Title 158 W. Va. C.S.R.

Ethics Commission Ethics Commission

Series 01 WV Ethics Commission

W. Va. Code R. § 158-1-1 General Provisions

1.1. Scope. -- This rule sets forth the practice and procedure established by the West Virginia Ethics Commission for maintaining the confidentiality of communications and documents in accordance with the West Virginia Governmental Ethics Act, (hereafter referred to as the "Act") W. Va. Code §6B-1-1 et seq.

1.2. Authority. -- W. Va. Code §§6B-2-2 and 6B-2-4.

1.3. Filing Date. -- April 14, 2006.

1.4. Effective Date. -- April 20, 2006.

1.5. This rule repeals and replaces the previous rule filed with the Secretary of State on July 6, 1993. The previous rule, with modification, has been refiled as a procedural rule with the designation 158 CSR 19.

W. Va. Code R. § 158-1-2 Confidentiality

2.1. Confidentiality Requirements.

2.1.a. The Commission and Review Board shall keep all matters or information received by the Commission and the Review Board relating to a complaint, including the identity of the complainant and respondent, confidential except as otherwise provided by the Ethics Act, chapter 6-B of the West Virginia Code, or this Rule.

2.1.b. If the respondent agrees in writing to a release of information, the Commission or Review Board may disclose any information relating to a complaint or an investigation to the public at any time.

2.1.c. Upon a finding by the review board that probable cause exists to believe that there has been a violation of chapter six-B of the West Virginia Code, the complaint and all reports, records, non-privileged and non-deliberative material used to determine probable cause of a violation are thereafter not confidential.

2.2. The following documents are confidential by law and privileged and shall not be subject to the provisions of chapter twenty-nine-B of this code nor subject to subpoena:

2.2.a. any record, report, memorandum, or communication dealing with the internal practice, policy and procedure of the Commission.

2.2.b. any record, report, memorandum, or communication of the staff or Commission member regarding the institution, progress or result of an investigation of a complaint.

2.2.c. the work product of an investigator or other staff member made in the course of an investigation of a complaint, or in preparation for the Review Board or in anticipation of or in preparation for a hearing on the complaint.

2.2.d. any memorandum, statement or opinion prepared or directed to be prepared by legal counsel to the Commission.

2.2.e. the identity of a confidential informant unless he or she is the complainant or will be a witness for the Commission at the hearing.

2.2.f. any record, report, memorandum, or communication of the staff or Commission member regarding the rendering of advice to a public official or employee; Provided, That, this subdivision does not apply to advisory opinions which are issued by the Commission.

2.3. Notwithstanding the provisions of this subsection, a member, employee or agent of the Commission may:

2.3.a. For the purpose of investigating a sworn complaint or motion, disclose to the complainant, the respondent, or a witness information that is otherwise confidential and relates to the sworn complaint if the disclosure is necessary to conduct an investigation.

2.3.b. Share otherwise confidential documents, materials or information with appropriate agencies of state government, including county prosecuting attorneys, provided that the recipient agrees to maintain the confidentiality and privileged status of the document, material or information.

2.4. The confidentiality of the information remains in full force and effect until the respondent has been served by the commission with a copy of the review board’s order finding probable cause and with the statement of charges.

2.5. After a finding of probable cause any subsequent hearing held for the purpose of receiving evidence or the arguments of the parties or their representatives shall be open to the public and all reports, records and non-deliberative materials introduced into evidence as well as the commission's orders, are not confidential.

2.5.a. The complaint as well as the identity of the complainant shall be disclosed to a person named as respondent in any complaint filed with the commission immediately upon the respondent's request.

2.5.b. The commission shall disclose the complaint and all reports, records, and non-privileged and non-deliberative material where the commission is otherwise required by the provisions of chapter six-B of the W. Va. Code to disclose the information or to proceed in such a manner that disclosure is necessary and required to fulfill the requirements.

2.5.c. No present or former Commission member or employee may knowingly and improperly disclose any confidential information, which is not otherwise subject to disclosure pursuant to chapter six-B of the W. Va. Code or the provisions of this section, acquired by him or her in the course of his or her official duties.

2.5.d. The Commission may order a person filing a complaint to be bound to confidentiality if the Commission makes a finding that there is a reasonable likelihood that the dissemination of information regarding a pending or imminent proceeding will interfere with a fair hearing or otherwise prejudice the due administration of justice.

158CSR1

158CSR1

Series 03 Purchase, Sale Or Lease Of Personal Property

W. Va. Code R. § 158-3-1 General

1.1. Scope. -- This legislative rule establishes guidelines for the purchase, sale or lease of personal property by full-time public officials or employees from persons under their regulatory control or from persons who either have a contract or who are seeking to contract with the public agency by whom they are employed.

1.2. Authority. -- W. Va. Code §6B-2-5(h).

1.3. Filing Date. -- June 8, 2009.

1.4. Effective Date. -- July 1, 2009.

W. Va. Code R. § 158-3-2 Exemptions to Prohibitions on Transactions Between Public Officials and Employees and Regulated Persons or Vendors

A full-time public official or full-time public employee prohibited from purchasing, selling or leasing personal property to or from a regulated person or vendor pursuant to the provisions of W. Va. Code § 6B-2-5(h) may nevertheless engage in the prohibited transaction:

2.1. If the transaction exclusively involves personal property, including consumer goods, purchased, sold or leased through a commercial establishment which offers the same personal property for sale or lease to the general public.

2.2. If the total value of the personal property involved has a fair market value of $25.00 or less, or

2.3. After seeking and obtaining the approval of the Commission in the manner provided by section 3 of this rule.

W. Va. Code R. § 158-3-3 Request for An Exemption

3.1. A full-time public official or full-time public employee prohibited from purchasing, selling or leasing personal property to or from a regulated person or vendor pursuant to the provisions of W. Va. Code § 6B-2-5(h) may request that the Executive Director of the West Virginia Ethics Commission approve the transaction notwithstanding the statutory prohibition.

3.1.a. The request shall be submitted and approved prior to any agreement to conduct such a transaction may be made or completed.

3.1.b. The request shall be in writing and include the following information:

3.1.b.1. The name of the public official’s or employee’s supervisor and the name of the agency or governing body to whom he or she reports;

3.1.b.2. The facts and circumstances concerning how the public official or employee became aware that the personal property in question was for sale or lease;

3.1.b.3. The agreed purchase or lease price of the personal property;

3.1.b.4. A good faith estimate of the fair market value of the personal property and the particular information relied upon by the public official or employee in making this good faith estimate; and,

3.1.b.5. A statement that the purchase would not affect the ability of the public official or employee to perform his or her public job responsibilities.

3.1.c. The request must be addressed to the Executive Director at the following address: West Virginia Ethics Commission, 210 Brooks Street, Suite 300, Charleston, WV 25301.

3.2. The Executive Director or the Ethics Commission shall grant an exemption to purchase personal property upon a finding that:

3.2.a. The negotiations for the proposed transaction were conducted at arm’s length and there is no favoritism or appearance of favoritism;

3.2.b. If the potential seller or purchaser currently has a regulatory matter pending before the public official or employee, or a public contract over which the public official or employee exercises control, the official or employee’s supervisor will review any decisions made by the official or employee for a six month period following the transaction to ensure there is no favoritism or the appearance of favoritism in regard to the seller or purchaser and that the supervisor's agency is willing and able, based upon existing staffing, to implement this safeguard; and,

3.2.c. There are no public policy reasons to deny the request.

3.3. If the Executive Director denies a request, the public official or employee may seek a formal advisory opinion from the Ethics Commission.

3.4. The Executive Director may, in his or her discretion, decline to act upon a request and instead, refer the request to the Ethics Commission for a formal advisory opinion.

158CSR3

158CSR3

Series 05 Adjudicating Complaints Relating To Conduct Of State Administrative Law Judges

W. Va. Code R. § 158-5-1 General

1.1. Scope. -- This procedural rule sets forth the practice and procedure to be followed in adjudicating or otherwise resolving complaints against state administrative law judges who are subject to the code of conduct promulgated by the West Virginia Ethics Commission in accordance with W. Va. Code § 6B-2-5a and contained in 158 CSR 13.

1.2. Authority. -- W. Va. Code §6B-2-5a.

1.3. Filing Date. -- February 16, 2005.

1.4. Effective Date. -- March 18, 2005.

1.5. Severability –If any section or subsection of these rules is determined to be invalid, it shall not be construed to invalidate any of the provisions not otherwise affected.

1.6. Availability of Rules – This rule is on file in the Office of the Secretary of State, and copies are available at the commission’s office at 1207 Quarrier Street, Suite 407, Charleston, West Virginia 25301.

W. Va. Code R. § 158-5-2 Definitions

2.1. “Committee” means the West Virginia Ethics Commission Committee on Standards of Conduct for Administrative Law Judges created in accordance with 158 CSR 13 § 5.1, acting in the capacity of an investigative panel.

2.2. “Complainant” means a person who files a complaint with the ethics commission.

2.3. “Respondent” means a person against whom a complaint has been filed with the ethics commission.

2.4. "Subpoena" means an official document requiring the appearance of an individual at a given time and place.

2.5. "Subpoena duces tecum" means an official document requiring that an individual named to appear at a given time and place must bring a specific document or documents.

2.6. “Verified Complaint” means a complaint which has been reduced to writing and duly verified by oath or affirmation before a notary public.

W. Va. Code R. § 158-5-3 Filing Verified Complaints

3.1. Any person may file a verified complaint with the committee regarding the conduct of a person or persons subject to the Code of Conduct for Administrative Law Judges in 158 CSR 13.

3.2. A duly verified complaint must be filed with the committee at 1207 Quarrier Street, Suite 407, Charleston, West Virginia 25301.

3.3. The executive director or his or her designee shall within three working days of receipt in the committee’s office acknowledge the verified complaint by first class mail.

W. Va. Code R. § 158-5-4 Acceptance or Dismissal of Complaints

4.1. In considering a complaint, the committee shall act in the capacity of an investigative panel. The investigative panel must first determine whether the allegations stated in the complaint, if taken as true, would constitute a material violation of 158 CSR 13.

4.2. If two members of the investigative panel determine that the complaint does not contain allegations which would constitute a material violation of 158 CSR 13, then the investigative panel shall dismiss the complaint by order. A copy of the order shall be sent to the complainant by first class mail.

4.3. If the investigative panel determines that the allegations of the complaint, if taken as true, would constitute a material violation of this 158 CSR 13, then the executive director or his or her designee shall give notice of the initiation of an investigation (Notice of Investigation) by the panel to the complainant and respondent.

4.4. The Notice of Investigation, accompanied by a copy of the complaint, shall be mailed to the parties and be sent to the respondent by certified mail, return receipt requested, marked "Addressee only, personal and confidential."

4.5. The Notice of Investigation shall describe respondent's conduct which is the basis for the alleged violation of 158 CSR 13.

4.6. The Notice of Investigation shall advise the respondent that the purpose of the investigation is to determine whether probable cause exists to believe a violation of the Code of Conduct for Administrative Law Judges has occurred which may subject the respondent to sanctions by the West Virginia Ethics Commission.

4.7. The Notice of Investigation shall also inform the respondent that he or she has the right to appear and make an oral response before the investigative panel if he or she reserves the right to make an appearance in writing within fifteen (15) days of the date of notice.

4.8. The Notice of Investigation shall also inform the respondent that he or she may respond in writing to the investigative panel within thirty (30) days of receipt of the notice, which time may be extended by the chairman of the investigative panel upon good cause shown by the respondent.

4.9. The Notice of Investigation shall also advise the respondent that his or her failure or refusal to respond to a fact or allegation is not taken as an admission of the truth of that fact or allegation.

W. Va. Code R. § 158-5-5 Investigation

5.1. The investigative panel has forty five (45) days following the mailing of notice of investigation to consider:

5.1.a. The allegations raised in the complaint;

5.1.b. Any timely received written response of respondent;

5.1.c. Any oral response received from the respondent;

5.1.d. Other competent, relevant evidence submitted by any person to the commission; and

5.1.e. Other competent, relevant evidence gathered by the commission.

5.2. If the respondent requests an appearance before the investigative panel to present an oral response to the complaint, the investigative panel chairman will schedule a meeting to be held after the time has passed for the respondent to file a written response (within 30 days after the notice of investigation is received by the respondent). The respondent, his or her counsel, legal counsel to the commission and the commission investigator(s) may be present at the meeting.

5.3. The respondent has thirty minutes to make an oral response or statement of defense to the charges or allegation contained in the complaint. The respondent’s testimony will be taken under oath or affirmation. The investigative panel, in its discretion, may allow the respondent additional time for the oral response. The investigative panel may either record the testimony electronically or employ the services of a court reporter to record and transcribe the proceedings, as necessary.

5.4. The investigative panel may seek additional probative information from the respondent as is necessary for its investigation.

5.5. The ethics commission and the investigative panel may issue subpoenas as is necessary and any subpoena issued has the same effect as one issued by a circuit court of the state.

5.6. The commission may seek enforcement of any subpoena issued by the commission or a hearing examiner as provided under this rule by applying to the Circuit Court of Kanawha County, through the issuance of a rule or an attachment against the respondent in a contempt case.

W. Va. Code R. § 158-5-6 Findings of Probable Cause

6.1. If a majority of the investigative panel fails to find probable cause the proceedings shall be dismissed by order of the commission signed by a majority of the members of the investigative panel.

6.2. The commission order shall be signed by the majority members of the panel and copies of the order shall be sent to complainant and respondent within three days of execution of the order by the panel members.

6.3. If a majority of the investigative panel finds probable cause to believe that a violation under 158 CSR 13 has occurred the majority members of the investigative panel shall sign an order directing the commission staff to prepare a statement of charges and to schedule a hearing within sixty (60) days after the date of the order.

W. Va. Code R. § 158-5-7 Confidentiality Requirements

7.1. The commission shall keep all matters or information received by the commission and the investigative panel relating to a complaint, including the identity of the complainant and respondent, confidential except as otherwise provided by this rule.

7.2. If the respondent agrees in writing to a release of information, the commission may disclose any information relating to a complaint or an investigation to the public at any time.

7.3. Upon a finding by an investigative panel that probable cause exists to believe that there has been a material violation of one of the prohibitions in 158 CSR 13, the complaint and all reports, records, non-privileged and non-deliberative material used to determine probable cause of a violation are thereafter not confidential: Provided, That confidentiality of the information remains in full force and effect until the respondent has been served by the commission with a copy of the investigative panel's order finding probable cause and with the statement of charges.

7.4. After a finding of probable cause any subsequent hearing held for the purpose of receiving evidence or the arguments of the parties or their representatives shall be open to the public and all reports, records and non-deliberative materials introduced into evidence as well as the commission's orders, are not confidential.

7.5. The complaint as well as the identity of the complainant shall be disclosed to a person named as respondent in any complaint filed with the commission immediately upon the respondent's request.

7.6. The commission may release any information relating to an investigation at any time if the release has been agreed to in writing by the respondent.

7.7. The commission may order a person filing a complaint to be bound to confidentiality if the commission makes a finding that there is a reasonable likelihood that the dissemination of information regarding a pending or imminent proceeding will interfere with a fair hearing or otherwise prejudice the due administration of justice.

W. Va. Code R. § 158-5-8 Notice of Hearing

8.1. If an investigative panel finds probable cause to believe a violation of 158 CSR 13 has occurred, the executive director shall serve respondent by certified mail, return receipt requested, a notice of the hearing at least forty-five (45) days prior to the date of the hearing.

8.2. The notice shall contain a statement of the charges, and provide the date, time, and place of the hearing.

8.3. Copies of the panel’s order finding probable cause and the statement of charges shall be forwarded to the government agency where the respondent is or was employed or was under contract at the time of the events alleged as a violation of 158 CSR 13.

W. Va. Code R. § 158-5-9 Continuances

9.1. The scheduled hearing may be continued only upon a showing of good cause by either party prior to the hearing.

W. Va. Code R. § 158-5-10 Hearing Board and Hearing Examiner

10.1. The commission members who have not served as members of the investigative panel in a particular case shall comprise a hearing board responsible for adjudicating the case. A hearing examiner shall be employed by the commission to preside at the taking of evidence at the hearing and issue a recommended decision. The hearing examiner shall be known as the "presiding officer" at the hearing as that term is used in these rules.

10.2. The qualifications of the hearing examiner shall conform to the requirements of 158 CSR 13. Hearing examiners must be attorneys licensed to practice in West Virginia, with a minimum of three years experience in the practice of law.

10.3. The hearing examiner will be selected by the chairperson of the commission, subject to approval at the next meeting by a majority vote of the commission members present and voting.

10.4. The hearing examiner presiding at a hearing may:

10.4.a. administer oaths and affirmations;

10.4.b. compel the attendance of witnesses and issue subpoenas for witnesses as provided in this rule;

10.4.c. compel the production of documents and issue subpoenas duces tecum as provided in this rule;

10.4.d. examine witnesses and parties;

10.4.e. rule on offers of proof;

10.4.f. rule on evidentiary matters;

10.4.g. regulate the course of the hearing;

10.4.h. hold conferences for the settlement or simplification of issues by consent of the parties;

10.4.i. dispose of procedural requests or similar matters;

10.4.j. accept stipulated agreements;

10.4.k. take other action authorized by the ethics commission consistent with the provisions of 158 CSR 13 and this rule; and,

10.4.l. continue the hearing date upon motion of the respondent or commission where good cause is shown.

W. Va. Code R. § 158-5-11 Disqualification of Hearing Examiners

11.1. A party seeking the disqualification of a hearing examiner must file a written, verified motion stating the facts and reasons for disqualification. The motion should be filed at least fifteen (15) days prior to a scheduled hearing or state, with particularity, why it is filed later.

11.2. The hearing examiner may disqualify himself or herself without a hearing or may refuse to do so and inform the parties that a hearing is necessary.

11.3. A member of the investigative panel assigned to the case shall be appointed by the commission chairman to hear and decide a motion for disqualification. The hearing shall be held no sooner than three days and no later than seven days after the motion is filed, unless the parties agree to a shorter or longer time period.

11.4. The party seeking disqualification of the hearing examiner may make a full record. The costs thereof, including the cost of court reporter services, witness fees and expenses shall be borne by the moving party unless the moving party prevails on the motion or makes a showing of indigence.

11.5. The investigative panel member assigned to hear the motion for disqualification shall issue a written decision on the motion as soon as practicable, but no later than seven days after the motion was heard. If a motion is granted the commission chairperson shall appoint a new hearing examiner no later than seven days after the decision on the motion is received. If the motion is denied the hearing examiner shall proceed to hear the case within the time frame set forth in the notice of hearing or, if necessary and upon a showing of good cause, shall reschedule the hearing to a later date.

11.6. The decision on the merits of a motion to disqualify a hearing examiner shall be considered interlocutory in nature and not subject to direct or immediate appeal, except that this rule shall not prohibit any party from seeking redress by appropriate extraordinary remedy.

W. Va. Code R. § 158-5-12 Prehearing Discovery

12.1. Information which is exempt from discovery includes, but is not limited to the following:

12.1.a. any record, report, memorandum, or communication dealing with the internal practice, policy and procedure of the commission.

12.1.b. any record, report, memorandum, or communication of the staff or commission member regarding the institution, progress or result of an investigation of a complaint.

12.1.c. the work product of an investigator or other staff member made in the course of an investigation of a complaint, or in preparation for an investigative panel, or in anticipation of or in preparation for a hearing on the complaint.

12.1.d. any memorandum, statement or opinion prepared or directed to be prepared by legal counsel to the commission.

12.2. The parties shall exchange within twenty-five (25) days of the mailing and receipt of notice of the hearing to the respondent:

12.2.a. reports of experts to be used at the hearing;

12.2.b. a list of witness names, addresses, and telephone numbers as available to be used at the hearing;

12.2.c. copies of documents to be used at the hearing; and

12.2.d. results of any inspection of tangible objects to be used at the hearing.

12.3. Witness Statements -- At least seven (7) days prior to the hearing the parties shall exchange written and signed statements, tape recorded statements, and statements adopted by individuals who will be witnesses at the hearing which are within the respondent's or commission's possession.

12.3.a. If a party fails to comply with section 12.3. of this rule to produce witness statements in a timely manner the hearing examiner shall bar that witness' testimony at the hearing unless good cause can be shown and the hearing examiner allows the witness' testimony.

12.4. Production of Witnesses -- Each party is entitled to compel through subpoena the attendance of any witness whose testimony may be relevant and material, except that a party is not entitled to the presence of a witness who is determined unavailable. A witness is unavailable in, but not limited to, the following situations:

12.4.a. The witness is not subject to compulsory process in West Virginia by reason of non-residence within, or prolonged absence from the State of West Virginia;

12.4.b. The witness is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity;

12.4.c. The witness is exempted from testifying by ruling of a circuit court on the ground of privilege from testifying.

12.5. Where a subpoena is issued at the instance of a party to the hearing, the cost of service, and the witness and mileage fee shall be borne by the party at whose request the subpoena is issued, at the same rate as paid to witnesses in state circuit court proceedings. The party who uses an expert witness at the hearing is responsible for payment of the appearance fee of the witness.

12.5.a. The presence of a witness may be obtained by the issuance of a subpoena requiring the attendance of the witness at the designated place, time and hearing date. A subpoena for a witness may be issued by the hearing examiner upon the written application of any party. It is the responsibility of the party requesting the issuance of a subpoena to serve the subpoena on a witness by personal service or certified mail, return receipt requested.

12.6. Production of Documents -- Each party is entitled to compel through a subpoena duces tecum the production of documents which are relevant and material to the hearing. A subpoena duces tecum may be issued by the hearing examiner upon written application of any party. It is the responsibility of the party requesting the issuance of a subpoena duces tecum to serve the subpoena on the authorized records custodian by certified mail or personal service.

12.7. Depositions -- Depositions may be obtained by any party and used for evidentiary purposes.

12.7.a. Evidentiary objections may be made on the record during any deposition or at the time the deposition is offered into evidence.

12.7.b. It is not necessary that a hearing examiner be present at the deposition.

12.7.c. A party may be permitted to take a deposition of a witness, within or without the State of West Virginia upon written request to and approval by the hearing examiner. A request for deposition shall contain:

12.7.c.1. the name and address of the person whose deposition is requested;

12.7.c.2. a brief statement of the matters on which the person is to be examined; and

12.7.c.3. a brief statement of the reasons for taking the deposition in lieu of eliciting testimony at a hearing.

12.7.d. If approval is granted for the deposition, the party taking the deposition shall provide reasonable notice of the deposition to the person deposed, all parties, and their counsel of record.

12.7.e. The notice shall be in writing and contain the date, time and place of the deposition, as well as the name and address of each person to be deposed.

12.7.f. The cost of court reporter services, witness fees and expenses shall be borne by the party taking the deposition.

12.7.g. The deposition shall be taken in the manner proscribed by the laws of West Virginia for taking depositions in civil cases in courts of record except as set forth in this rule.

W. Va. Code R. § 158-5-13 Hearing Procedure

13.1. The West Virginia Rules of Evidence shall be used in the hearing.

13.2. The complaint will be prosecuted by a member of the commission staff.

13.3. The hearing proceedings shall be electronically recorded or, the commission may employ the services of a court reporter to record and transcribe the proceedings by any means permitted in the circuit courts of this state.

13.4. Any party to a hearing has the right to be represented by an attorney duly qualified to practice in the State of West Virginia. No party may be represented at a hearing by a spokesperson, lay representative or anyone else not licensed or authorized to practice law in the State of West Virginia.

13.5. The respondent may appear without counsel and represent himself or herself at the hearing. At the beginning of the hearing the presiding officer shall insure the respondent does not desire to obtain counsel and is thoroughly advised of the sanctions which may be imposed in the event of a finding that the respondent committed a material violation of 158 CSR 13.

13.6. All parties to hearings, their counsel, and spectators shall conduct themselves in a respectful manner. Demonstrations of any kind at hearings shall not be permitted. The presiding officer may, in his or her discretion, recess or continue any hearing in which the parties, attorneys, witnesses or spectators, conduct themselves in a disrespectful, disorderly or contemptuous manner which interferes with or prevents the proper conduct of the hearing.

13.7. All testimony to be considered by the presiding officer at the hearing shall be by sworn or affirmed testimony.

13.8. The purpose of the hearing is to further inquire into the matters set forth in the statement of charges, and to record evidence and arguments in support of and in opposition to the charges so that the commission may determine all issues.

13.9. Members of the commission and its officers, agents and employees are competent to testify at the hearing as to material and relevant matters: Provided, That no member of the commission who testifies at the hearing shall thereafter participate in the deliberations or decisions of the commission with respect to the case in which he or she testified.

13.10. Each party may make a brief opening statement setting forth the evidence he or she intends to prove.

13.11. Initially the complainant or the commission's counsel shall present competent and relevant evidence, including testimony or documents, in proof of the statement of charges.

13.12. The respondent or his or her counsel may present competent and relevant evidence following the conclusion of the complainant's case.

13.13. Each party has the right to cross-examine any witness who testifies.

13.14. Following the presentation of the respondent's evidence the complainant has the right to submit rebuttal evidence.

13.15. Following the presentation of all evidence all parties have the right to offer oral argument to summarize the evidence presented, not to exceed ten (10) minutes for each presentation, unless for good cause the period is extended by the presiding officer.

13.16. All exhibits offered into evidence shall be labeled and marked as exhibits of the respective parties, such as "Complainant Exhibit," or "Respondent Exhibit".

13.17. All exhibits offered into evidence, or copies thereof, shall be appended to the record of proceedings, and if any exhibit is not susceptible to attachment or copying either a photograph, facsimile, or description of the exhibit may be substituted.

13.18. The presiding officer may order witnesses sequestered upon his or her own motion or on the motion of a party.

13.19. The respondent is entitled to be present and to present evidence at the hearing; however, the taking of evidence and a final determination of the issues shall not be prevented, and the respondent shall be considered to have waived the right to be present if:

13.19.a. after being notified of the date, time and place of hearing he or she does not appear, absent a prior showing of good cause, or

13.19.b. after being advised by the presiding officer that disruptive conduct will cause removal from the hearing, he or she persists in conduct which justifies his or her exclusion from the hearing.

13.20. The cost of preparing a transcript of the hearing shall be borne by the party requesting it. Upon a showing of indigence by the respondent, however, the commission may provide a transcript of the hearing without charge.

W. Va. Code R. § 158-5-14 Findings of Fact, Conclusions of Law, and Briefs

14.1. Any party, within fifteen (15) days from the conclusion of the hearing, may submit proposed findings of fact, conclusions of law and a brief containing argument. All proposed findings of fact, conclusions of law and briefs shall be filed with the West Virginia Ethics Commission at 1207 Quarrier Street, Charleston, West Virginia 25301.

14.2. Findings of fact shall be limited to the facts admitted into evidence at the hearing or made part of the record and any facts found through judicial notice.

W. Va. Code R. § 158-5-15 Decision by Hearing Examiner

15.1. The hearing examiner shall prepare a recommended decision following the fifteen (15) day period after the hearing reserved to the parties to submit proposed findings of fact, conclusions of law and any briefs containing argument.

15.2. The hearing examiner has forty five (45) days from receipt of the proposed findings and conclusions from the parties to issue his or her recommended decision.

15.3. The hearing examiner shall serve copies of this recommended decision on the parties by certified mail, return receipt requested, and submit the recommended decision, along with the entire record, to the commission for final decision by the hearing board.

15.4. The commission members who have not served as members of the investigative panel in a particular case shall comprise the hearing board responsible for making the commission’s final determination on a complaint.

15.5. The parties may submit briefs to the commission's hearing board in support of or in opposition to the hearing examiner's recommended decision within fourteen (14) days of receipt of the recommended decision.

15.6. The commission's hearing board shall then have forty-five days (45) within receipt of the entire record to make a final decision on behalf of the commission.

15.7. Any party may request an opportunity to make an oral argument to the hearing board members prior to their deliberations on the hearing examiner's recommended decision and the imposition of appropriate sanctions, if applicable. The request must be made in writing and submitted with the party's brief regarding the hearing examiner's recommended decision filed pursuant to section 15.1 of this rule. Oral argument shall not exceed ten (10) minutes for each presentation, unless for good cause the period is extended by the chairperson of the hearing board.

W. Va. Code R. § 158-5-16 Hearing Board Record

16.1. The exclusive record for decision is:

16.1.a. the transcript or recording of testimony at the hearing;

16.1.b. exhibits introduced into evidence at the hearing;

16.1.c. all documents filed in the proceeding, and

16.1.d. the proposed decisions and any briefs submitted by the parties.

16.2. A party permitted by the commission to take and file an evidentiary deposition, or otherwise exercise discovery may make that part of the record.

W. Va. Code R. § 158-5-17 Final Decision

17.1. All final decisions of the commission must be in writing and copies mailed within three days of the final decision by certified mail, return receipt requested, to all parties.

17.2. A final decision must be approved by at least six members of the commission's hearing board.

W. Va. Code R. § 158-5-18 Recusal of Ethics Commissioners

18.1. Members of the commission shall recuse themselves from a particular case upon their own motion with the approval of the commission or for good cause shown upon motion of a party. The remaining members of the commission shall by majority vote, select a temporary member to serve in the place of a recused member.

18.2. The temporary replacement for a recused commission member shall be a person of the same status or category provided in W. Va. Code §6B-2-1(b) as the recused member.

W. Va. Code R. § 158-5-19 Sanctions

19.1. In its final decision the commission may impose one or more of the following sanctions upon the respondent if it finds, by clear and convincing evidence, that one or more charges are true and constitute a material violation of 158 CSR 13:

19.1.a. a written admonishment;

19.1.b. a cease and desist order;

19.1.c. an order of restitution of money, thing of value, or services taken or received in violation of 158 CSR 13; and,

19.1.d. fines not to exceed one thousand dollars for each violation.

19.2. The commission may institute civil proceedings in the circuit court of the county wherein a violation occurred for the enforcement of sanctions imposed in its final decision.

19.3. In addition to the foregoing sanctions, the commission may recommend to the appropriate governmental body that the respondent be suspended or terminated from employment, removed from office, or disqualified from serving in the capacity of an administrative law judge either permanently or until such time as the respondent has completed an approved course of remedial training.

W. Va. Code R. § 158-5-20 Conciliation Agreements

20.1. At any stage of the proceedings, the commission may enter into a conciliation agreement with a respondent if such agreement is deemed by a majority of the members of the commission to be in the best interest of the state and the respondent.

20.2. Any conciliation agreement must be disclosed to the public.

20.3. Upon acceptance of a conciliation agreement, a majority of the members of the commission may elect to impose one or more of the sanctions provided in the preceding section.

W. Va. Code R. § 158-5-21 Appeal

21.1. The respondent may appeal final decisions of the commission involving the issuance of sanctions to the circuit court of Kanawha County, West Virginia, only upon grounds set forth in W.Va. Code § 29-5-4.

W. Va. Code R. § 158-5-22 Immunity Absent Malicious or Fraudulent Complaints

22.1. Any person, official, or agency who in good faith files a verified complaint pursuant to 158 CSR 13 shall be immune from any civil liability that otherwise might result by reason of such actions.

22.1.a. In the event a person files a verified complaint which is determined by the committee to have been made maliciously or fraudulently, either knowing that the statements contained therein were not true, or in reckless disregard to the truth or falsity of material allegations contained in the complaint, the committee may impose one or more of the following sanctions on the complainant:

22.1.a.1. Make reimbursement to the respondent for reasonable actual costs incurred by the respondent;

22.1.a.2. Pay reasonable attorney fees incurred by the respondent;

22.1.a.3. Make reimbursement to the commission for the reasonable actual costs of investigation;

22.1.a.4. Decline to process any further complaints from the same individual until all monetary sanctions have been satisfied.

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Series 06 Use of Office for Private Gain, Including Nepotism

W. Va. Code R. § 158-6-1 General Provisions

1.1. Scope. -- This legislative rule establishes requirements relating to the private gain provisions, including nepotism, in the Ethics Act.

1.2. Authority. -- W. Va. Code § 6B-2-5(b) and W. Va. Code § 6B-2-2(a).

1.3. Filing Date. -- March 31, 2022.

1.4. Effective Date. -- May 15, 2022.

1.5. Sunset Provision: This rule shall terminate and have no further force or effect on August 1, 2027.

W. Va. Code R. § 158-6-2 Exceptions to Using Office for Private Gain

2.1. The following acts performed by a public official or public employee do not constitute an improper use of office for private gain:

2.1.1. Usual and customary duties associated with the office or position,

2.1.2. Services relating to the advancement of public policy goals, and

2.1.3. Constituent services without compensation.

2.2. A public official acting in his or her capacity as a public official may request information on behalf of a constituent provided that no fee, reward, or other thing of value is directly or indirectly accepted by the public official. The provisions of this subsection do not apply to a public official acting in his or her private capacity.

2.3. A public official or public employee may travel out-of-state to attend seminars or to inspect certain facilities or products on behalf of his or her public agency, provided that such activities are among the public official’s or public employee’s job responsibilities and there is a legitimate government reason for the travel. Such travel constitutes usual and customary duties associated with the office or position.

W. Va. Code R. § 158-6-3 Nepotism

3.1. As used in this section, the term "nepotism" means favoritism shown or patronage granted in employment or working conditions by a public official or public employee to a relative or person with whom the public official or public employee resides.

3.2. As used in this section, the term “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.

3.3. As used in this section, the term “supervise” or “supervision” means reviewing, auditing or evaluating work, or taking part in discussions or making recommendations concerning employment, assignments, compensation, bonuses, benefits, discipline, or related matters.

3.4. Nepotism constitutes improper use of office for private gain.

3.5. A public official or employee may not influence or attempt to influence the employment or working conditions of his or her relative or a person with whom he or she resides.

3.6. 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.

3.6.1. 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 unless required by law and an independent third party is involved in the process.

3.6.2. A public official or public employee may not directly supervise a relative or a person with whom he or she resides. This prohibition does not extend to matters affecting a class of five or more similarly situated employees.

3.6.3. A public official or public employee may not use a subordinate as an independent third party required by subdivision 3.6.1 of this section. This prohibition does not apply to an elected public official who may not lawfully delegate powers of his or her office (for example, a sheriff, county assessor, or county clerk).

3.7. A public official may not vote on matters affecting the employment or working conditions of a relative or person with whom the public official resides unless such relative or person is a member of a class of five or more similarly situated persons affected. For a public official’s recusal to be effective, he or she must excuse himself or herself from participating in the discussion and decision-making process by physically removing himself or herself from the room during the period in which the matter is under consideration, fully disclosing his or her interests, and recusing himself or herself from voting on the issue.

3.8. 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.

W. Va. Code R. § 158-6-4 Use Subordinate for Private Gain

4.1. Public officials and public employees may not use subordinate employees for their private gain or that of another person as an implied or express condition to their continued employment. For example, a public official may not require a subordinate employee to perform personal errands for the official to maintain his or her public employment.

4.2. Public officials and public employees may not use subordinate employees during work hours to perform private work or provide personal services for their benefit or that of another person. For example, a public official or public employee may not require his or her subordinate employee to repair a garage or pave a driveway for the public official or public employee during work hours. This prohibition does not apply to de minimis work or services.

W. Va. Code R. § 158-6-5 Use or Removal of Government Property

5.1. Public officials and public employees may not remove government property from the workplace for their private benefit or that of another person.

5.2. Public officials and public employees may not use government property for personal projects or activities that result in private gain.

5.3. This section does not apply to the de minimis use of government property.

W. Va. Code R. § 158-6-6 Kickbacks

A public official or public employee may not accept money or a thing of value from any person for providing business or other benefits to that person through the public official's or public employee's governmental agency or as a result of his or her influence and control.

W. Va. Code R. § 158-6-7 Bribes

A public official or public employee may not receive money or a thing of value from any person for the purpose of influencing or persuading the official to perform his duties in a manner to benefit the person.

W. Va. Code R. § 158-6-8 Private Work During Public Work Hours

Appointed public officials and part-time and full-time public employees may not receive private compensation for performing private work during public work hours. This section does not apply to de minimis private work.

W. Va. Code R. § 158-6-9 Exemption Categories

Certain public officials or public employees bring to their respective offices or employment their own personal prestige, intelligence, education, experience, skills and abilities, or other personal gifts or traits. In many cases, these persons bring a personal prestige to their office or employment which inures to the benefit of the state and its citizens. These public officials and employees may apply to the Ethics Commission for an exemption from the limitations in W. Va. Code § 6B-2-5(b). The Ethics Commission may grant an exemption if it finds:

The public office held or the public employment engaged in is not such that it would ordinarily be available or offered to a substantial number of the citizens of this state;

The office held or the employment engaged in is such that it normally or specifically requires a person who possesses personal prestige, and The person's employment contract or letter of appointment provides or anticipates that the person will gain financially from activities which are not a part of his or her office or employment.

W. Va. Code R. § 158-6-10 Other limitations

The Ethics Act sets a minimum standard of conduct. When the Legislature or a public agency imposes stricter standards, then public officials and public employees must comply with the stricter standards.

Series 07 Solicitation And Receipt Of Gifts And Charitable Contributions By Public Employees And Officials

W. Va. Code R. § 158-7-1 General

1.1. Scope. -- This legislative rule establishes the rules governing the solicitation and receipt of gifts by persons covered by the WV Governmental Ethics Act.

1.2. Authority. -- W. Va. Code §§6B-2-2(a), 6B-2-5(b), 6B-2-5(c) and, 6B-2-5(o).

1.3. Filing Date. -- April 25, 2008.

1.4. Effective Date. -- July 1, 2008.

W. Va. Code R. § 158-7-2 Honorarium

2.1. For the purpose of this section, the term “honorarium” means payment given in recognition of published works, appearances, speeches and presentations which is not intended as consideration for the value of such services. These payments are not legally or traditionally required such as in an employment contract.

2.2. The Ethics Commission will use the following guidelines in determining whether the amount of an honorarium is reasonable and permitted under W. Va. Code §6B-2-5:

a. The length of time spent on preparing or researching material for the presentation;

b. The amount of time for actual presentation;

c. The distance to be traveled to make the appearance, speech or presentation;

d. The public official’s or public employee’s experience, qualifications and educational background; and e. The usual and customary fee paid to others for similar work.

2.3. It is unlawful for a full-time elected official to receive an honorarium unless he or she:

a. Donates it to a recognized charity or the State Treasury; and, b. Files a notice with the Ethics Commission identifying the honorarium, the date received and the group to whom it was donated.

2.4. A part-time elected public official may accept an honorarium if it is given for an appearance, speech or presentation made of a professional nature not related to the official’s public position. An example would be a professional such as Physician, Certified Public Accountant, Pharmacist or Attorney speaking at a conference or seminar in his or her field.

2.5. Any public employee who receives an honorarium shall seek his or her supervisor’s approval and take annual leave without compensation from his or her public employment during the time he or she prepares for or makes such presentation, speech or appearance.

2.6. A public official or employee may not use public time, facilities, equipment or personnel in the preparation or presentation of a private presentation, speech or appearance.

W. Va. Code R. § 158-7-3 Receipt of Free Admission, Travel and Lodging Expenses to Attend an Educational Seminar or Conference

3.1. A public official or public employee may accept from an interested third party a reduced rate for or free admission to a privately sponsored conference or seminar, and reimbursement for reasonable meals, travel and lodging expenses, if his or her attendance will result in benefit to the governmental agency he or she serves by enhancing his or her job related skills and the performance of his or her public job responsibilities under each of the following:

a. Attendance by the public official or employee must fulfill an existing agency need by significantly enhancing the attendee’s occupational skill or knowledge to provide important information needed by the agency to meet its official mandate;

b. The seminar or conference must be appropriate for the proposed attendee. A trip is appropriate for the attendee if he or she will use the information or job skill enhancement and is the person most suitable to acquire and transfer the skills or information to other appropriate agency personnel;

c. The site of the proposed trip must be appropriate. A public employee or official may not accept payment for attendance at the seminar or conference and related costs if the same information is readily available locally;

d. The seminar or conference must offer a reasonable return on the time spent. Attendance at the seminar or conference should represent a reasonable investment of the public official or employee’s time when weighed against the information acquired or the degree of improvement in job skills or knowledge; and e. The benefit to the agency must be significantly greater than the incidental benefit to the traveler.

3.2. An interested third party is any person whom the official or employee knows or has reason to know:

a. Is doing or seeking to do business of any kind with his or her agency;

b. Is engaged in activities which are regulated or controlled by his or her agency; or, c. 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.

3.3. Public employees and appointed public officials shall obtain permission before attending a privately sponsored conference or seminar for which an interested third party pays, in whole or part, their attendance fees, travel or lodging expenses. Permission to attend the seminar or conference and reimbursement for costs must be obtained in the following manner:

a. A public employee must obtain permission to attend the seminar or conference from the head of his or her agency;

b. An appointed public official must obtain permission from the governing body on which he or she serves or the public official to whom he or she reports.

3.4. Food and lodging expenses are “reasonable” if the expenses are limited to the usual and customary basic charges of the hotel and are comparable to those charged to other participants and hotel guests. Travel expenses are “reasonable” if the expenses are comparable to those ordinarily charged to other similar travelers.

3.5. A public official or public employee may not accept payment or reimbursement for other expenses such as golf fees, carriage rides or health club fees if the total value of the fees exceeds twenty-five dollars ($25.00) unless these amenities are normally part of the standard hotel room charge and incidental to the use of the hotel room.

3.6. A public official or public employee may not accept payment from an interested third party for food, lodging or travel expenses for a guest; Provided, That, a public official or public employee may take a guest to a privately sponsored seminar if no additional costs are incurred by the third party payer for the guest’s travel, lodging or attendance at the seminar.

W. Va. Code R. § 158-7-4 Nominal Gifts

4.1. For purposes of the Ethics Act, W. Va. Code §6B-2-5(c)(2)(C), a nominal gift is any gift with a monetary value of twenty-five dollars ($25.00) or less. Some examples of nominal gifts include a T-shirt, hat, key chain, pen, pencil or any memento of that caliber. A public official or employee may accept from an interested party a nominal gift or gifts not exceeding twenty-five ($25.00); Provided, That, the total dollar value of any nominal gift or gifts accepted from any one source may not exceed twenty-five ($25.00) in one calendar year.

4.2. Certain hotel benefits are considered part and parcel of the room package and are not considered a “gift” to a public official or public employee. These are nominal benefits purchased with and incidental to the use of the hotel room.

W. Va. Code R. § 158-7-5 Reasonable Expenses for Panelist or Speaker

5.1. A public official or public employee may accept payment or reimbursement for reasonable expenses for him or herself and for one guest for food, travel and lodging incurred in attending a meeting at which he or she participates as a panel member or speaker, but may not accept payment or reimbursement for other expenses such as golf fees, carriage rides or health club fees unless these amenities are normally part of the standard hotel room charge and incidental to the use of the room.

5.2. Food and lodging expenses are “reasonable” if the expenses are limited to the usual and customary basic charges of the hotel and are comparable to those charged to other participants and hotel guests. Travel expenses are “reasonable” if the expenses are comparable to those ordinarily charged to other similar travelers.

W. Va. Code R. § 158-7-6 Solicitation of Gifts for Charity

6.1. Public officials and public employees may solicit gifts for a charitable purpose when there is no resulting direct pecuniary benefit to the public official or public employee or an immediate family member.

6.2. The Ethics Commission may recognize programs or activities as involving a charitable purpose on a case-by-case basis.

6.3. It is improper for a public official or public employee to solicit any gift or donation, including those for a charitable purpose, from a subordinate employee.

6.4. In soliciting a gift for charity in either their personal or official capacities, public officials and employees may use their titles; Provided, That law enforcement officers are subject to the limitations in section 8.

6.5. A reasonable amount of public resources may be used for a charitable solicitation or fund-raising drive that is conducted in furtherance of the West Virginia State Employees’ Coordinated Campaign or a fund raising campaign officially approved by either the executive, legislative or judicial branch of State Government or the governing body of any political subdivision.

6.6. State government agencies and the governing body of political subdivisions may provide a voluntary payroll deduction program to those employees who elect to contribute to the West Virginia State Employees Coordinated Campaign through payroll deduction.

6.7. State government agencies and the governing bodies of political subdivisions may solicit funds to support or underwrite agency programs which are statutorily created or authorized and are intended to help the poor and disadvantaged. If a state government agency or governing body of a political subdivision seeks to solicit funds for use by the agency for any other purpose, then the state government agency or governing body of a political subdivision must first seek permission from the Executive Director of the West Virginia Ethics Commission or the Ethics Commission through issuance of a formal advisory opinion. The Executive Director or Ethics Commission may only authorize such a solicitation if it serves a public purpose. This provision does not apply to the solicitation of donations by a member of the Legislature or a member of the Board of Public Works who is soliciting funds for a regional or national organization conference or other function in accordance with W. Va. Code §§6B-2-5(c)(6) and 6B-2-5(c)(7).

6.8. Fund-raising activities based on an exchange of value are not gift solicitations and are permissible.

6.9. Raising funds for public employees seriously injured or killed while in the line of duty, and their affected family members, constitutes a charitable activity for purposes of the Ethics Act.

W. Va. Code R. § 158-7-7 Manner of Solicitation and Use of Funds

7.1. Public officials, public employees and agencies who regulate individuals or businesses may not orally solicit donations from:

a. Persons under the regulatory control of the agency. A person is under the regulatory control of the public official, employee or agency if the person has a matter pending before the agency or had a matter pending within the past 12 months. This subsection does not apply to purely law enforcement agencies, officials or employees who do not actually regulate or exercise regulatory control over other persons but merely enforce existing laws and rules as to all applicable persons;

b. A vendor which has a contract with the agency, is bidding on a contract or is in the process of soliciting business from the agency.

7.2. A written solicitation to the public or business community at large, even if the targeted group may encompass regulated persons or vendors, is permissible; Provided, That the written solicitation may not be directed solely to persons under the regulatory authority of, or vendors, of the public official, employee or agency. This subsection does not apply to purely law enforcement agencies, officials or employees who do not actually regulate or exercise regulatory control over other persons but merely enforce existing laws and rules as to all applicable persons.

7.3. Solicitations should be conducted, and acknowledgments made, in a fair and even-handed manner. Each solicitation should contain a statement setting forth that donations are purely voluntary.

7.4. Under no circumstances should anyone soliciting a contribution for a charitable purpose state that contributors will receive some special treatment from a government agency or its employees, or any other sort of quid pro quo as a consequence of making a donation.

W. Va. Code R. § 158-7-8 Solicitation of Gifts for Charities by Law Enforcement Officers

8.1. The Ethics Commission finds that the interest of the public is served by having stricter limitations which govern solicitations by law enforcement officers due to the unique nature of the authority which law enforcement officers exercise over the public, including arrest powers.

8.2. “Law-enforcement officer” means any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof.

8.3. Except as otherwise provided for in these rules, law enforcement officers may not solicit for charity while in uniform, but may show identification upon request.

8.4. Public officials or employees may solicit donations for charity while out of uniform and when they are off duty.

8.5. Law enforcement officers or associations composed of law enforcement officers may not provide signs, stickers, decals or other items of display by individual donors showing whether or not a donation has been made on account of any charitable contribution solicited on behalf of law enforcement officers or their association, unless such signs, stickers, decals or other items of display contain the following disclaimer: “The holder of this item is not entitled to any special treatment.”; Provided, That, certificates, plaques or other items of display which are not intended for display on motor vehicles may be distributed to donors without the inclusion of any such disclaimer; Provided, However, That an association may provide to its members who are currently serving as law enforcement officers, or who previously served as law enforcement officers, a sign, sticker, decal or other item of display, including those items intended for display in a motor vehicle, which demonstrate that a present or former law enforcement officer is a member of an association or fraternal group primarily composed of law enforcement officers, without the inclusion of any such disclaimer.

8.6. Law enforcement officers or associations composed of law enforcement officers may conduct telephonic or oral solicitations in their official capacity; Provided, That, when conducting a telephonic solicitation, law enforcement officers may not identify themselves by rank or title or otherwise reference their rank or title during the conversation unless specifically requested by the person with whom they are having a conversation.

8.7. Law enforcement officers may not pick up a donation while in uniform except as otherwise provided for in these rules.

8.8. Law enforcement officers may wear their uniforms while participating in fund-raising activities based on an exchange of value. Further, they may wear their uniforms while participating in a fund-raising event such as a motorcycle ride, walk or other activities where the public, for a fee or donation, is invited to join a law enforcement officer as part of a fund-raising activity for charity.

8.9. Law enforcement officers may deliver proceeds raised for charity to the intended recipient while in uniform and while on duty.

W. Va. Code R. § 158-7-9 Free Tickets

9.1. A public official or public employee may accept free tickets or admission to those charitable, cultural or political events for which free tickets or admission are customarily extended as a courtesy to the office he or she holds; Provided, That, the tickets are given by an official sponsor of the event, not a third party who has purchased tickets from an event sponsor. The $25.00 monetary limitation does not apply to tickets accepted for these events.

9.2. A public official or employee may accept a ticket for him or herself and a ticket for one guest to a charitable, cultural or political event to which the public official is otherwise permitted to accept a ticket in accordance with this section.

9.3. A public official or public employee may not accept a ticket to a sporting event when the value of the ticket exceeds $25.00 unless the public official or employee has an official or ceremonial duty to perform at the sporting event. A ceremonial duty is any duty performed before members of the public who are attending the sporting event. If the public official does not have a ceremonial duty, then the value of a ticket or tickets received from an interested party for a sporting event or events may not exceed $25.00 in one calendar year.

9.4. A public official or employee may accept an additional ticket for a guest to a sporting event if he or she has a ceremonial role. If the public employee or official does not have a ceremonial role, then he or she may accept a free ticket for him or herself and one guest only if the combined value of both tickets does not exceed $25.00.

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Series 08 Interest In Public Contracts

W. Va. Code R. § 158-8-1 General

1.1. Scope. -- These legislative rules establish the guidelines concerning interest in public contracts for persons covered by the WV Governmental Ethics Act.

1.2. Authority. -- W. Va. Code §6B-2-5(d).

1.3. Filing Date. -- June 8, 2009.

1.4. Effective Date. -- July 1, 2009.

W. Va. Code R. § 158-8-2 Direct Authority and Control

Examples of individuals with direct authority and control over the awarding of public contracts include all elected or appointed public officials in the executive branch of City, County and State government, superintendents, assistant superintendents, purchasing directors, County Commissioners, County Board members and City managers.

W. Va. Code R. § 158-8-3 Limited Interest

3.1. A limited interest is:

3.1.a. An amount not to exceed $1,000.00 in the gross revenues in a public contract or contracts per calendar year. The $1,000.00 limit is applicable to gross revenues received through a public contract by a public official or employee, an immediate family member thereof or a business with which the public official or employee or immediate family member is associated; or,

3.1.b. An interest as a creditor if a public official or employee or an immediate family member is owed an amount not exceeding $5,000.00 by a person or business which is awarded a public contract.

3.2. If a public official or employee has more than a limited interest in a public contract, then such an interest is only permissible if the public agency with whom the public official or employee works or serves seeks and receives a contract exemption in accordance with W. Va. Code § 6B-2-5(d)(4)). This requirement does not apply to part-time appointed officials who, in accordance with the Ethics Act, may have an interest in a public contract if they recuse themselves from the decision-making process.

3.3. The provisions of this rule do not apply to elected or appointed County officials, full or part-time, including superintendents, principals and teachers who are governed by the more stringent restrictions imposed by W. Va. Code § 61-10-15.

3.4. If a public official has a limited interest in a contract, he or she should recuse him or herself from voting. A public employee who has a limited interest should not be involved in any decision-making process relating to the award or review of the contract.

W. Va. Code R. § 158-8-4 Public Contract and Business Association

4.1. The prohibition of W. Va. Code §6B-2-5(d) against being a party to or having an interest in the profits or benefits of a contract applies only to public contracts involving a governmental body or agency.

4.2. Public officials or public employees or members of their immediate family are considered to be “associated” with a business if they or their immediate family member are a director, officer or holder of stock which constitutes five percent or more of the total outstanding stocks of any class.

W. Va. Code R. § 158-8-5 Recusal

5.1. For the purposes of W. Va. Code §6B-2-5(d), the Ethics Commission will consider a person "recused" if he or she (1) has made a full disclosure of his or her interest in the public contract, (2) has refrained from discussing, voting on or otherwise influencing or deciding the matter, and (3) is absent from the room during the discussion and voting process.

5.2. Making a full disclosure of one's interest means making a prior public disclosure including the amount of interest held directly or indirectly by a public employee or public official or immediate family thereof in a public contract.

W. Va. Code R. § 158-8-6 Legislator's Contracting

A member of the Legislature, or Legislator's immediate family or a business with which a Legislator is associated may contract with any governmental body or agency.

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Series 11 Employment Exemptions

W. Va. Code R. § 158-11-1 General

1.1. Scope. -- These legislative rules establish guidelines which govern employment exemptions for full-time public officials and public employees.

1.2. Authority. -- W. Va. Code §6B-2-5(h).

1.3. Filing Date. -- June 8, 2009.

1.4. Effective Date. -- July 1, 2009.

W. Va. Code R. § 158-11-2 Definitions

2.1. "Person" means an individual, corporation, business entity, labor union, association, firm, partnership, limited partnership, committee, club or other organization or group of persons, irrespective of the denomination given such organization or group.

2.2. "Public employee" means any full-time or part-time employee of any state, county or municipal governmental body or any political subdivision thereof, including county school boards.

2.3. "Public official" means any person who is elected or appointed to any state, county or municipal office or position and who is responsible for the making of policy or takes official action which is either ministerial or nonministerial, or both, with respect to: (1) Contracting for, or procurement of, goods or services; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interest or interests of any person.

2.4. "Offer employment" Any contact by a person with a full-time employee or official of a regulating governmental agency, directly or through an intermediary, relating to employment constitutes "offering employment".

2.5. "Seek employment" Any contact with a person, directly or through an intermediary, relating to the availability or conditions of employment in furtherance of obtaining employment. Responding to unsolicited inquiries from a person concerning employment also constitutes “seeking employment.”

W. Va. Code R. § 158-11-3 Limitations on Seeking Employment

3.1. Full-time public officials and employees who exercise authority over regulated persons or vendors may not seek employment with or be employed by a regulated person or vendor until and unless they seek and receive an exemption from the Ethics Commission.

3.2. A full-time public official or employee is considered to exercise authority over a regulated person for purposes of this rule if:

3.2.a. The person had a matter on which the full-time public official or employee took, or a subordinate is known to have taken, regulatory action within the preceding twelve months; or,

3.2.b. The person has a matter before the agency on which the full-time public official or employee is working or a subordinate is known by the full-time public official or employee to be working.

3.3. A full-time public official or employee is considered to exercise control over vendors for purposes of this rule if he or she exercises authority or control over a public contract with a vendor, including but not limited to:

3.3.a. Drafting bid specifications or requests for proposals;

3.3.b. Recommending selection of the vendor;

3.3.c. Conducting inspections or investigations;

3.3.d. Approving the method or manner of payment to the vendor;

3.3.e. Providing legal or technical guidance on the formation, implementation or execution of the contract; or

3.3.f. Taking other nonministerial action which may affect the financial interests of the vendor.

3.4. For the purpose of this section,"employment" does not include activities of employees and officials for or on behalf of charitable or not for profit public service entities from which they derive no pecuniary benefit.

3.5. The prohibitions on seeking employment, and the requirement that an exemption be obtained, apply only to employees or officials who are currently employed by a public agency, not those who have already terminated their employment with an agency.

3.6. Once a full-time public official or employee has either obtained an exemption or terminated his or her employment, then there is no waiting period for seeking employment; Provided, That public officials and employees are still subject to the limitations imposed by W.Va. Code § 6B-2-5(f)in regard to representing clients in matters in which they substantially participated as a public employee; Provided further, That elected or appointed public officials, full-time staff attorneys and full-time accountants must wait for one year before appearing back before their agency in accordance with W. Va. Code § 6B-2-5(g).

W. Va. Code R. § 158-11-4 Requests for Exemptions

4.1. Full-time public officials or employees who are seeking an exemption shall submit a written request to the Executive Director of the WV Ethics Commission. The exemption request shall contain:

4.1.a. the name, address and phone number of the governmental agency by which the applicant is employed;

4.1.b. the applicant's job title and the name of his or her immediate supervisor; and,

4.1.c. facts sufficient to support a finding that the full-time public official or public employee would be adversely affected if he or she is prohibited from seeking employment with regulated persons or vendors over whom he or she exercises control.

4.2. The power to grant a temporary 30 day exemption pursuant to this rule is hereby delegated to the Commission Chair, or at the Chair’s direction, the Commission's Executive Director. Either is authorized to grant an exemption in the name of the Commission as provided by this rule. The Executive Director or Chair shall grant or deny the exemption within 10 business days of receipt of the request. The Ethics Commission shall consider whether to ratify the decision within 45 days of receipt of the exemption request.

4.3. An exemption may only be granted if the Commission Chair or Executive Director finds that the full-time public official or employee will be adversely affected if the same is denied.

4.4. If a request for an exemption is denied, the full-time public official or employee may appeal the determination to the members of the Ethics Commission within 10 business days of the receipt of the denial of the request for an exemption.

4.4.a. The Ethics Commission shall consider the exemption request de novo.

4.4.b. A ruling on an appeal shall be made by the Ethics Commission within 45 days of receipt of the request for an appeal from the decision of the Executive Director or Chair denying the exemption request.

W. Va. Code R. § 158-11-5 Purpose and terms of exemptions

5.1. The Commission finds that the overriding purpose of seeking and obtaining an exemption is to ensure transparency in the governmental process and to ensure that the public official or employee ceases and desists from taking action in regard to persons over whom the public official or employee exercises regulatory authority or purchasing power and with whom they are seeking employment. To fulfill the purpose of transparency and fairness, and in accordance with the Ethics Act, the following restrictions are hereby imposed:

5.1.a. Once a temporary or permanent exemption is granted,the public official or employee shall provide a copy of the exemption to his or her supervisor within 2 business days of receiving the exemption.

5.1.b. The public official or employee may take no official action in regard to a person or persons with whom they are seeking employment, unless it would create an undue hardship on the agency to prohibit him or her from carrying out his or her public job responsibilities. If this limitation will impose an undue hardship, then the affected public official or employee may take action when authorized by their employing agency’s executive director or governing body. These actions shall be subject to additional review by a supervisor or the governing body.

5.2. Exemptions granted by the Commission are subject to a one year time limit. At the expiration of the one year time limit, the full-time public official or employee must submit a new request if he or she intends to seek employment with a regulated person or vendor.

5.3. The Commission shall maintain a record of those full-time public officials or employees who are granted exemptions. These records are public records and are available for public examination and copying.

158CSR11

158CSR11

Series 12 Lobbying

W. Va. Code R. § 158-12-1 General

1.1. Scope. -- These legislative rules establish guidelines concerning lobbying under the WV Governmental Ethics Act.

1.2. Authority. -- W. Va. Code §§ 6B-3-1, 6B-3-2, 6B-3-3,6B-3-3a, 6B-3-3c, 6B-3-4, 6B-3-5, 6B-3-7 and 6B-3-11.

1.3. Filing Date. -- June 8, 2009.

1.4. Effective Date. -- July 1, 2009.

W. Va. Code R. § 158-12-2 Legislative Intent

2.1. It is the expressed intent of the Legislature that citizens be permitted and encouraged to consult with their government representatives without incurring registration or reporting obligations under the West Virginia Governmental Ethics Act.

2.2. Persons who lobby without compensation and make no expenditure for or on behalf of any government officer or employee in connection with such lobbying are not required to register or report as Lobbyists.

W. Va. Code R. § 158-12-3 Registration

3.1. Before engaging in any lobbying activity, or within thirty (30) days after being employed as a lobbyist, whichever occurs first, a lobbyist shall register with the West Virginia Ethics Commission by filing a lobbyist registration statement.

3.2. The Ethics Commission will notify lobbyists in writing when their registration is completed. Lobbying prior to registration is a violation of W. Va. Code §6B-3-9(b).

3.3. A lobbyist must register on forms provided by the Commission. Lobbyists may not submit registration and reporting forms by facsimile machine (FAX).

3.4. The Commission will process registration forms within one business day of receipt. The Commission will return incomplete applications without action and lobbying privileges will be delayed.

3.5. An application for registration requires the submission of all the following:

3.5.a. A completed, signed Lobbyist Registration Statement.

3.5.b. One recent 2" x 2" passport style photograph of the lobbyist.

3.5.c. A check, money order or credit card payment for the one hundred dollar ($100) base registration fee, required by W. Va. Code §6B-3-3(a), payable to the WV Ethics Commission.

3.5.d. A completed, signed Statement of Representation for each entity the lobbyist represents.

3.5.e. A check, or money order or credit card payment for one hundred dollars ($100), payable to the WV Ethics Commission, shall accompany each Statement of Representation filed with the Commission.

3.5.f. The Commission may accept payment through credit or debit cards for any fees or penalties authorized under this rule.

3.6. A lobbyist’s registration statement and notices of representation shall remain in effect until the Monday preceding the second Wednesday in January of each odd-numbered year unless the lobbyist terminates his or her registration or is suspended for failure to comply with the requirements of the Ethics Act and related legislative rules. Until a lobbyist has renewed his or her registration, and has filed any required notices of representation, the person may not engage in lobbying activities, unless he or she is otherwise exempt under the provisions of this rule.

3.7. Lobbyists must report in writing any change, withdrawal or termination of employment or representation to the Commission within one week, by filing an amended registration statement reflecting such change, modification or termination.

3.8. Lobbyists who elect to terminate their registration and cease to lobby may do so by filing a Notice of Termination with the Commission within one week of the termination.

3.9. Any person wishing to engage in lobbying activities may register as a lobbyist with the Commission, notwithstanding there is no requirement to do so.

W. Va. Code R. § 158-12-4 Lobbyist Booklet

4.1. At least annually, the Commission shall publish a booklet containing each registered lobbyist's name and business address, photo and employer and lobbying information.

4.2. Midway through a regular legislative session the Commission may publish a supplement to the booklet if a significant number of lobbyists have been registered since publication of the booklet.

4.3. The Commission will mail copies of the booklet and any supplement to registered lobbyists at the "Business Address" shown on their Lobbyist Registration Statement.

W. Va. Code R. § 158-12-5 Reporting

5.1. Lobbyists are required to file with the Commission periodic signed reports of their lobbying activities, on forms provided by the Commission. The reports shall be filed three times a year as follows:

5.1.a. On or before the fifteenth of May, a lobbyist shall report all lobbying activities in which he or she engaged from the first day of January through the thirtieth day of April.

5.1.b. On or before the fifteenth day of September, a lobbyist shall report all lobbying activities in which he or she engaged from the first day of May through the thirty-first day of August.

5.1.c. On or before the fifteenth day of January, a lobbyist shall report all lobbying activities in which he or she engaged from the first day of September through the thirty-first day of December.

5.2. The Commission shall prepare and provide forms on which registered lobbyists shall report their lobbying activities, including whether any lobbying activity took place and whether any reportable lobbying expenditures were made during the current reporting period.

5.3. Registered lobbyists are personally responsible for completing and submitting each required activity report within the time limits required.

5.4. Reports sent to the Commission by United States mail will be considered timely filed if they are postmarked by the due date for the report. Reports sent by any other means must be received at the Commission’s office by close of business on the due date of the report.

5.5. When the date a report is due falls on a Saturday, Sunday, or legal holiday, the report will be considered timely filed if it is postmarked or delivered not later than the next business day.

5.6. If a registered lobbyist files a late lobbyist activity report, the lobbyist shall pay the Commission a fee of ten dollars ($10) for each late day, not to exceed a total of two hundred and fifty dollars ($250).

5.7. If the Commission has not received a required lobbyist activity report within five (5) working days of the due date, it shall notify the lobbyist in writing of the delinquency.

5.8. If the Commission has not received the required lobbyist activity report within ten (10) working days of the date on which the written delinquency notice was mailed, the Commission shall send written notice by certified mail, return receipt requested, that the lobbyist‘s lobbying privileges are suspended until the lobbyist has satisfactorily complied with all reporting requirements and paid all applicable fines.

5.8.a. If the Commission receives a late report that is not accompanied by the appropriate late fee payment, it shall notify the lobbyist in writing of the late fee which is due and payable within ten (10) working days of the date the notice is mailed.

5.8.b. Lobbyists who fail to pay the appropriate late fee within the required time limit shall be subject to suspension under the same conditions that apply to filing their original periodic lobbyist reports.

5.8.c. Upon written request, the Commission, in its discretion, may waive or reduce late fees based upon a showing of extenuating circumstances including, but not limited to, a death in the immediate family, severe illness, and other compelling circumstances which may constitute just cause.

5.9. Lobbyist reports which are incomplete or inaccurate may be returned by the Commission for completion or correction. The lobbyist is responsible for submitting a correct and complete report within ten (10) working days of the date the returned report was mailed.

5.9.a. Lobbyists who fail to file a corrected report within the required time limit shall be subject to fines and suspension under the same conditions that apply to their original periodic lobbyist reports.

5.10. Once a lobbyist has been notified that his or her lobbying privileges have been suspended, the Commission may notify the respective houses of the Legislature of the lobbyist’s suspension and place notice of the suspension on its web site. Once a suspended lobbyist has complied with all reporting requirements and paid all applicable fines, notice of the lobbyist’s reinstatement will be communicated in a similar manner.

5.11. The Commission shall prepare a composite report of the Lobbyist Activities Reports filed for each reporting period within 10 working days of the due date. The Commission’s report shall contain the names of those filing reports with the Commission and expenditures reported. The Commission shall identify and list separately those failing to report or give required notice.

5.12. The Commission shall send copies of the composite report to both the House and Senate Clerks for distribution to the members. Upon request, the Commission shall also provide copies to the news media.

W. Va. Code R. § 158-12-6 Lobbyist Duties

6.1. A lobbyist who is not exempt from registration shall register with and make all required reports to the Commission in a professional and timely manner, so that the members of the Legislature and the public may be kept aware of lobbying activities in the state.

6.2. A registered lobbyist shall obtain and preserve for two years all accounts, bills, receipts, books, papers and documents necessary to substantiate financial reports filed with the Commission. These shall be made available for inspection by the Commission at any time.

W. Va. Code R. § 158-12-7 Employer Duties

7.1. It is a violation for any person to employ another to lobby who is not registered with the Commission, except upon condition that such person register and the person does in fact so register as soon as practical.

7.2. No lobbyist may be registered to lobby on behalf of another without having filed with the Commission a statement of representation signed by the employer.

7.3. Any person who employs a registered lobbyist and makes expenditures on behalf of the lobbyist's lobbying activities is responsible to insure that such expenditures are included on the Lobbyist Activities Report(s) filed by the lobbyist.

7.4. Employers who require their lobbyist to turn over to them the records necessary to substantiate the filed Lobbyist Activities Reports must preserve those records for a period of at least two years.

W. Va. Code R. § 158-12-8 Education of Lobbyists Through Required Training Courses

8.1. In order to maintain the professional integrity of a lobbyist, enhance the specialized body of knowledge required for the profession, and to maintain registration and engage in lobbying activities, a lobbyist must satisfy the training requirements of this rule and complete one training course during each two-year registration cycle.

8.1.a. Lobbyists who are registered on or after July 1, 2008 shall be required to complete initial training by the Ethics Commission before engaging in lobbying activities. This training may be accomplished in two parts, with the lobbyist receiving written training materials upon completing his or her registration requirements, thereafter participating in training presented by the Ethics Commission in person, by a recorded video presentation or through content presented over the Internet, within 90 days of registering. Thereafter, a lobbyist shall complete at least one training course provided by the Commission, or a public or private provider or a professional lobbying association approved by the Commission, during each two-year registration cycle.

8.1.b. A registered lobbyist who fails to complete a training course within the required time period shall be subject to suspension by the Commission and may not engage in lobbying activity until the required training course is completed.

8.2. The Commission will provide at least two lobbyist training courses each year, one of which will be held in January.

8.3. A written notice for each course provided by the Commission will be sent via U.S. Mail, or electronic mail, when available, to each registered lobbyist and posted on the Commission’s website.

8.4. The Commission may collect a reasonable fee from each registered lobbyist or prospective lobbyist to offset the costs of providing the training program.

8.4.a. The Commission may adopt a fee schedule which reflects the costs of presenting training through a particular medium such as video teleconference or audio and video recording.

8.4.b. The maximum fee charged to any lobbyist or prospective lobbyist for a continuing education training program offered by the Commission shall not exceed one hundred dollars ($100).

8.5. Once a registered lobbyist has completed an initial lobbyist training course provided by the Commission, the lobbyist may fulfill the continuing education requirement by completing an approved lobbyist training course provided by another public or private provider or by a professional lobbying association.

8.6. Lobbyist training courses sponsored by other organizations may be accredited by the Commission upon the request of a lobbyist in accordance with this rule.

8.7. Accreditation for Courses. Only the Commission may accredit courses and programs for purposes of the mandatory continuing education requirements for lobbyists.

8.7.a. To be accredited, a course shall deal primarily with the specialized body of knowledge required by a professional lobbyist or other matters directly related to lobbying (which includes ethics, professional standards, and the administration of lobbyist reporting); it shall be taught by persons who are qualified by practical or academic experience in the subjects covered and preferably should include the distribution of good quality written materials pertaining to the subjects covered.

8.7.b. In order to be accredited for satisfying the requirement for continuing education training for lobbyists, a course must be of at least one hour in duration.

8.7.c. Ordinarily, the following may not be counted toward this one hour minimum: coffee breaks; introductory remarks; keynote speeches; business meetings; and dinner speeches.

8.7.d. The Commission may refuse to accredit or change or remove the accredited status of any provider which misrepresents the extent to which a course or program is qualified under this rule.

8.7.e. In cases where accreditation could not be reasonably obtained in advance for a given course, an individual lobbyist may request, in accordance with these rules, accreditation for a course after he or she has attended such course.

8.7.f. A written outline or written materials must be presented to the Commission at the time of submission for approval and must be distributed at the course.

8.7.g. Any course for which accreditation is sought must be open to observation, without charge, by the members of the Commission and the Commission’s staff.

8.7.h. The provider must keep records of who attends, and those records must be made available to the Commission upon request.

8.7.i. All decisions of the Commission concerning accreditation shall be final.

8.8. Lobbyists who complete a continuing education course provided by the Commission will be issued a certificate of completion reflecting the two-year registration cycle for which the course satisfies the training requirement.

8.9. A lobbyist who completes an accredited training course provided by an entity other than the Commission is responsible for certifying his or her attendance, within the time limits specified in this rule, on a form to be provided by the Commission.

8.10. For good cause shown, the Commission may, in individual cases involving extreme hardship or extenuating circumstances, grant conditional, partial, or complete exemptions from these lobbyist training requirements.

8.11. The Commission may, in its discretion, develop and make available lobbyist training on video cassette, audio cassette, DVD, the Internet, or other electronic or written media. Lobbyists who obtain the required training through any one of these available methods, other than personal attendance at a course provided by the Commission, will be required to certify, on a form provided by the Commission, his or her completion of the annual training requirements.

W. Va. Code R. § 158-12-9 Grass Roots Lobbying Campaigns

9.1. A grass roots lobbying campaign is a program addressed to the public, a substantial portion of which is intended primarily to influence legislation by the West Virginia Legislature. Such programs are directed at the public rather than legislators or other governmental policy makers.

9.2. Any person who spends more that $200 in one month, or more than $500 in a three month period, presenting a grass roots lobbying campaign is required to register with the Commission within 30 days of making the expenditures.

9.3. Sponsors of grass roots lobbying campaigns are required to report their activities to the Commission for the same time periods required of registered lobbyists. The Commission will mail forms necessary for reporting to sponsors as required.

9.4. Sponsors must, within 30 days of the termination of the campaign, give notice of termination and make a final report including total contributions and expenditures made on behalf of the campaign.

158CSR12

158CSR12

Series 13 Code Of Conduct For Administrative Law Judges

W. Va. Code R. § 158-13-1 General

1.1. Scope. -- This legislative rule establishes a code of conduct for state administrative law judges.

1.2. Authority. -- W. Va. Code §6B-2-5a.

1.3. Filing Date. -- April 14, 2006.

1.4. Effective Date. -- April 20, 2006.

W. Va. Code R. § 158-13-2 Interpretation

2.1. This rule is taken, in part, from the National Association of Administrative Law Judges Model Code of Conduct for State Administrative Law Judges (1999) (Appendix A) and the American Bar Association Model Code of Conduct for State Administrative Law Judges (1995) (Appendix B).

W. Va. Code R. § 158-13-3 Definitions

3.1. “Compensation” means any money, thing of value or financial benefit. The term “compensation” does not include reimbursement for actual reasonable and necessary expenses incurred in the performance of one’s official duties.

3.2. “De minimis” means an insignificant interest that could not raise reasonable question as to an administrative law judge’s impartiality.

3.3. “Degree of relationship” means the calculation authorized by the civil law system.

3.4. “Fiduciary" means such relationships as executor, administrator, trustee and guardian.

3.5. “Financial interest" means ownership of more than a de minimis legal or equitable interest, however small, or a relationship as director, advisor or other active participant in the affairs of a party, except that:

3.5.a. ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the state administrative law judge participates in the management of the fund;

3.5.b. an office in an educational, religious, charitable, fraternal or civic organization is not a "financial interest" in securities held by the organization;

3.5.c. the proprietary interest of a policyholder in a mutual insurance company or a depositor in a mutual savings association or a similar proprietary interest is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

3.5.d. ownership of government securities is a "financial interest" in the issue only if the outcome of the proceeding could substantially affect the value of the securities;

3.6. "Member of the family residing in the household" means any relative of the administrative law judge by blood or marriage, or a person treated by a judge as a member of the family, who resides in the household.

3.7. “Organization which practices invidious discrimination” means any organization which arbitrarily excludes persons from membership upon the basis of race, gender, religion, or national origin. However, “organization” shall not include an association of individuals dedicated to the preservation of religious, ethnic, historical, or cultural values of legitimate common interest to its members; or an intimate, distinctly private association of persons whose membership limitations would be entitled to constitutional protection.

3.8. “Political organization” means a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office.

3.9. "Proceeding" includes pre-hearing or other stages of litigation.

3.10. "State administrative law judge," “administrative law judge” or “judge” means any public employee, public officer, or contractor functioning as a hearing officer, referee, trial examiner or other position in state government to whom the authority to conduct an administrative adjudication has been delegated by an agency or by statute, and who exercises independent and impartial judgment in conducting hearings and in issuing recommended decisions or reports containing findings of fact and conclusions of law in accordance with applicable statutes or rules, but does not include any person whose conduct is subject to the code of judicial conduct promulgated by the West Virginia supreme court of appeals.

W. Va. Code R. § 158-13-4 Standards of Conduct

4.1. A state administrative law judge shall uphold the integrity and independence of the administrative judiciary.

4.1.a. An independent and honorable administrative judiciary is indispensable to justice in our society. An administrative law judge shall participate in establishing, maintaining and enforcing high standards of conduct and shall personally observe those standards of conduct so that the integrity and independence of the administrative judiciary will be preserved. The provisions of this rule should be construed and applied to further that objective.

4.1.b. The fact that an administrative law judge rules in favor of the agency by which he or she is employed or serves under contract, standing alone, does not establish a lack of independence.

4.1.c. The compensation of an administrative law judge may not be conditioned upon the outcome of a proceeding before that judge.

4.1.d. No provision in this rule prohibits an agency or administrative judiciary, in the interest of uniformity and consistency, from establishing policies interpreting case law, statutory law, and legislative rules, or from establishing operational policies.

4.2. A state administrative law judge shall avoid impropriety and the appearance of impropriety in all activities.

4.2.a. An administrative law judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the administrative judiciary.

4.2.b. An administrative law judge shall not allow family, social, political, employment or other relationships to influence judicial conduct or judgment. A judge shall not lend the prestige of the office to advance the private interests of the judge or others, nor convey or permit others to convey the impression that they are in a special position of influence. A judge shall not testify voluntarily as a character witness.

4.2.c. An administrative law judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, gender, religion, or national origin.

4.3. A state administrative law judge shall perform the duties of the office impartially and diligently.

4.3.a. The judicial duties of an administrative law judge take precedence over all other activities. Judicial duties include all the duties of the office prescribed by law. In the performance of these duties, the following standards apply:

4.3.b. Adjudicative responsibilities.

4.3.b.1. An administrative law judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, employment status or fear of criticism.

4.3.b.2. An administrative law judge shall maintain order and decorum in proceedings.

4.3.b.3. An administrative law judge shall be patient, dignified, and courteous to litigants, witnesses, lawyers and others with whom the judge deals in an official capacity and shall require similar conduct of lawyers or other representatives, staff members and others subject to the judge's direction and control.

4.3.b.4. An administrative law judge shall accord to all persons who are legally interested in a proceeding, or their representatives, full right to be heard according to law. An administrative law judge shall not initiate, permit or consider ex parte communications or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:

4.3.b.4.A. Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:

4.3.b.4.A.1. the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and

4.3.b.4.A.2. the judge makes provisions promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

4.3.b.4.B. A judge may obtain the advice of a disinterested expert on the law applicable to the proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.

4.3.b.4.C. A judge may consult other judges and support personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities.

4.3.b.4.D. A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

4.3.b.4.E. Decisions of an administrative law judge shall clearly identify the person or persons responsible for holding the hearing and issuing the final order or decision, and shall be based exclusively on evidence in the record of the proceeding, material that has been officially noticed, and material which agency policy or applicable statutes ordinarily permit consideration or reference.

4.3.b.5. An administrative law judge shall require participants in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others. This provision does not preclude legitimate advocacy when race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, or other similar factors, are issues in the proceeding.

4.3.b.6. An administrative law judge shall not, while a proceeding is pending or impending, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair hearing. The judge shall require similar abstention on the part of agency personnel subject to the judge's direction and control. This provision does not prohibit an administrative law judge from making public statements in the course of their official duties or from explaining for public information the procedures of the agency. Further, this provision does not apply to proceedings in which the judge is a litigant in a personal capacity.

4.3.b.7. An administrative law judge shall not disclose or use, for any purpose unrelated to judicial duties, information acquired in a judicial capacity that by law is not available to the general public.

4.3.b.8. An administrative law judge should not be subject to the authority, direction or discretion of one who has served as investigator, prosecutor or advocate in a proceeding before the judge.

4.3.b.9. An administrative law judge shall not be subject to undue or improper influence from the head of an agency whose decision is being reviewed.

4.3.c. Administrative responsibilities.

4.3.c.1. An administrative law judge shall diligently discharge assigned administrative responsibilities without bias or prejudice, maintain professional competence in judicial administration and facilitate the performance of the administrative responsibilities of other state administrative law judges.

4.3.c.2. An administrative law judge shall require staff and other persons subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge.

4.3.c.3. An administrative law judge shall take appropriate action or initiate appropriate disciplinary measures against a state administrative law judge, lawyer, representative or others for unprofessional conduct of which the judge may become aware. Appropriate action may include communication with the state administrative law judge, lawyer or representative, who has committed the violation, other direct action if available, and reporting the violation to the appropriate authority, or other agency or body.

4.3.d. Disqualification.

4.3.d.1. An administrative law judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

4.3.d.1.A. the administrative law judge has a personal bias or prejudice concerning a party or a party's lawyer or other representative involved in the proceeding;

4.3.d.1.B. the administrative law judge served as lawyer or representative in the matter in controversy, or a lawyer with whom the judge practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it. Ordinarily, a lawyer in a governmental agency is not considered to have an association with other lawyers employed by that agency within the meaning of this provision;

4.3.d.1.C. the administrative law judge has served in other governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

4.3.d.1.D. the administrative law judge, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household, has a more than de minimis financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

4.3.d.1.E. the administrative law judge or the judge's spouse or a person within the third degree of relationship to either of them or the spouse of such a person:

4.3.d.1.E.1. is a party to the proceeding, or an officer, director or trustee of a party;

4.3.d.1.E.2. is acting as a lawyer or representative in the proceeding;

4.3.d.1.E.3. is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

4.3.d.1.E.4. is to the judge's knowledge likely to be a material witness in the proceeding.

4.3.d.2. An administrative law judge should be aware of his or her personal and fiduciary financial interests, and make a reasonable effort to keep informed about the personal financial interests of his or her spouse and minor children residing in the judge’s household.

4.3.e. Remittal of disqualification.

4.3.e.1. An administrative law judge disqualified by the means of §4.3.d may, instead of withdrawing from the proceeding, disclose on the record the basis of the disqualification. If, following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers or representatives, independently of the judge's participation, all agree that the judge should not be disqualified and the judge is willing, the administrative law judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

4.4. A state administrative law judge may engage in activities to improve the law, the legal system, and the administration of justice.

4.4.a. An administrative law judge, subject to the proper performance of judicial duties, may engage in the following quasi-judicial activities, if in doing so doubt is not cast on the capacity to decide impartially any issue that may come before the judge:

4.4.a.1. Speak, write, lecture, teach and participate in other activities concerning the law, the legal system and the administration of justice.

4.4.a.2. May appear at a hearing before an executive or legislative body or official and may otherwise consult with an executive or legislative body or official, unless otherwise prohibited by law.

4.4.a.3. May serve as a member, officer or director of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice. An administrative law judge may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities. A judge may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system and the administration of justice.

4.5. A state administrative law judge shall regulate the judge’s extra-judicial activities to minimize the risk of conflict with judicial duties.

4.5.a. Extra-judicial activities in general.

4.5.a.1. An administrative law judge shall conduct all of the judge's extra-judicial activities so that they do not:

4.5.a.1.A. cast reasonable doubt on the judge's capacity to act impartially as a judge;

4.5.a.1.B. demean the judge's office; or

4.5.a.1.C. interfere with the proper performance of the judge's duties.

4.5.b. Avocational activities.

4.5.b.1. An administrative law judge may write, lecture, teach and speak on non-legal subjects and engage in the arts, sports and other social and recreational activities.

4.5.c. Civic and charitable activities.

4.5.c.1. An administrative law judge may participate in civic and charitable activities that do not reflect adversely upon impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee or advisor of an educational, religious, charitable, fraternal or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

4.5.c.1.A. An administrative law judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings before any agency in which the judge serves.

4.5.c.1.B. An administrative law judge should not use or permit the use of the prestige of the judge's office for the purpose of soliciting funds for any educational, religious, charitable, fraternal or civic organization, but the judge may be listed as an officer, director or trustee of such an organization.

4.5.d. Financial activities.

4.5.d.1. An administrative law judge shall refrain from financial and business dealings that tend to reflect adversely on impartiality, interfere with the proper performance of judicial duties, exploit the judge's official position or involve the judge in frequent transactions with lawyers or persons likely to come before the agency in which the judge serves.

4.5.d.2. Subject to the requirements in subsection 4.5.d.1 of this rule, an administrative law judge may hold and manage personal investments, including real estate, and engage in other remunerative activity.

4.5.d.3. An administrative law judge shall manage the judge's investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as judges can do so without serious financial detriment, judges shall divest themselves of investments and other financial interests that might require frequent disqualification.

4.5.d.4. Neither an administrative law judge nor a member of the family residing in the judge's household should accept a gift, bequest, favor or loan from anyone except as follows:

4.5.d.4.A. An administrative law judge may accept a gift incident to a public testimonial to the judge, books supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge's spouse to attend a function or activity devoted to the improvement of the law, the legal system or the administration of justice;

4.5.d.4.B. An administrative law judge or a member of the family residing in the household may accept ordinary social hospitality; a gift, bequest, favor or loan from a relative or close personal friend; a wedding or engagement gift; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not administrative law judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

4.5.d.4.C. An administrative law judge or a member of the family residing in the household may accept any other gift, bequest, favor or loan only if the donor is not a party or other person whose interests have come or are likely to come before the judge, or the gift is otherwise consistent with relevant agency rules and is reported to the extent required by such rules and other applicable laws.

4.5.d.5. An administrative law judge is not required by this rule to disclose income, debts or investments, except as provided by law.

4.5.d.6. Information acquired by administrative law judges in their judicial capacity shall not be used or disclosed by the judge in financial dealings or for any other purpose not related to judicial duties.

4.5.e. Fiduciary activities.

4.5.e.1. An administrative law judge shall not serve as an executor, administrator, trustee, guardian or other fiduciary if such service will interfere with the proper performance of judicial duties or if it is likely that as a fiduciary the judge will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust or ward becomes involved in adversary proceedings in an agency in which the judge serves or one under its appellate jurisdiction. While acting as a fiduciary, an administrative law judge is subject to the same restrictions on financial activities that apply to the judge in the judge's personal capacity.

4.5.f. Arbitration.

4.5.f.1. An administrative law judge may act as an arbitrator or mediator if such activity does not affect the independent professional judgment of the judge or the conduct of his official duties. An administrative law judge shall not be an arbitrator or mediator over a matter which the judge may later preside.

4.5.g. Practice of law.

4.5.g.1. Subject to applicable law and relevant agency rules, an administrative law judge may practice law if such activity would neither affect the independent professional judgment of the administrative law judge nor the conduct of the judge's official duties. An attorney who is an administrative law judge shall not accept the representation of a client who is a litigant before the tribunal for whom the administrative law judge serves or if there is a likelihood that such person will appear before the judge. An administrative law judge shall not practice law before the administrative tribunal for which the judge serves.

4.5.h. Extra-judicial appointments.

4.5.h.1. An administrative law judge may accept appointment to a governmental committee, commission or other position that is concerned with issues of policy on matters which may come before the judge if such appointment neither affects the independent professional judgment of the administrative law judge nor the conduct of the judge's official duties.

4.6. A state administrative law judge shall limit compensation received for quasi-judicial and extra-judicial duties.

4.6.a. An administrative law judge may receive compensation and reimbursement of expenses for the quasi-judicial and extra-judicial activities permitted by this rule, if the source of such payments does not give the appearance of influencing the judge in the judge's official duties or otherwise give the appearance of impropriety, subject to the following restrictions:

4.6.a.1. Compensation.

4.6.a.1.A. Compensation should not exceed a reasonable amount nor should it exceed what a person who is not an administrative law judge would receive for the same activity.

4.6.a.2. Expense reimbursement.

4.6.a.2.A. Expense reimbursement should be limited to the actual cost of travel, food and lodging reasonably incurred by the administrative law judge and, where appropriate to the occasion, by the judge's spouse or guest. Any payment in excess of such an amount is compensation.

4.7. A state administrative law judge shall refrain from political activity inappropriate to the office.

4.7.a. Consistent with applicable statutes and relevant agency rules, an administrative law judge shall not:

4.7.a.1. publicly display any campaign paraphernalia in any area where judicial activities are conducted or knowingly permit any such display;

4.7.a.2. personally solicit funds for a political organization or political candidate; Provided, That the provisions of this paragraph do not apply to part-time state administrative law judges;

4.7.a.3. be compelled to pay an assessment to a political organization or candidate or purchase tickets for political dinners or other similar functions.

4.7.b. A full-time administrative law judge shall either resign from office or take an approved leave of absence prior to becoming a candidate in either a party primary or a general election for any elected public office, or serving in any elected public office.

4.7.b.1. For purposes of this rule, a full-time administrative law judge becomes a candidate for an elected public office as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, or authorizes solicitation or acceptance of contributions or support.

4.7.b.2. This rule does not prohibit a part-time administrative law judge from seeking election to or serving in any elected public office.

4.7.c. An administrative law judge may engage in political activity on behalf of measures to improve the law, the legal system, or the administration of justice, or as expressly authorized by law.

W. Va. Code R. § 158-13-5 Advisory Opinions

5.1. The chairman of the West Virginia Ethics Commission shall appoint from the membership of the commission a committee of three persons designated as the West Virginia Ethics Commission Committee on Standards of Conduct for Administrative Law Judges. The chairman shall designate one of the persons to chair the committee. In addition to the three members of the committee, two additional members of the commission shall be designated to serve as alternate members of the committee.

5.2. In appointing the committee, the chairman of the commission shall not appoint all members of the same political affiliation.

5.3. Any person whose conduct is governed by the provisions of this code of conduct may make application for an advisory opinion from the commission’s Committee on Standards of Conduct for Administrative Law Judges. All applications for advisory opinions shall be in writing and be directed to the committee at 1207 Quarrier Street, Suite 407, Charleston, West Virginia 25301.

5.4. All applications for advisory opinions must contain the name, address and telephone number of the requester in the event additional information is needed.

5.5. All applications for advisory opinions should fully describe the applicant's official position, employment, or status under this rule.

5.6. All applications for advisory opinions should contain an explanation or paragraph summarizing the conduct for which the application is being made.

5.7. The committee shall respond in writing and in an expeditious manner to a request for an advisory opinion.

5.8. All advisory opinions issued pursuant to this rule will be submitted to the Secretary of State for publication and indexing in the Code of State Rules.

5.9. Before an advisory opinion is made public, any material which may identify the person who is the subject of the opinion, shall to the fullest extent possible, be deleted and the identity of the person shall not be revealed.

5.10. A person subject to the provisions of this rule may rely upon an advisory opinion of the committee, and any person acting in good faith reliance on any such opinion shall be immune from the sanctions provided in this rule.

W. Va. Code R. § 158-13-6 Complaints

6.1. The procedures for filing and adjudicating a complaint against a state administrative law judge for violating the standards of conduct contained in this rule are governed by the West Virginia Ethics Commission’s procedural rule, Adjudicating Complaints Relating to Conduct of State Administrative Law Judges, 158 C.S.R. 5. The commission shall supply a copy of this procedural rule to any person upon request and without charge.

6.2. The code of conduct established by this rule shall apply to conduct which occurs on and after the first day of July, two thousand five. Any complaint alleging a violation of this rule shall be filed within two years after the date on which the alleged violation took place.

W. Va. Code R. § 158-13-7 Immunity Absent Malicious or Fraudulent Complaints

7.1. Any person, official, or agency who in good faith files a verified complaint pursuant to this rule shall be immune from any civil liability that otherwise might result by reason of such actions.

7.1.a. In the event a person files a verified complaint which is determined by the committee to have been made maliciously or fraudulently, either knowing that the statements contained therein were not true, or in reckless disregard to the truth or falsity of material allegations contained in the complaint, the committee may impose one or more of the following sanctions on the complainant:

7.1.a.1. Make reimbursement to the respondent for reasonable actual costs incurred by the respondent;

7.1.a.2. Pay reasonable attorney fees incurred by the respondent;

7.1.a.3. Make reimbursement to the commission for the reasonable actual costs of investigation;

7.1.a.4. Decline to process any further complaints from the same individual until all monetary sanctions have been satisfied.

W. Va. Code R. § 158-13-8 Sanctions

8.1. If the commission finds by clear and convincing evidence that one or more charges are true and constitute a material violation of this rule, it may impose one or more of the following sanctions:

8.1.a. a written admonishment;

8.1.b. a cease and desist order;

8.1.c. an order of restitution of money, thing of value, or services taken or received in violation of this rule; and,

8.1.d. fines not to exceed one thousand dollars for each violation.

8.2. The commission may institute civil proceedings in the circuit court of the county wherein a violation occurred for the enforcement of sanctions imposed in its final decision.

8.3. In addition to the foregoing sanctions, the commission may recommend to the appropriate governmental body that the respondent be suspended or terminated from employment, removed from office, or disqualified from serving in the capacity of an administrative law judge either permanently or until such time as the respondent has completed an approved course of remedial training.

W. Va. Code R. § 158-13-9 Conciliation Agreements

9.1. At any stage of the proceedings, the commission may enter into a conciliation agreement with a respondent if such agreement is deemed by a majority of the members of the commission to be in the best interest of the state and the respondent.

9.2. Any conciliation agreement must be disclosed to the public.

9.3. Upon acceptance of a conciliation agreement, a majority of the members of the commission may elect to impose one or more of the sanctions provided in the preceding section.

W. Va. Code R. § 158-13-10 Appeal

10.1. The respondent may appeal final decisions of the commission involving the issuance of sanctions to the circuit court of Kanawha County, West Virginia, only upon grounds set forth in W. Va. Code §29A-5-4.

W. Va. Code R. § 158-13-11 Agency Code of Conduct

11.1. Any agency may develop a code of conduct for its own administrative law judges, which shall supersede this rule, provided that the Ethics Commission determines that such agency code of conduct substantially complies with the objective of this rule.

11.1.a. If the commission grants a waiver authorizing an agency to develop its own code of conduct in accordance with this provision, a copy of any such code shall be retained in the commission’s offices and be made available to the public.

158CSR13

158CSR13

Series 14 Filing Of Verified Time Records

W. Va. Code R. § 158-14-1 General

1.1. Scope. -- This legislative rule sets forth the guidelines for the maintenance of verified time records by public employees who have other public employment or hold another public office and the submission of time records to the Ethics Commission by the immediate supervisor of these public employees in accordance with W. Va. Code § 6B-2-5(l).

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

1.3. Filing Date. -- June 8, 2009.

1.4. Effective Date. -- July 1, 2009.

W. Va. Code R. § 158-14-2 Definitions

2.1. “Public employee” means any full-time or part-time employee of any state, county or municipal governmental body or any political subdivision thereof, including county school boards.

2.2. “Public official” means any person who is elected or appointed to any state, county or municipal office or position who is responsible for the making of policy or takes official action which is either ministerial or nonministerial, or both, with respect to: (1) Contracting for, or procurement of, goods and services; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or, (5) any other activity where the official action has an economic impact of greater than de minimis nature on the interest or interests of any person.

W. Va. Code R. § 158-14-3 Public Employees Required to Maintain Verified Time Records

3.1. If a public employee has other public employment or holds a public office, then the public employee shall maintain verified time records for each pay period in which:

3.1.a. the public employee is employed on a part-time basis and does not have regularly scheduled work hours and is authorized to make up time missed to perform the duties of another public office or employment; or,

3.1.b. the public employee is either part-time or full-time and is authorized to make up, outside of regularly scheduled work hours, time missed to perform the duties of another public office or employment.

3.1.c. No verified time records are required to be submitted when:

3.1.c.1. The public employee's compensation from one public employer is reduced by the amount of compensation received from the other public employer;

3.1.c.2. The public employee's compensation from one public employer is reduced on a pro rata basis for any work time missed to perform duties for the other public employer;

3.1.c.3. The public employee uses earned paid vacation, personal or compensatory time or takes unpaid leave from his or her public employment to perform the duties of another public office or employment.

3.1.c.4. The employee is a full-time employee who does not have regularly scheduled work hours.

3.2. For a part-time or full-time employee who has regularly scheduled work hours, a verified time record only needs to be maintained and submitted for the actual workday or workdays where there was time missed to perform the functions of the other public position or employment and the public employee is permitted to make up the time missed in lieu of having their compensation reduced on a pro rata basis for the time missed or using earned paid vacation, personal or compensatory time or takes unpaid leave from his or her public employment to perform the duties of another public office or employment.

3.3. For a part-time employee who does not have regularly scheduled work hours, a verified time record only needs to be maintained and submitted for the actual workday or workdays where there was time missed to perform the functions of the other public position or employment and the public employee is permitted to make up the time missed in another pay period in lieu of having their compensation reduced on a pro rata basis for the time missed or using earned paid vacation, personal or compensatory time or takes unpaid leave from his or her public employment to perform the duties of another public office or employment.

3.4. An elected or appointed public official who has other public employment, does not have to maintain time records for the office to which they have been elected or appointed; Provided, That, when applicable the elected or appointed public official must maintain verified time records for his or her other public employment, and these records must be filed with the Commission, in accordance with the requirements of this section and W. Va. Code §6B-2-5(l).

3.5. The requirements of this section do not apply to public employees who have taken a military leave of absence in accordance with W. Va. Code §15-1F-1.

W. Va. Code R. § 158-14-4 Public Employers Required to File Verified Time Records

4.1. If a public employer employees a person who is required to maintain verified time records, as required by this rule and W. Va. Code §6B-2-5(l), then the public employer shall submit the time records to the Ethics Commission on a quarterly basis. Time records only need to be submitted for the actual days where an employee missed work to perform the functions of another public position and was granted permission to make up the work in lieu of having his or her compensation reduced on a pro rata basis for the time missed, using earned paid vacation, personal or compensatory time, or taking unpaid leave from his or her public employment to perform the duties of the other public office or employment. Time records shall also be submitted for the day or days on which the employee makes up the work.

4.2. If a public employer has actual knowledge that an employee is subject to the requirements of this section and W. Va. Code §6B-2-5(l) then the employer shall require the employee to keep time records when required by this rule.

W. Va. Code R. § 158-14-5 Form of Filing

5.1. Copies of the time records must be submitted with a form which is attached as Appendix A to this rule. The form must be completed and signed by both the public employee and his or her immediate supervisor.

W. Va. Code R. § 158-14-6 Designation of Quarters and Time for Filing

6.1. The records and attached form must either be filed with the Commission or postmarked by the following dates:

6.1.a. For any pay period ending between January 1st and March 31st, by April 15th.

6.1.b. For any pay period ending between April 1st and June 30th, by August 15th. .

6.1.c. For any pay period ending between July 1st and September 30th, by October 15th.

6.1.d. For any pay period ending between October 1st and December 31st, by January 15th.

APPENDIX A

Title 158, Series 14 VERIFIED TIME RECORDS THIS FORM AND THE CORRESPONDING VERIFIED TIME RECORDS ONLY HAVE TO BE FILED IF DURING THE QUARTERLY REPORTING PERIOD THE PUBLIC EMPLOYEE MISSED TIME TO PERFORM THE WORK DUTIES OF ANOTHER PUBLIC OFFICE OR EMPLOYMENT AND WAS AUTHORIZED TO MAKE UP TIME. THE TIME RECORDS MUST BE SUBMITTED FOR THE ACTUAL WORK DAYS OR PAY PERIODS DURING WHICH THE TIME WAS EITHER MISSED OR MADE UP. IF THE TIME IS MADE UP IN ANOTHER REPORTING PERIOD, THEN THE PUBLIC EMPLOYEE IS REQUIRED TO SUBMIT THIS FORM AND CORRESPONDING TIME RECORDS DURING THAT REPORTING PERIOD AS WELL.

NAME OF PUBLIC EMPLOYEE:

JOB TITLE OF PUBLIC EMPLOYEE:

CHECK THE BOX TO INDICATE IF THE EMPLOYEE IS PART-TIME OR FULL-TIME.

PART-TIME:

FULL-TIME:

PUBLIC EMPLOYER:

NAME:

MAILING ADDRESS:

TELEPHONE NUMBER:

PUBLIC EMPLOYEE’S IMMEDIATE SUPERVISOR:

JOB TITLE OF IMMEDIATE SUPERVISOR:

CHECK A BOX TO INDICATE THE DESIGNATED PAY PERIOD FOR THE PUBLIC EMPLOYEE:

WEEKLY:

EVERY TWO WEEKS:

TWICE A MONTH:

OTHER:

IF OTHER, INDICATE IN THE SPACE PROVIDED THE DESIGNATED PAY PERIOD:

LIST THE OTHER PUBLIC OFFICE OR EMPLOYMENT HELD BY EMPLOYEE. INCLUDE THE ADDRESS AND TELEPHONE NUMBER:

CHECK A BOX TO INDICATE WHETHER THE OTHER PUBLIC OFFICE OR EMPLOYMENT IS A PART-TIME OR FULL-TIME POSITION.

PART-TIME:

FULL-TIME:

CHECK QUARTER FOR WHICH THE FORM IS BEING FILED:

January 1st - March 31st April 1st - June 30th July 1st - September 30th October 1st - December 31st I, , IN ACCORDANCE WITH WEST VIRGINIA CODE §6B-2-5(k), VERIFY THAT THE TIME RECORDS SUBMITTED SHOW THE HOURS THAT I DID IN FACT WORK FOR THIS PUBLIC EMPLOYER.

EMPLOYEE SIGNATURE DATE

I, , IN ACCORDANCE WITH WEST VIRGINIA CODE §6B-2-5(k) VERIFY THAT I AM THE IMMEDIATE SUPERVISOR OF THIS EMPLOYEE AND THAT, TO THE BEST OF MY KNOWLEDGE, THE TIME RECORDS SUBMITTED SHOW THE HOURS THAT THE EMPLOYEE DID IN FACT WORK.

IMMEDIATE SUPERVISOR SIGNATURE DATE

158CSR14

158CSR14

Series 15 Compliance Audits

W. Va. Code R. § 158-15-1 General

1.1. Scope. -- This legislative rule sets forth the guidelines for conducting audits of registration statements and reports filed by lobbyists under this chapter.

1.2. Authority. -- W. Va. Code §6B-3-11.

1.3. Filing Date. -- April 14, 2006.

1.4. Effective Date. -- July 1, 2006.

§58-15-2. Manner of Conducting Lotteries.

2.1. Each year, the Commission will initiate, by lottery, random audits of lobbyist registration statements, disclosure reports, including lobbyist activity reports and statements of registration required to be filed in accordance with the West Virginia Ethics Act.

2.2. For purposes of the lottery, each registered lobbyist shall be assigned a number. The lottery shall be conducted by Commission staff through the random selection of numbers by a computerized random number program in accordance with recognized statistical sampling standards.

2.3. The Commission will not hold more than four lotteries per year. Each year the number of audits to be conducted will be determined by the Commission through resolutions adopted at public meetings.

2.4. No lobbyist will be subject to a random audit more than once in any 24-month period.

W. Va. Code R. § 158-15-3 Documents Maintained by Lobbyist

3.1. An audit shall include registration statements, notices of representation and lobbyist activity reports, as well as other relevant information to verify, explain, clarify, support or contravene the registration statements and spending reports.

3.2. An audit shall be limited in time to the previous 2 years, except that lobbying activities performed prior to July 1, 2005, will not be audited under the act.

W. Va. Code R. § 158-15-4 Auditor Requirements

4.1. The audit shall be conducted by a certified public accountant. All certified public accountants, sole practitioners, partnerships or professional corporations (firm) must meet specific criteria in order to be eligible for appointment to conduct an audit. The following criteria must be met by the CPA:

4.1.a. Both resident and non-resident certified public accountants must be currently licensed by the West Virginia Board of Accountancy to perform accounting services in West Virginia. (W. Va. Code §§30-9-6, 30-9-11)

4.1.b. Both resident and non-resident firms must possess a valid current business franchise registration issued by the West Virginia State Auditor's Office.

4.1.c. Each firm must be registered as a vendor with the West Virginia Department of Administration, Purchasing Division. The vendor registration form, WV-1, may be obtained by contacting the Purchasing Division at 304-558-2311.

4.1.d. The completed WV-1 form must also be sent to the West Virginia Ethics Commission.

4.1.e. The firm must have no outstanding or delinquent payments due the Bureau of Employment Programs Commissioner for either Unemployment Compensation or Workers Compensation insurance premiums.

W. Va. Code R. § 158-15-5 Audit Procedures

5.1. The following general procedures will be employed by the Commission and certified public accountant when initiating and conducting audits:

5.1.a. At least 30 days prior to the initiation of the audit, each audit subject will be advised by letter that it was randomly selected for audit and further advised of the time, date, place and general scope as well as a tentative time frame for completion of the audit. The letter will contain a request for documents deemed necessary for conducting the audit.

5.1.b. Prior to the initiation of the audit, a review of the subject's reports on file with the Commission for a period not to exceed 2 years will be conducted.

5.1.c. The audit will be initiated by way of conference with the lobbyist.

5.1.d. The audit will include a detailed field examination of the financial records of the audit subject relating to lobbying activities.

5.1.e. The audit may include independent verification of some or all of the information reported.

5.1.f. The audit may include related records from other sources, in which case the subject of the audit shall cooperate fully and shall execute all waivers, releases or authorizations to allow the Commission to obtain the records.

5.1.g. Registered lobbyists shall have an affirmative duty to cooperate fully in any audit of themselves.

5.1.h. The audit may include interviews of lobbyists and employees thereof and other public officials or individuals necessary to the completion of the audit.

5.1.i. A post audit conference will be conducted with the subject of the audit.

5.1.j. Post audit preparation of a report which describes the result of the audit.

W. Va. Code R. § 158-15-6 Audit Report

6.1. The person or firm that is responsible for performing compliance audits will, at the conclusion of each audit, prepare a final audit report which will include findings; Provided, That, the findings shall be limited to information contained in or relevant to lobbyist registration statements, disclosure reports, including lobbyist activity reports and statements of registration. No information which is not required to be reported, including but not limited to lobbyist compensation, shall be included.

6.1.b. An audit report may include recommendations as to record keeping, reporting and other related practices arising from the audit.

6.1.c. Upon completion, an audit report will be served upon the lobbyist that is the subject of the audit.

6.1.d. Service of the audit report shall be complete upon mailing.

6.1.e. Within 30 days of service of the audit report, the subject of the audit may file with the Commission a statement setting forth the subject's position as to the audit report.

6.1.f. Audit reports and any related responses shall be submitted to the Executive Director of the Commission for review, and may form the basis for further proceedings under the Ethics Act.

6.1.g. The Commission must approve the report. The report may only be approved once the Commission finds that:

6.1.g.1. No further activity is required by the auditor;

6.1.g.2. There is no information disclosed in the report relating to lobbyist compensation or other information which is not required to be disclosed pursuant to W. Va. Code § 6B-3-1 et. seq.

6.1.g.3. The report is final.

6.1.h. If the Commission finds that further activity is required by the auditor or that there is information contained in the report relating to lobbyist compensation or other information which is not required to be disclosed pursuant to W. Va. Code §6B-3-1 et. seq., then the Commission shall direct the auditor to take further action or to remove any portions of the report which contain nonpublic information. The auditor will take the action directed by the Commission and then resubmit a revised final report for approval by the Commission.

6.1.i. The final audit report and related responses will be made available for public inspection after the Commission has approved the report.

158CSR15

158CSR15

Series 16 Complaints, Probable Cause Review Board and Investigations

W. Va. Code R. § 158-16-1 General Provisions

1.1. Scope. -- This Procedural Rule establishes the practice and procedure for the administration, investigation and disposition of Complaints by the West Virginia Ethics Commission’s Probable Cause Review Board.

1.2. Authority. -- W. Va. Code §§ 6B-2-1, 6B-2-2, 6B-2-2a, 6B-2-3a and 6B-2-4.

1.3. Filing Date. -- March 12, 2018.

1.4. Effective Date. -- April 12, 2018.

W. Va. Code R. § 158-16-2 Verified Complaints

2.1. A Verified Complaint is one written and verified by oath or affirmation before a notary public.

2.2. Any person may file a Verified Complaint with the Ethics Commission through hand delivery, United States Mail or via electronic mail if the Verified Complaint has been scanned and attached to the electronic mail.

2.3. The Executive Director or his or her designee shall, within three business days of receipt of a Verified Complaint, send a letter to the Complainant by first-class mail acknowledging receipt of the Verified Complaint.

2.4. The Executive Director of the Ethics Commission, upon majority affirmative vote of the Commission, may file a Commission-Initiated Complaint.

W. Va. Code R. § 158-16-3 Probable Cause Review Board

3.1. Within fourteen days of the receipt of a Verified Complaint or Commission-Initiated Complaint (hereinafter “Complaint”), the Executive Director shall refer the Complaint to the Probable Cause Review Board (hereinafter “Review Board”).

3.2. The Review Board must first determine whether the allegations stated in the Complaint, if taken as true, would constitute a violation of the Ethics Act (hereinafter “Act”).

3.3. If the Review Board determines that the Complaint does not contain allegations that would constitute a violation of the Act, the Review Board shall dismiss the Complaint by Order signed by the Review Board Chairperson.

W. Va. Code R. § 158-16-4 Notice of Investigation

4.1. If the Review Board determines that an allegation in the Complaint, if taken as true, would constitute a violation of the Act, then the Executive Director or his or her designee shall give notice to the Complainant and Respondent that an investigation will begin (hereinafter “Notice of Investigation”).

4.2. The Notice of Investigation and a copy of the Complaint shall be mailed to the Respondent by certified mail, return receipt requested, marked "Addressee only, personal and confidential." The Executive Director shall also provide a copy of the Notice of Investigation to the Complainant.

4.3. The Notice of Investigation shall describe the Respondent’s conduct which is the basis for the alleged violation of the Act.

4.4. The Notice of Investigation shall advise the Respondent that the purpose of the investigation is to determine whether probable cause exists to believe that a violation of the Act has occurred which may subject the Respondent to sanctions by the Commission, criminal prosecution by the state, or civil liability.

4.5. The Notice of Investigation shall also inform the Respondent that he or she has the right to appear and make an oral response before the Review Board and that he or she must submit a request for such an oral response within thirty days of receipt of the Notice of Investigation.

4.6. The Notice of Investigation shall also inform the Respondent that he or she may respond to the Complaint in writing within thirty days of receipt of the Notice of Investigation. This time may be extended by the Executive Director, his or her designee, or the Chairperson of the Review Board upon a showing of good cause by the Respondent.

4.7. The Notice of Investigation shall also advise the Respondent that his or her failure or refusal to respond to a fact or allegation is not taken as an admission of the truth of that fact or allegation.

W. Va. Code R. § 158-16-5 Investigation

5.1. The Review Board has forty-five days following the mailing of the Notice of Investigation to commence to consider:

5.1.1. The allegations raised in the Complaint;

5.1.2. Any written response filed by the Respondent;

5.1.3. Any oral response presented by the Respondent;

5.1.4. Other competent, relevant evidence submitted by any person to the Commission, and

5.1.5. Other competent, relevant evidence gathered by the Commission.

5.2. The investigation and determination as to probable cause shall not exceed eighteen months from the date the Notice of Investigation is mailed unless consented to by both the Respondent and Complainant, or unless the Ethics Commission finds that there is good cause for delay in the investigation and memorializes its determination in writing.

5.3. If the Respondent submits a request to make an oral response to the Complaint, the Executive Director, his or her designee, or the Review Board Chairperson shall schedule a meeting for that purpose. The Respondent, his or her attorney, Commission staff and any person the Review Board determines is necessary for the efficient operation of the meeting may be present at that meeting.

5.4. The Respondent has thirty minutes to make an oral response or statement of defense to the charges or allegations contained in the Complaint. The Review Board, in its discretion, may allow the Respondent additional time for the oral response.

5.5. The Review Board may seek additional probative information from the Respondent as is necessary for its investigation.

5.6. The Review Board may issue subpoenas as is necessary and any subpoena issued has the same effect as one issued by a circuit court of the state. The subpoena may be signed by the Review Board Chairperson, his or her designee, or by the Executive Director.

5.7. The Review Board Chairperson, his or her designee, the Executive Director, or his or her designee, may seek enforcement of any subpoena in a circuit court.

W. Va. Code R. § 158-16-6 Finding of Probable Cause

6.1. If the Review Board unanimously finds probable cause to believe that a violation of the Act has occurred the Review Board members shall sign an Order directing the Commission staff to prepare a Statement of Charges and to schedule a hearing within ninety days after the date the Order was entered.

6.2. If the Review Board fails to find probable cause, the proceedings shall be dismissed by an Order issued by the Review Board. Copies of the Order shall be sent to the Complainant and the Respondent.

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158CSR16

Series 17 Hearings

W. Va. Code R. § 158-17-1 General Provisions

1.1. Scope. -- This Procedural Rule establishes the practice and procedure for conducting hearings pursuant to W. Va. Code § 6B-2-4.

1.2. Authority. -- W. Va. Code §§ 6B-2-2 and 6B-2-4.

1.3. Filing Date. -- April 24, 2018

1.4. Effective Date. -- May 25, 2018

W. Va. Code R. § 158-17-2 Notice of Hearing

2.1. If the Review Board finds probable cause to believe a violation of the Act has occurred, the Executive Director shall serve Respondent by certified mail, return receipt requested, with a Statement of Charges and a Notice of Hearing setting forth the date, time, and place of the hearing,

2.2. The Statement of Charges and Notice of Hearing shall be served at least eighty days prior to the date of the hearing.

W. Va. Code R. § 158-17-3 Continuances

3.1. The Hearing Examiner may only continue the hearing for good cause.

W. Va. Code R. § 158-17-4 Hearing Examiner

4.1. The Commission may employ a Hearing Examiner to preside at the hearing and to issue a recommended decision containing proposed findings of facts and conclusions of law.

4.2. Hearing Examiners must be attorneys licensed to practice law in West Virginia with a minimum of five years’ experience in the practice of law.

4.3. The Hearing Examiner shall comply with the Administrative Law Judge Code of Conduct, W. Va. Code § 6B-2-5a and W. Va. Code R. §§ 158-13-1 through 11.

4.4. The Hearing Examiner shall be selected by the Executive Director.

W. Va. Code R. § 158-17-5 Disqualification of Hearing Examiners

5.1. A party may seek to disqualify the Hearing Examiner by filing a written motion asserting the grounds for disqualification. The motion must be filed at least thirty days prior to the scheduled hearing.

5.2. The Hearing Examiner may hold a hearing on the Motion for Disqualification. If the Hearing Examiner denies the Motion for Disqualification, he or she shall set forth the grounds for denial in writing. If a moving party’s Motion for Disqualification is denied, he or she may request a hearing before the Commission Chairperson or his or her designee who shall review the Motion for Disqualification de novo and decide the Motion.

5.3. The party seeking to disqualify the Hearing Examiner may request that a full record be made. The costs thereof, including the cost of court reporter services, witness fees and expenses shall be borne by the moving party unless the moving party prevails on the motion. This subsection does not, however, bar the Commission from ordering the Respondent to pay this cost in accordance with W. Va. Code § 6B-2-4(s).

5.4. The Chairperson or his or her designee shall issue a written decision on the Motion for Disqualification as soon as practicable. If a motion is granted, the Executive Director shall appoint a new Hearing Examiner. If the motion is denied, the Hearing Examiner shall proceed to hear the case within the time frame set forth in the Notice of Hearing or may for good cause reschedule the hearing to a later date.

5.5. The decision on the merits of a motion to disqualify a Hearing Examiner is interlocutory and is not subject to direct or immediate appeal.

W. Va. Code R. § 158-17-6 Prehearing Discovery

6.1. Information which is exempt from discovery includes, but is not limited to, the following:

6.1.1. Any record, report, memorandum or communication dealing with the internal practice, policy or procedure of the Commission;

6.1.2. Any record, report, memorandum, or communication of Commission staff or members regarding the institution, progress or result of an investigation of a Complaint or made in anticipation of or in preparation for a hearing;

6.1.3. The work product of an attorney, investigator or other staff member made in the course of an investigation of a Complaint or in anticipation of or in preparation for a hearing on the Complaint, or any report, record, memorandum, or communication made by Commission staff, the Commission, or Review Board, during the investigation of a complaint or in anticipation of or in preparation for a hearing on the Complaint which is otherwise privileged;

6.1.4 Any memorandum, statement or mental impression prepared or obtained by the Commission's attorney or staff;

6.1.5. Any documents protected by the attorney-client privilege; and

6.1.6. The identity of confidential informants and sources, unless they are to be used as witnesses.

6.2. The parties shall exchange within sixty days of the Respondent’s receipt of the Notice of the Hearing:

6.2.1. reports of experts to be used at the hearing;

6.2.2. the names of any witnesses the party expects to call at the hearing, including their addresses and telephone numbers;

6.2.3. copies of documents to be used at the hearing; and

6.2.4. results of any inspection of tangible objects to be used at the hearing.

6.3. Witness Statements -- At least seven days prior to the hearing, the parties shall exchange written and signed statements, tape-recorded statements, and statements adopted by individuals who will be witnesses at the hearing which are within the Respondent’s or Commission's possession. If a party fails to produce witness statements in a timely manner, the Hearing Examiner may bar that witness' testimony at the hearing unless good cause is shown for allowing the testimony.

6.4. Subpoenas and subpoenas duces tecum

6.4.1. The Commission may issue subpoenas and subpoenas duces tecum either at its own instance or upon written application of a party to the Executive Director whenever necessary to compel the attendance of witnesses and the introduction of books, records, correspondence, documents, papers or any other evidence which is relevant to the Complaint or Statement of Charges.

6.4.2. When a subpoena is issued at the request of a party to the hearing, the cost of service, witness and mileage fees shall be borne by the party at whose request the subpoena is issued. When the subpoena is issued at the instance of the Commission, the cost of service shall be borne by the Commission. This subdivision does not, however, bar the Commission from ordering the Respondent to pay the cost in accordance with W. Va. Code § 6B-2-4(s).

6.4.3. Witness and mileage fees shall be the same as are paid witnesses in the circuit courts of this state.

6.4.4. It is the responsibility of a party requesting the issuance of a subpoena or subpoena duces tecum to serve it by personal service, registered or certified mail, return receipt requested, or registered or certified mail, return receipt requested with delivery restricted to the person to whom the subpoena or subpoena duces tecum is directed. A party required to prove service by registered or certified mail must prove service by producing or filing with the Ethics Commission a return receipt or acknowledgement signed by the person to whom the subpoena or subpoena duces tecum is directed.

6.5. Depositions

6.5.1. Depositions may be obtained by either party and used for evidentiary or discovery purposes.

6.5.2. Evidentiary objections may be made on the record during any deposition or at the time the deposition is offered into evidence.

6.5.3. There is no requirement that the Hearing Examiner attend a deposition.

6.5.4. A party may be permitted to take a deposition of a witness, within or without the State of West Virginia, upon written request to and approval by the Hearing Examiner. A request for deposition shall contain:

6.5.4.a. the name and address of the person whose deposition is requested;

6.5.4.b. a brief statement of the matters on which the person is to be examined; and

6.5.4.c. a brief statement of the reasons for taking the deposition.

6.5.6. If the Hearing Examiner grants the request to take the deposition, the party taking the deposition shall provide reasonable notice of the deposition to the person deposed, all parties, and their counsel of record.

6.5.7. The notice shall be in writing and contain the date, time and place of the deposition, as well as the name and address of each person to be deposed.

6.5.8. The cost of court reporter services, witness fees and expenses shall be borne by the party taking the deposition. This subdivision does not, however, bar the Commission from ordering the Respondent to pay the cost in accordance with W. Va. Code § 6B-2-4(s).

6.5.9. The deposition shall be taken in the manner proscribed by the laws of West Virginia for taking depositions in civil cases in courts of record except as set forth in this Rule.

W. Va. Code R. § 158-17-7 Hearing Procedure

7.1. The West Virginia Rules of Evidence shall apply during the hearing.

7.2. The hearing proceedings shall be electronically recorded. The Commission may employ the services of a court reporter to record and transcribe the proceedings by any means permitted in the circuit courts of this state.

7.3. The cost of preparing a transcript of the hearing shall be borne by the party requesting it. This subdivision does not, however, bar the Commission from ordering the Respondent to pay the cost in accordance with W. Va. Code § 6B-2-4(s).

7.4. Any party to a hearing has the right to be represented by an attorney duly qualified to practice in the State of West Virginia. A Respondent may not be represented at a hearing by a spokesperson, lay representative or anyone else not authorized to practice law in the State of West Virginia.

7.5. The Respondent may appear without counsel and represent himself or herself at the hearing. At the beginning of the hearing, the Hearing Examiner shall ensure that the Respondent does not desire to obtain counsel and is thoroughly advised of the sanctions which may be imposed in the event the Commission finds that the Respondent committed a material violation of W. Va. Code §§ 6B-1-1 through 6B-3-11.

7.6. All persons at the hearing shall conduct themselves in a respectful manner. Demonstrations of any kind at hearings shall not be permitted. The Hearing Examiner may, in his or her discretion, recess or continue any hearing at which any person conducts themselves in any manner which interferes with or prevents the proper conduct of the hearing.

7.7. All testimony to be considered by the Hearing Examiner at the hearing shall be by sworn or affirmed testimony.

7.8. The purpose of the hearing is to further inquire into the matters set forth in the Statement of Charges and to record evidence and arguments in support of and in opposition to the charges so that the Commission may determine all issues.

7.9. Members of the Commission and its officers, agents and employees are competent to testify at the hearing as to material and relevant matters but no member of the Commission who testifies at the hearing may thereafter participate in the deliberations or decisions of the Commission with respect to the case in which he or she testified.

7.10. Each party may make a brief opening statement setting forth the evidence he or she intends to prove.

7.11. The Complainant or the Commission’s counsel shall first present competent and relevant evidence, including testimony and/or documents, in support of the Statement of Charges.

7.12. The Respondent or his or her counsel may present competent and relevant evidence following the conclusion of the Complainant’s presentation of evidence.

7.13. Each party has the right to cross-examine any witness who testifies.

7.14. Following the presentation of the Respondent’s evidence, the Complainant has the right to submit rebuttal evidence.

7.15. Following the presentation of all evidence, both parties have the right to make a closing argument, not to exceed ten minutes. The Hearing Examiner may extend the time period upon a showing of good cause.

7.16. All exhibits offered into evidence shall be labeled and marked.

7.17. All exhibits offered into evidence, or copies thereof, shall be appended to the record of proceedings, and if any exhibit is not susceptible to attachment or copying the Hearing Examiner may authorize the substitution of either a photograph, facsimile, or description of the exhibit.

7.18. The Hearing Examiner may order that witnesses be sequestered.

7.19. The Respondent is entitled to be present and to present evidence at the hearing; however, the Respondent shall be considered to have waived the right to be present if:

7.19.1. after being notified of the date, time and place of hearing he or she does not appear and fails to show good cause for his or her absence, or

7.19.2. after being advised by the Hearing Examiner that disruptive conduct will cause removal from the hearing, he or she persists in conduct which justifies his or her exclusion from the hearing.

W. Va. Code R. § 158-17-8 Findings of Fact, Conclusions of Law, and Briefs

8.1. Either party may, within fifteen business days from the conclusion of the hearing, file with the Commission proposed Findings of Fact, Conclusions of Law and a brief containing argument.

8.2. Findings of fact shall be limited to the facts admitted into evidence at the hearing or made part of the record and any facts found through judicial notice.

W. Va. Code R. § 158-17-9 Decision of Hearing Examiner

9.1. The Hearing Examiner must issue proposed Findings of Facts and Conclusions of Law (hereinafter “Recommended Decision”) within forty-five days from receipt of the parties’ proposed Findings of Fact, Conclusions of Law and briefs.

9.2. The Hearing Examiner shall provide a copy of the recommended decision to the Executive Director who shall provide a copy of it to the parties and the Commission.

9.3. The parties may submit briefs to the Commission in support of or in opposition to the Hearing Examiner’s recommended decision within fourteen days of receipt of the recommended decision.

9.4. The Commission shall then have forty-five days within receipt of the entire record to make a final decision on behalf of the Commission.

9.5. Either party may request an opportunity to make an oral argument to the Commission prior to their deliberations on the Hearing Examiner’s recommended decision and the imposition of appropriate sanctions, if applicable. The request must be made in writing and submitted within fifteen business days from the conclusion of the hearing.

W. Va. Code R. § 158-17-10 Commission as a Hearing Board

10.1. In lieu of employing a Hearing Examiner, the Commission may sit as a hearing board to preside at the hearing.

10.2. The Chairperson or his or her designee may serve as the Presiding Officer of the Hearing Board and may exercise all powers of the Hearing Examiner for purposes of handling prehearing matters and conducting the hearing.

10.3. If the Commission sits as a Hearing Board, it shall issue a final decision in writing within twenty-one days following the close of evidence, including receipt of the proposed Findings of Fact and Conclusions of Law of the parties.

W. Va. Code R. § 158-17-11 Administrative Record

11.1. The exclusive record for decision is:

11.1.1. the transcript or recording of testimony at the hearing;

11.1.2. exhibits introduced into evidence at the hearing;

11.1.3. all documents or evidentiary depositions filed in the proceeding, and

11.1.4. any proposed Findings of Facts and Conclusions of Law and briefs submitted by the parties, including briefs submitted in support of or in opposition to the Hearing Examiner’s recommended decision.

W. Va. Code R. § 158-17-12 Final Decision

12.1. The Commission’s final decision must be in writing. Within three business days of issuing a final decision, the Commission must mail a copy of it to the Respondent or Respondent’s counsel by certified mail, return receipt requested. A copy must also be provided to the Complainant.

12.2. A final decision must be approved by at least six members of the Commission.

W. Va. Code R. § 158-17-13 Sanctions

13.1. The Commission may impose sanctions in accordance with W. Va. Code § 6B-2-4(s) if it finds by clear and convincing evidence that the facts alleged in the Complaint are true and constitute a material violation of the Act.

13.2. The Commission may institute civil proceedings in the circuit court of the county in which a violation occurred for the enforcement of sanctions imposed in its final decision.

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158CSR17

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158CSR17

Series 18 Ethics Training Requirements For Designated Public Officials

W. Va. Code R. § 158-18-1 General

1.1. Scope. -- This legislative rule establishes a procedure for providing mandatory ethics training to designated public officials.

1.2. Authority. -- W. Va. Code §6B-2-5b.

1.3. Filing Date. -- April 14, 2006.

1.4. Effective Date. -- July 1, 2006.

W. Va. Code R. § 158-18-2 Applicability

2.1. Any individual who, after July 1, 2005, is elected or appointed to serve in the Legislature, as a member of the Board of Public Works, and those positions in the executive branch of state government which the Governor designates by executive order, shall attend a training course conducted by the Ethics Commission; Provided, That, the provisions of this section do not apply to persons who held public office prior to July 1, 2005 and who are subsequently reelected or reappointed.

2.2. The training shall occur within six months after the initial election or appointment. If a person is subsequently reelected or appointed, then the requirements of this section are satisfied if he or she attended an initial training course.

2.3. The Commission shall confer with the Speaker of the House and the President of the Senate in order to coordinate a mutually convenient time and place to provide a training session for all newly elected or appointed members of the Legislature.

2.4. The Commission shall confer with the Governor in order to coordinate a mutually convenient time and place to provide a training session to those persons designated by the Governor in accordance with W. Va. Code §6B-2-5b.

2.5. The Commission shall confer with the members of the Board of Public Works in order to coordinate a mutually convenient time and place to provide a training session.

W. Va. Code R. § 158-18-3 Nature, Duration and Content of Training

3.1. During the training course, the Commission shall educate the public officials about the general requirements and prohibitions contained in the Ethics Act.

3.2. The training shall be one (1) hour unless additional time is requested. A reasonable amount of time will be allotted during the training session, and, if requested by the public officials, at the conclusion of the training session, for a question and answer period.

3.3. The Commission shall keep records which contain the names of the persons who have undergone the training and the dates the training occurred.

158CSR18

158CSR18

Series 19 West Virginia Ethics Commission

W. Va. Code R. § 158-19-1 General Provisions

1.1. Scope. -- This Procedural Rule sets forth the practice and procedure established by the West Virginia Ethics Commission (“the Commission”) for carrying out its responsibilities in the administration and enforcement of the West Virginia Governmental Ethics Act, (hereafter referred to as the "Act")

W. Va. Code §§ 6B-1-1 through 6B-3-11.

1.2. Authority. -- W. Va. Code §§ 6B-2-1 and 6B-2-2.

1.3. Filing Date. -- April 24, 2018

1.4. Effective Date. – May 25, 2018

W. Va. Code R. § 158-19-2 Definitions

2.1. All words defined in chapter six-B of the West Virginia Code have the meanings therein ascribed to them for the purpose of all legislative rules of the West Virginia Ethics Commission. The following words have the meanings herein ascribed to them as set forth below:

2.1.a. "Act" means the West Virginia Governmental Ethics Act.

2.1.b. "Chairperson" means the chairperson of the West Virginia Ethics Commission elected by the Commissioners.

2.1.c. "Commissioner" means one of the duly appointed members of the West Virginia Ethics Commission.

2.1.d. "Meeting" means the convening of the Commission for which a quorum is required to make a decision or to deliberate toward a decision on any matter. As provided in W. Va. Code § 6-9A-2(5)(A), the term “meeting” does not include any meetings for the purposes of making an adjudicatory decision.

W. Va. Code R. § 158-19-3 Meetings

3.1. Meetings of the Commission may be called by the chairperson, and the chairperson shall call a meeting upon the written request of three commissioners.

3.2. The chairperson shall send a notice to the Commission members in writing at least seven days in advance of a meeting setting forth the date, time and place of the meeting, except that notice is not required if the date, time, and place have been fixed in a prior meeting.

3.3. The chairperson shall notify the public and the news media by filing with the office of the Secretary of State a public notice of each regular or special meeting for publication in the State Register at least five business days in advance of the meeting. The public notice shall contain the date, time, and place of the meeting.

3.4. At least three business days prior to the date of the meeting, an agenda for each regular and special meeting shall be made available in the Commission’s office and on the Commission’s website (ethics.wv.gov). An agenda which has been issued at least three days in advance of a meeting may be amended up to two business days before the meeting. In calculating business days, the day of the meeting, as well as Saturdays, Sundays and legal holidays are excluded.

3.5. The provisions of this Rule shall not apply in the event of an emergency requiring immediate official action by the Commission.

3.6. Meetings that are not concluded in one day may be continued to a set date, time and place by a majority vote of the Commission members present and voting.

3.7. The Commission shall meet in regular session on the first Thursday of each month or such other date as the Commission may direct.

3.8. The Commission shall convene all regular meetings at the offices of the West Virginia Ethics Commission, unless otherwise changed by a majority vote of a quorum of the Commission or by the chairperson.

W. Va. Code R. § 158-19-4 Proceedings to be Open; Exceptions

4.1. All meetings of the Commission are open to the public except as otherwise provided in W. Va. Code § 6-9A-4, or as otherwise provided in the Act.

4.2. The Commission may at any meeting go into executive session, upon a majority vote of the Commissioners present or participating by teleconference or other electronic means to discuss Commission personnel, planned or ongoing litigation, and planned or ongoing investigations, or to conform with the provisions of the Act requiring confidentiality.

4.3. Any action taken as a result of a discussion in executive session must be properly ratified in open session of the Commission to be an official action of the Commission.

W. Va. Code R. § 158-19-5 Minutes of Meetings

5.1. The Commission shall prepare written minutes of all Commission meetings.

5.2. A copy of the minutes of open meetings shall be available to the public within a reasonable time after the meetings and shall include the following information:

5.2.a. The date, time, and place of the meeting;

5.2.b. The name of each Commission member present or absent;

5.2.c. All motions, proposals, measures, orders, and resolutions proposed; and,

5.2.d. The results of all votes and, upon the request of a member, the vote of each member, by name.

W. Va. Code R. § 158-19-6 Quorum, Majority Vote Required; Proxy Vote Prohibited

6.1. Five members of the Commission shall constitute a quorum for the transaction of business.

6.2. At least six members of the Commission are required to render a decision regarding the truth or falsity of charges against a respondent and a decision to impose sanctions.

6.3. No Commission member may vote by proxy.

6.4. Meetings of the Commission may be held by telephonic or other electronic conferencing except when the Commission is acting as a hearing board.

6.5. Meetings held by telephone conference require notice to members in the same manner as meetings personally attended, shall be electronically recorded, and the recordings shall be retained in accordance with the Commission’s record retention policy.

W. Va. Code R. § 158-19-7 Travel Expense Rules; Compensation

7.1. Members of the Commission shall receive the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as authorized by law for each day or portion thereof engaged in the discharge of official duties.

7.2. Every day spent in a regular or special meeting, committee meeting or hearing constitutes a day spent on Commission business. A member shall not be reimbursed for expenses unless he or she is personally in attendance.

W. Va. Code R. § 158-19-8 Oath

Each member of the Commission shall take and subscribe to the oath or affirmation required pursuant to Article IV, Section 5 of the Constitution of West Virginia.

W. Va. Code R. § 158-19-9 Removal of Member

A Commission member may be removed by the Governor for substantial neglect of duty, gross misconduct in office, or violation of the Act, after written notice and an opportunity for reply.

W. Va. Code R. § 158-19-10 Delegation of powers and duties Except where contrary to the law, the Commission may delegate any of the powers and duties of the Commission to an employee or agent of the Commission

158CSR19

158CSR19

Series 20 Forms

W. Va. Code R. § 158-20-1 General

1.1. Scope. -- This legislative rule relates to forms created by the Ethics Commission for filings by public servants and lobbyists.

1.2. Authority. -- W. Va. Code §§ 6B-2-2(a), 6B-2A-1 and 6B-3-2.

1.3. Filing Date. -- April 22, 2011

1.4. Effective Date. -- May 1, 2011

W. Va. Code R. § 158-20-2 Definitions

2.1. "Commission" means the West Virginia Ethics Commission.

2.2. "Executive Director" means the Executive Director of the West Virginia Ethics Commission.

2.3. "Form" means any form, report or statement prepared or mandated for use by the Commission.

2.4. "Lobbyist" means a person required to register as a lobbyist with the Commission in accordance with article three, chapter six-b of the Code.

W. Va. Code R. § 158-20-3 General Rules

3.1. A blank copy of all financial disclosure forms or lobbyist registration statements or expenditure reports required to be prepared by the Commission shall be made available for inspection and review upon the Commission's website and upon request.

3.2. Any person who is required to file a form in accordance with the requirements of the Ethics Act, W.Va. Code §§ 6B-1-1 et seq., may request that the format of a form be modified.

3.3. A request that a form be modified may be made orally or in writing to the Executive Director of the Ethics Commission. The Executive Director or his or her designee shall reply to a request within the following time frames:

a. Oral requests - An oral response shall be provided within five business days of receipt of the request for modification.

b. Written request - A written response shall be provided within ten business days of receipt of the request for modification.

c. For purposes of calculating days, the day of the receipt of the request shall not be included or Saturdays, Sundays and legal holidays. A written response shall be considered timely if postmarked by the due date.

3.4. If the Executive Director or his or her designee declines to make the requested modification, the requester may submit a formal advisory opinion request to the Ethics Commission. Any such request must comply with the requirements of W.Va. Code § 6B-2-3(a). The Ethics Commission shall rule upon the request within sixty days of receipt of the request. In calculating this period, the day of the receipt of the request shall not be included.

W. Va. Code R. § 158-20-4 Lobbyist Registration Forms

4.1. Lobbyists shall register on a form which is the same as the form attached as Appendix A to this rule. If the Commission implements electronic registration, then the electronic form shall be substantially similar.

4.2. Lobbyists shall submit a written authorization from each of the their employers confirming the lobbyist's employment and the subjects on which the employer is to be represented on a form which is the same as the form attached as Appendix B to this rule. If the Commission implements electronic registration, then the electronic form shall be substantially similar.

Return this completed form and all attachments to:

WV Ethics Commission 210 Brooks Street, Ste 300 Charleston WV 25301 Phone: 304 558-0664 (LRS-1-)

APPPENDIX A Lobbyist Registration West Virginia Lobbyist 20xx-20xx This registration is valid through end of 20xx. Registration no. (assigned by Ethics Commission)

STATE OF WEST VIRGINIA

Important filing requirements for the lobbyist.

Payment to the WV Ethics Commission for $100.00 for your base lobbyist registration fee. Paid by check Recent passport-type photo, approximately 2 x2 to create a photo ID and to publish in the lobbyist directory. Attached or CCard ☐ ☐ or Electronic A separate Representation Form for each entity that you represent plus an additional fee of $100.00 per entity.

Mark here if this form amends earlier information supplied by you. Please indicate the changes or additions you wish to make to your registration or representation information. If you are terminating your registration or your representation for a client or clients, please attach a completed Termination Report to this form.

1. Lobbyist contact information (please print clearly)

Lobbyist name:

Phone: )

Email:

Fax:

Alternate Phone Name to use on Lobbyist ID Badge:

Please provide complete address information. Check the box next to your preferred mailing address phone:

Business Address (required)

Home Address: phone:

Temporary or Legislative Session address (if different)

Business Address: phone:

2. Representations* List all employers or entities for which you are registering to lobby. A separate Representation form must accompany this form for each listed employer, organization or entity that you represent. You may add additional Statements of Representation any time after your initial registration. Each representation requires a fee of $100.00 1. 4. 2. 5. 3. 6.

If you are not representing a particular employer or organization, provide a general description of the subjects, topics or issues which will be the focus of your lobbying efforts. kljh 3. Persons employed by lobbyist to lobby (if any)

4. Lobbyist certification and signature To the best of my knowledge, the information contained hereon and on any attached materials is true, correct and complete. I understand that it is a violation of WV Code 6B-3-9 to willfully and knowingly file a false or incomplete report. I further understand that any person who fails to comply with the lobbyist registration and reporting requirements of the Ethics Act may be subject to administrative prosecution by the Ethics Commission. For any questions or instructions for completing this form please contact the Ethics Commission or refer to the website www.wvethicscommission.org Lobbyist Signature Date WV Ethics Commission 210 Brooks St., Suite 300 Charleston WV 25301 304-558-0664

APPENDIX B Employer Representation / Authorization West Virginia Lobbyist 20xx-20xx WESY AM A IMPORTANT: This form is to be completed and signed by both the Employer and the Lobbyist. Original signatures are required. This authorization is valid through 20xx unless cancelled, changed or amended in writing before that time.

Note: All questions must be completed or the form will be returned.

Important information A fee of $100.00 and this completed Representation form is required for each entity that you represent as a lobbyist.

Paid by check credit card (This is in addition to the base lobbyist registration fee of $100.00)

Is this is your initial registration? A completed Lobbyist Registration (LRS-1) must accompany this form.

Is this is an additional representation? An Amended Lobbyist Registration Statement must accompany this form.

1. Lobbyist name as listed on Lobbyist Registration form (form LRS-1revised)

Lobbyist name Registration number (if known)

Email:

Phone:

Fax:

2. Represented Employer, Organization or Association Name Complete name of represented Employer, Organization or Association Mailing address: phone: fax:

Occupation or type of business: > Provide a general description of the subjects, topics or issues which will be the focus of lobbying efforts 3. Lobbyist information for this employer/authorization Check only one:

Retained solely as lobbyist Unpaid volunteer Regular employee, services include but are not limited to lobbying Is the lobbyist employed or retained under any agreement, arrangement or understanding by which any compensation paid to the lobbyist is contingent upon the success of his or her lobbying activity?

Yes No Not applicable Lobbyist Signature: X ☒ Date:

4. Employer certification I certify that the lobbyist named above is authorized to lobby on our behalf, and that to the best of my knowledge, this Statement of Representation is true, correct and complete. For questions or to obtain instructions for completing this form, please contact the Ethics Commission or refer to the website www.ethics.wv.gov Authorized Signature: X ☒ Date:

Type or print name:

Email address:

Title: