WEST VIRGINIA ETHICS COMMISSION

WEST VIRGINIAETHICS COMMISSION

An Overview of the West Virginia Ethics Act

Presented By:

Kimberly B. WeberGeneral CounselThe 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 BACKGROUNDBACKGROUND 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

JURISDICTIONEthics 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 PRINCIPLESMaintain 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-1-25THE ETHICS ACTApplies 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 COMMISSIONAgency MissionAdvise 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 ACTPrivate Gain

Solicitation and Gifts

Public Contracts

Confidential Information

Appearance and Representation

Employment

Voting

Revolving Door

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)NEPOTISMIndependent 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 Commissions nepotism guidelines at 158 W. Va. C.S.R. 6.3.

158 W. Va. C.S.R. 6.3NEPOTISMThe 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. 6.311NEPOTISMWhen 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. 6.3GENERAL GIFT RULESSolicitation of gifts is prohibited.

Dont 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)WHO IS AN INTERESTED PERSON?One who:

Seeks or does business with the public servants 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)ZIGGY KNOWS!

CHARITABLE SOLICITATIONSGifts 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)PUBLIC EMPLOYEE RECOGNITION GUIDELINEMay 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

17PUBLIC EMPLOYEE RECOGNITION GUIDELINEPublic funds may be used to purchase:

Light refreshments MealsMementos 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 GUIDELINEApplies 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 GUIDELINEIt 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.

20RETIREMENT GIFTS AND EVENTS GUIDELINEAbsent 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 GIVEAWAYSA 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

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, orDonated to the agency.

$25 limit applies to all gifts from a single source in a calendar year.

DOOR PRIZES, GIFTS, AND CONFERENCE GIVEAWAYSAttendees 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 GIVEAWAYSVENDORS

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 agencyAppointed 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 guestVery 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 CONTRACTSElected 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)

PROHIBITED INTEREST IN PUBLIC CONTRACTSMembers 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)CONFIDENTIAL INFORMATIONNo 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)PROHIBITED REPRESENTATIONOriginal revolving door provisionNo present or former public official or public employee shall:Represent a client With 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

W.Va. Code 6B-2-5(f)33PROHIBITED REPRESENTATIONA 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 clients interests are materially adverse to the agencyDoes not apply if the client is involved only as a member of a class

W.Va. Code 6B-2-5(f)

34EMPLOYMENT RESTRICTIONSNo 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.

W.Va. Code 6B-2-5(g)EMPLOYMENT RESTRICTIONSState 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)OUTSIDE EMPLOYMENTMay 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.

37LIMITATIONS ON COMPENSATIONA 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)EMPLOYMENTLegislators 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 EXPENSESW. 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 General RulesDo 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.

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W.Va. Code 6B-2-5(j)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)VOTINGPublic servants may not vote on the employment of a relative.

Relative includes:SpouseChildrenIn-lawsGrandparentsGrandchildren

W.Va. Code 6B-2-5(l)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)

FINANCIAL DISCLOSUREThere 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-2-6NEW FINANCIAL DISCLOSURE REQUIREMENTSH. 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 DOORLOBBYING LIMITATIONSSome 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-3-1REVOLVING DOORPublic 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-3-1REVOLVING DOOR

1 year waiting period for:Elected and Appointed OfficialsFull-time attorneys and accountantsMay not appear before agency during this period.

W.Va. Code 6B-3-1LOBBYISTS Must register if:

Compensated to lobby

OR

Spend over $150 annually entertaining Legislators and/or public officials

W.Va. Code 6B-3-1LOBBYISTSLobbyists must report their expenses on:

Legislators

Public officials

W.Va. Code 6B-3-1SOLICITING FROM LOBBYISTSPublic officials may not solicit lobbyists for food, beverages, or other gifts.

REMINDER

ENFORCEMENTThe Ethics Commission enforces the Ethics Act through the complaint process.

53COMPLAINTS & SANCTIONSAny 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)COMPLAINTS & SANCTIONSComplaints 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)COMPLAINTS & SANCTIONSPotential 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)ADVISORY OPINIONSIssued 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-2-3ADVISORY OPINIONSCopies 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?

59What 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 employers 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 States 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 municipalitys 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 agencys credit card for the benefit of agency employees?May they redeem them for their own benefit?

AO 2013-17

May a Public Agency give unused or out-of-service property to its employees?

AO 2013-23

What do you think?

WEST VIRGINIA ETHICS COMMISSION210 Brooks Street, Suite 300Charleston WV 25301

(304) 558-0664 Toll-Free (866) 558-0664

www.ethics.wv.govEmail: ethics@wv.gov

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