HB4473 S JUD AM #1
Canterbury 7892
The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
ARTICLE 2B. LIMITATIONS ON A PUBLIC OFFICIAL FROM USING HIS OR HER NAME OR LIKENESS.
§6B-2B-1. Definitions.
As used in this article:
(a) “Advertising” means
publishing, distributing, disseminating, communicating, or displaying
information to the general public through audio, visual, or other media
tools with the purpose of promoting the public
official or a political party. It includes “Advertising” may
include, but is not limited to, billboard, radio, television, mail,
electronic mail, publications, banners, table skirts, magazines, social media,
websites, and other forms of publication, dissemination, display, or
communication.
(b) “Agent” means any volunteer or employee, contractual or permanent, serving at the discretion of a public official or public employee.
(c) “Educational materials” means publications, guides, calendars, handouts, pamphlets, reports, or booklets intended to provide information about the public official or governmental office. It includes information or details about the office, services the office provides to the public, updates on laws and services, and other informational items that are intended to educate the public.
(d) “Instructional material” means written instructions explaining or detailing steps for completion of a governmental agency document or form.
(e) “Likeness” means a photograph, drawing, or other depiction of an individual.
(f) “Mass media communication” means communication through audio, visual, or other media tools, including U.S. mail, electronic mail, and social media, intended for general dissemination to the public. Examples include mass mailing by U.S. mail, list-serve emails and streaming clips on websites. It does not include: (i) Regular responses to constituent requests or questions during the normal course of business; or (ii) communications that are authorized or required by law to be publicly disseminated, such as legal notices.
(g) “Press release” means a written, audio, or video communication issued by an official or agency to members and organizations of the news media to report specific but brief information about an event, circumstance, or other happening.
(g) (h) “Public employee” means any full-time or
part-time employee of any state, or political subdivision of the state, and
their respective boards, agencies, departments, and commissions, or in any
other regional or local governmental agency.
(h) (i) “Public official” means any person who is elected
or appointed to any state, county, or municipal office or position, including
boards, agencies, departments, and commissions, or in any other regional or
local governmental agency.
(i) (j) “Public payroll” means payment of public
moneys as a wage or salary from the state, or political subdivision of the
state, or any other regional or local governmental agency, whether accepted or
not.
(j) (k) “Social media” means forms of electronic
communication through which users create online communities to share
information, ideas, personal messages, and other content. It includes web and
mobile-based technologies which are used to turn communication to interactive
dialogue among organizations, communities, and individuals. Examples include,
but are not limited to, Facebook, Myspace, Twitter, and YouTube.
(k) (l) “Trinkets” means items of tangible
personal property that are not vital or necessary to the duties of the public
official's or public employee's office, including, but not limited to, the
following: magnets, mugs, cups, key chains, pill holders, band-aid dispensers,
fans, nail files, matches, and bags.
§6B-2B-2. Limitations on a public official from using his or her name or likeness.
(a) Trinkets. – Public officials, their agents, or anyone on public payroll may not place the public official's name or likeness on trinkets paid for with public funds: Provided, That when appropriate and reasonable, public officials may expend a minimal amount of public funds for the purchase of pens, pencils, or other markers to be used during ceremonial signings.
(b) Advertising. –
(1) Public officials, their agents, or anyone on public payroll may not use
public funds, including funds of the office held by the public official, public
employees, or public resources to distribute, disseminate, publish, or display
the public official's name or likeness for the purpose of advertising to the general
public.
(2) Notwithstanding the prohibitions in subdivision (1) of this subsection, the following conduct is not prohibited:
(A) A public official’s name and likeness may be used in a public announcement or mass media communication when necessary, reasonable, and appropriate to relay specific public safety, health, or emergency information.
(B) A public official’s
name and likeness may appear on an agency’s social media and website provided
if it complies with §6B-2B-3 of
this code.
(C) Dissemination of
office press releases or agency information via email, social media or other
public media tools for official purposes is not considered advertising or
prohibited under this subsection, if it: (i) Is intended for a legitimate news
or informational purpose; (ii) is not intended as a means of promotion of the
public official; and (iii) is not being used as educational material.
(3) Banners and table skirts are considered advertising and may not include the public official’s name or likeness.
(4) Nothing in this article shall be interpreted as prohibiting public officials from using public funds to communicate with constituents in the normal course of their duties as public officials if the communications do not include any reference to voting in favor of the public official in an election.
(c) Vehicles. – Public officials, their agents, or any person on public payroll may not use or place the public official's name or likeness on any publicly owned vehicles.
(d) Educational Materials. –
(1) A
public official’s name or likeness may not be placed on any educational
material, that is paid for with public funds, so long as primary purpose of
the material is to provide information about the processes, operations,
structure, functions, or history of an agency, agencies, or branch of
government, or to provide lists of contact information or other identifying
information about multiple individuals. Provided, That this prohibition
does not apply to the submission of a report required to be issued by law.
(2) The names and likenesses of officials at any level, including, but not limited to, those within an agency or agencies, may be included in directories, reports, reference books, or other educational materials, including, but not limited to, publications such as the West Virginia Blue Book and the Legislative Manual, so long as primary purpose of the material is to provide information about the processes, operations, structure, functions, or history of an agency, agencies, or branch of government, or to provide lists of contact information or other identifying information about multiple individuals.
(e) Press releases. – Notwithstanding any other provision of law, the name and likeness of a public official may be included in a press release, produced with public funds and which is disseminated by any means, if that press release is intended for a legitimate news or informational purpose and, considered as a whole, does not feature or present the public official in a form, manner, or context which is intended to promote the official. A press release produced with public funds may not request, solicit, or promote voting for any official or political party.
§6B-2B-4. Exceptions to use of name or likeness.
(a) A public official may
use his or her name or likeness on any official record or report, letterhead,
document, or certificate or instructional material issued in the course of his
or her duties as a public official: Provided, That other official
documents used in the normal course of the agency, including, but not limited
to, facsimile cover sheets, press release headers, office signage, and
envelopes may include the public official’s name: Provided, however, if
the That when official documents are reproduced for distribution or
dissemination to the public as educational material, the items are subject to
the prohibitions in §6B-2B-2(d) of this
code.
(b) When appropriate and reasonable, the West Virginia Division of Tourism may use a public official’s name and likeness on material used for tourism promotion.
(c) The prohibitions contained in this article do not apply to any person who is employed as a member of the faculty, staff, administration, or president of a public institution of higher education and who is engaged in teaching, research, consulting, coaching, recruiting, or publication activities: Provided, That the activity is approved as a part of an employment contract with the governing board of the institution of higher education 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.
(d) The prohibitions
contained in §6B-2B-2 of this code do not apply to a public official’s
campaign-related expenditures or materials items paid for from the
public official’s campaign funds.
(e) The prohibitions contained in §6B-2B-2 of this code do not apply to items paid for with the public official’s personal money.
(f) The prohibitions contained in §6B-2B-2 of this code do not apply to items or materials required by law to contain the public official’s name or likeness.
Adopted
Rejected