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 Overview of the Ethics Act

Overview 

All Public Servants are Subject to the Ethics Act
Private Gain
Gifts
Voting
Public Contracts
Licensing and Rate-Making
• Employment or Changing Jobs
Dual Compensation
Purchase of Real or Personal Property
Other Conflicts of Interest 
Confidential Information
Private Pay Prohibited
Employment Limitations During and after Government Service
• Nepotism
• For County Public Servants Only
Additional Agency Restrictions
Lobbying
Financial Disclosure
Complaints
Name/Likeness Prohibition ("Trinkets") 
Code of Conduct for Administrative Law Judges - Code of Conduct
Open Meetings Act 
 


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.

 


 

Private Gain

           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. 
            Public employees and employees may not use their employer’s supplies or equipment for personal projects or activities.  Public officials and employees may not use their subordinates to work on their 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

The Ethics Act provides that public officials and public employees may not solicit a gift unless the solicitation is for a charitable purpose, and the charitable purpose must be one from which they and their immediate family members derive no direct personal benefit. (However, see the exceptions set forth below.)

Public officials and employees may not directly solicit a subordinate for any gift even if the gift is for a charitable purpose.  The Ethics Act's prohibition against solicitation of gifts does not apply to solicitation of political contributions.  
  
The Ethics Act prohibits public officials and public employees from accepting gifts from lobbyists, or any person whom the official or employee knows or has reason to know is doing or seeking to do business of any kind with his or her agency; is engaged in activities which are regulated or controlled by his or her agency; or has financial interests which may be substantially and materially affected,  in a manner distinguishable from the public generally, by the performance or nonperformance of his or her official duties.

Notwithstanding the general prohibitions set forth in the prior two sections against public officials and employees accepting gifts, the Ethics Act provides that the following types of gifts may be accepted by public employees or public officials from lobbyists or others:

          (A) Meals and beverages of any dollar value may be accepted if the person purchasing the meal is present.  Otherwise, public officials and employees may accept meals and beverages totaling $25;
          (B) Ceremonial gifts or awards which have insignificant monetary value;
          (C) Unsolicited gifts of nominal value or trivial items of informational value are permissible if the value of any one item, or a combination of items from the same source, given to a public official or employee does not total more than $25 in one calendar year;
          (D) Reasonable expenses for food, travel and lodging of the official or employee for a meeting at which the official or employee participates in a panel or has a speaking engagement.  A public official or employee may not accept expenses for amenities at the event such as free golf or spa treatments unless they are part of the room package for all guests staying at the hotel. Reasonable expenses for food, travel and lodging for one guest to attend may be accepted;
          (E) Gifts of tickets or free admission extended to a public official or public employee to attend charitable, cultural or political events if the purpose of such gift or admission is a courtesy or ceremony customarily extended to the office and the tickets are given by the sponsor of the event.  Free tickets to sporting events may only be accepted if the ticket is $25 or less and the ticket is given by a sponsor of the event. If the price of entrance is greater than $25, an official may accept the ticket only if it is incidental to the conduct of official or ceremonial duties; 
          (F) Gifts that are purely private and personal in nature, or
          (G) Gifts from relatives by blood or marriage or a member of the same household.

           For additional information on gifts, click Title 158, Series 7 or Gift Guidelines.

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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.
          “Immediate family” includes 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-in-law, father-in-law, sister-in-law, brother-in-law, son-in-law or daughter-in-law.  
          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 or a compensated officer or board member of the non-profit.  If the public official or immediate family member is an uncompensated officer or board member of the nonprofit, then the public official may vote on the matter only if the public official publicly discloses such relationship of the public official’s or his immediate family member’s relationship to the nonprofit.  Such disclosure must be made on the agenda item relating to the appropriation or contract, if known at the time of the agenda, by the public official at the meeting prior to the vote, and in the minutes of the meeting. 
           These voting rules do not apply to members of the Legislature.   Legislative voting is governed by a separate provision in the Act (W. Va. Code § 6B-2-5(i)) which permits Legislators to vote after obtaining a ruling from the presiding officer in their chamber regarding any potential conflict.
           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.   Meeting minutes should reflect the recusal as well as the reason for the recusal. 

For more information, click here for Guideline on Votin
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Public Contracts

        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.   (back to top)

Employment 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 Guideline entitled How to Seek an Employment Exemption before Looking for a New Job.
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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 or working conditions by a public official or public employee to relatives or persons with whom the public official or public employee resides. 

         A public official or public employee may not show favoritism or grant patronage in the employment or working conditions of his or her relative or a person with whom he or she resides. “Public official” and “public employee” as used to this section means all elected and appointed public officials and public employees, whether full- or part-time, in state, county, municipal governments and their respective boards, agencies, departments and commissions and in any other regional or local governmental agency, including county school boards.
 
         The Ethics Act prohibits public officials and public employees from knowingly and intentionally using their office or the prestige of their office for their own private gain or the private gain of another person. Nepotism is one form of the use of office for private gain because if public officials or employees use their positions to give an unfair advantage to relatives or persons with whom the public official or employee resides, the primary benefit to such action is to the public official or employee or another person rather than to the public. 

         "Relative" means spouse, mother, father, sister, brother, son, daughter, grandmother, grandfather, grandchild, mother-in-law, father-in-law, sister-in-law, brother-in-law, son-in-law or daughter-in-law.

         A public agency, including its officials and employees, must administer the employment and working conditions of a relative of a public employee or a public official or a person with whom the public official or employee resides in an impartial manner. To the extent possible, a public official or public employee may not participate in decisions affecting the employment and working conditions of his or her relative or a person with whom he or she resides. If he or she is one of several people with the authority to make these decisions, others with authority shall make the decisions.

         A public official or public employee may not directly supervise a relative or a person with whom he or she resides. This prohibition includes reviewing, auditing or evaluating work or taking part in discussions or making recommendations concerning employment, assignments, compensation, bonuses, benefits, discipline or related matters. This prohibition does not extend to matters affecting a class of five or more similarly situated employees.

         If a public official or public employee must participate in decisions affecting the employment, working conditions or supervision of the public official or public employee’s relative or a person with whom the public official or public employee resides, then:

         • An independent third party shall be involved in the process. A public official or public employee may not use a subordinate for the independent third party unless it is an elected public official who may not lawfully delegate the powers of his or her office, e.g,, county assessor or county clerk, and 
         • The public official or employee shall exercise his or her best objective judgment in making the decision, and be prepared to justify his or her decision.

         A public official may not vote on matters affecting the employment or working conditions of a relative unless the relative is a member of a class of persons affected. A class shall consist of not fewer than five similarly situated persons. For a public official’s recusal to be effective, he or she must excuse him or herself from participating in the discussion and decision-making process by physically removing him or herself from the room during the period, fully disclosing his or her interests and recusing him or herself from voting on the issue.

         Certain county public officials and local board of education officials and employees are subject to the stricter limitations in W. Va. Code § 61-10-15. Other provisions in the Code or a public agency’s own policies, rules, regulations, ordinances or charters may further limit or prohibit the hiring of a relative or a person with whom a public official or employee resides.

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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 by clicking here.  
        The Commission also publishes a directory of registered lobbyists. To view the directory, click here.    
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Financial Disclosure 

        Certain public officials and candidates for certain offices are required to file Financial Disclosure Statements (“FDS”) by February 1 of each year.  Candidates for all state and county offices must file a FDS within 10 days of filing their Certificates of Announcement.  Those who are elected must then file a FDS annually.
         Members of state boards, commissions and agencies who are appointed by the governor must file within 30 days after assuming their duties.  They must then file annually as long as they serve in an appointed position.
         State Executive Department Cabinet secretaries, commissioners, deputy commissioners, assistant commissioners, directors, deputy directors, and department heads are also required to file annual FDSs. 
         Completed forms are public records available for inspection in the Commission’s offices during regular business hours.  In addition, FDSs filed by certain individuals are placed on this website.


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Complaints

          The Ethics Commission investigates and resolves violations of the Ethics Act.   Any person may file a written complaint, which must include a notary public’s signature.     
          To access a Complaint form and instructions, click here.
          The Commission itself may initiate a Complaint if it receives credible evidence of a material violation of the Ethics Act.  All Complaints are considered by the three-member Probable Cause Review Board, which initially determines whether the allegations in the Complaint, if taken as true, state a “material” violation of the Ethics Act.  (A material violation is one which is not trivial or inconsequential.) Those Complaints which do state a material violation are then investigated.  Those which do not are dismissed.
          Complaints which allege trivial or inconsequential violations or were filed outside of the statute of limitations are dismissed.  The statute of limitations for alleged violations which occurred before July 1, 2016, is two years.  For violations which occur on or after July 1, 2016, the statute of limitations is five years.
          The Ethics Commission has the authority to subpoena evidence and testimony, although no person alleged to have violated the Act is required to give testimony.   It is a violation of the Act to give false and misleading information to the Commission or to procure or induce another person to provide false information.
          Persons found to have violated the Ethics Act may be publicly reprimanded, fined up to $5,000 per violation, ordered to pay restitution and/or ordered to reimburse the Commission for its costs of investigation and prosecution.  The Commission also may recommend that the person be removed from office or that his employment be terminated.  
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 Name/Likeness Prohibition ("Trinkets")

             This section of the Act is commonly referred to as the “trinkets statute” and provides that public officials, their agents, or anyone on public payroll may not place the official’s name or likeness on trinkets and other places paid for with public funds in violation of the section’s limitations and prohibitions. This section is set forth in W.Va. Code § 6B-2B-1 through -6. 

            The Act provides limitations and prohibitions on the use of public officials’ names or likenesses on “trinkets,” advertising, vehicles, table skirts, banners, educational materials, websites and social media that are paid for with public funds. 

            The statute does not prohibit a public official’s name and likeness on any official record or report, letterhead, document or certificate or instructional material issued in the course of his/her duties as a public official. Other official documents, such as fax cover sheets, press release headers, office signs and envelopes may include the public official’s name, but not his/her likeness.

To view more detail concerning the name/likeness provisions, click here.   
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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 establishes rules of professional conduct for the administrative ALJs. To view this portion of the Ethics Act, which is found in Legislative Rule Title 158, Series 13, click here. 

          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 the standards. The Commission also adjudicates Verified Complaints filed against Administrative Law Judges.

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Open Meetings Act

          The Ethics Commission interprets, but does not enforce, the Open Governmental Meetings Act, W. Va. Code § 6-9A-1 through 12.

          The Commission’s Committee on Open Governmental Meetings issues written Advisory Opinions in response to requests from governing bodies, or members thereof, as to whether an action or proposed action violates the Open Governmental Meetings Act. In addition, the Commission’s staff provides guidance to governing bodies and the public on how to comply with the Open Governmental Meetings Act.

          However, the Ethics Commission does not have jurisdiction or power to enforce the Open Governmental Meetings Act. To address violations, a citizen may file a civil action in the circuit court in the county where the public agency regularly meets. These actions must be filed within 120 days after the action or decision complained of was taken. Citizens filing such civil actions should be advised that other requirements of the West Virginia Code, including at least 30 days’ notice of the suit to the state executive branch agency and the Attorney General, may be required. 

          For questions regarding public notices of meetings by state governing bodies or notice requirements of the Secretary of State, please contact the Secretary of State’s office or visit its website at
http://www.sos.wv.gov/administrative-law/Pages/online-meeting-notices.aspx

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