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WEST VIRGINIA ETHICS COMMISSION An Overview of the West Virginia Ethics Act Presented By: Kimberly B. Weber General Counsel.

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Presentation on theme: "WEST VIRGINIA ETHICS COMMISSION An Overview of the West Virginia Ethics Act Presented By: Kimberly B. Weber General Counsel."— Presentation transcript:

1 WEST VIRGINIA ETHICS COMMISSION An Overview of the West Virginia Ethics Act Presented By: Kimberly B. Weber General Counsel

2 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. HISTORICAL BACKGROUND

3 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

4 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

5 GOVERNMENTAL ETHICS GENERAL PRINCIPLES Maintain confidence in integrity and impartiality of the governmental process Public employees should avoid conflicts between their personal interests and their public responsibilities. W. Va. Code § 6B-1-2

6 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

7 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

8 TOPICS COVERED BY THE ETHICS ACT Private Gain Solicitation and Gifts Public Contracts Confidential Information Appearance and Representation Employment Voting Revolving Door

9 USE OF OFFICE FOR PRIVATE GAIN 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 W. Va. Code § 6B-2-5(b)

10 NEPOTISM Independent third party should make employment- related 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. 158 W. Va. C.S.R. § 6.3

11 NEPOTISM 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 § 61-10-15 158 W. Va. C.S.R. § 6.3

12 NEPOTISM 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. 158 W. Va. C.S.R. § 6.3

13 GENERAL GIFT RULES 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. W. Va. Code § 6B-2-5(c)

14 WHO IS AN INTERESTED PERSON? 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. W. Va. Code § 6B-2-5(c)


16 CHARITABLE SOLICITATIONS Gifts may only be solicited for a charitable purpose, such as the United Way. Government employees may not solicit contributions from a subordinate. W. Va. Code § 6B-2-5(c)

17 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

18 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

19 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

20 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.

21 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

22 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

23 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.

24 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.

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.

26 PANELIST OR SPEAKER 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

27 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

28 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

29 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

30 PROHIBITED INTEREST IN PUBLIC CONTRACTS 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 W.Va. Code § 6B-2-5(d)

31 PROHIBITED INTEREST IN PUBLIC CONTRACTS 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. W.Va. Code § 6B-2-5(d)

32 CONFIDENTIAL INFORMATION 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. W.Va. Code § 6B-2-5(e)

33 PROHIBITED REPRESENTATION 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 W.Va. Code § 6B-2-5(f)

34 PROHIBITED REPRESENTATION 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 W.Va. Code § 6B-2-5(f)

35 EMPLOYMENT RESTRICTIONS No elected or appointed public official, and no full- time 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. W.Va. Code § 6B-2-5(g)

36 EMPLOYMENT RESTRICTIONS 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. W.Va. Code § 6B-2-5(h)

37 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.

38 LIMITATIONS ON COMPENSATION A public employee may not receive additional compensation from another publicly- funded state, county or municipal office or employer for working the same hours. W.Va. Code § 6B-2-5(l)

39 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

40 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.

41 VOTING VOTING 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 W.Va. Code § 6B-2-5(j)

42 VOTING 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. W.Va. Code § 6B-2-5(j)

43 VOTING Public servants may not vote on the employment of a relative. “Relative” includes: ◦ Spouse ◦ Children ◦ In-laws ◦ Grandparents ◦ Grandchildren W.Va. Code § 6B-2-5(l)

44 PROPER RECUSAL 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 W.Va. Code § 6B-2-5(j)

45 FINANCIAL DISCLOSURE 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 W.Va. Code § 6B-2-6

46 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.

47 REVOLVING DOOR LOBBYING LIMITATIONS 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 W.Va. Code § 6B-3-1

48 REVOLVING DOOR 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. W.Va. Code § 6B-3-1

49 REVOLVING DOOR 1 year waiting period for: ◦ Elected and Appointed Officials ◦ Full-time attorneys and accountants o May not appear before agency during this period. W.Va. Code § 6B-3-1

50 LOBBYISTS Must register if: Compensated to lobby OR Spend over $150 annually entertaining Legislators and/or public officials W.Va. Code § 6B-3-1

51 LOBBYISTS Lobbyists must report their expenses on: Legislators Public officials W.Va. Code § 6B-3-1

52 SOLICITING FROM LOBBYISTS Public officials may not solicit lobbyists for food, beverages, or other gifts. REMINDER

53 ENFORCEMENT The Ethics Commission enforces the Ethics Act through the complaint process.

54 COMPLAINTS & SANCTIONS 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. W.Va. Code § 6B-2-3(a)

55 COMPLAINTS & SANCTIONS 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. W.Va. Code § 6B-2-3(a)

56 COMPLAINTS & SANCTIONS 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. W.Va. Code § 6B-2-3(a)

57 ADVISORY OPINIONS 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 W.Va. Code § 6B-2-3

58 ADVISORY OPINIONS Copies and Index of most advisory opinions are located on the Ethics Commission

59 Consider the Following Scenarios…. From actual requests for advisory opinions : What advice would you give the requester?

60 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

61 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

62 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

63 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

64 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

65 May a Public Agency give unused or out-of-service property to its employees? AO 2013-23 What do you think?

66 WEST VIRGINIA ETHICS COMMISSION 210 Brooks Street, Suite 300 Charleston WV 25301 (304) 558-0664 Toll-Free (866) 558-0664 Email:

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