CHAPTER 6B

Senate Bill No. 1003
(By Senators Tomblin, Mr. President, and Sprouse
By Request of the Executive)
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[Introduced January 24, 2005; referred to the Committee on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §6B-1-2 and §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 two new sections, designated §6B-2-5b and §6B-2-12; to amend and reenact §6B-3-2, §6B-3-3a, §6B-3-4, §6B-3-7 and §6B-3-9 of said Code; and to amend said Code by adding thereto three new sections, designated §6B-3-3b, §6B-3-3c and §6B-3-7a, all relating generally to the ethical standards of governmental officials and employees and disclosure of financial interests of such persons; providing for certain legislative findings and purposes; providing a definition of certain terms; providing for a special revenue account; clarifying membership qualifications for the West Virginia Ethics Commission; providing for procedures with respect to the conduct of meetings of the Commission; describing the powers, duties and authority of the Commission; providing for procedures with respect to the filing of complaints against persons subject to said chapter and the conduct of hearings with respect thereto; providing for confidentiality requirements as to the Commission members and staff; providing immunity for complainants; clarifying the law relating to the solicitation of donations by members of the Board of Public Works; providing ethical standards for elected and appointed officials as well as certain public employees; penalties; providing for ethical training for certain state employees; requiring the filing of financial disclosure statements by certain public officials, public employees and candidates, the contents thereof and the time when such statements are to be filed; providing for the appointment of special prosecutors in certain cases; providing for penalties for violations of said chapter; providing for the disclosure of certain information of nonprofit organizations receiving state funds; providing for registration and reporting requirements for lobbyists; prohibiting lobbyists from lobbying in certain cases involving conflicts of interest; providing for a lobbyist training course; providing for reporting requirements for lobbyists; describing the duties of lobbyists and defining certain acts which are violations; and providing for compliance audits of lobbyists and their employers.

Be it enacted by the Legislature of West Virginia:
That §6B-1-2 and §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 two new sections, designated §6B-2-5b and 6B-2-12; that §6B-3-2, §6B-3-3a, §6B-3-4, §6B-3-7 and §6B-3-9 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-3-7a, all to read as follows:
CHAPTER 6B. PUBLIC OFFICERS AND EMPLOYEES; ETHICS;
CONFLICTS OF INTEREST; FINANCIAL DISCLOSURE.

ARTICLE 1. SHORT TITLE; LEGISLATIVE FINDINGS, PURPOSES AND INTENT; CONSTRUCTION AND APPLICATION OF CHAPTER; SEVERABILITY.

§6B-1-2. Legislative findings, purpose, declaration and intent.
(a) The Legislature hereby finds that the holding of a public office or public employment is a public trust. Independence and impartiality of public officials and public employees are essential for the maintenance of the confidence of our citizens in the operation of a democratic government. The decisions and actions of public officials and public employees must be made free from undue influence, favoritism or threat, at every level of government. Public officials and public employees who exercise the powers of their office or employment for personal gain beyond the lawful emoluments of their position or who seek to benefit narrow economic or political interests at the expense of the public at large undermine public confidence in the integrity of a democratic government.
(b) It is the purpose of this chapter to maintain confidence in the integrity and impartiality of the governmental process in the state of West Virginia and its political subdivisions and to aid public officials and public employees in the exercise of their official duties and employment; to define and establish minimum ethical standards for elected and appointed public officials and public employees; to eliminate actual conflicts of interest; to provide a means to define ethical standards; to provide a means of investigating and resolving ethical violations; and to provide administrative and criminal penalties for specific ethical violations herein found to be unlawful.
(c) The Legislature finds that the state government and its many public bodies and local governments have many part-time public officials and public employees serving in elected and appointed capacities; and that certain conflicts of interest are inherent in part-time service and do not, in every instance, disqualify a public official or public employee from the responsibility of voting or deciding a matter; however, when such conflict becomes personal to a particular public official or public employee, such person should seek to be excused from voting, recused from deciding, or otherwise relieved from the obligation of acting as a public representative charged with deciding or acting on a matter.
(d) It is declared that high moral and ethical standards among public officials and public employees are essential to the conduct of free government; that the Legislature believes that a code of ethics for the guidance of public officials and public employees will help them avoid conflicts between their personal interests and their public responsibilities, will improve standards of public service and will promote and strengthen the faith and confidence of the people of this state in their public officials and public employees.
(e) The Legislature finds that the ethics commission should be an independent and fully funded agency able to address and complete its mission without interference or concern that it is unable to meets its budgetary needs. To that end the Legislature finds that all fees, fines, penalties, assessments, and any other funds paid by persons subject to the West Virginia Governmental Ethics Act arising out of matters covered herein shall represent a dedicated source of funding for the commission and shall be deposited in a special account to be appropriated by the Legislature for the operation of the commission.
~~(e)~~ (f) It is the intent of the Legislature that in its operations the West Virginia ethics commission created under this chapter shall protect to the fullest extent possible the rights of individuals affected.
§6B-1-3. Definitions.
As used in this chapter, unless the context in which used clearly requires otherwise:
(a) "Compensation" means money, thing of value or financial benefit. The term "compensation" does not include reimbursement for actual reasonable and necessary expenses incurred in the performance of one's official duties.
(b) "Employee" means any person in the service of another under any contract of hire, whether express or implied, oral or written, where the employer or an agent of the employer or a public official has the right or power to control and direct such person in the material details of how work is to be performed and who is not responsible for the making of policy nor for recommending official action.
(c) "Ethics commission", "commission on ethics" or "commission" means the West Virginia ethics commission.
(d) "Immediate family", with respect to an individual, means a spouse ~~residing in the individual's household~~ and any dependent child or children, dependent grandchild or grandchildren, and dependent parent or parents.
(e) "Ministerial functions" means actions or functions performed by an individual under a given state of facts in a prescribed manner in accordance with a mandate of legal authority, without regard to, or without the exercise of, such individual's own judgment as to the propriety of the action being taken.
(f) "Person" means an individual, corporation, business entity, labor union, association, firm, partnership, limited partnership, committee, club or other organization or group of persons, irrespective of the denomination given such organization or group.
(g) "Political contribution" means and has the same definition as is given that term under the provisions of article eight, chapter three of this code.
(h) "Public employee" means any full-time or part-time employee of any governmental body or any political subdivision thereof, including county school boards.
(i) "Public official" means any person who is elected or appointed and who is responsible for the making of policy or takes official action which is either ministerial or nonministerial, or both, with respect to: (i) Contracting for, or procurement of, goods or services; (ii) administering or monitoring grants or subsidies; (iii) planning or zoning; (iv) inspecting, licensing, regulating or auditing any person; or (v) any other activity where the official action has an economic impact of greater than a de minimis nature on the interest or interests of any person.
(j) "Respondent" means a person who is the subject of an investigation by the commission or against whom a complaint has been filed with the commission.
(k) "Thing of value", "other thing of value", or "anything of value" means and includes: (i) Money, bank bills or notes, United States treasury notes, and other bills, bonds or notes issued by lawful authority and intended to pass and circulate as money; (ii) goods and chattels; (iii) promissory notes, bills of exchange, orders, drafts, warrants, checks, bonds given for the payment of money or the forbearance of money due or owing; (iv) receipts given for the payment of money or other property; (v) any right or chose in action; (vi) chattels real or personal or things which savor of realty and are, at the time taken, a part of a freehold, whether they are of the substance or produce thereof or affixed thereto, although there may be no interval between the severing and the taking away thereof; (vii) any interest in realty, including, but not limited to, fee simple estates, life estates, estates for a term or period of time, joint tenancies, cotenancies, tenancies in common, partial interests, present or future interests, contingent or vested interests, beneficial interests, leasehold interests, or any other interest or interests in realty of whatsoever nature; (viii) any promise of employment, present or future; (ix) donation or gift; (x) rendering of services or the payment thereof; (xi) any advance or pledge; (xii) a promise of present or future interest in any business or contract or other agreement; or (xiii) every other thing or item, whether tangible or intangible, having economic worth. "Thing of value", "other thing of value" or "anything of value" shall not include anything which is de minimis in nature nor a lawful political contribution reported as required by law.
§6B-1-6. Special revenue account.
There is created in the state treasury a special revenue account to be named the "West Virginia Governmental Ethics Commission Fund." The fund shall consist of moneys received under this chapter and funds from any other source. Moneys deposited in the fund are subject to the annual appropriation of funds by the Legislature.
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES; DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES; CODE OF CONDUCT FOR ADMINISTRATIVE LAW JUDGES.

§6B-2-1. West Virginia ethics commission created; members; appointment, term of office and oath; compensation and reimbursement for expenses; meetings and quorum.

(a) There is hereby created the West Virginia ethics commission, consisting of twelve members, no more than seven of whom shall be members of the same political party. The members of the commission shall be appointed by the governor with the advice and consent of the Senate. Within thirty days of the effective date of this section, the governor shall make the initial appointments to the commission. No person may be appointed to the commission or continue to serve as a member of the commission who holds elected or appointed office under the government of the United States, the state of West Virginia or any of its political subdivisions, or who is a candidate for any of such 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 commission. A member may contribute to a political campaign, but no member shall hold any political party office or participate in a campaign relating to a referendum or other ballot issue.
(b) At least two members of the commission shall have served as a member of the West Virginia Legislature; at least two members of the commission shall have been employed in a full-time elected or appointed office in state government; at least one member shall have served as an elected official in a county or municipal government or on a county school board; at least one member shall have been employed full time as a county or municipal officer or employee; and at least two members shall have served part time as a member or director of a state, county or municipal board, commission or public service district and at least four members shall be selected from the public at large. No more than four members of the commission shall reside in the same congressional district.
(c) Of the initial appointments made to the commission, two shall be for a term ending one year after the effective date of this section, two for a term ending two years after the effective date of this section, two for a term ending three years after the effective date of this section, three for a term ending four years after the effective date of this section and three shall be for terms ending five years after the effective date of this section. Thereafter, terms of office shall be for five years, each term ending on the same day of the same month of the year as did the term which it succeeds. Each member shall hold office from the date of his or her appointment until the end of the term for which he or she was appointed or until his or her successor qualifies for office. When a vacancy occurs as a result of death, resignation or removal in the membership of this commission, it shall be filled by appointment within thirty days of the vacancy for the unexpired portion of the term in the same manner as original appointments. No member shall serve more than two consecutive full or partial terms and no person may be reappointed to the commission until at least two years have elapsed after the completion of a second successive term.
(d) Each member of the commission shall take and subscribe to the oath or affirmation required pursuant to section 5, article IV of the constitution of West Virginia. A member may be removed by the governor for substantial neglect of duty, gross misconduct in office or violation of this chapter, after written notice and opportunity for reply.
(e) The commission shall meet within thirty days of the initial appointments to the commission at a time and place to be determined by the governor, who shall designate a member to preside at that meeting until a chairman is elected. At its first meeting, the commission shall elect a chairman and such other officers as are necessary. The commission shall within ninety days after its first meeting adopt rules for its procedures.
(f) Seven members of the commission shall constitute a quorum, except that when the commission is sitting as a hearing board pursuant to section four of this article, then five members shall constitute a quorum. Except as may be otherwise provided in this article, a majority of the total membership shall be necessary to act at all times.
(g) Members of the commission shall receive the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law for each day or portion thereof engaged in the discharge of official duties.
(h) The commission shall appoint an executive director to assist the commission in carrying out its functions in accordance with commission rules and regulations and with applicable law. Said executive director shall be paid such salary as may be fixed by the commission or as otherwise provided by law. The commission shall appoint and discharge counsel and employees and shall fix the compensation of employees and prescribe their duties. Counsel to the commission shall advise the commission on all legal matters and on the instruction of the commission may commence such civil actions as may be appropriate: Provided, That no counsel shall both advise the commission and act in a representative capacity in any proceeding.
(i) The commission may delegate authority to the chairman or executive director to act in the name of the commission between meetings of the commission, except that the commission shall not delegate the power to hold hearings and determine violations to the chairman or executive director.
(j) The chairman shall have the authority to designate subcommittees of three persons, no more than two of whom may be members of the same political party. Said subcommittees shall be investigative panels which shall have the powers and duties set forth hereinafter in this article.
(k) The principal office of the commission shall be in the seat of government but it or its designated subcommittees may meet and exercise its power at any other place in the state. Meetings of the commission shall be public unless such meetings or hearings are required to be private in conformity with the provisions of this chapter relating to confidentiality, except that the commission shall exclude the public from attendance at discussions of commission personnel, planned or ongoing litigation and planned or ongoing investigations.
(l) Meetings of the commission shall be upon the call of the chairman and ~~shall be conducted by the personal attendance of the commission members and no meeting shall~~ may be conducted by telephonic or other electronic conferencing: ~~nor shall any member be allowed to vote by proxy~~ Provided, That telephone conferencing and voting may not be held 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 section four, subsection (d), of this article. ~~for the purpose of approving or rejecting any proposed advisory opinions prepared by the commission, or for voting on issues involving the administrative functions of the commission~~ Meetings held by telephone conferencing shall require notice to members in the same manner as meetings to be personally attended, and shall be electronically recorded. ~~and the recordings shall be made a permanent part of the commission records. Members shall not be compensated for meetings other than those personally attended~~
§6B-2-2. Same -- General powers and duties.
(a) The commission shall promulgate rules and regulations to carry out the purposes of this article within six months of the effective date of this section. Such rules ~~and regulations~~ shall be legislative rules subject to legislative rule-making review and subject to the provisions of the administrative procedures act.
(b) The commission may subpoena witnesses, compel their attendance and testimony, administer oaths and affirmations, take evidence and require by subpoena the production of books, papers, records or other evidence needed for the performance of the commission's duties or exercise of its powers, including its duties and powers of investigation.
(c) The commission shall, in addition to its other duties:
(1) Prescribe forms for reports, statements, notices, and other documents required by law;
(2) Prepare and publish manuals and guides explaining the duties of individuals covered by this law; and giving instructions and public information materials to facilitate compliance with, and enforcement of, this act; and
(3) Provide assistance to agencies, officials and employees in administering the provisions of this act.
(d) The commission may:

(1) Prepare reports and studies to advance the purpose of the law;

(2) Contract for any services which cannot satisfactorily be performed by its employees;
(3) Request the attorney general to provide legal advice without charge to the commission, and the attorney general shall comply with the request;
(4) Employ additional legal counsel; and
(5) Request appropriate agencies of state government including, if no appearance of conflict of interest would exist, the investigative arm of the Commission on Special Investigations to provide such professional assistance as it may require in the discharge of its duties: Provided, That any agency providing such assistance other than the attorney general shall be reimbursed by the West Virginia ethics commission the cost of such assistance.
§6B-2-4. Complaints; dismissals; hearings; disposition; judicial review.

(a) Upon the filing by any person with the commission of a complaint which is duly verified by oath or affirmation, the executive director of the commission or his or her designee shall, within three working days, acknowledge the receipt of the complaint by first class mail, unless the complainant or his or her representative personally filed the complaint with the commission and was given a receipt or other acknowledgment evidencing the filing: Provided, That notwithstanding the foregoing, for purposes of this subsection, a "person" does not include a political party as that term is defined in section eight, article one, chapter three of this code, or any other officer of a political party acting in his or her official capacity.
(1)Within fourteen days after the receipt of a complaint, an investigative panel shall be appointed to investigate the substance of the allegations in the complaint and to determine whether there is probable cause to believe that a violation of this chapter has occurred. The commission shall establish by legislative rule promulgated in accordance with chapter twenty-nine-a of this code a rotation system for the selection of commission members to sit on investigative panels whereby the caseload of commission investigations is distributed among commission members as evenly and randomly as possible.
(2) In the absence of a filed complaint, if the executive director otherwise receives or discovers credible information which after his own review is decided by him to merit inquiry as to whether a violation of this chapter has occurred, then the director shall refer the matter to an investigative panel, applying the same rotation system adopted for use in referring verified complaints. If the investigative panel verifies the information obtained by the director by sworn affidavit and unanimously concurs with the director's decision that the matter merits inquiry as to whether a violation of this chapter has occurred, then the investigative panel shall direct the commission staff to file a formal complaint. Upon the filing of the complaint, the panel shall proceed to investigate the substance of the allegations in the complaint in the same manner as a duly verified complaint.
(b) ~~In the case of a filed complaint,~~ After a complaint is filed, the ~~first inquiry of the~~ investigative panel shall determine ~~be a question as to~~ whether ~~or not~~ the allegations of the complaint, if taken as true, would constitute a violation of law upon which the commission could properly act under the provisions of this chapter. If the complaint is determined by a majority vote of the investigative panel to be insufficient in this regard, the investigative panel shall dismiss the complaint.
(c) After the commission receives a complaint found by the investigative panel to be sufficient, the executive director shall give notice of a pending investigation by the investigative panel to the complainant and respondent. The notice of investigation shall be mailed to the parties, and, in the case of the respondent, shall be mailed as certified mail, return receipt requested, marked "Addressee only, personal and confidential." The notice shall describe the conduct of the respondent which is the basis for an alleged violation of law, and if a complaint has been filed, 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 investigative panel, and that he or she may respond in writing to the commission within thirty days after the receipt of the notice, but that no fact or allegation shall be taken as admitted by a failure or refusal to timely respond.
(d) Within the forty-five day period following the mailing of a notice of investigation, the investigative panel shall proceed to consider: (1) The allegations raised in the complaint; (2) any timely received written response of the respondent; and (3) any other competent evidence gathered by or submitted to the commission which has a proper bearing on the issue of probable cause. A respondent shall be afforded the opportunity to appear before the investigative panel and make an oral response to the complaint. The commission shall, in promulgating legislative rules pursuant to the provisions of subsection (a), section two of this article, prescribe the manner in which a respondent may present his or her oral response to the investigative panel. The commission may request a respondent to disclose specific amounts received from a source, and other detailed information not otherwise required to be set forth in a statement or report filed under the provisions of this chapter, if the information sought is deemed to be probative as to the issues raised by a complaint or an investigation initiated by the commission. Any information thus received shall be confidential except as provided by subsection ~~(f)~~ (e) of this section. If the person so requested fails or refuses to furnish the information to the commission, the commission may exercise its subpoena power as provided for elsewhere in this chapter, and any subpoena issued thereunder shall have the same force and effect as a subpoena issued by a circuit court of this state, and enforcement of any such subpoena may be had upon application to a circuit court of the county in which the investigative panel is conducting an investigation, through the issuance of a rule or an attachment against the respondent as in cases of contempt.
(e) (1) All investigations, complaints, reports, records, proceedings, and other information received by the commission and related to complaints made to the commission or investigations conducted by the commission pursuant to this section, including the identity of the complainant or respondent, shall be confidential and shall not be knowingly and improperly disclosed by any member or former member of the commission or its staff, except as follows:
(A) Upon a finding that probable cause exists to believe that a respondent has violated the provisions of this chapter, the complaint and all reports, records, nonprivileged and nondeliberative material introduced at any probable cause hearing held pursuant to the complaint are thereafter not confidential: Provided, That confidentiality of such information shall remain in full force and effect until the respondent has been served by the commission with a copy of the investigative panel's order finding probable cause and with the statement of charges prepared pursuant to the provisions of subsection (g) of this section.
(B) After a finding of probable cause as aforesaid, any subsequent hearing held in the matter for the purpose of receiving evidence or the arguments of the parties or their representatives shall be open to the public and all reports, records and nondeliberative materials introduced into evidence at such subsequent hearing, as well as the commission's orders, are not confidential.
(C) The commission may release any information relating to an investigation at any time if the release has been agreed to in writing by the respondent.
(D) The complaint as well as the identity of the complainant shall be disclosed to a person named as respondent in any such complaint filed with the commission immediately upon such respondent's request.
(E) Where the commission is otherwise required by the provisions of this chapter to disclose such information or to proceed in such a manner that disclosure is necessary and required to fulfill such 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 such information or filing a complaint shall be bound to confidentiality until further order of the commission.
(f) If a majority of the members of the investigative panel fails to find probable cause, the proceedings shall be dismissed by the commission in an order signed by the majority members of the panel, and copies of the order of dismissal shall be sent to the complainant and served upon the respondent forthwith. If the investigative panel decides by a majority vote that there is probable cause to believe that a violation under this chapter has occurred, the majority members of the investigative panel shall sign an order directing the commission staff to prepare a statement of charges, to assign the matter for hearing to the commission or a hearing examiner as the commission may subsequently direct, and to schedule a hearing to determine the truth or falsity of the charges, such hearing to be held within ninety days after the date of the order. For the purpose of this section, service of process upon the respondent is obtained at the time the respondent or the respondent's agent physically receives the process, regardless of whether the service of process is in person or by certified mail.
(g) At least eighty days prior to the date of the hearing, the respondent shall be served by certified mail, return receipt requested, with the statement of charges and a notice of hearing setting forth the date, time and place for the hearing. The scheduled hearing may be continued only upon a showing of good cause by the respondent or under such other circumstances as the commission shall, by legislative rule, direct.
(h) The commission members who have not served as members of an investigative panel in a particular case may sit as a hearing board to adjudicate the case or may permit an assigned hearing examiner employed by the commission to preside at the taking of evidence. The commission shall, by legislative rule, establish the general qualifications for hearing examiners. Such legislative rule shall also contain provisions which seek to ensure that the functions of a hearing examiner will be conducted in an impartial manner, and shall 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 may 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 as used to govern proceedings in the courts of this state shall be given like effect in hearings held before the commission or a hearing examiner. The commission shall, by legislative rule, regulate the conduct of hearings so as to provide full procedural due process to a respondent. Hearings before a hearing examiner shall be recorded electronically. When requested by either of the parties, the presiding officer shall make 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 members who have not served as members of the investigative panel, unless by leave of the commission a party is permitted to submit additional documentary evidence or take and file depositions or otherwise exercise discovery.
(l) The commission shall set a time and place for the hearing of arguments by the complainant and respondent, or their respective representatives, and shall notify the parties thereof, and briefs may be filed by the parties in accordance with procedural rules promulgated by the commission. The final decision of the commission shall be made by the commission members who have not served as members of the investigative panel in writing within forty-five days of the receipt of the entire record of a hearing held before a hearing examiner or, in the case of an evidentiary hearing held by the 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 six members of the commission who have not served as members of the investigative panel.
(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, Commission members and staff may not make any public or nonpublic comment about any pending or impending proceeding which may reasonably be expected to affect its outcome or impair its fairness.
~~(o)~~ (p) A complainant may be assisted by a member of the commission staff assigned by the commission after a determination of probable cause.
~~(p)~~ (q) No member of the commission staff assigned to prosecute a complaint and no member of the investigative panel appointed pursuant to subsection (a) of this section may participate in the commission deliberations or communicate with commission members not assigned to the investigative panel or the public concerning the merits of a complaint. ~~after being assigned to prosecute a complaint~~
~~(q)~~ (r) If the commission finds by clear and convincing evidence ~~beyond a reasonable doubt~~ that the facts alleged in the complaint are true and constitute a material violation of this article, it may impose one or more of the following sanctions:

(1) Public reprimand;

(2) Cease and desist orders;

(3) Orders of restitution for money, things of value, or services taken or received in violation of this chapter; or
(4) Fines not to exceed ~~one~~ five thousand dollars per violation; or
(5) Orders of reimbursement to the commission for any and all actual costs incurred by the commission in the course of investigating and prosecuting a violation.
In addition to imposing such sanctions, the commission may recommend to the appropriate governmental body that a respondent be terminated from employment or removed from office.
The commission may institute civil proceedings in the circuit court of the county wherein a violation occurred for the enforcement of sanctions.
All fines and restitution to the commission for its actual incurred costs shall be paid to the commission and thereafter deposited into a special account to be appropriated by the Legislature for the operation of the commission.
~~(t)~~ (s) At any stage of the proceedings under this section, the commission may enter into a conciliation agreement with a respondent if such agreement is deemed by a majority of the members of the commission to be in the best interest of the state and the respondent. Any conciliation agreement must be disclosed to the public: Provided, That negotiations leading to a conciliation agreement, as well as information obtained by the commission during such negotiations, shall remain confidential except as may be otherwise set forth in the agreement.
~~(s)~~ (t) Decisions of the commission involving the issuance of sanctions may be appealed to the circuit court of Kanawha County, West Virginia, or to the circuit court of the county where the violation is alleged to have occurred, only by the respondent, and only upon the grounds set forth in section four, article five, chapter twenty-nine-a of this code.
~~(t)~~ (u) In the event the commission finds in favor of the person complained against, the commission shall order reimbursement of all actual costs incurred, including, but not limited to, attorney fees to be paid to the person complained against by the complainant, if the commission finds that the complaint was brought or made in bad faith. In addition, the aggrieved party shall have a cause of action and be entitled to compensatory damages, punitive damages, costs and attorney fees for a complaint made or brought in bad faith. 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. In the event a person files a verified complaint or who gives information resulting in a formal complaint filed by commission staff which is determined by the committee to: (i) Have been made maliciously or fraudulently, either knowing that the statements contained therein were not true, or in reckless disregard to the truth or falsity of material allegations contained in the complaint; or (ii) have been made only to abuse the process provided by this section, the commission may impose one or more of the following sanctions on the complainant or the person who provides the information resulting in a formal complaint filed by the commission staff:
(1) Make reimbursement to the respondent for reasonable actual costs incurred by the respondent;
(2) Pay reasonable attorney fees incurred by the respondent;
(3) Make reimbursement to the commission for the reasonable actual costs of investigation;
(4) Decline to process any further complaints for the same complainant.
~~(u)~~ (v) If at any stage in the proceedings under this section, it appears to an investigative panel, a hearing examiner or the commission that credible information or evidence exists that a criminal violation may have been committed by a respondent, such situation shall be brought before the ~~full~~ commission for its consideration. If, by a vote of two thirds of the full commission, it is determined that probable cause exists to believe a criminal violation has occurred, it ~~may~~ shall recommend to the appropriate county prosecuting attorney having jurisdiction over the case that a criminal investigation be commenced. Deliberations of the commission with regard to a recommendation 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 less than two thirds of the full ~~the~~ commission determines that a criminal violation has ~~not~~ occurred, the commission shall remand the matter to the investigative panel, the hearing examiner or the commission itself as a hearing board, as the case may be, for further proceedings under this article.
~~(v)~~ (x) 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~~ three years before the filing of a verified complaint under subsection (a) of this section or a formal complaint ~~the appointment of an investigative panel by the commission under subsection (b)~~ under subdivision (2) subsection (a), of this section.
(y) (1) No complaint may be accepted by the commission or initiated by the commission against a candidate for elective office during the fifty-day period before an election in which he or she is a candidate.
(2) Action on a complaint filed against a candidate which was received more than fifty days before an election but which cannot be disposed of or dismissed by the commission at least thirty days before such election must be postponed until after such election.
§6B-2-5. Ethical standards for elected and appointed officials and public employees.

(a) Persons subject to section. -- The provisions of this section apply to all elected and appointed public officials and public employees, whether full or part time, in state, county, municipal governments and their respective boards, agencies, departments and commissions and in any other regional or local governmental agency, including county school boards.
(b) Use of public office for private gain. -- (1) A public official or public employee may not knowingly and intentionally use his or her office or the prestige of his or her office for his or her own private gain or that of another person. The performance of usual and customary duties associated with the office or position or the advancement of public policy goals or constituent services, without compensation, does not constitute the use of prestige of office for private gain.
(2) The Legislature, in enacting this subsection (b), relating to the use of public office or public employment for private gain, recognizes that there may be certain public officials or public employees who bring to their respective offices or employment their own unique personal prestige which is based upon their intelligence, education, experience, skills and abilities, or other personal gifts or traits. In many cases, these persons bring a personal prestige to their office or employment which inures to the benefit of the state and its citizens. Such persons may, in fact, be sought by the state to serve in their office or employment because, through their unusual gifts or traits, they bring stature and recognition to their office or employment and to the state itself. While the office or employment held or to be held by such persons may have its own inherent prestige, it would be unfair to such individuals and against the best interests of the citizens of this state to deny such persons the right to hold public office or be publicly employed on the grounds that they would, in addition to the emoluments of their office or employment, be in a position to benefit financially from the personal prestige which otherwise inheres to them. Accordingly, the commission is directed, by legislative rule, to establish categories of such public officials and public employees, identifying them generally by the office or employment held, and offering persons who fit within such categories the opportunity to apply for an exemption from the application of the provisions of this subsection. Such exemptions may be granted by the commission, on a case-by-case basis, when it is shown that: (A) The public office held or the public employment engaged in is not such that it would ordinarily be available or offered to a substantial number of the citizens of this state; (B) the office held or the employment engaged in is such that it normally or specifically requires a person who possesses personal prestige; and (C) the person's employment contract or letter of appointment provides or anticipates that the person will gain financially from activities which are not a part of his or her office or employment.
(c) Gifts. -- (1) A public official or public employee may not solicit any gift unless the solicitation is for a charitable purpose with no resulting direct pecuniary benefit conferred upon the official or employee or his or her immediate family: Provided, That no public official or public employee may solicit for a charitable purpose any gift from any person who is also an official or employee of the state and whose position as such is subordinate to the soliciting official or employee: Provided, however, That nothing herein shall prohibit a candidate for public office from soliciting a lawful political contribution. No official or employee may knowingly accept any gift, directly or indirectly, from a lobbyist or from any person whom the official or employee knows or has reason to know:
(A) Is doing or seeking to do business of any kind with his or her agency;
(B) Is engaged in activities which are regulated or controlled by his or her agency; or
(C) Has financial interests which may be substantially and materially affected, in a manner distinguishable from the public generally, by the performance or nonperformance of his 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 at the meeting;
(E) Gifts of tickets or free admission extended to a public official or public employee to attend charitable, cultural or political events, if the purpose of such gift or admission is a courtesy or ceremony customarily extended to the office;
(F) Gifts that are purely private and personal in nature; or
(G) Gifts from relatives by blood or marriage, or a member of the same household.
(3) The commission shall, through legislative rule promulgated pursuant to chapter twenty-nine-a of this code, establish guidelines for the acceptance of a reasonable honorarium by public officials and elected officials. The rule promulgated shall be consistent with this section. Any elected public official may accept an honorarium only when: (1) That official is a part-time elected public official; (2) the fee is not related to the official's public position or duties; (3) the fee is for services provided by the public official that are related to the public official's regular, nonpublic trade, profession, occupation, hobby or avocation; and (4) the honorarium is not provided in exchange for any promise or action on the part of the public official.
(4) Nothing in this section shall be construed so as to prohibit the giving of a lawful political contribution as defined by law.
(5) The governor or his designee may, in the name of the state of West Virginia, accept and receive gifts from any public or private source. Any such gift so obtained shall become the property of the state and shall, within thirty days of the receipt thereof, be registered with the commission and the division of culture and history.
(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."
(d) Interests in public contracts. -- (1) In addition to the provisions of section fifteen, article ten, chapter sixty-one of this code, no elected or appointed public official or public employee or member of his or her immediate family or business with which he or she is associated may be a party to or have an interest in the profits or benefits of a contract which such official or employee may have direct authority to enter into, or over which he or she may have control: Provided, That nothing herein shall be construed to prevent or make unlawful the employment of any person with any governmental body: Provided, however, That nothing herein shall be construed to prohibit a member of the Legislature from entering into a contract with any governmental body, or prohibit a part-time appointed public official from entering into a contract which such part-time appointed public official may have direct authority to enter into or over which he or she may have control when such official has not participated in the review or evaluation thereof, has been recused from deciding or evaluating and has been excused from voting on such contract and has fully disclosed the extent of such interest in the contract.
(2) In the absence of bribery or a purpose to defraud, an elected or appointed public official or public employee or a member of his or her immediate family or a business with which he or she is associated shall not be considered as having an interest in a public contract when such a person has a limited interest as an owner, shareholder or creditor of the business which is the contractor on the public contract involved. A limited interest for the purposes of this subsection is:

(A) An interest:

(i) Not exceeding ten percent of the partnership or the outstanding shares of a corporation; or
(ii) Not exceeding thirty thousand dollars interest in the profits or benefits of the contract; or

(B) An interest as a creditor:

(i) Not exceeding ten percent of the total indebtedness of a business; or
(ii) Not exceeding thirty thousand dollars interest in the profits or benefits of the contract.
(3) Where the provisions of subdivisions (1) and (2) of this subsection would result in the loss of a quorum in a public body or agency, in excessive cost, undue hardship, or other substantial interference with the operation of a state, county, municipality, county school board or other governmental agency, the affected governmental body or agency may make written application to the ethics commission for an exemption from subdivisions (1) and (2) of this subsection.
(e) Confidential information. -- No present or former public official or employee may knowingly and improperly disclose any confidential information acquired by him or her in the course of his or her official duties nor use such information to further his or her personal interests or the interests of another person.
(f) Prohibited representation. -- No present or former elected or appointed public official or public employee shall, during or after his or her public employment or service, represent a client or act in a representative capacity with or without compensation on behalf of any person in a contested case, rate-making proceeding, license or permit application, regulation filing or other particular matter involving a specific party or parties which arose during his or her period of public service or employment and in which he or she personally and substantially participated in a decision-making, advisory or staff support capacity, unless the appropriate government agency, after consultation, consents to such representation. A staff attorney, accountant or other professional employee who has represented a government agency in a particular matter shall not thereafter represent another client in the same or substantially related matter in which that client's interests are materially adverse to the interests of the government agency, without the consent of the government agency: Provided, That this prohibition on representation shall not apply when the client was not directly involved in the particular matter in which such professional employee represented the government agency, but was involved only as a member of a class. The provisions of this subsection shall not apply to legislators who were in office and legislative staff who were employed at the time it originally became effective on the first day of July, one thousand nine hundred eighty-nine, and those who have since become legislators or legislative staff and those who shall serve hereafter as legislators or legislative staff.
(g) Limitation on practice before a board, agency, commission or department. -- (1) No elected or appointed public official and no full-time staff attorney or accountant shall, during his or her public service or public employment or for a period of ~~six months~~ one year after the termination of his or her public service or public employment with a governmental entity authorized to hear contested cases or promulgate regulations, appear in a representative capacity before the governmental entity in which he or she serves or served or is or was employed in the following matters:
(A) A contested case involving an administrative sanction, action or refusal to act;
(B) To support or oppose a proposed regulation;
(C) To support or contest the issuance or denial of a license or permit;
(D) A rate-making proceeding; and
(E) To influence the expenditure of public funds.
(2) As used in this subsection, "represent" includes any formal or informal appearance before, or any written or oral communication with, any public agency on behalf of any person: Provided, That nothing contained in this subsection shall prohibit, during any period, a former public official or employee from being retained by or employed to represent, assist, or act in a representative capacity on behalf of the public agency by which he or she was employed or in which he or she served. Nothing in this subsection shall be construed to prevent a former public official or employee from representing another state, county, municipal or other governmental entity before the governmental entity in which he or she served or was employed within ~~six months~~ 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 sell or lease real or personal property to, or purchase or lease real or personal property from, any person who:
(A) Had a matter on which he or she took, or a subordinate is known to have taken, regulatory action within the preceding twelve months; or
(B) Has a matter before the agency to which he or she is working or a subordinate is known by him or her to be working.
(2) Within the meaning of this section, the term "employment" includes professional services and other services rendered by the public official or public employee, whether rendered as employee or as an independent contractor; "seek employment" includes responding to unsolicited offers of employment as well as any direct or indirect contact with a potential employer relating to the availability or conditions of employment in furtherance of obtaining employment; and "subordinate" includes only those agency personnel over whom the public servant has supervisory responsibility.
(3) A full-time public official or full-time public employee who would be adversely affected by the provisions of this subsection may apply to the ethics commission for an exemption from the prohibition contained in subsection (1). The ethics commission shall by legislative rule establish general guidelines or standards for granting an exemption, but shall decide each application on a case-by-case basis.
(4) A full-time public official or full-time public employee may not take personal regulatory action on a matter affecting a person by whom he or she is employed or with whom he or she is seeking employment or has an agreement concerning future employment.
(5) A full-time public official or full-time public employee may not receive private compensation for providing information or services that he or she is required to provide in carrying out his or her public job responsibilities.
(i) Members of the Legislature required to vote. -- Members of the Legislature who have asked to be excused from voting or who have made inquiry as to whether they should be excused from voting on a particular matter and who are required by the presiding officer of the House of Delegates or Senate of West Virginia to vote under the rules of the particular house shall not be guilty of any violation of ethics under the provisions of this section for a vote so cast.
(j) Limitations on participation in licensing and rate-making proceedings. -- No public official or employee may participate within the scope of his or her duties as a public official or employee, except through ministerial functions as defined in section three, article one of this chapter, in any license or rate-making proceeding that directly affects the license or rates of any person, partnership, trust, business trust, corporation or association in which the public official or employee or his or her immediate family owns or controls more than ten percent. No public official or public employee may participate within the scope of his or her duties as a public official or public employee, except through ministerial functions as defined in section three, article one of this chapter, in any license or rate-making proceeding that directly affects the license or rates of any person to whom the public official or public employee or his or her immediate family, or a partnership, trust, business trust, corporation or association of which the public official or employee, or his or her immediate family, owns or controls more than ten percent, has sold goods or services totaling more than one thousand dollars during the preceding year, unless the public official or public employee has filed a written statement acknowledging such sale with the public agency and the statement is entered in any public record of the agency's proceedings. This subsection shall not be construed to require the disclosure of clients of attorneys or of patients or clients of persons licensed pursuant to articles three, eight, fourteen, fourteen-a, fifteen, sixteen, twenty, twenty-one or thirty-one, chapter thirty of this code.
(k) Certain compensation prohibited. -- (1) A public employee may not receive compensation from two separate public employment positions that overlap for the hours being compensated, unless:
(A) The public employee's compensation from one employer is reduced by the amount of compensation received from the other public employer;
(B) The public employee has his or her compensation reduced on a pro rated basis for any hours of work missed during the course of the employee's normal workday while performing the duties of the other public employment; or
(C) The public employee uses earned paid vacation, personal or compensatory time or takes unpaid leave from one public employment to perform the duties of the other public employment.
(2) For purposes of determining duplicate compensation for overlapping hours, no public employee may make up time missed form one public employment to perform the duties of the other public employment at any time outside the public employee's normal workday.
(3) In order to determine compliance with this subsection, a public employee subject to this subsection shall disclose the amounts received from the two separate public employment positions to the commission on a quarterly basis, to be set forth in rules established by the commission.
~~(k)~~ (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.
~~(l)~~ (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 such institution or has been approved by the employees' department supervisor or the president of the institution by which the faculty or staff member is employed.
~~(m)~~ (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) Submission of false information. -- (1) No person may knowingly give false or misleading material information to the commission, nor may any person induce or procure knowingly give false or misleading material information to the commission.
(2) A person found to be in violation of this subsection is subject to the penalties set forth in subsection (q), section four of this article.
~~(n)~~ (p) The commission by legislative rule promulgated in accordance with chapter twenty-nine-a of this code may define further exemptions from this section as necessary or appropriate.
§6B-2-5b. Ethics training requirements.
An individual who, on or after the effective date of this subsection, is elected or appointed to serve in the Legislature, as a member of the board of public works, 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: Provided, That a public servant who has completed a training course provided by the ethics commission while serving in another public position is not required to attend.
§6B-2-7. Financial disclosure statement; contents.
The financial disclosure statement required under this article shall contain the following information:
(1) The name, residential and business addresses of the person filing the statement and all names under which the person does business.

(2) The name and address of each employer of the person.

(3) The name and address of each business in which the person filing the statement, his spouse or dependent children has or had an interest of ten thousand dollars at fair market value or five percent (5%) ownership interest or more.
~~(3)~~ (4) The identification, by category, of every source of income over ~~five~~ one thousand dollars received during the preceding calendar year, in his or her own name or by any other person for his or her use or benefit, by the person filing the statement, or the spouse of the person filing the statement, and a brief description of the nature of the services for which the income was received. This subdivision does not require a person filing the statement who derives income from a business, profession or occupation to disclose the individual sources and items of income that constitute the gross income of that business, profession or occupation. ~~nor does this subdivision require a person filing the statement to report the source or amount of income derived by his or her spouse~~
~~(4)~~ (5) If the person, or his or her spouse, profited or benefited in the year prior to the date of filing from a contract for the sale of goods or services to a state, county, municipal or other local governmental agency either directly or through a partnership, corporation or association in which such person owned or controlled more than ten percent, the person shall describe the nature of the goods or services and identify the governmental agencies which purchased the goods or services.
~~(5)~~ (6) Each interest group or category listed below doing business in this state with which either the person filing the statement, or his or her spouse, did business or furnished services and from which the person or the person's spouse received more than twenty percent of ~~the person's~~ their income during the preceding calendar year. The groups or categories are electric utilities, gas utilities, telephone utilities, water utilities, cable television companies, interstate transportation companies, intrastate transportation companies, oil or gas retail companies, banks, savings and loan associations, loan or finance companies, manufacturing companies, surface mining companies, deep mining companies, mining equipment companies, chemical companies, insurance companies, retail companies, beer, wine or liquor companies or distributors, recreation related companies, timbering companies, hospitals or other health care providers, trade associations, professional associations, associations of public employees or public officials, counties, cities or towns, labor organizations, waste disposal companies, wholesale companies, groups or associations seeking to legalize gambling, gaming or lotteries, advertising companies, media companies, race tracks and promotional companies.
~~(6)~~ (7) The names of all persons, excluding that person's immediate family, parents, or grandparents residing or transacting business in the state to whom the person filing the statement, or the spouse of the person filing the statement, owes, on the date of execution of this statement in the aggregate in his or her own name or in the name of any other person more than ~~twelve~~ five thousand ~~five hundred~~ dollars: Provided, That nothing herein shall require the disclosure of a mortgage on the person's primary and secondary residences or of automobile loans on automobiles maintained for the use of the person's immediate family, or of a student loan, nor shall this section require the disclosure of debts which result from the ordinary conduct of such person's business, profession, or occupation or of debts of the person filing the statement to any financial institution, credit card company, or business, in which the person has an ownership interest: Provided, however, That the previous proviso shall not exclude from disclosure loans obtained pursuant to the linked deposit program provided for in article one- a, chapter twelve of this code or any other loan or debt incurred which requires approval of the state or any of its political subdivisions.
~~(7)~~ (8) The names of all persons except immediate family members, parents and grandparents residing or transacting business in the state (other than a demand or savings account in a bank, savings and loan association, credit union or building and loan association or other similar depository) who owes on the date of execution of this statement, more, in the aggregate, than ~~twelve~~ five thousand ~~five hundred~~ dollars to the person filing the statement, or the spouse of the person filing the statement, either in his or her own name or to any other person for his or her use or benefit. This subdivision does not require the disclosure of debts owed to the person filing the statement which debts result from the ordinary conduct of such person's business, profession or occupation or of loans made by the person filing the statement to any business in which the person has an ownership interest.
(9) Information, including a street address or location, regarding any real property in which there is an interest of ten thousand dollars or more held by the person filing the statement, or the spouse of the person filing the statement.
~~(8)~~ (10) The source of each gift including those described in subdivision (2) of 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 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: Provided further, That 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 are not required to be reported. As used in this subdivision any series or plurality of gifts which exceeds in the aggregate the sum of one hundred dollars from the same source or donor, either directly or indirectly, and in the same calendar year, shall be regarded as a single gift in excess of that aggregate amount.

(11) The signature of the person filing the statement.

§6B-2-9. Special prosecutor authorized.
(a) If, after referral to the appropriate county prosecuting attorney under subsection (u), section four of this article, the ethics commission finds as the result of an investigation of a complaint that a pattern of ethics violations or criminal violations under this chapter or under article five-a, chapter sixty-one of this code, exists in a state, county or covered municipal government, county school board or one of their respective departments, agencies, boards or commissions, and also finds that such ~~the~~ prosecuting attorney ~~of the county in which the violation occurred~~ is, for some reason, unable or unwilling to take appropriate action, the chairman 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 for the purpose of conducting an investigation to determine whether a violation of the criminal law of this state has occurred.
(b) A special prosecutor shall have the same authority as a county prosecutor to investigate and prosecute persons subject to this article for criminal violations committed in connection with their public office or employment which constitute felonies. No person who is serving as a prosecuting attorney or assistant prosecuting attorney of any county is required to take an additional oath when appointed to serve as a special prosecuting attorney.
(c) The ethics committee shall be authorized to employ and assign the necessary professional and clerical staff to assist any such special prosecutor in the performance of his or her duties and to pay and to set the compensation to be paid to a special prosecutor in an amount not to exceed seventy-five dollars per hour up to a maximum of fifty thousand dollars per annum.
(d) The special prosecutor shall be empowered to make a presentment to any regularly or specially impaneled grand jury in the appointing circuit court. The special prosecutor shall be empowered to prosecute any person indicted by such grand jury.
§6B-2-10. Violations and penalties.
(a) If any person violates the provisions of subsection (e), (f) or (g), section five of this article, or violates the provisions of subdivision (1), subsection (e), section four of this article, such person, upon conviction thereof, shall be guilty of a misdemeanor, and shall be punished by confinement in the county jail for a period not to exceed six months or shall be fined not more than one thousand dollars, or both such confinement and fine. If any person violating the provisions of subdivision (1), subsection (e), section four of this article shall be a member of the commission or an employee thereof, he or she shall, upon conviction, be subject to immediate removal or discharge.
(b) If any person violates the provisions of subsection (f), section six of this article by willfully and knowingly filing a false financial statement, concealing a material fact or otherwise commits a fraud in filing the statement, such person is guilty of a misdemeanor and, ~~shall,~~ upon conviction thereof, shall be fined not more than one thousand dollars, or confined in a jail not more than one year, or both fined and confined. ~~be deemed guilty of false swearing and shall be punished as provided in section three, article five, chapter sixty-one of this code~~
(c) If any person knowingly fails or refuses to file a financial statement required by section six of this article, such 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.
(d) If any complainant violates the provisions of subdivision (2), subsection ~~(f)~~ (e), section four, ~~article two of this chapter~~ of this article, by knowingly and willfully disclosing any information made confidential by an order of the commission, he or she shall be subject to administrative sanction by the commission as provided ~~for~~ in subsection ~~(r)~~ (q), section four of this article.
§6B-2-12. Full disclosure required of nonprofit organizations receiving State funds.

(a) A nonprofit organization which receives more than a de minimis amount of state grant moneys or other financial assistance from the state, shall file with the commission, on forms prescribed by the commission, a financial report which sets forth the compensation of its directors, officers, and managerial employees for the preceding fiscal year.
(1) The forms shall be filed by the fifth day of February two thousand six, and annually thereafter.
(2) Any person who is subject to the requirements of this section who fails or refuses to file a report or who willfully and knowingly makes a false statement, conceals a material fact or otherwise commits a fraud in the report, may be subject to a complaint filed with the commission and proceeded against in the same manner as a public officer or public employee under the provisions of this chapter, including the imposition of civil penalties.
(b) Each agency of state government that awards state funded grants or distributes state funds to a nonprofit organization shall file with the commission a listing of funds distributed to the nonprofit organization for the preceding fiscal year by the first day of August, two thousand five and annually thereafter.
(c) The commission may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code.
(d) The commission may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code.
ARTICLE 3. LOBBYISTS.
§6B-3-2. Registration of lobbyists.

(a) Before engaging in any lobbying activity, or within thirty days after being employed as a lobbyist, whichever occurs first, a lobbyist shall register with the ethics commission by filing a lobbyist registration statement. The registration statement shall contain information and be in a form prescribed by the ethics commission by legislative rule, including, but not limited to, the following information:
(1) The registrant's name, business address, telephone numbers and any temporary residential and business addresses and telephone numbers used or to be used by the registrant while lobbying during a legislative session;
(2) The name, address and occupation or business of the registrant's employer;
(3) A statement as to whether the registrant is employed or retained by his or her employer solely as a lobbyist or is a regular employee performing services for the employer which include, but are not limited to, lobbying;
(4) A statement as to whether the registrant is employed or retained by his or her employer under any agreement, arrangement or understanding according to which the registrant's compensation, or any portion of the registrant's compensation, is or will be contingent upon the success of his or her lobbying activity;
(5) The general subject or subjects, if known, on which the registrant will lobby or employ some other person to lobby in a manner which requires registration under this article; and
(6) An appended written authorization from each of the lobbyist's employers confirming the lobbyist's employment and the subjects on which the employer is to be represented.
(b) Any lobbyist who receives or is to receive compensation from more than one person for services as a lobbyist shall file a separate notice of representation with respect to each person compensating him or her for services performed as a lobbyist. When a lobbyist whose fee for lobbying with respect to the same subject is to be paid or contributed by more than one person, then the lobbyist may file a single statement, in which he or she shall detail the name, business address and occupation of each person paying or contributing to the fee.
(c) Whenever a change, modification or termination of the lobbyist's employment occurs, the lobbyist shall, within one week of the change, modification or termination, furnish full information regarding the change, modification or termination by filing with the commission an amended registration statement.
(d) Each lobbyist who has registered shall file a new registration statement, revised as appropriate, on the Monday preceding the second Wednesday in January of each odd-numbered year, and failure to do so terminates his or her ~~registration~~ authorization to lobby. Until the registration is renewed, the person may not engage in lobbying activities unless he or she is otherwise exempt under paragraph (B), subdivision (7), section one of this article.
§6B-3-3a. Registration fees.
(a) Each lobbyist shall, at the time he or she registers, pay the commission a base registration fee of ~~sixty~~ one hundred dollars plus one hundred dollars for each employer represented to be filed with the initial registration statement and with each new registration statement filed by the lobbyist in subsequent odd numbered years: ~~Provided~~, That if a lobbyist files his or her initial registration after the first day of January during an even- numbered year, he or she shall only be required to pay a reduced registration fee of thirty dollars for the balance of that year Whenever a lobbyist modifies his 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) The commission shall collect the registration fees authorized by this section and pay them into the state treasury to the credit of the state general fund.~~
(b) All fees authorized and collected pursuant to this article shall be paid to the ethics commission and thereafter deposited into a special account to be appropriated by the Legislature for the operation of the commission in administering this article and article two of this chapter.
§6B-3-3b. Conflict of interest.
(a) No registered lobbyist who: (i) Serves as a member or director of a state or county board, commission or public service district; or (ii) who has an immediate family member who serves as a member or director of a state or county board, commission or public service district may engage in any lobbying activity that is related to any matter subject to the authority of such board, commission or public service district.
§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, such fees to be paid to the ethics commission and deposited in a special account to be appropriated by the Legislature for the operation of the commission. 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 on a quarterly basis as follows:
(1) On or before ~~the Monday preceding the second Wednesday in January of each year~~ the fifteenth day of April, a lobbyist shall ~~file an annual~~ report of all lobbying activities which he or she engaged in from the first day of January through the thirty-first day of March; ~~during the preceding calendar year; and~~
(2) On or before the fifteenth day of July, a lobbyist shall report all lobbying activities which he or she engaged in from the first day of April through the thirtieth day of June;
(3) On or before the fifteenth day of October, a lobbyist shall report all lobbying activities which he or she engaged in from the first day of July through the thirtieth day of September; and
(4) On or before the fifteenth day of January, a lobbyist shall report all lobbying activities which he or she engaged in from the first day of October through the thirty-first day of December.
(b) In the event the date a lobbyist expenditure report is due falls on a Saturday, Sunday, or legal holiday, the report is timely filed if it is postmarked not later than the next business day. In the event a registered lobbyist files a late report, the lobbyist shall pay the commission a fee of ten dollars for each late day, not to exceed a total of two hundred and fifty dollars. Should a registered lobbyist fail to file a report, or 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.
~~(2) If a lobbyist engages in lobbying with respect to legislation, then:~~
(A) Between the fortieth and forty-fifth days of any regular session of the Legislature in which any lobbying occurred, the lobbyist shall file a report describing all of his or her lobbying activities which occurred since the beginning of the calendar year; and
~~(B) Within twenty-one days after the adjournment~~ ~~sine die~~ of any regular or extraordinary session of the Legislature in which any lobbying occurred, the lobbyist shall file a report describing all of his or her lobbying activities which occurred since the beginning of the calendar year or since the filing of the last report required by this section, whichever is later.
~~(b)~~ (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 made or incurred by the lobbyist, or on behalf of the lobbyist, ~~by the lobbyist's employer~~ during the period covered by the report. The report shall also show subtotals segregated according to financial category, including meals and beverages; living accommodations; advertising; travel; contributions; gifts to public officials or employees or to members of the immediate family of a public official or employee; and other expenses or services.

(2) Lobbyists are not required to report the following:

(A) Unreimbursed personal living and travel expenses not incurred directly for lobbying;
(B) Any expenses incurred for his or her own living accommodations;
(C) Any expenses incurred for his or her own travel to and from public meetings or hearings of the legislative and executive branches; and
(D) Any expenses incurred for telephone, and any office expenses, including rent and salaries and wages paid for staff and secretarial assistance. ~~and~~
~~(E) Separate expenditures to or on behalf of a public official or employee in an amount of less than five dollars~~
~~(c)~~ (d) If a 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.
~~(d)~~ (e) The report shall describe the subject matter of the lobbying activities in which the lobbyist has been engaged during the reporting period.
~~(e)~~ (f) If, during the period covered by the report, the lobbyist made expenditures or such expenditures were made or incurred on behalf of the lobbyist in the reporting categories of meals and beverages, living accommodations, travel, gifts or other expenditures, other than for those expenditures governed by subsection ~~(f)~~ (g) of this section, ~~which expenditures in any reporting category total more than twenty-five dollars to or on behalf of any particular public official or employee,~~ the lobbyist shall report the name of the public official or employee to whom or on whose behalf the expenditures were made, the total amount of the expenditures, and the subject matter of the lobbying activity, if any. Under this subsection, no portion of the amount of an expenditure for a dinner, party or other function sponsored by ~~a lobbyist or~~ a lobbyist's employer need be attributed to or counted toward the reporting amount ~~of twenty-five dollars~~ for a particular public official or employee who attends the function if the sponsor has invited to the function all the members of: (1) The Legislature; (2) either house of the Legislature; (3) a standing or select committee of either house; or (4) a joint committee of the two houses of the Legislature. However, the amount spent for the function shall be added to other expenditures for the purpose of determining the total amount of expenditures reported under subsection ~~(b)~~ (c) (1) of this section.
~~(f)~~ (g) If, during the period covered by the report, the lobbyist made expenditures in the reporting categories of meals and beverages, lodging, travel, gifts and scheduled entertainment, ~~which reporting expenditures in any reporting category total more than twenty-five dollars~~ for or on behalf of a particular public official or public employee in return for the participation of the public official or employee in a ~~panel or~~ speaking engagement at the meeting, the lobbyist shall report the name of the public official or employee to whom or on whose behalf the expenditures were made and the total amount of the expenditures.
§6B-3-7. Duties of lobbyists.
A person required to register as a lobbyist under this chapter shall also have the following obligations, the violation of which shall constitute cause for revocation of his or her registration, and termination of lobbying privileges and may subject such person, and such person's employer, if such employer aids, abets, ratifies, or confirms any such act, to other civil liabilities, as provided by this chapter.
(1) Such persons shall obtain and preserve all accounts, bills, receipts, books, papers and documents necessary to substantiate the financial reports required to be made under this article for a period of at least five years from the date of the filing of the statement containing such items, which accounts, bills, receipts, books, papers, and documents shall be made available for inspection by the commission at any time: Provided, That if a lobbyist is required under the terms of his or her employment contract to turn any records over to his or her employer, responsibility for the preservation of such records under this subsection shall rest with such employer.
(2) In addition, a person required to register as a lobbyist shall not:
(A) Engage in any activity as a lobbyist before registering as such;
(B) Knowingly deceive or attempt to deceive any government officer or employee as to any fact pertaining to a matter which is the subject of lobbying activity;
(C) Cause or influence the introduction of any legislation for the purpose of thereafter being employed to secure its defeat;
(D) Exercise any undue influence, extortion, or unlawful retaliation upon any government officer or employee by reason of such 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 such person's employer;
(F) Give a gift to any government officer or employee in excess of or in violation of any limitations on gifts set forth in subsection (c), section five, article two of this chapter, or give any gift, whether lawful or unlawful, to a government officer or employee without such government officer or employee's knowledge and consent.
§6B-3-7a. Compliance audits.
(a) Each year, the commission shall initiate, by lottery, random audits of registration statements and disclosure reports required to be filed under the act.
(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) No lobbyist is subject to a random audit more than once in any twelve-month period.
(d) The purpose of conducting the audits shall be to ensure compliance with the act.
(1) Each year, the number of audits to be conducted will be determined through resolutions adopted at public meetings. The number of audits conducted in a given year will depend on various factors, including the complexity, results and time required to complete the audits.
(2) An audit shall include registration statements and disclosure reports, as well as other relevant information to verify, explain, clarify, support or contravene the registration statements and disclosure reports.
(3) An audit shall be limited in time to the previous five calendar years, except that lobbying activities performed prior to the effective date of this section will not be audited.
(e) The following general audit procedures will be employed by the commission for audits conducted pursuant to this section of the act:
(1) At least thirty days prior to the initiation of the audit, each audit subject will be advised by letter that it was randomly selected for audit and further advised of the time, date, place and general scope as well as a tentative time frame for completion of the audit. The letter will contain a request for documents deemed necessary to conduct the audit.
(2) Prior to the initiation of the audit, a review of the subject's reports on file with the commission for a period not to exceed five years will be conducted.
(3) The audit will be initiated by way of conference with the audit subject, or in the case of a firm, the designated representative thereof.
(A) The audit will include a detailed field examination of the financial records of the audit subject relating to financial activities.
(B) The audit may include independent verification of some or all of the information reported.
(i) The audit may include related records from other sources, in which case the subject of the audit shall cooperate fully and shall execute all waivers, releases or authorizations to allow the commission to obtain the records.
(ii) Registrants shall have an affirmative duty to cooperate fully in any audit of themselves.
(4) The audit may include interview of lobbyists, principals, representatives and employees thereof and other individuals necessary to the completion of the audit.
(5) A post audit conference will be conducted with the subject of the audit, or in the case of an entity or firm, with the designated representative thereof.
(6) Post audit preparation of a report describes the result of the audit.
(f) The auditor employed by or contracted with the commission responsible for performing compliance audits will, at the conclusion of each audit, prepare an audit report which will include findings.
(1) An audit report may include recommendations as to recordkeeping, reporting and other related practices arising from the audit.
(2) Upon completion, an audit report will be served upon the principal or lobbyist that is the subject of the audit.
(A) Service of the audit is complete upon mailing.
(B) Within thirty days of service of the audit report, the subject of the audit may file with the commission a statement setting forth the subject's position as to the audit report.
(g) Audit reports and any related responses shall be submitted to the executive director of the commission for review, and may form the basis for further proceedings under the act.
(h) An audit report and findings are confidential, except that the commission may include the relevant portion of an audit as part of its findings of fact in a commission order which results from an investigation arising out of an audit.
§6B-3-9. Penalties.
(a) Any person who is required under the provisions of this article to file an application, statement or report and who willfully and knowingly makes a false statement, conceals a material fact or otherwise commits a fraud in the application, statement or report is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in a county or regional jail not more than one year, or both.
(b) A person who is subject to the registration and reporting requirements of this article and who fails or refuses to register or who fails or refuses to file a required statement or report or who otherwise violates the provisions of this article may be the subject of a complaint filed with the ethics commission and may be proceeded against in the same manner and to the same ends as a public officer or public employee under the provisions of this chapter.
(c) A lobbyist's employer which has knowledge that its lobbyist has failed to register or that its lobbyist has failed or refused to file required statements or reports may be the subject of a complaint filed with the ethics commission and may be proceeded against in the same manner and to the same ends as a public officer or public employee under the provisions of this chapter.
~~(c)~~ (d) A person who willfully and knowingly files a false report under the provisions of this article is liable in a civil action to any government officer or employee who sustains damage as a result of the filing or publication of the report.

NOTE: The purpose of this bill is to restore confidence in government by substantially strengthening the West Virginia Governmental Ethics Act. This bill enhances the authority of the West Virginia Ethics Commission, raises ethical standards, provides for greater financial disclosure, and provides additional provisions for the regulation of lobbyists.

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

§6B-1-6, §6B-2-5b, §6B-2-12, §6B-3-3b, §6B-3-3c and §6B-3-7a are new; therefore, strike-throughs and underscoring have been omitted.