WEST VIRGINIA ETHICS COMMISSION An Overview of the West

Report
WEST VIRGINIA
ETHICS COMMISSION
An Overview of the
West Virginia Ethics Act
Presented By:
Kimberly B. Weber
General Counsel
HISTORICAL
BACKGROUND
The West Virginia Ethics Commission
was enacted in 1989, during a special
session of the Legislature.
That session:
• Created the Ethics Commission
• Passed the West Virginia Ethics
Act, W. Va. Code § 6B-1-1 et seq.
BACKGROUND
In 2005, Gov. Manchin called a Special Session
• Extended Statute of Limitations to 2 years
• Amended Complaint process and procedure
•Commission may initiate complaints
•Created Probable Cause Review Board
•W. Va. Code § 6B-2-2a
JURISDICTION

Ethics Act (W.Va. Code § 6B-1-1 et seq.)

Open Meetings Act (W. Va. Code 6-9A-1 et seq.)

School Board eligibility (W. Va. Code § 18-5-1a)

Administrative Law Judge Code of Conduct

Lobbyists

Financial Disclosure Statements
GOVERNMENTAL ETHICS
GENERAL PRINCIPLES
W. Va. Code § 6B-1-2

Maintain confidence in integrity and
impartiality of the governmental
process

Public employees should avoid
conflicts between their personal
interests and their public
responsibilities.
THE ETHICS ACT
Applies to:

Public servants in state, county & municipal
government
 Executive, legislative & judicial branches

Elected and appointed officials, full & part-time
employees

Does not apply to contractors or private
organizations receiving government funds
WV ETHICS COMMISSION
Agency Mission
Advise
Informally, by telephone, e-mail, fax or mail
Formally, by issuance of Advisory Opinions

Train and Educate
Investigate & Prosecute Complaints
TOPICS COVERED BY THE
ETHICS ACT
 Private Gain
 Solicitation and Gifts
 Public Contracts
 Confidential Information
 Appearance and Representation
 Employment
 Voting
 Revolving Door
USE OF OFFICE FOR
PRIVATE GAIN
W. Va. Code § 6B-2-5(b)
May not use public
resources, including title
or subordinate staff, for
personal benefit
Ethics Act prohibits more
than a de minimis use for
personal purposes
NEPOTISM
158 W. Va. C.S.R. § 6.3
Independent third party should make employmentrelated decisions regarding relatives, close friends,
business partners or members of the governing body
 Advisory Opinion 2012-04 extends rule to “close
friends.”
If a public body knows in advance that:
 One of its preferred candidates falls into one of these
categories, or
 Is concerned about the appearance of impropriety,
Must follow the Commission’s nepotism guidelines at 158
W. Va. C.S.R. § 6.3.
NEPOTISM
158 W. Va. C.S.R. § 6.3
•
The Private Gain Rule governs the
hiring of immediate family members.
Ethics Commission has guidelines.
•
General rule – independent third party
should make decision.
•
There are stricter limitations for County
Officials; see W.Va. Code § 61-10-15
NEPOTISM
158 W. Va. C.S.R. § 6.3
When hiring a relative, cohabiting sexual partner, or close
friend:

The public should be given reasonable advance notice.

Notice should include a description of the job responsibilities, the
qualifications required, the pay and the method of application.

The notice must give interested parties the timely chance to apply.

If possible, the public official or employee should stay out of the process.

If he or she is one of several people with hiring authority, others should
make the selection.

An independent person should take part in the selection.

He or she should avoid using a subordinate as an “independent person.”

If he or she must share in the decision, he or she should use his or her
best objective judgment in making the selection, and be prepared to
justify the selection.
GENERAL GIFT RULES
W. Va. Code § 6B-2-5(c)

Solicitation of gifts is prohibited.

Don’t accept a gift with a fair market
value over $25 per year from an
interested party.

No limitation on food and beverages if
the person providing it is present.
WHO IS AN
INTERESTED PERSON?
W. Va. Code § 6B-2-5(c)
One who:

Seeks or does business with the public servant’s agency;

Is engaged in activities regulated or controlled by the
agency; or,

Has financial interests which may be substantially &
materially affected, in a manner distinguishable from
the public generally, by the performance or non
performance of official duties.
ZIGGY KNOWS!
CHARITABLE
SOLICITATIONS
W. Va. Code § 6B-2-5(c)
Gifts may only be solicited for a charitable
purpose, such as the United Way.
Government employees may not solicit
contributions from a subordinate.
PUBLIC EMPLOYEE
RECOGNITION GUIDELINE

May use public funds to recognize
public employees if it serves a public
purpose of promoting employee
morale through recognition of
achievement

Responsibility for deciding whether
it is an appropriate use of public
funds lies with agency head
PUBLIC EMPLOYEE
RECOGNITION GUIDELINE

Public funds may be used to purchase:
 Light refreshments
 Meals
 Mementos of appreciation

May spend up to $25 per employee per
fiscal year

For example, if there are 10 employees,
then the office may spend $250 in public
funds

May be allocated between employee
recognition events

May spend up to $100 on one employee
and less than $25 on others
RETIREMENT GIFTS AND
EVENTS GUIDELINE

Applies to public servants who are:
◦
◦
◦
◦
Retiring from public service,
transferring to another public agency,
resigning to return to private sector, or
completing their last term of office

General Rule: May spend up to $100 of public
funds to purchase plaque or other
commemorative item

May not give money (or gift card) as gift
RETIREMENT GIFTS AND
EVENTS GUIDELINE

It is permissible to use public funds
to recognize public employees if it
serves a public purpose of
promoting employee morale
through recognition of achievement

Responsibility for deciding whether
it is an appropriate use of public
funds lies with the Agency head.
RETIREMENT GIFTS AND
EVENTS GUIDELINE

Absent specific legislative authority, may not
spend public funds to pay for meals, food, or
beverages at an event recognizing a departing
public servant

Any meals, food or beverages must be
purchased using private funds collected in
accordance with guideline

May not use public funds to underwrite any
rental or related fees associated with event
held at an off-site location
DOOR PRIZES, GIFTS, AND
CONFERENCE GIVEAWAYS



A public agency may not use public funds to purchase
door prizes, gifts, or giveaways.
A public agency may use a reasonable amount of
public funds to purchase:
◦ items such as tote bags, pens, pencils or sticky notes
to provide to conference attendees; and
◦ Incentives and items to encourage audience
participation
Fair market value of all such items provided to each
participant may not exceed $25
DOOR PRIZES, GIFTS AND
CONFERENCE GIVEAWAYS
PUBLIC SERVANTS

May only accept items valued at $25 or less

Prizes valued above $25 must be:
◦ Returned,
◦ Donated to charity, or
◦ Donated to the agency.

$25 limit applies to all gifts from a single source
in a calendar year.
DOOR PRIZES, GIFTS, AND
CONFERENCE GIVEAWAYS

Attendees may bring gifts to conferences
planned by public servants if:
◦ You make it clear that participation is
voluntary;
◦ You inform the attendees that they must use
personal, not public, funds;
◦ Neither you nor the conference participants
(public servants) may solicit anyone, e.g.
local businesses or persons for any gifts; and,
◦ Fair market value of gift may not exceed $25.
DOOR PRIZES, GIFTS, AND
CONFERENCE GIVEAWAYS
VENDORS
◦ You may ask vendors or conference sponsors to
donate items of nominal value (usually with a
company logo) so long as they derive some
commercial value from it.
◦ You and/or the conference participants/public
servants may not solicit any gift or door prize
from a vendor or conference sponsor; and,
◦ Fair market value of any item may not exceed
$25.
PANELIST OR SPEAKER
•
May accept travel, food and lodging expenses
•
May also accept costs for one guest
•
Overnight stay must be based on business necessity
•
Similar to the requirements for Federal tax write-offs
EDUCATIONAL SEMINAR

May accept reduced rate or have third party pay
for it if:
◦ The seminar meets 5 part test which establish that ultimate
benefit is to agency (158 W. Va. C.S.R. § 7.3)
◦ Public employees need permission from head of agency
◦ Appointed public officials permission from governing body

Beware of receiving perks which are not part of
standard hotel package

Third party may not pay cost of guests, e.g.,
your wife and children
FREE TICKETS
Sporting events – stricter limits
Ticket must be $25.00 or less
May not take guest if total value of all tickets
exceeds $25.00
Sporting events – ceremonial role
$25.00 limit does not apply
May accept a ticket for a guest
Very limited exception-call us first
FREE TICKETS

Charitable, cultural or political events
$25.00 limit does not apply if:
◦ Public officials are customarily invited AND
◦ The tickets come from the event sponsor
◦ Also, may accept a ticket for one guest
PROHIBITED INTEREST
IN PUBLIC CONTRACTS
W.Va. Code § 6B-2-5(d)

Elected public officials and full-time employees
may not have a financial interest in a public
contract under their authority or control ($1,000
threshold).

This means almost all financial transactions (e.g.
purchases, leases, sales) except employment
contracts

Ethics Commission has discretion to grant
exemption to public entity based upon undue
hardship or excessive cost
PROHIBITED INTEREST IN
PUBLIC CONTRACTS
W.Va. Code § 6B-2-5(d)

Members of Legislature may contract with
any government agency, but may not
use prestige of position to secure contract.

Part-time appointed officials are not subject
to prohibition, but must recuse themselves if
a conflict arises.
CONFIDENTIAL
INFORMATION
W.Va. Code § 6B-2-5(e)
No present or former public official
or employee may disclose
confidential information acquired
in the course of his or her official
duties, or use that information to
further his or her personal interests
or the interests of another person.
Improper disclosure of
confidential information is a
criminal misdemeanor.
PROHIBITED
REPRESENTATION
W.Va. Code § 6B-2-5(f)


Original “revolving door” provision
No present or former public official or public
employee shall:
◦ Represent a client
◦ With or without compensation
◦ On behalf of any person
◦ In a contested case, rate-making proceeding, license or
permit application, regulatory filing or any other matter
involving a specific party which:
 Arose during his or her period of public service, and
 He or she personally participated in a decision-making, advisory or
staff support capacity, unless
 The agency in question consents
PROHIBITED
REPRESENTATION
W.Va. Code § 6B-2-5(f)

A staff attorney, accountant, or
other professional employee
who has represented a
government agency in a matter
shall not represent another
client in the matter:
◦ If that client’s interests are
materially adverse to the agency
◦ Does not apply if the client is
involved only as a member of a
class
EMPLOYMENT
RESTRICTIONS
W.Va. Code § 6B-2-5(g)
No elected or appointed public official, and no fulltime staff attorney or accountant, shall:
 During his or her public service, or for a period of one
year after the termination of that service, appear in a
representative capacity before the entity he or she
serves or served in:

◦
◦
◦
◦
◦
Contested cases involving administrative sanction,
To support or oppose a proposed rule,
To support or oppose issuance of a license or permit,
Rate-making proceedings, or
To influence the expenditure of public funds
Can always appear on behalf of your old agency
 Can apply to the Ethics Commission for a hardship
exemption.

EMPLOYMENT
RESTRICTIONS
W.Va. Code § 6B-2-5(h)
State employees may not
seek employment with any
person who:

Had a matter on which
they or their subordinate
took regulatory action
within the past 12 months;
or

Currently has a matter
before their agency on
which they or a
subordinate is working.
OUTSIDE EMPLOYMENT
May not conflict
with your current
employment.
 Must work on your
own time.
 May not get paid
for something that
is part of your
public job duties.

Consult with your
supervisor to
ensure compliance
with agency rules.
 May not work for
someone you
regulate or a
vendor.

LIMITATIONS ON
COMPENSATION
W.Va. Code § 6B-2-5(l)
A public employee
may not receive
additional
compensation from
another publiclyfunded state, county
or municipal office
or employer for
working the same
hours.
EMPLOYMENT
•
Legislators may not receive outside
compensation for performing Legislative
duties
•
May receive pay for private work performed
during regular Legislative session. For
example, work on a Saturday for your private
employer.
•
Advisory Opinion 2012-32
LIMITATIONS ON
EXPENSES
W. Va. Code § 6B-2-5(m)
No public official or public employee shall knowingly
request or accept from any governmental entity
compensation or reimbursement for any expenses
actually paid by … any other person.
VOTING
W.Va. Code § 6B-2-5(j)

General Rules
Do not vote if you or someone you know has a
financial interest in the result
Class Exception – five is fine!

If
or more similarly situated, then Public
Official may vote under Ethics Act

Rules of Legislature – presiding officer decides
if class exception applies. No specific number.
41
VOTING
W.Va. Code § 6B-2-5(j)

Public servants may not vote to award a
contract to a business with which they,
or an immediate family member, is
associated.

The definition of “immediate family” is
the same as the definition under the
nepotism rules.
VOTING
W.Va. Code § 6B-2-5(l)

Public servants may not vote on the
employment of a relative.

“Relative” includes:
◦
◦
◦
◦
◦
Spouse
Children
In-laws
Grandparents
Grandchildren
PROPER RECUSAL
W.Va. Code § 6B-2-5(j)
A public servant who is required to recuse himself
or herself must:
• Fully disclose his or her interest
• Leave the room during both the discussion of,
and the vote on, the issue
• Minutes must reflect that recusal
FINANCIAL DISCLOSURE
W.Va. Code § 6B-2-6

There is an annual filing requirement for
elected and appointed officials in state
government and elected County officials

Heads of agencies and deputies must also
file

Candidates must also file within 10 days
after filing their candidacy papers

Filed statements are public records
NEW FINANCIAL DISCLOSURE
REQUIREMENTS
H. B. 2464 – requires the disclosure of
information relating to spouses.
 Exception for part-time appointed board
members:

◦ Provided that their spouses have no financial
interests affected by the work of the board.
REVOLVING DOOR
LOBBYING LIMITATIONS
W.Va. Code § 6B-3-1

Some public officials must wait a year before becoming a lobbyist:

Members of the Legislature;

Members of the Board of Public Works;

Members of the Supreme Court of Appeals;

Will and pleasure professional employees working under the direct
supervision of a Member of the Legislature;

Will and pleasure professional employees of Members of the Board
of Public Works who:
◦ are under their direct supervision; and,
◦ regularly, personally and substantially participate in a decision-making or advisory
capacity.

Secretaries of Executive Branch Departments; and,

Heads of any state departments or agencies
REVOLVING DOOR
W.Va. Code § 6B-3-1
Public servants may
not appear in a
representative
capacity before their
current or former
agency on a matter
in which they were
personally and
substantially
involved.
REVOLVING DOOR
W.Va. Code § 6B-3-1

o
1 year waiting period
for:
◦ Elected and
Appointed Officials
◦ Full-time attorneys
and accountants
May not appear before
agency during this
period.
LOBBYISTS
W.Va. Code § 6B-3-1
Must register if:
Compensated to lobby
OR
Spend over $150
annually entertaining
Legislators and/or
public officials
LOBBYISTS
W.Va. Code § 6B-3-1
Lobbyists must report
their expenses on:
Legislators
Public officials
SOLICITING FROM LOBBYISTS
REMINDER
Public officials
may not solicit
lobbyists for
food, beverages,
or other gifts.
ENFORCEMENT
The Ethics Commission enforces the
Ethics Act through the complaint process.
COMPLAINTS &
SANCTIONS
W.Va. Code § 6B-2-3(a)





Any citizen may file a complaint.
Complaints must be verified.
Complaint must be filed within 2 years of
the last act of misconduct.
Ethics Commission may initiate a complaint
based on credible evidence that a material
violation has occurred.
Complaints must allege violation(s) of the
Ethics Act.
COMPLAINTS &
SANCTIONS
W.Va. Code § 6B-2-3(a)

Complaints are brought before the Probable
Cause Review Board (PCRB) within 30 days
to determine if:
◦ There is probable cause to issue a Notice of
Investigation; or
◦ The complaint should be dismissed
Once the Notice is issued, the Ethics
Commission staff investigates the allegation
 If the allegation has merit, the PCRB issues
a Statement of Charges to the Respondent.

COMPLAINTS &
SANCTIONS
W.Va. Code § 6B-2-3(a)

Potential sanctions include:
◦ Public reprimand;
◦ Cease and desist orders;
◦ Orders of restitution for money, things of value, or
services taken;
◦ Fines not to exceed five thousand dollars per
violation;
◦ Reimbursement to the Commission for costs of
investigation and prosecution; and
◦ Recommendation that a Respondent be terminated
from employment or removed from office.
ADVISORY OPINIONS
W.Va. Code § 6B-2-3

Issued by the Commission

Discussed and approved in a public
meeting

Identity of requester/agency confidential

Immunity for conduct in good faith
reliance on advisory opinion
ADVISORY OPINIONS
Copies and Index of most advisory
opinions are located on the Ethics
Commission website:
www.ethics.wv.gov
Consider the Following
Scenarios….
From actual requests for advisory
opinions :
What advice would you give the
requester?
What do you think?
 May
a state regulatory agency
spend public funds for meals
during agency meetings:
◦ for board members?
◦ for staff?

A.O. 2012-27
What do you think?

May a State Employee accept a door
prize of two nights lodging at a hotel in
Myrtle Beach?
The entity that provided the prize is a
State vendor.
Employee has little to no influence over
her employer’s contract with vendor.
Door prize drawing was random.

AO 2006-07



What do you think?
May a State employee, whose agency
is responsible for housing the State’s
historical documents, contract with
the State to compile the official papers
of a former Governor?
 What if he or she exercises influence
or control over the contract?


AO 2012-36
What do you think?

May a municipality’s elected officials
or employees solicit donations of gift
certificates from local restaurants to
present as gifts to private citizen
volunteers?

AO 2013-46
What do you think?
May a public servant redeem rewards
points earned by the use of the
agency’s credit card for the benefit of
agency employees?
 May they redeem them for their own
benefit?


AO 2013-17
What do you think?
 May
a Public Agency give
unused or out-of-service
property to its employees?
AO 2013-23
WEST VIRGINIA
ETHICS COMMISSION
210 Brooks Street, Suite 300
Charleston WV 25301
(304) 558-0664
Toll-Free (866) 558-0664
www.ethics.wv.gov
Email: [email protected]

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