__________*__________
THURSDAY, JANUARY 27, 2005
The House of Delegates met at 1:00 p.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Wednesday, January 26, 2005, being the first
order of business, when the further reading thereof was dispensed with and the same approved.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage of
S. B. 1004 - "A Bill to repeal §23-3-5 of the Code of West Virginia, 1931, as amended; to
amend and reenact §4-11A-2 of said Code; to amend and reenact §11-9-2 of said Code; to amend
and reenact §11-10-3 of said Code; to amend said Code by adding thereto a new article, designated
§11-13V-1, §11-13V-2, §11-13V-3, §11-13V-4, §11-13V-5, §11-13V-6, §11-13V-7, §11-13V-8,
§11-13V-9, §11-13V-10, §11-13V-11, §11-13V-12, §11-13V-13, §11-13V-14, §11-13V-15,
§11-13V-16 and §11-13V-17; to amend and reenact §23-1-1, §23-1-1a, §23-1-1b, §23-1-1c,
§23-1-1e, §23-1-1f, §23-1-1g, §23-1-11, §23-1-12, §23-1-13, §23-1-14, §23-1-15, §23-1-17 and
§23-1-19 of said Code; to amend and reenact §23-2-1, §23-2-1d, §23-2-2, §23-2-3, §23-2-5,
§23-2-5a and §23-2-9 of said Code; to amend and reenact §23-2A-1 of said Code; to amend said Code by adding thereto a new article, designated §23-2C-1, §23-2C-2, §23-2C-3, §23-2C-4,
§23-2C-5, §23-2C-6, §23-2C-7, §23-2C-8, §23-2C-9, §23-2C-10, §23-2C-11, §23-2C-12,
§23-2C-13, §23-2C-14, §23-2C-15, §23-2C-16, §23-2C-17, §23-2C-18, §23-2C-19, §23-2C-20,
§23-2C-21, §23-2C-22 and §23-2C-23; to amend said Code by adding thereto a new article,
designated §23-2D-1, §23-2D-2, §23-2D-3, §23-2D-4, §23-2D-5, §23-2D-6, §23-2D-7, §23-2D-8,
§23-2D-9 and §23-2D-10; to amend and reenact §23-3-1 and §23-3-4 of said Code; to amend and
reenact §23-4-1b, §23-4-1c, §23-4-1d, §23-4-1e, §23-4-3, §23-4-3b, §23-4-4, §23-4-6, §23-4-6a,
§23-4-6b, §23-4-7, §23-4-7a, §23-4-7b, §23-4-8, §23-4-8a, §23-4-8b, §23-4-8c, §23-4-9, §23-4-10,
§23-4-11, §23-4-12, §23-4-14, §23-4-15, §23-4-15a, §23-4-15b, §23-4-16, §23-4-16a, §23-4-17,
§23-4-20, §23-4-24 and §23-4-25 of said Code; to amend and reenact §23-4A-1 and §23-4A-4 of
said Code; to amend said Code by adding thereto a new section, designated §23-4A-9; to amend said
Code by adding thereto a new section, designated §23-4B-9; to amend and reenact §23-4C-5 of said
Code; to amend said Code by adding thereto a new section, designated §23-4C-6; to amend and
reenact §23-5-1, §23-5-2, §23-5-3, §23-5-4, §23-5-5, §23-5-7, §23-5-8, §23-5-9, §23-5-10, §23-5-11,
§23-5-12 and §23-5-15 of said Code; to amend and reenact §29-22-18a of said Code; to amend and
reenact §29-22A-10 and §29-22A-10b of said Code; to amend and reenact §33-41-2 and §33-41-11
of said Code; and to amend and reenact §61-3-24e, §61-3-24f, §61-3-24g and §61-3-24h of said
Code, all relating generally to reducing the unfunded liability of the workers' compensation fund
and, as to such, designating certain existing funds and certain new funds for deposit in workers'
compensation debt reduction fund; redirecting first thirty million dollars of annual tobacco master
settlement agreement payments to workers' compensation debt reduction fund and providing for
strategic payments to also be deposited in that fund; imposing certain new taxes on privileges of
severing coal, natural gas and timber and on premiums paid for workers' compensation insurance
provided by new mutual company or private sector insurers, with collections dedicated to workers'
compensation debt reduction fund; specifying tax rates and measures of tax; allowing natural gas and
electric utilities to pass their increased cost due to new taxes to utility customers; providing for administration, collection, enforcement and payment of the new taxes; making new taxes collected
by Tax Commissioner subject to misdemeanor and felony provisions of West Virginia Tax Crimes
and Penalties Act; making new taxes collected by Tax Commissioner subject to West Virginia Tax
Procedure and Administration Act; converting state agency to employer-owned mutual insurance
company; repealing provisions relating to electronic invoices and transfers; providing for the
mutualization of the workers' compensation system; providing for opening of market to private
carriers of workers' compensation insurance; providing for continuation of Board of Managers until
termination of Workers' Compensation Commission; providing for all employees of Workers'
Compensation Commission to be exempt from provisions of civil service coverage and provision
of civil service law and, thereafter, be employees at will; providing for cooperation and support of
Division of Personnel until such time as mutual insurance company becomes operational; providing
for transfer of fraud investigation and prosecution unit of Workers' Compensation Commission to
Industrial Council to be completed by the first day of July, two thousand five; providing authority
to Executive Director to select employees of fraud and abuse unit to remain with Commission;
providing for initial operational expenses of fraud investigation and prosecution unit; providing that,
upon termination of Workers' Compensation Commission, Executive Director of Workers'
Compensation Commission may transfer certain Workers' Compensation Commission functions,
including the functions of ratemaking, self-insurance, Office of Judges and Board of Review, to
Industrial Council or to another agency or agencies of state government; providing Executive
Director with authority to select persons currently performing these functions be employees of
Industrial Council; providing for initial expenses of functions transferred to Industrial Council;
providing for withholding of final payment on contracts with government entities until receipt of a
certificate from Workers' Compensation Commission or mutual insurance company; providing
authority to Commission to acquire and dispose of real and personal property; providing, if the
mutual insurance company is created and new fund established, for continuance of Workers'
Compensation Commission through thirty-first day of December, two thousand five, at which time Commission's powers are transferred to Industrial Council or, for continuance of Commission until
mutual insurance company is created and new fund established and funded; providing for and
authorizing issuance and sale of revenue bonds and refunding revenue bonds by Economic
Development Authority to pay down current unfunded liability of workers' compensation fund and
providing for payment of debt services and expenses of issues; providing for Workers'
Compensation Commission to remain commission of the state until such time as mutual insurance
company is created and new fund is funded and that Commission be exempt from provisions of Code
related to purchasing and appropriations, expenditures and deductions; providing for transfer of
powers regarding investigations and depositions to Industrial Council upon termination of
Commission; providing for transfer of powers regarding procedure and evidence to Industrial
Council upon termination of Commission; providing for transfer of powers regarding forms to
Industrial Council upon termination of Commission; providing for annual report by Occupational
Pneumoconiosis Board to Governor; providing civil remedies to Commission, new mutual insurance
company and private carriers to seek damages for fraudulent claims; providing for exemption from
required coverage for certain employers who cover their employees under federal Longshore and
Harbor Workers' Compensation Act; providing that statutory liability of primary contractor for the
debts of its subcontractors applies only to unpaid premiums owed the old fund; providing for the
transfer to Industrial Council of Commission's right to collect certain information from other
agencies; providing for payment periods to be other than quarterly; providing that premium taxes and
interest not be waived unless it is part of full and final resolution of administrative or civil litigation;
providing authority to enjoin employers from engaging in business when in default in premium
payments for more than two payment periods; requiring self-insured employers to obtain insurance
for catastrophic risks; providing for transfer of authority over security and guaranty pools to
Industrial Council; providing for transfer of regulatory authority over self-insurance to Industrial
Council; providing for statutory subrogation for medical and indemnity benefits to Workers'
Compensation Commission, its successor, private carriers and self-insured employers; authorizing administrator of old fund to seek subrogation for claims arising prior to effective date of this Act and
for fees related thereto; providing for creation of employers' mutual insurance company as a
domestic, private, nonstock insurance company for purpose of insuring employers against liability
for injuries and diseases under state workers' compensation laws; providing for capital and surplus
requirements of employers' mutual insurance company; providing for separation of employers'
mutual insurance company from state government; providing funding for Insurance Commissioner's
regulation of workers' compensation mutual insurance company, private carriers and self-insurance
operations; providing for interim board to govern initial organization of employers' mutual insurance
company; providing for election of a board of directors of employers' mutual insurance company;
providing for creation of industrial council to assist Insurance Commissioner in regulation of state
workers' compensation system, including ratemaking and information gathering; providing for
establishment of claims index to assist insurers; providing for establishment of certain special funds
and accounts in state treasury, including old fund, new fund, mutualization transition fund, uninsured
employer fund, self-insured guaranty fund, self-insured security fund, private carrier guaranty fund
and workers' compensation debt reduction fund; providing for administration and funding of these
various funds and accounts; providing for assignment of employers to adverse risk assignment plan
and equitable assignment of employers to that plan; providing, upon meeting of certain criteria, for
issuance of proclamation by the Governor that will cause transfer of assets of Commission to
employers mutual insurance company and transfer of employees to Industrial Council, employers
mutual insurance company and Insurance Commissioner; providing for preferential placement of any
employee laid off due to these transfer of functions; providing certain retraining benefits to
employees laid off due to transfer of functions; providing certain benefits to employees transferred
to new employers mutual insurance company; providing for novation of policies to new employers
mutual insurance company; providing for opening of private workers' compensation insurance
market and changing of carriers; providing for administration of old fund; providing for requirements
of a basic policy of industrial insurance; providing for setting of industrial insurance rates; providing for collection of premiums by new employers mutual insurance company and private carriers;
providing for transfer of Occupational Pneumoconiosis Board to Industrial Council; providing for
certain claims responsibilities to be transferred to Industrial Council; providing for limitation of
liability for insurers providing workers' compensation insurance and third-party administrators;
providing for transfer of rules to be applicable to the industrial insurance market; providing for
transfer of assets to new mutual insurance company; providing for termination of workers'
compensation fund; providing for transfer of assets in catastrophe fund to old fund; providing for
deposit of abandoned funds into old fund; providing for determination of claims matters by
Commission, successor to Commission, private carriers and self-insured employers; providing for
transfer of certain authority of Commission to Industrial Council upon termination of Commission;
providing for promulgation by Industrial Council of maximum health provider rates and regulation
of health provider system; providing that health care advisory panel remains in effect until
termination of Commission; providing for termination of interdisciplinary examining board upon
termination of Commission and provision of resources by administrator of old fund, private carriers
and self-insured employers for performance of functions of interdisciplinary examining board;
providing, upon termination of Commission, for selection of Occupational Pneumoconiosis Board
members by Governor; providing for transfer of authority over Occupational Pneumoconiosis Board
to Industrial Council; providing for administration of disabled workers' relief fund by successor to
Commission; providing for transfer of assets and liabilities of coal workers' pneumoconiosis fund
to successor to Commission; providing for novation of employers' excess liability fund to successor
to Commission; providing for negotiation of final settlement in workers' compensation claims
between Commission, successor to Commission, private carriers or self-insured employers and
claimants; providing, upon termination of Commission, for transfer of Office of Judges and Board
of Review to Industrial Council; providing for Insurance Commissioner to have authority over
provision of industrial insurance; providing for utilization of crimes and offenses concerning
workers' compensation by Insurance Commissioner; providing for certain offenses against private carriers, in addition to offenses enumerated against workers' compensation fund and self-insured
employers; making technical corrections throughout; providing internal effective dates; providing
for forty-five million dollars of moneys in state excess lottery revenue fund be deposited annually
into West Virginia workers' compensation debt reduction fund; making certain changes in
distribution of net terminal income to fund workers' compensation debt reduction fund; and making
certain acts, failures and omissions subject to various criminal provisions."
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 1004)
was taken up for immediate consideration, read a first time, ordered to second reading and then
referred to the Committee on Finance.
At 1:47 p.m., on motion of Delegate Staton, the House of Delegates recessed until 6:00 p.m.,
and reconvened at that time.
* * * * * * * *
Evening Session
* * * * * * * *
At the request of Delegate Staton, and by unanimous consent, the House of Delegates
returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
H. B. 101, Reorganization of the executive branch of state government,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
House Calendar
Third Reading
H. B. 104, Relating generally to the ethical standards of governmental officials and
employees and disclosure of financial interests of such persons; on third reading, coming up in
regular order, with a committee pending , and with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
on page two, line twenty-six, following the enacting clause, by striking out the remainder of the bill
and inserting in lieu thereof the following:
"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 three new sections, designated §6B-2-2a,
§6B-2-5b and 6B-2-12; that §6B-3-1, §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 and any other
funds paid by persons subject to the West Virginia Governmental Ethics Act, other than fines and
penalties, 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) 'Board of Review' means the Public Servant Conduct Review Board created by article
two-a of this article.
(b) 'Compensation' means money, thing of value or financial benefit. The term
'compensation' does not include reimbursement for actual reasonable and necessary expenses
incurred in the performance of one's official duties.
(b) (c) 'Employee' means any person in the service of another under any contract of hire,
whether express or implied, oral or written, where the employer or an agent of the employer or a
public official has the right or power to control and direct such person in the material details of how
work is to be performed and who is not responsible for the making of policy nor for recommending
official action.
(c) (d) 'Ethics commission', 'commission on ethics' or 'commission' means the West
Virginia ethics commission.
(d) (e) 'Immediate family', with respect to an individual, means a spouse residing in the
individual's household and any dependent child or children, and dependent parent or parents.
(e) (f) 'Ministerial functions' means actions or functions performed by an individual under
a given state of facts in a prescribed manner in accordance with a mandate of legal authority, without regard to, or without the exercise of, such individual's own judgment as to the propriety of the action
being taken.
(f) (g) 'Person' means an individual, corporation, business entity, labor union, association,
firm, partnership, limited partnership, committee, club or other organization or group of persons,
irrespective of the denomination given such organization or group.
(g) (h) 'Political contribution' means and has the same definition as is given that term under
the provisions of article eight, chapter three of this code.
(h) (i) 'Public employee' means any full-time or part-time employee of any governmental
body or any political subdivision thereof, including county school boards.
(i) (j) '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) (k) 'Respondent' means a person who is the subject of an investigation by the commission
or against whom a complaint has been filed with the commission.
(k) (l) '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, co-tenancies, 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.
All moneys collected shall be deposited in a special account in the state treasury to be known
as the 'West Virginia Governmental Ethics Commission Fund.' Expenditures from the fund shall
be for the purposes set forth in this chapter and are not authorized from collections but are to be
made only in accordance with appropriation by the Legislature and in accordance with the provisions
of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in
article two, chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of
June, two thousand five, expenditures are authorized from collections rather than pursuant to an
appropriation by the Legislature.
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS
AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES;
CODE OF CONDUCT FOR ADMINISTRATIVE LAW JUDGES.
§6B-2-1. West Virginia ethics commission created; members; appointment, term of office and
oath; compensation and reimbursement for expenses; meetings and
quorum.
(a) There is hereby created the West Virginia ethics commission, consisting of twelve members, no more than seven of whom shall be members of the same political party. The members
of the commission shall be appointed by the governor with the advice and consent of the Senate.
Within thirty days of the effective date of this section, the governor shall make the initial
appointments to the commission. No person may be appointed to the commission or continue to
serve as a member of the commission who holds elected or appointed office under the government
of the United States, the state of West Virginia or any of its political subdivisions, or who is a
candidate for any of 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: Provided, That to be eligible for compensation
and expense reimbursement, the member must be in personal attendance at the meeting in which the
duties are performed.
(h) The commission shall appoint an executive director to assist the commission in carrying out its functions in accordance with commission rules and 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) (j) The principal office of the commission shall be in the seat of government but it or its
designated subcommittees may meet and exercise its power at any other place in the state. Meetings
of the commission shall be public unless 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) (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 or other electronic conferencing and voting may
not be held when the commission is acting as a hearing board under section four 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 or other electronic 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. All meeting records shall be kept for at least seven years.
§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 initiate or receive complaints and make investigations, as provided
in section four of this article, and upon complaint by an individual of an alleged violation of this
article by a public official or public employee, refer the complaint to the Review Board as provided
in section two-a of this article. Any person charged with a violation of this chapter is entitled to the
administrative hearing process contained in section four of this article.
(1) The commission may commence an investigation, pursuant to section four of this article,
on the filing of a complaint duly verified by oath or affirmation, by any person.
(2) The commission may order the executive director to prepare a complaint, upon a majority
affirmative vote of its members, if it receives or discovers credible information which, if true, would
merit an inquiry of whether a violation of this article has occurred.
(3) (A) No complaint may be accepted or initiated by the commission concerning a candidate
for elective office during the one hundred twenty day period before a primary or general election in
which he or she is a candidate. During this one hundred twenty day period, any person may petition
a court of general jurisdiction alleging the violations complained of and praying for appropriate relief
by way of mandamus or injunction, or both. Within ten days, a rule to show cause hearing must be
held, and the court must either dismiss the petition or direct that a mandamus order or an injunction,
or both, be issued. A violation of this article by a candidate during this one hundred twenty-day period must be considered to be an irreparable injury for which no adequate remedy at law exists.
The institution of an action for injunctive relief does not relieve any party to the proceeding from any
penalty prescribed for violations of this article. The court must award reasonable attorneys fees and
costs to the non-petitioning party if a petition for mandamus or injunctive relief is dismissed based
upon a finding that the:
(i) petition is being presented for an improper purpose such as harassment or to cause delay;
(ii) claims, defenses, and other legal contentions are not warranted by existing law or are
based upon a frivolous argument for the extension, modification, or reversal of existing law or the
establishment of new law; and
(iii) allegations and other factual contentions do not have evidentiary support or, if
specifically so identified, are not likely to have evidentiary support after reasonable opportunity for
further investigation or discovery.
(B) If a complaint is filed against a candidate more than one hundred twenty days before a
election, the Commission shall either dismiss the complaint or issue a finding of probable cause at
least thirty days before the election, unless the provisions of subdivision 3(A) of this subsection may
cause a court order to be issued.
(c) The commission may subpoena witnesses, compel their attendance and testimony,
administer oaths and affirmations, take evidence and require by subpoena the production of books,
papers, records or other evidence needed for the performance of the commission's duties or exercise
of its powers, including its duties and powers of investigation.
(cd) 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) (e) The commission may:
(1) Prepare reports and studies to advance the purpose of the law;
(2) Contract for any services which cannot satisfactorily be performed by its employees;
(3) 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 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-2-2a. Public Servant Conduct Review Board.
(a) There is hereby established a Public Servant Conduct Review Board that shall conduct
hearings to determine whether there is probable cause to believe that a violation of the West Virginia
Governmental Ethics Act has occurred, and if so, to refer that investigation to the Ethics
Commission. The Review Board, whose appointed members are randomly selected senior status
judges of this state, will review complaints received by the Ethics Commission and cases developed
through Ethics Commission investigations to make the threshold determination whether probable
cause exists that a violation of the West Virginia Governmental Ethics Act has occurred. Although
resources and facilities of the Ethics Commission shall be utilized the function of the Review Board
is quasi-judicial in nature and the Review Board is an autonomous board, not under the direction or
control of the Ethics Commission.
(b) By the first day of March each year, The West Virginia Judicial Association shall submit
the names of all senior status judges licences to practice law in West Virginia who have informed
the Judicial Association of their willingness to serve on the Review Board. The Commission shall
cause a random selection of three names from those submitted each year by the Judicial Association which shall be designated as the three members of the Review Board for the following term. Each
one year term will begin July one, and end June thirtieth of the following year. Each person selected
as a member of the Review Board shall be paid at the rate senior status judges are paid by the state
Supreme Court for senior status appointments as circuit judge, and be reimbursed expenses as
provided to commission members pursuant to section one of this chapter. These and all other costs
incurred by the Review Board shall be paid from the budget of the Ethics Commission.
(c) The Ethics Commission shall propose any procedural and interpretative rules adopted by
the Review Board for the operation of the Review Board. The Commission shall propose these rules
pursuant to article three, chapter twenty-nine-a of the code.
(d) The Ethics Commission shall provide staffing and a location for the Review Board to
conduct hearings. The Ethics Commission is authorized to employ and assign the necessary
professional and clerical staff to assist the Review Board in the performance of its duties and
commission staff shall, as the commission deems appropriate, also serve as staff to the Review
Board. All investigations of the Review Board are deemed confidential as provided in section four
of this article.
(e) The Review Board may subpoena witnesses, compel their attendance and testimony,
administer oaths and affirmations, take evidence and require by subpoena the production of books,
papers, records or other evidence needed for the performance of the Board's duties.
§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 of the complaint or the complaint was
initiated by the commission. Within fourteen days after the receipt of a complaint, the executive
director an shall refer the complaint to the investigative panel, Review Board, created pursuant to section two-a of this article. 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.
(b) In the case of a filed complaint, Upon the referral of a complaint by the executive director
pursuant to subsection (a) of this section, the first inquiry of the investigative panel Review Board
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 Review Board to be insufficient in this regard, the investigative panel Review Board shall
dismiss the complaint.
(c) After the commission receives a complaint found by the investigative panel Upon a
finding by the Review Board that the complaint is 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 Review Board, and that
he or she may respond in writing to the commission within thirty days after the receipt of the notice, but that no fact or allegation shall be taken as admitted by a failure or refusal to timely respond.
(d) Within the forty-five day period following the mailing of a notice of investigation, the
investigative panel Review Board shall proceed to consider: (1) The allegations raised in the
complaint; (2) any timely received written response of the respondent; and (3) any other competent
evidence gathered by or submitted to the commission which has a proper bearing on the issue of
probable cause. A respondent shall be afforded the opportunity to appear before the investigative
panel Review Board 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 Review Board is conducting an investigation, through the issuance
of a rule or an attachment against the respondent as in cases of contempt.
(e)(1) 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, non-privileged 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
Review Board order finding probable cause and with the statement of charges prepared pursuant to
the provisions of subsection (g) of this section. The Commission's review of all evidence presented
shall be de novo.
(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 Review Board fail to find probable
cause, the proceedings shall be dismissed by the commission in an order signed by the majority
members of the panel Review Board, and copies of the order of dismissal shall be sent to the
complainant and served upon the respondent forthwith. If the investigative panel Review Board
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 Review Board shall sign an order
directing the commission staff to prepare a statement of charges, to assign the matter for hearing to
the commission or a hearing examiner as the commission may subsequently direct. The Commission
shall then schedule a hearing to 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 seven 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 proceeding previously or currently before the Commission, and shall be subject to the penalties
contained in subsection (e) of Section ten of this article.
(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 Review Board may participate in the commission deliberations or communicate with
commission members 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) Make reimbursement to the commission for the reasonable actual costs of investigation.
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 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 commission
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; and
(3) Make reimbursement to the commission for the reasonable actual costs of investigation.
(u) (v) If at any stage in the proceedings under this section, it appears to an investigative
panel a Review Board, 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 at least two-thirds of the commission
in attendance 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 after the thirtieth day of
June, two thousand and five and within one year three years before the filing of a complaint. under
subsection (a) of this section or the appointment of an investigative panel by the commission under
subsection (b) of this section.
§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.' Any monies in excess of those donations needed for the conference or function
shall be deposited in the Capitol Dome and Capitol Improvement Fund established in section two,
article four of chapter five-a of this code.
(d) Interests in public contracts. -- (1) In addition to the provisions of section fifteen, article
ten, chapter sixty-one of this code, no elected or appointed public official or public employee or
member of his or her immediate family or business with which he or she is associated may be a party
to or have an interest in the profits or benefits of a contract which 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, for the identical time period, 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 rata basis for any
hours of work missed 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.
In order to ensuree 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, in a manner 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 another persons tp
give false or misleading material information to the commission.
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 previously has completed
a training course provided by the ethics commission 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 has or
had in the last year an interest of ten thousand dollars at fair market value or five percent (5%)
ownership interest, if that interest exceeds ten thousand dollars.
(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 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, profited or benefitted in the year prior to the date of filing from a
contract for the sale of goods or services to a state, county, municipal or other local governmental
agency either directly or through a partnership, corporation or association in which 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
the person filing the statement, did business or furnished services and from which the person
received more than twenty percent of the person's 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,
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, 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) 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.
(10) 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 (v),
section four of this article the ethics commission finds as the result of an investigation of a complaint
that a pattern of ethics violations or criminal violations has occurred under this chapter or under
article five-a, chapter sixty-one of this code, exists in a state, county or covered municipal
government, county school board or one of their respective departments, agencies, boards or
commissions, and also finds that the prosecuting attorney of the county in which the violation
occurred is, for some reason, 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
committing 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), section four of this article.
(e) If any commission member or staff knowingly violates subsection (o), section four of this
article, such person, upon conviction thereof, shall be guilty of a misdemeanor, and shall be fined
not less than one hundred dollars nor more than one thousand dollars.
§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, and pays a salary of more than fifty thousand
dollars to any of its directors, officers or employees, 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-3-1. Definitions
As used in this article, unless the context in which used clearly indicates otherwise:
(1) 'Compensation' means money or any other thing of value received or to be received by
a lobbyist from an employer for services rendered.
(2) 'Employer' or 'lobbyist's employer' means any person who employs or retains a lobbyist.
(3) 'Expenditure' means payment, distribution, loan, advance deposit, reimbursement, or gift
of money, real or personal property or any other thing of value; or a contract, promise or agreement,
whether or not legally enforceable.
(4) 'Government officer or employee' means a member of the Legislature, a legislative
employee, the governor and other members of the board of public works, heads of executive
departments, and any other public officer or public employee under the legislative or executive
branch of state government who is empowered or authorized to make policy and perform
non-ministerial functions. In the case of elected offices included herein, the term 'government
officer or employee' shall include candidates who have been elected but who have not yet assumed
office.
(5) 'Legislation' means bills, resolutions, motions, amendments, nominations, and other
matters pending or proposed in either house of the Legislature, and includes any other matters that
may be the subject of action by either house or any committee of the Legislature and all bills or
resolutions that, having passed both houses, are pending approval or veto by the governor.
(6) 'Lobbying' or 'lobbying activity' means the act of communicating with a government
officer or employee to promote, advocate or oppose or otherwise attempt to influence:
(i) The passage or defeat or the executive approval or veto of any legislation which may be
considered by the Legislature of this state; or
(ii) The adoption or rejection of any rule, regulation, legislative rule, standard, rate, fee or
other delegated legislative or quasi-legislative action to be taken or withheld by any executive
department.
(7) 'Lobbying firm' means any business entity, including an individual contract lobbyist,
which meets either of the following criteria:
(A) The business entity receives or becomes entitled to receive any compensation, other than
reimbursement for reasonable travel expenses, for the purpose of lobbying on behalf of any other
person, and any partner, owner, officer, or employee of the business entity.
(B) The business entity receives or becomes entitled to receive any compensation, other than
reimbursement for reasonable travel expenses, to communicate directly with any elective state
official, agency official, or legislative official for the purpose of lobbying on behalf of any other
person.
(8)(A) 'Lobbyist' means a person who, through communication with a government officer
or employee any individual who is employed or contracts for economic consideration, other than
reimbursement for reasonable travel expenses, to communicate directly or through his or her agents
with any elective state official, agency official or legislative official for the purpose of promotes,
advocates or opposes promoting, advocating, opposing or otherwise attempts attempting to
influence:
(i) The passage or defeat or the executive approval or veto of any legislation which may be
considered by the Legislature of this state; or
(ii) The adoption or rejection of any rule, regulation, legislative rule, standard, rate, fee or
other delegated legislative or quasi-legislative action to be taken or withheld by any executive department.
(B) The term 'lobbyist' shall not include the following persons, who shall be exempt from
the registration and reporting requirements set forth in this article, unless such persons engage in
activities which would otherwise subject them to the registration and reporting requirements:
(i) Persons who limit their lobbying activities to appearing before public sessions of
committees of the Legislature, or public hearings of state agencies, are exempt.
(ii) Persons who limit their lobbying activities to attending receptions, dinners, parties or
other group functions and make no expenditure in connection with such lobbying are exempt.
(iii) Persons who engage in news or feature reporting activities and editorial comment as
working members of the press, radio, or television and persons who publish or disseminate such
news, features or editorial comment through a newspaper, book, regularly published periodical, radio
station or television station, are exempt.
(iv) Persons who lobby without compensation or other consideration for acting as lobbyists,
other than reimbursement for reasonable travel expenses, or who are not employed by a lobbying
firm or lobbyist employer, and whose total expenditures in connection with such lobbying do not
exceed twenty-five dollars during any calendar year, are exempt. The exemption contained in this
subparagraph (iv) and subparagraph (ii) are intended to permit and encourage citizens of this state
to exercise their constitutional rights to assemble in a peaceable manner, consult for the common
good, instruct their representatives, and apply for a redress of grievances. Accordingly, such persons
may lobby without incurring any registration or reporting obligation under this article. Any person
exempt under this subparagraph (iv) or subparagraph (ii) may at his or her option register and report
under this article.
(v) Persons who lobby on behalf of a nonprofit organization with regard to legislation,
without compensation, and who restrict their lobbying activities to no more than twenty days or parts
thereof during any regular session of the Legislature, are exempt. The commission may promulgate
a legislative rule to require registration and reporting by persons who would otherwise be exempt under this subparagraph, if it determines that such rule is necessary to prevent frustration of the
purposes of this article. Any person exempt under this subparagraph may at his or her option register
and report under this article.
(vi) The governor, members of the governor's staff, members of the board of public works,
officers and employees of the executive branch who communicate with a member of the Legislature
on the request of that member, or who communicate with the Legislature, through the proper official
channels, requests for legislative action or appropriations which are deemed necessary for the
efficient conduct of the public business or which are made in the proper performance of their official
duties, are exempt.
(vii) Members of the Legislature are exempt.
(viii) Persons employed by the Legislature for the purpose of aiding in the preparation or
enactment of legislation or the performance of legislative duties are exempt.
(ix) Persons rendering professional services in drafting proposed legislation or in advising
or rendering opinions to clients as to the construction and effect of proposed or pending legislation
are exempt.
(8) (9) 'Person' means any individual, partnership, trust, estate, business trust, association,
or corporation; any department, commission, board, publicly supported college or university,
division, institution, bureau, or any other instrumentality of the state; or any county, municipal
corporation, school district or any other political subdivision of the state.
§6B-3-2. Registration of lobbyists.
(a) Before engaging in any lobbying activity, or within thirty days after being employed as
a lobbyist, whichever occurs first, a lobbyist shall register with the ethics commission by filing a
lobbyist registration statement. The registration statement shall contain information and be in a form
prescribed by the ethics commission by legislative rule, including, but not limited to, the following
information:
(1) The registrant's name, business address, telephone numbers and any temporary residential and business addresses and telephone numbers used or to be used by the registrant while lobbying
during a legislative session;
(2) The name, address and occupation or business of the registrant's employer;
(3) A statement as to whether the registrant is employed or retained by his or her employer
solely as a lobbyist or is a regular employee performing services for the employer which include, but
are not limited to, lobbying;
(4) A statement as to whether the registrant is employed or retained by his or her employer
under any agreement, arrangement or understanding according to which the registrant's
compensation, or any portion of the registrant's compensation, is or will be contingent upon the
success of his or her lobbying activity;
(5) The general subject or subjects, if known, on which the registrant will lobby or employ
some other person to lobby in a manner which requires registration under this article; and
(6) An appended written authorization from each of the lobbyist's employers confirming the
lobbyist's employment and the subjects on which the employer is to be represented.
(b) Any lobbyist who receives or is to receive compensation from more than one person for
services as a lobbyist shall file a separate notice of representation with respect to each person
compensating him or her for services performed as a lobbyist. When a lobbyist whose fee for
lobbying with respect to the same subject is to be paid or contributed by more than one person, then
the lobbyist may file a single statement, in which he or she shall detail the name, business address
and occupation of each person paying or contributing to the fee.
(c) Whenever a change, modification or termination of the lobbyist's employment occurs,
the lobbyist shall, within one week of the change, modification or termination, furnish full
information regarding the change, modification or termination by filing with the commission an
amended registration statement.
(d) Each lobbyist who has registered shall file a new registration statement, revised as
appropriate, on the Monday preceding the second Wednesday in January of each odd-numbered year, and failure to do so terminates his or her 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 lobbyist or a lobbyist's immediate family member may not participate in any decision as
a member of a state or county board, council, commission, or public service district if the lobbyist
may receive direct economic or pecuniary benefit from a decision of that state or county board,
council, commission, or public service district. This disqualification must be such as to affect the
member directly and not a class.
§6B-3-3c. Lobbyist training course.
The commission shall provide a training course for registered lobbyists and prospective
lobbyists at least twice each year regarding the provisions of the ethics code relevant to lobbyists. One such course shall be conducted during the month of January. In addition to the registration fees
authorized in section three-a of this article, the commission may collect a reasonable fee from those
attending lobbyist training, 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 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."
On motion of Delegate Amores, the committee amendment was amended on page twelve,
section two, line eighteen, following the words "one hundred" by striking out the word "twenty".
On page twelve, section two, line nineteen, following the words "one hundred" by striking
out the word "twenty".
On page twelve, section two, line twenty-six, following the words "one hundred" by striking
out the word "twenty".
And,
On page thirteen, section two, line seventeen, following the words "one hundred" by striking
out the word "twenty".
On motion of Delegates Armstead, Trump, Duke, Carmichael and Blair, the committee
amendment was amended on page five, section three, line fourteen, following the word "person" and
the period, by inserting the following: "Notwithstanding the provisions of sections two and four,
article two, chapter five-b of this code, 'public official' also means the director of the West Virginia
development office and the director of performance based incentives and representatives of the West
Virginia development office."
The question before the House now being the adoption of the committee amendment, as
amended, the same was put and prevailed.
At the request of Delegate Staton, and by unanimous consent, further consideration of the
bill was then postponed until the completion of bills on third reading.
S. B. 1001, Authorizing excess amounts received by inaugural committee be expended for
Governor's Mansion; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 5), and
there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as
follows:
Absent And Not Voting: Beach, Ferrell, Fragale and Perdue.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 1001) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 6), and there were--yeas 96, nays
none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Ferrell, Fragale and Perdue.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 1001) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S.B. 1002, Relating to reorganization of executive branch of state government; on third
reading, coming up in regular order, was, on motion of Delegate Staton, laid over one day.
H. B. 104, Relating generally to the ethical standards of governmental officials and
employees and disclosure of financial interests of such persons; on third reading, having been
postponed until this time, was, on motion of Delegate Staton, laid over one day.
Second Reading
Com. Sub. for H. J. R. 101, Pension Bond Amendment
; on second reading, coming up in
regular order, was, on motion of Delegate Staton, laid upon the table.
S. J. R. 101, Proposing amendment to Constitution designated Pension Bond Amendment;
on second reading, coming up in regular order, was read a second time, advanced to third reading
and the rule was suspended to permit the offering and consideration of amendments on that reading.
H. B. 102, Authorizing the use of unused inaugural contributions for the enhancement of the
Governor's Mansion; on second reading, coming up in regular order, was, on motion of Delegate
Staton, laid upon the table.
Com. Sub. for S. B. 1003, Relating generally to ethical standards of governmental officials
and employees; on second reading, coming up in regular order, was read a second time.
On motion of Delegate Staton, the bill was amended on page five, following the enacting
clause, by striking out the remainder of the bill and inserting in lieu thereof the provisions of H. B.
104, as amended.
The bill was then ordered to third reading.
Leaves of Absence
At the request of Delegate Staton, and by unanimous consent, leaves of absence for the day
were granted Delegates Beach, Ferrell, Fragale and Perdue.
At 6:37 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 1:00 p.m.,
Friday, January 28, 2005.