Presentation on theme: "WEST VIRGINIA ETHICS COMMISSION"— Presentation transcript:
1 WEST VIRGINIA ETHICS COMMISSION An Overview of the West Virginia Ethics ActPresented By:Kimberly B. WeberGeneral Counsel
2 HISTORICAL BACKGROUND The West Virginia Ethics Commission was enacted in 1989, during a special session of the Legislature.That session:Created the Ethics CommissionPassed the West Virginia Ethics Act, W. Va. Code § 6B-1-1 et seq.
3 BACKGROUND In 2005, Gov. Manchin called a Special Session Extended Statute of Limitations to 2 yearsAmended Complaint process and procedureCommission may initiate complaintsCreated Probable Cause Review BoardW. 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 § a)Administrative Law Judge Code of ConductLobbyistsFinancial Disclosure Statements
5 GOVERNMENTAL ETHICS GENERAL PRINCIPLES Maintain confidence in integrity and impartiality of the governmental processPublic 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 governmentExecutive, legislative & judicial branchesElected and appointed officials, full & part-time employeesDoes not apply to contractors or private organizations receiving government funds
7 WV ETHICS COMMISSION Agency Mission Advise Informally, by telephone, , fax or mailFormally, by issuance of Advisory OpinionsTrain and EducateInvestigate & Prosecute Complaints
8 TOPICS COVERED BY THE ETHICS ACT Private GainSolicitation and GiftsPublic ContractsConfidential InformationAppearance and RepresentationEmploymentVotingRevolving Door
9 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 benefitEthics Act prohibits more than a de minimis use for personal purposes
10 NEPOTISM158 W. Va. C.S.R. § 6.3Independent third party should make employment-related decisions regarding relatives, close friends, business partners or members of the governing bodyAdvisory Opinion extends rule to “close friends.”If a public body knows in advance that:One of its preferred candidates falls into one of these categories, orIs concerned about the appearance of impropriety,Must follow the Commission’s nepotism guidelines at 158 W. Va. C.S.R. § 6.3.
11 NEPOTISM158 W. Va. C.S.R. § 6.3The 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 §
12 NEPOTISM158 W. Va. C.S.R. § 6.3When 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.
13 GENERAL GIFT RULES Solicitation of gifts is prohibited. 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.
14 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.
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 achievementResponsibility 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 refreshmentsMealsMementos of appreciationMay spend up to $25 per employee per fiscal yearFor example, if there are 10 employees, then the office may spend $250 in public fundsMay be allocated between employee recognition eventsMay 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, orcompleting their last term of officeGeneral Rule: May spend up to $100 of public funds to purchase plaque or other commemorative itemMay 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 achievementResponsibility 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 servantAny meals, food or beverages must be purchased using private funds collected in accordance with guidelineMay 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; andIncentives and items to encourage audience participationFair market value of all such items provided to each participant may not exceed $25
23 DOOR PRIZES, GIFTS AND CONFERENCE GIVEAWAYS PUBLIC SERVANTSMay only accept items valued at $25 or lessPrizes valued above $25 must be:Returned,Donated to charity, orDonated 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 VENDORSYou 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 May accept travel, food and lodging expenses May also accept costs for one guestOvernight stay must be based on business necessitySimilar to the requirements for Federal tax write-offs
27 EDUCATIONAL SEMINARMay 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 agencyAppointed public officials permission from governing bodyBeware of receiving perks which are not part of standard hotel packageThird 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 lessMay not take guest if total value of all tickets exceeds $25.00Sporting events – ceremonial role$25.00 limit does not applyMay accept a ticket for a guestVery 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 ANDThe tickets come from the event sponsorAlso, may accept a ticket for one guest
30 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 contractsEthics Commission has discretion to grant exemption to public entity based upon undue hardship or excessive cost
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 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.
33 PROHIBITED REPRESENTATION W.Va. Code § 6B-2-5(f)Original “revolving door” provisionNo present or former public official or public employee shall:Represent a clientWith or without compensationOn behalf of any personIn 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, andHe or she personally participated in a decision-making, advisory or staff support capacity, unlessThe agency in question consents
34 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 agencyDoes not apply if the client is involved only as a member of a class
35 EMPLOYMENT RESTRICTIONS W.Va. Code § 6B-2-5(g)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, orTo influence the expenditure of public fundsCan always appear on behalf of your old agencyCan apply to the Ethics Commission for a hardship exemption.
36 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; orCurrently has a matter before their agency on which they or a subordinate is working.
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 EMPLOYMENTLegislators may not receive outside compensation for performing Legislative dutiesMay receive pay for private work performed during regular Legislative session. For example, work on a Saturday for your private employer.Advisory Opinion
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 VOTINGGeneral RulesDo not vote if you or someone you know has a financial interest in the resultClass Exception – five is fine!If or more similarly situated, then Public Official may vote under Ethics ActRules of Legislature – presiding officer decides if class exception applies. No specific number.W.Va. Code § 6B-2-5(j)
42 VOTINGPublic 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. W.Va. Code § 6B-2-5(l)Public servants may not vote on the employment of a relative.“Relative” includes:SpouseChildrenIn-lawsGrandparentsGrandchildren
44 PROPER RECUSALW.Va. Code § 6B-2-5(j)A public servant who is required to recuse himself or herself must:Fully disclose his or her interestLeave the room during both the discussion of, and the vote on, the issueMinutes must reflect that recusal
45 FINANCIAL DISCLOSUREW.Va. Code § 6B-2-6There is an annual filing requirement for elected and appointed officials in state government and elected County officialsHeads of agencies and deputies must also fileCandidates must also file within 10 days after filing their candidacy papersFiled statements are public records
46 NEW FINANCIAL DISCLOSURE REQUIREMENTS H. B – 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 W.Va. Code § 6B-3-1Some 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
48 REVOLVING DOORW.Va. Code § 6B-3-1Public 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.
49 REVOLVING DOOR 1 year waiting period for: W.Va. Code § 6B-3-11 year waiting period for:Elected and Appointed OfficialsFull-time attorneys and accountantsMay not appear before agency during this period.
50 LOBBYISTS Must register if: Compensated to lobby OR W.Va. Code § 6B-3-1Must register if:Compensated to lobbyORSpend over $150 annually entertaining Legislators and/or public officials
51 LOBBYISTS Lobbyists must report their expenses on: Legislators W.Va. Code § 6B-3-1Lobbyists must report their expenses on:LegislatorsPublic officials
52 SOLICITING FROM LOBBYISTS REMINDERPublic officials may not solicit lobbyists for food, beverages, or other gifts.
53 ENFORCEMENTThe 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; orThe complaint should be dismissedOnce the Notice is issued, the Ethics Commission staff investigates the allegationIf 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; andRecommendation 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 W.Va. Code § 6B-2-3Issued by the CommissionDiscussed and approved in a public meetingIdentity of requester/agency confidentialImmunity for conduct in good faith reliance on advisory opinion
58 ADVISORY OPINIONSCopies and Index of most advisory opinions are located on the Ethics Commission website:
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
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
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
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
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
65 What do you think?May a Public Agency give unused or out-of-service property to its employees?AO
66 WEST VIRGINIA ETHICS COMMISSION 210 Brooks Street, Suite 300Charleston WV 25301(304) Toll-Free (866)