(CLERK'S NOTE: SEE PRINTED JOURNAL FOR OFFICIAL VERSION)
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SEVENTH LEGISLATURE
REGULAR SESSION, 2005
NINTH DAY
____________
Charleston, W. Va., Thursday, February 17, 2005
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by Dr. D. W. Cummings, Pastor, Bethlehem
Apostolic Temple, Wheeling, West Virginia.
Pending the reading of the Journal of Wednesday, February 16,
2005,
On motion of Senator Foster, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
The Clerk presented the following communication from the
Commission on Special Investigations:
WEST VIRGINIA LEGISLATURE
COMMISSION ON SPECIAL INVESTIGATIONS
CHARLESTON
February 9, 2005
West Virginia Legislature
Charleston, West Virginia
Pursuant to Chapter 4, Article 5, Section 2 of the West
Virginia Code, we submit the Twenty-fourth Annual Report of the
Commission on Special Investigations to the West Virginia
Legislature.
Respectfully submitted,
Earl Ray Tomblin,
Senate,
Robert S. Kiss,
House of Delegates,
Cochairs.
Which communication and report were received and filed with
the Clerk.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 16, Encouraging Bureau for
Public Health work with health care providers and consumer
advocates to fight chronic kidney disease.
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. Com. Sub. for House Bill No. 2015--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto new
section, designated §55-7-18a, relating to the creation of a
presumption of good faith and grant of immunity for employers who
disclose job-related information about current and former employees to prospective employers.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. House Bill No. 2102--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §61-10-32, relating to making tongue splitting a crime
unless performed by a licensed physician or osteopath; and
providing for a penalty.
Referred to the Committee on Health and Human Resources; and
then to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. Com. Sub. for House Bill No. 2128--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §31-20-29, relating to authorizing the
Executive Director of the Regional Jail and Correctional Facility
Authority to establish an inmate furlough program; and providing
civil immunity.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. House Bill No. 2129--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section,
designated §61-3-58, relating to the unlawful use of a recording
device in a motion picture theater; defining certain terms;
providing that a person who knowingly operates the audiovisual
recording function of any device in a motion picture theater with
the intent of recording a motion picture under certain
circumstances commits a misdemeanor offense; providing criminal
penalties; providing for the imposition of criminal fines;
requiring theater owners to display certain signs under specified
conditions; specifying that failure to display the signs does not
create liability for the theater owners; authorizing the theater
owner to detain a person in violation of the act; providing
immunity to the theater owner for detaining a person in violation
of the act while awaiting the arrival of a law-enforcement officer;
providing an exception to the immunity; and providing that an
employee or agent of certain law-enforcement, protective services,
or investigative agencies may operate an audiovisual recording
device as part of a lawfully authorized activity.
Referred to the Committee on the Judiciary.
The Senate proceeded to the fourth order of business.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Bill No. 152, Permitting county commissions to alter
observance of legal holidays for county employees.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on the Judiciary.
Respectfully submitted,
Edwin J. Bowman,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on the Judiciary, with an amendment
from the Committee on Government Organization pending.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were
introduced, read by their titles, and referred to the appropriate
committees:
By Senator Harrison:
Senate Bill No. 208--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §59-1-10a, relating to establishing a marriage license
discount if the applicants show proof of a certificate of
completion of an approved premarital counseling course.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
By Senators Boley and Sprouse:
Senate Bill No. 209--A Bill to amend and reenact §31A-8-12b of
the Code of West Virginia, 1931, as amended, relating to
prohibiting the installation and operation of customer bank communication terminals at limited licensed video gaming
facilities.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
By Senators Love, Hunter, McKenzie, Sharpe, White, Yoder and
Deem:
Senate Bill No. 210--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §31-20-29, relating to authorizing the Executive
Director of the Regional Jail and Correctional Facility Authority
to establish an inmate furlough program; and providing civil
immunity.
Referred to the Committee on the Judiciary.
By Senators Facemyer, Sprouse and Fanning:
Senate Bill No. 211--
A Bill to amend and reenact §17A-3-14 of
the Code of West Virginia, 1931, as amended, relating to motor
vehicle registration generally; providing for the issuance of a
special Lions International membership license plate; and assessing
a special initial application fee and a special annual fee
therefor.
Referred to the Committee on Transportation and
Infrastructure; and then to the Committee on Finance.
By Senators Plymale, Jenkins, Unger and White:
Senate Bill No. 212--
A Bill to amend and reenact §5-5-1 of the
Code of West Virginia, 1931, as amended, relating to the
eligibility of faculty members at state institutions of higher education for certain incremental pay; and making them eligible for
the annual experience increment for state employees.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Tomblin (Mr. President), Plymale, Prezioso,
Edgell, Bailey, Bowman, Dempsey, Hunter, Unger, White, Boley,
Guills, Harrison, Sharpe, Fanning, Foster, Jenkins, Oliverio and
McCabe:
Senate Resolution No. 7--Recognizing the accomplishments of
Mark Musick, President of the Southern Regional Education Board.
Whereas, Mark Musick has been involved in the work of the
Southern Regional Education Board for more than two decades in an
effort to improve quality in southern schools and colleges; and
Whereas, Before being selected Southern Regional Education
Board President in 1989, Mark Musick was Vice President of the
Board and worked primarily with southern state legislators,
governors and higher education boards; and
Whereas, Mark Musick has developed technology initiatives that
have earned national recognition for the Southern Regional
Education Board, including the Educational Technology Cooperative
and the Electronic Campus, America's most successful distance
learning marketplace; and
Whereas, In the 1980s, Mark Musick worked on a project
affiliated with the National Assessment of Educational Progress
which, for the first time, produced student achievement information
that could be compared from one state to another. The Southern Regional Education Board project served as a model for the
nationwide program that now involves all 50 states and is a key
provision of the federal No Child Left Behind Act; and
Whereas, Mark Musick is a charter member of ACT, Inc., which
administers more than 1.2 million collegiate admissions tests
annually. He serves on the Executive Committee and chairs the
Corporate Development Committee for ACT; and
Whereas, Three U. S. Secretaries of Education have appointed
Mark Musick to chair the Governing Board of the National Assessment
of Educational Progress that directs the program known as the
Nation's Report Card; and
Whereas, Mark Musick has decided to retire in 2005 from his
position as President of the Southern Regional Education Board,
leaving behind a lifetime of accomplishments designed to enhance
the quality of education in the United States; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the accomplishments of Mark
Musick, President of the Southern Regional Education Board; and, be
it
Further Resolved, That the Senate extends its sincere
appreciation to Mark Musick for his service as President of the
Southern Regional Education Board. His knowledge and expertise,
along with his leadership ability, has made a lasting impact on the
Southern Regional Education Board; and, be it
Further Resolved, That the Senate expresses its best wishes to
Mark Musick on the occasion of his retirement as President of the Southern Regional Education Board and wishes him well in all future
endeavors he may choose to undertake; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Mark Musick, President of the Southern
Regional Education Board.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Chafin, unanimous consent being granted,
returned to the fourth order of business.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Bill No. 213 (originating in the Committee on
Government Organization)--A Bill
to amend and reenact
§
16-41-7 of
the Code of West Virginia, 1931, as amended, relating to
continuation of the Oral Health Program.
Senate Bill No. 214(originating in the Committee on
Government Organization)--A Bill
to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §30-36-20, relating to the continuation of the West
Virginia Acupuncture Board.
And,
Senate Bill No. 215(originating in the Committee on
Government Organization)--A Bill
to amend and reenact §30-9-32 of
the Code of West Virginia, 1931, as amended, relating to
continuation of the West Virginia Board of Accountancy.
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 14, Requesting Division of
Highways name bridge at Peytona, Boone County, "Charles R. Carrico
Memorial Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on
Transportation and Infrastructure.
Senate Concurrent Resolution No. 15, Requesting Division of
Highways name bridge on Turnpike at Sharon "Tony DeRaimo Memorial
Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on
Transportation and Infrastructure.
The Senate proceeded to the ninth order of business.
Senate Bill No. 153, Relating generally to ethical standards
of public officers and employees.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator Deem, the following amendment to the bill
was reported by the Clerk:
On page twenty, after section four, by inserting the
following:
§6B-2-5. Ethical standards for elected and appointed officials and
public employees.
(a) Persons subject to section. -- The provisions of this
section apply to all elected and appointed public officials and
public employees, whether full or part time, in state, county,
municipal governments and their respective boards, agencies,
departments and commissions and in any other regional or local
governmental agency, including county school boards.
(b) Use of public office for private gain. -- (1) A public
official or public employee may not knowingly and intentionally use
his or her office or the prestige of his or her office for his or
her own private gain or that of another person. Incidental use of
equipment or resources available to a public official or public
employee by virtue of his or her position for personal or business
purposes resulting in de minimis private gain does not constitute
use of public office for private gain under this subsection. The
performance of usual and customary duties associated with the
office or position or the advancement of public policy goals or
constituent services, without compensation, does not constitute the
use of prestige of office for private gain.
(2) The Legislature, in enacting this subsection, recognizes
that there may be certain public officials or public employees who
bring to their respective offices or employment their own unique
personal prestige which is based upon their intelligence,
education, experience, skills and abilities, or other personal
gifts or traits. In many cases, these persons bring a personal
prestige to their office or employment which inures to the benefit
of the state and its citizens. Those persons may, in fact, be
sought by the state to serve in their office or employment because,
through their unusual gifts or traits, they bring stature and
recognition to their office or employment and to the state itself.
While the office or employment held or to be held by those persons
may have its own inherent prestige, it would be unfair to those
individuals and against the best interests of the citizens of this
state to deny those persons the right to hold public office or to
be publicly employed on the grounds that they would, in addition to
the emoluments of their office or employment, be in a position to
benefit financially from the personal prestige which otherwise
inheres to them. Accordingly, the Commission is directed, by
legislative rule, to establish categories of public officials and
public employees, identifying them generally by the office or
employment held, and offering persons who fit within those
categories the opportunity to apply for an exemption from the
application of the provisions of this subsection. Exemptions may
be granted by the Commission, on a case-by-case basis, when it is
shown that: (A) The public office held or the public employment engaged in is not such that it would ordinarily be available or
offered to a substantial number of the citizens of this state; (B)
the office held or the employment engaged in is such that it
normally or specifically requires a person who possesses personal
prestige; and (C) the person's employment contract or letter of
appointment provides or anticipates that the person will gain
financially from activities which are not a part of his or her
office or employment.
(c) Gifts. -- (1) A public official or public employee may not
solicit any gift unless the solicitation is for a charitable
purpose with no resulting direct pecuniary benefit conferred upon
the official or employee or his or her immediate family: Provided,
That no public official or public employee may solicit for a
charitable purpose any gift from any person who is also an official
or employee of the state and whose position is subordinate to the
soliciting official or employee: Provided, however, That nothing
herein shall prohibit a candidate for public office from soliciting
a lawful political contribution. No official or employee may
knowingly accept any gift, directly or indirectly, from a lobbyist
or from any person whom the official or employee knows or has
reason to know:
(A) Is doing or seeking to do business of any kind with his or
her agency;
(B) Is engaged in activities which are regulated or controlled
by his or her agency; or
(C) Has financial interests which may be substantially and materially affected, in a manner distinguishable from the public
generally, by the performance or nonperformance of his or her
official duties.
(2) Notwithstanding the provisions of subdivision (1) of this
subsection, a person who is a public official or public employee
may accept a gift described in this subdivision, and there shall be
a presumption that the receipt of such gift does not impair the
impartiality and independent judgment of the person. This
presumption may be rebutted only by direct objective evidence that
the gift did impair the impartiality and independent judgment of
the person or that the person knew or had reason to know that the
gift was offered with the intent to impair his or her impartiality
and independent judgment. The provisions of subdivision (1) of
this subsection do not apply to:
(A) Meals and beverages: Provided, That notwithstanding any
provision of this chapter to the contrary, a legislator may not
attend, during the period of any regular or extraordinary session,
any event where food or beverages are offered at no cost which is
sponsored by any person attempting to influence legislation;
(B) Ceremonial gifts or awards which have insignificant
monetary value;
(C) Unsolicited gifts of nominal value or trivial items of
informational value;
(D) Reasonable expenses for food, travel and lodging of the
official or employee for a meeting at which the official or
employee participates in a panel or has a speaking engagement;
(E) Gifts of tickets or free admission extended to a public
official or public employee to attend charitable, cultural or
political events, if the purpose of such gift or admission is a
courtesy or ceremony customarily extended to the office;
(F) Gifts that are purely private and personal in nature; or
(G) Gifts from relatives by blood or marriage, or a member of
the same household.
(3) The Commission shall, through legislative rule promulgated
pursuant to chapter twenty-nine-a of this code, establish
guidelines for the acceptance of a reasonable honorarium by public
officials and elected officials. The rule promulgated shall be
consistent with this section. Any elected public official may
accept an honorarium only when: (1) That official is a part-time
elected public official; (2) the fee is not related to the
official's public position or duties; (3) the fee is for services
provided by the public official that are related to the public
official's regular, nonpublic trade, profession, occupation, hobby
or avocation; and (4) the honorarium is not provided in exchange
for any promise or action on the part of the public official.
(4) Nothing in this section shall be construed so as to
prohibit the giving of a lawful political contribution as defined
by law.
(5) The Governor or his designee may, in the name of the State
of West Virginia, accept and receive gifts from any public or
private source. Any gift so obtained shall become the property of
the state and shall, within thirty days of the receipt thereof, be registered with the Commission and the Division of Culture and
History.
(6) Upon prior approval of the Joint Committee on Government
and Finance, any member of the Legislature may solicit donations
for a regional or national legislative organization conference or
other legislative organization function to be held in the state for
the purpose of deferring costs to the state for hosting of the
conference or function. Legislative organizations are bipartisan
regional or national organizations in which the Joint Committee on
Government and Finance authorizes payment of dues or other
membership fees for the Legislature's participation and which
assist this and other state legislatures and their staff through
any of the following:
(i) Advancing the effectiveness, independence and integrity of
legislatures in the states of the United States;
(ii) Fostering interstate cooperation and facilitating
information exchange among state legislatures;
(iii) Representing the states and their legislatures in the
American federal system of government;
(iv) Improving the operations and management of state
legislatures and the effectiveness of legislators and legislative
staff, and to encourage the practice of high standards of conduct
by legislators and legislative staff;
(v) Promoting cooperation between state legislatures in the
United States and legislatures in other countries.
The solicitations may only be made in writing. The legislative organization may act as fiscal agent for the conference
and receive all donations. In the alternative, a bona fide banking
institution may act as the fiscal agent. The official letterhead
of the Legislature may not be used by the legislative member in
conjunction with the fund-raising or solicitation effort. The
legislative organization for which solicitations are being made
shall file with the Joint Committee on Government and Finance and
with the Secretary of State for publication in the State Register
as provided in article two, chapter twenty-nine-a of this 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,
chapter twenty-nine-a of this code and with the Commission copies
of letters, brochures and other solicitation documents, along with
a complete list of the names and last known addresses of all donors
and the amount of donations received. Any solicitation by a member
of the Board of Public Works shall contain the following
disclaimer: "This solicitation is endorsed by (name of member of
Board of Public Works). This endorsement does not imply support of
the soliciting organization, nor of the sponsors who may respond to
the solicitation. Copies of all solicitations are on file with the
West Virginia Legislature's Joint Committee on Government and
Finance, with the West Virginia Secretary of State and with the
West Virginia Ethics Commission and are available for public
review." Any moneys in excess of those donations needed for the
conference or function shall be deposited in the Capitol Dome and
Capitol Improvement Fund established in section two, article four,
chapter five-a of this code.
(d) Interests in public contracts. -- (1) In addition to the
provisions of section fifteen, article ten, chapter sixty-one of
this code, no elected or appointed public official or public employee or member of his or her immediate family or business with
which he or she is associated may be a party to or have an interest
in the profits or benefits of a contract which the official or
employee may have direct authority to enter into, or over which he
or she may have control: Provided, That nothing herein shall be
construed to prevent or make unlawful the employment of any person
with any governmental body: Provided, however, That nothing herein
shall be construed to prohibit a member of the Legislature from
entering into a contract with any governmental body or prohibit a
part-time appointed public official from entering into a contract
which the part-time appointed public official may have direct
authority to enter into or over which he or she may have control
when the official has not participated in the review or evaluation
thereof, has been recused from deciding or evaluating and has been
excused from voting on the contract and has fully disclosed the
extent of his or her interest in the contract.
(2) In the absence of bribery or a purpose to defraud, an
elected or appointed public official or public employee or a member
of his or her immediate family or a business with which he or she
is associated shall not be considered as having an interest in a
public contract when such a person has a limited interest as an
owner, shareholder or creditor of the business which is the
contractor on the public contract involved. A limited interest for
the purposes of this subsection is:
(A) An interest:
(i) Not exceeding ten percent of the partnership or the outstanding shares of a corporation; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract; or
(B) An interest as a creditor:
(i) Not exceeding ten percent of the total indebtedness of a
business; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract.
(3) Where the provisions of subdivisions (1) and (2) of this
subsection would result in the loss of a quorum in a public body or
agency, in excessive cost, undue hardship or other substantial
interference with the operation of a state, county, municipality,
county school board or other governmental agency, the affected
governmental body or agency may make written application to the
Ethics Commission for an exemption from subdivisions (1) and (2) of
this subsection.
(e) Confidential information. -- No present or former public
official or employee may knowingly and improperly disclose any
confidential information acquired by him or her in the course of
his or her official duties nor use such information to further his
or her personal interests or the interests of another person.
(f) Prohibited representation. -- No present or former elected
or appointed public official or public employee shall, during or
after his or her public employment or service, represent a client
or act in a representative capacity with or without compensation on
behalf of any person in a contested case, rate-making proceeding, license or permit application, regulation filing or other
particular matter involving a specific party or parties which arose
during his or her period of public service or employment and in
which he or she personally and substantially participated in a
decision-making, advisory or staff support capacity, unless the
appropriate government agency, after consultation, consents to such
representation. A staff attorney, accountant or other professional
employee who has represented a government agency in a particular
matter shall not thereafter represent another client in the same or
substantially related matter in which that client's interests are
materially adverse to the interests of the government agency,
without the consent of the government agency: Provided, That this
prohibition on representation shall not apply when the client was
not directly involved in the particular matter in which the
professional employee represented the government agency, but was
involved only as a member of a class. The provisions of this
subsection shall not apply to legislators who were in office and
legislative staff who were employed at the time it originally
became effective on the first day of July, one thousand nine
hundred eighty-nine, and those who have since become legislators or
legislative staff and those who shall serve hereafter as
legislators or legislative staff.
(g) Limitation on practice before a board, agency, commission
or department. -- (1) No elected or appointed public official and
no full-time staff attorney or accountant shall, during his or her
public service or public employment or for a period of one year after the termination of his or her public service or public
employment with a governmental entity authorized to hear contested
cases or promulgate or propose rules, appear in a representative
capacity before the governmental entity in which he or she serves
or served or is or was employed in the following matters:
(A) A contested case involving an administrative sanction,
action or refusal to act;
(B) To support or oppose a proposed rule;
(C) To support or contest the issuance or denial of a license
or permit;
(D) A rate-making proceeding; and
(E) To influence the expenditure of public funds.
(2) As used in this subsection, "represent" includes any
formal or informal appearance before, or any written or oral
communication with, any public agency on behalf of any person:
Provided, That nothing contained in this subsection shall prohibit,
during any period, a former public official or employee from being
retained by or employed to represent, assist or act in a
representative capacity on behalf of the public agency by which he
or she was employed or in which he or she served. Nothing in this
subsection shall be construed to prevent a former public official
or employee from representing another state, county, municipal or
other governmental entity before the governmental entity in which
he or she served or was employed within one year after the
termination of his or her employment or service in the entity.
(3) A present or former public official or employee may appear at any time in a representative capacity before the Legislature, a
county commission, city or town council or county school board in
relation to the consideration of a statute, budget, ordinance,
rule, resolution or enactment.
(4) Members and former members of the Legislature and
professional employees and former professional employees of the
Legislature shall be permitted to appear in a representative
capacity on behalf of clients before any governmental agency of the
state or of county or municipal governments, including county
school boards.
(5) An elected or appointed public official, full-time staff
attorney or accountant who would be adversely affected by the
provisions of this subsection may apply to the Ethics Commission
for an exemption from the six months' prohibition against appearing
in a representative capacity when the person's education and
experience is such that the prohibition would, for all practical
purposes, deprive the person of the ability to earn a livelihood in
this state outside of the governmental agency. The Ethics
Commission shall by legislative rule establish general guidelines
or standards for granting an exemption or reducing the time period,
but shall decide each application on a case-by-case basis.
(h) Employment by regulated persons. -- (1) No full-time
official or full-time public employee may seek employment with, be
employed by or seek to purchase, sell or lease real or personal
property to or from any person who:
(A) Had a matter on which he or she took, or a subordinate is known to have taken, regulatory action within the preceding twelve
months; or
(B) Has a matter before the agency to which he or she is
working or a subordinate is known by him or her to be working.
(2) Within the meaning of this section, the term "employment"
includes professional services and other services rendered by the
public official or public employee, whether rendered as employee or
as an independent contractor; "seek employment" includes responding
to unsolicited offers of employment as well as any direct or
indirect contact with a potential employer relating to the
availability or conditions of employment in furtherance of
obtaining employment; and "subordinate" includes only those agency
personnel over whom the public official or public employee has
supervisory responsibility.
(3) A full-time public official or full-time public employee
who would be adversely affected by the provisions of this
subsection may apply to the Ethics Commission for an exemption from
the prohibition contained in subdivision (1) of this subsection.
The Ethics Commission shall by legislative rule establish general
guidelines or standards for granting an exemption, but shall decide
each application on a case-by-case basis.
(4) A full-time public official or full-time public employee
may not take personal regulatory action on a matter affecting a
person by whom he or she is employed or with whom he or she is
seeking employment or has an agreement concerning future
employment.
(5) A full-time public official or full-time public employee
may not receive private compensation for providing information or
services that he or she is required to provide in carrying out his
or her public job responsibilities.
(i) Members of the Legislature required to vote. -- Members of
the Legislature who have asked to be excused from voting or who
have made inquiry as to whether they should be excused from voting
on a particular matter and who are required by the presiding
officer of the House of Delegates or Senate of West Virginia to
vote under the rules of the particular house shall not be guilty of
any violation of ethics under the provisions of this section for a
vote so cast.
(j) Limitations on participation in licensing and rate-making
proceedings. -- No public official or employee may participate
within the scope of his or her duties as a public official or
employee, except through ministerial functions as defined in
section three, article one of this chapter, in any license or
rate-making proceeding that directly affects the license or rates
of any person, partnership, trust, business trust, corporation or
association in which the public official or employee or his or her
immediate family owns or controls more than ten percent. No public
official or public employee may participate within the scope of his
or her duties as a public official or public employee, except
through ministerial functions as defined in section three, article
one of this chapter, in any license or rate-making proceeding that
directly affects the license or rates of any person to whom the public official or public employee or his or her immediate family,
or a partnership, trust, business trust, corporation or association
of which the public official or employee, or his or her immediate
family, owns or controls more than ten percent, has sold goods or
services totaling more than one thousand dollars during the
preceding year, unless the public official or public employee has
filed a written statement acknowledging such sale with the public
agency and the statement is entered in any public record of the
agency's proceedings. This subsection shall not be construed to
require the disclosure of clients of attorneys or of patients or
clients of persons licensed pursuant to article three, eight,
fourteen, fourteen-a, fifteen, sixteen, twenty, twenty-one or
thirty-one, chapter thirty of this code.
(k) Certain compensation prohibited. -- (1) A public employee
may not receive additional compensation from another publicly
funded state, county or municipal office or employment for working
the same hours unless:
(A) The public employee's compensation from one public
employer is reduced by the amount of compensation received from the
other public employer;
(B) The public employee's compensation from one public
employer is reduced on a pro rata basis for any work time missed to
perform duties for the other public employer;
(C) The public employee uses earned paid vacation, personal or
compensatory time or takes unpaid leave from his or her public
employment to perform the duties of another public office or employment; or
(D) A part-time public employee who does not have regularly
scheduled work hours or a public employee who is authorized by one
public employer to make up, outside of regularly scheduled work
hours, time missed to perform the duties of another public office
or employment maintains time records, verified by the public
employee and his or her immediate supervisor at least once every
pay period, showing the hours that the public employee did, in
fact, work for each public employer. The public employer shall
submit these time records to the Ethics Commission on a quarterly
basis.
(2) This section does not prohibit a retired public official
or public employee from receiving compensation from a publicly
funded office or employment in addition to any retirement benefits
to which the retired public official or public employee is
entitled.
(l)Certain expenses prohibited. -- No public official or
public employee shall knowingly request or accept from any
governmental entity compensation or reimbursement for any expenses
actually paid by a lobbyist and required by the provisions of this
chapter to be reported, or actually paid by any other person.
(m) Any person who is employed as a member of the faculty or
staff of a public institution of higher education and who is
engaged in teaching, research, consulting or publication activities
in his or her field of expertise with public or private entities
and thereby derives private benefits from such activities shall be exempt from the prohibitions contained in subsections (b), (c) and
(d) of this section when the activity is approved as a part of an
employment contract with the governing board of the institution or
has been approved by the employee's department supervisor or the
president of the institution by which the faculty or staff member
is employed.
(n) Except as provided in this section, a person who is a
public official or public employee may not solicit private business
from a subordinate public official or public employee whom he or
she has the authority to direct, supervise or control. A person
who is a public official or public employee may solicit private
business from a subordinate public official or public employee whom
he or she has the authority to direct, supervise or control when:
(A) The solicitation is a general solicitation directed to the
public at large through the mailing or other means of distribution
of a letter, pamphlet, handbill, circular or other written or
printed media; or
(B) The solicitation is limited to the posting of a notice in
a communal work area; or
(C) The solicitation is for the sale of property of a kind
that the person is not regularly engaged in selling; or
(D) The solicitation is made at the location of a private
business owned or operated by the person to which the subordinate
public official or public employee has come on his or her own
initiative.
(o) The Commission may, by legislative rule promulgated in accordance with chapter twenty-nine-a of this code, define further
exemptions from this section as necessary or appropriate.
The question being on the adoption of Senator Deem's amendment
to the bill (S. B. No. 153), and on this question, Senator Deem
demanded the yeas and nays.
The roll being taken, the yeas were: Boley, Deem, Guills,
Harrison, Helmick, Hunter, Prezioso, Sprouse, Unger and Weeks--10.
The nays were: Bailey, Barnes, Bowman, Caruth, Chafin,
Dempsey, Edgell, Facemyer, Fanning, Foster, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Sharpe, White and Tomblin (Mr. President)--23.
Absent: Yoder--1.
So, a majority of those present and voting not having voted in
the affirmative, the President declared Senator Deem's amendment to
the bill (S. B. No. 153) rejected.
The bill was ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter,
Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear,
Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White
and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Yoder--1.
Engrossed Senate Bill No. 153 was then read a third time and
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins,
Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Yoder--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 153) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Yoder--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 153) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the eleventh order of business and the
introduction of guests.
On motion of Senator Chafin, a leave of absence for the day
was granted Senator Yoder.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Friday, February 18, 2005, at 11 a.m.
____________