Title 146 W. Va. C.S.R.

Election Commission Election Commission

Series 01 Corporate and Membership Organization Political Activity

W. Va. Code R. § 146-1-1 General

1.1. Scope. -- This Rule establishes the general regulations on corporate and membership organization political activity.

1.2. Authority. -- W. Va. Code § 3-8-8.

1.3. Filing Date. -- May 8, 2024.

1.4. Effective Date. -- May 8, 2024.

1.5. Sunset Provision. -- This Rule shall terminate and have no further force or effect August 1, 2029.

W. Va. Code R. § 146-1-2 Definitions

2.1. "Candidate's committee" means a political committee established with the approval of or in cooperation with a candidate or a prospective candidate to explore the possibilities of seeking a particular office or to support or aid his or her nomination or election to an office in an election cycle. If a candidate directs or influences the activities of more than one active committee in a current campaign, those committees shall be considered one committee for the purpose of contribution limits.

2.2. “Contribution” means a gift, subscription, loan, assessment, payment for services, dues, advance, donation, pledge, contract, agreement, forbearance, promise of money, or other tangible thing of value, whether conditional or legally enforceable, or a transfer of money or other tangible thing of value to a person, made for the purpose of influencing the nomination, election, or defeat of a candidate.

2.2.1. A coordinated expenditure is a contribution for the purposes of this rule. “Coordinated expenditure” is an expenditure made in concert with, in cooperation with, or at the request or suggestion of a candidate or candidate’s committee and meeting the criteria provided in W. Va. Code § 3-8-9a.

2.2.2. An offer or tender of a contribution is not a contribution if expressly and unconditionally rejected or returned. A contribution does not include volunteer personal services provided without compensation: Provided, that a nonmonetary contribution is to be considered at fair market value for reporting requirements and contribution limitations.

2.3. "Corporate Political Action Committee" means a political action committee that is a separate segregated fund of a corporation that may only accept contributions from its restricted group as outlined in this Rule.

2.4. "Corporation" means any separately incorporated entity, whether under the laws of West Virginia or any other state or any foreign country. The term corporation covers both for-profit and nonprofit corporations and includes nonstock corporations, incorporated membership organizations, incorporated cooperatives, incorporated trade associations, professional corporations and, under certain circumstances, limited liability companies.

A political committee may incorporate and not be subject to the definition of a corporation within this rule if the political committee incorporates for liability purposes only, and if the organization is properly registered as political committee with the appropriate filing officer. Notwithstanding the corporate status of the political committee, the treasurer of an incorporated political committee remains personally responsible for carrying out their respective duties under this rule.

2.5. "Election Officer" means the officer or official who receives the Statement of Organization of a political committee, and includes the Secretary of State, the county clerk, and the municipal clerk or recorder, as set forth in W. Va. Code § 3-8-4.

2.6. "Executive or Administrative Personnel" means individuals employed by a corporation who are paid on a salary rather than hourly basis and who have policymaking, managerial, professional or supervisory responsibilities.

2.6.1. This definition includes:

2.6.1.a. The individuals who run the corporation's business such as officers, other executives and plant, division and section managers; and

2.6.1.b. Individuals following the recognized professions, such as lawyers and engineers.

2.6.2. This definition does not include:

2.6.2.a. Professionals who are represented by a labor organization; 2.6.2.b Salaried foremen and other salaried lower-level supervisors having direct supervision over hourly employees;

2.6.2.c. Former or retired personnel who are not stockholders; or

2.6.2.d. Individuals who may be paid by the corporation, such as consultants, but who are not employees, within the meaning of 26 CFR 31.3401(c)-1 of the corporation for the purpose of income withholding tax on employee wages under Internal Revenue Code of 1954, § 3402.

2.6.3. Individuals on commission may be considered executive or administrative personnel if they have policymaking, managerial, professional or supervisory responsibility and if the individuals are employees within the meaning of 26 CFR 31.3401(c)-1 of the corporation for the purpose of income withholding tax or employee wages under the Internal Revenue Code of 1954, § 3402.

2.6.4. The Fair Labor Standards Act, 29 U.S.C. 201, et seq. and the regulations issued pursuant to that Act, 29 CFR 541, may serve as a guideline in determining whether individuals have policymaking, managerial, professional or supervisory responsibilities.

2.7. "Families" means spouses and unemancipated children.

2.8. “Membership organization” means a group that grants bona fide rights and privileges, such as the right to vote, to elect officers or directors, and the ability to hold office to its members and which uses a majority of its membership dues for purposes other than political purposes. “Membership organization” does not include organizations that grant membership upon receiving a contribution.

2.9. “Membership organization political action committee” means a labor organization or a trade association, cooperative or other incorporated membership organization that: is composed of members; expressly states the qualifications for membership in its articles and by-laws; makes its articles, by-laws and other organizational documents available to its members; expressly seeks members; acknowledges the acceptance of membership, such as by sending membership cards to new members or including them on a membership newsletter list; and is organized such that it operates a subsidiary entity or segregated fund of the membership organization primarily for the purpose of influencing any election on the ballot in the State of West Virginia.

2.10. "Person" means any individual, partnership, committee, association, corporation and any other organization or group of persons.

2.11. “Political Action Committee” means a committee organized by one or more persons, the primary purpose of which is to support or oppose the nomination or election of one or more candidates. The following are types of political action committees:

2.11.1. A corporate political action committee, as that term is defined by Subsection 2.3 of this Rule;

2.11.2. A membership organization political action committee, as that term is defined by Subsection 2.9 of this rule; and

2.11.3. An unaffiliated political action committee, as that term is defined by Subdivision 2.18.

2.12. “Political Committee” means any candidate committee, political action committee or political party committee.

2.13. "Political Party Committee" means a committee established by a political party or political party caucus for the purposes of engaging in the influencing of the election, nomination or defeat of a candidate in any election.

2.14. "Political purposes" means any of the following:

2.14.1. Expressly advocating or opposing the nomination, election or defeat of one or more candidates;

2.14.2. Supporting the administration or activities of an established political party, political party caucus or an organization which has declared itself a political party or political party caucus;

2.14.3. Supporting the administration or activities of a political committee determining the advisability of becoming a candidate under the pre-candidacy financing provisions; or

2.14.4. Supporting the retirement of the debt of a candidate or political committee incurred for any of the purposes set forth in this Section.

2.14.5. Making allowable contributions to political committees in accordance with the applicable limits of the law and this Rule.

2.15. "Restricted Group" means stockholders and their families, and executive and administrative personnel of its subsidiaries, branches, divisions, and departments and their families, of a corporation or membership organization, or when applicable, the members of an incorporated association or organization or group of persons, and the stockholders and their families, and executive and administrative personnel and their families, of such members.

2.16. “Separate segregated fund” created for, but not limited to, political purposes to engage on behalf of members of a corporation. This fund, whether meeting the definition of a PAC or not, is restricted from receiving corporate or membership organization contributions.

2.17. "Stockholder" means a person who has a vested beneficial interest in stock, has the power to direct how that stock shall be voted (if it is voting stock), and has the right to receive dividends.

2.18. “Unaffiliated political action committee” means a political action committee that is not affiliated with a corporation of a membership organization.

W. Va. Code R. § 146-1-3 General Prohibition

3.1. Except as permitted below by this rule, no officer of any corporation or membership organization, or agent or person, on behalf of such corporation or membership organization, shall directly or indirectly make, or authorize to be made, or consent to a contribution to any political committee or a coordinated expenditure in connection with election to any local or state office, or in connection with any primary election or political convention or caucus held to select candidates for any local or state office.

3.2. No candidate, political committee or any other person shall knowingly accept or receive any payment prohibited by this section.

3.3. No corporation or membership organization shall facilitate the making of contributions as further described in this Section:

3.3.1. Corporations and membership organizations (including officers, directors or other representatives acting as agents of corporations or membership organizations) are prohibited from facilitating the making of contributions to candidates or political committees, other than to the political action committee that is a separate segregated fund of the corporations or membership organizations. Facilitation means using corporate or membership organization resources or facilities to engage in fundraising activities in connection with any candidate for election. A corporation or membership organization does not facilitate the making of a contribution to a candidate or political committee if it provides goods or services in the ordinary course of its business as a commercial vendor in accordance with W. Va. Code § 3-8-9 at the usual and normal charge.

3.3.2. Examples of facilitating the making of contributions include but are not limited to:

3.3.2.a. Fundraising activities by corporations and membership organizations (except commercial vendors):

3.3.2.a.1. Officials or employees of the corporation and membership organizations ordering or directing subordinates or support staff (who therefore are not acting as volunteers) to plan, organize or carry out the fundraising project as a part of their work responsibilities using corporate or membership organization resources, unless the corporation or membership organization receives advance payment for the fair market value of such services;

3.3.2.a.2. Failure to reimburse a corporation or membership organization within a commercially reasonable time for the use of corporate or membership organization facilities in connection with such fundraising activities;

3.3.2.a.3. Using a corporate or membership organization list of customers, clients, vendors or others who are not in the restricted group to solicit contributions or distribute invitations to the fundraiser, unless the corporation or membership organization receives advance payment for the fair market value of the list;

3.3.2.a.4. Using meeting rooms that are not customarily made available to clubs, civic or community organizations or other groups; or

3.3.2.a.5. Providing catering or other food services operated or obtained by the corporation or membership organization, unless the corporation or membership organization receives advance payment for the fair market value of the services;

3.3.2.b. Providing materials for the purpose of transmitting or delivering contributions, such as stamps, envelopes addressed to a candidate or political committee other than the corporation's or membership organization’s separate segregated fund, or other similar items which would assist in transmitting or delivering contributions, but not including providing the address of the candidate or political committee;

3.3.2.c. Soliciting contributions earmarked for a candidate that are to be collected and forwarded by the corporation's or membership organization’s separate segregated fund, except to the extent such contributions also are treated as contributions to and by the separate segregated fund; or

3.3.2.d. Using coercion, such as the threat of a detrimental job action, the threat of any other financial reprisal, or the threat of force, to urge any individual to make a contribution or engage in fundraising activities on behalf of a candidate or political committee.

3.3.3. Facilitating the making of contributions does not include the following activities if conducted by a separate segregated fund:

3.3.3.a. Any activity specifically permitted under W. Va. Code § 3-8-9, including soliciting contributions to a political committee, and making in kind contributions to a political committee; and

3.3.3.b. Collecting and forwarding contributions earmarked to a candidate in accordance with 3.3.b.3. of this section.

3.3.4. Facilitating the making of contributions also does not include the following activities if conducted by a corporation or membership organization:

3.3.4.a. Enrolling members of a corporation's or membership organization’s restricted group in a payroll deduction plan or check-off system which deducts contributions from dividend or payroll checks to make contributions to the corporation's or membership organization’s separate segregated fund, checkoff system or an employee participation plan, and are subject to the solicitation requirements of W. Va. Code § 3-8-8;

3.3.4.b. Soliciting contributions to be sent directly to candidates if the solicitation is directed to the restricted group; and

3.3.4.c. Soliciting contributions earmarked for a candidate that are to be collected and forwarded by the corporation's or membership organization’s separate segregated fund, to the extent such contributions also are treated as contributions to and by the separate segregated fund.

3.3.5. Facilitating the making of contributions also does not include the provision of incidental services by a corporation or membership organization to collect and forward contributions from its employee stockholders and executive and administrative personnel to the separate segregated fund of a trade association of which the corporation or membership organization is a member, including collection through a payroll deduction or check-off system.

3.3.6. Any use of corporate or membership organization property as described in Sections 4.3 and 4.4 of this Rule is conditioned on such corporation or membership organization also permitting any group of employees represented by a corporate political action committee or membership organization political action committee registered with either the Secretary of State of West Virginia or the Federal Election Commission, to use, without reimbursement, the real property of such corporation or membership organization solely to establish, administer and solicit contributions to such corporate political action committee or membership organization political action committee. No such group of employees may use any such real property in such a manner as to significantly disrupt the normal operations or activities of the corporation or membership organization.

3.3.6.a. A corporation or membership organization is prohibited from soliciting any contributions by use or threat of any physical force, job discrimination, financial reprisals or as a condition of employment, or by paying any contributor for his or her contribution through a bonus, expense account or other form of direct or indirect compensation.

3.3.6.b. Any person soliciting for a contribution to a separate segregated fund of a corporation or membership organization must, at the time of the solicitation, inform the person or member being solicited of the political purposes of such separate segregated fund of a corporation or membership organization.

3.3.6.c. Any person soliciting for a contribution to a separate segregated fund of a corporation or membership organization must at the time of the solicitation inform the person or member being solicited of the right to refuse to so contribute without any reprisal.

3.3.6.d. A guideline for contributions may be suggested, and not enforced by any direct or indirect means: Provided, that the person soliciting, or the solicitation, informs the person being solicited:

3.3.6.d.1. That the guidelines are merely suggestions; and

3.3.6.d.2. That a person is free to contribute more or less than the guidelines suggest and that the corporation or membership organization will not favor or disadvantage anyone by reason of the amount of their contribution or their decision not to contribute.

3.3.6.e. Any written solicitation for a contribution to a separate segregated fund of a corporation or membership organization must contain statements which comply with the requirements of paragraph (2) and (3) of this subdivision, and if a guideline is suggested, statements which comply with the requirements of paragraph (4) of this subdivision.

3.3.6.f. Subject to this rule, a corporation or membership organization may, in making solicitations aimed solely at its restricted group for contributions to its separate segregated fund of a corporation or membership organization, utilize a payroll deduction plan, checkoff system or other plan which deducts contributions from dividend or payroll checks of its restricted group.

3.3.6.g. Accidental or inadvertent solicitation by a corporation or membership organization, of persons beyond those whom it is permitted to solicit, will not be deemed a violation, provided that the corporation or membership organization has used its best efforts to comply with the limitations regarding the persons it may solicit and that the method of solicitation is corrected forthwith after the discovery of such erroneous solicitation.

W. Va. Code R. § 146-1-4 Exceptions

The provisions of Section 3 of this rule shall not be deemed to prohibit:

4.1. Expenditures made for public editorials or commentaries produced in the ordinary course of business by corporations whose primary purpose is journalism or public communications.

4.2. Direct communications by a corporation or membership organization to its restricted group on any subject by any means not intended to reach the general public. Such communications by a corporation or membership organization to its restricted group may be made by, but are not limited to, the following means:

4.2.1. The distribution of printed material by a corporation or membership organization to its restricted group: Provided, that:

4.2.1.a. The material is disseminated at the expense of the corporation or membership organization; and

4.2.1.b. The material clearly states that it constitutes a communication of the views of the corporation or membership organization.

4.2.2. The allowing of a candidate or party representative to address the restricted group of the corporation or membership organization at any meeting, convention or other regularly scheduled function of the corporation or membership organization which is primarily held for other purposes. The corporation or membership organization shall pay no compensation whatsoever to such candidates. The candidate or party representative may address members of the restricted group in their individual rather than corporate or membership organization capacities, and may at such time ask for individual contributions to his or her campaign or party, ask that such contributions to be sent to his or her campaign or party, or ask that contributions to a separate segregated fund of a corporation or membership organization be designation for his or her campaign or political party committee.

4.2.3. The establishment and operation of phone banks by a corporation or membership organization to communicate with its restricted group urging them to register and/or vote for a particular candidate or candidates.

4.2.4. The conducting of nonpartisan registration and get-out-the-vote drives, as by providing transportation to the polls, by a corporation or membership organization aimed at its restricted group. If a registration drive is undertaken, assistance in registering or voting may not be withheld or refused on a partisan basis, and if transportation or other services are offered in connection with a registration or get-out-the-vote drive, such transportation or services may not be withheld or refused on a partisan basis.

4.3. Establishment and administration of a separate segregated fund of a corporation or membership organization. A separate segregated fund of a corporation or membership organization or persons acting on its behalf may, subject to the authorization of such corporation or membership organization, use the real or personal property, facilities and equipment of any corporation that participated in the establishment or participates in the administration or solicits contributions on behalf of such separate segregated fund of a corporation or membership organization. The cost of such use of property, real or personal, facilities or equipment need not be reimbursed to the corporation so long as such costs are incurred in setting up and running the separate segregated fund of a corporation or membership organization. Such costs that need not be reimbursed include the costs of office space, phones, utilities and supplies.

4.4. Use of corporate facilities by other persons.

4.4.1. A corporation or membership organization may, at its discretion, allow use of its real or personal property, facilities or equipment beyond such uses as described in Section 4.3 of this Rule, in connection with any political activity by any person. However, the cost of any such use of corporate or membership organization property, real or personal, facilities or equipment under this rule must be reimbursed to the corporation or membership organization within a commercially reasonable time, at normal and usual commercial rental rates; except that:

4.4.2. Stockholders (as defined in Section 2 of this rule) of the corporation and any employees of the corporation or membership organization making use of corporate or membership organization real or personal property, facilities and equipment under this Section 4.3 of this Rule must reimburse all costs in excess of those that would arise from "Occasional, Isolated or Incidental" use. As to such occasional, isolated or incidental use, reimbursement will be required only to the extent that the overhead or operating costs of the corporation or membership organization are increased. As used here, "Occasional, Isolated or Incidental Use" generally means:

4.4.2.a. When use by corporate or membership organization employees during working hours, an amount of activity during any particular work period which does not prevent the employee from completing the normal amount of work which that employee usually carries out during such work period; or

4.4.2.b. When used by corporate stockholders other than employees during the working period, such use does not interfere with the corporation in carrying out its normal activities; and/or

4.4.2.c. Any such activity which does not exceed one (1) hour per week or four (4) hours per month, regardless of whether the activity is undertaken during or after normal working hours, shall be considered an occasional, isolated or incidental use.

W. Va. Code R. § 146-1-5 Powers And Duties of Corporate and Membership Organization Political Action Committees

5.1. All Corporate and membership organization Political Action Committees must file notice of their existence with the appropriate election officer, as required by W. Va. Code § 3-8-5b, prior to meeting the definition of a corporate or membership organization political action committee.

5.2. Solicitation and acceptance of contributions.

5.2.1. A Corporate or membership organization Political Action Committee may solicit contributions and volunteer personal services solely from the restricted group(s) of the corporation(s) or membership organization which established such Corporate or membership organization Political Action Committee.

5.2.2. All solicitations by Corporate or membership organization Political Action Committees shall conform in method and manner to the provisions of W. Va. Code § 3-8-8.

5.2.3. A Corporate or membership organization Political Action Committee is specifically prohibited from receiving any direct or indirect payment, distribution, discount, loan, advance, deposit, gift of money or any services or anything of value from any person other than the corporation(s) which established such Corporate or membership organization Political Action Committee or the restricted group(s) of such establishing corporation or membership organization.

5.2.4. No Corporate or membership organization Political Action Committee shall hold or sponsor any raffle, dance, banquet or similar fund-raising event directed to persons other than the restricted group(s).

5.3. Contributions and expenditures by Corporate or membership organization Political Action Committees.

5.3.1. No Corporate or membership organization Political Action Committee shall directly or indirectly make any contribution in excess of the limits set forth in 146 CSR 3. For purposes of applying contribution limitations, all Corporate or membership organization Political Action Committees established, maintained or controlled by the same corporation(s) or membership organization(s), including their respective parents, subsidiaries, branches, divisions, departments or local units, are aggregated into one (1) Political Action Committee. This contribution limitation applies separately to contributions made in connection with the primary election for nomination of a candidate, and contributions made in connection with the election which determines the officeholder.

W. Va. Code R. § 146-1-6 Miscellaneous Provisions

6.1. Notwithstanding any provision of these regulations to the contrary, a corporation or membership organization which customarily makes its meeting rooms available to clubs, civic or community organizations, or other groups may make such facilities available to a political committee, if the meeting rooms are made available on a nonpartisan basis and on the same terms given to other groups using the meeting rooms.

6.2. All persons are prohibited from knowingly accepting or receiving any contribution, payment, distribution, loan, advance, deposit, gift of money or services or anything of value prohibited by these regulations.

6.3. Nothing in these regulations limit in any manner the reporting obligations of corporations or membership organizations or Corporate or membership organization Political Action Committees or any other person under W. Va. Code §§ 3-8-5, 3-8-2 and 3-8-2b.

W. Va. Code R. § 146-1-7 Penalty Provision. 7.1 Any person violating this rule shall be guilty a misdemeanor, and, upon conviction thereof, shall be fined not more than ten thousand ($10,000) dollars pursuant to W. Va. Code § 3-8-8

Series 02 Fair Campaign Practices

W. Va. Code R. § 146-2-1 General

1.1. Scope. -- These rules establish the implementation of state law on the voluntary adherence to the "Fair Campaign Practices of 1995." See W. Va. Code '3-1B-1, et seq.

1.2. Authority. -- W. Va. Code ''3-1A-5, 6 and 3-1B-3

1.3. Filing Date. -- May 24, 1996.

1.4. Effective Date. -- June 7, 1996.

W. Va. Code R. § 146-2-2 Definitions

2.1. "Campaign advertising or communication" means:

2.1.1. a communication, whether written or oral, authorized by a candidate or a candidate's committee; and,

2.1.2. for the express purpose of publicly advocating the nomination, election or defeat of a candidate.

2.2. "Candidate for public office" means an individual:

2.2.1. who has filed a pre-candidacy statement, pursuant to W. Va. Code '3-8-5e; or

2.2.2. who has qualified to have his or her name listed on the ballot of any election; or

2.2.3. who has declared his or her intention to seek nomination or election for any state, regional, county, municipal or district office which is to be filled at an election through a petition or write-in procedure.

2.3. "Code" means the Code of Fair Campaign Practices, set forth in W. Va. Code '3-1B-5.

2.4. "Commission" means the state election commission created pursuant to the applicable provisions of W. Va. Code '3-1A-1 et seq.

2.5. "Political committee" means a committee organized by one or more individuals, corporations, associations, labor unions or organization, for the purpose of advocating or opposing the nomination or election of one or more candidates or the passage or defeat of one or more ballot issues.

2.6. "Advisory opinion" means a written opinion issued by the commission in response to a written request for such an opinion on the issue of whether or not an action, or proposed action, of a subscribing candidate violates the Code of Fair Campaign Practices;

2.7. "Subscribing candidate" means a candidate for public office who has voluntarily agreed to subscribe to, adhere to and endorse the Code of Fair Campaign Practices;

2.8. "Automatic release" means a release by operation of law, pursuant to the applicable provisions of W. Va. Code '3-1B-9, from the campaign spending limitations when a subscribing candidate's opponent exceeds such campaign spending limitations.

2.9. "Election officer" means the officer or official who receives the pre-candidacy filings made by individuals running for public office, and includes the Secretary of State, the Circuit Clerk, the County Clerk, and the Municipal Clerk or Recorder.

W. Va. Code R. § 146-2-3 Code of Fair Campaign Practices

3.1. Prescribed forms of code.

3.1.1. It is the duty of the secretary of state, in consultation with the commission, to prescribe the forms to be used and to furnish the prescribed forms to the appropriate election officers in sufficient time and quantities, as may be requested by the election officers;

3.1.2. The prescribed forms are required to contain the full and complete text that is statutorily mandated by W. Va. Code '3-1B-5, except that the commission may increase the spending limitations established in the text at its discretion by properly promulgated legislative rule(s).

3.2. Notice and an opportunity to subscribe to the Code is required when:

3.2.1. an individual files his or her pre-candidacy statement, certificate of announcement, nominating petition and other paper evidencing his or her intention to be a candidate for public office; or

3.2.2. an individual files the statement of organization of a political committee.

3.3. At the time an election officer receives a filing, as outlined in '146-2-3.2 above, the election officer is required

3.3.1. to furnish the individual with the prescribed form containing the text of the Code of Fair Campaign Practices;

3.3.2. to advise the candidate of his or her opportunity voluntarily to subscribe to, adhere to and endorse the code;

3.3.3. to inform the candidate whether or not his or her opponent(s) have voluntarily subscribed;

3.3.4. to advise the candidate of the voluntary nature of his or her subscription to, adherence to and endorsement of the code; and,

3.3.5. to inform the candidate that in no event will any person be required to so subscribe to, adhere to and endorse the code.

3.4. Forms of public information

3.4.1. The election officer receiving the filing is required to accept the candidate's completed forms at any and all times prior to the election;

3.4.2. Any election officer mistakenly receiving a completed form from a candidate (i.e. one which should have been filed with a different election officer) is required to forward the completed form immediately to the appropriate election officer, with a record of such kept until one hundred eighty (180) days after the election to which they pertain.

W. Va. Code R. § 146-2-4 Advisory Opinions

4.1. The commission may, at its discretion, issue advisory opinions in response to written requests for such on the issue of whether or not an action, or proposed action, of a subscribing candidate violates the code;

4.2. The opinion is required to be in writing, citing the particular part or portion of the code, or any other authority, being relied upon by the commission;

4.3. All advisory opinions issued are required to be published and indexed in the code of state rules by the secretary of state.

W. Va. Code R. § 146-2-5 Complaint and Hearing Procedures

The complaint will be in writing on the forms prescribed by the commission. The form will include, at least, the following sworn and notarized information:

5.1.1. The name, address and telephone number of the complainant; and

5.1.2. The name, address and telephone number of the subscribing candidate; and

5.1.3. A narrative section, which will include the complainant's allegations of violation(s) by the subscribing candidate, with as much particularly as possible requested on the face of the form; and,

5.1.4. The signature of the complainant, with a proper verification as is used in other civil cases, wherein the complainant affirms that he or she believes the allegations complained of are true and correct; and

5.1.5. Within five (5) days of receiving the written complaint, the commission will forward a copy of the complaint to the subscribing candidate, requesting a written answer to the alleged violations of the code; and,

5.1.6. Within ten (10) days of his or her receipt of the complaint, the subscribing candidate will file his or her answer; and

5.1.7. The answer of the subscribing candidate:

(a) will be made in writing, with the proper complaint number on the face of the answer; and (b) should address each allegation made by the complainant; and (c) will have the signature of the subscribing candidate, along with a statement swearing or affirming that the information contained in the answer is true and correct to the best of the candidate's knowledge.

5.1.8. Within ten (10) days of its receipt of the answer the commission will determine by a majority vote whether or not there is a reasonable likelihood that the candidate has violated the code.

5.1.9. If the subscribing candidate is determined not to have a reasonable likelihood of having violated the code, the candidate will be so advised in writing.

5.1.10. If the subscribing candidate is determined to have a reasonable likelihood of having violated the code, the candidate will be so informed in writing, together with a proper notice of his or her right to request a hearing before the commission within ten (10) days of the receipt of the determination and notice.

5.1.11. Should the subscribing candidate request a hearing before the commission, it will:

(a) be scheduled within ten (10) days after such request with written notice of such served upon both the complainant and the candidate; and (b) be continued only for good cause shown.

5.1.12. At and during the hearing on the merits of the complaint, the commission:

(a) will conduct a hearing in a fair and impartial manner to both the complainant, and his or her witnesses, and the subscribing candidate, and his or her witnesses; and, (b) need not strictly apply the Rules of Evidence, however, the evidence must be reasonably related to the issues in the complaint (c) will in it's discretion admit credible hearsay evidence; and (d) will make it's decision based on the greater weight of evidence presented at the hearing;

(e) will have a quorum present at the hearing and the decision must be agreed upon by a majority of those present.

5.1.13. Following the commission's review and deliberations over all of the evidence introduced and the entire record before it, the commission:

(a) may issue a public opinion stating that the subscribing candidate has committed a violation of the code, should the commission determine by majority vote that there was clear and convincing evidence supporting the alleged violation(s), or should the subscribing candidate decline to request such a hearing; or (b) will issue a public statement that the subscribing candidate has not violated the code, should the commission determine by a majority vote that there was not clear and convincing evidence supporting the alleged violation(s). This public statement will be issued on the same day on which the hearing takes place, as required by W. Va. Code '3-1B-4.

146CSR2

Series 03 Regulation of Campaign Finance

W. Va. Code R. § 146-3-1 General

1.1. Scope. -- This rule clarifies and provides for implementation of state law relating to the regulation of campaign finance, reporting requirements and prohibited activities set forth under W. Va. Code § 3-8-1 et seq.

1.2. Authority. -- W. Va. Code §§ 3-1A-5, 3-8-2, 3-8-7, and 3-8-8.

1.3. Filing Date. -- June 2, 2025.

1.4. Effective Date. -- June 2, 2025.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect on August 1, 2030.

W. Va. Code R. § 146-3-2 Definitions

2.1. "Ballot issue" means a constitutional amendment, special levy, bond issue, local option referendum, municipal charter adoption or revision, an increase or decrease of corporate limits, or any other question placed before the voters for a binding decision under the provisions of the West Virginia Code.

2.2. "Ballot issue committee" means a committee established solely for the purpose of advocating or opposing a ballot issue and which makes no expenditures to or on behalf of a political committee.

2.3. "Business affiliation" means the name of an individual's employer, or the name of the firm, business or organization, if any, with which a self-employed individual is primarily affiliated.

2.4. "Candidate" means an individual who:

2.4.1. Has filed a certificate of announcement under W. Va. Code § 3-5-7 or a municipal charter;

2.4.2. Has filed declaration of candidacy under W. Va. Code § 3-5-23;

2.4.3. Has been named to fill a vacancy on a ballot; or

2.4.4. Has declared a write-in candidacy or otherwise publicly declared his or her intention to seek nomination or election to a state, district, county or municipal office or party office to be filled at any primary, general or special election.

2.5. "Candidate's committee" means a political committee established with the approval of or in cooperation with a candidate or a prospective candidate to explore the possibilities of seeking a particular office or to support or aid his or her nomination or election to an office in an election cycle. If a candidate directs or influences the activities of more than one active committee in a current campaign, those committees shall be considered one committee for the purpose of contribution limits.

2.6. “Caucus campaign committee” means a West Virginia House of Delegates or Senate political party caucus campaign committee that receives contributions and makes lawful expenditures in accordance with subsection 6 of this Rule, which include to support or oppose one or more specific candidates or slates of candidates for nomination, election, or committee membership. A political committee is determined to be a caucus campaign committee when meeting the following criteria: 2.6.1 The committee is established by a quorum of the members a political party caucus of either the House of Delegates or State Senate;

2.6.2. A Statement of Organization for the political committee has been submitted to the Secretary of State, either prior to or at the same time as designating the political committee as a caucus campaign committee;

2.6.3. The political party caucus has designated a chairperson and treasurer responsible for the caucus campaign committee; and

2.6.4. The designated caucus chairperson has notified the Secretary of State of satisfying the criteria in 146 CSR 3-2.6.1. through 3-2.6.3. in writing. Any changes to the status of the designation of chairperson shall be submitted to the Secretary of State.

2.7. “Clearly identified” means that the nickname, photograph, drawing, or other depiction of the candidate appears or the identity of the candidate is otherwise apparent through an unambiguous reference, or through a reference to his or her status as candidate.

2.8. “Contribution” means a gift, subscription, loan, assessment, payment for services, dues, advance, donation, pledge, contract, agreement, forbearance, or promise of money, or other tangible thing of value, whether conditional or legally enforceable, or a transfer of money or other tangible thing of value to a person, made for the purpose of influencing the nomination, election, or defeat of a candidate.

2.8.1. A coordinated expenditure as described in Section 14 of this Rule shall be considered a contribution.

2.8.2. An offer or tender of a contribution is not a contribution if expressly and unconditionally rejected or returned.

2.8.3. A contribution does not include volunteer personal services provided without compensation.

2.9. "Coordinated expenditure" is defined as provided in Section 14 of this Rule.

2.10. “Corporation” means any separately incorporated entity, whether under the laws of West Virginia or any other state or any foreign country. The term corporation covers both for-profit and nonprofit corporations and includes nonstock corporations, incorporated membership organizations, incorporated cooperatives, incorporated trade associations, professional corporations and, under certain circumstances, limited liability companies.

A political committee may incorporate and not be subject to the definition of a corporation within this rule if the political committee incorporates for liability purposes only, and if the organization is properly registered as political committee with the appropriate filing officer. Notwithstanding the corporate status of the political committee, the treasurer of an incorporated political committee remains personally responsible for carrying out their respective duties under this rule.

2.11. "Election" means any primary, general or special election conducted under the provisions of this code or under the charter of any municipality.

2.12. “Electioneering communications” means any paid communication made by broadcast, cable or satellite signal, mass mailing, telephone bank, billboard advertisement, or publication in any newspaper magazine, or other periodical that meets the definition under W. Va. Code § 3-8-1a(14) et seq.

2.13. “Expressly advocating” means any communication that:

2.13.1. Uses phrases such as “vote for the Governor,” “re-elect your Senator,” “support the incumbent nominee for Supreme Court,” “cast your ballot for the Republican challenger for House of Delegates,” “Smith for House,” “Bob Smith in ‘04,” “vote Pro-Life,” or “vote Pro-Choice,” accompanied by a listing of clearly identified candidates described as Pro-Life or Pro-Choice, “vote against Old Hickory,” “defeat” accompanied by a picture of one or more candidates, “reject the incumbent;”

2.13.2. Communicates campaign slogans or individual words that can have no other reasonable meaning than to urge the election or defeat of one or more clearly identified candidate or candidates, such as posters, bumper stickers, advertisements, etc., which say “Smith’s the One,” “Jones ‘06,” “Baker,” etc.; or

2.13.3. Is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate or candidates.

2.14. “Financial transactions” means all contributions or loans received and all repayments of loans or expenditures made to promote the candidacy of any person by any candidate or any organization advocating or opposing the nomination, election, or defeat of any candidate to be voted on.

2.15. "Firewall” means a written policy designed and implemented to prohibit the flow of information between employees or consultants providing services for the person paying for a communication and those employees or consultants currently or previously providing services to a candidate, or to a committee supporting or opposing a candidate, clearly identified in the communication.

2.16. "Foreign national” means the following:

2.16.1. A foreign principal, as such term is defined in 22 U.S.C. § 611(b), which includes:

2.16.1.a. A government of a foreign country;

2.16.1.b. A foreign political party;

2.16.1.c. A person outside of the United States, unless it is established that such person:

2.16.1.c.1. Is an individual and a citizen of the United States; or

2.16.1.c.2. That such person is not an individual and is organized under or created by the laws of the United States or of any state or other place subject to the jurisdiction of the United States and has its principal place of business within the United States; and

2.16.1.d. A partnership, association, corporation, organization, or other combination of persons organized under the laws of, or having its principal place of business in, a foreign country.

2.16.2. An individual who is not a citizen of the United States or a national of the United States, as defined in 8 U.S.C. § 1101(a)(22), and who is not lawfully admitted for permanent residence, as defined by 8 U.S.C. § 1101(a)(20).

2.17. "Grossly incomplete or grossly inaccurate" means that a financial statement as defined under W. Va. Code § 3-8-5 is missing information required by W. Va. Code § 3-8-2 et seq. and State Election Commission, Regulation of Campaign Finance, 146 CSR 3.

2.18. “Independent expenditure” means an expenditure by a person:

2.18.1. Expressly advocating the election or defeat of a clearly identified candidate, including supporting or opposing the candidates of a political party, and

2.18.2. That is not a coordinated expenditure with the candidate, his or her agents, the candidate’s authorized political committee, a political party committee or its agents.

2.18.3. An expenditure which does not meet the criteria for an independent expenditure is considered a contribution. Provided, that coordinated expenditures in connection with a general election under W. Va. Code § 3-8-9b in any amount by political party committees and political party caucuses in connection with certain statewide candidates shall not be considered a contribution.

2.18.4. The phrase “makes or contracts to make independent expenditures” as provided in W. Va. Code § 3-8-2 means the time an independent expenditure is made, or a contract is made, whichever occurs sooner.

2.18.4.a. For purposes of this Rule, a contract is made when a written or oral agreement is executed or reached, or in the absence thereof when one party takes an action in the furtherance of performance of the agreement for goods or services to be provided at the time of the agreement or in the future.

2.19. “Independent expenditure-only political committee” means a committee registered with the Secretary of State, or equivalent local election official, which makes independent expenditures and makes no political contributions to any candidate for any elected office in this state or any of its subdivisions, makes no coordinated expenditures with a candidate or candidate’s committee, and does not participate in joint fundraising agreements with a candidate or a candidate’s committees.

2.20. “Local” refers to the election of candidates to a city, county, or municipal office and any issue to be voted on by only the residents of a particular political subdivision.

2.21. “Member” means any person who currently satisfies the membership requirements in a membership organization, affirmatively accepts the membership organization’s invitation to become a member, and either:

2.21.1. Pays membership dues at least annually, of a specific amount predetermined by the organization; or

2.21.2. Has a significant organizational attachment to the membership organization which includes: affirmation of membership on at least an annual basis and direct participatory rights in the governance of the organization. For example, such rights could include the right to vote directly or indirectly for at least one individual on the membership organization’s highest governing board; the right to vote directly for organization officers; the right to vote on policy questions where the highest governing body of the membership organization is obligated to abide by the results; the right to approve the organization’s annual budget; or the right to participate directly in similar aspects of the organization’s governance.

2.22. “Membership Organization” means an organization that:

2.22.1. Is composed of members, some or all of whom are vested with the power and authority to operate or administer the organization, pursuant to the organization’s articles, bylaws, constitution or other formal organizational documents;

2.22.2. Expressly states the qualifications and requirements for membership in its articles, bylaws, constitution or other formal organizational documents;

2.22.3. Makes its articles, bylaws, constitution, or other formal organizational documents available to its members upon request;

2.22.4. Expressly solicits persons to become members;

2.22.5. Expressly acknowledges the acceptance of membership, such as by sending a membership card or including the members’ name on a membership newsletter list; and

2.22.6. Is not organized primarily for the purpose of influencing the nomination for election, or election, of any individual to political office.

2.23. "Necessary traveling and hotel expenses" includes mileage at a rate not to exceed the current state-mandated reimbursement rate per mile or direct charges for transportation and itemized food and lodging costs incurred specifically for the purpose of campaigning or conducting the organizational, political or financial business of a political committee. The term does not include the purchase cost of any vehicle, or expenditures for traveling and hotel expenses incurred for activities which result primarily in personal benefit and are not directly and specifically undertaken for political purposes: Provided, that nothing in this section prohibits the purchase or lease of a vehicle used primarily for political purposes. In cases of mixed-use assets advisory opinions of the Federal Election Commission shall be consulted and followed in so far as consistent with West Virginia law.

2.24. "Nominal noncash expressions of appreciation" means a token of appreciation, having a cash value of $10.00 or less, given to volunteer or paid campaign workers following the close of the polls or within 30 days thereafter.

2.25. “Nonpolitical committee” means a committee established with the primary purpose other than to support or oppose the nomination or election of one or more candidates and which does not meet the definition of a political party committee per Subsection 2.30 of this Rule.

2.26. "Occupation" means the principal work activity which is described by a general term such as teacher, miner, business executive, homemaker or doctor.

2.27. “Person” means an individual, corporation, partnership, committee, association and any other organization or group of individuals.

2.28. “Political Action Committee” means a committee organized by one or more persons or any other organization or entity, whose primary purpose is to support or oppose the nomination or election of one or more candidates.

2.28.1. In determining a committee’s primary purpose, the factors that will be considered include, but are not limited to:

2.28.1.a. Whether the combination of one or more persons receives and manages money or any other thing of value in a common account for the specific purpose of supporting or opposing any candidate, political party or political committee;

2.28.1.b. Whether the combination of one or more persons makes, anticipates or should have anticipated engaging in a continuing pattern of expenditures from a common account to support or oppose any candidate, political party or political committee; or

2.28.1.c. Whether the combination of one or more persons constitutes a committee that was not in existence for any other primary purpose prior to supporting or opposing any candidate, political party or political committee.

2.28.2. The following are types of political action committees:

2.28.2.a. A corporate political action committee;

2.28.2.b. A separate segregated fund established by a membership organization, as defined in this Section;

2.28.2.c. An unaffiliated political action committee; or

2.28.2.d. Any political committee may also identify as an independent expenditure-only political committee when meeting the definition in this Section.

2.28.3. A committee established as a joint fundraising committee under 146 CSR 3-13 does not meet the definition of a political action committee when acting solely as a financial agent to raise contributions for committees and distribute contributions to committees. However, this provision does not in any manner modify the reporting requirements of W. Va. Code § 3-8-5, 146 CSR 3-8 and 146 CSR 3-13.

2.29. "Political committee" means any candidate committee, political action committee or political party committee.

2.29.1. This definition includes but is not limited to:

2.29.1.a. Political party executive committees and political party caucus campaign committees;

2.29.1.b. Other committees operating in conjunction with a political party or using a political party name; or

2.29.1.c. Political action committees.

2.29.2. This definition shall not include family members or members of a partnership acting together to make joint or individual contributions to a candidate or political committee.

2.29.3. Any committee that does not meet the definition of political committee shall be defined as a nonpolitical committee.

2.30. "Political party committee" means a committee established by a political party or political party caucus for the purposes of engaging in the influencing of the election, nomination or defeat of a candidate in any election.

2.31. “Political party caucus campaign committee” means the group of members of the House of Delegates or State Senate that belong to the same political party and who may organize as a caucus campaign committee.

2.32. "Political purposes" means any of the following:

2.32.1. Expressly advocating or opposing the nomination, election or defeat of one or more candidates or the passage or defeat of a ballot issue;

2.32.2. Supporting the administration or activities of an established political party, political party caucus or an organization which has declared itself a political party or political party caucus;

2.32.3. Supporting the administration or activities of a political committee determining the advisability of becoming a candidate under the pre-candidacy financing provisions; or

2.32.4. Supporting the retirement of the debt of a candidate or political committee incurred for any of the purposes set forth in this Section.

2.32.5. Making allowable contributions to political committees in accordance with the applicable limits of the law and this Rule.

2.33. "Pre-candidate" means, for the purpose of this rule, an individual who has filed a pre-candidacy statement under the provisions of W. Va. Code § 3-8-5e but has not yet filed a certificate of announcement or declaration of candidacy. This definition does not exclude a pre-candidate from the requirements and prohibitions relating to candidates in the West Virginia Code.

2.34. “Restricted Group” means stockholders and their families, executive and administrative personnel of any subsidiaries, branches, divisions, and departments and their families, of a corporation or membership organization, or when applicable, the members of an incorporated association or organization or group of persons, stockholders and their families, and executive and administrative personnel and their families, of such members.

2.35. "Solicit" or "solicitation" means the act of asking, suggesting, requiring or inviting, either orally or in writing, a person or persons, organization of any kind, political committee or other entity to give a contribution or other thing of value for political purposes, as defined in Section 2.32 of this Rule.

2.36. "Treasurer" means an individual designated to act on behalf of a political committee to conduct the financial transactions of the committee. For the purposes of this rule, the term "treasurer" shall be used in place of "financial agent" as defined in W. Va. Code § 3-8-1a when the individual acts on behalf of more than one candidate or person.

W. Va. Code R. § 146-3-3 Contributions for Primary and General Elections

Candidate Committee Contributions:

3.1. A contribution to a pre-candidate or pre-candidate's committee is a contribution in connection with a primary election when a candidate seeks to be nominated to a general election ballot by the voters on a primary election ballot as prescribed by law. Contributions to a pre-candidate or pre-candidate’s committee that does not seek a party nomination are attributed as contributions to a general election.

3.2. A contribution to a candidate's committee is a contribution attributed to the primary election in the following circumstances:

3.2.1. For a candidate for nomination or election in the primary, all contributions received on or before the primary election day that are not expressly indicated for use as a general election contribution;

3.2.2. For a candidate nominated in the primary election, a contribution received after the primary which is designated in writing on the financial report, with the consent of the contributor, as a contribution for the primary election, providing the aggregate of all these designated contributions do not exceed the total of unpaid bills, loans or other financial obligations incurred for the primary election;

3.2.3. For a candidate defeated for nomination in the primary election, all contributions received after the primary, not to exceed the total of unpaid primary election expenses; and

3.2.4. For a candidate for nomination in a party convention, all contributions received on or before the day of that convention.

3.3. A contribution received by a candidate's committee is attributed to the general or special election in the following circumstances:

3.3.1. Contributions received by a candidate after nomination in a primary election or party convention; Provided, contributions received after nomination in a primary election or party convention that are designated to offset debts incurred in a primary election described within Subsection 3.2.2 of this Rule are contributions attributed to the primary election.

3.3.2. Contributions received by a candidate that has been appointed to fill a vacancy on the general or special election ballot by a party executive committee,

3.3.3. Contributions received by a candidate that has been nominated by certificates of nomination, as provided for in W. Va. Code § 3-5-23, and

3.3.4. Contributions received by a write-in candidate;

3.3.5. Contributions received prior to the primary election or nominating convention if expressly indicated by the contributor that the contribution be attributed to a general or special election, if applicable; however, these funds cannot be expended until after the subsequent candidacy in the general election has been declared by:

3.3.5.a. The board of canvassers if the election is within a single county or municipality; or

3.3.5.b. The Secretary of State if the political subdivision includes more than one county.

3.3.6. If the candidate does not receive the nomination to be placed on the General Election ballot, contributions received prior to the primary or nominating convention expressly indicated for use in the general election shall be returned to the contributor at the full amount of the contribution by September 1 of the election year.

Political Action Committee Contributions:

3.4. A contribution to a political action committee is a contribution:

3.4.1. In connection with a primary election, if the contribution is received after the General Election and on or before the date of the statewide primary election in the following calendar year (for example, from November 4, 2014, to May 12, 2016); and

3.4.2. In connection with a general election, if the contribution is received after the date of a statewide primary election and not later than the day of the General Election (for example, from May 13, 2016 to November 8, 2016).

W. Va. Code R. § 146-3-4 Contributions for Inaugural Events

4.1. An inaugural committee established for the purpose of soliciting or receiving contributions for the funding of all or any part of an inaugural event for any person elected to any state public office shall file a verified financial statement with the Secretary of State's Office relating to any contributions from one person in excess of $250.

4.2. An inaugural committee shall file and retain detailed records of any contribution from one person in excess of $250.

4.3. For purposes of this Section, "detailed records" shall contain the following information:

4.3.1. The full name of each person, firm, association or committee;

4.3.2. The residence and mailing address of the contributor and may include a business telephone number, if available;

4.3.3. In the case of an individual, his or her major business affiliation and occupation; and

4.3.4. The amount of the contribution.

4.4. The inaugural committee, financial agent or any person or officer acting on behalf of the committee shall file a sworn financial statement, containing the information required by Section 4.3 of this Rule for each person making a contribution in excess of $250, within ninety (90) days following the inaugural event.

4.5. The sworn financial statement shall be on a form prescribed by the State Election Commission.

4.6. Aggregate contributions of any person to any inaugural committee shall not exceed $5,000.

4.7. Excess campaign assets, as defined in Section 7 of this Rule, may not be transferred to an inaugural committee.

W. Va. Code R. § 146-3-5 Contribution Limitations, Sources and Restrictions

Contribution Limits:

5.1. Aggregated contributions limits that can be accepted by political committees are as follows:

5.1.1. Contributions from a person to a candidate or pre-candidate committee in which the candidate is seeking the nomination of a political party may not exceed $2,800. Provided, the candidate may contribute to their own campaign committee without limitation.

5.1.2. Contributions received by a candidate’s committee prior to a primary election or nominating event that are expressly attributed by the contributor for the subsequent general election, as referenced in 146 CSR 3-3, are considered against the aggregate limitation to the general election.

5.1.3. Contributions from a person to a candidate or pre-candidate committee seeking election in a general or special election may not exceed $2,800. Provided, the candidate may contribute to their own campaign without limitation.

5.1.4. Contributions from a person to a political action committee after the state’s scheduled general election and prior to the state’s scheduled primary election may not exceed $5,000. Provided, an independent expenditure only political action committee does not have a limitation on aggregate contribution amounts.

5.1.5. Contributions from a person to a political action committee after the state’s scheduled primary and prior to the state’s scheduled general or special election may not exceed $5,000. Provided, an independent expenditure only political action committee does not have a limitation on aggregate contribution amounts.

5.1.6. Contributions from a person to a political party committee, including a political party caucus campaign committee, may not exceed $10,000 in any calendar year.

5.1.7. Limitations on contributions to candidates for federal elective office (including President, Vice President, U.S. Senate and U.S. House of Representatives) are established in Chapter 14, Title 2 of the United States Code and the Code of Federal Regulations and are not subject to West Virginia laws and regulations.

5.1.8. For all nonpartisan offices, which races typically appear on a Primary Election ballot, with the exception of a special election to fill a vacancy in a nonpartisan office at a special election or on a General Election ballot, the contribution limits shall be limited to those permissible during one (1) election period.

5.2. Contribution Sources:

5.2.1. A contribution made by a business licensed as a sole proprietorship is a contribution made by the owner of that sole proprietorship and reported as received from the owner. The aggregate contribution limits apply to all contributions to a candidate or political committee made by that owner, whether from personal or business funds.

5.2.2. A contribution made by a business licensed as a partnership or limited liability company that is not owned, controlled, or managed by a corporation is a contribution which shall be apportioned to the ownership interest(s) and reported as received from the partners or owners in their personal capacity(ies). The aggregate contribution limits apply to contributions to a candidate or political committee made by each partner or owner whether from personal funds or from the contributor's share of partnership or company funds.

5.2.3. A husband and wife may each contribute within the contribution limits of this Rule to the same candidate or political committee in connection with the same election, regardless of the source of family income.

5.2.4. A contribution made by check drawn on a joint personal account shall be attributed to the person who signed the check, or equally to the persons signing the check, unless otherwise specified in writing by the contributor.

5.2.5. Minor children (children under 18 years of age) may contribute within the contribution limits of this Rule to a candidate or political committee if:

5.2.5.a. The decision to contribute is made knowingly and voluntarily by the minor child;

5.2.5.b. The funds, goods or services contributed are owned and controlled by the minor child, such as income earned by the child, the proceeds of a trust for which the child is the beneficiary, or a savings account opened and maintained in the child's name; and

5.2.5.c. The contribution is not made from the proceeds of a gift, the purpose of which was to provide funds to be contributed or is not in any other way controlled by another individual.

5.2.6. When a contributor designates all or part of a contribution to a political committee for the benefit of a particular candidate and makes that contribution to a political committee acting with the approval or control of that candidate, the contribution shall be considered to be an indirect contribution to the designated candidate and is subject to the aggregate contribution limits for that candidate.

5.2.7. A candidate or candidate's committee established for one primary and general election may transfer excess campaign assets to the same candidate's campaign or committee for a subsequent election year, and the transfer is not limited by aggregate contribution limits.

5.2.8. Transfers of contributions by a political committee established as a federal committee under the regulation of the Federal Election Commission (FEC) from the committee's federal account to a state account shall not be made for the purpose of allowing any contributor to exceed the maximum contribution per election to the state account.

5.2.9. If a candidate or candidate's committee has excess campaign funds at the time of the close of the General Election polls, close of the Primary Election polls if unsuccessful in the nomination in the Primary Election or withdrawal of candidacy or pre-candidacy, no further contributions may be accepted until the candidate files a pre-candidacy statement or becomes a candidate for a subsequent election.

5.2.10. If a candidate or candidate's committee has debts, outstanding loans or unpaid bills at the time of the close of the General Election polls, close of the Primary Election polls if unsuccessful in the nomination in the Primary Election or withdrawal of candidacy or pre-candidacy, further contributions may be accepted only until an amount sufficient to repay the debts and outstanding loans has been received.

5.2.11. A non-monetary contribution is to be considered at fair market value for reporting requirements and contribution limitations. 5..2.11.a. “Fair market value” is defined as:

5.2.11.a.1. The usual and normal charge for the goods in the market from which they ordinarily would have been purchased at the time of the contribution; or

5.2.11.a.2. The usual and normal charge for any services, other than those provided by an unpaid volunteer, at the hourly or piecework charge for the services at a commercially reasonable rate prevailing at the time the services were rendered.

5.3. Contribution Restrictions:

5.3.1. Corporate and Membership Organization Contribution Restrictions:

5.3.1.a. Corporations and membership organizations are restricted from accepting or soliciting contributions from outside of their restricted group to a separate segregated fund of the corporation or membership organization in which its primary purpose is to influence the election or defeat of a candidate in an election prior to notifying the Secretary of State of the organization’s existence.

5.3.1.b. Separate segregated funds of corporations and membership organizations are restricted from accepting contributions totaling more than $5,000 from any one person prior to the primary and preceding the general election.

5.3.1.c. For the purpose of this Subsection, “restricted group” is defined by Section 2.34 of this Rule.

5.3.1.d. Corporations and membership organizations are prohibited from facilitating the making of contributions to candidates or political committees other than to the separate segregated funds of the corporation, as expressed in 146 CSR 1.

5.3.2. A foreign national shall not, directly or indirectly, make:

5.3.2.a. A contribution or donation, or express/implied promise to make a contribution or donation to a candidate’s committee, a political committee, or a political party, or in connection with any Federal, State, or local election held in West Virginia; or

5.3.2.b. An independent expenditure or any disbursement for an electioneering communication related to a federal, state or local election held in West Virginia.

5.3.2.c. Any person is prohibited from accepting, soliciting, or receiving funds from a foreign national as defined in Section 2.16 of this Rule.

5.3.3. Exemption to restrictions:

5.3.3.a. Independent Expenditure Only PACs are prohibited from making expenditures made in concert or cooperation or at the request or suggestion of a candidate, his/her agencies, the candidate’s committee, or a political party committee.

5.3.3.b. The aggregate contribution by a person to a ballot issue committee is not limited; and corporate contributions to a ballot issue committee are not prohibited.

5.3.3.c. The aggregate contribution by a person to an independent expenditure-only political action committee is not limited; and corporate contributions to an independent expenditure-only political action committee are not prohibited.

W. Va. Code R. § 146-3-6 Lawful Expenditures

6.1. Funds belonging to or received by a candidate or political committee may be used to employ persons to perform those functions enumerated in W. Va. Code § 3-8-9, either on a full-time, part-time or temporary basis, and in compliance with the provisions of this rule.

6.2. Funds belonging to or received by a political committee may be used for reasonable office expenses enumerated in W. Va. Code § 3-8-9.

6.3. No money or thing of value derived from contributions received by a political committee may be paid to or given to any person, except:

6.3.1. As lawful payment for goods provided, services rendered or reimbursement of expenses incurred for political purposes as defined in Section 2.32 of this Rule;

6.3.2. As food and drink, entertainment or costs incidental to a fund-raising event, or public meeting, for political purposes;

6.3.3. As printed campaign promotional items of nominal value which clearly identify the candidate, or party;

6.3.4. As a nominal noncash expression of appreciation to campaign workers as defined in Section 2.24 of this Rule, following the close of the polls or within 30 days thereafter;

6.3.5. As payment for services provided, bonds, and other expenses related to the costs of recounts and contesting elections;

6.3.6. As payment for necessary traveling and hotel expenses; or

6.3.7. As lawful payment for legal and accounting services rendered to a candidate or candidate committee if the services are solely related to the candidacy campaign;

6.4. A candidate or persons acting on behalf of a political committee may be reimbursed for contributions received for lawful election expenses paid from the personal funds of the candidate, providing receipts are retained and those itemized expenditures are reported in a timely manner as required by law.

6.5. No candidate may receive any payment of money or other thing of value for personal use from funds solicited or received for political purposes on the candidate’s behalf, except as reimbursement as provided in Section 6.4 of this Rule.

6.5.1. “Personal use” means any use of funds in a political committee account of a present or former candidate or political action committee to fulfill a commitment, obligation or expense of any person that would exist irrespective of a candidate's campaign or duties as an officeholder.

6.5.2. Personal use includes but is not limited to the use of funds in a campaign account for any of the following items:

6.5.2.a. Household food items or supplies;

6.5.2.b. Funeral, cremation or burial expenses except those incurred for a candidate or an employee or volunteer of an authorized committee whose death arises out of, or in the course of, campaign activity;

6.5.2.c. Clothing, other than items of de minimis value that are used in the campaign, such as campaign “T-shirts” or caps with campaign slogans;

6.5.2.d. Tuition payments, other than those associated with training campaign staff;

6.5.2.e. Mortgage, rent or utility payments for:

6.5.2.e.1. Any part of any personal residence of the candidate or a member of the candidate's family; or

6.5.2.e.2. For real or personal property that is owned by the candidate or a member of the candidate's family and used for campaign purposes, to the extent the payments exceed the fair market value of the property usage;

6.5.2.f. Admission to a sporting event, concert, theater or other form of entertainment, unless part of a specific campaign or officeholder activity;

6.5.2.g. Dues, fees or gratuities at a country club, health club, recreational facility or other nonpolitical organization, unless they are part of the costs of a specific fundraising event that takes place on the organization's premises;

6.5.2.h. Salary payments to a member of the candidate's family, unless the family member is providing bona fide services to the campaign. If a family member provides bona fide services to the campaign, any salary payment in excess of the fair market value of the services provided is personal use; and

6.5.2.i. A vacation.

6.6. No candidate may utilize campaign funds to pay civil or criminal penalties or fines.

6.7. No person may utilize campaign funds to seek a court order to prohibit another person from being placed on a ballot.

6.8. No person may utilize campaign funds for any expense related to defending legal actions seeking to remove the person from office by impeachment or pursuant to any provision of the West Virginia Code.

6.9. No payment of fines imposed by the Secretary of State may be expended from contributions received by a political committee. The responsible party of the fines imposed are the candidate of a candidate’s committee or the treasurer of a political committee that is not a candidate committee. Any nonpolitical committee that is responsible for any fine imposed by the Secretary of State will be paid from general treasury funds of the nonpolitical committee.

W. Va. Code R. § 146-3-7 Disposing of Excess Campaign Assets, Terminating a Political Committee

7.1. Excess campaign assets are those monies, materials, equipment or other things of value derived from contributions which:

7.1.1. Remain in the possession of the pre-candidate or pre-candidate's committee at the conclusion of pre-candidacy when the pre-candidate decides not to become a candidate;

7.1.2. Remain in the possession of the candidate or candidate's committee after the candidate loses in the primary election or after the candidate’s general election and after debts, loans and other liabilities are repaid; or

7.1.3. Belong to a political committee which wishes to discontinue activity and dissolve.

7.2. Excess campaign assets may be lawfully:

7.2.1. Transferred without limitation from a candidate's committee organized for one election year to the same candidate's committee for a subsequent election year, providing that candidate has filed a pre-candidacy statement or a statement of organization of the new committee before the transfer is made;

7.2.2. Contributed by a candidate’s committee, in accordance with the existing limitations on contributions, to;

7.2.2.a. A county or political subdivision executive committee of a political party, or

7.2.2.b. Any other candidate committee;

7.2.3. Returned on a pro-rata basis to each contributor;

7.2.4. Subject to Internal Revenue Service regulations relating to personal income, used by the candidate to defray any usual and customary expenses incurred in connection with his or her duties as a holder of public office;

7.2.5. Contributed to any charitable organization without limitation;

7.2.6. Transferred to any state party executive committee or political party caucus campaign committee, in an amount not to exceed $15,000 dollars in a calendar year; or

7.2.7. Contributed to any national, state, or local political party committee when that committee is acting in the role of a vendor, and, so long as no such transfer may involve any coordination between the candidate and the political party committee without being considered as a contribution.

7.2.8. Candidates that possess funds received for the general election prior to nomination and fail to receive the nomination for the General Election ballot from that party shall unconditionally return all the contributions attributed to the General Election to the contributors at the amounts equal to the contribution received.

7.3. No person may receive or utilize excess campaign assets for personal economic benefit or use.

7.3.1. Subject to Subsection 7.2.4. of this Rule, supplies or equipment purchased by an office holder and used to defray any usual and customary expenses incurred in connection with his or her duties as a holder of public office becomes the property of the state, or the district, county, or municipality in which the office is held.

7.4. No candidate, financial agent or treasurer may distribute excess campaign assets through personal gifts, promotional items or other expenditures not authorized by W. Va. Code §§ 3-8-10 or 3-8-9(a)(13).

7.5. A political committee which is solvent and has no outstanding debts or obligations may terminate its existence by:

7.5.1. Filing a statement of dissolution with the Secretary of State, if the political committee was formed in support of a candidate for nomination or election to any office to be filled by voters of the entire state, or a candidate for nomination or election for any office encompassing an election district larger than a county, and filing a final report of financial information required in W. Va. Code § 3-8-5.

7.5.2. Filing a statement of dissolution with the county clerk or municipal clerk or recorder, or other such election officer as defined in State Election Commission, Regulation of Campaign Finance, 146 CSR 3, as may be determined proper by the Secretary of State, if the political committee was formed in support of a candidate for nomination or election to any office to be filled by voters of a county or district therein, encompassing the electorate of a county or district therein; and,

7.5.3. Stating within the written request that the political committee will no longer receive any contributions or make any disbursements; and,

7.5.4. Stating within the written request that the political committee has no outstanding debts or obligations; and,

7.5.5. Stating within the written request that any excess funds of the political committee will be transferred to a political committee established by the same candidate, or will be otherwise disbursed pursuant to Section 7.2 of this Rule.

7.6. The Secretary of State's Office may, upon the request of the committee, make determinations as to the solvency or insolvency of a political committee, including:

7.6.1. The orderly liquidation of an insolvent political committee;

7.6.2. The orderly application of the assets of an insolvent political committee toward reduction of its outstanding debts;

7.6.3. The assessment of any forgiven debts as being political contributions; and,

7.6.4. The termination of an insolvent political committee after the liquidation and application of assets.

W. Va. Code R. § 146-3-8 Receiving, Distributing and Reporting Contributions and Expenditures

8.1. The treasurer of a political committee receives all contributions and disburses all funds, and it is unlawful for a person or persons other than the treasurer to receive and disburse funds without the treasurer's knowledge and participation.

8.2. A candidate who does not appoint another person as financial agent or organize a candidate's committee and appoint a treasurer shall be considered to be the financial agent for his or her own campaign.

8.3. Every candidate, treasurer, person, association of persons, organization, or corporation supporting a political committee permitted to engage in and required to report activities under W. Va. Code §§ 3-8-5a and 3-8-5b shall keep detailed accounts of every sum of money or other thing of value received by him or her, including all loans of money or things of value and of all expenditures and disbursements made, liabilities incurred, by the candidate financial agent, person, organization or the committee for political purposes.

8.4. A financial report shall include all financial transactions occurring during the accounting period just completed, and any other financial transactions which have not been reported previously. Financial reports shall be in the form prescribed by the State Election Commission and meet the requirements under W. Va. Code § 3-8-5.

8.5. Any person or political committee who is required to file a statement to the Secretary of State under this Section shall file the statement electronically in a Campaign Finance Reporting System that is offered by the Secretary of State.

8.6. Every person required to keep detailed accounts under Section 8.3 of this Rule shall file a detailed, itemized, sworn statement, as prescribed in W. Va. Code §§ 3-5-8(a), 3-8-5(b) and 3-8-5e(c).

8.6.1. On April 1 of each year, financial transactions dating from January 1 to March 31 of the same year shall be filed within six (6) days thereafter.

8.6.2. On July 1 of each year, financial transactions dating from April 1 to June 30 of the same year shall be filed within six (6) days thereafter.

8.6.3. On October 1 of each year, financial transactions dating from July 1 to September 30 of the same year shall be filed within six (6) days thereafter.

8.6.4. On January 1 of each year, financial transactions dating from October 1 to December 31 of the previous year shall be filed within six (6) days thereafter.

8.6.5. Provided, the campaign finance statement that is required by 146 CSR 3-8.6.2. for the year 2019 will include financial transactions dating from March 30, 2019 to June 30, 2019 and shall be filed within six (6) days thereafter.

8.7. Except for candidates for party committees and federal offices, including delegates to national convention for presidential nomination, all candidates for nomination or election to state or local offices and all persons supporting, aiding, or opposing the nomination, election, or defeat of any such candidate shall keep, for a period of two (2) years, records of receipts and expenditures which are made for political purposes.

8.7.1. Records of receipts and expenditures shall mean any documents in any medium including but not limited to bills, invoices, receipts, payments, accounts, communications constituting final terms of a contract, communications relating to the acceptance or modification of a contract, and quotes, estimates, and any communications including the same.

8.8. Financial reports may be filed, pursuant to W. Va. Code § 3-8-5b,

8.8.1. Electronically via the online Campaign Finance Reporting System established by the Secretary of State, if applicable;

8.8.2. By facsimile or other electronic means of transmission to be established by the Secretary of State, if applicable;

8.8.3. By mail, if applicable; or

8.8.4. In person, if applicable.

8.9. Filing dates for each method of delivery shall be determined as follows:

8.9.1. For mailings, the filing date is the date of the postmark of the United States Postal Service;

8.9.2. For hand delivery, the filing date, is the date of delivery to the proper reporting agency or entity during regular business hours of such office; and

8.9.3. For the facsimile or other electronic means of transmission, the filing date is the date of delivery to the appropriate reporting agency or entity.

8.10. Financial statements which are delivered by facsimile or other means of electronic transmission shall be limited in length to 15 pages, including a cover page. When delivered by a facsimile or other electronic means of transmission, original signed and sworn financial statements shall be postmarked or hand delivered to the appropriate reporting agency or entity within 24 hours of the date of the facsimile or other means of electronic transmission.

8.11. For the purpose of reporting contributions, a contribution occurs on the date the check, cash or other thing of value is received by the treasurer or agent of the political committee No person acting as agent for the candidate, treasurer or committee shall knowingly withhold a contribution from the treasurer to prevent the reporting of the contribution until a later reporting period.

8.12. For the purpose of reporting unpaid bills, a liability is incurred on the date a contract for goods or services is made as provided in paragraph 2.18.4.a by the treasurer or any agent of the political committee, but for which full payment has not been rendered.

8.13. For the purpose of reporting expenditures, an expenditure is made on the date the treasurer or agent of the political committee makes a contract for goods or services as provided in paragraph 2.18.4.a, or on the date that goods are provided or services are rendered, whichever occurs sooner. No transfer may be made to an intermediary to avoid reporting an expenditure in a particular reporting period.

8.14. Persons making independent expenditures shall report those expenditures according to W. Va. Code §§ 3-8-2 and 3-8-5b(b)(1)(D): Provided, that independent expenditure reports shall be filed when a person, committee, or other entity makes or contracts to make independent expenditures as provided in subsection 2.18.4 that trigger an additional report as specified in W. Va. Code § 3-8-2.

8.15. Persons making electioneering communications shall report those expenditures according to W. Va. Code §§ 3-8-2b and 3-8-5b(b)(1)(C).

W. Va. Code R. § 146-3-9 State and Local Activity by Federal Committees

9.1. A political committee which properly establishes and maintains an account with the Federal Election Commission shall be in compliance with the state financial reporting requirements in W. Va. Code § 3-8-5 if all requirements are met in reporting with the Federal Election Commission. Of candidate committees, only candidate committees that are seeking election to a federal position qualify for this exemption.

9.2. When a federally registered political committee also maintains a state registered account, the treasurer shall not place in its federal account, funds which have been designated by the contributor for use in state, district, county and municipal election activities. The funds shall be placed directly into the state account, and are subject to state reporting requirements, restrictions, and contribution limits.

9.3. A person required to file reports with the Federal Election Commission is not exempt from the state-level electioneering communication reports requirements in W. Va. Code § 3-8-2b or the independent expenditure reporting requirements in W. Va. Code § 3-8-2.

W. Va. Code R. § 146-3-10 Solicitation for Political Purposes

10.1. Solicitations by a candidate committee:

10.1.1. No person may lawfully solicit and accept funds for political purposes on behalf of any individual before that individual becomes a pre-candidate or a candidate as defined in this rule.

10.2. No person may lawfully solicit and accept funds on behalf of any political committee, other than a candidate’s committee, before that committee files a statement of organization and appoints a treasurer.

10.3. No person may lawfully solicit and accept funds on behalf of any candidate or any elected official if no outstanding debt remains from a previous election, except in that a pre-candidate, candidate or political committee may solicit or accept funds if pre-candidacy papers have been filed for an upcoming primary or general election.

10.4. A person who solicits funds to retire a debt incurred for political purposes by a candidate or committee during a previous primary or general election is soliciting funds in connection with that campaign for primary, general or special election.

10.5. A solicitation which is broadcast by radio or television or published in a newspaper or other publication of general circulation shall not be considered to violate any prohibition against solicitation of the members of specific groups.

10.6. A solicitation which is conducted randomly by such means as bulk mail to boxholders, broad literature distribution in a geographic area, or random-number telephone solicitations shall not be considered to violate any prohibition against solicitation of the members of specific groups, providing solicitations of the members of specific groups are not knowingly and purposely included in the random solicitation.

10.7. A solicitation directed to individuals by name shall not be considered to violate the prohibition against solicitation of public employees if that solicitation prominently contains the words "Please disregard if you are a public employee" or words to that effect, providing solicitations of members of prohibited groups are not knowingly and purposely included in the solicitation.

10.8. A solicitation specifically on behalf of one or more candidates for President, Vice President, U.S. Senate or U.S. House of Representatives is governed by the United States Code and the Code of Federal Regulations and is not subject to regulation by the state.

W. Va. Code R. § 146-3-11 Procedures for Levying Civil Penalties

11.1. A civil penalty of $10 a day, provided by W. Va. Code § 3-8-7(b), shall be assessed by the Secretary of State when a mandated report for independent expenditures, electioneering communications or a political committee’s campaign finance statement as required by W. Va. Code § 3-8-5 is filed delinquently.

11.1.1. The public list shall be published on the Secretary of State’s online Campaign Finance Reporting System and/or official agency website.

11.1.2. The public list shall be published no later than 10 days following the close of each campaign finance report filing period, or by the next business day following a weekend or legal holiday, and shall remain online for a period of five (5) years.

11.2. A report shall be considered to be delinquent and a $10 a day fine assessed if:

11.2.1. It is received after the deadlines established by W. Va. Code § 3-8-5; or

11.2.2. It bears a U.S. Postal Service postmark dated after the deadline.

11.3. If through or by no fault of the candidate or committee the person responsible for filing the campaign financial statement is unable to file the statement on time, the candidate or committee shall then file said statement in person, via facsimile or other electronic means of transmission, or by certified mail postmarked at the first reasonable opportunity. A campaign financial statement shall not be considered delinquent if:

11.3.1. The statement is filed late due to the death of the candidate, treasurer, or other individual responsible for filing the reports;

11.3.2. The statement is filed late due to a technical or computer error that is beyond the control of the person responsible for filing the statement; or

11.3.3. The statement is filed late due to a serious illness of the candidate, treasurer, or other individual responsible for filing the reports; and

11.3.3.a. A written notification of either death or serious illness is received by the filing officer no later than 30 days after the financial statement is due. Upon receipt of the notification, the filing officer may grant an extension of time for the filing of the financial statement.

11.4. Grossly inaccurate:

11.4.1. Any person, candidate, financial agent, or political party committee treasurer who files a grossly inaccurate or grossly incomplete statement shall be assessed a civil penalty by the Secretary of State of $10 each day after the due date the statement is deemed grossly inaccurate, or grossly incomplete after the following process.

11.4.1.a. The filing officer has notified, by certified mail, except as provided in Subdivision 11.4.1.c of this Rule, the individual or committee responsible for filing the report that the report is incomplete or inaccurate;

11.4.1.b. Corrections to the report have not been received by the filing officer within ten (10) days after the mailing of notice to the individual or committee; and

11.4.1.c. In the case of a financial statement due not less than 11 nor more than 15 days preceding each primary or other election, corrections to the report have not been received by the filing officer within 24 hours after the individual or committee has been notified by email or telephone call of the inaccuracies or deficiencies. If the inaccuracies or deficiencies are not detected by the filing officer until after the election, the notice and corrections provisions of Paragraphs 11.4.1.a and 11.4.1.b, apply.

11.4.2. Any person, candidate, financial agent or political party treasurer who willfully files a grossly incomplete or grossly inaccurate statement is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 or confined in jail for not more than one year, or both fined and confined.

11.5. Reporting delinquent filings to the Secretary of State by local election officials:

11.5.1. Any county or municipality election official that determines that any campaign finance report meets the criteria set for in 146 CSR 3-11.1. through 11.4. for a delinquent or grossly inaccurate for civil penalty, the county shall report the political committee to the Secretary of State for penalty assessment. Funds received from any penalty assessed shall be assessed and deposited into the general treasury of the State of West Virginia.

W. Va. Code R. § 146-3-12 Political Disclaimers

12.1. No person may publish, issue or circulate, or cause to be published, issued or circulated, any anonymous letter, circular, placard, radio or television advertisement or other publication supporting or aiding the election or defeat of a clearly identified candidate.

12.2. No person will be in violation of Section 12.1. of this Rule if on the communication the words “Paid for by (name of the person paying for the communication)” are visible and legible on the face of the communication or spoken clearly in an audio advertisement.

12.3. Any communication paid for by an independent expenditure shall include a clear and conspicuous public notice that:

12.3.1. Clearly states that the communication is not authorized by the candidate or the candidate’s committee;

12.3.2. Clearly identifies the person making the expenditure; and

12.3.3. If the communication appears on or is disseminated by broadcast, cable or satellite transmission, the statement required by this Subsection shall be both spoken clearly and appear in clearly readable writing at the end of the communication.

12.4. In each electioneering communication, a statement shall appear or be presented in a clear and conspicuous manner that:

12.4.1. Clearly indicates that the electioneering communication is not authorized by the candidate or the candidate's committee; and

12.4.2. Clearly identifies the person making the expenditure for the electioneering communication: Provided, that if the electioneering communication appears on or is disseminated by broadcast, cable or satellite transmission, the statement required by this Section shall be both spoken clearly and appear in clearly readable writing at the end of the communication.

12.5. Any communication that results from a coordinated expenditure shall contain an additional disclaimer that clearly identifies that the expenditure is coordinated with the candidate, the candidate committee, or the party committee with which it was coordinated.

W. Va. Code R. § 146-3-13 Joint Fundraising Agreements

13.1. Applicability.

13.1.1. The provisions of this Section, in addition to all applicable laws, shall govern all joint fundraising activity conducted under W. Va. Code § 3-8-9c.

13.2. Establishing separate committee; authority, requirements and prohibitions.

13.2.1. Registered political committees may engage in joint fundraising activities with other political committees registered in West Virginia or with the Federal Election Commission. Participants authorized to engage in joint fundraising activity shall only include political party committees, caucus campaign committees, candidate committees, and political action committees: Provided, that nothing in this Rule modifies the provisions of W. Va. Code §§ 3-8-8, 3-8-9a and 3-8-9b regarding the prohibition against corporate contributions and coordinated expenditures respectively, nor does this Section modify the prohibition against independent expenditure only political action committees making expenditures in concert or cooperation or at the request or suggestion of a candidate, his/her agencies, a candidate’s committee, or a political party committee as set forth in Paragraph 5.3.3.a. of this Rule: Provided, however, that committees which are permitted to receive otherwise prohibited contributions (e.g. certain Federal committees) may solicit and accept such contributions according to the provisions of this Rule and applicable state or Federal laws so long as the otherwise prohibited contributions are deposited into an account that is separate from the separate committee’s account.

13.2.2. To lawfully engage in joint fundraising activities, the participants shall enter into a joint fundraising agreement and establish a separate committee, allocation formula and a joint fundraising representative.

13.2.3. The participants are permitted to hire a commercial fundraising firm or other agent to assist the joint fundraising representative with conducting joint fundraising activity. The commercial fundraising firm or other agent shall be answerable to the joint fundraising representative. Provided, this Subsection does not absolve the joint fundraising representative of any responsibilities or duties set forth in the law or this Rule.

13.2.4. Prior to soliciting or accepting any funds or engaging in any fundraising activities, the joint fundraising committee shall file a Statement of Organization with the Secretary of State, which shall include:

13.2.4.a. The name of the separate committee;

13.2.4.b. The date the joint fundraising agreement was executed;

13.2.4.c. The name, address, phone number and email address of the agent authorized to act as the joint fundraising representative on behalf of the separate committee;

13.2.4.d. The names and addresses of all committees participating in the joint fundraising agreement;

13.2.4.e. The name and address of the depository institution holding the joint fundraising committee’s account;

13.2.4.f. Attach an original signed copy of the joint fundraising agreement; and

13.2.4.g. Any additional information deemed necessary by the Secretary of State.

13.3. Joint fundraising representative; separate committee activities.

13.3.1. The joint fundraising representative shall report the separate committee’s activities in the same manner provided by law for a political committee.

13.3.2. The joint fundraising representative shall be responsible for managing all activities of the separate committee including but not limited to the following:

13.3.2.a. Record keeping, preparing and reporting all activities required by law and this Rule;

13.3.2.b. Collecting all contributions to the separate committee on behalf of the participants;

13.3.2.c. Paying for all costs incurred by the separate committee with gross proceeds from the separate committee’s account and/or from funds contributed to the separate committee by participants; and

13.3.2.d. Distributing net proceeds to each participant according to the terms established under joint fundraising agreement.

13.3.3. The separate committee shall not be a participant in any other joint fundraising effort. Provided, that the separate committee may conduct more than one fundraising event for the participants consistent with the terms of the joint fundraising agreement.

13.3.4. Joint fundraising representatives shall be permitted to act as a joint fundraising representative for multiple separate committees. Provided, that all activities of each separate committee shall be kept separate.

13.4. Funding advancements by participants to joint fundraising committee.

13.4.1. Prior to a fundraising event, participants may advance funds to the joint fundraising committee for the costs of the fundraiser. Provided, that participants may contribute funds following a fundraising event only if the costs of the fundraiser exceed funds advanced and raised by participants.

13.4.2. The amount of funds advanced by each participant for fundraising costs shall be in proportion to the allocation formula agreed upon under the joint fundraising agreement. Provided, that the amount advanced may exceed any participant’s proportionate share so long as the amount advanced does not exceed the amount that the participant may legally contribute to the remaining participants according to the contribution limits set forth in W. Va. Code § 3-8-5c.

13.4.3. Following the event, the joint fundraising representative shall pay fundraising costs from gross proceeds and from funds advanced by participants. After paying the specific fundraising event costs, the joint fundraising representative shall disburse net proceeds to each participant according to the allocation formula set forth in the joint fundraising agreement.

13.5. Joint fundraising; requirements; procedures; limitations.

13.5.1. The participants in joint fundraising activity shall enter into a written agreement and establish the following:

13.5.1.a. A separate committee through which all joint fundraising activity shall be conducted;

13.5.1.b. The name, address, phone number and email address of the agent authorized to act as the joint fundraising representative on behalf of the separate committee;

13.5.1.c. The names and addresses of all committees participating in joint fundraising activity under the joint fundraising agreement;

13.5.1.d. The allocation formula by which fundraising proceeds are disbursed to each participant;

13.5.1.e. The name and address of the depository institution holding the joint fundraising committee’s account; and

13.5.1.f. Any additional information deemed necessary by the participants.

13.5.2. The allocation formula shall provide the exact amount or percentage to be allocated to each participant for all contributions and advancements received by the separate committee. The fundraising representative shall provide the written agreement to the Secretary of State prior to soliciting or accepting any funds, which agreement shall be made publicly available on the Secretary of State’s campaign finance reporting system website.

13.5.3. A joint fundraising notice shall be included with each solicitation for contributions and fundraising event advertisement. The notice shall include the following information:

13.5.3.a. The names of all committees participating in the joint fundraising activity;

13.5.3.b. The allocation formula for distributing the joint fundraising proceeds;

13.5.3.c. A statement informing contributors that, notwithstanding the stated allocation formula, contributions may be designated for a particular participant or participants; and

13.5.3.d. A statement informing contributors that the allocation formula may change if a contributor makes a contribution which exceeds the maximum contribution amount to a participant than is permitted by law.

13.5.4. In the following special situations, the joint fundraising notice shall include the following additional information:

13.5.4.a. If one or more participants engage in joint fundraising activity solely to raise funds for outstanding debts, a statement informing contributors that the allocation formula may change if a participant receives sufficient funds to pay its outstanding debts; and

13.5.4.b. If one or more participants may not lawfully accept contributions from any particular source, a statement informing contributors that contributions from prohibited sources will be distributed only to those participants that may lawfully accept them.

13.6. Separate depository account; record keeping requirements.

13.6.1. The participants or joint fundraising representative shall establish a separate depository account to be used solely for the receipt and disbursement of joint fundraising proceeds. Only lawful contributions and advanced funds shall be deposited into the separate depository account.

13.6.2. Each separate committee shall disclose the name, location and account number of the separate depository account in the joint fundraising agreement.

13.6.3. The fundraising representative shall collect and forward to participants all contributor information required under W. Va. Code § 3-8-5a.

13.6.3.a. Participants shall make their contributor records available to the fundraising representative for screening purposes.

13.6.3.b. The fundraising representative and participants shall review and determine whether any contributions violate the provisions of W. Va. Code §§ 3-8-5c, 3-8-5g or 3-8-8.

13.6.3.c. The fundraising representative shall keep a record of the total amount of contributions received from prohibited sources, if any, and of all transfers of prohibited contributions to participants that may lawfully accept them.

13.6.3.d. For compliance purposes, the fundraising representative and all participants are individually responsible for following all applicable laws and this Rule.

13.6.4. If one or more participants may lawfully accept prohibited contributions (e.g. corporate contributions), the participants or joint fundraising representative may either establish a second depository account for contributions received from prohibited sources, or may forward such contributions directly to the appropriate participant(s) and shall keep clearly indicate the separate disbursements in the books of the separate committee.

13.6.5. The fundraising representative shall deposit all joint fundraising proceeds in the separate depository account. The fundraising representative may delay distribution of the fundraising proceeds to participants until all contributions are received and all expenses are paid.

13.6.5.a. The fundraising representative shall report contributions for the separate committee in the reporting period during which they are received.

13.6.5.b. For reporting purposes, the date of receipt of a contribution by the joint fundraising representative or separate committee shall be deemed the date that the contribution is actually received. For electronic transmission of a contribution, the date of completed transmission is the date of receipt.

13.6.5.c. Participants shall report joint fundraising proceeds in accordance with W. Va. Code § 3-8-5 in the reporting period in which they are received by the joint fundraising representative or separate committee regardless the funds have been distributed to participants. Provided, that if any contributor’s information is not known by the close of the reporting period, the participant(s) shall report all available information and amend the appropriate report once all contributor information is known.

13.6.6. The joint fundraising representative shall retain all records required under W. Va. Code § 3-8-5 regarding fundraising disbursements for a period of two years. Commercial fundraising firms or agents shall provide such information to the fundraising representative.

13.7. Contribution limitations.

13.7.1. The maximum contribution that may be accepted by a separate committee or the joint fundraising representative on behalf of the separate committee shall not exceed the contribution limitations set forth in W. Va. Code § 3-8-5c for each participant in the aggregate less any contributions previously received by each respective participant from the specific contributor(s).

13.7.1.a. Contributions may be designated or earmarked for a specific participant or group of participants. In this case, the calculation of the maximum contribution limitation for that specific contribution shall only include the maximum lawful amount for the participant(s) to which the contributions are intended less any contributions previously received by any such participant(s) from the particular contributor(s).

13.7.1.b. For maximum contribution limitation calculation purposes, gross proceeds shall be considered for the calculation of the amount of funds received by each participant.

13.8. Allocation of gross proceeds.

13.8.1. The fundraising representative shall allocate proceeds according to the allocation formula stated in the joint fundraising agreement or otherwise in accordance with this Rule.

13.8.1.a. For a fundraiser to extinguish debt of the participants, if distribution according to the allocation formula extinguishes the debt of any participant and results in a surplus, the joint fundraising representative shall either reallocate the surplus funds to other participants that may lawfully accept the funds, or otherwise return the surplus funds to the contributor(s).

13.8.1.b. If distribution of funds under the allocation formula results in a violation of the contribution limits under W. Va. Code § 3-8-5c, the joint fundraising representative shall either reallocate the excess funds to other participants that may lawfully accept the funds, or otherwise return the surplus funds to the contributor(s).

13.8.1.c. Reallocation of surplus funds shall be based upon the remaining participants’ proportionate shares under the allocation formula. If reallocation results in a violation of a contribution limit under W. Va. Code § 3-8-5c, the joint fundraising representative shall return to the contributor the amount of the contribution that exceeds the limit.

13.8.2. Notwithstanding Paragraph 13.8.1.c. of this Rule, any specifically designated or earmarked contributions which exceed the contribution limit or needed funds to retire the debt of the designated participant(s) shall not be reallocated by the joint fundraising representative without express written consent of the contributor(s).

13.9. Calculation of expenses and distribution of proceeds.

13.9.1. Payment of expenses shall be made by the joint fundraising representative from gross proceeds of each fundraising event.

13.9.1.a. The joint fundraising representative shall calculate each participant’s share of expenses based on the allocation formula set forth in the joint fundraising agreement. Provided, that if any contributions are received from prohibited sources and distributed to participants that may lawfully accept such contributions, those funds shall not be included in gross proceeds for the purpose of allocating expenses under this Section. Provided, however, that such funds shall be recorded in the books of the separate committee.

13.9.1.b. The joint fundraising representative shall calculate each participant’s share of the proceeds by subtracting fundraising expenses from gross proceeds and then distribute net proceeds to each participant based on the allocation formula set forth in the joint fundraising agreement.

13.9.2. A participant shall be permitted to cover fundraising expenses on behalf of another participant. Provided, that covering such expenses shall be subject to the contribution limits under W. Va. Code §§ 3-8-5c and 3-8-9b, as well as being subject to the prohibitions against certain activities by candidate committees and political action committees under W. Va. Code § 3-8-9.

13.9.3. The expenses from a series of fundraising events or activities shall be allocated among the participants under the allocation formula set forth in the joint fundraising agreement on a per-event basis. Provided, that if more than one event occurs on a single date, such events shall be considered separate events for reporting and allocation purposes.

13.10. Reporting receipts and disbursements.

13.10.1. The fundraising representative and all participants shall report all funds received during the reporting period in which they are received as contributions from each individual contributor pursuant to W. Va. Code §§ 3-8-5a and 3-8-5b, as well as Subdivision 13.6.5. of this Rule.

13.10.2. The fundraising representative shall submit a statement detailing the total amount of contributions received from prohibited sources during the reporting period, if any, by submitting an addendum to the campaign finance report to the Secretary of State’s Elections Division via email, U.S. mail, facsimile or hand delivery.

13.10.3. For cash balance purposes, each participant shall report net proceeds received as contributions and shall report the portion of contributions allocated to fundraising expenses as in-kind contributions. The amount of each contribution and in-kind contribution shall be calculated based on the allocation formula set forth in the joint fundraising agreement and itemized in the report by each original contributor. Provided, that the sum of the contribution and in-kind contribution from each donor, which should equal each participant’s share under the allocation formula of the gross proceeds, shall not exceed the contribution limitations of W. Va. Code § 3-8-5c.

W. Va. Code R. § 146-3-14 Coordinated Activity

14.1. "Coordinated expenditure" is an expenditure made in concert with, in cooperation with, or at the request or suggestion of a candidate’s committee and meeting the criteria provided in W. Va. Code § 3-8-9a.

14.1.1. For the purpose of this Section, “In concert or cooperation with or at the request or suggestion of,” means that a candidate or his or her agent consulted with:

14.1.1.a. The sender regarding the content, timing, place, nature, or volume of a particular communication or a communication to be made; or

14.1.1.b. A person making an expenditure that would otherwise offset the necessity for an expenditure of the candidate or candidate’s committee.

14.1.2. For the purpose of this Section, the term “communication” includes electioneering communications as defined in Subsection 2.12 of this Rule.

14.2. Coordinated activity includes the making of expenditures in cooperation with a candidate or committee so long as the communication resulting from the expenditure is paid, in whole or in part, by another person other than the candidate, committee. or party.

14.3. Expenditures are considered coordinated when:

14.3.1. The communication is created, produced, distributed, or undertaken at the request or suggestion of a candidate, candidate committee, or party committee;

14.3.2. The candidate, candidate committee, or party committee is involved in the creation, production, or distribution of the communication, or has had discussions about the communication with any person or the agents of a person who has paid for or played a role in the creation, production, or distribution of the communication;

14.3.3. Any person involved in the creation, production, or distribution of the communication has, in the four (4) months preceding the date on which the expenditure is made, been an employee or vendor of campaign services for the candidate, candidate committee, or party committee;

14.4. Any communication that results from a coordinated expenditure shall contain a disclaimer that clearly identifies that the expenditure is coordinated with the candidate, candidate committee, or party committee with which it was coordinated.

14.5. The state committee of a political party and caucus campaign committee may make coordinated expenditures in any amount as provided in W. Va. Code § 3-8-9b in connection with the general election campaign for offices of Governor, Attorney General, Auditor, Commissioner of Agriculture, Secretary of State, Treasurer, State Senate, and House of Delegates.

14.6. Any communication that results from a political expenditure and is made in coordination with a state committee of a political party and caucus campaign committee shall contain a disclaimer that clearly identifies that the expenditure is coordinated with the candidate or candidate’s committee with whom it was coordinated.

14.7. Any coordinated expenditure between any person, firm, or entity, which has been contracted with any other candidate or committee for the purpose of coordinated expenditures shall establish a written firewall policy to ensure information about the candidate's or authorized committee's campaign plans, projects, activities, or needs that are material to the creation, production, or distribution of the communication are not used or conveyed to any other candidate or committee paying for the communication. Provided, that this prohibition shall not apply to permissible coordinated activity conducted under a Joint Fundraising Agreement. Provided, however, that in the case of a single or associated person, firm, or entity under contract for coordinated expenditures by more than one (1) separate committees established by a Joint Fundraising Agreement, a written firewall policy shall be required.

14.7.1. The written firewall policy shall be designed and implemented to prohibit the flow of information between employees or consultants providing services for the person paying for the communication and those employees or consultants currently or previously providing services to the candidate who is clearly identified in the communication, or the candidate's authorized committee, the candidate's opponent, the opponent's authorized committee, or a political party committee.

14.7.2. The written firewall policy shall include but is not limited to:

14.7.2.a. A separation between staff who provide a service related to any expenditure benefiting one candidate or committee from other staff who have engaged, or will engage, in any coordinated activity with another candidate or committee;

14.7.2.b. Prohibitions against a supervisor or manager from simultaneously overseeing the work of staff members who are separated by the firewall; and

14.7.2.c. Physical and technological separations to help ensure that strategic, non-public information does not, in fact, pass to the candidate, committee, or to staff members separated by the firewall.

14.7.3. The written firewall policy shall be distributed to all relevant employees, consultants, and clients affected by the policy.

14.8. Candidate PAC Activities; Prohibitions:

14.8.1. A candidate seeking or an individual holding statewide or legislative office may:

14.8.1.a. Be the principal officer, treasurer, fundraiser, or decision maker for a PAC;

14.8.1.b. Receive contributions to the PAC: Provided, that contributions received are subject to the contribution limitations in W. Va. Code §3-8-5c and the regulation of coordinated expenditures in W. Va. Code §3-8-9a and subsection 14.2 of this Section;

14.8.1.c. Receive reimbursement for travel and other expenses incurred in the performance of duties for the PAC, and for purchases made on behalf of the PAC: Provided, that no reimbursement shall be made for any activities that would constitute personal use or prohibited expenditures; and

14.8.1.d. Sponsor another candidate or individual holding statewide or legislative office for non-campaign political activities as follows:

14.8.1.d.1. For political events not specifically organized for any candidate’s committee or campaign, political party events, political meetings, and expenses related thereto such as necessary travel, hotels, meals, and entry fees.

Series 04 Election Expenditures

W. Va. Code R. § 146-4-1 General

1.1. Scope. -- These legislative rules regulate the employment of election workers and regular campaign staff, rate of payment, method of payment, reporting requirements and forms utilized for compliance. These legislative rules apply to all municipal, county, state or national elections conducted in this State.

1.2. Authority. -- W. Va. Code §§3-1A-5, 3-1A-6, 3-8-1, 3-8-11, 3-8-12, 3-9-12, 3-9-13, 3-9-16 and West Virginia Supreme Court of Appeals Order No. 16884

1.3. Filing Date. -- April 10, 2008.

1.4. Effective Date. -- April 10, 2008.

W. Va. Code R. § 146-4-2 Policy

The Legislature through West Virginia Code subsection (d), section six, article one-a; section one, article eight; subsection (c), section eleven; subsection (e), section twelve, article eight; sections twelve, thirteen and sixteen, article nine, all of chapter three clearly addresses the intent of the Legislature to prevent the buying and selling of votes. Pursuant to statutory authority, it is the policy of the State Election Commission and the Secretary of State that unreasonable, excessive and grossly disproportionate expenditure of money in relation to services rendered represents the buying of votes or influence to obtain a public office. The following rules are established to carry out this policy.

W. Va. Code R. § 146-4-3 Definitions

3.1. "Candidate's Committee" means a political committee established with the approval of or in cooperation with a candidate or a prospective candidate to explore the possibilities of seeking a particular office or to support or aid his or her nomination or election to an office in an election cycle. If a candidate directs or influences the activities of more than one active committee in a current campaign, those committees shall be considered one committee for the purpose of contribution limits.

3.2. "Paid Campaign Staff" means an individual employed by a political committee who works in excess of twenty (20) hours per week on a regular and continuing basis and who is paid a regular salary out of which is deducted withholding tax and social security obligations.

3.3. "Paid Election Worker" means an individual employed by a political committee on an intermittent, temporary or irregular basis.

3.4. "Political Action Committee" means a committee organized by one or more persons for the purpose of supporting or opposing the nomination or election of one or more candidates.

3.5. "Political Committee" means any candidate’s committee, political action committee or political party committee.

3.6. "Political Party Committee" means a committee established by a political party or political party caucus for the purposes of engaging in the influencing of the election, nomination or defeat of a candidate in any election.

3.7. "Political Subdivision" means those precincts comprising the electoral district from which a candidate is to be elected. (i.e. senatorial district, delegate district)

3.8. "Volunteer Election Worker" means an individual providing services to a political committee without pay or other compensation for services, not including expenses.

W. Va. Code R. § 146-4-4 Exceptions

4.1. Payments for contracted services with a person or business licensed to do business in the State of West Virginia are not limited by these regulations: Provided, however, that payments to election workers or campaign staff employed or provided by a licensed person or business on behalf of a candidate’s committee are subject to these regulations. Such paid election workers employed for election day work will be calculated as part of the total paid workers allowed for that candidate or committee pursuant to Section 8 of these rules.

4.2. The number of volunteer election workers utilized on election day is not limited by these regulations.

W. Va. Code R. § 146-4-5 Payment Of Election Workers

5.1. An election worker's pay, including direct or indirect payments for expenses, shall not exceed nine dollars ($9.00) per hour up to a maximum of seventy-five dollars ($75.00) per day regardless of the source or sources of the payment or the hours worked in any given day.

5.2. Payment shall be by check for any and all services provided or expenses incurred by any paid election worker.

5.3. Any check issued for payment to any paid election worker shall clearly indicate the name of the candidate’s committee issuing the check, and the name and social security number of the person to whom the check is issued.

5.4. No check may be issued to any paid election worker before that worker has submitted to the candidate’s committee an itemized statement on a form prescribed by the Secretary of State showing the specific work performed, the times and dates of the work and the amount of pay to be issued by the candidate or committee to the election worker for the work reported.

5.5. The candidate’s committee shall attach all itemized statements, upon which payment was made, with the financial statement, for the reporting period during which the check was issued.

5.6. The candidate’s committee shall comply with all Internal Revenue Service laws, regulations and reporting requirements as they relate to the payment of election workers.

W. Va. Code R. § 146-4-6 Payment Of Campaign Staff

6.1. Paid campaign staff may be paid in excess of seventy-five dollars ($75.00) per day, but such pay may not exceed that which is reasonable and fairly commensurate with similar services rendered in the private sector.

6.2. Payment shall be by check for any or all service provided by any paid campaign staff worker.

6.3. Any check issued for payment to any paid campaign staff worker shall clearly indicate the name of the organization or person issuing the check and the name and social security number of the person to whom the check is issued.

6.4. The candidate’s committee shall file with the financial statement the names and social security number of each paid campaign staff worker employed during the reporting period covered by the financial statement, along with the job title, description of duties, rate of pay, beginning and ending employment dates and work schedule of each paid campaign staff worker.

6.5. The political committee shall comply with all Internal Revenue Service laws, regulations and reporting requirements as they apply to the payment of campaign staff.

W. Va. Code R. § 146-4-7 Reimbursement For Expenses Of Volunteer Election Workers. 7.1 A volunteer election worker may, by presentment of a receipt or receipts for the expenditures, be reimbursed for out-of-pocket purchases of goods or services made for the candidate’s committee. Such out-of-pocket expenditure reimbursements shall be reflected in the candidate committee's financial report as an expenditure, as required by W.Va. Code 3-8-5a(a)(8)

7.2. Payment to a volunteer election worker for any and all expenses incurred shall be made by the candidate or committee by check.

7.3. Reimbursement for mileage shall not exceed the current state-mandated reimbursement rate per mile.

W. Va. Code R. § 146-4-8 Employment Of Election Workers By Candidates Or Candidate's Authorized Committee

8.1. Each candidate's committee may employ paid election workers solely for the candidate's personal campaign: Provided, however, That within the limits of one (1) election worker per precinct, as set forth in Section 8.2 of these rules, two (2) or more candidates’ committees may jointly employ paid election workers only when the payment to each worker is equally divided among the candidate’s committees.

8.2. Under no circumstances shall a candidate's committee employ directly or indirectly in excess of one (1) paid election worker per number of precincts within the area the candidate is seeking to represent. The total number of election worker(s) employed to work within any political subdivision shall not exceed the total number of precincts in which the candidate appears on the ballot within that political subdivision. The candidate's committee may employ any number of worker(s) per day per political subdivision, so long as the total number of worker-days do not exceed the number of precincts in the political subdivision. (Example: In a delegate district with thirty (30) precincts, thirty (30) workers may be employed for one (1) day; or, one (1) worker may be employed for thirty (30) days; or, three (3) workers may be employed for ten (10) days; or, any variation so long as the number of workers or worker-days do not exceed the total precincts within that delegate district).

8.3. A candidate's committee may not make indirect contributions to other candidates or committees by having paid election workers drive voters, distribute literature or perform any other task on behalf of another candidate.

8.4. The candidate’s committee shall comply with all Internal Revenue Service laws, regulations and reporting requirements as they apply to the payment of campaign staff.

W. Va. Code R. § 146-4-9 Employment Of Election Workers By Party Committees

9.1. Each party committee may employ election workers: Provided, however, That a municipal executive committee may not employ election workers on any county, district or statewide election day and a county, district or statewide executive committee may not employ election workers on any municipal election day.

9.2. Any state party executive committee may employ not more than one (1) paid election worker per precinct within any county.

9.3. Any county executive committee, or combination of county and district executive committees of the same political party, may employ not more than one (1) election worker per precinct within a county.

9.4. Any municipal executive committee may employ not more than one (1) paid election worker per precinct within the city.

W. Va. Code R. § 146-4-10 Employment Of Election Workers By Political Action Committees

10.1. Each political action committee may employ election workers.

10.2. Regardless of the number of candidates supported or opposed by a political action committee, the total number of paid election workers employed by such committee to work within any county may not exceed the total number of precincts within that county in which candidates or issues supported or opposed appear on the ballot.

10.3. Each political action committee shall report the amount of expenditures made on behalf of each candidate or to promote the defeat of a candidate.

W. Va. Code R. § 146-4-11 Forms

All forms necessary to comply with this rule shall be prescribed by the State Election Commission and available from the Secretary of State's office, county clerk's office, and the municipal election officer.

146CSR4

146CSR4

Series 05 West Virginia Supreme Count of Appeals Public Campaign financing Program

W. Va. Code R. § 146-5-1 General

1.1. Scope. -- This rule controls the processes by which the State Election Commission administers the West Virginia Supreme Court of Appeals Public Campaign Financing Program for West Virginia Supreme Court elections.

1.2. Authority. -- W. Va. Code §§ 3-1A-5, 3-12-11, and 3-12-14.

1.3. Filing Date. -- June 22, 2016.

1.4. Effective Date. -- July 1, 2016

W. Va. Code R. § 146-5-2 Definitions

2.1. For purposes of this rule:

2.1.a. “Application for certification” is a form prescribed by the State Election Commission that a candidate must file to formally apply for public campaign financing funds and request an eligibility determination from the Commission.

2.1.b. “Application for withdrawal from participation” is a form prescribed by the State Election Commission that a candidate seeking to withdraw as a certified candidate must file with the Commission. The Commission will determine if the candidate can withdraw from participation without penalty or repayment of funds received. Waiver of the penalty or repayment of funds is determined at the discretion of the Commission.

2.1.c. “Article 12” means the West Virginia Supreme Court of Appeals Public Campaign Financing Program, as codified in W.Va. Code §3-12-1, et. seq.

2.1.d. “Certified candidate” means a candidate for the West Virginia Supreme Court of Appeals who has been determined by the State Election Commission to qualify for receipt of public campaign financing funds.

2.1.e. “Contested election” means a non-partisan judicial election in which more candidates have been certified by the Secretary of State as eligible for election than positions to be elected.

2.1.f. “Declaration of intent” is a form prescribed by the State Election Commission which a candidate must file with the Secretary of State before accepting any qualifying contributions.

2.1.g. “Election year” means the calendar year beginning January 1 during which a Justice, or more than one Justice, is to be elected to the West Virginia Supreme Court of Appeals.

2.1.h. “Exploratory contributions” means a contribution of not more than $1,000 made by an individual adult, including a participating candidate and members of his or her immediate family, during the exploratory period but prior to the filing of a declaration of intent.

2.1.i. “Exploratory period” means the period during which a participating candidate may raise and spend exploratory contributions to examine his or her chances of election and to qualify for public campaign financing funds. The exploratory period begins January 1 of the calendar year preceding the election year, and ends on the last Saturday in January of the election year.

2.1.j. “Financial agent” means any individual acting for and by himself or herself, or any two or more individuals acting together or cooperating in a financial way to aid or take part in the nomination or election of any candidate for public office.

2.1.k. “Fund” means the Supreme Court of Appeals Public Campaign Financing Fund created by W.Va. Code §3-12-5.

2.1.l. “Non-partisan judicial election campaign period” means the period beginning on the first day of the candidate filing period and ending on the day of the non-partisan judicial election.

2.1.m. “Non-partisan judicial election payment” means the amount of monies approved by the Commission and paid from the Fund to a certified candidate per W.Va. Code §3-12-11(a).

2.1.n. “Participating candidate” means a candidate who is seeking election to the Supreme Court of Appeals and is attempting to be certified to receive public campaign financing from the Fund.

2.1.o. “Qualifying contribution” means a contribution, made by a West Virginia registered voter, of between $1 and $100, received during the qualifying period. The contribution may be in cash, if not more than $50 (W.Va. Code §3-8-5d), check or money order, electronic transmission, debit or credit card, made payable to the candidate or candidate’s committee.

2.1.p. “Qualifying period” means the period during which participating candidates may raise and spend qualifying contributions. The period begins September 1 of the calendar year preceding the election year and ends the last Saturday in January of the election year.

2.1.q. “Secretary” means the Secretary of State.

2.1.r. “State Election Commission” means the government body referenced in W.Va. Code §3-1A-1 and may hereinafter be referred to as “SEC” or “Commission”.

W. Va. Code R. § 146-5-3 Exploratory Period; Contributions; Expenditures

3.1. The exploratory period begins on the first day of January of the calendar year preceding the election year and ends on the last Saturday in January of the election year.

3.2. During the exploratory period a participating candidate or his or her committee may not accept, spend or obligate exploratory contributions exceeding $20,000 in the aggregate. Amounts raised in excess of $20,000 must be given to the Fund.

3.3. Upon filing a declaration of intent, any remaining unexpended or undedicated pre-candidacy contributions received prior to the exploratory period are treated as exploratory contributions. A candidate may not accept additional exploratory contributions after filing a declaration of intent.

3.4. Monies paid to the Fund, as required by any section of this rule, will not be refunded to the candidate should the candidate later fail to qualify for public financing.

3.5. Contribution Limitations.

3.5.1. No individual may contribute more than a total of $1,000.

3.5.2. Participating candidate may loan, contribute or obligate up to $1,000 of his or her own money for exploratory purposes.

3.5.3. An exploratory contribution by one person may not be made in another person’s name.

3.6. Receipts.

3.6.1. Each exploratory contribution must be accompanied by a written receipt. Receipt forms will be provided by the SEC.

3.6.2. For contributions of $250 or more, the receipt must include:

3.6.2.a. The name of the participating candidate for whom the contribution is being made;

3.6.2.b. The contributor’s name, residence and mailing address;

3.6.2.c. The contributor’s business affiliation and occupation;

3.6.2.d. The amount of the contribution; and

3.6.2.e. A disclosure notifying the contributor any amount contributed counts against the $1,000 limit on contributions to any candidate for an election.

3.6.3. For contributions of less than $250, the receipt must include:

3.6.3.a. The name of the participating candidate for whom the contribution is being made;

3.6.3.b. The contributor’s name;

3.6.3.c. The amount of the contribution;

3.6.3.d. A disclosure statement notifying the contributor any amount contributed counts against the $1,000 limit on contributions to any candidate for an election; and

3.6.4. Receipts for contributions of less than $250 must also comport to the disclosure and reporting requirements of W.Va. Code §3-8-5a.

3.6.5. Receipts, expenditures and obligations shall be reported to the Secretary at the beginning of each month.

3.6.5.a. Reports shall be made electronically.

3.6.5.b. A committee may apply to the Commission for an exemption pursuant to W.Va. Code §3-8-5b(c).

3.7. Exploratory contributions in excess of $20,000 in the aggregate must be sent on the first of each month to the Commission for deposit in the Fund.

3.8. A participating candidate must comply with the restrictions on campaign contribution and expenditures in section 9 and the reporting requirements of section 11 of this rule.

3.9. A candidate who decides not to run for office shall pay to the Fund all unspent or unobligated exploratory contributions.

3.10. A candidate who fails to qualify or decides to run for office as a non-participating candidate may use unspent or unobligated exploratory contributions in accordance with articles 8 and 12, chapter 3, of the West Virginia Code.

W. Va. Code R. § 146-5-4 Declaration of Intent to Participate

4.1. Before attempting to qualify to receive public campaign financing funds, a candidate must file with the Secretary a declaration of intent on a form provided by the SEC.

4.2. The time limit for filing the declaration is:

4.3. The filing date of the declaration is the date of the postmark if mailed, and is the date delivered to the Secretary if hand-delivered or if delivered by facsimile or by electronic means.

4.4. The declaration shall contain a statement that the candidate is eligible to be placed on the ballot and, if elected, to hold the office sought.

4.5. The declaration shall contain a statement that the candidate has, and will continue to, comply with all requirements of article 12, chapter 3, of the West Virginia Code, including contributions and expenditure restrictions.

4.6. A candidate may not accept qualifying contributions before filing the declaration of intent.

W. Va. Code R. § 146-5-5 Qualifying Contributions, Requirements and Receipts

5.1. Qualifying requirements. To be eligible for public campaign financing funds, a participating candidate or his or her candidate’s committee must obtain contributions of at least $1, but not more than $100:

5.1.a. That are contributed by at least 500 West Virginia registered voters;

5.1.b. That total at least $35,000;

5.1.c. That total no more than $50,000; and

5.1.d. At least 10% of the total number of voters contributing must be registered to vote in each Congressional District.

5.1.d.1. Example: A candidate obtains 650 qualifying contributions. A minimum of 65 contributions must have been received from voters registered in Congressional District 1. A minimum of 65 contributions must have been received from voters registered in Congressional District 2. And, a minimum of 65 contributions must have been received from voters registered in Congressional District 3.

5.2. Contributions in excess of $50,000 must be given to the Fund at the first of each month. Monies paid to the Fund, as required by any section of this rule, will not be refunded to the candidate should the candidate later fail to qualify for public financing.

5.3. Contributions made prior to the filing of the declaration of intent are not qualifying contributions and will be treated as exploratory contributions.

5.4. Receipts. All contributions must be acknowledged by a receipt, on forms provided by the SEC, which includes each of the following:

5.4.a. The printed name of the candidate for whom the contribution is being made;

5.4.b. The signature of the person who collected the contribution;

5.4.c. The contributor’s printed name, signature, street address and zip code;

5.4.d. The amount of the contribution;

5.4.e. The date of the contribution;

5.4.f. The Congressional District in which the contributor is registered to vote;

5.4.g. Additionally, for contributions of $25 or more, the contributor’s phone number, occupation and name of employer; and,

5.4.h. A statement above the contributor’s signature confirming the contributor understands the purpose of the contribution is to assist the participating candidate in obtaining public campaign financing funds, the contribution was made without coercion, and the contributor has not been reimbursed, received or promised anything of value for making the contribution.

5.5. A contribution is not a qualifying contribution unless one copy of the receipt has been provided to the contributor, one copy has been retained by the candidate and one copy has been received by the Secretary. Receipts are filed at the beginning of each month and a final report shall be filed at the end of the qualifying period. Candidates must review the receipts for completeness and accuracy before filing with the Secretary. Persons receiving contributions without receipt are liable to the Commission for the full amount plus any penalty assessed by the Commission.

5.6. No more than one qualifying contribution, regardless of amount, may be accepted from a single individual.

5.7. Exploratory and qualifying contributions from the same individual may not exceed, in aggregate, $1,000.

5.8. A participating candidate and members of his or her family, who are registered West Virginia voters, are each eligible to make one qualifying contribution, however the participating candidate may not use any other personal funds to satisfy the qualifying contribution requirements.

5.9. A participating candidate must comply with the restrictions on campaign contributions and expenditures in section 9 and the reporting requirements of section 11 of this rule.

5.10. A candidate who decides not to run for office shall pay to the Fund all unspent or unobligated qualifying contributions.

5.11. A candidate who fails to qualify or decides to run for office as a non-participating candidate may use unspent or unobligated qualifying contributions in accordance with articles 8 and 12, chapter 3, of the West Virginia Code.

W. Va. Code R. § 146-5-6 Certification of Candidates

6.1. After collecting sufficient numbers and amounts of qualifying contributions, and no later than two business days after the close of the qualifying period, a candidate who desires to apply for public financing funds shall file an Application for Certification with the Secretary.

6.2. The Application for Certification must contain a sworn statement by the candidate that he or she has complied with, and will continue to comply with, all provisions of article 12 and that the candidate is eligible to hold the office of Justice of the West Virginia Supreme Court of Appeals.

6.3. The Secretary shall record the filing so that the filing is available to the general public.

6.4. The Secretary shall:

6.4.a. Confirm the number and amounts of qualifying contributions;

6.4.b. Determine whether any challenges have been filed; and

6.4.c. Notify the SEC of the findings.

6.5. The SEC shall resolve any pending challenges to contributions according to the provisions of section seven of this rule.

6.6. The SEC shall review the Application for Certification and determines if:

6.6.a. The candidate has signed and filed Declaration of Intent Form required by W.Va. Code §3-12-7;

6.6.b. The candidate has obtained the required number and amounts of qualifying contributions;

6.6.c. The candidate has complied with exploratory and qualifying contribution restrictions;

6.6.d. The contribution receipts contain all necessary information;

6.6.e. The candidate is eligible, as provided by W.Va. Code §3-5-9, to appear on the primary or non-partisan judicial election ballot;

6.6.e. The candidate has met all other requirements of this article, including, but not limited to, that all expenditures, obligations, contributions and receipts have been reported to the Secretary as required by sections 8, 9 and 13 of article 12.

6.7. SEC Determination of Candidate Eligibility.

6.7.a. The SEC must process applications in the order they are received.

6.7.b. The SEC reviews the Application for Certification for all necessary information required by this section.

6.7.c. The SEC reviews the Candidate Certificate of Announcement (W.Va. Code §3-5-7) for eligibility.

6.8. The SEC uses verification and sampling techniques adopted by the SEC to test the qualifying contributions for validity.

6.9. The SEC must rule on an Application for Certification within:

6.9.a. Three business days of candidate making final report of qualifying contributions per W.Va. Code §3-12-9(f);

6.9.b. Six business days after candidate submits substitute qualifying contributions if necessitated by a successful challenge to a contribution.

6.10. The Commission shall notify all candidates for Justice of the West Virginia Supreme Court of Appeals of its determination within five business days.

6.10.a. If the SEC determines that the candidate has met all requirements for eligibility for the office and for the public campaign financing funds, the SEC will immediately proceed to the payments procedure of section 8 of this rule.

6.10.b. If the SEC determines, for any reason, that the candidate fails to meet the requirements, a notice of denial, and the reasons for the denial, shall be provided immediately to the candidate.

6.11. Revocation of Certification.

6.11.a. A candidate who violates any of the provisions of this article may have his or her certification and receipt of public campaign financing funds revoked by the SEC.

6.11.b. The SEC will schedule a meeting to review any report or suggestion of a violation which may be cause for revocation.

6.11.c. The candidate will be provided with a notice of the matter under review and the date and time of the meeting. A candidate may attend in person or by telephone.

6.11.d. A candidate whose certification has been revoked by the Commission for violating any provision of this article must repay to the Fund all moneys received from the Fund.

6.11.d.1. The SEC shall give written notice to the candidate of the revocation and the amount that must be repaid.

6.11.d.2. The candidate must repay the funds received within two business days of receipt of the notice. In cases where the candidate cannot immediately repay the funds received, the Commission may negotiate a repayment schedule.

W. Va. Code R. § 146-5-7 Challenges to the Validity of a Contribution

7.1. Any person may challenge the validity of any qualifying contribution.

7.2. A challenge is to be filed on a form provided by the SEC providing:

7.2.a. Name, mailing address, phone number;

7.2.b. Signature of challenger;

7.2.c. Identity of receipt challenged; and

7.2.d. Reason for challenge;

7.3. The challenger should attach any relevant evidence, affidavits, or notarized statements to the form. Challenge forms must be filed with, and received by, the Secretary within two business days after the close of the qualifying period or the filing of a candidate’s Application for Certification, whichever is earlier.

7.4. If the SEC determines the candidate has sufficient numbers and amounts of non-challenged contributions to meet requirements, then challenge(s) is(are) dismissed.

7.5. The SEC must determine by the end of next business day whether the challenge is sustained and notify the candidate and challenger.

7.6. If the challenge is sustained, the candidate has five business days to provide a replacement contribution.

7.7. Any replacement contribution receipt must be filed electronically with the Secretary. Replacement contributions may be collected outside the time period allowed for the collection of regular contributions, but must be collected within five business days following the filing of a challenge.

7.8. A replacement contribution is subject to challenge within two business days of filing.

W. Va. Code R. § 146-5-8 Payment Procedures, Schedules and Amounts

8.1. General. This section provides the procedures by which payment amounts are determined and payment delivery is made.

8.2. Electronic transfer. A candidate who desires to receive payment from the Fund by electronic transfer must provide on the Application for Certification sufficient information and authorization for the State Treasurer to transfer payment to the candidate’s campaign depository account.

8.3. Change of election status from uncontested to contested. In an uncontested election, no monies are allocated from the fund. If, due to other candidates’ later filing for the office, the election becomes contested, a payment to the certified candidate will be made in the amount specified in section 8.6.b of this rule. The payment will be made within two business days of the SEC receiving information of the changed nature of the election.

8.4. Order of payment. When more than one candidate qualifies for payments on the same day, then payment will be made to all such candidates on the same day.

8.5. Pro rata payments. If, at the time any payment is due, there is an insufficient balance to make full payment to all entitled candidates, the following procedure shall be followed:

8.5.a. The SEC will determine the amount of funds available;

8.5.b. The SEC will determine when the next deposit may be reasonably expected, and the amount of that deposit;

8.5.c. The SEC will determine the amount of administrative expenses due until the next deposit and will subtract the anticipated administrative expenses amount from the current Fund balance;

8.5.d. The SEC will then divide the difference equally among all entitled candidates and authorize payments in the pro rata amounts.

8.5.e. Candidates receiving reduced payments due to insufficient funds are permitted to solicit and receive campaign contributions, as permitted by article 8, chapter 3, of the West Virginia Code, but total contributions may not exceed the difference between the amount paid and the amount that would have been due had full payment been possible. Excess contributions will be paid to the Fund.

8.6. Payment amounts.

8.6.a. For an uncontested election, no monies are allotted from the fund. The candidate in an uncontested election may expend qualifying contributions which did not exceed $50,000.

8.6.b. The non-partisan judicial election payment amount for a contested election is $525,000 less the amount of qualifying contributions raised by the candidate.

8.7. Payment schedules.

8.7.a. The SEC will submit paperwork to the State Auditor to ensure payment of the non-partisan election payment within two working days of certification of the candidate by the SEC.

8.8. Payment issuance procedure.

8.8.a. On the same business day as the SEC determines that any candidate is entitled to any payment provided by article 12, the SEC shall complete the paperwork required by the Auditor to initiate the Auditor’s expedited payment process.

8.8.b. On the same business day, the SEC shall deliver the paperwork to the Auditor electronically or by hand-delivery.

8.8.c. Immediately upon receipt of the paperwork from the SEC, the Auditor, in cooperation with the State Treasurer, shall issue a check, or an electronic deposit if elected by the candidate.

8.8.d. All procedural steps shall be completed by the responsible agencies and persons in such manner so as to ensure payment to the candidate no later than two working days from the determination of the SEC.

W. Va. Code R. § 146-5-9 Restrictions on Campaign Contributions and Expenditures

9.1. During the qualifying period a participating candidate may spend or obligate only that amount which he or she has collected in exploratory and qualifying contributions.

9.2. At the end of the qualifying period, a certified candidate may spend or obligate any unspent exploratory or qualifying contributions and the moneys he or she receives from the Fund.

9.3. A participating or certified candidate may expend exploratory and qualifying contributions and money from the Fund only for lawful election expenses as provided W.Va. Code §3-8-9.

9.4. Moneys distributed from the Fund may be expended only during the non-partisan judicial election campaign periods for which the funds were dispersed.

9.5. Money from the Fund may not be used:

9.5.a. In violation of law;

9.5.b. To repay any personal, family or business loans, expenditures or debts; or

9.5.c. To help any other candidate.

9.6. A certified candidate must return to the Fund any unspent and unobligated exploratory contributions, qualifying contributions or moneys received from the Fund within forty-eight hours after he or she ceases to be certified or otherwise ceases to be a candidate.

9.7. A certified candidate who remains certified through the non-partisan judicial election campaign period shall pay to the Fund, within five business days after the non-partisan judicial election, any unspent or unobligated public campaign financing funds.

9.8. A candidate who decides not to run for office shall pay to the Fund all unspent or unobligated exploratory and qualifying contributions.

9.9. A candidate who decides to run for office as a non-participating candidate may use unspent or unobligated exploratory and qualifying contributions in accordance with articles 8 and 12, Chapter 3, of the West Virginia Code.

9.10. A candidate may not mingle public campaign financing funds in the same bank account with his or her personal funds.

W. Va. Code R. § 146-5-10 Withdrawal from Participation

10.1. A candidate who wants to withdraw from being a certified candidate and become a nonparticipating candidate may at any time file an Application for Withdrawal from Participation, on a form provided by the SEC, with the Commission.

10.2. No certified candidate may withdraw until he or she has repaid all moneys received from the Fund unless the Commission has waived the repayment requirement due to exceptional circumstances.

10.3. If a candidate seeks to avoid repayment of all monies received, the candidate shall explain on the Application for Withdrawal from Participation the circumstances which justify a waiver of the repayment requirement.

10.4. Upon receiving an Application for Withdrawal the Commission shall meet and make a determination within three business days.

10.5. The Commission shall consider Applications for Withdrawal on a case-by-case basis to determine the sufficiency of the reason for withdrawal.

10.6. The Commission may assess a penalty not to exceed $10,000 against any candidate who withdraws without approval from the Commission.

W. Va. Code R. § 146-5-11 Reporting Requirements for Participating and Certified Candidates

11.1. Participating candidates must comply with the provisions of this section in addition to any reporting requirements of article 8, chapter 3 of the West Virginia Code.

11.2. A certified candidate or his or her financial agent shall file periodic financial statements in accordance with W. Va. Code §3-8-5 on forms approved by the Secretary.

11.3. Monthly reports. During the exploratory and qualifying periods, a participating candidate or his or her financial agent must submit, on the first of each month, a report of all exploratory and qualifying contributions along with their receipts and an accounting of all expenditures and obligations received during the immediately preceding month.

11.3.a. The reports shall be on forms or in a format prescribed by the Secretary.

11.3.b. The reports shall be filed electronically unless a hardship exemption has been granted pursuant to W. Va. Code §3-8-5b(c).

11.4. Final report of exploratory and qualifying contributions. By two business days after the close of the qualifying period, a participating candidate must report to the Secretary on appropriate forms a summary of:

11.4.a. All exploratory contributions received and funds expended or obligated during the exploratory period together with copies of any receipts not previously submitted for exploratory contributions; and

11.4.b. All qualifying contributions received and funds expended or obligated during the qualifying period together with copies of any receipts not previously submitted for qualifying contributions.

W. Va. Code R. § 146-5-12 Criminal Penalties

12.1. A participating or certified candidate is guilty of a misdemeanor and, upon conviction, shall be fined not less than $50 nor more than $500, or confined in jail for up to thirty days or both for knowingly doing any of the following:

12.1.a. Personally or through his or her candidate’s committee, accepting contributions or benefits in excess of what article 12 allows;

12.1.b. Spending or obligating funds in excess of the public campaign funding to which he or she is entitled; or

12.1.c. Using benefits or funds for a purpose other than those permitted under article 12.

12.2. A participating or certified candidate is guilty of a misdemeanor and, upon conviction, shall be fined not less than $1,000 nor more than $10,000, or confined to jail for up to one year or both for the following violations:

12.2.a. Personally or through his or her candidate’s committee or financial agent, providing false information to the Secretary or the SEC;

12.2.b. Concealing or withholding information from Secretary or SEC.

12.3. The SEC, upon receipt of information that suggests a violation may have occurred, shall cause the allegations or suggestions to be investigated by appropriate employees of the Secretary.

12.3.a. The participating candidate will be given notice of the issues, allegations, and facts being investigated and will be permitted an opportunity to respond.

12.3.b. At the conclusion of the investigation, a confidential report will be submitted to the SEC.

12.3.c. The SEC will review the report in executive session and will determine, by majority vote, whether to recommend prosecution.

12.4. If a determination is made to recommend prosecution, a report will be prepared and presented to the prosecutor with appropriate jurisdiction.

12.5. All investigations and reports, and individuals involved, are subject to the non-disclosure provisions of W. Va. Code §3-8-8(i).

W. Va. Code R. § 146-5-13 Civil Penalties

13.1. A participating or certified candidate is subject to civil penalties if the candidate, or the candidate’s committee or financial agent:

13.1.a. Accepts contributions from a private source in violation of the provisions of article 12; or

13.1.b. Spends or obligates to spend more than the amount of public financing money he or she is eligible to receive from the Fund.

13.2. In addition to any other penalties imposed by law, the SEC may impose a penalty of $100 per day for a violation of any reporting requirement.

13.3. The SEC may consider invoking civil penalties based upon information:

13.3.a. Obtained from reports required by the West Virginia Code and this rule;

13.3.b. Submitted by candidates or other individuals.

13.4. The SEC, upon receipt of information or a report suggesting a violation identified in sections 15.1 and 15.2 above, will schedule a meeting to determine what penalty, if any, will be assessed.

13.4.a. Notice of the meeting and the matters under review will be provided to the potentially violating candidate.

13.4.b. The candidate may appear at the meeting in person or by telephone.

13.5. The SEC will review the evidence and any reports provided by the Secretary and determine whether to assess a penalty based upon the following criteria:

13.5.a. If the violation was unintentional, the SEC may order the candidate to pay the Commission an amount equal to the amount of the contribution, expenditure or obligation.

13.5.b. If the violation was intentional, the SEC shall order the candidate to pay the Commission an amount equal to ten times the amount of the contribution, expenditure or obligation.

13.6. The SEC will present to the candidate a written notice of any civil fine assessment.

13.7. If the candidate fails to fully pay any civil penalty within seven days of receipt of the written notice, the SEC may order the candidate to pay an amount equal to three times the amount that should have been paid.

13.8. A candidate and the candidate’s campaign account are jointly and severally liable for the payment of any penalty imposed pursuant to this section.

13.9. Any penalties collected by the SEC shall be deposited into the Fund.

W. Va. Code R. § 146-5-14 Determinations by SEC; Notice of Meetings; Appeal Process

14.1. Meetings required by article 12 to be conducted by the Commission are not subject to the public notice and open meeting requirements of chapter 6, article 9A, of the West Virginia Code.

Before conducting any meeting that may result in an adverse impact upon any participating or certified candidate, the Commission will give notice to the potentially affected candidates. The notice does not have to comply with the requirements of Chapter 6, article 9A of the West Virginia Code.

14.2. The SEC shall provide public notice of any determination it makes which impacts a candidate’s eligibility to receive funds pursuant to the provisions of article 12.

14.3. The determination of any issue before the Commission is the final administrative determination.

14.4. Any person adversely affected by a determination of the Commission under the provisions of article 12 may appeal that determination to the circuit court of Kanawha County.

Series 06 Rules of Procedure for Appeals from Denial of Certificate of Authorization to Print Ballots

W. Va. Code R. § 146-6-1 General

1.1. Scope. -- This procedural rule establishes the general procedures for appeals to the State Election Commission from denial, suspension or revocation, by the Secretary of State, of a certificate of authorization to print ballots used in West Virginia elections.

1.2. Authority. -- W. Va. Code §§ 3-1A-5 and 3-1-21a

1.3. Filing Date. – July 30, 2015.

1.4. Effective Date. -- September 1, 2015.

W. Va. Code R. § 146-6-2 Definitions

2.1. “File” means submit in person, or by mail, email, or fax. The date of filing will be the date delivered in person, by email, or fax and the date of postmark if mailed.

2.2. “Hearing” means a proceeding conducted by a hearing officer convened for the purpose of taking testimony, considering arguments, and making to the State Election Commission a recommended decision on an appeal by a vendor denied authorization to print ballots, or by a vendor whose authorization has been revoked or suspended.

2.3. “Hearing Officer” means a person selected by the Secretary of State to conduct the appeal hearing and issue a proposed Order, with findings of fact and conclusions of law, resolving the appeal

2.4. “Secretary” means the Office of the Secretary of State.

2.5. “SEC” means the State Election Commission.

2.6. “Vendor” means any person, firm, or group seeking or holding authorization issued by the Secretary of State to print ballots for any election held in West Virginia.

W. Va. Code R. § 146-6-3 Notice of Appeal Following Denial, Suspension or Revocation of Certificate of Authority

3.1. A determination by the Secretary, pursuant to W.Va. Code § 3-1-21a, to deny an application for certificate of authority to print ballots, or suspend or revoke such authority, shall be mailed to the vendor by certified mail, return receipt requested.

3.2. The vendor may appeal the Secretary’s denial to the SEC.

3.3. The appeal must be in writing and submitted to the Secretary.

3.4. The appeal must be received by the Secretary within sixty (60) days from the date the notice of suspension or revocation is mailed to the vendor by the Secretary.

W. Va. Code R. § 146-6-4 Scheduling Appeal Hearing; Time for filing written arguments and evidence

4.1. The Secretary shall notify the SEC and schedule a date and time to hear the appeal of the vendor.

4.2. The Secretary shall select a Hearing Officer and shall schedule a hearing to be held within sixty (60) days from receipt of the appeal by the Secretary.

4.3. Notice of the hearing date and time shall be provided to the vendor at least thirty days before the date of the hearing.

4.3. The Hearing Officer may schedule a date in advance of the hearing by which the vendor must file any written arguments, citations of authority, or documentary evidence to be considered by the hearing officer. If no scheduling order is issued by the Hearing Officer, then all matters to be considered must be submitted no later than the hearing.

W. Va. Code R. § 146-6-5 Conduct of Hearing; Legal Representation; Continuance

5.1. The hearing may be continued, and rescheduled, for good cause as determined by the Hearing Officer.

5.2. The vendor may be represented by legal counsel. The SEC may be represented by the Attorney General. Members of the SEC may attend the hearing and may ask questions through their counsel.

5.3. The vendor may present testimony under oath and argument for the consideration of the SEC. The SEC, or individual members, may question any witness or presenter through counsel.

5.4. The Hearing Officer may question any witness or presenter and may require the presence of staff of the Secretary to answer questions and address matters that may arise during the hearing.

5.5. The vendor may submit proposed findings of fact and conclusions of law at the hearing or at any post-hearing time permitted by the hearing officer.

5.6. The hearing shall be recorded, but only transcribed if an appeal from the final order is made or if requested by the vendor. The vendor is responsible for the cost of a requested transcription.

W. Va. Code R. § 146-6-6 Orders; Content; Appeal

6.1. The Hearing Officer shall file with the Secretary a proposed Order, including findings of fact and conclusions of law, resolving the appeal no later than fifteen days after the conclusion of the hearing or the expiration of any time for post-hearing filings, whichever is later.

6.2. The SEC shall hold a meeting within fifteen days of receipt of the proposed Order and, by a majority vote of a quorum of the SEC membership, shall either adopt the proposed Order or direct the writing of a different Order.

6.3. Every final order entered by the SEC shall be made pursuant to the provisions of W. Va. Code §29A-5-3. The final order need only be signed by one member, as designated by vote of the SEC.

6.4. An appeal from any final order entered in accordance with these regulations shall be in accordance with the provisions of W. Va. Code §29A-5-4.

W. Va. Code R. § 146-6-7 Severability

7.1. If any provision of these rules or the application thereof to any person or circumstance shall be held invalid, such invalidity thereof shall not affect the provision or application of these regulations which can be given effect without the invalid provision or application and to this end the provisions of these regulations are declared to be severable.

Series 07 Application and Approval Process for Secretary of State Expenditures from the County Assistance Voting Equipment Fund

W. Va. Code R. § 146-7-1 General

1.1. Scope. -- This Rule provides the criteria governing the application and approval process for these expenditures by the Secretary of State from the County Assistance Voting Equipment Fund, for the purchase of election equipment or security upgrades that further the administration of federal elections held in the state, where such expenditures are limited to election equipment, systems, infrastructure, physical and cyber security upgrades, or any other lawful purpose permitted by the pertinent appropriation from Congress.

1.2. Authority. -- W. Va. Code § 3-1-48(m).

1.3. Filing Date. -- May 8, 2024.

1.4. Effective Date. -- May 8, 2024.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect August 1, 2029.

W. Va. Code R. § 146-7-2 Definitions

2.1. “Approved” means authorization granted by the State Election Commission or the U.S. Election Assistance Commission.

2.2. “Election system” means any mechanical device, hardware, software, or combination thereof designed to work or operate in conjunction with, secure, maintain, or improve any part of the voting process or systems, including but not limited to accessible electronic voting systems and e-pollbooks.

2.3. “Electronic pollbook” or “e-pollbook” means an approved electronic device containing voter registration information for the purpose of facilitating voting at the precinct.

2.4. “Electronic voting system” means one or more approved accessible integrated devices that utilize an electronic component for the following functions: ballot presentation, vote capture, vote recording, or vote tabulation.

2.5. “Fund” means the County Assistance Voting Equipment Fund bearing the designation “1615” by the State.

2.6. “Grant” means a sum of money authorized for disbursement by the State Election Commission to a county subgrantee from the Fund to improve the administration of elections for Federal office, including to enhance election technology and make election security improvements, such as electronic voting system upgrades, cybersecurity enhancements, physical security upgrades, and e-pollbooks.

2.7. “HAVA” means the Help America Vote Act, 52 U.S.C. §20901, et seq.

2.8. “HAVA Grant Board” means a body authorized by W. Va. Code §3-1-48 for the purpose of making recommendations to the State Election Commission to issue grants from the Fund consistent with this Rule and 153 CSR 10.

2.9. “Physical security” means equipment and techniques employed to securely administer a federal election, such as to protect hardware, software, networks and data from physical actions, tampering, and events that could cause loss or damage to election systems due to burglary, theft, vandalism, terrorism, fire, flood, or natural disaster. The term also includes the addition of necessary and reasonable resources and staff to protect the integrity of a federal election, such as unanticipated increases in election materials and supplies, cleaning or sanitization supplies, temporary staff, and other items or expenditures permitted by federal law.

W. Va. Code R. § 146-7-3 Secretary of State Application for Grant Funding for the Purchase of Election Equipment or Security Upgrades

3.1. The Secretary of State may apply to the State Election Commission for approval of a grant from the Fund to purchase of election equipment or security upgrades that further the administration of federal elections held in West Virginia: Provided, that such expenditures shall be limited to election equipment, systems, infrastructure, physical and cyber security upgrades, or any other lawful purpose permitted by the pertinent appropriation from Congress.

3.2. The Secretary of State’s request for approval to the State Election Commission shall be by written application, which shall include the following information:

3.2.1. The amount of grant money requested;

3.2.2. The proposed use of funds, including type of equipment, software, and services to be purchased and the quantity thereof, if applicable;

3.2.3. A description of the circumstances or justifications that require the Secretary of State, rather than individual counties, to seek a grant from the Fund for the proposed use(s); and

3.2.4. A statement that the Secretary of State has the authority to make the proposed purchases through lawful purchasing procedures; and

3.3. Upon receipt of an application from the Secretary of State, the State Election Commission shall refer the application to the HAVA Grant Board for its review and recommendation.

3.4. The HAVA Grant Board shall convene no later than 30 days after receipt of a referral from the State Election Commission for the purpose of reviewing the application.

3.4.1. The Director of the Elections Division of the Secretary of State’s office shall not participate in any deliberations concerning an application by the Secretary of State, and shall be prohibited from participating in the vote or other formal decision regarding the application.

3.4.2. The Vice Chair of the HAVA Grant Board shall conduct the meeting. If no Vice Chair has been previously appointed, the HAVA Grant Board shall appoint a Chair for the purposes of conducting the meeting: Provided, that nothing in this Rule shall remove the authority of the Director of the Elections Division from serving as Chairperson of the HAVA Grant Board for all other applications by counties for grants from the Fund under 153 CSR 10.

3.4.3. At the conclusion of the meeting, the HAVA Grant Board shall issue its written recommendation to the State Election Commission.

3.5. No later than 10 days after the HAVA Grant Board issues its final recommendation, the State Election Commission shall meet to consider the recommendations of the HAVA Grant Board. The State Election Commission shall review and decide upon the recommendations of the HAVA Grant Board. Unless the decision of the HAVA Grant Board is arbitrary and capricious, the recommendations should be adopted by the State Election Commission: Provided, That if the Secretary of State’s application is denied by the HAVA Grant Board, the Secretary of State or designee may appear and present good cause to the State Election Commission as to why their application should be granted.

3.6. Grants may be approved by the State Election Commission, upon a recommendation by the HAVA Grant Board, only for the purchase of election equipment or security upgrades that further the administration of federal elections held in the state, where such expenditures are limited to election equipment, systems, infrastructure, physical and cyber security upgrades, or any other lawful purpose permitted by the pertinent appropriation from Congress. Furthermore, the State Election Commission shall consider any outstanding applications for grants by counties from the Fund, especially where approval of Secretary of State’s application would result in a denial of a county application due to lack of sufficient funds.

3.7. The decision of the State Election Commission shall be full and final.