article 9B. open governmental finances

§6-9B-1. Legislative findings.

(a) The Legislature finds that taxpayers should be able to easily access the details of how the state is spending their tax dollars and what performance results are achieved for those expenditures. It is the intent of the Legislature, therefore, to direct the State Auditor to create and maintain a searchable financial transparency website detailing where, how much, and for what purpose taxpayer monies in state government are expended.

(b) It is also the intent of the Legislature that the searchable website be made compatible for future inclusion of counties or municipalities that desire to have their own searchable financial transparency website.

§6-9B-2. Definitions.

For the purpose of this article:

(a) “Auditor” means the State Auditor of West Virginia, by himself or herself, or by any person appointed, designated or approved by the State Auditor to perform the service.

(b) "Funding action or expenditure" includes details on the type of spending (grant, contract, appropriations, etc.). This includes, but is not limited to, tax exemptions, tax credits or any expenditure from any civil contingency or similar fund. Where possible, a hyperlink to the actual grants or contracts shall be provided.

(d) "Governmental Agency" means a state department, office, board, commission, bureau, division, institution or institution of higher education under the direction and control of the Executive Branch, Legislative Branch or Judicial Branch of state government. This includes individual state agencies and programs, elected offices, as well as those programs and activities that cross agency lines.

(e) "Recipients" means any individual, person, corporation, association, union, limited liability corporation, limited liability partnership, legal business entity including nonprofit organizations, grantee, contractor or any county, municipal or other local government entity.

(f) "Searchable financial transparency website" means a website that allows the public at no cost to search and aggregate information regarding the state's budget and spending.

§6-9B-3. Searchable financial transparency website created.

(a) The Auditor shall include as part of the searchable financial transparency website the following content:

(1) The name and the address, principal location or residence of the recipients of funds;

(2) The amount of funds expended;

(3) The funding or expending governmental agency;

(4) The funding source of the revenue expended;

(5) The budget program or activity of the expenditure; and

(6) Information as to the funding action or expenditure.

(b) The searchable financial transparency website shall be updated as new data becomes available. All governmental agencies shall provide to the Auditor, in a format specified by the Auditor, all data that is required to be included in the searchable financial database website no later than thirty days after the data becomes available to the agency. The Auditor shall provide guidance and specifications to governmental agency heads to ensure compliance with this section.

(c) The Auditor shall make publicly known those governmental agencies that have failed to comply with the requirements of this article.

CHAPTER 12. PUBLIC MONEYS AND SECURITIES.

§12-4A-1. Legislative findings.

(a) The Legislature finds that there is no centralized state authority responsible for receiving and referring reports of possible fraud, misappropriation of, mismanagement or waste of ~~state~~ public funds. It is the intent of the Legislature to see that all ~~state~~ public funds are utilized for the maximum benefit of the people of the State of West Virginia. The Legislature finds that it is important to provide the people of this state with both a forum and an opportunity to report suspected fraud, waste or abuse of ~~state~~ public funds, and to have those reports properly investigated.

(b) The Legislature finds that there is a need to assist county prosecutors and law enforcement in the investigation of possible fraud, misappropriation, mismanagement or waste of public funds which often require extensive document collection and review, as well as the retention of forensic accountants and other experts.

§12-4A-2. General purpose.

§12-4A-2a. Definitions.

As used in this article,

(a) “Anonymously” means (1) an unknown source making a report of possible fraud, misappropriation, mismanagement or waste of public funds; or (2) a known individual who, at the time of the report, has intentionally designated and indicated an intent to remain anonymous a report of possible fraud, misappropriation of, mismanagement or waste of public funds. If anonymity is pursuant to §12-4A-2a(a)(2) , the Auditor shall not, after receipt of the report, disclose the identity of the reporting individual without the consent of the individual, unless the Auditor determines such disclosure is unavoidable during the course of the investigation.

(b) “Auditor” or “State Auditor” means the State Auditor of West Virginia, by himself or herself, or by any person appointed, designated or approved by the State Auditor to perform the service.

(c) “Confidential” means the investigations conducted by Auditor and the materials placed in the files of the Auditor as a result of any such investigation shall be confidential by law and privileged, shall not be open to public inspection, and exempt from the provisions of §29B-1-1 et seq. of this code. The Auditor may use the documents, materials or other information in the furtherance of any audit, report, or legal action brought as a part of the Auditor's official duties. The Auditor may also use the documents, materials or other information if they are required for evidence in criminal proceedings or other action by the state or federal government and in such context may be discoverable as ordered by a court of competent jurisdiction exercising its discretion.

(d) “Modes of communication” means a manner of communication free of cost to the user including but not limited to, telephone hotline, electronic mail, or social media.

(e) “Political Subdivision” means and includes a county, municipality or any agency, authority, board, county board of education, commission, instrumentality or subunit of a county or municipality.

(f) “Public Funds” means moneys, funds or assets, of any character, including federal moneys, belonging to or in the custody of the state, a state governmental office, a political subdivision, or any spending unit thereof.

(g) “Staff” means individuals employed or contracted by the State Auditor to perform or assist an investigation. All staff retained by the State Auditor shall maintain identification and credentials signifying their retention by the State Auditor, and display such identification if upon request.

(g) “State governmental office” means a state department, office, board, commission, bureau, division, institution or institution of higher education under the direction and organization of the Executive Branch, Legislative Branch or Judicial Branch of state government. This includes individual state agencies and programs, elected offices, as well as those programs and activities that cross agency lines.

§12-4A-3. Duties generally.

(a) The State Auditor may employ staff, including specifically a certified fraud examiner or ~~a forensic~~ a certified public accountant specializing in fraud and forensics, to receive and ~~review~~ investigate reports of suspected fraud, misappropriation, mismanagement or waste of ~~state~~ public funds which shall be filed in that office. Such reports and investigations shall be confidential, except that the State Auditor or his or her designee may supply information necessary to effectuate this article ~~to the appropriate governmental entities~~.

(b) The State Auditor shall establish modes of communication sufficient to receive reports of suspected fraud, misappropriation of, mismanagement or waste of ~~state~~ public funds. Reports of suspected fraud, misappropriation, mismanagement or waste may be filed by any citizen or employee of the State of West Virginia. The Auditor shall make available an option for making a report under this article anonymously.

(c) Nothing in this article shall be construed to limit the authority of any other governmental entity to conduct an internal investigation of suspected fraud, misappropriation, mismanagement or waste.

§12-4A-4. ~~Enforcement~~ Investigative powers.

(a) The authority to enforce the provisions of this article shall be vested in the State Auditor.

(b) Upon receipt of a report of possible fraud, misappropriation, mismanagement or waste of public monies, the State Auditor may examine into the financial affairs of a state governmental office or political subdivision and all boards, commissions, authorities, agencies or other offices created under authority thereof, as deemed necessary to make a complete investigation.

(c) The State Auditor is authorized to issue subpoenas and subpoenas duces tecum, administer oaths, examine persons under oath, and compel the attendance of witnesses and the production of books and papers at any designated time and place, selected in their respective county.

(d) The State Auditor may interview witnesses and require production from state governmental offices or political subdivisions of books, records, documents, papers, computers, laptops, computer hard drives, electronic records including, but not limited to, emails, electronic files, electronic documents and metadata, or any other thing, in any form in which it may exist, as the State Auditor believes should be examined to make a complete investigation: Provided, That a request for production directed to a state governmental office or political subdivision may be in the form of a written letter from the State Auditor in lieu of a subpoena.

(e) The State Auditor may assist the West Virginia Legislature’s Commission on Special Investigations, county prosecutors, United States Attorneys, and state and federal law-enforcement agencies, including municipal police departments and county sheriff departments, in the investigation and prosecution of crimes related to fraud, misappropriation, mismanagement or waste of public funds.

(f) The State Auditor’s office shall be deemed a criminal justice agency enabling the Auditor and those employees assisting in an investigation to be able to provide and receive information with other criminal justice agencies.

(g) The State Auditor may share otherwise confidential documents, materials or information with appropriate governmental entities and agencies in furtherance of an investigation: Provided, That the recipient agrees to maintain the confidentiality and privileged status of the document, material or information.

(h) Upon completion of an investigation in which evidence exists of potential criminal violations, ~~The~~ the State Auditor shall promptly forward a summary report and any such evidence ~~of suspected fraud, misappropriation of, mismanagement or waste of state funds to the commission on special investigations and, if potentially criminal in nature,~~ to the prosecuting attorney of the county in which such criminal violation is alleged to have taken place, or, if appropriate, to the law-enforcement agency or prosecutor with jurisdiction over the potential criminal violation. ~~in the area as well as to the commission on special investigations.~~

~~(b)~~ (i) If such reports are made about an agency that has its own investigative body, then the State Auditor may refer evidence of the fraud, misappropriation, mismanagement or waste to that investigative body.

(j) Nothing in this article shall be construed to:

(1) Preempt the authority or relieve the duty of other law-enforcement or regulatory agencies to investigate, examine and prosecute suspected violations of law or pursue civil remedies;

(2) Prevent or prohibit a person from disclosing voluntarily information concerning possible fraud, misappropriation, mismanagement or waste of public funds to a law-enforcement or regulatory agency other than the State Auditor; or

(3) Limit the powers granted elsewhere by the laws of this state to the State Auditor or his or her agents to investigate and examine possible violations of law.

§12-4A-5. Tracking and Reporting.

(a) Beginning July 1, 2018, the State Auditor shall track and compile all instances of possible fraud, misappropriation, mismanagement or waste of public funds reported to the Auditor’s office.

(b) On or before the first day of February of each year, the State Auditor shall publish a report detailing the compiled instances tracked in §12-4A-5(a) for the prior calendar year. The report does not have to identify the alleged subject of each report, but shall provide the following numerical data:

(1) The number of reports made to the State Auditor;

(2) The type of alleged misconduct;

(3) Whether an investigation was undertaken;

(4) The alleged amount of public funds involved;

(5) The type of governmental office or entity that is the subject of the reported misconduct; and

(6) The disposition of the reports.

(c) On or before the first day of February of each year, the State Auditor shall provide an annual report to the Legislature’s Commission on Special Investigations disclosing the nature and disposition of completed investigated reports received pursuant to this article and referred to a prosecutor’s office or other entity.

(d) At the conclusion of an investigation, the State Auditor, at his or her discretion, may issue and make public an audit, special report or fraud report detailing the nature of an investigation and any findings or recommendations made as a part of the investigation. If such an investigation is made public, the Auditor shall make publically available material and information specifically referenced in the released report: Provided, That the Auditor may redact from public disclosure information to protect the privacy of any individual or entity; Provided, however, That the Auditor may forgo release of information deemed potentially detrimental to, or the subject of, a criminal prosecution.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

§61-3-20. Embezzlement.

(a) If any officer, agent, clerk or servant of this state, or of any county, district, school district or municipal corporation, or of any banking institution, or other corporation, or any officer of public trust in this state, or any agent, clerk or servant of any firm or person, or company or association of persons not incorporated, embezzles or fraudulently converts to his or her own use, bullion, money, bank notes, drafts, security for money, or any effects or property of any other person, which shall have come into his or her possession, or been placed under his or her care or management, by virtue of his or her office, place or employment, he or she shall be guilty of the larceny thereof. If such guilty person be an officer, agent, clerk or servant of any banking institution, he or she shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary not less than ten years. And it shall not be necessary to describe in the indictment, or to identify upon the trial, the particular bullion, money, bank note, draft or security for money which is so taken, converted to his or her own use or embezzled by him or her.

(b) And whenever any officer, agent, clerk or servant of this state, or of any county, district, school district or municipal corporation, shall appropriate or use for his or her own benefit, or for the benefit of any other person, any bullion, money, bank notes, drafts, security for money or funds belonging to this state or to any such county, district, school district or municipal corporation, he or she shall be held to have embezzled the same and be guilty of the larceny thereof. In the prosecution of any such officer, agent, clerk or servant of this state or of any county, district, school district or municipal corporation charged with appropriation or use for his or her own benefit or the benefit of any other person, any bullion, money, bank notes, drafts, security for money or funds belonging to this state or to any county, district, school district or municipal corporation, it shall not be necessary to describe in the indictment, or to identify upon the trial, the particular bullion, money, bank notes, drafts, security for money or funds appropriated or used for his or her own benefit or for the benefit of any other person.

(c) Each act of embezzlement or conversion may be charged and treated as a separate offense: Provided, That In determining the value of the bullion, money, bank notes, drafts, security for money, or any effects or property referred to in this section, it shall be permissible to cumulate amounts or values where such money, goods, or property were obtained as part of a common scheme or plan.

(d) In addition to the penalties and fines assessed by a Court upon conviction, the Court may, upon request of the prosecuting attorney, order restitution be made to the investigating entity to cover expenses associated with the retention of experts or additional investigative staff that were necessary to assist in the accounting of monies or property involved in the crime: Provided, That any such award of restitution for the time and amount of work performed be reasonable and appropriate in comparison to the underlying conviction: Provided, however, That the court may subordinate this restitution to other restitution claims.

§61-3-20b. Improper receipt of public funds.

(a) If any person receives from another person, or aid in concealing, any public funds in which he or she knows or has reason to believe has been stolen, misappropriated or embezzled, he or she shall be deemed guilty of the larceny thereof, and may be prosecuted although the principal offender be not convicted.

(b) For purposes of §61-3-20b(a) of this code:

(1) “Embezzled” means a violation of §61-3-20 of this code;

(2) “Political Subdivision” means and includes a county, municipality or any agency, authority, board, county board of education, commission, instrumentality or subunit of a county or municipality.

(3) “Public Funds” means moneys, funds or assets, of any character, including federal moneys, belonging to or in the custody of the state, a state governmental office, a political subdivision, or any spending unit thereof.

(4) “State governmental office” means a state department, office, board, commission, bureau, division, institution or institution of higher education under the direction and organization of the Executive Branch, Legislative Branch or Judicial Branch of state government. This includes individual state agencies and programs, elected offices, as well as those programs and activities that cross agency lines.

§61-3-22. Falsifying accounts and financial condition; penalty.

If any officer, clerk or agent of this state, or of any county, district, school district or municipal corporation thereof, or of any banking institution or incorporated company, or any clerk or agent of any firm or person or association of persons not incorporated, : (1) make, alter or omit to make any entry in any book of account of, or in any account kept by such state, county, district, school district, municipal corporation, banking institution, incorporated company, firm or person, or association of persons~~, or~~ ; (2) mutilate, destroy or conceal any such account or book of accounts, ; or (3) make a false statement in writing, with the intent that it shall be relied upon, respecting the financial condition of such state, county, district, school district, municipal corporation, banking institution, incorporated company, firm or person, or association of persons, ; with intent in so doing to conceal, the true state of any account, or to defraud the state or any county, district, school district, municipal corporation, banking institution, company, firm or person, or with intent to enable or assist any person to obtain money to which he or she was not entitled, such officer, clerk or agent shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one nor more than ten year.