ETHICS FOR COUNTYSOLID WASTE AUTHORITIES

Kristin A. BoggsBailey & Glasser, LLP

WHAT IS THE ETHICS ACT

• Statute – W. Va. Code §6B-2-1, et seq.

• Rules promulgated by the Ethics Commission – 158 CSR 1, 3, 6, 7, 8, 19, and 20

• Guidance put out by the Ethics Commission –www.ethics.wv.gov

DOES THE ETHICS ACT EVEN APPLY TO ME?

• YES!• “‘Public Official’ means any person who is . . . appointed to

any . . . county . . . office or position and who is responsible for the making of policy or takes official action which is either

ministerial or non-ministerial or both. . . .”

PART-TIME PUBLIC OFFICIAL

• In W. Va. Code § 6B-1-2(c), the Legislature specifically recognized the unique position of part-time public officials and found that certain conflicts of interest are inherent in part-time service.

• These inherent conflicts do not, in every instance, disqualify the part-time public official from the responsibility of voting or deciding a matter.

• HOWEVER, when the conflict becomes personal, you should recuse yourself from participating in any discussion, making any decision, voting, or otherwise being involved.

SPECIAL REQUIREMENTS FOR COUNTY OFFICIALS

• As a county official, you are also subject to the more stringent standards of W. Va. Code § 61-10-15, a criminal misdemeanor statute that is more stringent than the Ethics Act.

• Makes violation of the “no interest in public contracts” and “no nepotism” provisions crimes.

• Conviction of a crime under this statutory provision subjects you to a fine of $50-$500 and/or confinement in jail for not more than one year

GOVERNMENTAL ETHICS ACT – THE MEAT

• W. Va. Code § 6B-2-5

• Prohibits➢ Use of public office for private gain➢ Solicitation of gifts for non-charitable purpose and

solicitation of business from a subordinate➢ Interest in public contract over which you have control➢ Disclosure of confidential information➢ Certain representation before your board➢ Voting on matters in which you have a financial interest

or on personnel matters involving your spouse or other relative

NO USE OF PUBLIC OFFICE

FOR PRIVATE GAIN

• You may not use public resources or staff – or the prestige of your office –for your own personal benefit or the benefit of another.

NO NEPOTISM

• W. Va. Code R. § 158-6-3

• You may not show favoritism or grant patronage in the employment or working conditions of your relative or a person with whom you reside.

·W. Va. Code § 61-10-15applies

NO GIFTS

• You may not solicit a gift, unless the solicitation is for a charitable purpose, nor may you solicit a gift (even for a charitable purpose) from a subordinate.

SOME GIFTS ARE OK

• Meals and beverages

• Ceremonial gifts or awards

• Unsolicited gifts of nominal value or trivial items of informational value

• Reasonable expenses for food, travel, and lodging for a meeting at which you are a speaker

• Free tickets or admission to attend charitable cultural or political events

• Gifts that are purely private and personal in nature

• Gifts from relatives by blood or marriage or a member of the same household

NO ENDORSEMENTS

• Prohibition against using public office for private gain + prohibition against soliciting gifts = prohibition against endorsements (generally)

• Exception: Overriding public benefit

BUT SOME ADVERTISING IS OK

• Sale of advertising or exhibit space with real commercial value does not constitute prohibited gift solicitation

• Used to defray agency’s costs of publishing a newsletter or hosting a conference or providing wellness tools on agency’s website

NO INTERESTS IN PUBLIC CONTRACTS

• You may not have a financial interest in any contract, purchase or sale over which your public position gives you control.

• W. Va. Code § 61-10-15 applies.

NO DISCLOSURE OF

CONFIDENTIAL INFORMATION

You may not, during or after your government service, knowingly and improperly disclose confidential information acquired through your public position or use it to further your own personal interests or the personal interests of another person.

PROHIBITED OR LIMITED REPRESENTATION

Prohibited Representation• You cannot represent a client before your

board regarding a matter in which you are or were substantially involved on behalf of the board either during or after your service on the board, unless you first obtain your board’s consent.

• This prohibition applies only to those matters in which you were personally involved in a decision-making, advisory or staff support capacity.

LIMITATIONS ON VOTING

• You may not vote on a matter in which you or an immediate family member have a financial interest OR on a matter involving a business with which you or an immediate family member is associated.

• You may not vote on a personnel matter involving your spouse or relative.

• You may not vote to appropriate public funds or award a contract to a non-profit corporation if you or an immediate family member is employed by or a compensated officer or board member of that non-profit.

RECUSAL

• If you are required to recuse yourself:➢ Fully disclose your

reason;➢ Leave the room during

the discussion and vote on the issue; AND

➢ Minutes must reflect recusal

NO SOLICITATION OF BUSINESS

• You may not solicit business from a subordinate public employee you have the authority to direct, supervise or control UNLESS:

➢ The solicitation is general and directed to the public at large through mailing or other means of distribution of a letter, pamphlet, handbill, circular or other written or printed media;

➢ The solicitation is limited to the posting of a notice in a communal work area;

➢ The solicitation is for the sale of property of a kind that you are not regularly engaged in selling; or

➢ The solicitation is made at the location of your private business and the subordinate patronizes it of his or her own accord

NO TRINKETS

• W. Va. Code § 6B-2-5c• Public officials may not use their names or likenesses on

trinkets, advertising, vehicles, table skirts, banners, educational materials, websites or social media that are paid for with public funds

PURCHASING CARDS

• The State Auditor’s Office administers the P-Card program

• P-Cards are to be used for “official state purchases only” per W. Va. Code §12-3-10a

• It is a felony, punishable by imprisonment of 1-5 years and a fine of up to $5,000 to use a P-Card fraudulently or otherwise in violation of the P-Card Program or to knowingly or intentionally possess a P-Card with the intent to use it without authorization by the P-Card Coordinator

PROHIBITED USE OF P-CARDS

MEALS

THERE’S NO SUCH THING AS A FREE LUNCH.• In some instances, the board may provide

meals and work through lunch or dinner if continuing the meeting is in the best interests of efficient government.

GUIDELINES FOR PURCHASING MEALS

• DO spend a reasonable amount of public money – no lavish meals.

• DO base your decision to purchase a meal with public funds on a legitimate government reason.

• DO look to the federal General Service Administration (GSA) for guidance on the monetary limits for providing meals, which varies by area.

• DO NOT recess or adjourn a meeting and go to a restaurant or other off-site location to purchase a meal with public funds.

• DO NOT schedule your meeting during a regular meal time if it can be held at any other time.

VALUABLE RESOURCES

• West Virginia Ethics Commission❖ Advisory Opinions❖ Guidance Documents

➢ The Ethics Act➢ Open Meetings Checklist➢ Gift Guidelines➢ Retirement Gifts and Events➢ Door Prizes, Gifts, and Giveaways at Conferences➢ Public Employee Recognition Events➢ Voting Provisions➢ How to Seek a Contract Exemption➢ Prohibited Interest in a Public Contract➢ W. Va. Code § 61-10-15 Governing County

Officials and County Schools➢ Public Officials’ Use of Their Name or Likeness

❖ www.ethics.wv.gov

• West Virginia Auditor’s Office❖ Local Government Forms❖ Policies & Procedures ❖ Training❖ www.wvsao.gov