Filing an Ethics Complaint
Who may file a Complaint
Anyone with information that a public servant has violated the Ethics Act may file a Complaint with the Ethics Commission. A Complaint must be in writing and verified by oath or affirmation. The Commission also has authority to initiate a Complaint if it receives credible information which, if true, would merit an inquiry into whether a violation of the Ethics Act had occurred. More information and forms
The Ethics Commission addresses only violations of the Ethics Act. It is not enough to complain that a public servant has acted improperly. A Complaint must state facts showing that the misconduct violated one of the Act's specific rules or that it was motivated by private financial gain for the public servant himself or for another person.
Complaints must be filed within two years of the date of the Ethics Act violation. Complaints must either be mailed to the Commission via U.S. Mail or hand delivered.
The Ethics Commission does not have authority to consider violations of the Open Governmental Meetings Act, and therefore cannot accept Complaints which allege violations of that statute.
Grounds for a Complaint
The Ethics Act establishes a “code of conduct” for public servants at W.Va. Code § 6B-2-5. The Code includes several specific rules, including prohibitions against a public official using his position for the personal gain of himself or another person and against private financial interests in public contracts. It is not enough to complain that a public servant is guilty of misconduct; it also must appear that the misconduct violated a provision of the Ethics Act.
Misconduct resulting from negligence, incompetence, ignorance, insensitivity or personal animosity does not constitute a violation of the Ethics Act unless it violates one of the rules contained in W.Va. Code § 6B-2-5. Even criminal misconduct is not an Ethics Act violation unless it constitutes a violation of one of those rules.
After a Verified Complaint is filed with the Ethics Commission, it is referred to the Commission’s Probable Cause Review Board. This Board consists of three members who have been appointed by the Governor with the advice and consent of the Senate. The Board must determine whether there is probable cause to believe that a material violation of the Ethics Act has occurred.
The Review Board, assisted by staff, will conduct an investigation. Its proceedings are confidential. Persons against whom Complaints have been filed may file a written response, and make an oral response, to the Complaint before the Review Board.
The Commission’s investigations are conducted as discreetly as possible. The necessity of interviewing witnesses and obtaining records may, however, alert some members of the public to the existence of an investigation. To protect against public disclosure of unwarranted or frivolous complaints, the Ethics Act requires that, to the extent possible, all information relating to a Complaint be kept confidential until the Review Board has finished its investigation and has found probable cause to believe that a violation of the Ethics Act has occurred.
The Ethics Commissioners and staff members are not permitted to acknowledge the existence of a Complaint until the Review Board has found probable cause, although it may, at the written direction of the person complained against, release information relating to an investigation.
If, following its investigation, the Review Board finds probable cause to believe that a violation of the Ethics Act has occurred, the Commission's staff prepares a Statement of Charges and Notice of Hearing. This document is made public and placed on the Commission’s website.
An independent hearing examiner presides at public hearings regarding ethics Complaints. The person against whom the Statement of Charges and Notice of Hearing is filed does not need to be represented by an attorney at the hearing. A staff attorney for the Ethics Commission prosecutes Complaints.
Once the record from the hearing is considered by the Ethics Commission, if a majority of the commissioners finds beyond a reasonable doubt that the accused has committed a material violation of the Ethics Act, the Commission has authority to impose one or more of the following sanctions:
1. Public reprimand;
2. Cease and desist order;
3. Order of restitution;
4. Fines not to exceed $ 5,000 per violation, and/or
5. Reimbursement to the Commission for the actual costs of investigating and prosecuting a violation.
The Commission may also recommend to the appropriate governmental authority that the person be discharged or removed from office.
In addition to these sanctions, a violation of some of the provisions of the Ethics Act constitutes a misdemeanor criminal violation with penalties of up to one year in jail. The Commission has no criminal jurisdiction, but if its proceedings uncover evidence of a criminal violation of any nature, the Commission may refer the matter to a county prosecuting attorney.
The Act authorizes the Commission to enter into Conciliation Agreements with persons who are subjects of investigations. Such an agreement allows a person to resolve a Complaint by administrative settlement agreement. The inconvenience, expense and attendant notoriety of a public hearing is avoided.
Conciliation Agreements may be entered into at any stage of an investigation or proceeding. Although public hearings may be avoided by the Agreement, the Agreement itself must be made public.
Bad Faith Complaint
If the Ethics Commission finds by clear and convincing evidence that a person filed a Complaint or provided information which resulted in an investigation despite knowing that material information provided was not true, or if a Complaint was made or information provided in reckless disregard for the truth or falsity, then the Commission shall order the person to reimburse the accused for his or her reasonable costs incurred, including the accused’s attorney fees. The Commission may also order the complainant or informant to reimburse the Commission for its actual costs of investigation and may decline to process any more Complaints filed by that person.
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