H. B. 4042
(By Delegates Armstead, Ellem, Lane, Overington, Schadler,
Hamilton, Schoen and Sobonya )
____________
[Introduced January 15, 2010; referred to the Committee on the
Judiciary.]
A BILL to amend and reenact §6B-1-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §6B-2-5 of said code;
to amend said code by adding thereto a new section, designated
§6B-2-5c; to amend and reenact §6B-2-7 of said code; to amend
said code by adding thereto a new section, designated §6B-2-
12; and to amend and reenact §6B-3-2 of said code, all
relating to the definitions relating to ethical standards for
elected and appointed officials and public employees; ethical
standards for elected and appointed officials and public
employees; payment from non-public sources; financial
disclosure statements; subterfuge to avoid compliance with
financial disclosures; and the registration of lobbyists.
Be it enacted by the Legislature of West Virginia:
That §6B-1-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §6B-2-5 of said code be amended and reenacted; that said code be amended by adding thereto a new
section, designated §6B-2-5c; that §6B-2-7 of said code be amended
and reenacted; that said code be amended by adding thereto a new
section, designated §6B-2-12; and that §6B-3-2 of said code be
amended and reenacted, all to read as follows:
ARTICLE 1. SHORT TITLE; LEGISLATIVE FINDINGS, PURPOSES AND INTENT;
CONSTRUCTION AND APPLICATION OF CHAPTER; SEVERABILITY.
§6B-1-3. Definitions.
As used in this chapter, unless the context in which used
clearly requires otherwise:
(a)
"Review Board" means the Probable Cause Review Board
created by section two-a, article two of this chapter.
"Action of a governmental entity" means any action on the part
of a governmental entity or agency thereof including, but not
limited to:
(1) Any decision, determination, finding, ruling, or order,
including the judgment or verdict of a court or a quasi-judicial
board, in which the governmental entity or any of its agencies has
an interest, except in such matters involving criminal
prosecutions;
(2) Any grant, payment, award, license, contract, transaction,
decision, sanction, or approval, or the denial thereof, or the
failure to act with respect thereto; and in which the governmental entity or any of its agencies has an interest, except in matters
involving criminal prosecutions;
(3) As the term relates to a public official or employee of
the state, any disposition of any matter by the legislature or any
committee thereof; and as the term relates to a public official or
employee of a political subdivision, any disposition of any matter
by the governing authority or any committee thereof.
(b) "Agency" means a department, office, division, agency,
commission, board, committee, or other organizational unit of a
governmental entity For purposes of this chapter, "agency of the
public official or employee" and "his agency" when used in
reference to the agency of a public official or employee shall
mean:
(1) For a public official or employees in the departments of
the executive branch of state government, the office in which such
public official or employee carries out his primary
responsibilities; except that in the case of the secretary, deputy
secretary, or undersecretary of any such department and officials
carrying out the responsibilities of such department officers it
shall mean the department in which he or she serves; and except
that in the case of public official or employees who are members or
employees of a board or commission or who provide staff assistance
to a board or commission, it shall mean the board or commission;
(2) For the Governor, it shall mean the executive branch of state government;
(3) For public officials or employees in the office of the
governor it shall mean their respective offices;
(4) For public officials or employees in the legislative
branch of state government, it shall mean the house of the
legislature by which a public employee is employed and the
legislative branch in the case of legislators;
(5) For public employees, except judges, of the supreme court,
circuit courts, family court judges, magistrates, and officers or
employees of other courts it shall mean the court in which the
public employee serves and any other court in which decisions of
that court may be reviewed;
(6) For public officials or employees of political
subdivisions, it shall mean the agency in which the public official
or employee serves, except that for members of any governing
authority and for the elected or appointed chief executive of a
governmental entity, it shall mean the governmental entity. Public
officials or employees of political subdivisions shall include, but
shall not be limited to, elected officials and public employees of
municipalities, counties and other political subdivisions; sheriffs
and their employees; prosecuting attorneys and their employees; and
county clerks and their employees;
(7) The West Virginia Ethics Commission may adopt rules and
regulations to provide for the application of this definition.
(c) "Agency head" means the chief executive or administrative
officer of an agency or any member of a board or commission who
exercises supervision over the agency.
(d) "Assist" means to act in such a way as to help, advise,
furnish information to, or aid a person with the intent to assist
such person.
(b)(e) "Business" means any entity through which business for-
profit is conducted including a corporation, partnership,
proprietorship, franchise, association, organization or self-
employed individual.
(c)(f) "Compensation" means money, thing of value or financial
benefit which is paid, loaned, granted, given, donated, or
transferred or to be paid, loaned, granted, given, donated, or
transferred for or in consideration of personal services to any
person. The term "compensation" does not include reimbursement for
actual reasonable and necessary expenses incurred in the
performance of one's official duties.
(g) "Controlling interest" means any ownership in any legal
entity or beneficial interest in a trust, held by or on behalf of
an individual or a member of his immediate family, either
individually or collectively, which exceeds twenty-five percent of
that legal entity.
(h) "Elected official" means any person holding an office in
a governmental entity which is filled by the vote of the appropriate electorate. It shall also include any person appointed
to fill a vacancy in such offices.
(d)(i) "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.
(e) (j) "Ethics Commission" or "commission" means the West
Virginia Ethics Commission.
(k) "Governmental entity" means the state or any political
subdivision which employs the public employee or employed the
former public employee or to which the elected official is elected,
as the case may be.
(f) (l) "Immediate family" as the term relates to a public
official or employee means with respect to an individual, means a
spouse with whom the individual is living as husband and wife and
any dependent child or children, dependent grandchild or
grandchildren and dependent parent or parents his or her children,
the spouses of his or her children, his or her brothers and their
spouses, his or her sisters and their spouses, his or her parents,
his or her spouse, the parents of his or her spouse, and any
dependent grandchild or grandchildren.
(m) "Legislator" means any person holding office as a member
of the Senate or the House of Delegates of the West Virginia
Legislature.
(g) (n) "Ministerial functions" means actions or functions
performed by an individual under a given state of facts in a
prescribed manner in accordance with a mandate of legal authority,
without regard to, or without the exercise of, the individual's own
judgment as to the propriety of the action being taken.
(o) "Participate" means to take part in or to have or share
responsibility for action of a governmental entity or a proceeding,
personally, as a public official or employee of the governmental
entity, through approval, disapproval, decision, recommendation,
the rendering of advice, investigation, or the failure to act or
perform a duty.
(h)(p) "Person" means an individual or legal entity other than
a governmental entity, or an agency thereof, including any
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.
(i)(q) "Political contribution" means and has the same
definition as is given that term under the provisions of article
eight, chapter three of this code.
(r) "Political subdivision" means any unit of local government, authorized by law to perform governmental functions.
(j)(s) "Public employee" means anyone, whether compensated or
not, who is a full-time or part-time employee of any state, county
or municipal governmental body or any political subdivision
thereof, including county school boards, engaged in the performance
of a governmental function including an administrative officer or
official of a governmental entity who is not filling an elective
office, persons appointed by any elected official when acting in an
official capacity, and the appointment is to a post or position
wherein the appointee is to serve the governmental entity or an
agency thereof, either as a member of an agency, or as an employee
thereof. However, "public employee" does not mean anyone whose
public service is limited to periodic duty in the National Guard
pursuant to 32 U.S.C.A. 502. A public employee shall be in such
status on days on which he performs no services as well as days on
which he performs services. The termination of any particular term
of employment of a public employee shall take effect on the day the
termination is clearly evidenced.
(k)(t) "Public official" means any person who is elected or
appointed to any state, county or municipal office or position and
who is responsible for the making of policy or takes official
action which is either ministerial or nonministerial, or both, with
respect to: (1) Contracting for, or procurement of, goods or
services; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or
auditing any person; or (5) any other activity where the official
action has an economic impact of greater than a de minimis nature
on the interest or interests of any person.
(u) "Regulatory employee" means a public employee who performs
the function of regulating, monitoring, or enforcing regulations of
any agency.
(l)(v) "Relative" means spouse, mother, father, sister,
brother, son, daughter, grandmother, grandfather, grandchild,
mother-in-law, father-in-law, sister-in-law, brother-in-law, son-
in-law or daughter-in-law.
(m)(w) "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.
(x) "Responsibility" in connection with a transaction
involving a governmental entity means the direct administration or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and either personally or through
or with others or subordinates, to effectively direct action of the
governmental entity, as the case may be, in respect to such
transaction.
(y) "Review Board" means the Probable Cause Review Board
created by section two-a, article two of this chapter.
(z) "Service" means the performance of work, duties, or responsibilities, or the leasing, rental, or sale of movable or
immovable property.
(aa) "Substantial economic interest" means an economic
interest which is of greater benefit to the public official or
employee or other person than to a general class or group of
persons, except:
(1) The interest that the public official or employee has in
his position, office, rank, salary, per diem, or other matter
arising solely from his public employment or office;
(2) The interest that an elected official who is elected to a
house, body, or authority has in a position or office of such
house, body, or authority which is required to be filled by a
member of such house, body, or authority by law, legislative rule,
or charter;
(3) The interest that a person has as a member of the general
public.
(n)(bb) "Thing of economic value", "Thing of value", "other
thing of value" or "anything of value" means and includes:
(1) Money, bank bills or notes, United States treasury notes
and other bills, bonds or notes issued by lawful authority and
intended to pass and circulate as money;
(2) Goods and chattels;
(3) Promissory notes, bills of exchange, orders, drafts,
warrants, checks, bonds given for the payment of money or the forbearance of money due or owing, including any loan, except a
bona fide loan made by a duly licensed lending institution at the
normal rate of interest;
(4) Receipts given for the payment of money or other property;
(5) Any right or chose in action;
(6) Chattels real or personal or things which savor of realty
and are, at the time taken, a part of a freehold, whether they are
of the substance or produce thereof or affixed thereto, although
there may be no interval between the severing and the taking away
thereof;
(7) Any interest in realty, including, but not limited to, fee
simple estates, life estates, estates for a term or period of time,
joint tenancies, cotenancies, tenancies in common, partial
interests, present or future interests, contingent or vested
interests, beneficial interests, leasehold interests or any other
interest or interests in realty of whatsoever nature;
(8) Any promise of employment, present or future and any
employment or other arrangement involving a right to compensation;
(9) Donation or gift;
(10) Rendering of services or the payment thereof and any
interest in a contract, merchandise, or service;
(11) Any advance or pledge;
(12) A promise of present or future interest in any business
or contract or other agreement including any option to obtain a thing of economic value, irrespective of the conditions to the
exercise of such option, including any promise or undertaking for
the present or future delivery or procurement of a thing of
economic value. In the case of an option, promise, or undertaking,
the time of receipt of the thing of economic value shall be deemed
to be, respectively, the time the right to the option becomes
fixed, regardless of the conditions to its exercise, and the time
when the promise or undertaking is made, regardless of the
conditions to its performance; and
(13) Every other thing or item, whether tangible or
intangible, having economic worth. "Thing of economic value",
"Tthing 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.
(cc) "Transaction involving the governmental entity" means any
proceeding, application, submission, request for a ruling or other
determination, contract, claim, case, or other such particular
matter which the public official or employee or former public
official or employee of the governmental entity in question knows
or should know:
(1) Is, or will be, the subject of action by the governmental
entity;
(2) Is one to which the governmental entity is or will be a
party;
(3) Is one in which the governmental entity has a direct
interest. A transaction involving the agency of a governmental
entity shall have the same meaning with respect to the agency.
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-2-5. 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) Notwithstanding the general prohibition against use of
office for private gain, public officials and public employees may
use bonus points acquired through participation in frequent
traveler programs while traveling on official government business:
Provided, That the official's or employee's participation in such
program, or acquisition of such points, does not result in
additional costs to the government.
(3) 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
directly or indirectly, any thing of economic value as a gift or gratuity from any person or from any officer, director, agent, or
employee of such person, 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;
(C) Is seeking, for compensation, to influence the passage or
defeat of legislation by the public servant's agency; or
(D) 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, so long as the total value of the
food, drink, or refreshment given to any one public official or
employee at any single event does not exceed fifty dollars;
(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:
(A) That official is a part-time elected public official;
(B) The fee is not related to the official's public position
or duties;
(C) 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
(D) 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:
(A) Advancing the effectiveness, independence and integrity of
legislatures in the states of the United States;
(B) Fostering interstate cooperation and facilitating
information exchange among state legislatures;
(C) Representing the states and their legislatures in the
American federal system of government;
(D) 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;
(E) Promoting cooperation between state legislatures in the
United States and legislatures in other countries.
The solicitations may only be made in writing. The legislative
organization may act as fiscal agent for the conference and receive
all donations. In the alternative, a bona fide banking institution
may act as the fiscal agent. The official letterhead of the
Legislature may not be used by the legislative member in
conjunction with the fund raising or solicitation effort. The
legislative organization for which solicitations are being made
shall file with the Joint Committee on Government and Finance and
with the Secretary of State for publication in the State Register
as provided in article two of chapter twenty-nine-a of the code,
copies of letters, brochures and other solicitation documents,
along with a complete list of the names and last known addresses of
all donors and the amount of donations received. Any solicitation
by a legislative member shall contain the following disclaimer:
"This solicitation is endorsed by [name of member]. This
endorsement does not imply support of the soliciting organization,
nor of the sponsors who may respond to the solicitation. A copy of
all solicitations are on file with the West Virginia Legislature's Joint Committee on Government and Finance, and with the Secretary
of State and are available for public review."
(7) Upon written notice to the commission, any member of the
Board of Public Works may solicit donations for a regional or
national organization conference or other function related to the
office of the member to be held in the state for the purpose of
deferring costs to the state for hosting of the conference or
function. The solicitations may only be made in writing. The
organization may act as fiscal agent for the conference and receive
all donations. In the alternative, a bona fide banking institution
may act as the fiscal agent. The official letterhead of the office
of the Board of Public Works member may not be used in conjunction
with the fund raising or solicitation effort. The organization for
which solicitations are being made shall file with the Joint
Committee on Government and Finance, with the Secretary of State
for publication in the State Register as provided in article two of
chapter twenty-nine-a of the code and with the commission, copies
of letters, brochures and other solicitation documents, along with
a complete list of the names and last known addresses of all donors
and the amount of donations received. Any solicitation by a member
of the Board of Public Works shall contain the following
disclaimer: "This solicitation is endorsed by (name of member of
Board of Public Works.) This endorsement does not imply support of
the soliciting organization, nor of the sponsors who may respond to the solicitation. Copies of all solicitations are on file with the
West Virginia Legislature's Joint Committee on Government and
Finance, with the West Virginia Secretary of State and with the
West Virginia Ethics Commission and are available for public
review." Any moneys in excess of those donations needed for the
conference or function shall be deposited in the Capitol Dome and
Capitol Improvement Fund established in section two, article four
of chapter five-a of this code.
(d) Interests in public contracts. --
(1) In addition to the provisions of section fifteen, article
ten, chapter sixty-one of this code, no elected or appointed public
official or public employee or member of his or her immediate
family or business with which he or she is associated may be a
party to or have an interest in the profits or benefits of a
contract which the official or employee may have direct authority
to enter into, or over which he or she may have control: Provided,
That nothing herein shall be construed to prevent or make unlawful
the employment of any person with any governmental body: Provided,
however, That nothing herein shall be construed to prohibit a
member of the Legislature from entering into a contract with any
governmental body, or prohibit a part-time appointed public
official from entering into a contract which the part-time
appointed public official may have direct authority to enter into
or over which he or she may have control when the official has not participated in the review or evaluation thereof, has been recused
from deciding or evaluating and has been excused from voting on the
contract and has fully disclosed the extent of his or her interest
in the contract.
(2) In the absence of bribery or a purpose to defraud, an
elected or appointed public official or public employee or a member
of his or her immediate family or a business with which he or she
is associated shall not be considered as having a prohibited
financial interest in a public contract when such a person has a
limited interest as an owner, shareholder or creditor of the
business which is awarded a public contract. A limited interest for
the purposes of this subsection is:
(A) An interest which does not exceed one thousand dollars in
the profits or benefits of the public contract or contracts in a
calendar year;
(B) An interest as a creditor of a public employee or official
who exercises control over the contract, or a member of his or her
immediate family, if the amount is less than five thousand dollars.
(3) If a public official or employee has an interest in the
profits or benefits of a contract, then he or she may not make,
participate in making, or in any way attempt to use his office or
employment to influence a government decision affecting his or her
financial or limited financial interest. Public officials shall also comply with the voting rules prescribed in subsection (j) of
this section.
(4) 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. -- Except as otherwise provided in section three,
four or five, article two, chapter eight-a of this code: (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; notwithstanding this provision, no
member of the Legislature,
secretary of a department, commissioner,
deputy commissioner, assistant commissioner, director, deputy
director, assistant director, department head, deputy department
head or assistant department head, nor any appointed employee of a
Constitutional Officer who holds or held an other than clerical
position 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, be allowed to
register as a lobbyist
or engage in lobbying activities for
compensation
.
(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 one year prohibition against appearing in
a representative capacity, when the person's education and
experience is such that the prohibition would, for all practical
purposes, deprive the person of the ability to earn a livelihood in
this state outside of the governmental agency. The Ethics
Commission shall by legislative rule establish general guidelines
or standards for granting an exemption or reducing the time period,
but shall decide each application on a case-by-case basis.
(h) Employment by regulated persons and vendors. -- (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 on which he or she is
working or a subordinate is known by him or her to be working.
(C) Is a vendor to the agency where the official serves or
public employee is employed and the official or public employee, or
a subordinate of the official or public employee, exercises
authority or control over a public contract with such vendor,
including, but not limited to:
(i) Drafting bid specifications or requests for proposals;
(ii) Recommending selection of the vendor;
(iii) Conducting inspections or investigations;
(iv) Approving the method or manner of payment to the vendor;
(v) Providing legal or technical guidance on the formation,
implementation or execution of the contract; or
(vi) Taking other nonministerial action which may affect the
financial interests of the vendor.
(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.
(A) 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;
(B) A person adversely affected by the restriction on the
purchase of personal property may make such purchase after seeking
and obtaining approval from the commission or in good faith
reliance upon an official guideline promulgated by the commission,
written advisory opinions issued by the commission, or a
legislative rule.
(C) The commission may establish exceptions to the personal
property purchase restrictions through the adoption of guidelines,
advisory opinions or legislative rule.
(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 personally participate in a decision, approval,
disapproval, recommendation, rendering advice, investigation,
inspection or other substantial exercise of nonministerial
administrative discretion involving a vendor with whom he or she is
seeking employment or has an agreement concerning future
employment.
(6) 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 Voting.
(1) Public officials, excluding members of the Legislature who
are governed by subsection (i) of this section, may not vote on a
matter:
(A) In which they, an immediate family member, or a business
with which they or an immediate family member is associated have a
financial interest. Business with which they are associated means
a business of which the person or an immediate family member is a
director, officer, owner, employee, compensated agent, or holder of
stock which constitutes five percent or more of the total
outstanding stocks of any class.
(B) If a public official is employed by a financial
institution and his or her primary responsibilities include
consumer and commercial lending, the public official may not vote on a matter which directly affects the financial interests of a
customer of the financial institution if the public official is
directly involved in approving a loan request from the person or
business appearing before the governmental body or if the public
official has been directly involved in approving a loan for that
person or business within the past 12 months: Provided, That this
limitation only applies if the total amount of the loan or loans
exceeds fifteen thousand dollars.
(C) A personnel matter involving the public official's spouse
or relative;
(D) The appropriations of public moneys or the awarding of a
contract to a nonprofit corporation if the public official or an
immediate family member is employed by the nonprofit.
(II) A public official may vote:
(A) If the public official, his or her spouse, immediate
family members or relatives or business with which they are
associated are affected as a member of, and to no greater extent
than any other member of a profession, occupation, class of persons
or class of businesses. A class shall consist of not fewer than
five similarly situated persons or businesses; or
(B) If the matter affects a publicly traded company when:
(i) The public official, or dependent family members
individually or jointly own less than five percent of the issued
stock in the publicly traded company and the value of the stocks individually or jointly owned is less than ten thousand dollars;
and
(ii) Prior to casting a vote the public official discloses his
or her interest in the publicly traded company.
(3) For a public official's recusal to be effective, it is
necessary to excuse him or herself from participating in the
discussion and decision-making process by physically removing him
or herself from the room during the period, fully disclosing his or
her interests, and recusing him or herself from voting on the
issue.
(k) 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.
(l) 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.
(m) 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.
(n) Any person who is employed as a member of the faculty or staff of a public institution of higher education and who is
engaged in teaching, research, consulting or publication activities
in his or her field of expertise with public or private entities
and thereby derives private benefits from such activities shall be
exempt from the prohibitions contained in subsections (b), (c) and
(d) of this section when the activity is approved as a part of an
employment contract with the governing board of 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.
(o) Except as provided in this section, a person who is a
public official or public employee may not solicit private business
from a subordinate public official or public employee whom he or
she has the authority to direct, supervise or control. A person who
is a public official or public employee may solicit private
business from a subordinate public official or public employee whom
he or she has the authority to direct, supervise or control when:
(A) The solicitation is a general solicitation directed to the
public at large through the mailing or other means of distribution
of a letter, pamphlet, handbill, circular or other written or
printed media; or
(B) The solicitation is limited to the posting of a notice in
a communal work area; or
(C) The solicitation is for the sale of property of a kind that the person is not regularly engaged in selling; or
(D) The solicitation is made at the location of a private
business owned or operated by the person to which the subordinate
public official or public employee has come on his or her own
initiative.
(p) The commission may, by legislative rule promulgated in
accordance with chapter twenty-nine-a of this code, define further
exemptions from this section as necessary or appropriate.
§6B-2-5c. Payment from nonpublic sources
(A) No public servant shall receive any thing of economic
value from a person to whom the public servant has directed
business of the governmental entity.
(B) Payments for nonpublic service.
(1) No public servant shall receive any thing of economic
value for any service, the subject matter of which:
(a) Is devoted substantially to the responsibilities,
programs, or operations of the agency of the public servant and in
which the public servant has participated; or
(b) Draws substantially upon official data or ideas which have
not become part of the body of public information.
(2) No public servant and no legal entity in which the public
servant exercises control or owns an interest in excess of twenty-
five percent, shall receive any thing of economic value for or inconsideration of services rendered, or to be rendered, to or for
any person during his public service unless such services are:
(a) Bona fide and actually performed by the public servant or
by the entity;
(b) Not within the course of his official duties;
(c) Not prohibited by applicable laws or regulations governing
nonpublic employment for such public servant; and
(d) Neither performed for nor compensated by any person from
whom such public servant would be prohibited by any article or
section of this code from receiving a gift.
(3) Notwithstanding the provisions of this subsection, an
elected official shall not be prohibited for a period of not more
than ninety days following the first day of his initial term of
office from receiving compensation from a person from whom he would
be prohibited by this code from receiving a gift for the completion
while in office of any contract or subcontract which was entered
into prior to his initial election to office, provided that such
contract or subcontract is written and includes established terms
for compensation and completion and that such contract or
subcontract shall not be renewed after his initial election.
Within thirty days of taking office, the elected official shall
file a written notice of such contract or subcontract with his
governmental entity and the Ethics Commission, setting forth the nature of the contract or subcontract, the established completion
date, and the established compensation therefore.
(C) No public servant shall receive, directly or indirectly,
any thing of economic value during the term of his public service
in consideration of personal services to be rendered to or for any
person subsequent to the term of such public service; however, a
public servant may enter into a contract for prospective employment
during the term of his public service unless otherwise prohibited
by this code.
(D) Payments for rendering assistance to certain persons:
(1) No public servant, and no legal entity of which such
public servant is an officer, director, trustee, partner, or
employee, or in which such public servant has a substantial
economic interest, shall receive or agree to receive any thing of
economic value for assisting a person in a transaction, or in an
appearance in connection with a transaction, with the agency of
such public servant;
(2) No elected official of a governmental entity shall receive
or agree to receive any thing of economic value for assisting a
person in a transaction or in an appearance in connection with a
transaction with the governmental entity or its officials or
agencies, unless he files a sworn written statement with the board
prior to or within ten days after initial assistance is rendered;
"transaction" shall not include a ministerial transaction.
"Ministerial transaction" means a transaction that involves
routine, administrative communications intended to obtain service,
information, or assistance from a public employee whose duties are
established in plain and unmistakable terms by law, rule, or
regulation;
(3) The contents of the sworn written statement required by
this subsection shall be prescribed by the Ethics Commission, and
such statement shall be a public record;
(4) The Ethics Commission shall review all sworn statements
filed in accordance with this subsection. If the Ethics Commission
determines that any such sworn statement is deficient or may
suggest a possible violation, it shall, within ten days of the
receipt of such statement, notify the elected official filing the
statement of its findings. Such notification shall be deemed
confidential and privileged and shall be made public only in
connection with a public hearing by the Ethics Commission for an
alleged violation where such would be relevant to the alleged
violation for which the elected official is being investigated.
§6B-2-7. Financial disclosure statement; contents.
The financial disclosure statement required under this article
shall, when completed and submitted, be posted to the website of
the Ethics Commission in a form accessible to the public and shall
contain the following information:
(1) (a) The name, residential and business addresses of the
person filing the statement and all names under which the person or
his or her spouse, or both, do business.
(2)(b) The name and address of each employer of the person
For each employment position held by the person filing the
statement and his or her spouse:
(1) Name of employer;
(2) Address of employer;
(3) Job Title; and,
(4) General description of job duties.
(3) (c) The name and address of each business and a brief
description of, and nature of association with and the amount of
interest in each business in which the individual or spouse is a
director, officer, owner, partner, member, or trustee, or in which
the individual or spouse, either individually or collectively in
which the person filing the statement has or had in the last year
an interest of ten thousand dollars at fair market value or five
percent ownership interest, if that interest is valued at more ten
thousand dollars or more.
(1) For purposes of this subsection, interests include but are
not limited to, an interest in:
(A) Non-publicly owned businesses;
(B) Publicly or privately traded stocks, bonds or securities,
including those held in self-administered retirement accounts;
(C) Commercial real estate.
(2) For purposes of this subsection, business interests do not
include specific holdings in mutual funds or retirement accounts if
neither the filer nor an immediate family member are able to
control the assets held in the mutual fund or retirement account.
(d) The name, address, brief description of, and nature of
association with a nonprofit organization in which the individual
or spouse is a director or officer.
(4) (e) The identification, by category, of every source of
income over one thousand dollars, including distributions from
retirement accounts, received during the preceding calendar year,
in his or her own name or by any other person for his or her use or
benefit, by the person filing the statement or his or her spouse
and a brief description of the nature of the income producing
services activities 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 a person's or spouse's business, profession or
occupation or to report any source of income listed elsewhere on
the financial disclosure statement. that business, profession or
occupation nor does this subdivision require a person filing the
statement to report the source or amount of income derived by his
or her spouse.
(5) (f) If the person, or his or her spouse, profited or
benefitted benefited in the year prior to the date of filing from
a contract for the sale of goods or services to a state, county,
municipal or other local governmental agency either directly or
through a partnership, corporation or association in which the
person or his or her spouse, owned or controlled more than ten
percent, the person or his or her spouse, shall describe the nature
of the goods or services and identify the governmental agencies
which purchased the goods or services from the person or his or her
spouse.
(6) (g) Each interest group or category listed below doing
business in this state with which the person filing the statement
or his or her spouse,, did business or furnished services and from
which the person or his or her spouse, received more than twenty
percent of his or her gross income during the preceding calendar
year. The groups or categories are electric utilities, gas
utilities, telephone utilities, water utilities, cable television
companies, interstate transportation companies, intrastate
transportation companies, oil or gas retail companies, banks,
savings and loan associations, loan or finance companies,
manufacturing companies, surface mining companies, deep mining
companies, mining equipment companies, chemical companies,
insurance companies, retail companies, beer, wine or liquor
companies or distributors, recreation related companies, timbering companies, hospitals or other health care providers, trade
associations, professional associations, associations of public
employees or public officials, counties, cities or towns, labor
organizations, waste disposal companies, wholesale companies,
groups or associations promoting gaming or lotteries, advertising
companies, media companies, race tracks, and promotional companies,
lobbying, economic development, state government, construction,
information technology, and legal service providers.
(7) (h) 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 owe on the date
of execution of this statement more, in the aggregate, than five
thousand dollars or more 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 which result
from the ordinary conduct of the person's business, profession or
occupation or of loans made by the person filing the statement to
any business in which the person has an ownership interest.
(8) (i) The names of all persons except immediate family
members, parents and grandparents residing or transacting business
in the state (other than a demand or savings account in a bank, savings and loan association, credit union or building and loan
association or other similar depository) who owes on the date of
execution of this statement more, in the aggregate, than five
thousand dollars to the person filing the statement, either in his
or her own name or to any other person for his or her use or
benefit. This subdivision does not require the disclosure of debts
owed to the person filing the statement which debts result from the
ordinary conduct of the person's business, profession or occupation
or of loans made by the person filing the statement to any business
in which the person has an ownership interest.
(9) (j) The source of each gift, including those described in
subdivision (2), subsection (c), section five of this article,
having a value of over one hundred dollars, received from a person
having a direct and immediate interest in a governmental activity
over which the person filing the statement has control, shall be
reported by the person filing the statement when such gift is given
to said person in his or her name or for his or her use or benefit
during the preceding calendar year: Provided, That, effective from
passage of the amendments to this section enacted during the First
Extraordinary Session of the Legislature in two thousand five, any
person filing a statement required to be filed pursuant to this
section on or after the first day of January, two thousand five, is
not required to report those gifts described in subdivision (2),
subsection (c), section five of this article that are otherwise required to be reported by a registered lobbyist under section
four, article three of this chapter: Provided, however, That gifts
received by will or by virtue of the laws of descent and
distribution, or received from one's spouse, child, grandchild,
parents or grandparents, or received by way of distribution from an
inter vivos or testamentary trust established by the spouse or
child, grandchild, or by an ancestor of the person filing the
statement are not required to be reported. As used in this
subdivision, any series or plurality of gifts which exceeds in the
aggregate the sum of one hundred dollars from the same source or
donor, either directly or indirectly, and in the same calendar year
shall be regarded as a single gift in excess of that aggregate
amount.
(k) The name of each for-profit business for which the person
filing the statement or his or her spouse is a member of the board
of directors or an officer and a general description of the type of
business.
(l) The name of all state boards, commissions or agencies on
which the filer's spouse serves by appointment of the Governor.
10 (m) The signature of the person filing the statement.
6B-2-12. Subterfuge to avoid compliance
(A) No public official or employee or other person shall
transfer any thing of economic value or any asset, interest, or
liability to any person or governmental entity for the purpose of circumventing any provision of this chapter, unless such transfer
is irrevocable. A transfer shall not be irrevocable if there
exists any contract, letter, counter letter, trust, note, or any
other legally enforceable agreement or authority which if exercised
or enforced would require or authorize any asset, interest, or
liability transferred by the public official or employee or other
person to revert back to such public official or employee or other
person.
(B) The terms of a confidentiality agreement entered into
between parties shall not be a transfer prohibited by this section,
provided that the confidentiality agreement is not entered into for
purposes of circumventing the provisions of this chapter.
(C) The sale of property subject to owner financing shall not
be a transfer prohibited by this section.
(D) A recorded bond for deed contract shall not be a transfer
prohibited by this section.
ARTICLE 3. LOBBYISTS.
§6B-3-2. Registration of lobbyists.
(a) Before engaging in any lobbying activity, or within thirty
days after being employed as a lobbyist, whichever occurs first, a
lobbyist shall register with the Ethics Commission by filing a
lobbyist registration statement. The registration statement shall
contain information and be in a form prescribed by the Ethics Commission by legislative rule, including, but not limited to, the
following information:
(1) The registrant's name, business address, telephone numbers
and any temporary residential and business addresses and telephone
numbers used or to be used by the registrant while lobbying during
a legislative session;
(2) The name, address and occupation or business of the
registrant's employer;
(3) A statement as to whether the registrant is employed or
retained by his or her employer solely as a lobbyist or is a
regular employee performing services for the employer which
include, but are not limited to, lobbying;
(4) A statement as to whether the registrant is employed or
retained by his or her employer under any agreement, arrangement or
understanding according to which the registrant's compensation, or
any portion of the registrant's compensation, is or will be
contingent upon the success of his or her lobbying activity;
(5) The general subject or subjects, if known, on which the
registrant will lobby or employ some other person to lobby in a
manner which requires registration under this article; and
(6) An appended written authorization from each of the
lobbyist's employers confirming the lobbyist's employment and the
subjects on which the employer is to be represented.
(b) Any lobbyist who receives or is to receive compensation
from more than one person for services as a lobbyist shall file a
separate notice of representation with respect to each person
compensating him or her for services performed as a lobbyist. When
a lobbyist whose fee for lobbying with respect to the same subject
is to be paid or contributed by more than one person, then the
lobbyist may file a single statement, in which he or she shall
detail the name, business address and occupation of each person
paying or contributing to the fee.
(c) Whenever a change, modification or termination of the
lobbyist's employment occurs, the lobbyist shall, within one week
of the change, modification or termination, furnish full
information regarding the change, modification or termination by
filing with the Commission an amended registration statement.
(d) Each lobbyist who has registered shall file a new
registration statement, revised as appropriate, on the Monday
preceding the second Wednesday in January of each odd-numbered year
and failure to do so terminates his or her 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.
(e) No member of the legislature,
secretary of a department,
commissioner, deputy commissioner, assistant commissioner,
director, deputy director, assistant director, department head, deputy department head or assistant department head, nor any
appointed employee of a Constitutional Officer who holds or held
an other than clerical position 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, be
allowed to register as a lobbyist or engage in lobbying activities
for compensation.
NOTE: The purpose of this bill is to allow for improvements to
the current Ethics framework by clarifying defined terms, removing
exemptions from ethical restrictions for public employees, adding
new language controlling payments from non-public sources, adding
additional financial disclosure requirements, adding language to
prevent subterfuge in financial disclosures and adding new
requirements for public officials registering as lobbyists.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.