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 Overview of the Ethics Act

Overview 


Who is subject to the Ethics Act?
Private Gain
Gifts - Solicitation and Acceptance
Voting Guidelines for Public Officials
Public Contracts
Licensing & Ratemaking
• Moonlighting or Changing Jobs
Dual Compensation
Purchase of Real Property
Conflicts of Interest and Confidential Information
Employment Limitations During and after Government Service
• Nepotism
• County Public Servants - W. Va. Code § 61-10-15   click to view complete text
Lobbying
Financial Disclosure
Complaints
Administrative Law Judges - ALJ's Code of Conduct
Open Meetings
• Public Outreach and Education 

 


All Public Servants are Subject to the Ethics Act

        The code of conduct established by the Ethics Act applies to all public servants including public employees, elected public officials, and appointed public officials, whether full-time or part-time, in the legislative, judicial, and executive branches of state, county and municipal government, including all boards, commissions and agencies.

Minimum Ethical Standards Established by the Act

        The basic principle underlying the Ethics Act is that those in public service should use their positions for the public’s benefit and not for their own private gain or the private gain of another. 


Private Gain

     • Do not use your agency's supplies or equipment for personal projects or activities. 
     • Public employees and full-time appointed officials should not work on personal projects or activities during work hours for which they are paid by their government employer. 
     • Do not use subordinates to work on your personal projects or activities during work hours or compel them to do so on their own time. 
     • The Ethics Act prohibits any misuse of public resources which is more than de minimis, that is, which involves more than a trifling or insignificant amount of time, funds, supplies, personnel or equipment. 
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Gifts

         You may not solicit a gift unless it is for a charitable purpose from which you and your immediate family members derive no direct personal benefit. The Commission determines whether a purpose is charitable on a case-by-case basis. However, charities which benefit the poor and disadvantaged, which provide for the cure or treatment of a particular illness or disease, or benefit the public generally through cultural and educational programs such as museums and libraries, have previously been determined to qualify as charitable. 
         The Ethics Act's prohibition against solicitation of gifts does not apply to solicitation of political contributions. However, W. Va. Code § 3-8-12(h) which regulates and controls elections provides: "No person shall solicit any [ political ] contribution from any non-elective salaried employee of the state government or of any of its subdivisions." 
         You may not solicit a subordinate for any gift - not even a gift for a charitable purpose. You may not accept gifts from lobbyists, or from "interested persons ", unless the gift fits into one of the following exceptions: 
        • meals and beverage 
        • unsolicited gifts of a value of $25 or less 
        • ceremonial gifts or awards of insignificant value 
        • reasonable expenses incurred in appearing at a speaking engagement 
        • reasonable honoraria, where permitted by Commission’s rules 
        • free tickets to political, charitable, or cultural events customarily given as a courtesy 
        to the office 
        • purely private and personal gifts 
        • lawful political contributions 

        Additional guidance on accepting and soliciting gifts may be found in the Commission’s Legislative Rule on gifts, Title 158, Series 7, and the Commission’s  Guidelines on Gifts. These documents may be downloaded from the website section on rules and guidelines.
      "Interested persons" are those who do or seek to do business with, are regulated by, or are otherwise financially interested in activities of your governmental agency.
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Voting

         Public officials may not vote on a matter in which they, or an immediate family member, have a financial interest nor on a matter involving a business with which the public official or an immediate family member is associated. 
        Public officials or their immediate family members are considered to be associated with a business if either the public official or an immediate family member is a director, officer, owner, employee, compensated agent, or owns 5% or more of the outstanding stocks of any class. 
        Click here for a printable  Brochure on Voting

Family and Relatives 
        Public officials may not vote on matters involving a business with which the public official or an immediate family member is associated. 
The Act defines immediate family to include the spouse with whom an individual is living as husband or wife, as well as any dependent children, dependent grandchildren or dependent parents. 
        The Act defines relative as a husband or wife, mother, father, sister, brother, son, daughter, grandmother, grandfather, grandchild, mother-in­law, father-in-law, sister-in-law, brother-in-law, son-in-law, or daughter­in-law.

Public Officials May Not Vote 
        Public officials may not vote on a personnel matter involving the public official’s spouse or relative.
The Act further prohibits voting to appropriate public funds or award a contract to a non-profit corporation if the public official or an immediate family member is employed by the non-profit. 
        Further, a public official who is employed by a financial institution, and whose primary responsibilities with the institution include consumer and commercial lending, may not vote on a matter that involves a customer of the financial institution. This prohibition only applies if the amount of the loan or loans to the customer exceeds $15,000 in a calendar year, and the public official was directly involved in approving a loan to that customer within the past twelve months, or is currently considering such a loan.

Public Officials May Vote 
        Public officials may vote on a matter involving a spouse, immediate family member, relative, or business with which they are associated, if they are affected by the matter as a member of a profession, occupation, class of persons or class of businesses. The law defines a class as consisting of not less than five similarly situated persons or businesses. 
        A public official may vote on a matter affecting a publicly traded company so long as:
        (1) the public official and dependent family members individually or jointly own no more than five per cent of the company’s issued stock; 
        (2) the value of the stocks individually or jointly owned is less than ten thousand dollars; and 
        (3) prior to casting a vote, the public official discloses his or her interest in the publicly traded company.

Members of the Legislature 
        These voting rules do not apply to Members of the Legislature. Legislative voting is governed by a separate provision in the Act which permits Legislators to vote after obtaining a ruling from the presiding officer in their chamber regarding any potential conflict.
W. Va. Code § 6B-2-5(i)

Public Disclosure and Recusal are Required 
        Whenever a public official is prohibited from voting under the Act, the public official must fully disclose his or her interests, and physically remove himself or herself from the room during the discussion and vote on the matter from which they are disqualified.
The minutes should reflect the recusal as well as the reason for the recusal. 

Selling to Subordinates
        A public servant may solicit private business from a subordinate only when: 
        (1) The solicitation is general and directed to the public at large; 
        (2) The solicitation is limited to the posting of a notice in a communal work area; 
        (3) The solicitation is for the sale of property of a kind that the person does not regularly sell; or 
        (4) The subordinate goes to the supervisor’s private business on his or her own initiative to purchase goods or services. 
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 Click here for a printable  Brochure on Voting


 

Private Interests in Public Contracts Purchases and Sales

        The Ethics Act prohibits elected public officials and full-time public employees, whether appointed or employed, from having a financial interest in any contract, purchase or sale over which their public position gives them control, unless the total value of such contracts, purchases or sales does not exceed $1,000 in a calendar year. Even then, the public official may not be involved in influencing the award of the contract. This $1,000 exception may not be relied upon by county officials who are governed by the stricter limitations in W. Va. Code § 61-10-15.
        This prohibition also extends to contracts in which the public servant’s spouse, dependent parents, or dependent children have a financial interest, as well as to any business with which the public servant or his or her immediate family members are associated. 
        For purposes of this prohibition, public servants and their immediate family members are associated with a business if any one of them is a director or officer in the business, or if they hold stock in the business which constitutes 5% or more of the outstanding stock of any class. 
        This provision applies only to: 
        (1) those contracts your job gives you authority to award or control and 
        (2) those purchases and sales you are authorized to make or direct others to make. 

        The Commission has authority to grant your agency a hardship exemption from this provision of the Ethics Act. 
        Part-time appointed officials (except those county officials covered by W. Va. Code § 61-10-15) are not subject to the prohibition, provided that they recuse themselves from considering and acting on such matters, consistent with the on voting provisions of the Act.
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Licensing and Rate-Making

        You may not take official action on a license or rate-making matter affecting an entity in which you, or the members of your immediate family, own or control more than a 10 % interest. In addition, UNLESS you file a prior written public disclosure with your agency, you may not take official action on a license or rate-making matter affecting a person to whom such an entity has sold goods or services totaling more than $1,000 during the preceding year. 
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Employment, Moonlighting or Changing Jobs

        The Ethics Act prohibits full-time public servants from seeking or accepting employment from persons or businesses that they or their subordinates regulate. 
        The Act also prohibits full-time public servants from seeking or accepting employment from vendors if the public servant, or his or her subordinates, exercise authority or control over a public contract with that vendor. It does not apply to members of the Legislature. 
        Public Servants may request an exemption from the Ethics Commission to seek employment with vendors or regulated persons with whom they or a subordinate exercise control at present or in the past twelve months. This process is set forth in the Commission’s Legislative Rule, Title 158, Series 11.  
Click here for a printable brochure on Moonlighting and Employment.
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Dual Compensation    

        No public servant may receive compensation from two sources in state, county or municipal government for working the same hours, except under certain limited circumstances. Persons who are allowed to make up time missed with a governmental employer to perform the duties of another governmental position are required to maintain specific time records. Their governmental employer is required to submit these records to the Ethics Commission quarterly.  
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Purchase of Real or Personal Property

        Full-time public servants may not purchase real or personal property from: 
        (1) a person or business which they or their subordinates are currently regulating; 
        (2) a person or business which they or their subordinates have regulated within the preceding twelve months; or 
        (3) a vendor to their agency, if they exercise authority or control over a public contract with that vendor. 
        The Commission, by Legislative Rule, has established certain exemptions from these limitations, such as purchases of personal property from a business that is available to the general public on the same terms and conditions. 
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Other Conflicts of Interest 

        Full-time public servants may not take personal regulatory action on matters affecting a person 
        (1) by whom they are secondarily employed or
        (2) with whom they are seeking employment or have an agreement concerning future employment. 
        A similar limitation applies to employees or prospective employees of vendors. A full-time public servant may not personally participate in any decision, approval, disapproval, recommendation, investigation, or inspection of a vendor by whom they are secondarily employed, or with whom they are seeking employment or have an agreement regarding future employment. 
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Confidential Information

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

        Full-time public servants may not accept private pay for providing infor­mation or services that are within the scope of their public duties. In other words, they can't sell, even on their own time, services their public position requires them to provide. 
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Employment Limitations During and After Government Service

Prohibited Representation 
        The Ethics Act requires you to obtain your agency's consent before you represent a client in a matter in which you are or were substantially involved on behalf of the agency. This applies both during and after your government service. 
        The prohibition applies only to those matters in which you were personally involved in a decision making, advisory, or staff support capacity. It does not apply to legislators or legislative staff. 
Limitation on Practice 
        Certain public servants are prohibited from representing persons before their agency: 
        (1) while they are with the agency, and 
        (2) for one year after leaving the agency. 
        The prohibition applies only to elected and appointed public officials and full-time staff attorneys and accountants in agencies authorized to hear contested cases or make regulations. 
        This prohibition applies to representation in contested cases, regulation filings, license or permit applications, rate-making proceedings and to influence the expenditure of public funds. It does not apply to legislators or legislative staff. 
        The Ethics Commission has authority to grant an exemption from this prohibition. 
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Nepotism

        Nepotism means favoritism shown or patronage granted in employment matters by a public official or public employee to relatives or cohabitating sexual partners without giving public notice and consideration to other qualified applicants. 
        The hiring of relatives is not strictly prohibited but limitations do apply. Stricter limitations apply to County Officials regarding the hiring of spouses and family members. 
        These limitations are outlined in the section entitled “For County Public Servants Only.”
"Relatives" are defined as individuals who are related to the public official or public employee as father, mother, son, daughter, brother, sister, spouse, grandmother, grandfather, grandchild, mother-in-law, father-in-law, sister-in­law, brother-in-law, son-in-law or daughter-in-law. 
        A public official or public employee may avoid the appearance of nepotism by following these steps in hiring a relative or cohabitating sexual partner for a public position: 
        (1) The public should be given reasonable advance notice of the availability of the job. 
        (2) An objective, independent third party should be involved in the selection where a cohabitating sexual partner or family member is among those who have made application for the job. 
        (3) To the extent possible, the public official or public employee should stay out of the selection process altogether. If he or she is one of several people with the authority to hire, others with authority should make the selection. If appropriate, the matter should be handled by his or her supervisor or in the case of an elected official by a qualified person in another office. 
        (4) A public official or public employee should at least have some independent person take part in the selection. He or she should avoid using a subordinate for the independent person. 
        (5) Public officials must recuse themselves from voting on the employment of a relative if this matter comes before the governing body on which they serve. 

        Public servants should review and comply with the nepotism provisions in the Ethics Commission’s Legislative Rule, Title 158, Series 6. This rule may be viewed in the Rules section of this website. State employees should consult with the WV Division of Personnel for any additional limitations that may apply to State employees.  
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For County Public Servants Only

W. Va. Code § 61-10-15
       Certain county personnel are also subject to W. Va. Code § 61-10-15, a criminal statute which contains a more comprehensive public contract prohibition. The Ethics Commission is responsible for advising public servants about § 61-10-15 but has no role in its enforcement.
W. Va. Code § 61-10-15 applies to: 
        (1) elected county officials (such as sheriff, county commissioners and school board members), 
        (2) appointed county officials (those who serve on county boards, commissions, authorities and agencies), and 
        (3) public school superintendents, principals, and teachers. It does not apply to other county workers. 
        W. Va. Code § 61-10-15 prohibits these designated county personnel from having personal financial interests, directly or indirectly, in a contract, purchase or sale over which their public position gives them "voice, influence or control." The prohibition extends to their spouses, their dependents, and businesses in which they have an ownership interest or by which they are employed. 
        The Ethics Commission has authority to grant an exemption from the prohibition to a County Agency based upon a documented hardship.

Nepotism and County Employment
        W. Va. Code § 61-10-15 imposes strict limitations on nepotism in employment. County Officials may not hire their spouses or dependent family members. Further, County Commissioners, their spouses, and dependent family members are prohibited from working at any County office or agency. If a County Official is elected when the official’s spouse is currently employed in the same County Office, or in the case of a County Commissioner in any County Office, then the spouse must immediately terminate his or her employment.
Exceptions: 
        • The spouse of a County Commissioner may work at a county hospital if the spouse is a licensed medical professional; 
        • Spouses of school board members, superintendents, principals or teachers may be employed as a principal, teacher, auxiliary or service employee in the public schools; 
        • A joint county and circuit clerk may employ his or her spouse.  
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Additional Agency Restrictions

       Agencies are permitted to adopt additional standards of conduct for their personnel that are more restrictive than the minimum standards established in the Ethics Act. Therefore, you may want to check with your agency to see if it imposes additional rules of conduct that supplement these general prohibitions. 
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Lobbying

        The Ethics Act requires anyone who is compensated to lobby in support of or opposition to any legislation or legislative or administrative rules, or who spends over $150 annually on public officials in furtherance of such activity, to register with the Ethics Commission.     
        Registered lobbyists are required to file periodic reports of their lobbying activity, including reporting certain expenses. These reports are public records and are subject to random audits by the Commission.     
        Additional information on lobbying is available in the Commission’s Guide to Lobbying in West Virginia. This pamphlet my be obtained from the Commission’s office or downloaded from the Commission’s website. 
        The Commission also publishes annually a directory of registered lobbyists. This same information is updated and posted on the Commission’s website.  
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  Lobbyist Information


Financial Disclosure 

        Certain public officials and candidates are required to file financial disclosure statements with the Commission. Candidates for all state and county offices must file a financial disclosure statement within ten days after he or she files a certificate of candidacy. Those persons who are elected to such positions thereafter must file a financial disclosure report annually. In addition, all members of state boards, commissions and agencies who are appointed by the governor must file within 30 days after assuming their duties. Thereafter, they must file annually as long as they serve in an appointed position.     Cabinet secretaries, commissioners, deputy commissioners, assistant commissioners, directors, deputy directors, and department heads are required to file annual reports. These forms are public records available for inspection in the Commission’s offices during regular business hours.
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Complaints

        The Ethics Commission has sole responsibility for investigating and resolving violations of the Ethics Act. Any citizen who is aware of a violation of the Act may file a verified written complaint with the Commission. The Commission must consider all sworn complaints it receives.  (Complaint FORMS)
        The Commission may also initiate complaints, if it receives credible evidence of a material violation. Whether a complaint is initiated by a citizen or the Commission, the Commission only investigates those complaints which a three-member Probable Cause Review Board finds allege a material violation of the Act. 
        Complaints which allege trivial or inconsequential violations or are outside the two year statute of limitations are dismissed. 
        The Commission has authority to subpoena evidence and testimony although no person alleged to have violated the Act is required to give testimony. However, it is a violation of the Act to give false and misleading information to the Commission or to procure or induce another to provide false information to the Commission. 
        Persons found guilty of a material violation of the Act may be publicly reprimanded and fined up to five thousand dollars per violation. In appropriate circumstances, the Commission may order restitution or recommend that the person be removed from office or that his or her employment be terminated. 

Bad Faith Complaints    
        If the Commission finds by clear and convincing evidence that a complaint was made in bad faith, either knowing that the allegations are untrue or in reckless disregard for the truth, it may issue sanctions against the complainant.     Possible sanctions include ordering the payment of reasonable attorney fees to the respondent, reimbursing the Commission for its investigative costs and being barred from filing any further complaints with the Commission.     For more detailed information, see Complaints
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Code of Conduct for Administrative Law Judges

        The Ethics Commission administers a Code of Conduct for Administrative Law Judges serving in the executive branch of state government. The Code of Conduct was developed in consultation with the West Virginia State Bar to establish rules of professional conduct for the administrative judiciary similar to the rules governing judges in the judicial branch of state government. The Code is found in the Commission’s Legislative Rule Title 158, Series 13. 
        A three member Committee on Standards of Conduct for Administrative Law Judges issues written advisory opinions on the meaning and application of the Code to persons who are subject to these standards. The Commission also adjudicates verified complaints filed against administrative law judges through a formal complaint process.
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Open Meetings Act    (also known as the Sunshine Law)

         The Open Meetings Act generally requires that meetings of a public agency’s governing body be open to the public and that reasonable notice of the meeting and its agenda be given. (W. Va. Code § 6-9A­1 through 12) 
        The West Virginia Ethics Commission’s Committee on Open Governmental Meetings issues written advisory opinions to governing bodies requesting advise on their proposed actions or action of an ongoing nature. The Commission’s staff provides guidance to governing bodies and the public on how to comply with the Act. 
        The Ethics Committee has no role in enforcing the Act. Any citizen may file a civil action in Circuit court within 120 days after the action or decision complained of. Only the Court has the power to compel compliance with the Act. See the “Guide to Open Governmental Proceedings Act ” booklet for more detailed information.   
Guide to Open Meetings 
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Education & Outreach 

        The Ethics Commission staff provides a variety of ethics education programs free of charge. In addition to conducting training programs for groups of public officials, public employees and citizens, the Commission has pamphlets and guidelines addressing various ethics issues. Many of these materials may be downloaded from this web site.     
        If you have questions, need more information or wish to request an Ethics Commission representative to provide training, please write, call or email ethics@wv.gov

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