified
registered lobbyist to engage in lobbying activities for one year.
The Commission may suspend the lobbying privileges of any lobbyist
who fails to attend at least one of the annual training courses offered by the Commission.
§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 Monday preceding the second Wednesday in
January of each year the fifteenth day of May, a lobbyist shall
file an annual report of all lobbying activities in which he or she
engaged in during the preceding calendar year; and from the first
day of January through the thirtieth day of April.
(2) If a lobbyist engages in lobbying with respect to
legislation, then:
(A) Between the fortieth and forty-fifth days of any regular
session of the Legislature in which any lobbying occurred, the
lobbyist shall file a report describing all of his or her lobbying
activities which occurred since the beginning of the calendar year;
and
(B) Within twenty-one days after the adjournment sine die of
any regular or extraordinary session of the Legislature in which
any lobbying occurred, the lobbyist shall file a report describing
all of his or her lobbying activities which occurred since the
beginning of the calendar year or since the filing of the last
report required by this section, whichever is later.
(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 and 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 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.
(b) (c) (1) Except as otherwise provided in this section,
each lobbyist expenditure report filed by a lobbyist shall show the
total amount of all expenditures for lobbying activities made or
incurred by or on behalf of the lobbyist, or on behalf of the
lobbyist by the lobbyist's employer, 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 A registered lobbyist is not required to
report the following:
(A) Unreimbursed personal living and travel expenses not
incurred directly for lobbying;
(B) Any expenses incurred for his or her the lobbyist's own
living accommodations;
(C) Any expenses incurred for his or her 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. ; and
(E) Separate expenditures to or on behalf of a public official
or employee in an amount of less than five dollars.
(c) (d) If a registered lobbyist is employed by more than one
employer, the lobbyist expenditure report shall show the
proportionate amount of the expenditures in each category incurred
on behalf of each of his or her employers.
(d) (e) The lobbyist expenditure report shall describe the
subject matter of the lobbying activities in which the lobbyist has been engaged during the reporting period.
(e) (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 (f) (g) of this section, which expenditures in any
reporting category total more than twenty-five dollars to or on
behalf of any particular public official or employee, 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 or a lobbyist's employer need be attributed to or counted
toward the reporting amount of twenty-five dollars for 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 (b) (c) of this section.
(f) (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,
which reporting expenditures in any reporting category total more
than twenty-five dollars 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
the 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.
§6B-3-7. Duties of lobbyists.
A person required to register as a lobbyist under this chapter
article shall also have has the following obligations, the
violation of which shall constitute is cause for revocation of his
or her registration and termination of his or her lobbying
privileges and may subject such the person and such person's his or
her employer, if such the employer aids, abets, ratifies or
confirms any such act, to other civil liabilities as provided by
this chapter.
(1) Such persons A person required to register as a lobbyist
shall obtain, and preserve and make available for inspection by the
Commission at any time all accounts, bills, receipts, books, papers
and documents necessary to substantiate the financial reports
required to be made under this article for a period of at least
five two years from the date of the filing of the statement
containing such to which those items relate, which accounts, bills,
receipts, books, papers, and documents shall be made available for
inspection by the Commission at any time: Provided, That if a
lobbyist is required under the terms of his employment contract to
turn any records over to his employer, responsibility for the
preservation of such the records under this subsection shall rest
with such the employer.
(2) In addition, a person required to register as a lobbyist
shall may not:
(A) Engage in any lobbying activity as a lobbyist before registering as such a lobbyist;
(B) Knowingly deceive or attempt to deceive any government
officer or employee as to any fact pertaining to a matter which is
the subject of lobbying activity;
(C) Cause or influence the introduction of any legislation for
the purpose of thereafter being employed to secure its defeat;
(D) Exercise any undue influence, extortion or unlawful
retaliation upon any government officer or employee by reason of
such the government officer or employee's position with respect to,
or his vote upon, any matter which is the subject of lobbying
activity;
(E) Exercise undue influence upon any legislator or other
privately employed government officer or employee through
communications with such the person's employer;
(F) Give a gift to any government officer or employee in
excess of or in violation of any limitations on gifts set forth in
subsection (c), section five, article two of this chapter or give
any gift, whether lawful or unlawful, to a government officer or
employee without such the government officer or employee's
knowledge and consent.
§6B-3-11. Compliance Audits.
(a) Beginning on the first day of January, two thousand six,
the Commission will initiate, by lottery, random audits of lobbyist
registration statements and disclosure reports required to be filed under this chapter on or after the first day of July, two thousand
five.
(b) The Commission may hold up to four lotteries per year.
The number of lotteries held within a given year will be a matter
within the Commission's discretion.
(c) The number of audits to be conducted will be determined by
the Commission through resolutions adopted at public meetings and
based on various factors, including the complexity, results and
time required to complete the audits.
(d) No lobbyist or lobbyist's employer will be subject to a
random audit more than once in any 24-month period.
(e) The Commission shall propose a legislative rule for
promulgation in accordance with the provisions of chapter twenty-
nine-a of this Code setting forth, among other things, the manner
in which the audit is to be conducted, the information, documents
and materials to be considered during the audit, the selection and
qualification of the auditor(s), the audit procedures to be
employed by the auditors and the preparation and contents of any
post-audit reports.