ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 1003
(By Senators Tomblin, Mr. President, and Sprouse
By Request of the Executive)
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[Passed January 29, 2005; to take effect July 1, 2005.]
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AN ACT 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 three new
sections, designated §6B-2-2a, §6B-2-3a and §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 three new
sections, designated §6B-3-3b, §6B-3-3c and §6B-3-11, all
relating generally to the ethical standards of public
officers, employees and lobbyists; providing a definition of
certain terms; creating a special revenue account; clarifying
membership qualifications for the West Virginia Ethics
Commission; modifying compensation and procedure for meetings
of the West Virginia Ethics Commission; revising the powers,
duties and authority of the Commission; providing for
procedures with respect to the filing of complaints against
persons subject to said chapter, the determination of probable cause that a violation of this chapter has occurred and the
conduct of hearings with respect thereto; establishing the
Probable Cause Review Board; providing for appointment, powers
and duties; providing for confidentiality requirements as to
Commission members and staff, complainants and informants;
establishing prohibition against certain Commission members
and staff for commenting on Commission proceedings; altering
sanctions that Commission may impose; providing immunity for
good faith complainants and sanctions for bad faith filings;
referral of criminal conduct to prosecutor; limitations on
filing complaints; altering statute of limitations; clarifying
use of public office for private gain; permitting solicitation
of certain donations by members of the Board of Public Works;
providing ethical standards for elected and appointed
officials as well as certain public employees; prohibiting
public officials and employees from receiving double
compensation in certain circumstances; modifying penalties;
providing for ethics training for certain public officials and
employees; revising the contents of financial disclosure
statements required of certain public officials and public
employees; providing for the appointment of special
prosecutors in certain cases; providing for penalties for
violations of said chapter; providing definitions of certain
terms related to lobbyists; providing for registration and
reporting requirements for lobbyists; modifying registration
fees for lobbyists; clarifying conflict of interests related
to lobbying activities; providing for a lobbyist training
course; providing for reporting requirements for lobbyists; altering duties of lobbyists and defining certain acts which
are violations; and providing for random compliance audits of
lobbyists and their employers.
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
three new sections, designated §6B-2-2a, §6B-2-3a and §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 three new sections, designated §6B-3-3b, §6B-3-3c 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) "Review Board" means the Probable Cause Review Board
created by section two-a, article two of this chapter.
(b) "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.
(c) "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 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.
(d) "Ethics Commission" or "Commission" means the West
Virginia Ethics Commission.
(e) "Immediate family", with respect to an individual, means
a spouse with whom the individual is living as husband and wife and
any dependent child or children, dependent grandchild or
grandchildren and dependent parent or parents.
(f) "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, the individual's own
judgment as to the propriety of the action being taken.
(g) "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.
(h) "Political contribution" means and has the same definition
as is given that term under the provisions of article eight,
chapter three of this code.
(i) "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.
(j) "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: (1) Contracting for, or procurement of, goods or
services; (2) administering or monitoring grants or subsidies; (3)
planning or zoning; (4) inspecting, licensing, regulating or
auditing any person; or (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.
(k) "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.
(l) "Thing of value", "other thing of value" or "anything of
value" means and includes: (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; (2)
goods and chattels; (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; (4) receipts given
for the payment of money or other property; (5) any right or chose
in action; (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; (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; (8) any
promise of employment, present or future; (9) donation or gift;
(10) rendering of services or the payment thereof; (11) any advance
or pledge; (12) a promise of present or future interest in any
business or contract or other agreement; or (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.
All moneys collected pursuant to this chapter, except fines
imposed pursuant to paragraph (D), subdivision (1), subsection (r),
section four, article two of this chapter, shall be deposited in a
special account in the state treasury to be known as the West
Virginia Governmental Ethics Commission Fund. Expenditures from
the fund shall be for the purposes set forth in this chapter and
are not authorized from collections but are to be made only in
accordance with appropriation by the Legislature and in accordance
with the provisions of article three, chapter twelve of this code
and upon the fulfillment of the provisions set forth in article
two, chapter five-a of this code: Provided, That for the fiscal
year ending the thirtieth day of June, two thousand five,
expenditures are authorized from collections rather than pursuant
to an appropriation 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 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 five, 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 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:
Provided, That to be eligible for compensation and expense
reimbursement, the member must be in personal attendance at the
meeting in which the duties are performed.
(h) The Commission shall appoint an executive director to
assist the Commission in carrying out its functions in accordance
with Commission rules and with applicable law. The executive director shall be paid a salary 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 appropriate civil
actions: 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 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: (1) They are required to
be private by the provisions of this chapter relating to
confidentiality; or (2) they involve discussions of Commission
personnel, planned or ongoing litigation and planned or ongoing
investigations.
(k) Meetings of the Commission shall be upon the call of the
chair and may be conducted by telephonic or other electronic
conferencing: Provided, That telephone or other electronic
conferencing and voting are not 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. Members shall be given notice of meetings held by telephone or
other electronic conferencing in the same manner as meetings at
which the members are required to attend in person. Telephone or
other electronic conferences shall be electronically recorded and
the recordings shall be retained by the Commission in accordance
with its record retention policy.
§6B-2-2. Same - General powers and duties.
(a) The Commission shall propose rules for promulgation in
accordance with the provisions of chapter twenty-nine-a of this
Code, to carry out the purposes of this article.
(b) The Commission may initiate or receive complaints and make
investigations, as provided in section four of this article, and
upon complaint by an individual of an alleged violation of this
article by a public official or public employee, refer the
complaint to the Review Board as provided in section two-a of this
article. Any person charged with a violation of this chapter is
entitled to the administrative hearing process contained in section
four of this article.
(c) 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.
(d) 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.
(e) 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) Require the Attorney General to provide legal advice
without charge to the Commission;
(4) Employ additional legal counsel;
(5) Request appropriate agencies of state to provide any
professional assistance the Commission may require in the discharge
of its duties: Provided, That the Commission shall reimburse any
agency other than the Attorney General the cost of providing
assistance; and
(6) Share otherwise confidential documents, materials or
information with appropriate agencies of state government, provided
that the recipient agrees to maintain the confidentiality and
privileged status of the document, material or information.
§6B-2-2a. Probable Cause Review Board.
(a) There is hereby established a Probable Cause Review Board
that shall conduct hearings to determine whether there is probable
cause to believe that a violation of the West Virginia Governmental
Ethics Act has occurred and, if so, to refer that investigation to
the Ethics Commission. The Review Board is an autonomous board, not under the direction or control of the Ethics Commission. The
Review Board will review complaints received or initiated by the
Ethics Commission to make a threshold determination of whether
probable cause exists to believe that a violation of the West
Virginia Governmental Ethics Act has occurred.
(b) The Governor, by and with the advice and consent of the
Senate, shall appoint three persons as members of the Review Board,
each of whom shall be a resident and citizen of the state. Each
member of the Review Board shall hold office until his successor
has been appointed and qualified. At least one member of the Board
must be an attorney licensed by the state of West Virginia and no
more than two members can belong to the same political party. The
members of the Review Board shall be appointed for overlapping
terms of two years, except that the original appointments shall be
for terms of one, two and three years, respectively. Any member
whose term expires may be reappointed by the Governor. In the
event a Review Board member is unable to complete his or her term,
a Governor shall appoint a person with similar qualification to
complete that term. Each Review Board member shall receive the
same compensation and expense reimbursement as provided to Ethics
Commission members pursuant to section one of this article. These
and all other costs incurred by the Review Board shall be paid from
the budget of the Ethics Commission.
(c) No person may be appointed to the Review Board or continue
to serve as a member of the Review Board 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 offices, or who is 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 Review Board. A Review Board 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.
(d) The Ethics Commission shall propose, for approval by the
Review Board, any procedural and interpretative rules governing the
operation of the Review Board. The Commission shall propose these
rules pursuant to article three, chapter twenty-nine-a of the code.
(e) The Ethics Commission shall provide staffing and a
location for the Review Board to conduct hearings. The Ethics
Commission is authorized to employ and assign the necessary
professional and clerical staff to assist the Review Board in the
performance of its duties and Commission staff shall, as the
Commission deems appropriate, also serve as staff to the Review
Board. All investigations and proceedings of the Review Board are
deemed confidential as provided in section four of this article and
members of the Review Board are bound to the same confidentiality
requirements applicable to the Ethics Commission pursuant to this
article.
(f) The Review Board 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 Review
Board's duties.
(g) Upon decision by the Review Board that probable cause
exists to believe that a violation of this chapter has occurred, Commission staff shall send notice to the Commission members of the
Review Board's finding. After an ethics complaint has been
submitted to the Review Board in accordance with section four of
this article, the Commission may take no further action until it
receives the Review Board's probable cause finding.
§6B-2-3a. Complaints.
(a) The Commission may commence an investigation, pursuant to
section four of this article, on the filing of a complaint duly
verified by oath or affirmation, by any person.
(b) The Commission may order the executive director to prepare
a complaint, upon a majority affirmative vote of its members, if it
receives or discovers credible information which, if true, would
merit an inquiry into whether a violation of this article has
occurred.
(c) (1) No complaint may be accepted or initiated by the
Commission against a public official or public employee during the
sixty days before a primary or general election at which the public
official or public employees is a candidate for elective office.
(2) The Commission shall stay any proceedings with regard to
an ethics complaint filed against a public official or public
employee candidate more than sixty days prior to the election:
Provided, Where there has not yet been a probable cause
determination with regard to the allegations in the complaint, the
public official or public employee candidate may waive the
postponement in writing, in which case the Commission and the
Review Board shall process the complaint and provide the candidate
with a probable cause determination at least thirty days prior to
the election.
(3) For purposes of this subsection, any provisions of this
chapter setting time periods for initiating a complaint or for
performing any other action are considered tolled until after the
election at which the public official or public employee candidate
stands for elective office.
§6B-2-4. Processing complaints; dismissals; hearings; disposition;
judicial review.
(a) Upon the filing of a complaint, 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 complaint was initiated by the Commission or the
complainant or his or her representative personally filed the
complaint with the Commission and was given a receipt or other
acknowledgment evidencing the filing of the complaint. 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.
Within fourteen days after the receipt of a complaint, the
executive director shall refer the complaint to the Review Board
created pursuant to section two-a of this article.
(b) Upon the referral of a complaint by the executive director
pursuant to subsection (a) of this section, the Review Board shall
determine whether 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 Review Board to be insufficient in this regard, the Review Board shall dismiss the
complaint.
(c) Upon a finding by the Review Board that the complaint is
sufficient, the executive director shall give notice of a pending
investigation 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 alleged to violate the law and a copy of the
complaint 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 Review Board 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) Within the 45-day period following the mailing of a notice
of investigation, the Review Board shall proceed to consider: (1)
The allegations raised in the complaint; (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 may
appear before the Review Board and make an oral response to the complaint. The Commission shall promulgate rules prescribing the
manner in which a respondent may present his or her oral response.
The Commission may 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
considered to be 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 (e) of this section. If a person asked to provide
information fails or refuses to furnish the information to the
Commission, the Commission may exercise its subpoena power as
provided in this chapter, and any subpoena issued by the Commission
shall have the same force and effect as a subpoena issued by a
circuit court of this state. Enforcement of any subpoena may be
had upon application to a circuit court of the county in which the
Review Board is conducting an investigation, through the issuance
of a rule or an attachment against the respondent as in cases of
contempt.
(e)(1) No person who has filed a complaint, provided
information to the Commission or has knowledge that the Commission
is undertaking an investigation and no Commission member or
employee or former member or employee shall disclose:
(A) His or her knowledge that a complaint has been filed or an
investigation has been undertaken;
(B) Any information he or she obtained as a result of having
interacted with the Commission in connection with a particular
investigation;
(C) The fact that he or she has filed a complaint, provided
information to or testified before the Commission or otherwise
participated in the Commission investigation; or
(D) The contents of any 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,
except as follows:
(i) Once there has been 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 Review Board's order and the statement of charges
prepared pursuant to the provisions of subsection (g) of this
section, the complaint and all reports, records, non-privileged and
nondeliberative material introduced at any probable cause hearing
held pursuant to the complaint cease to be confidential
(ii) After a finding of probable cause, 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 the hearing, as well as the
Commission's orders, are not confidential.
(iii) 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.
(iv) The complaint and the identity of the complainant shall
be disclosed to a person named as respondent immediately upon the respondent's request.
(v) Where the Commission is otherwise required by the
provisions of this chapter to disclose information or to proceed in
such a manner that disclosure is necessary and required to fulfill
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
the person providing the information or filing a complaint shall be
bound to confidentiality until further order of the Commission.
(3) If a complainant knowingly discloses confidential
information in violation of this subsection, the Commission may
impose the sanctions specified in subsection (r) of this section
and in addition, or in lieu thereof, dismiss the complaint.
(f) If the members of the Review Board fail to find probable
cause, the proceedings shall be dismissed by the Commission in an
order signed by the majority members of the Review Board. Copies
of the order of dismissal shall be sent to the complainant and
served upon the respondent forthwith. If the Review Board decides
by a unanimous vote that there is probable cause to believe that a
violation under this chapter has occurred, the members of the
Review Board shall sign an order directing the Commission staff to
prepare a statement of charges, to assign the matter for hearing to the Commission or a hearing examiner as the Commission may
subsequently direct. The Commission shall then schedule a hearing,
to be held within ninety days after the date of the order, to
determine the truth or falsity of the charges. The Commission's
review of the evidence presented shall be de novo. 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) At least eighty days prior to the date of the hearing, the
Commission shall serve the respondent 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 other circumstances as the
Commission, by legislative rule, directs.
(h) The Commission may sit as a hearing board to adjudicate
the 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. The legislative rule shall also contain
provisions which ensure that the functions of a hearing examiner
will be conducted in an impartial manner and describe the
circumstances and procedures for disqualification of hearing
examiners.
(i) 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 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) With respect to allegations of a violation under this
chapter, the complainant has the burden of proof. The West
Virginia Rules of Evidence 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 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 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) 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,
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) 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. Briefs may
be filed by the parties in accordance with procedural rules
promulgated by the Commission. The Commission shall issue a final
decision 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) 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 seven members of the Commission.
(n) 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) 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 proceeding previously or currently
before the Commission. Any member or employee or former member or
employee of the Commission who violates this subsection is subject
to the penalties contained in subsection (e), section ten of this
article. In addition, violation of this subsection by a current
member or employee of the Commission is grounds for immediate
removal from office or termination of employment.
(p) A complainant may be assisted by a member of the
Commission staff assigned by the Commission after a determination
of probable cause.
(q) No employee of the Commission assigned to prosecute a
complaint may participate in the Commission deliberations or
communicate with Commission members or the public concerning the
merits of a complaint.
(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:
(A) Public reprimand;
(B) Cease and desist orders;
(C) Orders of restitution for money, things of value, or
services taken or received in violation of this chapter;
(D) Fines not to exceed five thousand dollars per violation;
or
(E) Reimbursement to the Commission for the actual costs of
investigating and prosecuting a violation. Any reimbursement
ordered by the Commission for its costs under this paragraph shall
be collected by the Commission and deposited into the special
revenue account created pursuant to section six, article one of
this chapter.
(2) In addition to imposing the above-specified sanctions, the
Commission may recommend to the appropriate governmental body that
a respondent be terminated from employment or removed from office.
(3) The Commission may institute civil proceedings in the
circuit court of the county in which a violation occurred for the
enforcement of sanctions.
(s) At any stage of the proceedings under this section, the
Commission may enter into a conciliation agreement with a
respondent if 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
the negotiations, shall remain confidential except as may be
otherwise set forth in the agreement.
(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.
(u)(1) Any person who in good faith files a verified complaint
or any person, official, or agency who gives credible information
resulting in a formal complaint filed by Commission staff is immune
from any civil liability that otherwise might result by reason of
such actions.
(2) If the Commission determines, by clear and convincing
evidence, that a person filed a complaint 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 or informant to reimburse the
respondent for his or her reasonable costs;
(B) Order the complainant or informant to reimburse the
respondent for his or her reasonable attorney fees; and
(C) Order the complainant 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.
(v)(1) If at any stage in the proceedings under this section
it appears to a Review Board, a hearing examiner or the Commission
that there is credible information or evidence that the respondent
may have committed a criminal violation, the matter shall be
referred to the full Commission for its consideration. If, by a
vote of two thirds of the members of the full Commission, it is
determined that probable cause exists to believe a criminal
violation has occurred, the Commission shall refer the matter to
the appropriate county prosecuting attorney having jurisdiction for
a criminal investigation and possible prosecution. Deliberations
of the Commission with regard to referring a matter 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 may resume
its investigation or prosecution of the ethics violation, but may
not impose a fine as a sanction if a violation is found to have
occurred.
(2) If fewer than two thirds of the full Commission determine
that a criminal violation has occurred, the Commission shall remand
the matter to the Review Board, the hearing examiner or the Commission itself as a hearing board, as the case may be, for
further proceedings under this article.
(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 complaint: 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.
§6B-2-5. Ethical standards for elected and appointed officials and
public employees.
(a) Persons subject to section. -- The provisions of this
section apply to all elected and appointed public officials and
public employees, whether full or part time, in state, county,
municipal governments and their respective boards, agencies,
departments and commissions and in any other regional or local
governmental agency, including county school boards.
(b) Use of public office for private gain. -- (1) A public
official or public employee may not knowingly and intentionally use
his or her office or the prestige of his or her office for his or
her own private gain or that of another person. 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, 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. Those 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 those persons
may have its own inherent prestige, it would be unfair to those
individuals and against the best interests of the citizens of this
state to deny 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 public officials and
public employees, identifying them generally by the office or
employment held, and offering persons who fit within those
categories the opportunity to apply for an exemption from the
application of the provisions of this subsection. 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 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 or her
official duties.
(2) Notwithstanding the provisions of subdivision (1) of this
subsection, a person who is a public official or public employee
may accept a gift described in this subdivision, and there shall be
a presumption that the receipt of such gift does not impair the
impartiality and independent judgment of the person. This
presumption may be rebutted only by direct objective evidence that
the gift did impair the impartiality and independent judgment of
the person or that the person knew or had reason to know that the
gift was offered with the intent to impair his or her impartiality
and independent judgment. The provisions of subdivision (1) of
this subsection do not apply to:
(A) Meals and beverages;
(B) Ceremonial gifts or awards which have insignificant
monetary value;
(C) Unsolicited gifts of nominal value or trivial items of
informational value;
(D) Reasonable expenses for food, travel and lodging of the
official or employee for a meeting at which the official or
employee participates in a panel or has a speaking engagement;
(E) Gifts of tickets or free admission extended to a public
official or public employee to attend charitable, cultural or
political events, if the purpose of such gift or admission is a
courtesy or ceremony customarily extended to the office;
(F) Gifts that are purely private and personal in nature; or
(G) Gifts from relatives by blood or marriage, or a member of
the same household.
(3) The Commission shall, through legislative rule promulgated
pursuant to chapter twenty-nine-a of this code, establish guidelines for the acceptance of a reasonable honorarium by public
officials and elected officials. The rule promulgated shall be
consistent with this section. Any elected public official may
accept an honorarium only when: (1) That official is a part-time
elected public official; (2) the fee is not related to the
official's public position or duties; (3) the fee is for services
provided by the public official that are related to the public
official's regular, nonpublic trade, profession, occupation, hobby
or avocation; and (4) the honorarium is not provided in exchange
for any promise or action on the part of the public official.
(4) Nothing in this section shall be construed so as to
prohibit the giving of a lawful political contribution as defined
by law.
(5) The Governor or his designee may, in the name of the state
of West Virginia, accept and receive gifts from any public or
private source. Any 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. Copies of all solicitations are on file with the
West Virginia Legislature's Joint Committee on Government and
Finance, with the West Virginia Secretary of State and with the
West Virginia Ethics Commission and are available for public
review." Any moneys in excess of those donations needed for the
conference or function shall be deposited in the Capitol Dome and
Capitol Improvement Fund established in section two, article four
of chapter five-a of this code.
(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 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 the part-time appointed public official may have direct
authority to enter into or over which he or she may have control
when 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 the contract and has fully disclosed the
extent of his or her interest in the contract.
(2) In the absence of bribery or a purpose to defraud, an elected or appointed public official or public employee or a member
of his or her immediate family or a business with which he or she
is associated shall not be considered as having an interest in a
public contract when such a person has a limited interest as an
owner, shareholder or creditor of the business which is the
contractor on the public contract involved. A limited interest for
the purposes of this subsection is:
(A) An interest:
(i) Not exceeding ten percent of the partnership or the
outstanding shares of a corporation; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract; or
(B) An interest as a creditor:
(i) Not exceeding ten percent of the total indebtedness of a
business; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract.
(3) Where the provisions of subdivisions (1) and (2) of this
subsection would result in the loss of a quorum in a public body or
agency, in excessive cost, undue hardship, or other substantial
interference with the operation of a state, county, municipality,
county school board or other governmental agency, the affected
governmental body or agency may make written application to the
Ethics Commission for an exemption from subdivisions (1) and (2) of
this subsection.
(e) Confidential information. -- No present or former public
official or employee may knowingly and improperly disclose any
confidential information acquired by him or her in the course of his or her official duties nor use such information to further his
or her personal interests or the interests of another person.
(f) Prohibited representation. -- No present or former elected
or appointed public official or public employee shall, during or
after his or her public employment or service, represent a client
or act in a representative capacity with or without compensation on
behalf of any person in a contested case, rate-making proceeding,
license or permit application, regulation filing or other
particular matter involving a specific party or parties which arose
during his or her period of public service or employment and in
which he or she personally and substantially participated in a
decision-making, advisory or staff support capacity, unless the
appropriate government agency, after consultation, consents to such
representation. A staff attorney, accountant or other professional
employee who has represented a government agency in a particular
matter shall not thereafter represent another client in the same or
substantially related matter in which that client's interests are
materially adverse to the interests of the government agency,
without the consent of the government agency: Provided, That this
prohibition on representation shall not apply when the client was
not directly involved in the particular matter in which 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 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 or propose 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 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 one year after the
termination of his or her employment or service in the entity.
(3) A present or former public official or employee may appear
at any time in a representative capacity before the Legislature, a
county commission, city or town council or county school board in
relation to the consideration of a statute, budget, ordinance,
rule, resolution or enactment.
(4) Members and former members of the Legislature and
professional employees and former professional employees of the
Legislature shall be permitted to appear in a representative
capacity on behalf of clients before any governmental agency of the
state or of county or municipal governments, including county
school boards.
(5) An elected or appointed public official, full-time staff
attorney or accountant who would be adversely affected by the
provisions of this subsection may apply to the Ethics Commission
for an exemption from the six months prohibition against appearing
in a representative capacity, when the person's education and
experience is such that the prohibition would, for all practical
purposes, deprive the person of the ability to earn a livelihood in
this state outside of the governmental agency. The Ethics
Commission shall by legislative rule establish general guidelines
or standards for granting an exemption or reducing the time period,
but shall decide each application on a case-by-case basis.
(h) Employment by regulated persons. -- (1) No full-time
official or full-time public employee may seek employment with, be
employed by, or seek to purchase, sell or lease real or personal
property to or 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 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 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 article three, eight,
fourteen, fourteen-a, fifteen, sixteen, twenty, twenty-one or
thirty-one, chapter thirty of this code.
(k) Certain compensation prohibited. -- (1) A public employee
may not receive additional compensation from another publicly-
funded state, county or municipal office or employment for working
the same hours, unless:
(A) The public employee's compensation from one public
employer is reduced by the amount of compensation received from the
other public employer;
(B) The public employee's compensation from one public
employer is reduced on a pro rata basis for any work time missed to
perform duties for the other public employer;
(C) The public employee uses earned paid vacation, personal or
compensatory time or takes unpaid leave from his or her public
employment to perform the duties of another public office or
employment; or
(D) A part-time public employee who does not have regularly
scheduled work hours or a public employee who is authorized by one
public employer to make up, outside of regularly scheduled work
hours, time missed to perform the duties of another public office or employment maintains time records, verified by the public
employee and his or her immediate supervisor at least once every
pay period, showing the hours that the public employee did, in
fact, work for each public employer. The public employer shall
submit these time records to the Ethics Commission on a quarterly
basis.
(2) This section does not prohibit a retired public official
or public employee from receiving compensation from a publicly-
funded office or employment in addition to any retirement benefits
to which the retired public official or public employee is
entitled.
(l)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.
(m) 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 the institution or
has been approved by the employee's department supervisor or the
president of the institution by which the faculty or staff member
is employed.
(n) 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.
(o) The Commission may, by legislative rule promulgated in
accordance with chapter twenty-nine-a of this Code, 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, and those positions in the
executive branch of state government which the Governor designates
by executive order, shall, within six months of filling such
position, attend a training course conducted by the Ethics Commission on the requirements of the Ethics Act. The Commission
shall offer the training contemplated by this section once every
four years and shall prescribe by legislative rule the nature,
duration and content of the training and the manner in which the
training will be conducted.
§6B-2-7. Financial disclosure statement; contents.
The financial disclosure statement required under this article
shall contain the following information:
(1) The name, residential and business addresses of the person
filing the statement and all names under which the person does
business.
(2) The name and address of each employer of the person.
(3) The name and address of each business in which the person
filing the statement has or had in the last year an interest of ten
thousand dollars at fair market value or five percent ownership
interest, if that interest is valued at more ten thousand dollars.
(4) The identification, by category, of every source of income
over 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 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.
(5) If the person, profited or benefitted 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 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.
(6) Each interest group or category listed below doing
business in this state with which the person filing the statement,
did business or furnished services and from which the person
received more than twenty percent of 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 promoting gaming or lotteries, advertising
companies, media companies, race tracks and promotional companies.
(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,
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
five thousand 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 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.
(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 five thousand dollars
to the person filing the statement, either in his or her own name
or to any other person for his or her use or benefit. This
subdivision does not require the disclosure of debts owed to the
person filing the statement which debts result from the ordinary conduct of 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) 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 gift is given
to said person in his or her name or for his or her use or benefit
during the preceding calendar year: Provided, That, effective from
passage of the amendments to this section enacted during the First
Extraordinary Session of the Legislature in two thousand five, any
person filing a statement required to be filed pursuant to this
section on or after the first day of January, two thousand five, 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.
(10) The signature of the person filing the statement.
§ 6B-2-9. Special prosecutor authorized
(a)(1) If after referral to the appropriate county prosecuting
attorney under subsection (v), section four of this article the
Ethics Commission finds that the prosecuting attorney is, due to
ill health or conflict of interest, unable to undertake a criminal
investigation or prosecution, the 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 through 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.
(2) If the West Virginia Prosecuting Attorneys Institute is
unable, due to a conflict of interest of its Executive Director, to
assign a special prosecuting attorney to a criminal investigation
or prosecution, the 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 through communication with the Board of Directors of the
West Virginia Prosecuting Attorneys Institute.
(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.
(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) Any person who violates the provisions of subsection (e),
(f) or (g), section five of this article, and any person, other
than a complainant, who violates the provisions of subsection (e),
section four of this article is guilty of a misdemeanor, and, upon
conviction, shall be confined in the county or regional jail for a
period not to exceed six months or fined not more than one thousand
dollars, or both. A member or employee of the Commission convicted
of violating subsection (e), section four of this article is
subject to immediate removal from office or discharge from
employment.
(b) Any person who violates the provisions of subsection (f),
section six of this article by willfully and knowingly filing a
false financial statement or knowingly and willfully concealing a
material fact in filing the statement is guilty of a misdemeanor
and, upon conviction, shall be fined not more than one thousand
dollars, or confined in the county or regional jail not more than
one year, or both.
(c) Any person who knowingly fails or refuses to file a
financial statement required by section six of this article, is
guilty of a misdemeanor and, upon conviction, shall be fined not
less than one hundred dollars nor more than one thousand dollars.
(d) If any Commission member or staff knowingly violates
subsection (o), section four of this article, such person, upon
conviction thereof, shall be guilty of a misdemeanor and 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" 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) "Lobbying firm" means any business entity, including an
individual contract lobbyist, which meets either of the following
criteria:
(A) The business entity receives or becomes entitled to
receive any compensation, other than reimbursement for reasonable
travel expenses, for the purpose of lobbying on behalf of any other
person, and any partner, owner, officer or employee of the business
entity.
(B) The business entity receives or becomes entitled to
receive any compensation, other than reimbursement for reasonable
travel expenses, to communicate directly with any elected state
official, agency official or legislative official for the purpose
of lobbying on behalf of any other person.
(8)(A) "Lobbyist" means any individual employed by a lobbying
firm or who is otherwise employed or contracts for economic
consideration, other than reimbursement for reasonable travel
expenses, to communicate directly or through his or her agents with
any elective state official, agency official or legislative
official for the purpose of promoting, advocating, opposing or
otherwise attempting 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, 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" does not include the following
persons, who are exempt from the registration and reporting
requirements set forth in this article, unless 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, other than reimbursement for reasonable travel
expenses, for acting as lobbyists, who are not employed by a
lobbying firm or lobbyist employer, and whose total expenditures in
connection with lobbying activities do not exceed one hundred fifty
dollars during any calendar year, are exempt. The exemptions
contained in this subparagraph and in subparagraph (ii) 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 or
subparagraph (ii) 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.
(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.
(9) "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 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 one hundred
dollars, plus
one hundred dollars for each employer represented, to be filed with
the initial registration statement and with each new registration
statement filed by the lobbyist in subsequent odd numbered years.
Whenever a lobbyist modifies his or her registration to add additional employers an additional registration fee of one hundred
dollars for each additional employer represented shall be paid to
the Commission.
(b) 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 pursuant to section six,
article one of this chapter.
§6B-3-3b. Conflict of interest.
A lobbyist or a lobbyist's immediate family member may not
participate in any decision as a member of a state or county board,
council, commission or public service district if the lobbyist may
receive direct, personal economic or pecuniary benefit from a
decision of that state or county board, council, commission or
public service district. The lobbyist's economic or pecuniary
benefit must affect him or her directly and not merely as a member
of a class.
§6B-3-3c. Lobbyist training course.
The Commission shall provide 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 such 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, which is to be collected by the
Ethics Commission and deposited in the special revenue account
created pursuant to section six, article one of this chapter. To
maintain registration and engage in lobbying activities, a lobbyist
must complete one such training course per year.
§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 fifteenth day of May, a lobbyist shall
report all lobbying activities in which he or she engaged from the
first day of January through the thirtieth day of April.
(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 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.
(c)(1) Except as otherwise provided in this section, each report filed by a lobbyist shall show the total amount of all
expenditures for lobbying activities made or incurred by on behalf
of the lobbyist 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 not required to report the following:
(A) Unreimbursed personal living and travel expenses not
incurred directly for lobbying;
(B) Any expenses incurred for the lobbyist's own living
accommodations;
(C) Any expenses incurred for 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.
(d) If a lobbyist is employed by more than one employer, the
report shall show the proportionate amount of the expenditures in
each category incurred on behalf of each of his or her employers.
(e) The report shall describe the subject matter of the
lobbying activities in which the lobbyist has been engaged during
the reporting period.
(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 (g) of this
section, 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's employer need be attributed to 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 (c) of this section: Provided further,
That if the expenditure is for a function to which the entire
membership of the Legislature has been invited, the lobbyist need
only report that fact, the total amount of the expenditure and the
subject matter of the lobbying activity.
(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 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 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 article
also has the following obligations, the violation of which
constitutes cause for revocation of his or her registration and
termination of his or her lobbying privileges and may subject the
person, and the person's employer, if employer aids, abets,
ratifies or confirms the violation, to other civil liabilities as
provided by this chapter.
(1) Any person required to register as a lobbyist shall
obtain, 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 two
years from the date of the filing of the statement to which those items relate: Provided, That if a lobbyist is required under the
terms of his or her employment contract to turn any records over to
his or her employer, responsibility for the preservation of the
records under this subsection shall rest with the employer.
(2) In addition, a person required to register as a lobbyist
may not:
(A) Engage in any lobbying activity before registering as 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
the government officer or employee's position with respect to, or
his or her 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 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 the government officer or employee's knowledge and
consent.
§6B-3-11. Compliance audits.
(a) The Commission shall 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: Provided, That the Commission may not conduct
compliance audits pursuant to this section until it has proposed
for promulgation and received final approval from the Legislature
of a legislative rule 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.
(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.