Ethics Advisory Opinions
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Index of Ethics Advisory Opinions by Topic, click here:
AO INDEX.
Numbers marked
NP refer to Advisory Opinions which do not have precedential effect. They are not available for viewing on this website. Numbers marked
void mean no opinion was issued because the request was withdrawn.
Index of Ethics Opinions by Topic
(Indexed Opinions start with 2005-02)
Conflict of Interest
Confidential Information
Double Dipping
Employment
Endorsements
Financial Disclosure
Gifts – Acceptance and Solicitation
Higher Education
Lobbying
Name/Likeness Use
Nepotism
Persons Covered by the Act
Private Gain
Property Purchase Restrictions
Public Contracts
Public Contract Exemptions
Revolving Door
Solicitation of Business
Voting and Recusal
W. Va. Code § 61-10-15 County Officers (Criminal Provision)
CONFLICT OF INTEREST
2005-11 State Official
No Ethics Act provision prohibits state elected official from holding appointed federal position, but State constitutional limitations may apply
2006-01 County Solid Waste Authority
Rewards program for law enforcement officers reporting illegal dumps not permissible.
2006-03 State Administrative Law Judge
Not prohibited from conducting outside law practice
May not represent individuals he regulates
May not use state resources for private business activities
2006-04 County Employee
Spouse’s work for developer does not bar him from providing support services to county agencies considering developer’s permit applications
2006-05 Mayor--Overruled by AO 2016-04
May not serve as Mayor and payroll clerk where Mayor supervises all town employees
2006-06 State Legislator
May not use position to influence appropriations to non-profit employer
2007-04 Assistant Attorney General
May send letter at own expense to clients he represented as government attorney advising of his move to private practice
2007-05 County Commissioner
May provide information on web site for law practice which relates to his role as an elected Commissioner
2007-07 Mayor
Appointment of Mayor’s son as City Attorney would create “inescapable” conflict of interest
2007-13 Administrative Law Judge
Permitted to engage in outside practice of law, provided certain limitations are followed
2011-01 County Council Member
County Council Member’s business may appraise estates so long she recuses herself from any matters coming before the County Council involving the probate of any estate her business has appraised.
County Council Member’s business may not appraise any estates over which the Sheriff has been appointed by the County Council as the administrator.
County Council Member’s business should be removed from the Fiduciary Supervisor’s list of available appraisers.
County Council Member may not appear, as a representative or witness, before the Council, either about the appraised value, or the amount of her compensation.
County Council Member may not accept protected persons from the Sheriff for placement in her nursing home, absent a contract exemption for the Sheriff.
2011-02 County Council Member
County Council Member’s business may contract with a multi-county Conservation District under the following circumstances:
(1) the contract is let via a sealed bid process;
(2) the project is not funded by County money;
(3) the project is not the subject of an agreement between the District and the County including any agreement for flood control as authorized by W.Va. Code § 19-21A-13 ; and
(4) the affected Member recuses himself from the District’s appropriation request or any request for funding.
Opinion does not authorize the employment of County Commissioners or County Council Members, their spouses or dependents, by Conservation Districts in the County where they serve
2011-09 County Hospital
• County Hospital may accept unsolicited offer of equipment and related services from appointed board member.
• County Hospital may accept unsolicited offer of real property from appointed board member so long as: there are no financial conditions associated with the property transfer; and the body notifies the public of the member’s offer and allows other property owners to offer their property.
• County Hospital may accept unsolicited offer of real property from appointed board member even if there are unresolved issues requiring mitigation (e.g. environmental hazards, or outstanding liens), but only if an independent evaluation determines that the overriding benefit is to the governing body rather than the donor and it receives permission from the Ethics Commission.
Modifies AO 95-09 by clarifying that the donation (as opposed to the leasing) of property does not constitute a public contract.
2012-17 Presiding Officer of a house of West Virginia Legislature
• May not be retained to provide legal services to an Association which is actively engaged in lobbying Legislature on behalf of its members who are public employees.
• Proposed employment contract presents an inescapable conflict, given the unique position held and power wielded by the presiding officer.
• Access to confidential information may have chilling effect on other legislators, if proposed employment contract permitted.
• Public may perceive that Association has hired him because of his unique ability to influence legislation.
• Other Associations that do not employee a high ranking member of the Legislature may believe that they are at a disadvantage in the legislative process.
Opinion limited to Presiding Officers of houses of West Virginia Legislature.
2012-19 Member of the Legislature
• May be retained to provide consulting services to Public University during and after his term of office.
• Conflict of interest cured by his removal from potentially overlapping committees.
• Must consult with Presiding Officer of his house and abide by appropriate legislative voting rule.
• May not use influence of legislative position to attempt to affect the actions of University personnel to enhance his contractual benefits; introduce, sponsor or advocate legislation to benefit the University in any way; influence either the State’s distribution of federal grant money or State funds to the University for any purpose, not just those related to his consulting contract; or influence the appropriation of public funds to benefit the University in any way.
2013-02 County Board of Education
• School coach may privately employ School Principal.
• Principal may not evaluate coach who is his private employer, nor make recommendations to BOE concerning his subordinate employee/employer.
• Assistant Principal may evaluate coach so long as Superintendent or designee, who is not Principal’s subordinate, reviews evaluation.
• Prohibition against direct solicitation of business from subordinate relates to commercial transactions such as sale of goods or services, not employment.
2013-09 County Prosecutor
• Ethics Act does not prohibit Assistant Prosecutor from serving as elected County Commissioner in another County, even if counties are situated in same judicial circuit.
• Assistant Prosecutor must perform County Commission duties on his own time, not during public work hours.
2013-11 State Legislator
• State Legislator may not sponsor legislation relating to issue upon which he advised a client of his private law practice prior to his election to Legislature when bill uniquely affects his client, rather than class of five or more.
• Presiding Officer determines whether to excuse Legislator from voting.
2013-16 Solid Waste Authority
• A solid waste authority may accept funds from companies it regulates, for an event with public purpose and significant public benefit, where solicitation was directed to the general public for this event.
• However, the solid waste authority may not accept funds from a company who is currently negotiating a long term land lease and potential private/public partnership with the authority.
2013-21 County Commission
• A County Commission may not employ a private attorney for civil matters (as employee, or on a contract basis) if that attorney maintains a private criminal defense practice in the same county.
• Regardless of the lack of involvement in setting the budget for the Prosecuting Attorney’s Office, an inescapable conflict is created in serving both positions simultaneously, such that both positions of attorney for county commission and private criminal defense attorney in same county, may not be held.
2013-25 Board Member of Conservation District
• A Conservation District may not reimburse landowner expenses where the provider is a member of the Conservation District Board unless the Conservation District seeks and obtains a contract exemption from the Ethics Commission.
A Conflict of interest exists where the elected Board Member of Conservation District Board, votes to approve landowners’ applications to participate in the program and receive reimbursement for lime/fertilizer, and the board member effectively provides these products and services.
• The conflict of interest may not be cured by Board Member’s recusal from voting. Further, the Board Member may not contract with another vendor to provide the services, thereby circumventing the Ethics Act.
• A Conservation District Board member’s failure to respond to an Ethics Commission’s request for additional information, and failure to timely file a Financial Disclosure Statement may constitute intentional avoidance of disclosure, constituting knowing failure, a misdemeanor under WV code §6B-2-10(c).
2013-29 NP County Surveyor, County Floodplain Manager (non-precedential)
• Generally, a County Surveyor may continue to be simultaneously employed as the County Floodplain Manager and provide private surveying services. However, here, potential private survey customers may be subject to his/her regulatory authority as County Floodplain Manager. Therefore, the County Surveyor is prohibited from performing elevation and flood plain surveys in his/her private capacity while serving as County Flood Plain Manager. He/she may continue other survey work which is unrelated to his/her position as County Floodplain Manager.
• Several limitations also apply. The County Surveyor may not perform County Floodplain Manager work on property where he/she did private survey work within preceding six months or six months thereafter. And, if he/she performed public duties on a specific property, then he/she may not do private work on that property for six months.
• He/she may not be involved as the County Floodplain Manager in matters involving the gas company which holds the lease under his/her personal house lot, or who holds an interest in his/her father’s land or mineral rights. As the sole heir to his/her father’s property, an unavoidable conflict of interest is created.
• Based on these facts, the Ethics Commission recommends that the County Commission select someone else to serve as County Floodplain Manager.
As this case presented unique facts, this opinion is not precedential. This opinion may not be relied upon by others.
2013-30 State Agency Commissioner
• The Ethics Act prohibits the Commissioner of a State Agency that promotes and regulates live dog and horse racing throughout the state from retaining a 20% ownership interest in a horse that will compete in WV. (This commissioner would be subject to regulations which he/she is charged with enforcing, creating a conflict of interest.)
• WV Code § 6B-2-5(k) states there can be no participation in rate making or licensing where the ownership interest is greater than 10%.
• WV Code § 6B-2-5(j) prohibits public servants from voting on matters in which they have a financial interest; therefore the State Agency Commissioner is prohibited from voting on matters related to horse racing.
• The Commissioner of this State Agency is privy to confidential information, and must avoid the appearance of impropriety, or unfair advantage over other horse owners.
2013-33 Elected State Official
• An Elected State Official may serve as Secretary of a local Masonic Lodge and accept an expense reimbursement stipend of $300 per month.
• None of the Elected State Official’s public duties overlap with serving as the Secretary of a local Masonic lodge.
• Both positions are permissible so long as there is no public contract involved, no regulation of the lodge by the official’s state office, and no private work during public work time or with public resources. The stipend must be unrelated to the • Elected State Official’s public position.
2013-34 Sheriff's Tax Deputy
• A Sheriff’s Tax Deputy may provide security services to residents and law enforcement throughout the state through a limited liability company with some exceptions.
• The Sheriff’s Tax Deputy is prohibited from charging fees for any goods or services that he or the LLC provides to any government agencies within the county which he/she serves. He/she may not use more than a de minimus amount of public resources for private purposes.
• WV Code § 6B-2-5(o) states there may be no solicitation of private business from subordinate public officials or public employees whom he/she has authority to direct, supervise or control.
• The Sheriff’s Tax Deputy must recuse himself/herself from handling delinquent taxpayer accounts for current or prospective customers of his/her private business.
2013-35 Housing Authority Inspector/Mayor (Conflict of Interest, Employment Restrictions, Vote)
• A Housing Authority may continue to employ a part time inspector who was recently elected Mayor of a nearby town, with limitations.
• The Mayor must recuse himself/herself from any matters regarding his Housing Authority employer.
• If the Mayor also serves as Municipal Judge, additional care must be taken when citizens under his/her authority as housing inspector appear in municipal court. • He/she must disclose the conflict, and if requested by either party, must recuse himself/herself. The Mayor will also be prohibited from presiding as municipal judge when he/she performed a housing inspection for a party within the last six months.
2013-36 County Assessor (Conflict of Interest, Public Contracts, Private Gain)
• A County Assessor may purchase office supplies from a company owned by his employee’s fiancé. (The employee has no involvement with supply purchases. The County Assessor has no financial or personal relationship with the employee or his/her fiancé.)
• WV Code § 61-10-15 is applicable to the County Assessor, but not to all county employees.
• There may be no interest in public contracts and no favoritism. The employee has no voice over purchases, and is not a “county official”. The County Assessor is a county official, but there is no Ethics Act violation because the employee has no control over purchases and the County Assessor has no personal or financial relationship with the employee or his/ her fiancé.
2013-37 Civil Service Board Member
• A Civil Service Board member may not sit on the board while he/she is employed by the Sheriff. The board member’s recusal is not appropriate. The board member may only continue sitting on the Civil Service Board if he/she resigns from employment with the Sheriff.
• Employment by a public agency constitutes a personal financial interest which prohibits a public employee from voting on matters which affect his/her employer.
• On the Civil Service board, this board member would be required to investigate the sheriff’s office and his/her coworkers, as well as review tests/training certifications to determine promotions, and judge propriety of disciplinary action; all of which equate to prohibited financial interests. (Overruled by 2013-47.)
2013-41 County Employee
• A county employee may not serve on County Commission while employed full time by the County Ambulance Authority.
• W.Va. Code §61-10-15 prohibits county officials from having an interest in public contracts. The County Commission appoints all members of the County Ambulance Authority and has authority to make contributions to the ambulance authority from general funds. If elected, the county employee would have voice, influence or control over the County Ambulance Authority who has control over his/her employment, via the Authority’s Executive Director.
2013-43 Members of County Solid Waste Authority
The individual members of a County Solid Waste Authority do not violate the Ethics Act by continuing a meeting after a member with a purported conflict of interest has refused to recuse himself/herself. Instead, the member who refuses recusal likely violates the Act.
2013-47 Town Council Members, County Employees
• Town Council members who are currently employed, or whose spouses are currently employed by the County Board of Education may vote on issues concerning property deeded to the Board of Education.
• W.Va. Code §6B-1-3(b) defines business as “any entity through which business for profit is conducted”. This definition does not include a governing body.
W.Va. Code § 6B-2-5(d) states that no elected or appointed public official or public employee or member of his/her immediate family or business with which he/she is associated may be a party to or have an interest in the profits or benefits of a contract which the official or employee may have direct authority to enter into or over which he/she may have control.
• W.Va. Code § 6B-2-5(j)(1)(A) states that public officials may not vote on a matter in which they or an immediate family member or a business with which they or an immediate family member is associated have a financial interest.
• The Ethics Commission overrules AO 2012-05, and finds that the Ethics Act does not prohibit a public official from voting on a matter with which his/her public employer has a financial interest. Further, retired employees have no financial interest. Here, a council member who is currently employed by the County Board of Education as a teacher is subject to W.Va. Code§ 61-1-15, but has no voice or control over the contract under these facts.
2013-48 State Agency Employees
A state agency may not allow its death investigators to provide contract services to the county as County Medical Examiners. Investigators would have a conflict of interest as they would be in the position of awarding contracts to one another. If this state agency is unable to find qualified candidates, it may seek a contract exemption from the Ethics Commission.
2013-50 State Agency Employees
State agency employees assigned to various Conservation Districts may participate in a state funded Agricultural Enhancement program that is administered by the Districts because they have no authority or control over these matters. However, state agency employees are cautioned not to take any action related to their own participation in the program except ministerial functions.
2013-51 Commercial Supervisor in County Assessor's Office
• A commercial supervisor in the County Assessor’s office may lease residential property in the county in which he/she is employed, because this property is not subject to his/her regulatory action.
• A commercial supervisor in the County Assessor’s office may not purchase, sell or lease commercial property in the county where he/she works, because either he/she or his/her subordinates take annual regulatory action on this property. (Personal transactions for personal homes are exceptions.)
• A commercial supervisor in the County Assessor’s office may not purchase any commercial property at property tax lien auctions. (The purchase of residential property over which he/she has no regulatory control is permissible at tax auction.)
The only exception is if a property exemption is sought and obtained from the Ethics Commission.
• Any employee of the County Assessor’s office who had the authority to select property for sale at auction and/or control the price or value thereof is prohibited from purchasing the property at auction. Employees of the County Assessor’s office may not engage in real estate transactions, including purchasing property at auction while on the public clock.
2013-52 Board President, County Ambulance Authority
• A County Ambulance Authority may purchase property from the brother of its Board President. The Board President’s brother is outside the definition of immediate family and there is no financial relationship between them. The County Ambulance Authority Board President is also not subject to restriction because he/she is a part time appointed official.
• The Board President has no financial interest, and therefore may vote on the property purchase. However, favoritism is prohibited in selecting property.
2013-53 County Board of Education
• A county Board of Education member may vote on changing the Board of Education’s financial institution to a local bank in which he/she is a shareholder. He/she holds less than 1% stock so that neither the Ethics Act or W.Va. Code § 61-10-15 prohibit the Board of Education from contracting with the bank in which the board member owns stock. Some limitations apply.
• The board member is prohibited from steering business to this bank, may not use undue influence, and still must recuse himself/herself on votes regarding the bank.
It is generally impermissible for a county official to have a pecuniary interest in a contract over which he/she has control. (W.Va. Code § 61-10-15(a))
There is a specific exception for interest in banks in W.Va. Code § 61-10-15(f), though, as long as the person recuses himself/herself from the “deliberations or ultimate determination” of the depository of funds.
2013-55 County Assessor
A County Assessor’s adult daughter may purchase property in the same county in which he/she works, as the daughter does not reside with the Assessor, and neither the Assessor nor his/her spouse has an ownership interest in the property.
The Assessor and his/her spouse may also engage in property purchase transactions in the county, if they are for personal residences. (The Deputy Assessor is authorized to assess the Assessor’s property.)
2013-58 County Commission/Regional Drug Court Team <
• A Regional Drug Court Team and its Advisory Board may contract with a County Commissioner to provide dental services to a drug court participant, with limitations.
• The contract for dental work must be let out via a sealed bid process, dental work must not be funded by or comingled with funds from the county commission, and the affected county commissioner must recuse himself/herself from any Drug Court requests for funding directed to the County Commission.
• This dental work was to be paid for from individual donations and grants, and voluntary allocation of County Commission funds did not constitute direct authority or control.
2013-59 State Licensing Board
• The Ethics Commission lacked jurisdiction to answer the question presented regarding the licensing board’s enabling legislation, and the potential conflict of interest posed by a member of the State Licensing board accepting a paid position with a private entity and that member’s ability to remain on the state licensing board.
• The state licensing board should consult the Governor’s office, which has appointing authority for state licensing board members regarding any potential conflicts of interest.
2013-60 State Licensing Board Member
A member of a state licensing board may not accept a paid position with a private entity and remain on the board. The private entity is a firm that conducts business with professionals that the state licensing board licenses and regulates. The firm contracts with professionals licensed by the state licensing board in order to provide services to participants in government programs. This state licensing board member would be simultaneously responsible for enforcing compliance with regulations over the same people which he/she represents to a private entity.
Under these facts, the public and private roles are too inextricably intertwined and present an impossible impediment to impartiality. This state licensing board member is unable to perform both positions without creating unavoidable conflict of interest and an impermissible use of public office for private gain.
2014-02 State Board Members
Are not prohibited from serving on the State Board or from voting on the applications submitted by municipalities with which they have a relationship. The Ethics Act’s definition of “business” does not include a governing body, therefore these State Board members do not have a financial interest in the municipal applications under W.Va. Code § 6B-1-3(b).
2014-04 Assistant Park Superintendent
• May serve at the same park where his/her brother has a contract to operate its marina, with limitations. A third party must investigate complaints and report these to his/her supervisor. Assistant Park Superintendent should not inspect the concessions or initiate corrective action, but should either assign another employee to do so, or do so along with another non-subordinate employee.
• Prohibition against interest in public contract is limited to “immediate family members” based on the inherent financial relationships between spouses who live together, as well as dependent children, grandchildren, and parents. By contrast, an adult sibling is not presumptively financially dependent on another sibling.
• Therefore, the contract between Assistant Park Superintendent’s brother and the state agency is not prohibited under W.Va. Code § 6B-2-5(d).
2014-05 County Board of Education
• May purchase a scoreboard from an athletic booster organization, a private, non-profit charitable organization, despite having a member who is common to both the governing body and the private organization.
• Common member to each organization is not compensated by the athletics boosters organization, has no financial relationship with the boosters organization, and is not a party to the boosters organization loan for the scoreboard.
• Common member is not required to recuse him/herself on any matters related to any contract or transaction between the governing body and the boosters. Non- profit organizations are not encompassed in the Ethics Act definition of a “business” in W.Va. Code § 6b-1-3(b).
• Neither W.Va. Code § 61-10-15 nor 6B-2-5(d)(1) prohibits the contract, as the common member does not have a personal interest in the contract, and the non-profit’s financial interest cannot be imputed to the common member by virtue of his position on the non- profit board, without evidence that he/she receives financial benefit in the transaction.
2014-08 Appointed Member of County Solid Waste Authority
• May, in his/her private capacity, bring a civil suit against the authority on whose board he/she serves, with limitations.
• Member must recuse him/herself from deliberations or votes related to his/her lawsuit, as he/she has a direct financial interest in the litigation, and is a party to the litigation. Member is further prohibited from discussing, deliberating, or voting on waste hauling certificates of convenience and necessity by the Public Service Commission, the subject matter of the lawsuit.
• Member is further prohibited from participating in the authority’s development of any plan regarding related matters, unless done as a member of a class of five or more similarly situated parties.
• Member must not use his/her public position to further his/her private interests, must not use confidential information obtained through his/her public position to further private interests, and may not informally communicate with fellow appointed members of the authority to influence voting related to the lawsuit.
2014-09 Candidate for County Board of Education
• May, if elected, be employed as a teacher for a multi-county area vocational center that services the county because the Board of Education is not the teacher’s employer.
• County board of education member is not prohibited from voting on matters related to the vocational center because he/she does not have a financial interest in the funding for the vocational center as an employee of the vocational center.
Candidate/employee does not have the requisite control in employment decisions to invoke prohibitions in WV Code § 61-10-15.
• Some conditions apply: If elected, candidate may not use his/her position on the county board of education to obtain a position at the vocational center, to promote raises or other benefits to his/herself or others, unless the class exception is applicable, and may not serve on the vocational center’s Administrative council. Candidate may not use public resources, including county board of education staff to perform private work for the vocational center.
2014-10 Members of City Council
May vote, despite being potentially affected by ward boundary adjustment.
No distinction is made between members of city council who plan to run for reelection versus those who do not. Each is voting on an issue which will impact the status of future city councils, not the current city council of which they are a part. Neither current city council member has a direct interest, financial or otherwise, in the terms of future elected officials for purposes of the Ethics Act.
2014-11 Sheriff
• May expend funds from the Sheriff’s Concealed Weapons Fund for the purpose of fitness supplies and equipment to assist the Sheriff’s deputies in meeting annual fitness requirements of the position because it falls within the Ethics Act’s definition of usual and customary duties.
• May expend funds from the Sheriff’s Concealed Weapons Fund for the purpose of paying for dry-cleaning of officers’ uniforms because the expenditure meets the Ethic Act’s definition of “the advancement of public policy goals or constituent services”.
• Expenditures from the Sheriff’s Concealed Weapons Fund are public funds, and may not be used for private gain, must be authorized expenditures, and must be related to law enforcement purposes, or the operating needs of the Sheriff’s Office.
2014-12 Sheriff
May not sell unused or surplus weapons directly to the son of a Deputy Sheriff and deposit the money into the Concealed Weapons Fund, as it would be using his public position to benefit the son of a subordinate in violation of the Act’s prohibition against use of public office for private gain, and would be an unavoidable conflict of interest.
2014-14 City Council Member/Municipal Employee
• May vote on general issues affecting municipal employees such as better working conditions, including raises, so long as there are more than five municipal employees, as well as issues affecting the overall municipal budget. He may further vote on issues directly affecting other departments which do not employ him.
• May not vote to advocate on behalf of municipal employees in his own department or deliberate on matters specific to that department unless there are five or more employees in that department.
• He must further recuse himself completely from any matters which affect him uniquely.
2014-15 State Agency
• May sell advertising to defray the cost of wellness tools on its website to assist public employees to improve their health because it falls within the Ethics Act’s definition of usual and customary duties and the advancement of public policy goals or constituent services.
• Selling such advertising does not constitute prohibited endorsement of a vendor or product, and so the state agency must include a disclaimer with the advertisement making clear that the appearance of the advertising should not be construed as endorsement.
• Must allow equal access for advertising to all businesses or classes of businesses related to health and wellness.
2014-17 County Sheriff
Does not have a prohibited conflict of interest if his father-in-law bids on or is awarded a contract with the Sheriff’s office. The definition of “immediate family member” does not include father-in-law, and there is no financial relationship between the Sheriff and his father-in-law, so there is no prohibited financial interest.
2014-18 Retired State Agency Employee
May accept a new position with a private consulting firm which contracts with his/her former employer, with limitations. The retired employee may not improperly disclose confidential information or use it for his/her own or another’s personal interests. Revolving door restrictions do not apply, because the retired employee’s state agency position was not created by law, was not appointed by the governor, and was not either the position of attorney or accountant. If the retired employee must appear before his/her former agency, he/she must first seek the agency’s approval to do so.
2014-19 State Regulatory Agency
May employ someone who owns stock in a regulated company, and whose spouse is employed in the regulated industry, as its Division Director. Where stock ownership was less than 5%, the director would file Financial Disclosure Statements, would have no authority over contracts, and regulation would be pursuant to statutory formula, employment was permissible. Such employment is not prohibited under revolving door rules, nor would such employment create an inescapable conflict.
2014-22 State Death Investigator
State death investigator may provide services to his State agency when a co-worker selects him by strict adherence to the rotation list without subjective input and favoritism by the co-worker.
2014-23 County Commissioners
Board of Education (BOE) employees and retirees and their spouses may serve as county commissioners and may vote on funding requests made by the BOE.
2014-24 County Positions
Executive director of county economic development authority (EDA) may be employed by the EDA and serve as a member of the board of the county public service district.
2014-25 County Positions
Board member of county economic development authority (EDA) may serve as a common board member to both the EDA and public service district (PSD), and the Requester may vote on any matters between the EDA and the PSD.
2015-01 Legislators
Legislator may continue his employment during the Legislative session as an attorney with a company that employs registered lobbyists when the legal services he provides are unrelated to the company’s lobbying activities.
2015-03 State Employees
State employee who is charged with oversight of safety and training for a statewide industry may offer private safety classes to individuals because his public duties are not regulatory, but ministerial.
2015-06 State Ratings Officer
May conduct federal rating examinations of her spouse’s region based on the specific facts presented. If those ratings affect her spouse in any way, then a different employee should conduct the examinations.
2015-10 A City Code Enforcement Officer
Is prohibited from acquiring property within the city which he/she regulates without first obtaining a contract exemption from the Ethics Commission.
2015-16 County Building Commission Member
A County Building Commission member may purchase and develop property owned and managed by a County Urban Renewal Authority without violating W. Va. Code §§ 6B-2-5(d)(1), 6B-2-5(b) or 61-10-15.
2016-07 State Board Member
A State Board Member may testify as an expert witness in a civil action against a defendant that has previously appeared before the State Board when the testimony would not be based upon test results or other information gained from the Board Member’s public position. The Board Member may not improperly use his position on the Board for his personal benefit, a plaintiff’s benefit or to the detriment of a defendant who may appear before the Board as this would result in improper private gain. The Board Member is prohibited from knowingly and improperly disclosing any confidential information acquired in the course of his official duties and from using such information to further his personal interests or the interests of another person.
2017-09 Cabinet Secretary
No provision of the Ethics Act per se prohibits Requester from owning 20 percent of non-voting Class B stock in a health care consulting firm or from being the sole member of a limited liability company that owns the building leased by the health care consulting firm.
The Ethics Commission cannot speculate as to what future acts the Requester could take in his official capacity which might violate the Ethics Act.
2017-12 A County Commissioner
Neither the Ethics Act nor W. Va. Code § 61-10-15 prohibits an appointed parks board member from serving as an uncompensated member of a Convention and Vistior's Bureau ("CVB") board or from serving as the president of the parks board and the CVB board at the same time. Nothing in the Ethics Act or W. Va. Code § 61-10-15 per se prohibits the president of a chamber of commerce from also serving as the president of a parks board and as the president of a CVB board. If the president of the chamber of commerce is compensated for his or her service on the chamber's board, then additional limitations may apply.
2017-17 A County Planning Commission Member
County planning commission members may not attend public hearings before the planning commission on which they serve on projects with which they are associated. They may, however, pursuant to a specific exception in the Ethics Act and related Code provision, communicate with planning commission staff outside of meetings and public hearings regarding the projects.
2017-18 A Cabinet Secretary
A Cabinet Secretary’s former stock ownership interest in a consulting firm does not require him to remove himself from matters involving the firm or its clients.
W. Va Code § 6B-2-5(h) does not prohibit a Cabinet Secretary’s lease of real property to a firm which has or may have regulatory matters before his department as the lease predates his appointment to public office and is being continued under its original terms. He may not use his public office to unlawfully benefit the firm and must seek a Property Exemption from the Ethics Commission if he seeks to make a material change, such as a rent increase, to the terms of the lease.
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CONFIDENTIAL INFORMATION back to top
2012-17 Presiding Officer of a house of West Virginia Legislature
• May not be retained to provide legal services to an Association which is actively engaged in lobbying Legislature on behalf of its members who are public employees.
• Proposed employment contract presents an inescapable conflict, given the unique position held and power wielded by the presiding officer.
Access to confidential information may have chilling effect on other legislators, if proposed employment contract permitted.
• Public may perceive that Association has hired him because of his unique ability to influence legislation.
• Other Associations that do not employee a high ranking member of the Legislature may believe that they are at a disadvantage in the legislative process.
Opinion limited to Presiding Officers of houses of West Virginia Legislature.
2012-25 State Employee
•May represent clients before his former agency upon his departure from government without waiting one year.
•One-year limitation does not apply because position not created by law, oath of office not taken and employee is not a full-time staff attorney or accountant.
•May register as lobbyist upon his departure from government without waiting one year since he is not under direct supervision of member of Executive Department.
2012-36 State Employee
• May contract with State of West Virginia to compile official papers of former Governor.
• Does not have control over contract.
• Does not have access to confidential information related to contract award.
• May not use public resources, including Requester’s own time and subordinate staff, to perform the duties of the contract.
2012-38 Part-time Appointed Member of a Review Commission
• May provide referral list of names of companies and individuals as prospective buyers to owners of distressed properties appearing before Review Commission.
May, if Review Commission unable to assist in facilitating sale of distressed property (despite providing list of prospective buyers), as part-time appointed public official, purchase property from interested person subject to the foloowing limitations:
• May not use confidential information acquired in course of official duties to further own personal interests or the interests of another person; and
• Must recuse self from all matters relating to subject property.
2013-03 Solid Waste Authority
• Member/banker who has been directly involved in approving loans for Board Member/waste hauler within past 12 months must recuse himself from matters affecting Member/waste hauler, unless he is affected as member of class of five or more.
• If Member/banker is only a bank board member who has not been directly involved with loans to Member/waste hauler, then recusal is not required.
2013-11 State Legislator
• State Legislator may not sponsor legislation relating to issue upon which he advised a client of his private law practice prior to his election to Legislature when bill uniquely affects his client, rather than class of five or more.
• Presiding Officer determines whether to excuse Legislator from voting.
2013-30 State Agency Commissioner
• The Ethics Act prohibits the Commissioner of a State Agency that promotes and regulates live dog and horse racing throughout the state from retaining a 20% ownership interest in a horse that will compete in WV. (This commissioner would be subject to regulations which he/she is charged with enforcing, creating a conflict of interest.)
• WV Code § 6B-2-5(k) states there can be no participation in rate making or licensing where the ownership interest is greater than 10%.
• WV Code § 6B-2-5(j) prohibits public servants from voting on matters in which they have a financial interest; therefore the State Agency Commissioner is prohibited from voting on matters related to horse racing.
• The Commissioner of this State Agency is privy to confidential information, and must avoid the appearance of impropriety, or unfair advantage over other horse owners.
2013-39 Former State Employee
• The Ethics Act contains a one-year “cooling off” period which prohibits certain high-ranking government officials and employees from registering as Lobbyists for one year following their departure from government. The Ethics Commission has no statutory authority to grant exemptions.
• This former employee, as general counsel to an agency under the Executive Department, did not report directly to the Governor and was not directly supervised by his staff. Employee reported directly to a Cabinet Secretary and Deputy Secretary for Legal Services.
• The Ethics Act’s revolving door prohibition is inapplicable to this former state employee, but he may not use or reveal any confidential information from his past position.
2013-54 State Agency Employee
Staff attorneys for a State Agency may serve as Assistant Prosecuting Attorneys. The salary for the Assistant Prosecuting Attorney was not paid by the county Prosecutor’s Office, but by the State Agency. Therefore there is no prohibited private gain and the use of acquired information does not constitute knowing and improper disclosure.
2014-08 Appointed Member of County Solid Waste Authority
• May, in his/her private capacity, bring a civil suit against the authority on whose board he/she serves, with limitations.
• Member must recuse him/herself from deliberations or votes related to his/her lawsuit, as he/she has a direct financial interest in the litigation, and is a party to the litigation. Member is further prohibited from discussing, deliberating, or voting on waste hauling certificates of convenience and necessity by the Public Service Commission, the subject matter of the lawsuit.
• Member is further prohibited from participating in the authority’s development of any plan regarding related matters, unless done as a member of a class of five or more similarly situated parties.
• Member must not use his/her public position to further his/her private interests, must not use confidential information obtained through his/her public position to further private interests, and may not informally communicate with fellow appointed members of the authority to influence voting related to the lawsuit.
2014-18 Retired State Agency Employee
May accept a new position with a private consulting firm which contracts with his/her former employer, with limitations. The retired employee may not improperly disclose confidential information or use it for his/her own or another’s personal interests. Revolving door restrictions do not apply, because the retired employee’s state agency position was not created by law, was not appointed by the governor, and was not either the position of attorney or accountant. If the retired employee must appear before his/her former agency, he/she must first seek the agency’s approval to do so.
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DOUBLE DIPPING back to top
2006-06 State Legislator
Pay from private employer permitted during Legislative session, if consistent with job duties
2008-05 County Parks & Recreation Commission
A golf pro employed at a public golf course may accept pay for private lessons if he clocks out before conducting the lesson.
2012-36 State Employee
• May contract with State of West Virginia to compile official papers of former Governor.
• Does not have control over contract.
• Does not have access to confidential information related to contract award.
• May not use public resources, including Requester’s own time and subordinate staff, to perform the duties of the contract.
2013-04 County Commission
• Performing multiple job functions for same County Employer does not constitute illegal “double dipping.”
• The source of funding for multiple jobs with same County Employer does not affect determination.
• Ethics Act does not require separate time keeping for each job function.
2013-42 County Employee
A County Geographic Information System Coordinator is not prohibited from contracting to perform similar work on behalf of municipality because he makes no regulatory or policy recommendations to either the county or municipality. Some limitations apply: Municipal work must be on his/her own time, using private resources; he/she may not use county staff for private work.
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EMPLOYMENT: RESTRICTIONS back to top
2006-03 State Administrative Law Judge (h)
May not represent individuals he regulates while engaging in part-time private law practice
2009-07 County Commissioner (g)
• County Commissioner, a private attorney, may prepare wills, but must fully recuse himself from County Commission's probate therof;
• County Commissioner may not appear in a representative capacity in any probate proceeding before the County Commission, even if uncontested;
• County Commissioner may testify as witness to will's validity before County Commission but must recuse himself from decision-making on any such will.
2009-10 State Employee (h)
A State employee whose employer has accreditation oversight of institutions of higher education may be compensated for teaching a course at a public university so long as he
• Notifies his supervisor;
• Has his work relating to the accreditation of the public university as part of his doctoral program reviewed by his supervisor and his employing Agency's Review Board;
• Prepares for and teaches the course on his own time;
• Does not use any public resources
2011-04 Per Diem Legislative Attorney
• Per Diem Legislative Attorney, who is not, on July 1, 2011, a Legislative employee as defined by the IRS, is not subject to revolving door prohibition.
• Independent contractors are not covered by the Ethics Act.
2011-14 Candidate for County Assessor
• May not continue career as owner and broker of real estate business within county where he will serve, if elected.
• May continue career as owner and broker of real estate business in other counties so long as he does not: use his official position in any way that would give him an advantage; conduct his business on county time; or use county resources (including staff) to conduct his private real estate business.
2012-03 County Agency
• Ethics Act does not prohibit County Agency from employing Supervisor’s son, even though they live in the same house, so long as the Supervisor is completely removed from the hiring process.
• Ethics Act does not prohibit County Agency from employing Supervisor’s son even though they live in the same house.
• Supervisor employed by County Agency is not a county officer and therefore is not subject to provisions of W. Va. Code § 61-10-15.
• General rule: Public servant should not supervise a relative.
• Supervisor employed by County Agency may supervise son on emergency calls and while in the field.
2012-04 Attorney for Municipal Water Board--Overruled, in part, by AO 2016-04.
• General Rule: Ethics Act does not prohibit Chairperson of Municipal Water Board from being employed by Board after resigning as Chairperson.
• Job description so narrowly tailored that only Board’s Chairperson qualifies fails to satisfy requirements of nepotism guidelines.
• When a public body knows in advance that one of its preferred candidates is a relative, close friend, or fellow member of the public body, public body must follow the Commission’s nepotism guidelines.
2012-07 Mayor
• may not use public resources for the benefit of his private business;
• may not use subordinate staff to perform work associated with his private business while the subordinates are on the government time clock;
• may not solicit private business from subordinates;
• may not distribute promotional materials concerning his private business from his office and/or in City/Town Hall;
• may not have an interest in a public contract, with certain exceptions;
• must recuse himself when a current customer appears before Council; and
• must recuse himself from: drafting bid specifications or requests for proposals;
• recommending selection of the vendor; and/or
approving the method or manner of payment to the vendor; and
when serving as municipal judge, must:
• if customer within past six months appears, disclose the fact thereof and recuse himself if either party requests; and
• recuse himself from cases involving customers within the past six months.
2012-17 Presiding Officer of a house of West Virginia Legislature
• May not be retained to provide legal services to an Association which is actively engaged in lobbying Legislature on behalf of its members who are public employees.
• Proposed employment contract presents an inescapable conflict, given the unique position held and power wielded by the presiding officer.
• Access to confidential information may have chilling effect on other legislators, if proposed employment contract permitted.
• Public may perceive that Association has hired him because of his unique ability to influence legislation.
• Other Associations that do not employee a high ranking member of the Legislature may believe that they are at a disadvantage in the legislative process.
• Opinion limited to Presiding Officers of houses of West Virginia Legislature.
2012-18 Registered Lobbyist
• Not required to register as lobbyist on behalf of client who retained her to provide advice on State procurement process and to serve as a liaison to a State Agency during client’s efforts to successfully bid on State contract.
• Statutory definition of “lobbying” excludes procurement lobbying.
• Required to register only if she communicates with State Officials or Members of the Legislature in regard to the passage or defeat of Legislation or Rules on client’s behalf.
2012-19 Member of the Legislature
• May be retained to provide consulting services to Public University during and after his term of office.
• Conflict of interest cured by his removal from potentially overlapping committees.
Must consult with Presiding Officer of his house and abide by appropriate legislative voting rule.
• May not use influence of legislative position to attempt to affect the actions of University personnel to enhance his contractual benefits; introduce, sponsor or advocate legislation to benefit the University in any way; influence either the State’s distribution of federal grant money or State funds to the University for any purpose, not just those related to his consulting contract; or influence the appropriation of public funds to benefit the University in any way.
2012-36 State Employee
• May contract with State of West Virginia to compile official papers of former Governor.
• Does not have control over contract.
• Does not have access to confidential information related to contract award.
• May not use public resources, including Requester’s own time and subordinate staff, to perform the duties of the contract.
2012-48 State Licensing Board
• May not hire candidate for executive director when candidate rents from Board Member who is also subject to the Board’s regulation.
• Although candidate received property exemption to lease from Board Member, its terms require him and his subordinates to be removed from all matters affecting Board Member.
• Impossible for candidate to comply with requirements of property exemption due to Board’s small staff, administrative structure, and business relationship between candidate and Board Member
2013-02 County Board of Education
• School coach may privately employ School Principal.
• Principal may not evaluate coach who is his private employer, nor make recommendations to BOE concerning his subordinate employee/employer.
• Assistant Principal may evaluate coach so long as Superintendent or designee, who is not Principal’s subordinate, reviews evaluation.
• Prohibition against direct solicitation of business from subordinate relates to commercial transactions such as sale of goods or services, not employment.
2013-04 County Commission
• Performing multiple job functions for same County Employer does not constitute illegal “double dipping.”
• The source of funding for multiple jobs with same County Employer does not affect determination.
• Ethics Act does not require separate time keeping for each job function.
2013-05 County Assessor
• May not work for property owners or businesses within same county in which s/he is Assessor, due to regulatory control over all property owners and businesses within county.
2013-08 County Prosecutor
• Ethics Act does not prohibit spouse’s employment as school nurse in same county.
• County Prosecutor has voice, influence, and control over Board of Education contracts.
• Spouse of a County Prosecutor may work as school nurse in same county since position is considered a teacher for purposes of § 61-10-15.
2013-21 County Commission
• A County Commission may not employ a private attorney for civil matters (as employee, or on a contract basis) if that attorney maintains a private criminal defense practice in the same county.
• Regardless of the lack of involvement in setting the budget for the Prosecuting Attorney’s Office, an inescapable conflict is created in serving both positions simultaneously, such that both positions of attorney for county commission and private criminal defense attorney in same county, may not be held.
2013-37 Civil Service Board Member
• A Civil Service Board member may not sit on the board while he/she is employed by the Sheriff. The board member’s recusal is not appropriate. The board member may only continue sitting on the Civil Service Board if he/she resigns from employment with the Sheriff.
• Employment by a public agency constitutes a personal financial interest which prohibits a public employee from voting on matters which affect his/her employer. On the Civil Service board, this board member would be required to investigate the sheriff’s office and his/her coworkers, as well as review tests/training certifications to determine promotions, and judge propriety of disciplinary action; all of which equate to prohibited financial interests. (Overruled by 2013-47.)
2013-34 Sheriff's Tax Deputy
• A Sheriff’s Tax Deputy may provide security services to residents and law enforcement throughout the state through a limited liability company with some exceptions.
• The Sheriff’s Tax Deputy is prohibited from charging fees for any goods or services that he or the LLC provides to any government agencies within the county which he/she serves. He/she may not use more than a de minimus amount of public resources for private purposes.
• WV Code § 6B-2-5(o) states there may be no solicitation of private business from subordinate public officials or public employees whom he/she has authority to direct, supervise or control.
• The Sheriff’s Tax Deputy must recuse himself/herself from handling delinquent taxpayer accounts for current or prospective customers of his/her private business.
2013-35 Housing Authority Inspector/Mayor
• A Housing Authority may continue to employ a part time inspector who was recently elected Mayor of a nearby town, with limitations.
• The Mayor must recuse himself/herself from any matters regarding his Housing Authority employer.
• If the Mayor also serves as Municipal Judge, additional care must be taken when citizens under his/her authority as housing inspector appear in municipal court. He/she must disclose the conflict, and if requested by either party, must recuse himself/herself. The Mayor will also be prohibited from presiding as municipal judge when he/she performed a housing inspection for a party within the last six months.
2013-41 County Employee
• A county employee may not serve on County Commission while employed full time by the County Ambulance Authority.
• W.Va. Code §61-10-15 prohibits county officials from having an interest in public contracts. The County Commission appoints all members of the County Ambulance Authority and has authority to make contributions to the ambulance authority from general funds. If elected, the county employee would have voice, influence or control over the County Ambulance Authority who has control over his/her employment, via the Authority’s Executive Director.
2013-42 County Employee
A County Geographic Information System Coordinator is not prohibited from contracting to perform similar work on behalf of municipality because he makes no regulatory or policy recommendations to either the county or municipality. Some limitations apply: Municipal work must be on his/her own time, using private resources; he/she may not use county staff for private work.
2013-48 State Agency Employees
A state agency may not allow its death investigators to provide contract services to the county as County Medical Examiners. Investigators would have a conflict of interest as they would be in the position of awarding contracts to one another. If this state agency is unable to find qualified candidates, it may seek a contract exemption from the Ethics Commission.
2013-54 State Agency Employee
Staff attorneys for a State Agency may serve as Assistant Prosecuting Attorneys. The salary for the Assistant Prosecuting Attorney was not paid by the county Prosecutor’s Office, but by the State Agency. Therefore there is no prohibited private gain and the use of acquired information does not constitute knowing and improper disclosure.
2014-04 Assistant Park Superintendent
May serve at the same park where his/her brother has a contract to operate its marina, with limitations. A third party must investigate complaints and report these to his/her supervisor. Assistant Park Superintendent should not inspect the concessions or initiate corrective action, but should either assign another employee to do so, or do so along with another non-subordinate employee.
Prohibition against interest in public contract is limited to “immediate family members” based on the inherent financial relationships between spouses who live together, as well as dependent children, grandchildren, and parents. By contrast, an adult sibling is not presumptively financially dependent on another sibling. Therefore, the contract between Assistant Park Superintendent’s brother and the state agency is not prohibited under W.Va. Code § 6B-2-5(d).
2014-19 State Regulatory Agency
May employ someone who owns stock in a regulated company, and whose spouse is employed in the regulated industry, as its Division Director. Where stock ownership was less than 5%, the director would file Financial Disclosure Statements, would have no authority over contracts, and regulation would be pursuant to statutory formula, employment was permissible. Such employment is not prohibited under revolving door rules, nor would such employment create an inescapable conflict.
2014-22 State Death Investigator
State death investigator may provide services to his State agency when a co-worker selects him by strict adherence to the rotation list without subjective input and favoritism by the co-worker.
2015-01 Legislator
Legislator may continue his employment during the Legislative session as an attorney with a company that employs registered lobbyists when the legal services he provides are unrelated to the company’s lobbying activities.
2015-02 Legislative Attorney
Legislative attorney may register as a lobbyist after the termination of his employment with the Legislature without being subject to the one-year waiting period subsequent to the termination of public employment or service.
2015-03 State Employees
State employee who is charged with oversight of safety and training for a statewide industry may offer private safety classes to individuals because his public duties are not regulatory, but ministerial.
2015-15 Board of Education
W. Va. Code § 61-10-15 prohibits a County Board of Education from employing the Superintendent’s spouse as a literacy coach.
2015-18 State Employee
A state employee may accept a $2,000 award, a plaque and travel reimbursements.” Prohibition against receiving private compensation for performing public job is inapplicable.
2016-04 City
A city may continue to employ its mayor as city administrator. The city may not show favoritism or give special treatment in making employment or personnel decisions affecting the mayor in his capacity as city administrator. The mayor must recuse himself from the vote and deliberation on personnel matters which directly affect him.
The Ethics Commission overrules AO 2006-05 and AO 2012-04, in part.
2017-12 A County Commissioner
Neither the Ethics Act nor W.Va. Code § 61-10-15 prohibits an employee or board member of a county parks board from being employed by a Convention and Visitor’s Bureau (“CVB”) or serving on a CVB board even if the parks board provides some in-kind support to the CVB. A parks board member who is also employed by the CVB may not vote on the appropriations of money or the awarding of a contract to the CVB.
2018-06 Fire Chief
A deputy fire marshal may lease and operate a private club that is subject to the City’s fire code as long as neither he nor a subordinate of his inspect or investigate matters concerning the club.
2018-10 Board of Education Member
A BOE member may continue to be employed by a staffing agency to perform work for a textbook company in other counties when that company markets textbooks and educational materials to the BOE member’s Board of Education. The BOE member meets the exemption provided to public officials who are employees of a vendor or supplier under W. Va. Code § 61-10-15(e).
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EMPLOYMENT: POST-EMPLOYMENT RESTRICTIONS back to top
2005-22 Former Public Official (g)
• General counsel to Cabinet Secretary not barred from appearing before all agencies in department
• One-year ‘revolving door’ prohibition applies to positions held on or after July 1, 2005
2007-04 Assistant Attorney General (f ) ( g)
Must wait 1 year before representing clients before state agency where he served
2007-10 Former County Deputy Assessor (f)
May operate consulting business relating to contesting property assessments where all property has been re-evaluated since person retired
2010-22 Retired State Employee (g)
• May contract with his former agency within one year of his departure from the agency.
• One year “cooling off” period prohibits elected and appointed public officials, full-time staff attorneys and accountants from appearing back before their former agencies.
• Unit Leader not an appointed public official
• An appointed public official’s position must be created by law
2012-09 State Employee
• Not a public official subject to revolving door prohibitions
Ethics Act permits post retirement communication with former agency on general matters. Must seek advice from Commission before representing private interests regarding matters in which he was substantially involved.
2016-02 Former Legislative Research Analyst
A former Legislative Research Analyst may register as a lobbyist after the termination of his employment without being subject to the one-year post-employment waiting period.
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ENDORSEMENTS back to top
2014-15 State Agency
• May sell advertising to defray the cost of wellness tools on its website to assist public employees to improve their health because it falls within the Ethics Act’s definition of usual and customary duties and the advancement of public policy goals or constituent services.
• Selling such advertising does not constitute prohibited endorsement of a vendor or product, and so the state agency must include a disclaimer with the advertisement making clear that the appearance of the advertising should not be construed as endorsement.
• Must allow equal access for advertising to all businesses or classes of businesses related to health and wellness.
2015-13 County Commissioner
Public officials may recognize businesses and individuals for contributions to economic development and charitable purposes by attending “ribbon cuttings” and through resolutions or proclamations. Providing testimonials or favorable reviews of a business’s products or services is not permissible. Official may post portrait photograph and of attendance at public events on official social media. AO does not set a limit on the number of photographs of a public official that may appear on an agency’s social media. Ethics Act does not restrict use of personal social media. Public officials may not use public resources to manage or post on their personal or campaign social media.
2015-17 State Agency
Public educators may not appear in a software vendor’s promotional video and articles demonstrating how West Virginia teachers and students use the vendor’s products without violating the prohibition against public officials’ commercial endorsements of a product or business.
2015-21 State Agency
A State Agency may contract with a vendor to provide flat screen monitors which will broadcast public service announcements and paid advertising in its regional office lobbies if: (1) the agency selects the vendor in accordance with applicable purchasing laws; (2) the advertisements do not include political advertisements or feature persons or the names of persons who are candidates for public office; (3) the agency includes a disclaimer to ensure that the advertising does not constitute a prohibited endorsement, and (4) public service announcements from other agencies may not contain the name or likeness of a public official. The sale of advertising under these circumstances does not constitute the prohibited solicitation of a gift.
2016-10 County Clerk
• May authorize private organizations to use her name and public job title when recognizing her for personal donations she makes to charitable events.
• Public officials/employees may not use public job titles if employed by a charitable organization on whose behalf they are soliciting.
• Public officials/employees may not solicit gifts for a charitable purpose if there is a direct pecuniary benefit to an immediate family member.
2017-20 Municipal Police Officers
A municipal police chief may allow police officers to participate in a "Coffee with Cops" event held by a local fast-food restaurant where the purpose of the event is to promote community relations and outreach programs. Attending the event is not an improper endorsement of the restaurant because a reasonable citizen would not find that the officers were promoting the restaurant.
2017-24 Director of a State Agency
Ethics Act does not prohibit the state agency from including a link on its website to its cyber liability insurance producer for the benefit of non-state entities. The agency must, however, allow equal access on its website to all producers for cyber liability insurance and include a disclaimer explicitly stating it is not endorsing the producer, any insurance carrier or its services or products.
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FINANCIAL DISCLOSURE STATEMENTS back to top
2008-01 Candidate for Public Office
• Must disclose veteran’s disability benefits exceeding $1000 annually
• May describe as “federal benefits” or “veterans benefits” on form
2014-13 Division Director of a State Agency
• Must comply with the requirements of W.Va. Code § 6B-2-6, as his current job title is among those specifically listed as a title which is mandated to file a Financial Disclosure Statement.
• The statutory requirement is clear and concise, not open to interpretation, and the Ethics Commission does not have the authority to excuse the application of this statute.
2017-03 State Agency
The State Agency's directors and deputy directors are required to file Financial Disclosure Statements.
2017-06 Manager of a Legislative Office
The Manager and employees of a Legislative Office are not required to file Financial Disclosure Statements pursuant to W.Va. Code § 6B-2-6(a)(3) because that provision describe positions only in the executive branch of state government. AO overrules 90-36
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GIFTS - ACCEPTANCE and SOLICITATION back to top
2005-02 County Board of Health
May solicit donations for public health programs
Establishes guidelines for non-coercive solicitation
2005-15 County Commissioner
Proceeds from calendar sales featuring county officers may only be used for charitable purposes
2006-07 State Employee
Hotel stay “door prize” won at conference hosted by State vendor may not be accepted
2007-01 Association of Hunter Education Instructors
May solicit donations to support hunter safety education program and program for hunters with disabilities
Law enforcement personnel may not solicit for charity while on duty and in uniform [NOTE: Overrules AO 2004-07]
Prohibits issuance of window decals or bumper stickers to donors
2008-06 City Manager
May not accept free golf from vendor, consultant or other interested person in conjunction with annual association conference of public employees
Gift limitation applies even if funds from event go to charitable cause
Authorizes "buy down" which reduces gift to $25 limit
2009-09 State Employee
It would violate the Ethics Act for certain State Agency employees to accept a lower lodging rate from a resort which the State Agency regulates.
2010-01 Elected member of the Board of Public Works
May solicit donations to underwrite the costs of a national conference and use the funds for meals and breaks, and certain social events, excluding golf.
May acknowledge sponsors, but may not attribute an event to a single sponsor; may not indicate amount any sponsor donates.
Use of funds Legislature appropriated to pay for attendees' meals does not constitute use of office for private gain.
Opinion limited to Elected Members of the Legislature of Elected Members of the Board of Public Works who are soliciting for national or regional conferences in accordance with W. Va. Code §§ 6B-2-5(c)(6) and 6B-2-5(c)(7).
2010-02 Attorney for City
City may participate in a vendor's program to provide discount to city employees for personal cell phone use.
2010-05 Public Employees / Higher Ed
Agency's decision to allocate more than $25 to recognize one or more employees, in lieu of expending up to $25 per employee per fiscal year, does not violate the Ethics Act so long as the expenditure on any one employee does not exceed $100, and the total amount expended for this purpose during the fiscal year does not exceed the sum total of $25 per employee.
2010-11 State Legislator
May not accept two free airline tickets won in a random drawing at a public reception hosted by a State Agency for which the Legislature provides funds.
Prohibition against use of office for private gain applies to expenditures by public entities.
2010-17 State Agency (non-precedential)
May solicit funds for itself, pursuant to its enabling legislation, without violating the Ethics Act.
May use public resources, including public employees, pursuant to its enabling legislation, to solicit funds for itself, without violating the Ethics Act.
May not use public resources, including public employees, to solicit funds for its related private, non-profit organizations. Implementation delayed until July 1, 2011.
2010-19 -
Elected Public Official
May not use public funds to purchase funeral flowers or other expressions of sympathy, including monetary donations.
May not solicit subordinate employees for a contribution towards the purchase of flowers or payment into an established office fund.
May take up a voluntary donation among co-workers, under certain conditions.
2010-23 County Board of Education
May not use public resources, including personnel, to promote the passage of an excess levy wherein school personnel are the primary beneficiaries.
County Superintendent, as the appointed voice of the County BOE, may advocate for passage of any excess levy.
County Superintendent’s advocacy for passage of an excess levy constitutes the performance of usual and customary duties associated with the position permitted by the Ethics Act
2011-11 State Agency
May accept funds for its Recreation Department, pursuant to its enabling legislation.
May solicit funds for its Recreation Department, under certain conditions: solicitation must benefit residents, not public servants; may not endorse a donor business; must comply with Legislative Rule if soliciting vendors; may not solicit a subordinate or Agency client; and may not use Agency clients to solicit.
2011-13 State Agency
Public funds may not be spent to pay for health club or gym fees for public servants when the hotel does not provide free exercise facilities to lodgers.
Public servants who receive an expense-paid trip to participate in a conference may not accept payment or reimbursement for health club or gym fees, when the hotel does not provide free exercise facilities to lodgers, and the total value of the fees exceeds $25.
Public servants who participate in a conference or event as a panelist or speaker may not accept payment or reimbursement for health club or gym fees when the hotel does not provide free exercise facilities to lodgers.
2012-06 Elected Member of the Board of Public Works
•Public official may not endorse business or product of the sponsor of an international government forum that is paying travel expenses related to forum.
• Must notify forum participants that the West Virginia Ethics Act prohibits him from endorsing a particular product and that presentation relating to fraud control should not be construed as endorsement of the sponsor’s business or product.
• Appearance at international government forum paid for by business which has financial relationship with State provides benefit to West Virginia by allowing State to be recognized for achievements in fraud control and allowing first-hand observation of Australian state governments’ approach to financial management and procurement.
• Must decline invitation to participate in proposed meetings with senior level government officials because these meetings do not provide an overriding benefit to the State of West Virginia.
2012-08 Municipal Police Department
•Ethics Act prohibits the solicitation of donations to purchase a police canine and gun racks for police cars.
• Ethics Act permits Department to accept the unsolicited contribution of funds to purchase a police canine and gun racks for police cars.
2012-20 Public University
•May use public funds to purchase prizes or incentives, including gift cards, for wellness related competitions or promotions when prize recipients include University employees.
• $25.00 gift limit not applicable because wellness program administrators are not interested parties to recipients.
May use reasonable amount of public funds for wellness-related incentives so long as there is a rational basis for such expenditure.
2012-43 Local Health Department
• May serve as pass-through for grant from private charitable foundation for benefit of two private entities that focus on health when Department derives no financial benefit in serving as pass-through and no employee or member of Department or business with which he or she is associated is party to or has an interest in profits or benefits of grant agreement or any other related contract.
• Serving as pass-through constitutes performance of usual and customary duties associated with office.
2012-49 County Farmland Protection Board
• May solicit because enabling legislation express authorizes. Limitations apply.
• May not solicit donations—orally or in writing—from anyone whose application for participation in any of its programs is pending at time of solicitation.
• May send written solicitation to public at large, even if targeted group may encompass previous or potential program participants, but may not direct such written solicitation solely to previous or potential program participants.
• May not orally solicit donations from: vendor with which it has a contract: one which is bidding on a contract; or one that is in process of soliciting business from Board.
• May send written solicitation to public or business community at large, even if targeted group may encompass vendor with which it has a contract, one which is bidding on a contract, or one that is in process of soliciting business from Board, but may not direct such written solicitation solely thereto.
• Shall not endorse a particular product, company or business in soliciting businesses and companies.
• The Ethics Act sets minimum standard of conduct. When Legislature or agency imposes stricter standard, must comply therewith.
2013-16 Solid Waste Authority
• A solid waste authority may accept funds from companies it regulates, for an event with public purpose and significant public benefit, where solicitation was directed to the general public for this event.
• However, the solid waste authority may not accept funds from a company who is currently negotiating a long term land lease and potential private/public partnership with the authority.
2013-40 Appointed Member of a Statewide Task Force
A Statewide Task force is authorized to solicit funds from business community and foundations on two grounds:
1. The overriding purpose of the solicitation does indeed serve a public purpose and the solicitation provides significant public benefit to education of children of West Virginia.
2. An Executive Order expressly authorizes the Statewide Task Force to engage in fundraising.
Limitations apply:
The Statewide Task Force shall not endorse any particular product, business, or company. If the Statewide Task Force solicits from vendors or entities subject to regulation by the Board of Education (or previous or potential participants in its programs) it must conform to the conditions set forth in Legislative Rule
(See 158 CSR § 7.7) and Advisory Opinion
2012-49.
Member of this Statewide Task Force may not seek solicitations from which he/she may personally benefit, may never coerce from any source, and supervisors shall not solicit subordinates for contributions.
2013-46 Municipal Officials and Employees
Neither a municipality, nor its elected officials, or its employees may solicit donations of gift certificates from local restaurants to present as gifts to private citizen volunteers. No overriding public purpose was sufficient to overcome the prohibition against solicitation of the public. Active solicitation of local businesses would violate W.Va. Code § 6B-2-5(c).
2013-49 Municipal Police Department
• The municipal Police Department maThe municipal Police Department may seek or accept funds from a private foundation established by a local businessperson for the sole purpose of supporting the Police Department.
• The police did not solicit, rather, a private foundation permissibly solicited police to apply for an award of funds. There is no prohibition against a police department accepting an unsolicited gift, if it is for public benefit or furtherance of operation of the office. The applicable rules for grants must be followed, and funds can only be expended for authorized purposes.
2014-01 County Economic Development Authority
• May solicit and spend funds to underwrite its “County Day at the Legislature”, including expenditures for lunch, transportation, and costs associated with a reception; including rental fees, and for advertising, printing, and office supplies, because its enabling legislation authorizes such solicitation.
• The Ethics Act generally prohibits a public official or employee from soliciting donations unless the solicitation is for a charitable purpose with no resulting direct pecuniary benefit conferred upon the official or employee, or their immediate family, W.Va. Code § 6B-2-5(c). Soliciting to subordinate public employees is strictly prohibited.
• After funds are solicited and received, they become public funds. These funds may only be expended for an authorized purpose, may not be spent for private gain, and must be spent using fiscal responsibility.
2014-03 County Hospital
Does not violate the Ethics Act by soliciting donations of cash or products from community businesses, individuals, and other organizations for hospital project to further its mission to protect the health and safety of the public citizens. Donations received become public funds which can only be spent for an authorized purpose.
Funding for a County Hospital project which supports its mission to enable physicians to offer their best medical care to patients who are unable to pay for medical services is indeed a charitable purpose for which public servants may be permitted to solicit funds. Soliciting to subordinate public employees is strictly prohibited.
2014-07 Municipality, members of governing body
• May not solicit constituents for donations of cash to purchase food for bereaved citizens. This solicitation does not rise to the level of significant public benefit sufficient to overcome the prohibition against it.
• W.Va. Code § 6b-2-5(c) states that a public official or employee may not solicit any gift unless the solicitation is for a charitable purpose with no resulting direct pecuniary benefit conferred upon the official, employee, or their immediate family. Municipalities do not fall under the exception for those entities authorized to solicit in their enabling legislation. (See W.Va. Code § 8-12-1)
2014-16 City Hospital
May permit employees to raise funds for coworkers experiencing financial hardship as this activity serves a charitable purpose, with limitations. These charitable funds may not be deposited into the City Hospital’s account. Fundraising activities based on an exchange of value are not gift solicitations and are permissible. City Hospital may permit employees to sell commercial products with limitations. Employees may also sell items for fundraising with limitations. In both instances, there may be no coercion, no solicitation of subordinates, no more than de minimis time and resources used for these activities, and announcements must be posted in areas accessible only to employees, not the general public.
2014-21 State Official
It is permissible for the Requester’s office to award a $100 prize through the use of a drawing of persons who have reported phishing e-mails. The drawing must be random and the Requester’s office must ensure that the drawing is conducted fairly. No employee at the Requester’s office may be eligible to receive the prize. The Requester’s office also must comply with all other relevant state laws, regulations and statutes which may apply.
2015-09 (non-precedential) City Clerk
A City is permitted to solicit private donors in order to help fund a grant project to replace a local bridge because the solicitation primarily provides a benefit to the public as opposed to defraying internal administrative costs.
2015-18 State Employee
A state employee may accept a $2,000 award, a plaque and travel reimbursements.” Prohibition against receiving private compensation for performing public job is inapplicable.
2015-21 State Agency
A State Agency may contract with a vendor to provide flat screen monitors which will broadcast public service announcements and paid advertising in its regional office lobbies if: (1) the agency selects the vendor in accordance with applicable purchasing laws; (2) the advertisements do not include political advertisements or feature persons or the names of persons who are candidates for public office; (3) the agency includes a disclaimer to ensure that the advertising does not constitute a prohibited endorsement, and (4) public service announcements from other agencies may not contain the name or likeness of a public official. The sale of advertising under these circumstances does not constitute the prohibited solicitation of a gift.
2015-22 Cabinet Secretary
• May use staff to handle business and social aspects of a conference his agency is hosting as conference provides an overriding public benefit.
• May not solicit donations to fund the conference because it does not constitute a “charitable purpose” under the Ethics Act.
2016-16 State Agency
A State Agency may produce and sell calendars because the calendars fall within the usual and customary duties of the State Agency to provide information and education to the public. The State Agency may donate a de minimis amount of proceeds from the calendars to a memorial fund that aids in providing plaques and maintenance to the West Virginia Fallen Firefighter Memorial. The agency may solicit donations on behalf of the memorial fund because providing plaques and maintenance to the West Virginia Fallen Firefighter Memorial constitutes a charitable purpose. The agency may not solicit donations to underwrite its duty to provide public education and information. This Opinion is based upon the specific facts of this request and may not be relied upon in other situations.
2017-07 Manager of a Legislative Office
Microsoft’s Home Use Program “HUP” is not a prohibited gift or private gain to employees due to the following circumstances: HUP is offered to all eligible employees; HUP is not offered to impair the impartiality of employees with the authority to determine whether to do business with Microsoft; HUP is made available to a large group of customers, and HUP adds no additional cost to the public agency.
2018-01 A County Commission
The sale of sponsorships for park benches is not a gift solicitation but a fund-raising activity based upon an exchange of value either commercial or personal. Potential sponsors may not be coerced into buying a sponsorship and may not receive unlawful or political favoritism in return for purchasing a sponsorship.
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HIGHER EDUCATION back to top
2010-05 Public Employees / Higher Ed
Agency's decision to allocate more than $25 to recognize one or more employees, in lieu of expending up to $25 per employee per fiscal year, does not violate the Ethics Act so long as the expenditure on any one employee does not exceed $100, and the total amount expended for this purpose during the fiscal year does not exceed the sum total of $25 per employee.
2011-05 University President
• May spend public funds to pay membership dues for the President, but not the President’s spouse, to join the local Rotary club.
• Public funds may only be spent for President’s membership dues (and one-time new member fee), not on meals or any other cost or fee associated with Rotary membership, such as contributions to a related philanthropic organization.
Ethics Act does not prohibit the University Foundation—a separate, non-government entity—from paying for the spouse’s membership in Rotary and/or for paying for meals associated with Rotary meetings or functions for the President and/or the President’s spouse.
• Higher Education exemption available only when the activity has been approved as part of the employment contract.
2012-20 Public University
• May use public funds to purchase prizes or incentives, including gift cards, for wellness related competitions or promotions when prize recipients include University employees.
• $25.00 gift limit not applicable because wellness program administrators are not interested parties to recipients.
• May use reasonable amount of public funds for wellness-related incentives so long as there is a rational basis for such expenditure.
2013-31 Elected Member of Board of Public Works
• An elected Member of the Board of Public Works is permitted to allow a private foundation to participate in the State purchase card program, and also to receive rebates from the financial institution.
• The financial benefit to the private foundation would result in an overriding public benefit. The purpose of the private foundation is to support a public institute of higher education. West Virginians are students at the public university. Both the State and the students are beneficiaries of a donation made to a private foundation formed to aid the public university
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LOBBYING back to top
2005-08 Registered Lobbyist
2005 amendments to Act require multiple employees of lobbying firm to pay additional $100 filing fee for each client they represent
2005-21 Private Company
Employees whose regular duties involve sales may participate in a “Day at the Capitol” without registering as lobbyists
2007-12 Non-Profit Corporation
• Inviting all Legislators to a charitable fund raising event during regular Legislative session triggers lobbyist registration requirement
• Host organization may provide free tickets to Legislators for reception where food and beverages are served even if ticket price exceeds $25
• Businesses who contribute to event not required to report contributions
2008-06 City Manager
May not accept free golf from vendor, consultant or other interested person in conjunction with annual association conference of public employees
Gift limitation applies even if funds from event go to charitable cause
Authorizes "buy down" which reduces gift to $25 limit
2010-07 Registered Lobbyist
Must register as lobbyist for entity even if she lobbies for free since she is already a registered lobbyist for another entity, therefore she must identify both her paying and non-paying clients.
2011-04 Per Diem Legislative Attorney
• Per Diem Legislative Attorney, who is not, on July 1, 2011, a Legislative employee as defined by the IRS, is not subject to revolving door prohibition.
• Independent contractors are not covered by the Ethics Act.
2011-19 - A State Licensing Board
• May spend public funds to hire registered lobbyist, to serve as a Legislative liaison.
• Registered lobbyist retained by public agency as Legislative liaison must register as a lobbyist
• Revolving door prohibition does not apply to contract employee/former executive director who terminated employment before July 1, 2011 cut-off date.
2012-17 Presiding Officer of a house of West Virginia Legislature
• May not be retained to provide legal services to an Association which is actively engaged in lobbying Legislature on behalf of its members who are public employees.
• Proposed employment contract presents an inescapable conflict, given the unique position held and power wielded by the presiding officer.
• Access to confidential information may have chilling effect on other legislators, if proposed employment contract permitted.
• Public may perceive that Association has hired him because of his unique ability to influence legislation.
• Other Associations that do not employee a high ranking member of the Legislature may believe that they are at a disadvantage in the legislative process.
Opinion limited to Presiding Officers of houses of West Virginia Legislature.
2012-18 Registered Lobbyist
• Not required to register as lobbyist on behalf of client who retained her to provide advice on State procurement process and to serve as a liaison to a State Agency during client’s efforts to successfully bid on State contract.
• Statutory definition of “lobbying” excludes procurement lobbying.
Required to register only if she communicates with State Officials or Members of the Legislature in regard to the passage or defeat of Legislation or Rules on client’s behalf
2012-25 State Employee
•May represent clients before his former agency upon his departure from government without waiting one year.
•One-year limitation does not apply because position not created by law, oath of office not taken and employee is not a full-time staff attorney or accountant.
•May register as lobbyist upon his departure from government without waiting one year since he is not under direct supervision of member of Executive Department.
2013-11 State Legislator
• State Legislator may not sponsor legislation relating to issue upon which he advised a client of his private law practice prior to his election to Legislature when bill uniquely affects his client, rather than class of five or more.
• Presiding Officer determines whether to excuse Legislator from voting.
2013-39 Former State Employee
• The Ethics Act contains a one-year “cooling off” period which prohibits certain high-ranking government officials and employees from registering as Lobbyists for one year following their departure from government. The Ethics Commission has no statutory authority to grant exemptions.
• This former employee, as general counsel to an agency under the Executive Department, did not report directly to the Governor and was not directly supervised by his staff. Employee reported directly to a Cabinet Secretary and Deputy Secretary for Legal Services.
• The Ethics Act’s revolving door prohibition is inapplicable to this former state employee, but he may not use or reveal any confidential information from his past position.
2015-02 Legislative Attorney
Legislative attorney may register as a lobbyist after the termination of his employment with the Legislature without being subject to the one-year waiting period subsequent to the termination of public employment or service.
2016-02 Former Legislative Research Analyst
A former Legislative Research Analyst may register as a lobbyist after the termination of his employment without being subject to the one-year post-employment waiting period.
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NAME/LIKENESS USE back to top
2015-11 Public Officials
Public officials’ official websites may include an official’s photograph on home page or biographical pages or sections, but multiple photos should not be used. If official played a role in selecting, editing or approving content of educational materials which were printed with private funds, and disseminated materials to public, multiple photographs of officials should not be used. Items classified as trinkets under W. Va. Code § 6B-2-5c, and banners and table skirts containing an official’s name and photo, may not be used even if they were purchased before effective date of statute.
2015-13 County Commissioner
Public officials may recognize businesses and individuals for contributions to economic development and charitable purposes by attending “ribbon cuttings” and through resolutions or proclamations. Providing testimonials or favorable reviews of a business’s products or services is not permissible. Official may post portrait photograph and of attendance at public events on official social media. AO does not set a limit on the number of photographs of a public official that may appear on an agency’s social media. Ethics Act does not restrict use of personal social media. Public officials may not use public resources to manage or post on their personal or campaign social media.
2015-19 Public Official
Prohibition against public officials using names/likenesses for purposes of advertising does not prohibit use of name on official letterhead, envelopes and business cards that are used in the performance of usual duties. Officials may not use public funds or public resources to offer or distribute trinkets or items paid for with private funds.
2015-20 County Assessor
Letterhead, envelopes, business cards, Personal Property Form, door hangers, form letter and website do not have primary intent or effect of promoting a public official and are therefore not prohibited “advertising.”
2015-23 Elected State Official
May host telephonic town hall meetings, but the official’s name may not be used in the recorded message played in conjunction with the meeting. The official may not conduct telephonic town hall meetings in the 60 days immediately before a primary, special or general election. These limitations do not apply to telephonic town hall meetings conducted with campaign funds.
2016-10 County Clerk
• May authorize private organizations to use her name and public job title when recognizing her for personal donations she makes to charitable events.
• Public officials/employees may not use public job titles if employed by a charitable organization on whose behalf they are soliciting.
• Public officials/employees may not solicit gifts for a charitable purpose if there is a direct pecuniary benefit to an immediate family
2016-11 State Legislator
May purchase business cards with private funds that replicate his State-issued business card on one side and display his campaign information on the other provided that both sides of the business cards state that they are paid for by the Legislator.
The Opinion cautions that the Ethics Act prohibits any use of state resources, including the Legislator’s state telephone and email address, in furtherance of his personal re-election campaign.
2017-16 Director of a State Agency
A state agency’s yearly publication is “educational material” under the Act’s name and likeness provisions. The publication is not a “report required to be issued by law” because it is disseminated to the public rather than submitted to a reporting authority. Therefore, the names and photographs of public officials, including the Governor and the agency’s Director, Commissioners and Section Chiefs, may not appear in the publication.
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NEPOTISM back to top
2007-07 Mayor
Appointment of Mayor’s son as City Attorney would create “inescapable” conflict of interest
2012-03 County Agency
• Ethics Act does not prohibit County Agency from employing Supervisor’s son, even though they live in the same house, so long as the Supervisor is completely removed from the hiring process.
• Ethics Act does not prohibit County Agency from employing Supervisor’s son even though they live in the same house.
• Supervisor employed by County Agency is not a county officer and therefore is not subject to provisions of W. Va. Code § 61-10-15.
• General rule: Public servant should not supervise a relative.
• Supervisor employed by County Agency may supervise son on emergency calls and while in the field.
2012-24 Mayor
• May reside with father who is employed by City.
• May not exercise supervisory control over his father/city employee.
• May not conduct his father’s evaluations, set his schedule, authorize overtime, or approve father’s direct supervisor’s recommendations which directly affect the terms and conditions of his father’s employment.
• Must recuse himself from personnel matters which uniquely affect his father as opposed to matters affecting his father as a class of five or more similarly situated employees.
• May participate in collective bargaining agreement negotiations with union of City employees of which father is a member.
• Must recuse himself from the negotiation of any provision in collective bargaining agreement which uniquely affects his father, but may vote on the collective bargaining agreement in its entirety.
2013-01 Mayor
• City may employ mayor’s daughter, subject to limitations.
• Governing body must advertise all positions in which member of body knows in advance that family member is interested therein.
• Affected member must recuse him/herself from all decisions regarding candidates, including: deciding whether position needs to be filled; writing job description or establishing job requirements; reviewing applications or resumes; interviewing applicants; ranking applicants; and participating in decision-making process.
• If relative is hired, affected member must be completely recused from all personnel matters related to that relative, including without limitation: salary, raises, promotion, discipline, termination or lay-offs, unless that relative is member of class of five or more.
• For recusal to be proper, official shall disclose her/his conflict of interest and leave room during discussion, deliberation and vote thereon. Meeting minutes shall reflect official’s recusal.
• May not:
• informally attempt to influence official action on behalf of relative;
•“lobby” fellow members of governing body to take favorable action on relative’s behalf; or
•attempt to influence relative’s supervisor to take favorable action.
• May not supervise any relative or relative’s supervisor.
PERSONS COVERED BY THE ACT back to top
2005-09 County School Superintendent
School Superintendent’s service on Board of Directors of private organization does not subject organization to Ethics Act jurisdiction
2010-09 County Rescue Service
Members and employees of a nonprofit corporation which is not a public entity are not covered by the Act, even though three of the seven members are appointed by the county commission, the corporation is funded by county ambulance fees, and the county commission reviews and approves its budget.
2011-04 Per Diem Legislative Attorney
• Per Diem Legislative Attorney, who is not, on July 1, 2011, a Legislative employee as defined by the IRS, is not subject to revolving door prohibition.
• Independent contractors are not covered by the Ethics Act.
2012-21 Local Health Department
Any person or public entity subject to the Ethics Act may seek advisory opinion about their own prospective conduct.
Public servant members of non-profit entity that oversees and distributes federal grants to their employers must recuse themselves from considering, evaluating, discussing, ranking, and/or overseeing funding decisions, including the funding matrix.
Possibly permissible for non-profit organization to handle funding allocation matters if:
.the non-profit entity and its board are truly independent of the State of West Virginia and the local health departments;
.as a matter of law, the state agency has clear legal authority to give this funding authority to the non-profit entity generally;
.the state agency has legal authority to delegate a portion of its executive powers to a non-profit organization; and
.the relevant federal grant guidelines expressly permit this delegation of authority to the non-profit entity.
2017-12 A County Commissioner
A Convention and Visitor’s Bureau is not subject to the Ethics Act as it is a nonprofit corporation and not a government agency.
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PRIVATE GAIN back to top
2005-10 State Division Director
Division Director in agency which regulates motor vehicle dealers may not appear in commercials advertising automobile dealer even though his division does not regulate dealers
2005-16 County Health Department Employee
May reference professional certification which employer paid for in advertising for private consulting business
2006-13 County Commissioner
Use of county resources to provide shuttle services for a private picnic is not permitted
2006-14 State Board Members
May not conduct training programs for third-parties regulated by their Board without a written waiver from the Ethics Commission
Exec Dir may grant temporary waiver which must be ratified by Commission
2006-17 County School Teacher
Teacher who directs Show Choir may not sell music compositions to be performed by choir he directs
2008-05 County Parks & Recreation Commission
May authorize employees to play golf for free under certain conditions
2008-07 Town Council
May authorize employees to use town swimming pool for free as fringe benefit of employment
2008-09 Public University (Overrules A.O. 2001-21 to the extent it prohibited a University from offering faculty discounts at its bookstore)
May give discount to faculty and staff on bookstore purchases
2009-02 Elected County Officials
County Funded Employee Wellness Program may not be extended to elected county officials whose compensation is set by statute.
To increase compensation (through the extension of benefits) beyond statutory maximum constitutes use of office for private gain.
2009-03 County Employees
May be reimbursed for government calls placed on personal cell phone
2009-07 County Commissioner
• County Commissioner, a private attorney, may prepare wills, but must fully recuse himself from County Commission's probate thereof;
• County Commissioner may not appear in a representative capacity in any probate proceeding before the County Commission, even if uncontested;
• County Commissioner may testify as witness to will's validity before County Commission but must recuse himself from decision-making on any such will.
2009-08 Board of Directors of State Agency--overruled, in part, by Advisory Opinion 2017-22
• Board members associated with entities which may have financial interest in Agency's contracts may not serve on subcommittee which reviews and recommends funding proposals.
• Board members associated with entities which may have financial interest in Agency's contracts may continue to serve on Board, but must recuse themselves from discussion, deliberation and decision-making on matters related to those entities with which they are associated.
2009-09 State Employee
It would violate the Ethics Act for certain State Agency employees to accept a lower lodging rate from a resort which the State Agency regulates.
2009-10 State Employee
A State employee whose employer has accreditation oversight of institutions of higher education may be compensated for teaching a course at a public university so long as he
• Notifies his supervisor;
• Has his work relating to the accreditation of the public university as part of his doctoral program reviewed by his supervisor and his employing Agency's Review Board;
• Prepares for and teaches the course on his own time;
• Does not use any public resources
2009-12 Elected Member, Board of Public Works
Payroll deductions to purchase products does not constitute use of office for private gain since all businesses have equal opportunity to participate.
Neither state official nor his office may endorse any product offered through payroll deduction.
2010-01 Elected member of the Board of Public Works
• May solicit donations to underwrite the costs of a national conference and use the funds for meals and breaks, and certain social events, excluding golf.
• May acknowledge sponsors, but may not attribute an event to a single sponsor; may not indicate amount any sponsor donates.
• Use of funds Legislature appropriated to pay for attendees' meals does not constitute use of office for private gain.
• Opinion limited to Elected Members of the Legislature or Elected Members of the Board of Public Works who are soliciting for national or regional conferences in accordance with W. Va. Code §§ 6B-2-5(c)(6) and 6B-2-5(c)(7).
2010-02 Attorney for City
City may participate in a vendor's program to provide discount to city employees for personal cell phone use.
2010-03 County Board of Education Candidate
• Spouse of county BOE member may be employed as Chief mechanic, a service position that meets exception in § 61-10-15.
• May not use position to obtain, increase or promote the interests of spouse as a BOE employee.
2010-04 County Board of Education member
Board may contract with a private non-profit when one of the Board of Education members sits on the Board of the non-profit as long as the common Board member does not vote on any matters relating to the non-profit and recuses himself from the decision-making process and vote. (Overruled by A.O. 2011-12, which recognized that an uncompensated board member of a non-profit does not have a financial interest which would prohibit him or her from voting on appropriations to the non-profit. However, W. Va. Code § 6B-2-5(j)(D) (effective July 7, 2017) requires a public official who sits on a non-profit board of directors to disclose the public official’s, or his or her immediate family member’s, relationship to the nonprofit (i) on the agenda item relating to the appropriation or award contract, if known at time of agenda, (ii) by the public official at the meeting prior to the vote, and (iii) in the minutes of the meeting.)
2010-05 Public Employees / Higher Ed
Agency's decision to allocate more than $25 to recognize one or more employees, in lieu of expending up to $25 per employee per fiscal year, does not violate the Ethics Act so long as the expenditure on any one employee does not exceed $100, and the total amount expended for this purpose during the fiscal year does not exceed the sum total of $25 per employee.
2010-08 City Elected Officials
Public official may not vote to extend his or her own current term beyond that statutorily or constitutionally prescribed; to do so would be use of office for private gain.
2010-10 Board of Directors of a County Authority
Ethics Act does not prohibit part-time appointed officials from bidding at auction on items sold by Board on which they serve, so long as they recuse themselves from all related matters; but § 61-10-15 prohibits part-time appointed officials from bidding at auction on items sold by Board on which they serve.
2010-11 State Legislator
May not accept two free airline tickets won in a random drawing at a public reception hosted by a State Agency for which the Legislature provides funds.
Prohibition against use of office for private gain applies to expenditures by public entities.
2010-13 County Board of Education Member
• Spouse of County BOE member may be employed as auditor in Central Office, a service position that meets exception in § 61-10-15.
• May not use position to obtain, increase or promote the interests of spouse as a BOE employee.
• May not vote on matters specific to his wife including raise, renewal of employment contract, or discipline.
• May vote on overall budget, but must recuse himself if line item affects wife or all four auditors if BOE specifically addresses any such line item .
2010-14 County Board of Education Member
• County BOE may not contract with Member’s fast food restaurant to provide food for special events
• County schools and/or school sports teams may not contract with County BOE Member’s fast food restaurant to provide food for school sports teams using school funds
• County BOE Member’s fast food restaurant may not sponsor fundraisers on behalf of school teams
• County BOE Member’s fast food restaurant may, under certain conditions, sponsor fundraisers on behalf of booster organizations
• County BOE Member’s fast food restaurant may, under certain conditions, sell food to credit union even though BOE provides office space to credit union
2010-15 County Board of Education Member
• County BOE Member may not be paid to officiate as a sports official in his own county
• County BOE Member may volunteer as a referee and receive $1 to obtain insurance coverage
2010-16 County Board of Education Member
• County BOE Member may contract with State Department of Education for online teaching even though some teachers from her county may participate.
• Subject contract is with State, not County BOE, and thus Member lacks control over contract
• County BOE Member lacks control over County BOE’s reimbursement of county teachers’ expenses incurred in taking Member’s online course .
2010-17 State Agency (non-precedential)
• May solicit funds for itself, pursuant to its enabling legislation, without violating the Ethics Act.
• May use public resources, including public employees, pursuant to its enabling legislation, to solicit funds for itself, without violating the Ethics Act.
• May not use public resources, including public employees, to solicit funds for its related private, non-profit organizations. Implementation delayed until July 1, 2011.
2010-18 City Council
• May use public funds to purchase Sam's Club cards for the City's use.
• May not use public funds to purchase Sam's Club cards for the personal use of its employees or their family members.
• City officials and employees may not use the City's card to gain admission to the Sam's club and/or to make personal purchases.
2010-19 - Elected Public Official
• May not use public funds to purchase funeral flowers or other expressions of sympathy, including monetary donations.
• May not solicit subordinate employees for a contribution towards the purchase of flowers or payment into an established office fund.
• May take up a voluntary donation among co-workers, under certain conditions.
2011-01 County Council Member
• County Council Member’s business may appraise estates so long she recuses herself from any matters coming before the County Council involving the probate of any estate her business has appraised. County Council Member’s business may not appraise any estates over which the Sheriff has been appointed by the County Council as the administrator. County Council Member’s business should be removed from the Fiduciary Supervisor’s list of available appraisers.
• County Council Member may not appear, as a representative or witness, before the Council either about the appraised value or the amount of her compensation.
• County Council Member may not accept protected persons from the Sheriff for placement in her nursing home, absent a contract exemption for the Sheriff.
2011-05 University President
• May spend public funds to pay membership dues for the President, but not the President’s spouse, to join the local Rotary club.
....Public funds may only be spent for President’s membership dues (and one-time new member fee), not on meals or any other cost or fee associated with Rotary membership, such as contributions to a related philanthropic organization.
....Ethics Act does not prohibit the University Foundation—a separate, non-government entity—from paying for the spouse’s membership in Rotary and/or for paying for meals associated with Rotary meetings or functions for the President and/or the President’s spouse.
.....Higher Education exemption available only when the activity has been approved as part of the employment contract.
2011-06 County Public Service District Member (non-precedential)
• An appointed board member, who in his private capacity has participated in other rate cases related to a particular utility company, may not participate in the PSD’s deliberations and actions related to the PSD’s role in the West Virginia Public Service Commission’s investigation of that utility company.
• Although not expressly prohibited by the voting provision of the Ethics Act since he is a member of a class of five or more, the member’s membership in the Home Owners Association, as well as his representative advocacy on its behalf, constitute a personal interest.
• There could be an appearance that the member is using the PSD to bring suit in the District’s name for his personal benefit, thus constituting the prohibited use of public office for private gain.
2011-08 Part-Time Prosecuting Attorney (Overrules AOs 89-15, 89-27 and 91-61)
• Part-Time Prosecuting Attorneys may continue to use office space in their respective county courthouses for their private law practices without reimbursing the County for the pro-rata rental value thereof.
• Part-Time Prosecuting Attorneys may continue to use public resources, including office equipment and staff in their respective county courthouses for their private law practices, but must reimburse the County for the pro-rata rental value thereof, or make direct payment for such equipment and/or services.
• Assistant Prosecuting Attorneys may not use courthouse office space, equipment, supplies or staff for their private law practices.
2011-09 County Hospital (Modifies AO 95-09)
• County Hospital may accept unsolicited offer of equipment and related services from appointed board member.
• County Hospital may accept unsolicited offer of real property from appointed board member as long as there are no financial conditions associated with the property transfer; and the body notifies the public of the member’s offer and allows other property owners to offer their property.
• County Hospital may accept unsolicited offer of real property from appointed board member even if there are unresolved issues requiring mitigation (e.g. environmental hazards, or outstanding liens), but only if an independent evaluation determines that the overriding benefit is to the governing body rather than the donor and it receives permission from the Ethics Commission.
• Modifies AO 95-09 by clarifying that the donation (as opposed to the leasing) of property does not constitute a public contract.
2011-10 County Board of Education
• Spouse of county BOE Superintendent may not be employed as Director of Student Services, a prohibited administrative position under W. Va. Code § 61-10-15.
• Spouse of county BOE Superintendent may be employed as School Psychologist, a position that meets the exception in W. Va. Code § 61-10-15.
• Spouse of county BOE Superintendent may be continue to be physically located in the central office without violating W. Va. Code § 61-10-15. The nature of the work performed, not location, is outcome determinative.
• Superintendent may not use position to obtain, increase or promote the interests of spouse as a BOE employee.
2011-11 State Agency
• May accept funds for its Recreation Department, pursuant to its enabling legislation.
• May solicit funds for its Recreation Department, under certain conditions: solicitation must benefit residents, not public servants; may not endorse a donor business; must comply with Legislative Rule if soliciting vendors; may not solicit a subordinate or Agency client; and may not use Agency clients to solicit.
2011-12 Town Attorney
Town’s elected officials may vote to appropriate funds to a non-profit organization on which they and/or their family members serve as uncompensated board members and/or officers. (However, W. Va. Code § 6B-2-5(j)(D) (effective July 7, 2017) requires a public official who sits on a non-profit board to disclose the public official’s, or his or her immediate family member’s, relationship to the nonprofit (i) on the agenda item relating to the appropriation or award contract, if known at time of agenda, (ii) by the public official at the meeting prior to the vote, and (iii) in the minutes of the meeting.)
2011-13 State Agency
• Public funds may not be spent to pay for health club or gym fees for public servants when the hotel does not provide free exercise facilities to lodgers.
• Public servants who receive an expense-paid trip to participate in a conference may not accept payment or reimbursement for health club or gym fees, when the hotel does not provide free exercise facilities to lodgers, and the total value of the fees exceeds $25.
• Public servants who participate in a conference or event as a panelist or speaker may not accept payment or reimbursement for health club or gym fees when the hotel does not provide free exercise facilities to lodgers.
2011-14 Candidate for County Assessor
• May not continue career as owner and broker of real estate business within county where he will serve, if elected.
• May continue career as owner and broker of real estate business in other counties so long as he does not: use his official position in any way that would give him an advantage; conduct his business on county time; or use county resources (including staff) to conduct his private real estate business.
2011-17 - State Licensing Board
• Executive Directors and Members of the Board may be members of professional associations consisting of licensees which the Boards regulate.
• Members may be officers of professional associations consisting of licensees which the Boards regulate, with limitations.
• Executive Director may not be an officer of or employed by a professional association consisting of licensees which the Board regulates.
2011-18 - Industry representatives on the governing council of a State Agency--overruled, in part, by Advisory Opinion 2017-22
• May not serve on the initial review panel for grant applications.
• May not serve on the committee to draft legislative rules relating to the award of grants.
• May participate as a member of council, and vote on approval of recommended grant application absent a prohibited interest necessitating recusal.
• May participate as a member of council, and vote on draft legislative rules relating to the award of grants absent a prohibited interest necessitating recusal.
2011-19 - A State Licensing Board
• May spend public funds to hire registered lobbyist, to serve as a Legislative liaison.
• Registered lobbyist retained by public agency as Legislative liaison must register as a lobbyist
• Revolving door prohibition does not apply to contract employee/former executive director who terminated employment before July 1, 2011 cut-off date.
2011-20 An Elected County Commissioner
• May purchase tax liens at a Sheriff's sale or through the State Auditor's Office, or both, when County Commission had no direct involvement in the assessment of the property.
• May not purchase a tax lien on property for which the owner requested adjustment of assessed value or other relief from County Commission sitting as the board of equalization and review.
2011-21 A City
May adopt ordinance or change charter to compensate Mayor at flat rate of pay for extra duties not statutorily required of the mayor; provided that, the change becomes effective for the next term of office.
2011-22 State Agency employee
Ethics Act does not prohibit employee of State agency from serving on board of non-profit organization that State agency funds.
2012-01 Mayor
• Ethics Act does not prohibit city employed building inspector from serving on City Council, but he must perform his Council duties on his own time, not during his public work hours. Ethics Act does not prohibit a building inspector/city employee from serving on City Council.
• City council member employed by city may not vote on a personnel matter which affects him directly as opposed to affecting five or more employees in the same or similar manner.
• City employed building inspector serving on City Council must recuse himself when citizens who are affected by his official actions come before City Council to address or dispute his official actions.
2012-02 County Commissioner
• Ethics Act does not prohibit County from purchasing property from real estate business with which a County Commissioner is associated, with limitations: Commissioner may not use his position to influence purchase of the property; specifically, he may not communicate with fellow County Commissioners, or Members or staff of the Building Commission, on matters relating to the property.
• No prohibited financial interest where neither Commissioner nor his immediate family members have ownership interest in property County
• Commission seeks to purchase from real estate business with which he is associated.
• No prohibited financial interest where Commissioner is not: a director or officer; the listing agent for the property; or, entitled to receive any commission from the sale of the property.
• County Commissioner associated with real estate business selling property to County meets statutory exemption so long as he recuses himself. (See Voting)
• County Commissioner associated with real estate business selling property to County must recuse himself from all matters related thereto.
2012-03 County Agency
• Ethics Act does not prohibit County Agency from employing Supervisor’s son, even though they live in the same house, as long as the Supervisor is completely removed from the hiring process.
• Ethics Act does not prohibit County Agency from employing Supervisor’s son even though they live in the same house.
• Supervisor employed by County Agency is not a county officer and therefore is not subject to provisions of W. Va. Code § 61-10-15.
• General rule: Public servant should not supervise a relative.
• Supervisor employed by County Agency may supervise son on emergency calls and while in the field.
2012-04 Attorney for Municipal Water Board (Overruled in part by AO 2016-04)
• General Rule: Ethics Act does not prohibit Chairperson of Municipal Water Board from being employed by Board after resigning as Chairperson.
• Job description so narrowly tailored that only Board’s Chairperson qualifies fails to satisfy requirements of nepotism guidelines.
• When a public body knows in advance that one of its preferred candidates is a relative, close friend, or fellow member of the public body, public body must follow the Commission’s nepotism guidelines.
2012-06 Elected Member of the Board of Public Works
• Public official may not endorse business or product of the sponsor of an international government forum that is paying travel expenses related to forum.
• Must notify forum participants that the West Virginia Ethics Act prohibits him from endorsing a particular product and that presentation relating to fraud control should not be construed as endorsement of the sponsor’s business or product.
• Appearance at international government forum paid for by business which has financial relationship with State provides benefit to West Virginia by allowing State to be recognized for achievements in fraud control and allowing first-hand observation of Australian state governments’ approach to financial management and procurement.
• Must decline invitation to participate in proposed meetings with senior level government officials because these meetings do not provide an overriding benefit to the State of West Virginia.
2012-07 Mayor
• may not use public resources for the benefit of his private business;
• may not use subordinate staff to perform work associated with his private business while the subordinates are on the government time clock;
• may not solicit private business from subordinates;
• may not distribute promotional materials concerning his private business from his office and/or in City/Town Hall;
• may not have an interest in a public contract, with certain exceptions;
• must recuse himself when a current customer appears before Council; and
• must recuse himself from: drafting bid specifications or requests for proposals; recommending selection of the vendor; and/or approving the method or manner of payment to the vendor; and when serving as municipal judge, must:
• if customer within past six months appears, disclose the fact thereof and recuse himself if either party requests; and
• recuse himself from cases involving customers within the past six months.
2012-11 County Commissioner
• Ethics Act permits living with county employee as long as nepotism rules followed.
• W. Va. Code § 61-10-15 prohibits living with county employee even if nepotism rules followed and/or even if employee transferred to another county office.
2012-12 Local Board of Health
• Board of Health’s part-time appointed Health Officer may accept patient referrals from the Health Department so long as s/he does not make, participate in making, or in any way attempt to use his or her office or employment to influence a government decision affecting his or her financial or limited financial interest.
• Full-time health officer may not contract with own Board of Health unless Board seeks and receives advice or a contract exemption from Ethics Commission.
Local Board of Health formed by a county and a municipality not subject to strict provisions of § 61-10-15.
• County Boards of Health are subject to strict provisions of § 61-10-15; their health officers (part-time and full-time) may not contract with own Board of Health unless Board seeks and receives advice or a contract exemption from Ethics Commission.
2012-13 Member of a County Board of Education
• May contract with a public university to supervise university students during their placement in public schools in the county where he serves so long as he does not use any public resources, including BOE staff, to perform his private contractual duties.
• Agreement between public university and BOE not a public contract.
2012-15 Sheriff
May use his public title to endorse Chief Deputy or other candidate for public office, including through newspaper advertisements or radio announcements.
May not spend public funds for these purposes.
2012-16 County Commission
• Prohibited from purchasing private property from appointed member of County Building Commission.
• Purchase of property from appointed member creates impermissible conflict and a prohibited interest in a public contract.
• May seek Contract Exemption if it believes the property is only viable option.
2012-17 Presiding Officer of a house of West Virginia Legislature
• May not be retained to provide legal services to an Association which is actively engaged in lobbying Legislature on behalf of its members who are public employees.
• Proposed employment contract presents an inescapable conflict, given the unique position held and power wielded by the presiding officer.
• Access to confidential information may have chilling effect on other legislators, if proposed employment contract permitted.
• Public may perceive that Association has hired him because of his unique ability to influence legislation.
• Other Associations that do not employee a high ranking member of the Legislature may believe that they are at a disadvantage in the legislative process.
• Opinion limited to Presiding Officers of houses of West Virginia Legislature.
2012-19 Member of the Legislature
• May be retained to provide consulting services to Public University during and after his term of office.
• Conflict of interest cured by his removal from potentially overlapping committees.
Must consult with Presiding Officer of his house and abide by appropriate legislative voting rule.
• May not use influence of legislative position to attempt to affect the actions of University personnel to enhance his contractual benefits; introduce, sponsor or advocate legislation to benefit the University in any way; influence either the State’s distribution of federal grant money or State funds to the University for any purpose, not just those related to his consulting contract; or influence the appropriation of public funds to benefit the University in any way.
2012-20 Public University
• May use public funds to purchase prizes or incentives, including gift cards, for wellness related competitions or promotions when prize recipients include University employees.
• $25.00 gift limit not applicable because wellness program administrators are not interested parties to recipients.
• May use reasonable amount of public funds for wellness-related incentives so long as there is a rational basis for such expenditure.
2012-21 Local Health Department
• Any person or public entity subject to the Ethics Act may seek advisory opinion about their own prospective conduct.
• Public servant members of non-profit entity that oversees and distributes federal grants to their employers must recuse themselves from considering, evaluating, discussing, ranking, and/or overseeing funding decisions, including the funding matrix.
• Possibly permissible for non-profit organization to handle funding allocation matters if:
• the non-profit entity and its board are truly independent of the State of West Virginia and the local health departments;
• as a matter of law, the state agency has clear legal authority to give this funding authority to the non-profit entity generally;
• the state agency has legal authority to delegate a portion of its executive powers to a non-profit organization; and
• the relevant federal grant guidelines expressly permit this delegation of authority to the non-profit entity.
2012-22 Ambulance Authority
•May not use public funds or staff to promote passage of levy when levy proceeds will be used for its employees’ salaries.
•Executive Director or Board Members, or both, may publicly speak in favor of levy.
•May use public funds to educate public about levy process, nature of services provided by agency, and purpose for which levy funds will be used.
•May, in advertisements paid for with public funds, encourage public to vote on issue, but may not advocate for passage of levy.
•Neither Executive Director nor Board Members may require nor pressure employees to support levy.
•Employees must perform volunteer campaign activities, if any, on their own time, not during their public work hours.
•May not solicit monetary support for passage of levy.
•May use unsolicited gift to promote passage of levy under these conditions:
• expenditures shall either avoid reference to agency taking position; or
• state that request for support is made by supporters of Authority and levy.
2012-23 Member of the Legislature
• May serve as Recorder for municipality; limitations apply.
• May not use legislative position to influence appropriation of monies to municipality.
• Must perform statutorily mandated recorder duties while serving in the legislature in order to lawfully receive compensation.
• Commission has no jurisdiction to rule whether member’s service as recorder is constitutional or the applicability of the common law doctrine of incompatibility.
2012-24 Mayor
• May reside with father who is employed by City.
May not exercise supervisory control over his father/city employee.
• May not conduct his father’s evaluations, set his schedule, authorize overtime, or approve father’s direct supervisor’s recommendations which directly affect the terms and conditions of his father’s employment.
• Must recuse himself from personnel matters which uniquely affect his father as opposed to matters affecting his father as a class of five or more similarly situated employees.
• May participate in collective bargaining agreement negotiations with union of City employees of which father is a member.
• Must recuse himself from the negotiation of any provision in collective bargaining agreement which uniquely affects his father, but may vote on the collective bargaining agreement in its entirety.
2012-27 State Licensing Board
• May provide working meal to members and any staff required to be present at Board meeting as part of their job duties.
• May spend reasonable amount of public funds for meals at meetings when meeting takes place at a time or is of such length that it makes the same reasonable.
• May not recess or adjourn meeting to go to an off-site location to consume a meal paid for with public funds. A meeting should not be scheduled at private locations unless those locations are in a public area fully accessible to the public at no cost.
• May not order lavish meals; instead, it must exercise fiscal responsibility in expending public funds on meals.
Must base decision to purchase meal upon a legitimate government reason.
• Must determine whether funds are available to cover this expenditure.
• Should check with Auditor’s Office to ensure expenditures does not run afoul of laws or regulations governing authorized expenditures.
*** This opinion does not extend to local governmental officials and agencies, e.g. City Council Members, County Commissioners or other local agencies.
2012-29 County Emergency Services Director
• May not be compensated for performing duties of managing federal grant when those duties are the usual and customary duties associated with County Emergency Services Director.
• May not privately contract with County to manage a federal grant given to County for mitigation projects, when Requester’s duties as County Emergency Services Director gives him direct authority and control over private contract with County.
2012-30 County Emergency Services Director
• May privately contract with Municipality within County to manage federal grant for mitigation projects when Municipality does not fall under County’s floodplain jurisdiction.
• Does not have direct authority voice, influence, or control over Municipality’s decision relating to grant money, and the expenditure thereof.
• Must notify County Commission of contractual arrangement with Municipality; to obtain approval; and abide by any restrictions that County Commission imposes.
2012-31 Circuit Clerk
• May not recommend or allow letter of support for a product, service or business of an interested person absent an overriding public benefit.May be listed on vendor’s promotional materials solely as a previous customer. Any language that tends to refer to public servant or entity as a “satisfied customer” or otherwise serves to promote or endorse vendor expressly prohibited.
• May not appear in advertisement for a product, service, or business absent an overriding public benefit.
2012-32 State Legislator and County BOE Bus Operator
• May contract with Regional Educational Service Agency (RESA) provided he: does not use his public position to obtain unfair advantage in securing contract; does not use his public position to gain unfair advantage for the RESA by which he is employed; and does not get paid during Legislative • Session if he does not perform his contractual duties.
• May contract with RESA as Bus Operator exercises no control over contract.
• Must perform RESA duties on his own time; not during BOE work hours.
• May be required to file verified time records with Ethics Commission if RESA duties performed during regularly scheduled BOE work hours.
2012-33 Public University Vice-President
• May serve as member of Board of Directors of non-profit organization, so long as he is able to perform his public duties for which he is compensated.
• Service on Board of Directors of non-profit organization constitutes performance of usual and customary duties associated with position or advancement of public policy.
2012-34 Public Agency
May permit employee who was involuntarily denied boarding from a flight while in travel status to accept compensation from airline.
2012-37 Mayor
• $100/year compensation for serving on City Council de minimis
• Appointment to position on Council not a public contract
May vote for candidate to fill vacancy on Council who is a customer of her husband
2012-38 Part-time Appointed Member of a Review Commission
• May provide referral list of names of companies and individuals as prospective buyers to owners of distressed properties appearing before Review Commission.
• May, if Review Commission unable to assist in facilitating sale of distressed property (despite providing list of prospective buyers), as part-time appointed public official, purchase property from interested person subject to the foloowing limitations:
• may not use confidential information acquired in course of official duties to further own personal interests or the interests of another person; and
• must recuse self from all matters relating to subject property.
2012-39 County Commissioner
May vote and participate in matters relating to Prosecuting Attorney's office even though he owns a business with County Prosecuting Attorney. Lacks prohibited financialinterest in the operation of the Prosecutor's Office since Prosecutor's salary set by statute.
2012-40 Assistant Superintendent
Has Voice, influence or control over spouse's subcontract with company that provides services to county school system, therefore contract prohibited.
2012-41 County Board of Health
Licensed septic tank cleaner may serve on County Board of Health. Application to County Board of Health for tri-annual license does not constitute appearing before agency on which he serves for purposes of contesting issuance of license or permit.
2012-42 Conservation District
• May award $500 scholarship per calendar year to District supervisor’s child so long as District supervisor recuses him/herself from all participation in selection of scholarship participants, leaves the room during discussion and decision-making period, and fully discloses his or her interests.
• District supervisor may not informally “lobby” or otherwise attempt to influence voting members of, or other decision-makers in, the government agency to select his/her child.
2012-43 Local Health Department
• May serve as pass-through for grant from private charitable foundation for benefit of two private entities that focus on health when Department derives no financial benefit in serving as pass-through and no employee or member of Department or business with which he or she is associated is party to or has an interest in profits or benefits of grant agreement or any other related contract.
• Serving as pass-through constitutes performance of usual and customary duties associated with office.
2012-44 State Agency
• May appropriate a de minimis amount of State resources ($1,500) to a related Association to provide matching funds to allow the Association to secure a grant.
• Executive Director of State Agency who serves on the Association’s Board at Agency’s request may be involved in advising Agency regarding distribution of money to Association because serving on Association’s Board is part of Director’s public job duties and Association’s mission is to assist other non-profit entities, not the Director’s public employer
• Chairperson of State Agency who serves on Association’s Board by virtue of his/her private employment with a large non-profit should recuse himself from voting on contributing money to Association.
2012-45 County Attorney
• Has direct authority or control over County’s public contracts contemplated by W. Va. Code § 6B-2-5(d).
• Has “voice” and “influence” over all County contracts for purposes of W. Va. Code § 61-10-15.
• Position not “county office”, so not subject to W. Va. Code § 61-10-15.
• May not receive additional pay for serving as project coordinator for County Building Commission, absent a contract exemption.
2012-46 City Council Member
• May serve on City Council although Council Member’s law firm contracts with City.
• Does not have prohibited financial interest in contract between law firm since Council Member is employee of law firm, not owner or director.
• May not: (1) receive any commissions or remuneration as a result of contract between law firm and City; (2) work behind the scenes to steer business to law firm; or, (3) participate in deliberation or vote on matters relating to contract with his firm, e.g. approving invoices.
• Must excuse himself from participating in discussion and decision-making process by leaving room when item is being discussed or decided; fully disclosing his interests; and recusing himself from voting on the issue. Meeting minutes must reflect basis for recusal and that Council Member left room during all discussion and vote on item under consideration.
2012-47 County Commission (Private Gain)
• May appoint a County Commissioner to serve as a voting member of a County Ambulance Authority, a subunit of county government.
• Should consult with its attorney on whether other laws permit proposed self-appointment, especially when enabling legislation does not specifically authorize self-appointments and position is compensated.
• County Commissioner does not have prohibited financial interest and may vote on matters affecting the County Ambulance Authority which come before County Commission.
2012-50 Sheriff (Private gain)
• May not expend surplus money in Concealed Weapons Fund for meals for staff meetings.
• May not use Concealed Weapons Fund for personal gain of any person(s); must be an authorized expenditure; and any expenditure must be related to law-enforcement purposes or operating needs of Sheriff’s Office, e.g. purchase of office furniture or weapons.
2012-51 Assistant Attorney General (Private gain)
• May also serve as elected City Council Member.
• Must perform City Council duties on own time, not during public work hours.
• May be required to file time records with Ethics Commission if he has regular work hours at State job, and is authorized to make up hours to perform duties of City Council position.
• Although Ethics Act permits Assistant Attorney General to serve as elected City Council Member, Ethics Commission has no jurisdiction to rule whether West Virginia Constitution permits it, or applicability, if any, of common law doctrine of incompatibility.
2012-52 Municipal Public Servant
• Governing bodies may not allow public employees (or public officials) to use public equipment except for public purposes.
• Use of public equipment for personal benefit violates the Ethics Act’s prohibition against use of office for private gain
2012-53 County Board of Education
• Members do not have financial interest requiring recusal when:
• Three or more Members from same county attended same training,
• Superintendent (or designee) has reviewed and approved reimbursement of group travel expenses, and
• Meeting agenda specifically discloses that travel expense forms for the Members are being approved.
• When one or two Members attend training, recusal is required when Board considers their travel expense reimbursement requests.
• For recusal to be proper, official shall disclose her/his conflict of interest and leave room during discussion, deliberation and vote thereon. Meeting minutes shall reflect official’s recusal.
• Ethics Commission declined to establish bright line rule.
2013-01 Mayor
• City may employ mayor’s daughter, subject to limitations.
• Governing body must advertise all positions in which member of body knows in advance that family member is interested therein.
• Affected member must recuse him/herself from all decisions regarding candidates, including: deciding whether position needs to be filled; writing job description or establishing job requirements; reviewing applications or resumes; interviewing applicants; ranking applicants; and participating in decision-making process.
• If relative is hired, affected member must be completely recused from all personnel matters related to that relative, including without limitation: salary, raises, promotion, discipline, termination or lay-offs, unless that relative is member of class of five or more.
• For recusal to be proper, official shall disclose her/his conflict of interest and leave room during discussion, deliberation and vote thereon. Meeting minutes shall reflect official’s recusal.
• May not:
• informally attempt to influence official action on behalf of relative;
• “lobby” fellow members of governing body to take favorable action on relative’s behalf; or
• attempt to influence relative’s supervisor to take favorable action.
• May not supervise any relative or relative’s supervisor.
2013-02 County Board of Education
• School coach may privately employ School Principal.
• Principal may not evaluate coach who is his private employer, nor make recommendations to BOE concerning his subordinate employee/employer.
• Assistant Principal may evaluate coach so long as Superintendent or designee, who is not Principal’s subordinate, reviews evaluation.
• Prohibition against direct solicitation of business from subordinate relates to commercial transactions such as sale of goods or services, not employment.
2013-06 State Agency
• Staff may meet with vendors to learn more about their products or services.
• Agency head my not recommend a particular vendor, with limited exceptions.
• If State has sole source contract with vendor, then Agency may advise counties that terms of State contract require using particular vendor(s) or product(s).
• If asked, Agency head not prohibited from communicating to county his opinion on quality of vendor’s services.
• May only give money to vendor if State law expressly authorizes it.
• Agency head may not endorse vendor absent an overriding public benefit.
2013 -07 State Agency
• Members of Legislature may enter into contracts with State of West Virginia, including applying for and obtaining loan/financing from state agency.
• Members of Legislature may not use prestige of position to obtain favorable treatment.
• Members of Legislature, in seeking loan/financing may not use confidential information, if any, obtained as a result of Legislative duties.
2013-08 County Prosecutor
• Ethics Act does not prohibit spouse’s employment as school nurse in same county.
• County Prosecutor has voice, influence, and control over Board of Education contracts.
• Spouse of a County Prosecutor may work as school nurse in same county since position is considered a teacher for purposes of § 61-10-15.
2013-09 County Prosecutor
• Ethics Act does not prohibit Assistant Prosecutor from serving as elected County Commissioner in another County, even if counties are situated in same judicial circuit.
• Assistant Prosecutor must perform County Commission duties on his own time, not during public work hours.
2013-10 State University
• May allow private partner to use University’s name and logo for external marketing purposes solely related to the private partner’s program-related products and services, in exchange for free access to private partner’s information management system because such access provides an overriding public benefit to University.
• May not endorse or promote private partner unless there is an overriding public benefit. Decisions on whether an overriding public benefit exists decided on case-by-case basis.
2013-11 State Legislator
• State Legislator may not sponsor legislation relating to issue upon which he advised a client of his private law practice prior to his election to Legislature when bill uniquely affects his client, rather than class of five or more.
• Presiding Officer determines whether to excuse Legislator from voting.
2013-12 Elected Member of the Board of Public Works
• May not endorse private partner in a video on company’s website, even when video legitimately promotes office’s electronic payment program.
2013-13 County Commissioner
Unless it obtains a contract exemption, County Commission prohibited from leasing its marina to business partner of a County Commissioner, even when such marina is unrelated to the partnership.
2013-14 Municipal Public Servant
• A municipal judge who also maintains a private law practice may announce his/her appointment to his/her government position on his/her business website.
• A municipal judge may also continue to represent the Municipal Sanitary Board and receive compensation for that position, with limitations
2013-15 County Law Enforcement Officer
• Unless it obtains a contract exemption, a County Commission may not pay the Chief Deputy any additional compensation for performing duties of 911 Director given the overlap between law enforcement duties and responsibilities of 911 Director. This would constitute impermissible compensation for performance of customary duties in violation of §6B-2-5(b).
• §61-10-15 also prohibits the Chief Deputy from accepting additional compensation as 911 Director, because a law enforcement deputy sheriff or chief enforcement deputy, is a public official with voice, influence, or control over the new 911 Director contract.
2013-19 City Council Member
• A town council member may not (prospectively) rent a building owned by the town.
• The prior lease was proper, as the town council member was not a member at the time of original lease.
• Regarding town’s property offered for rent, the town council must use due diligence, must advertise publicly, offer fair opportunity to compete, and use recent property comparables. After this process, the town may seek a contract exemption. However, the affected town council member may not participate in the decision regarding seeking a contract exemption, but rather must recuse himself/herself.
2013-20 Members of State Legislature
• Members of the state legislature may continue to appear in a TV program for a non- profit foundation where the members received no compensation and had no involvement with solicitation of financial underwriters for future broadcasts.
• Any benefit to the financial underwriters or members of the state is outweighed by the public benefit of the broadcast.
2013-22 State Employee
A state employee may enter into a subcontract via his/her private trucking business with a contractor of a state agency.
Here, the subcontract does not constitute use of public office for private gain because the employee has no control or authority over the selection of the state agency contractor and will not perform work for his/her private trucking business while working for the state agency.
2013-23 Public Service District and its Employees
• A Public Service District may not give unused or out of service items to its employees and the employees therefore, may not sell the same items or keep the proceeds of such sales.
• The Ethics Commission lacks jurisdiction to determine whether an auction website may be used to dispose of such unused or out of service items, or other appropriate disposal of surplus Public Service District property
2013-24 Regional Solid Waste Authority
• A Regional Solid Waste Authority may continue to contract with an insurance agency while the Authority’s Chairperson is Vice President and a principal thereof.
• Part time appointed public officials are exempt from the prohibition against having an interest in the profits or benefits of a public contract over which they have authority or control, provided that the official in his/her public position, is excluded from matters related to the contract.
2013-25 Board Member of Conservation District
• A Conservation District may not reimburse landowner expenses where the provider is a member of the Conservation District Board unless the Conservation District seeks and obtains a contract exemption from the Ethics Commission.
• A Conflict of interest exists where the elected Board Member of Conservation District Board, votes to approve landowners’ applications to participate in the program and receive reimbursement for lime/fertilizer, and the board member effectively provides these products and services.
• The conflict of interest may not be cured by Board Member’s recusal from voting. Further, the Board Member may not contract with another vendor to provide the services, thereby circumventing the Ethics Act.
• A Conservation District Board member’s failure to respond to an Ethics Commission’s request for additional information, and failure to timely file a Financial Disclosure Statement may constitute intentional avoidance of disclosure, constituting knowing failure, a misdemeanor under WV code §6B-2-10(c).
2013-26 Public Employee of County Development Authority
A Public employee of a County Development Authority who has no direct authority to enter into contracts or control over selection of loan applicants for approval, and his/her spouse may apply for a small business loan through a program the County Development Authority administers. (The loan application must be processed the same as all other applications and the employee may use no influence regarding the application.)
2013-27 Teachers
• Teachers who served on a Textbook Adoption Committee, who participated in selecting and approving a textbook may not enter into subcontracts with a private textbook company for the purpose of training other teachers in the selected textbook’s use.
• WV Code §61-10-15 and § 6B-2-5(d)(1) apply to these facts. Teachers who were members of the Textbook Adoption Committee had influence, voice, and control over the selection of the private textbook company’s textbook and its adoption.
2013-28 Public Employees
• A group of public employees may use a state owned parking garage for a garden in order to distribute produce and flowers to community groups because this activity results in an overriding public benefit.
• The Ethics Commission has discretion to conclude that the public benefit of an activity outweighs the potential for private gain.
2013-30 State Agency Commissioner
• The Ethics Act prohibits the Commissioner of a State Agency that promotes and regulates live dog and horse racing throughout the state from retaining a 20% ownership interest in a horse that will compete in WV. (This commissioner would be subject to regulations which he/she is charged with enforcing, creating a conflict of interest.)
• WV Code § 6B-2-5(k) states there can be no participation in rate making or licensing where the ownership interest is greater than 10%.
• WV Code § 6B-2-5(j) prohibits public servants from voting on matters in which they have a financial interest; therefore the State Agency Commissioner is prohibited from voting on matters related to horse racing.
• The Commissioner of this State Agency is privy to confidential information, and must avoid the appearance of impropriety, or unfair advantage over other horse owners.
2013-31 Elected Member of Board of Public Works
• An elected Member of the Board of Public Works is permitted to allow a private foundation to participate in the State purchase card program, and also to receive rebates from the financial institution.
• The financial benefit to the private foundation would result in an overriding public benefit. The purpose of the private foundation is to support a public institute of higher education. West Virginians are students at the public university. Both the State and the students are beneficiaries of a donation made to a private foundation formed to aid the public university
2013-34 Sheriff's Tax Deputy
• A Sheriff’s Tax Deputy may provide security services to residents and law enforcement throughout the state through a limited liability company with some exceptions.
• The Sheriff’s Tax Deputy is prohibited from charging fees for any goods or services that he or the LLC provides to any government agencies within the county which he/she serves. He/she may not use more than a de minimus amount of public resources for private purposes.
• WV Code § 6B-2-5(o) states there may be no solicitation of private business from subordinate public officials or public employees whom he/she has authority to direct, supervise or control.
• The Sheriff’s Tax Deputy must recuse himself/herself from handling delinquent taxpayer accounts for current or prospective customers of his/her private business.
2013-36 County Assessor
• A County Assessor may purchase office supplies from a company owned by his employee’s fiancé. (The employee has no involvement with supply purchases. The County Assessor has no financial or personal relationship with the employee or his/her fiancé.)
• WV Code § 61-10-15 is applicable to the County Assessor, but not to all county employees.
• There may be no interest in public contracts and no favoritism. The employee has no voice over purchases, and is not a “county official”. The County Assessor is a county official, but there is no Ethics Act violation because the employee has no control over purchases and the County Assessor has no personal or financial relationship with the employee or his/ her fiancé.
2013-38 County Council
A County Council may not use public funds for a meal during a dedication ceremony for the Public Safety Building where the public is not invited. Instead, a County Council may spend a reasonable amount of public funds for light refreshments at a public dedication ceremony and hold a private tour of the facility to accommodate safety concerns, if no additional funds are spent for the tour.
2013-45 City Police Officers
A municipality may not allow its police officers to participate in a program with a local fast food restaurant where police hand out restaurant reward cards to private citizens for performing good deeds. The Ethics Act prohibits endorsement of products and businesses. No overriding public benefit was established.
2013-46 Municipal Officials and Employees
Neither a municipality, nor its elected officials, or its employees may solicit donations of gift certificates from local restaurants to present as gifts to private citizen volunteers. No overriding public purpose was sufficient to overcome the prohibition against solicitation of the public. Active solicitation of local businesses would violate W.Va. Code § 6B-2-5(c).
2013-47 Town Council Members, County Employee
• Town Council members who are currently employed, or whose spouses are currently employed by the County Board of Education may vote on issues concerning property deeded to the Board of Education.
• W.Va. Code §6B-1-3(b) defines business as “any entity through which business for profit is conducted”. This definition does not include a governing body.
• W.Va. Code § 6B-2-5(d) states that no elected or appointed public official or public employee or member of his/her immediate family or business with which he/she is associated may be a party to or have an interest in the profits or benefits of a contract which the official or employee may have direct authority to enter into or over which he/she may have control.
• W.Va. Code § 6B-2-5(j)(1)(A) states that public officials may not vote on a matter in which they or an immediate family member or a business with which they or an immediate family member is associated have a financial interest.
• The Ethics Commission overrules AO 2012-05, and finds that the Ethics Act does not prohibit a public official from voting on a matter with which his/her public employer has a financial interest. Further, retired employees have no financial interest. Here, a council member who is currently employed by the County Board of Education as a teacher is subject to W.Va. Code§ 61-1-15, but has no voice or control over the contract under these facts.
2013-48 State Agency Employees
A state agency may not allow its death investigators to provide contract services to the county as County Medical Examiners. Investigators would have a conflict of interest as they would be in the position of awarding contracts to one another. If this state agency is unable to find qualified candidates, it may seek a contract exemption from the Ethics Commission.
2013-50 State Agency Employees
State agency employees assigned to various Conservation Districts may participate in a state funded Agricultural Enhancement program that is administered by the Districts because they have no authority or control over these matters. However, state agency employees are cautioned not to take any action related to their own participation in the program except ministerial functions.
2013-51 Commercial Supervisor in County Assessor's Office
• A commercial supervisor in the County Assessor’s office may lease residential property in the county in which he/she is employed, because this property is not subject to his/her regulatory action.
• A commercial supervisor in the County Assessor’s office may not purchase, sell or lease commercial property in the county where he/she works, because either he/she or his/her subordinates take annual regulatory action on this property. (Personal transactions for personal homes are exceptions.)
• A commercial supervisor in the County Assessor’s office may not purchase any commercial property at property tax lien auctions. (The purchase of residential property over which he/she has no regulatory control is permissible at tax auction.)
The only exception is if a property exemption is sought and obtained from the Ethics Commission.
• Any employee of the County Assessor’s office who had the authority to select property for sale at auction and/or control the price or value thereof is prohibited from purchasing the property at auction. Employees of the County Assessor’s office may not engage in real estate transactions, including purchasing property at auction while on the public clock.
2013-52 Board President, County Ambulance Authority
A County Ambulance Authority may purchase property from the brother of its Board President. The Board President’s brother is outside the definition of immediate family and there is no financial relationship between them. The County Ambulance Authority Board President is also not subject to restriction because he/she is a part time appointed official.
The Board President has no financial interest, and therefore may vote on the property purchase. However, favoritism is prohibited in selecting property.
2013-53 County Board of Education
• A county Board of Education member may vote on changing the Board of Education’s financial institution to a local bank in which he/she is a shareholder. He/she holds less than 1% stock so that neither the Ethics Act or W.Va. Code § 61-10-15 prohibit the Board of Education from contracting with the bank in which the board member owns stock. Some limitations apply.
• The board member is prohibited from steering business to this bank, may not use undue influence, and still must recuse himself/herself on votes regarding the bank.
• It is generally impermissible for a county official to have a pecuniary interest in a contract over which he/she has control. (W.Va. Code § 61-10-15(a))
• There is a specific exception for interest in banks in W.Va. Code § 61-10-15(f), though, as long as the person recuses himself/herself from the “deliberations or ultimate determination” of the depository of funds.
2013-54 State Agency Employee
Staff attorneys for a State Agency may serve as Assistant Prosecuting Attorneys. The salary for the Assistant Prosecuting Attorney was not paid by the county Prosecutor’s Office, but by the State Agency. Therefore there is no prohibited private gain and the use of acquired information does not constitute knowing and improper disclosure.
2013-55 County Assessor
A County Assessor’s adult daughter may purchase property in the same county in which he/she works, as the daughter does not reside with the Assessor, and neither the Assessor nor his/her spouse has an ownership interest in the property. The Assessor and his/her spouse may also engage in property purchase transactions in the county, if they are for personal residences. (The Deputy Assessor is authorized to assess the Assessor’s property.)
2013-56 Sheriff / Concealed Weapons Fund
A sheriff may not use the Concealed Weapon Fund to pay for flight lessons and airplane rental for such lessons to acquire his/her pilot’s license. Most of the stated reasons for these expenditures resulted in more personal benefit to the sheriff than to the public. (The sheriff would obtain a lifelong pilot’s license, and began serving the last of two consecutive terms in office in January 2013.) Any surplus in the Concealed Weapons Fund on hand at the end of each fiscal year may be expended for other law enforcement purposes or operational needs of the sheriff’s office as the sheriff may consider appropriate. However, expenditures from the Concealed Weapons Fund must satisfy requirements of the Ethics Act and W.Va. Code § 61-7-4(c). Expenditures must be authorized and must benefit the public.
2013-57 County Commission and Emergency Service Employees
A County Commission may not exempt certain emergency services employees from reporting mileage for personal vehicle use as a taxable fringe benefit. Although employees are on call twenty-four hours a day, the IRS exception for clearly marked emergency vehicles is applicable only where employees strictly use vehicles for emergency response, and commuting to and from their jobs. Under the Ethics Act, the personal use of an emergency vehicle is not the usual and customary duties associated with the office. The unauthorized private use of a public vehicle constitutes use of public office for private gain. The potential liability cost and potential for public safety risk when emergency vehicles are out of service due to personal use is too high to allow it as a permissible fringe benefit.
2013-58 County Commission/Regional Drug Court Team
• A Regional Drug Court Team and its Advisory Board may contract with a County Commissioner to provide dental services to a drug court participant, with limitations.
• The contract for dental work must be let out via a sealed bid process, dental work must not be funded by or comingled with funds from the county commission, and the affected county commissioner must recuse himself/herself from any Drug Court requests for funding directed to the County Commission.
• This dental work was to be paid for from individual donations and grants, and voluntary allocation of County Commission funds did not constitute direct authority or control.
2013-59 State Licensing Board
The Ethics Commission lacked jurisdiction to answer the question presented regarding the licensing board’s enabling legislation, and the potential conflict of interest posed by a member of the State Licensing board accepting a paid position with a private entity and that member’s ability to remain on the state licensing board. The state licensing board should consult the Governor’s office, which has appointing authority for state licensing board members regarding any potential conflicts of interest.
2013-60 State Licensing Board Member
A member of a state licensing board may not accept a paid position with a private entity and remain on the board. The private entity is a firm that conducts business with professionals that the state licensing board licenses and regulates. The firm contracts with professionals licensed by the state licensing board in order to provide services to participants in government programs. This state licensing board member would be simultaneously responsible for enforcing compliance with regulations over the same people which he/she represents to a private entity. Under these facts, the public and private roles are too inextricably intertwined and present an impossible impediment to impartiality. This state licensing board member is unable to perform both positions without creating unavoidable conflict of interest and an impermissible use of public office for private gain.
2013-61 Mayor
Is not prohibited from using his /her public position to communicate with other public entities about matters of public concern. It is among the Mayor’s customary duties to communicate on issues directly affecting the city he serves and to use public resources to do so, and these acts do not constitute private gain. In forms of government where the Mayor holds or shares administrative authority, the Mayor may communicate in a public capacity with other public agencies, constituents, organizations, and individuals on behalf of the municipality.
2014-01 County Economic Development Authority
• May solicit and spend funds to underwrite its “County Day at the Legislature”, including expenditures for lunch, transportation, and costs associated with a reception; including rental fees, and for advertising, printing, and office supplies, because its enabling legislation authorizes such solicitation.
• The Ethics Act generally prohibits a public official or employee from soliciting donations unless the solicitation is for a charitable purpose with no resulting direct pecuniary benefit conferred upon the official or employee, or their immediate family, W.Va. Code § 6B-2-5(c). Soliciting to subordinate public employees is strictly prohibited.
• After funds are solicited and received, they become public funds. These funds may only be expended for an authorized purpose, may not be spent for private gain, and must be spent using fiscal responsibility.
2014-02 State Board Members
Are not prohibited from serving on the State Board or from voting on the applications submitted by municipalities with which they have a relationship. The Ethics Act’s definition of “business” does not include a governing body, therefore these State Board members do not have a financial interest in the municipal applications under W.Va. Code § 6B-1-3(b).
2014-04 Assistant Park Superintendent
• May serve at the same park where his/her brother has a contract to operate its marina, with limitations. A third party must investigate complaints and report these to his/her supervisor. Assistant Park Superintendent should not inspect the concessions or initiate corrective action, but should either assign another employee to do so, or do so along with another non-subordinate employee.
• Prohibition against interest in public contract is limited to “immediate family members” based on the inherent financial relationships between spouses who live together, as well as dependent children, grandchildren, and parents. By contrast, an adult sibling is not presumptively financially dependent on another sibling. Therefore, the contract between Assistant Park Superintendent’s brother and the state agency is not prohibited under W.Va. Code § 6B-2-5(d).
2014-08 Appointed Member of County Solid Waste Authority
• May, in his/her private capacity, bring a civil suit against the authority on whose board he/she serves, with limitations.
• Member must recuse him/herself from deliberations or votes related to his/her lawsuit, as he/she has a direct financial interest in the litigation, and is a party to the litigation. Member is further prohibited from discussing, deliberating, or voting on waste hauling certificates of convenience and necessity by the Public Service Commission, the subject matter of the lawsuit.
Member is further prohibited from participating in the authority’s development of any plan regarding related matters, unless done as a member of a class of five or more similarly situated parties.
• Member must not use his/her public position to further his/her private interests, must not use confidential information obtained through his/her public position to further private interests, and may not informally communicate with fellow appointed members of the authority to influence voting related to the lawsuit.
2014-11 Sheriff
• May expend funds from the Sheriff’s Concealed Weapons Fund for the purpose of fitness supplies and equipment to assist the Sheriff’s deputies in meeting annual fitness requirements of the position because it falls within the Ethics Act’s definition of usual and customary duties.
• May expend funds from the Sheriff’s Concealed Weapons Fund for the purpose of paying for dry-cleaning of officers’ uniforms because the expenditure meets the Ethic Act’s definition of “the advancement of public policy goals or constituent services”.
• Expenditures from the Sheriff’s Concealed Weapons Fund are public funds, and may not be used for private gain, must be authorized expenditures, and must be related to law enforcement purposes, or the operating needs of the Sheriff’s Office.
2014-12 Sheriff
May not sell unused or surplus weapons directly to the son of a Deputy Sheriff and deposit the money into the Concealed Weapons Fund, as it would be using his public position to benefit the son of a subordinate in violation of the Act’s prohibition against use of public office for private gain, and would be an unavoidable conflict of interest.
2014-14 City Council Member/Municipal Employee
• May vote on general issues affecting municipal employees such as better working conditions, including raises, so long as there are more than five municipal employees, as well as issues affecting the overall municipal budget. He may further vote on issues directly affecting other departments which do not employ him.
• May not vote to advocate on behalf of municipal employees in his own department or deliberate on matters specific to that department unless there are five or more employees in that department.
• He must further recuse himself completely from any matters which affect him uniquely.
2014-15 State Agency
• May sell advertising to defray the cost of wellness tools on its website to assist public employees to improve their health because it falls within the Ethics Act’s definition of usual and customary duties and the advancement of public policy goals or constituent services.
• Selling such advertising does not constitute prohibited endorsement of a vendor or product, and so the state agency must include a disclaimer with the advertisement making clear that the appearance of the advertising should not be construed as endorsement.
• Must allow equal access for advertising to all businesses or classes of businesses related to health and wellness.
2014-16 City Hospital
May permit employees to raise funds for coworkers experiencing financial hardship as this activity serves a charitable purpose, with limitations. These charitable funds may not be deposited into the City Hospital’s account. Fundraising activities based on an exchange of value are not gift solicitations and are permissible. City Hospital may permit employees to sell commercial products with limitations. Employees may also sell items for fundraising with limitations. In both instances, there may be no coercion, no solicitation of subordinates, no more than de minimis time and resources used for these activities, and announcements must be posted in areas accessible only to employees, not the general public.
2014-17 County Sheriff
Does not have a prohibited conflict of interest if his father-in-law bids on or is awarded a contract with the Sheriff’s office. The definition of “immediate family member” does not include father-in-law, and there is no financial relationship between the Sheriff and his father-in-law, so there is no prohibited financial interest.
2014-19 State Regulatory Agency
May employ someone who owns stock in a regulated company, and whose spouse is employed in the regulated industry, as its Division Director. Where stock ownership was less than 5%, the director would file Financial Disclosure Statements, would have no authority over contracts, and regulation would be pursuant to statutory formula, employment was permissible. Such employment is not prohibited under revolving door rules, nor would such employment create an inescapable conflict.
2014-20 Legislator
A legislator may not use the franking privilege to send material that is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. If a Legislator sends mail using the franking privilege, during any election season when that Legislator's seat is being contested, to recipients selected due to their voting frequency, that action cannot realistically be construed as anything other than an attempt to influence voters in order to win an election. The act of adding a photograph, regardless of the circumstances surrounding its addition, does not violate the Ethics Act.
2015-04 Legislator
Legislator may continue to appear in advertising for his own personal business but may not use his title or any public resources to promote his business.
2015-07 College
College may not use public funds to buy meals for its employees at events held by a local chamber of commerce.
2015-08 Public Service Commission Chairman
• Chairman of Public Service Commission Board may not take or withhold any action with the intent to improperly benefit a conflicted Board member or another person as opposed to benefitting the PSD.
• The Ethics Act does not, per se, require the Requester to delay a Board meeting or disclose information to the Board which causes him to believe that a conflict exists which would prohibit another member from legally voting under the Ethics Act.
2015-11 Public Officials
Public officials’ official websites may include an official’s photograph on home page or biographical pages or sections, but multiple photos should not be used. If official played a role in selecting, editing or approving content of educational materials which were printed with private funds, and disseminated materials to public, multiple photographs of officials should not be used. Items classified as trinkets under W. Va. Code § 6B-2-5c, and banners and table skirts containing an official’s name and photo, may not be used even if they were purchased before effective date of statute.
2015-12 County Sheriff
Utilization of excess home incarceration funds may be used to purchase police cruisers, Tasers and fixed radar units for Sheriff’s Office under the Ethics Act. Use of funds for equipment to be used by Home Confinement Officers is acceptable.
2015-13 County Commissioner
Public officials may recognize businesses and individuals for contributions to economic development and charitable purposes by attending “ribbon cuttings” and through resolutions or proclamations. Providing testimonials or favorable reviews of a business’s products or services is not permissible. Official may post portrait photograph and of attendance at public events on official social media. AO does not set a limit on the number of photographs of a public official that may appear on an agency’s social media. Ethics Act does not restrict use of personal social media. Public officials may not use public resources to manage or post on their personal or campaign social media.
2015-14 County Ambulance Authority
It would be a violation of the Ethics Act for the Executive Director of a County Ambulance Authority to request and receive a personal loan from the County Ambulance Authority for the purpose of transferring from the Public Employees Retirement System to the Emergency Medical Services Retirement System.
2015-16 County Building Commission Member
A County Building Commission member may purchase and develop property owned and managed by a County Urban Renewal Authority without violating W. Va. Code §§ 6B-2-5(d)(1), 6B-2-5(b) or 61-10-15.
2015-21 State Agency
A State Agency may contract with a vendor to provide flat screen monitors which will broadcast public service announcements and paid advertising in its regional office lobbies if: (1) the agency selects the vendor in accordance with applicable purchasing laws; (2) the advertisements do not include political advertisements or feature persons or the names of persons who are candidates for public office; (3) the agency includes a disclaimer to ensure that the advertising does not constitute a prohibited endorsement, and (4) public service announcements from other agencies may not contain the name or likeness of a public official. The sale of advertising under these circumstances does not constitute the prohibited solicitation of a gift.
2015-22 Cabinet Secretary
• May use staff to handle business and social aspects of a conference his agency is hosting as conference provides an overriding public benefit.
• May not solicit donations to fund the conference because it does not constitute a “charitable purpose” under the Ethics Act.
2015-23 Elected State Offifical
May host telephonic town hall meetings, but the official’s name may not be used in the recorded message played in conjunction with the meeting. The official may not conduct telephonic town hall meetings in the 60 days immediately before a primary, special or general election. These limitations do not apply to telephonic town hall meetings conducted with campaign funds.
2016-09 State Agency Manager
State agencies may use public funds, within reason, to purchase kitchen appliances such as water coolers, including water for the coolers, coffee makers, microwave ovens, toaster ovens and refrigerators for use by state employees at work because the individual private gain to employees is counterbalanced by an overriding public benefit to state agencies.
2016-11 State Legislator
May purchase business cards with private funds that replicate his State-issued business card on one side and display his campaign information on the other provided that both sides of the business cards state that they are paid for by the Legislator. The Opinion cautions that the Ethics Act prohibits any use of state resources, including the Legislator’s state telephone and email address, in furtherance of his personal re-election campaign.
2016-14 Municipal Fire Department
Municipal Fire Department may purchase coffee with public funds for its guests in its main lobby as long as purchasing coffee is an authorized expenditure under the relevant state laws, rules and opinions. Fire Department’s expenditure of funds for coffee for its employees is de minimis. Ethics Commission did not determine whether purchasing coffee for public employees in general is permissible.
2016-16 State Agency
A State Agency may produce and sell calendars because the calendars fall within the usual and customary duties of the State Agency to provide information and education to the public. The State Agency may donate a de minimis amount of proceeds from the calendars to a memorial fund that aids in providing plaques and maintenance to the West Virginia Fallen Firefighter Memorial. The agency may solicit donations on behalf of the memorial fund because providing plaques and maintenance to the West Virginia Fallen Firefighter Memorial constitutes a charitable purpose. The agency may not solicit donations to underwrite its duty to provide public education and information. This Opinion is based upon the specific facts of this request and may not be relied upon in other situations.
2016-18 Prosecutor-elect
The Prosecutor-elect, upon becoming Prosecutor, may not consider hiring the outgoing former Prosecutor to serve as a special prosecutor in a position funded by a grant the former Prosecutor assisted the county and a local nonprofit organization in obtaining.
2017-05 Manager of a Legislative Office
Public employee would not violate the Ethics Act by joining a purchasing cooperative even though it would result in a sales commission to the vendor’s representation because the expectation of future benefits provides an overriding public benefit sufficient to justify the private benefit to the sales representative.
2017-07 Manager of a Legislative Office
Microsoft’s Home Use Program “HUP” is not a prohibited gift or private gain to employees due to the following circumstances: HUP is offered to all eligible employees; HUP is not offered to impair the impartiality of employees with the authority to determine whether to do business with Microsoft; HUP is made available to a large group of customers, and HUP adds no additional cost to the public agency.
2017-08 State Agency
A State Agency charged with providing health care benefits to public employees may contract with a private company to provide a wellness program that offers financial rewards to public employees.
2017-13 Elected Mayor
An elected mayor’s private business may participate as a vendor at a municipal association conference. He may be a speaker at the conference in his private capacity.He must instruct the association that it may not endorse his business or encourage participants to conduct business with his business. His public position may be referenced in biographical information and when he is introduced as a speaker.
2017-22 A State Agency
A part-time appointed state board member whose spouse has a finder’s fee agreement with property owners applying for inclusion in the board’s conservation easement program may serve on the board or one of its subcommittees, but must recuse himself from all board and subcommittee matters involving conservation easement applications.
For recusal to be proper, he must disclose the nature of his spouse’s financial interest in the contract and comply with the other recusal requirements in W. Va. Code § 6B-2-5(j) and related Legislative Rule governing interests in public contracts, W. Va. Code R. § 158-8-5 (2009).
Advisory Opinion 2017-22 overrules, in part, Advisory Opinions 2009-08 and 2011-18
2017-24 Director of a State Agency
Ethics Act does not prohibit the state agency from including a link on its website to its cyber liability insurance producer for the benefit of non-state entities. The agency must, however, allow equal access on its website to all producers for cyber liability insurance and include a disclaimer explicitly stating it is not endorsing the producer, any insurance carrier or its services or products.
2018-02 A County Commission
The Ethics Commission was unable to determine whether there is implied or express authority for a county commission to use public funds to buy lunches for county elected officials and their staffs for an annual working lunch meeting. If the Office of the Attorney General or Auditor’s Office opines there is express or implied authority for the expenditure, then the expenditure of public funds for this purpose would not violate the Ethics Act.
2018-03 State Agency Manager
Following the restrictions imposed by an agency’s applicable State Travel Rules satisfies the requirements of the Ethics Act when determining when it is reasonable for a public employee to book and seek reimbursement for overnight lodging while on official business.
2018-04 A State Agency Manager
Before purchasing meals for its officials or employees, public agencies should review applicable laws to determine whether there is express or implied authority for the expenditure. When a meal is authorized, reimbursement at a rate established by the West Virginia Travel Rules does not violate the Ethics Act. Nothing in the Opinion grants express or implied authority to spend public funds for meals under the Ethics Act.
2018-07 A County Commission
A County Commission may allow the Sheriff to live rent-free in a house located in the county park because the Sheriff’s presence would enhance security at the park and he would repair and maintain the house.
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PROPERTY PURCHASE RESTRICTIONS back to top
2010-24 Board of Education
• May purchase property owned, in part, by a Sheriff’s Chief Tax Deputy.
• Chief Tax Deputy does not exercise control over BOE contracts.
• Chief Tax Deputy not subject to § 61-10-15 since position is neither statutorily created nor does she take an oath of office.
May not purchase property owned, in part, by a part-time Assistant Prosecutor, absent contract exemption due to the prohibitions of West Virginia Code § 61-10-15.
Assistant Prosecutor exercises control over BOE contracts by providing legal representation.Assistant prosecutor meets the “part-time appointed public official” exception to the Ethics Act’s public contract limitation.
• Assistant Prosecutor is a public official for purposes of § 61-10-15 since position is statutorily created and he takes an oath of office.
• Assistant Prosecutor exercises voice, influence, or control over BOE contracts.
2012-38 Part-time Appointed Member of a Review Commission
May provide referral list of names of companies and individuals as prospective buyers to owners of distressed properties appearing before Review Commission.
May, if Review Commission unable to assist in facilitating sale of distressed property (despite providing list of prospective buyers), as part-time appointed public official, purchase property from interested person subject to the foloowing limitations:
• may not use confidential information acquired in course of official duties to further own personal interests or the interests of another person; and
• must recuse self from all matters relating to subject property.
2013-51 Commercial Supervisor in County Assessor's Office
• A commercial supervisor in the County Assessor’s office may lease residential property in the county in which he/she is employed, because this property is not subject to his/her regulatory action.
• A commercial supervisor in the County Assessor’s office may not purchase, sell or lease commercial property in the county where he/she works, because either he/she or his/her subordinates take annual regulatory action on this property. (Personal transactions for personal homes are exceptions.)
• A commercial supervisor in the County Assessor’s office may not purchase any commercial property at property tax lien auctions. (The purchase of residential property over which he/she has no regulatory control is permissible at tax auction.)
• The only exception is if a property exemption is sought and obtained from the Ethics Commission.
• Any employee of the County Assessor’s office who had the authority to select property for sale at auction and/or control the price or value thereof is prohibited from purchasing the property at auction. Employees of the County Assessor’s office may not engage in real estate transactions, including purchasing property at auction while on the public clock.
2013-55 County Assessor
• A County Assessor’s adult daughter may purchase property in the same county in which he/she works, as the daughter does not reside with the Assessor, and neither the Assessor nor his/her spouse has an ownership interest in the property.
• The Assessor and his/her spouse may also engage in property purchase transactions in the county, if they are for personal residences. (The Deputy Assessor is authorized to assess the Assessor’s property.)
2015-10 A City Code Enforcement Officer
Is prohibited from acquiring property within the city which he/she regulates without first obtaining a contract exemption from the Ethics Commission.
2015-16 County Building Commission Member
A County Building Commission member may purchase and develop property owned and managed by a County Urban Renewal Authority without violating W. Va. Code §§ 6B-2-5(d)(1), 6B-2-5(b) or 61-10-15.
2017-18 Cabinet Secretary
W. Va. Code § 6B-2-5(h) does not prohibit a Cabinet Secretary’s lease of real property to a firm which has or may have regulatory matters before his department as the lease predates his appointment to public office and is being continued under its original terms. He may not use his public office to unlawfully benefit the firm and must seek a Property Exemption from the Ethics Commission if he seeks to make a material change, such as a rent increase, to the terms of the lease.
2018-06 Fire Chief
A deputy fire marshal may lease and operate a private club that is subject to the City’s fire code as long as neither he nor a subordinate of his inspect or investigate matters concerning the club.
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PUBLIC CONTRACTS back to top
2007-03 County Assessor
Continued employment of Assessor’s fiancé' in Assessor’s Office following marriage to County Assessor would not violate (d) but would violate W. Va. Code § 61-10-15
2007-08 Public School Teacher
May enter into vending services contract with school system by which he is employed
2007-11 Municipal Utilities Commission Board Member
Commission may contract with company owned by part-time appointed Board Member to install water tank, provided Member is recused
2008-08 City Attorney
Conflict would arise from spouse's business contracting with city
Full-time City attorney is equivalent to a General Counsel or Prosecuting Attorney with inherent authority over municipal contracting.
2008-10 County Commissioner
Contract between County Airport Authority and business owned by County Commissioner not subject to prohibition where Commissioner does not serve on Airport Authority (but see 61-10-15)
2009-08 Board of Directors of State Agency--overrruled, in part, by Advisory Opinion 2017-22
• Board members associated with entities which may have financial interest in Agency's contracts may not serve on subcommittee which reviews and recommends funding proposals.
• Board members associated with entities which may have financial interest in Agency's contracts may continue to serve on Board, but must recuse themselves from discussion, deliberation and decision-making on matters related to those entities with which they are associated.
2009-11 Board of Education / Assistant Principal
• Assistant Principal is subject to the prohibitions in § 61-10-15.
Assistant Principal has voice, influence, or control over subject Board of Education contract affecting his school by virtue of his responsibility to oversee all school activities at his school.
• Board of Education may not contract with Assistant Principal's private business to provide after-school driver's education program to County students.
2010-03 County Board of Education Candidate
• Spouse of county BOE member may be employed as Chief mechanic, a service position that meets exception in § 61-10-15.
• May not use position to obtain, increase or promote the interests of spouse as a BOE employee.
2010-04 County Board of Education Member
Board may contract with a private non-profit when one of the Board of Education members sits on the Board of the non-profit so long as the common Board member does not vote on any matters relating to the non-profit and recuses himself from the decision-making process and vote. (This portion overruled by AO 2011-12; common Board member is no longer required to recuse himself, and may vote.)
May not use position to obtain, increase or promote the interests of spouse as a BOE employee.
2010-06 Public Library
• Ethics Act's prohibition against interest in public contract does not apply to part-time appointed official.
• Board member whose law firm represents library may serve on the board, but must recuse himself from all matters related to the law firm's contract.
• Board member of Public Library created by Special Act of the Legislature and joint venture of county and city entities not subject to § 61-10-15.
2010-10 Board of Directors of a County Authority
Ethics Act does not prohibit part time appointed officials from bidding at auction on items sold by Board on which they serve, so long as they recuse themselves from all related matters; but § 61-10-15 prohibits part time appointed officials from bidding at auction on items sold by Board on which they serve.
2010-14 County Board of Education Member
Regarding sales to schools and booster clubs from his restaurant
2010-15 County Board of Education Member
• County BOE Member may not be paid to officiate as a sports official in his own county
• County BOE Member may volunteer as a referee and receive $1 to obtain insurance coverage
2010-16 County Board of Education Member
• County BOE Member may contract with State Department of Education for online teaching even though some teachers from her county may participate.
• Subject contract with State, not County BOE, and thus Member lacks control over contract
• County BOE Member lacks control over County BOE’s reimbursement of county teachers’ expenses incurred in taking Member’s online course .
2010-20 Conservation Districts
• May not spend public funds (in excess of $1,000) to construct project on an Elected Board Member’s property, absent a contract exemption.
Public contract provision in Ethics Act contains no exception for part-time elected officials.
• Not subject to the prohibitions of West Virginia Code § 61-10-15.
2010-21 - County Board of Education
• Ethics Act does not prohibit contract with a private club in which an Elected Board Member and Treasurer own less than five percent of the outstanding shares of stock.
• May not contract with a private club in which an Elected Board Member, Treasurer and spouse of the Superintendent own stock, absent a contract exemption, due to the prohibitions of West Virginia Code § 61-10-15.
• May not contract with a business with which public officials or their spouses serve as a director, pursuant to the Ethics Act.
2010-24 Board of Education
• May purchase property owned, in part, by a Sheriff’s Chief Tax Deputy.
• Chief Tax Deputy does not exercise control over BOE contracts.
• Chief Tax Deputy not subject to § 61-10-15 since position is neither statutorily created nor does she take an oath of office.
• May not purchase property owned, in part, by a part-time Assistant Prosecutor, absent contract exemption due to the prohibitions of West Virginia Code § 61-10-15.
• Assistant Prosecutor exercises control over BOE contracts by providing legal representation.
• Assistant prosecutor meets the “part-time appointed public official” exception to the Ethics Act’s public contract limitation.
• Assistant Prosecutor is a public official for purposes of § 61-10-15 since position is statutorily created and he takes an oath of office.
• Assistant Prosecutor exercises voice, influence, or control over BOE contracts.
2011-01 County Council Member
• County Council Member’s business may appraise estates so long she recuses herself from any matters coming before the County Council involving the probate of any estate her business has appraised.County Council Member’s business may not appraise any estates over which the Sheriff has been appointed by the County Council as the administrator. County Council Member’s business should be removed from the Fiduciary Supervisor’s list of available appraisers.
County Council Member may not appear, as a representative or witness, before the Council, either about the appraised value, or the amount of her compensation.
• County Council Member may not accept protected persons from the Sheriff for placement in her nursing home, absent a contract exemption for the Sheriff.
2011-02 County Council Member
• County Council Member’s business may contract with a multi-county Conservation District under the following circumstances:
(1) the contract is let via a sealed bid process;
(2) the project is not funded by County money;
(3) the project is not the subject of an agreement between the District and the County including any agreement for flood control as authorized by W.Va. Code § 19-21A-13 ; and
(4) the affected Member recuses himself from the District’s appropriation request or any request for funding.
• Opinion does not authorize the employment of County Commissioners or County Council Members, their spouses or dependents, by Conservation Districts in the County where they serve.
2011-03 County Hospital
• County Hospital, whose members are appointed by the County Commission, may modify an existing contract with a city-owned hospital that employs a County Commissioner.
....The County Commission does not have direct authority or control over the contract; neither the County Commission nor the County Hospital appoints the members of the city-owned hospital’s board of trustees or appropriate money to the city-owned hospital.
....The County Commissioner may not use his position to influence the award of the contract.
....If a matter relating to the subject contract comes before the County Commission, the County Commissioner/city-owned hospital employee should recuse himself from voting.
2011-09 County Hospital
• County Hospital may accept unsolicited offer of equipment and related services from appointed board member.
County Hospital may accept unsolicited offer of real property from appointed board member so long as: there are no financial conditions associated with the property transfer; and the body notifies the public of the member’s offer and allows other property owners to offer their property.
• County Hospital may accept unsolicited offer of real property from appointed board member even if there are unresolved issues requiring mitigation (e.g. environmental hazards, or outstanding liens), but only if an independent evaluation determines that the overriding benefit is to the governing body rather than the donor and it receives permission from the Ethics Commission.
• Modifies AO 95-09 by clarifying that the donation (as opposed to the leasing) of property does not constitute a public contract.
2011-10 County Board of Education (BOE)
• Spouse of county BOE Superintendent may not be employed as Director of Student Services, a prohibited administrative position under W. Va. Code § 61-10-15.
Spouse of county BOE Superintendent may be employed as School Psychologist, a position that meets the exception in W. Va. Code § 61-10-15.
• Spouse of county BOE Superintendent may be continue to be physically located in the central office without violating W. Va. Code § 61-10-15. The nature of the work performed, not location, is outcome determinative.
• Superintendent may not use position to obtain, increase or promote the interests of spouse as a BOE employee.
2011-12 Town Attorney
• Town’s elected officials may vote to appropriate funds to a non-profit organization on which they and/or their family members serve as uncompensated board members and/or officers.
• Overrules portion of AO 2010-04 wherein member of a non-profit board was prohibited from voting as a member of the Board of Education.
2011-20 An Elected County Commissioner
• May purchase tax liens at a Sheriff's sale or through the State Auditor's Office, or both, when County Commission had no direct involvement in the assessment of the property.
• May not purchase a tax lien on property for which the owner requested adjustment of assessed value or other relief from County Commission sitting as the board of equalization and review.
2012-01 Mayor
• Ethics Act does not prohibit city employed building inspector from serving on City Council, but he must perform his Council duties on his own time, not during his public work hours. Ethics Act does not prohibit a building inspector/city employee from serving on City Council.
• City council member employed by city may not vote on a personnel matter which affects him directly as opposed to affecting five or more employees in the same or similar manner.
• City employed building inspector serving on City Council must recuse himself when citizens who are affected by his official actions come before City Council to address or dispute his official actions.
2012-02 County Commissioner
• Ethics Act does not prohibit County from purchasing property from real estate business with which a County Commissioner is associated, with limitations: Commissioner may not use his position to influence purchase of the property; specifically, he may not communicate with fellow County Commissioners, or Members or staff of the Building Commission, on matters relating to the property.
No prohibited financial interest where neither Commissioner nor his immediate family members have ownership interest in property County Commission seeks to purchase from real estate business with which he is associated.
• No prohibited financial interest where Commissioner is not: a director or officer; the listing agent for the property; or, entitled to receive any commission from the sale of the property.
• County Commissioner associated with real estate business selling property to County meets statutory exemption so long as he recuses himself. (See Voting)
County Commissioner associated with real estate business selling property to County must recuse himself from all matters related thereto.
2012-03 County Agency
• Ethics Act does not prohibit County Agency from employing Supervisor’s son, even though they live in the same house, so long as the Supervisor is completely removed from the hiring process.
• Ethics Act does not prohibit County Agency from employing Supervisor’s son even though they live in the same house.
Supervisor employed by County Agency is not a county officer and therefore is not subject to provisions of W. Va. Code § 61-10-15.
• General rule: Public servant should not supervise a relative.
Supervisor employed by County Agency may supervise son on emergency calls and while in the field.
2012-05 Public Employee/This opinion was overruled by 2013-47
• Although public employee has personal financial interest in employer, interest does not create prohibition against employer contracting with agency on which employee serves as public official.
• Employment by public agency constitutes personal financial interest which prohibits employee who serves as public official from voting on matters that affect public employer.
• Matters affecting the BOE uniquely affect public official’s employer, not a class of five or more similarly situated County BOEs.
2012-07 Mayor
• may not use public resources for the benefit of his private business;
• may not use subordinate staff to perform work associated with his private business while the subordinates are on the government time clock;
• may not solicit private business from subordinates;
• may not distribute promotional materials concerning his private business from his office and/or in City/Town Hall;
may not have an interest in a public contract, with certain exceptions;
• must recuse himself when a current customer appears before Council; and
• must recuse himself from: drafting bid specifications or requests for proposals;
• recommending selection of the vendor; and/or
approving the method or manner of payment to the vendor; and
• when serving as municipal judge, must:
if customer within past six months appears, disclose the fact thereof and recuse himself if either party requests; and
recuse himself from cases involving customers within the past six months.
2012-12 Local Board of Health
• Board of Health’s part-time appointed Health Officer may accept patient referrals from the Health Department so long as s/he does not make, participate in making, or in any way attempt to use his or her office or employment to influence a government decision affecting his or her financial or limited financial interest.
• Full-time health officer may not contract with own Board of Health unless Board seeks and receives advice or a contract exemption from Ethics Commission.
• Local Board of Health formed by a county and a municipality not subject to strict provisions of § 61-10-15.
County Boards of Health are subject to strict provisions of § 61-10-15; their health officers (part time and full-time) may not contract with own Board of Health unless Board seeks and receives advice or a contract exemption from Ethics Commission.
2012-13 Member of a County Board of Education (BOE)
• May contract with a public university to supervise university students during their placement in public schools in the county where he serves so long as he does not use any public resources, including BOE staff, to perform his private contractual duties.
• Agreement between public university and BOE not a public contract.
2012-16 County Commission
• Prohibited from purchasing private property from appointed member of County Building Commission.
Purchase of property from appointed member creates impermissible conflict and a prohibited interest in a public contract.
• May seek Contract Exemption if it believes the property is only viable option.
2012-24 Mayor
• May reside with father who is employed by City.
May not exercise supervisory control over his father/city employee.
• May not conduct his father’s evaluations, set his schedule, authorize overtime, or approve father’s direct supervisor’s recommendations which directly affect the terms and conditions of his father’s employment.
Must recuse himself from personnel matters which uniquely affect his father as opposed to matters affecting his father as a class of five or more similarly situated employees.
May participate in collective bargaining agreement negotiations with union of City employees of which father is a member.
Must recuse himself from the negotiation of any provision in collective bargaining agreement which uniquely affects his father, but may vote on the collective bargaining agreement in its entirety.
2012-26 Candidate for County Commission
•Spouse may not remain employed with County Clerk’s office or by any other county office or agency if Candidate becomes county commissioner.
•Spousal exemption created by § 61-10-15 (l):
• does not extend to persons elected to office whose spouses are already employed by County government or County school system
• only extends to certain spouses who were employed by county prior to their marriage to a county official.
2012-28 Candidate for Prosecuting Attorney
• If Requester is elected Prosecuting Attorney, spouse may not continue her employment with the Prosecuting Attorney’s office.
• Requester’s spouse may be employed by another county office or agency so long as she is chosen for such a position based on her experience and qualifications, not based on favoritism to the Requester.
2012-29 County Emergency Services Director
• May not be compensated for performing duties of managing federal grant when those duties are the usual and customary duties associated with County Emergency Services Director.
• May not privately contract with County to manage a federal grant given to County for mitigation projects, when Requester’s duties as County Emergency Services Director gives him direct authority and control over private contract with County.
2012-30 County Emergency Services Director
• May privately contract with Municipality within County to manage federal grant for mitigation projects when Municipality does not fall under County’s floodplain jurisdiction.
• Does not have direct authority voice, influence, or control over Municipality’s decision relating to grant money, and the expenditure thereof.
Must notify County Commission of contractual arrangement with Municipality; to obtain approval; and abide by any restrictions that County Commission imposes.
2012-32 State Legislator and County BOE Bus Operator
• May contract with Regional Educational Service Agency (RESA) provided he: does not use his public position to obtain unfair advantage in securing contract; does not use his public position to gain unfair advantage for the RESA by which he is employed; and does not get paid during Legislative Session if he does not perform his contractual duties.
• May contract with RESA as Bus Operator exercises no control over contract.
• Must perform RESA duties on his own time; not during BOE work hours.
• May be required to file verified time records with Ethics Commission if RESA duties performed during regularly scheduled BOE work hours.
2012-34 Public Agency
May permit employee who was
involuntarily denied boarding from a flight while in travel status to accept compensation from airline.
2012-37 Mayor
$100/year compensation for serving on City Council de minimis
Appointment to
position on Council not a public contract
May vote for candidate to fill vacancy on Council who is a customer of her husband
2012-38 Part-time Appointed Member of a Review Commission
• May provide referral list of names of companies and individuals as prospective buyers to owners of distressed properties appearing before Review Commission.
May, if Review Commission unable to assist in facilitating sale of distressed property (despite providing list of prospective buyers), as part-time appointed public official, purchase property from interested person subject to the following limitations:
• may not use confidential information acquired in course of official duties to further own personal interests or the interests of another person; and
• must recuse self from all matters relating to subject property.
2012-40 Assistant Superintendent
Has voice, influence or control over spouse's subcontract with company that provides services to county school system, therefore contract prohibited.
2012-42 - Conservation District
May award $500 scholarship per calendar year to District supervisor’s child so long as District supervisor recuses him/herself from all participation in selection of scholarship participants, leaves the room during discussion and decision-making period, and fully discloses his or her interests.
• District supervisor may not informally “lobby” or otherwise attempt to influence voting members of, or other decision-makers in, the government agency to select his/her child.
2012-45 County Attorney
• Has direct authority or control over County’s public contracts contemplated by W. Va. Code § 6B-2-5(d).
• Has “voice” and “influence” over all County contracts for purposes of W. Va. Code § 61-10-15.
• Position not “county office" so not subject to W. Va. Code § 61-10-15.
• May not receive additional pay for serving as project coordinator for County Building Commission, absent a contract exemptio
n.
2012-46 City Council Member
• May serve on City Council although Council Member’s law firm contracts with City.
• Does not have prohibited financial interest in contract between law firm since Council Member is employee of law firm, not owner or director.
• May not: (1) receive any commissions or remuneration as a result of contract between law firm and City; (2) work behind the scenes to steer business to law firm; or, (3) participate in deliberation or vote on matters relating to contract with his firm, e.g. approving invoices.
• Must excuse himself from participating in discussion and decision-making process by leaving room when item is being discussed or decided; fully disclosing his interests; and recusing himself from voting on the issue. Meeting minutes must reflect basis for recusal and that Council Member left room during all discussion and vote on item under consideration.
2012-47 County Commission
• May appoint a County Commissioner to serve as a voting member of a County Ambulance Authority, a subunit of county government.
• Should consult with its attorney on whether other laws permit proposed self-appointment, especially when enabling legislation does not specifically authorize self-appointments and position is compensated.
• County Commissioner does not have prohibited financial interest and may vote on matters affecting the County Ambulance Authority which come before County Commission.
]
2013-01 Mayor
• City may employ mayor’s daughter, subject to limitations.
• Governing body must advertise all positions in which member of body knows in advance that family member is interested therein.
• Affected member must recuse him/herself from all decisions regarding candidates, including: deciding whether position needs to be filled; writing job description or establishing job requirements; reviewing applications or resumes; interviewing applicants; ranking applicants; and participating in decision-making process.
• If relative is hired, affected member must be completely recused from all personnel matters related to that relative, including without limitation: salary, raises, promotion, discipline, termination or lay-offs, unless that relative is member of class of five or more.
• For recusal to be proper, official shall disclose her/his conflict of interest and leave room during discussion, deliberation and vote thereon. Meeting minutes shall reflect official’s recusal.
• May not:
• informally attempt to influence official action on behalf of relative;
• “lobby” fellow members of governing body to take favorable action on relative’s behalf; or
• attempt to influence relative’s supervisor to take favorable action.
• May not supervise any relative or relative’s supervisor.
2013-09 County Prosecutor
• Ethics Act does not prohibit Assistant Prosecutor from serving as elected County Commissioner in another County, even if counties are situated in same judicial circuit.
• Assistant Prosecutor must perform County Commission duties on his own time, not during public work hours.
2013-13 County Commissioner
• Unless it obtains a contract exemption, County Commission prohibited from leasing its marina to business partner of a County Commissioner, even when such marina is unrelated to the partnership.
2013-19 City Council Member
• A town council member may not (prospectively) rent a building owned by the town.
• The prior lease was proper, as the town council member was not a member at the time of original lease.
• Regarding town’s property offered for rent, the town council must use due diligence, must advertise publicly, offer fair opportunity to compete, and use recent property comparables. After this process, the town may seek a contract exemption. However, the affected town council member may not participate in the decision regarding seeking a contract exemption, but rather must recuse himself/herself.
2013-22 State Employee A state employee may enter into a subcontract via his/her private trucking business with a contractor of a state agency.
Here, the subcontract does not constitute use of public office for private gain because the employee has no control or authority over the selection of the state agency contractor and will not perform work for his/her private trucking business while working for the state agency.
2013-24 Regional Solid Waste Authority
• A Regional Solid Waste Authority may continue to contract with an insurance agency while the Authority’s Chairperson is Vice President and a principal thereof.
• Part time appointed public officials are exempt from the prohibition against having an interest in the profits or benefits of a public contract over which they have authority or control, provided that the official in his/her public position, is excluded from matters related to the contract.
2013-27 Teachers
• Teachers who served on a Textbook Adoption Committee, who participated in selecting and approving a textbook may not enter into subcontracts with a private textbook company for the purpose of training other teachers in the selected textbook’s use.
• WV Code §61-10-15 and § 6B-2-5(d)(1) apply to these facts. Teachers who were members of the Textbook Adoption Committee had influence, voice, and control over the selection of the private textbook company’s textbook and its adoption.
2013-36 County Assessor
• A County Assessor may purchase office supplies from a company owned by his employee’s fiancé. (The employee has no involvement with supply purchases. The County Assessor has no financial or personal relationship with the employee or his/her fiancé.)
WV Code § 61-10-15 is applicable to the County Assessor, but not to all county employees.
• There may be no interest in public contracts and no favoritism. The employee has no voice over purchases, and is not a “county official”. The County Assessor is a county official, but there is no Ethics Act violation because the employee has no control over purchases and the County Assessor has no personal or financial relationship with the employee or his/ her fiancé.
2013-41 County Employee
A county employee may not serve on County Commission while employed full time by the County Ambulance Authority.
W.Va. Code §61-10-15 prohibits county officials from having an interest in public contracts. The County Commission appoints all members of the County Ambulance Authority and has authority to make contributions to the ambulance authority from general funds. If elected, the county employee would have voice, influence or control over the County Ambulance Authority who has control over his/her employment, via the Authority’s Executive Director.
2013-58 County Commission/Regional Drug Court Team A Regional Drug Court Team and its Advisory Board may contract with a County Commissioner to provide dental services to a drug court participant, with limitations.
• The contract for dental work must be let out via a sealed bid process, dental work must not be funded by or comingled with funds from the county commission, and the affected county commissioner must recuse himself/herself from any Drug Court requests for funding directed to the County Commission.
• This dental work was to be paid for from individual donations and grants, and voluntary allocation of County Commission funds did not constitute direct authority or control.
2014-02 State Board Members
Are not prohibited from serving on the State Board or from voting on the applications submitted by municipalities with which they have a relationship. The Ethics Act’s definition of “business” does not include a governing body, therefore these State Board members do not have a financial interest in the municipal applications under W.Va. Code § 6B-1-3(b).
2014-04 Assistant Park Superintendent
•May serve at the same park where his/her brother has a contract to operate its marina, with limitations. A third party must investigate complaints and report these to his/her supervisor. Assistant Park Superintendent should not inspect the concessions or initiate corrective action, but should either assign another employee to do so, or do so along with another non-subordinate employee.
•Prohibition against interest in public contract is limited to “immediate family members” based on the inherent financial relationships between spouses who live together, as well as dependent children, grandchildren, and parents. By contrast, an adult sibling is not presumptively financially dependent on another sibling. Therefore, the contract between Assistant Park Superintendent’s brother and the state agency is not prohibited under W.Va. Code § 6B-2-5(d).
2014-05 County Board of Education
• May purchase a scoreboard from an athletic booster organization, a private, non-profit charitable organization, despite having a member who is common to both the governing body and the private organization.
• Common member to each organization is not compensated by the athletics boosters organization, has no financial relationship with the boosters organization, and is not a party to the boosters organization loan for the scoreboard.
• Common member is not required to recuse him/herself on any matters related to any contract or transaction between the governing body and the boosters. Non- profit organizations are not encompassed in the Ethics Act definition of a “business” in W.Va. Code § 6b-1-3(b).
• Neither W.Va. Code § 61-10-15 nor 6B-2-5(d)(1) prohibits the contract, as the common member does not have a personal interest in the contract, and the non-profit’s financial interest cannot be imputed to the common member by virtue of his position on the non- profit board, without evidence that he/she receives financial benefit in the transaction.
2014-08 Appointed Member of County Solid Waste Authority
• May, in his/her private capacity, bring a civil suit against the authority on whose board he/she serves, with limitations.
Member must recuse him/herself from deliberations or votes related to his/her lawsuit, as he/she has a direct financial interest in the litigation, and is a party to the litigation. Member is further prohibited from discussing, deliberating, or voting on waste hauling certificates of convenience and necessity by the Public Service Commission, the subject matter of the lawsuit.
Member is further prohibited from participating in the authority’s development of any plan regarding related matters, unless done as a member of a class of five or more similarly situated parties.
• Member must not use his/her public position to further his/her private interests, must not use confidential information obtained through his/her public position to further private interests, and may not informally communicate with fellow appointed members of the authority to influence voting related to the lawsuit.
2014-09 Candidate for County Board of Education
• May, if elected, be employed as a teacher for a multi-county area vocational center that services the county because the Board of Education is not the teacher’s employer.
County board of education member is not prohibited from voting on matters related to the vocational center because he/she does not have a financial interest in the funding for the vocational center as an employee of the vocational center.
• Candidate/employee does not have the requisite control in employment decisions to invoke prohibitions in WV Code § 61-10-15.
• Some conditions apply: If elected, candidate may not use his/her position on the county board of education to obtain a position at the vocational center, to promote raises or other benefits to his/herself or others, unless the class exception is applicable, and may not serve on the vocational center’s Administrative council. Candidate may not use public resources, including county board of education staff to perform private work for the vocational center.
2014-12 Sheriff
May not sell unused or surplus weapons directly to the son of a Deputy Sheriff and deposit the money into the Concealed Weapons Fund, as it would be using his public position to benefit the son of a subordinate in violation of the Act’s prohibition against use of public office for private gain, and would be an unavoidable conflict of interest.
2014-15 State Agency
May sell advertising to defray the cost of wellness tools on its website to assist public employees to improve their health because it falls within the Ethics Act’s definition of usual and customary duties and the advancement of public policy goals or constituent services.
Selling such advertising does not constitute prohibited endorsement of a vendor or product, and so the state agency must include a disclaimer with the advertisement making clear that the appearance of the advertising should not be construed as endorsement.
Must allow equal access for advertising to all businesses or classes of businesses related to health and wellness.
2014-17 County Sheriff
Does not have a prohibited conflict of interest if his father-in-law bids on or is awarded a contract with the Sheriff’s office. The definition of “immediate family member” does not include father-in-law, and there is no financial relationship between the Sheriff and his father-in-law, so there is no prohibited financial interest.
2015-05 City Council Member
City council member may continue her lease agreement with the city building commission as long as she does not serve on the city building commission or participate in the appointment of members to serve on the building commission.
2015-16 County Building Commission Member
A County Building Commission member may purchase and develop property owned and managed by a County Urban Renewal Authority without violating W. Va. Code §§ 6B-2-5(d)(1), 6B-2-5(b) or 61-10-15.
2016-12 County Prosecutor
A County Prosecutor does not have a prohibited financial or pecuniary interest in his mother-in-law’s building’s sales agreement; therefore, the purchase of the building by the County Commission is permissible under W.Va. Code § 6B-2-5(d) and W.Va. Code § 61-10-15.
2017-02 County Commissioner
• W.Va. Code §61-10-15 prohibits Commissioner’s company from submitting bids to provide contractors with materials for a Parks and Recreation Commission project.
• Commissioner has an indirect pecuniary interest in contract when his/her financial interest is directly tied to whether customers of his/her company are able to secure the contract.
•
W .Va. Code § 61-10-15 also prohibits the company from directly contracting to provide materials to the county public service district.
2017-04 A Candidate for County Commission
W.Va. Code § 61-10-15 prohibits a candidate for county commission, if elected, from continuing to be employed by a public library to which the county commission provides funding. The commission’s appropriation to the library constitutes approximately 7 percent of the library’s budget which, for purposes of § 61-10-15, constitutes the exercise of voice, influence and control over the library’s contracts.
2017-10 A County Commissioner's Company
A County Commissioner’s company may sell construction materials and supplies to county contractors to use on non-county projects.
2017-11 A County Commissioner
A County Commissioner may not knowingly sell his products to contractors or subcontractors to use for county projects. The Requester’s staff is not required to ask all customers what the final disposition of the materials purchased will be but, instead, the Requester must take reasonable precautions to ensure that his products are not sold to county contractors or subcontractors to use for county construction projects.
2017-12 A County Commissioner
Neither the Ethics Act nor W.Va. Code § 61-10-15 prohibits an employee or board member of a county parks board from being employed by a Convention and Visitor’s Bureau (“CVB”) or serving on a CVB board even if the parks board provides some in-kind support to the CVB. A parks board member who is also employed by the CVB may not vote on the appropriations of money or the awarding of a contract to the CVB.
2017-22 A State Agency
A part-time appointed state board member whose spouse has a finder’s fee agreement with property owners applying for inclusion in the board’s conservation easement program may serve on the board or one of its subcommittees, but must recuse himself from all board and subcommittee matters involving conservation easement applications.
For recusal to be proper, he must disclose the nature of his spouse’s financial interest in the contract and comply with the other recusal requirements in W. Va. Code § 6B-2-5(j) and related Legislative Rule governing interests in public contracts, W. Va. Code R. § 158-8-5 (2009).
Advisory Opinion 2017-22 overrules, in part, Advisory Opinions 2009-08 and 2011-18
2018-05 Potential Board of Education Member
A BOE member would not have sufficient voice, influence, or control over her employment contract with WVU Extension Service to prohibit serving as a Board of Education member, if elected, given the BOE’s limited appropriations to WVU Extension Services and the Requester’s lack of power to make appointments to her local extension service committee
2018-07 A County Commission
A County Commission may allow the Sheriff to live rent-free in a house located in the county park because the Sheriff’s presence would enhance security at the park and he would repair and maintain the house.
2018-09 A City
A city council member does not have a prohibited interest in a city’s proposed public contract to purchase property adjacent to the member’s residence and 28 other residences because the benefit to the member is not selective, differential or in disproportion to the benefit provided to the other 28 owners. The member may deliberate and vote on the purchase as a member of a class because he is similarly situated to the other 28 owners.
2018-10 Board of Education
A BOE member may continue to be employed by a staffing agency to perform work for a textbook company in other counties when that company markets textbooks and educational materials to the BOE member’s Board of Education. The BOE member meets the exemption provided to public officials who are employees of a vendor or supplier under W. Va. Code § 61-10-15(e).
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PUBLIC CONTRACTS - EXEMPTIONS back to top
2006-11 County Prosecuting Attorney
Commission will not grant hardship waiver where contract is prohibited by W. Va. Code 61-10-15 [Note: Subsequent amendment to W. Va. Code § 61-10-15 provides discretion to Commission to grant waivers]
2012-36 State Employee
• May contract with State of West Virginia to compile official papers of former Governor.
• Does not have control over contract.
• Does not have access to confidential information related to contract award.
May not use public resources, including Requester’s own time and subordinate staff, to perform the duties of the contract.
2016-06 County Public Service District
A contract exemption is not required when board members’ pecuniary interests are de minimis.
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REVOLVING DOOR
2011-04 Per Diem Legislative Attorney
• Per Diem Legislative Attorney, who is not, on July 1, 2011, a Legislative employee as defined by the IRS, is not subject to revolving door prohibition.
• Independent contractors are not covered by the Ethics Act.
2011-19 A State Licensing Board
• May spending public funds to hire registered lobbyist, to serve as a Legislative liaison
.
• Registered lobbyist retained by a public agency as Legislative liaison must register as a lobbyist.
• Revolving door prohibition does not apply to contract employee/former executive director who terminated employment befor July 1, 2011 cut-off date. (§6B-3-2(e))
2012-25 State Employee
•May represent clients before his former agency upon his departure from government without waiting one year.
•Not an “appointed public official” so one year limitation does not apply because:
•position not created by law
•no oath of office
•neither full-time staff attorney nor accountant
•May not represent clients in matters in which he was substantially involved.
•May not use or reveal confidential information.
•May register as lobbyist upon his departure from government without waiting one year since he is not under direct supervision of Member of Executive Department.
2013-39 Former State Employee
• The Ethics Act contains a one-year “cooling off” period which prohibits certain high-ranking government officials and employees from registering as Lobbyists for one year following their departure from government. The Ethics Commission has no statutory authority to grant exemptions.
• This former employee, as general counsel to an agency under the Executive Department, did not report directly to the Governor and was not directly supervised by his staff. Employee reported directly to a Cabinet Secretary and Deputy Secretary for Legal Services.
• The Ethics Act’s revolving door prohibition is inapplicable to this former state employee, but he may not use or reveal any confidential information from his past position.
2014-18 Retired State Agency Employee
May accept a new position with a private consulting firm which contracts with his/her former employer, with limitations. The retired employee may not improperly disclose confidential information or use it for his/her own or another’s personal interests. Revolving door restrictions do not apply, because the retired employee’s state agency position was not created by law, was not appointed by the governor, and was not either the position of attorney or accountant. If the retired employee must appear before his/her former agency, he/she must first seek the agency’s approval to do so.
2014-19 State Regulatory Agency
May employ someone who owns stock in a regulated company, and whose spouse is employed in the regulated industry, as its Division Director. Where stock ownership was less than 5%, the director would file Financial Disclosure Statements, would have no authority over contracts, and regulation would be pursuant to statutory formula, employment was permissible. Such employment is not prohibited under revolving door rules, nor would such employment create an inescapable conflict.
2016-02 Former Legislative Research Analyst
A former Legislative Research Analyst may register as a lobbyist after the termination of his employment without being subject to the one-year post-employment waiting period.
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SOLICITATION OF BUSINESS
back to top
2012-48 State Licensing Board
• May not hire candidate for executive director when candidate rents from Board Member who is also subject to the Board’s regulation.
• Although candidate received property exemption to lease from Board Member, its terms require him and his subordinates to be removed from all matters affecting Board Member.
• Impossible for candidate to comply with requirements of property exemption due to Board’s small staff, administrative structure, and business relationship between candidate and Board Member
2014-15 State Agency
• May sell advertising to defray the cost of wellness tools on its website to assist public employees to improve their health because it falls within the Ethics Act’s definition of usual and customary duties and the advancement of public policy goals or constituent services.
• Selling such advertising does not constitute prohibited endorsement of a vendor or product, and so the state agency must include a disclaimer with the advertisement making clear that the appearance of the advertising should not be construed as endorsement.
• Must allow equal access for advertising to all businesses or classes of businesses related to health and wellness.
2018-01 A County Commission
The sale of sponsorships for park benches is not a gift solicitation but a fund-raising activity based upon an exchange of value either commercial or personal. Potential sponsors may not be coerced into buying a sponsorship and may not receive unlawful or political favoritism in return for purchasing a sponsorship.
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VOTING AND RECUSAL back to top
2005-06 City Council Member
A City’s procedural rule purporting to require a Council Member to vote despite abstention at direction of presiding official are inconsistent with state ethics statute that requires public servants refrain from voting on matters in which they have a personal financial interest.
2005-12 County Planning Commission
Board Member may not vote on matters regarding developers or contractors who are current business customers
2005-14 County Commission
May adopt more specific recusal procedure
2006-06 State Legislator
Voting on matters relating to employer controlled by rules of each house
2006-09 City Mayor
Voting permitted where only hypothetical private gain involved
Not voting recommended to avoid appearance of impropriety
2009-04 County School Board Member
May vote on matters pertaining to the continuation of superintendent employment contract despite civil litigation against superintendent by school board member's employer's department head since school board member lacks financial interest in outcome of lawsuit.
2009-06 City Council Member
May vote on matters relating to a church in which he is a member absent a financial interest
2009-07 County Commissioner
• County Commissioner, a private attorney, may prepare wills, but must fully recuse himself from County Commission's probate therof;
• County Commissioner may not appear in a representative capacity in any probate proceeding before the County Commission, even if uncontested;
• County Commissioner may testify as witness to will's validity before County Commission but must recuse himself from decision-making on any such will.
2009-08 Board of directors of State Agency--overruled, in part, by Advisory Opinion 2017-22
• Board members associated with entities which may have financial interest in Agency's contracts may not serve on subcommittee which reviews and recommends funding proposals.
• Board members associated with entities which may have financial interest in Agency's contracts may continue to serve on Board, but must recuse themselves from discussion, deliberation and decision-making on matters related to those entities with which they are associated.
2009-14 Part-time Appointed Board member of a Public Agency
Member must recuse herself from discussion, deliberation and decision-making on all matters related to a contract between the Agency and her employer since she is the Executive Director and oversees the contract on her employer's behalf.
2010-04 County Board of Education Member
Board may contract with a private non-profit when one of the Board of Education members sits on the Board of the non-profit so long as the common Board member does not vote on any matters relating to the non-profit and recuses himself from the decision-making process and vote.
(This portion overruled by AO 2011-12; common Board member is no longer required to recuse himself, and may vote.)
2010-13 County Board of Education Member
•Spouse of County BOE member may be employed as auditor in Central Office, a service position that meets exception in § 61-10-15
• May not use position to obtain, increase or promote the interests of spouse as a BOE employee
• May not vote on matters specific to his wife including raise, renewal of employment contract, or discipline
• May vote on overall budget, but must recuse himself if line item affects wife or all four auditors if BOE specifically addresses any such line item.
2011-01 County Council Member
County Council Member’s business may appraise estates so long she recuses herself from any matters coming before the County Council involving the probate of any estate her business has appraised.County Council Member’s business may
not appraise any estates over which the Sheriff has been appointed by the County Council as the administrator. County Council Member’s business should be removed from the Fiduciary Supervisor’s list of available appraisers.
County Council Member may
not appear, as a representative or witness, before the Council, either about the appraised value, or the amount of her compensation.
County Council Member may not accept protected persons from the Sheriff for placement in her nursing home, absent a contract exemption for the Sheriff.
2011-02 County Council Member
County Council Member’s business may contract with a multi-county Conservation District under the following circumstances:
(1) the contract is let via a sealed bid process;
(2) the project is not funded by County money;
(3) the project is not the subject of an agreement between the District and the County including any agreement for flood control as authorized by W.Va. Code § 19-21A-13 ; and (4) the affected Member recuses himself from the District’s appropriation request or any request for funding.
Opinion does not authorize the employment of County Commissioners or County Council Members, their spouses or dependents, by Conservation Districts in the County where they serve.
2011-06 County Public Service District Member (non-precedential)
An appointed board member, who in his private capacity has participated in other rate cases related to a particular utility company, may not participate in the PSD’s deliberations and actions related to the PSD’s role in the West Virginia Public Service Commission’s investigation of that utility company.
Although not expressly prohibited by the voting provision of the Ethics Act since he is a member of a class of five or more, the member’s membership in the Home Owners Association, as well as his representative advocacy on its behalf, constitute a personal interest.
There could be an appearance that the member is using the PSD to bring suit in the District’s name for his personal benefit, thus constituting the prohibited use of public office for private gain.
2011-09 County Hospital
• County Hospital may accept unsolicited offer of equipment and related services from appointed board member.
County Hospital may accept unsolicited offer of real property from appointed board member so long as: there are no financial conditions associated with the property transfer; and the body notifies the public of the member’s offer and allows other property owners to offer their property.
• County Hospital may accept unsolicited offer of real property from appointed board member even if there are unresolved issues requiring mitigation (e.g. environmental hazards, or outstanding liens), but only if an independent evaluation determines that the overriding benefit is to the governing body rather than the donor and it receives permission from the Ethics Commission.
Modifies AO 95-09 by clarifying that the donation (as opposed to the leasing) of property does not constitute a public contract.
2011-12 Town Attorney
•Town’s elected officials may vote to appropriate funds to a non-profit organization on which they and/or their family members serve as uncompensated board members and/or officers.
•Overrules portion of AO 2010-04 wherein member of a non-profit board was prohibited from voting as a member of the Board of Education.
2011-15 - An Appointed Member of a Board of Health
An Appointed Member of a Board of Health who is the past president of a fraternal organization which sued the Board of Health is required to recuse himself from being involved in deliberations or votes relating to the lawsuit.
An Appointed Member of a Board of Health who has business interests affected by the Board of Health regulations may vote on regulations or policies which govern smoking in public places. The fact that he is a member and/or officer of an organization which has an interest in Clean Air regulations does not prohibit him from voting on the Clean Air regulations as five or more such organizations are affected.
2011-16- An Appointed Member of a Board of Health
An appointed Member of a Board of Health who is a member of a fraternal order which belongs to a fraternal organization which sued the Board of Health is required to recuse himself from being involved in deliberations or votes relating to the lawsuit.
An Appointed Member of a Board of Health who is a member of a non-profit fraternal order which has an interest in Board of Health regulations may vote on Clean Air Regulations or other policies. The member does not have a financial interest in the fraternal order, and does not need to recuse herself.
2011-18 - Industry representatives on the governing council of a State Agency--overruled, in part, by Advisory Opinion 2017-22
May not serve on the initial review panel for grant applications.
May not serve on the comittee to draft legislative rules relating to the award of grants.
May participate as a member of council, and vote on approval of recommended grant application absent a prohibited interest necessitating recusal.
May participate as a member of council, and vote on draft legislative rules relating to the award of grants absent a prohibited interest necessitating recusal.
2012-01 Mayor
Ethics Act does not prohibit city employed building inspector from serving on City Council, but he must perform his Council duties on his own time, not during his public work hours. Ethics Act does not prohibit a building inspector/city employee from serving on City Council.
City council member employed by city may not vote on a personnel matter which affects him directly as opposed to affecting five or more employees in the same or similar manner.
City employed building inspector serving on City Council must recuse himself when citizens who are affected by his official actions come before City Council to address or dispute his official actions.
2012-02 County Commissioner
Ethics Act does not prohibit County from purchasing property from real estate business with which a County Commissioner is associated, with limitations: Commissioner may not use his position to influence purchase of the property; specifically, he may not communicate with fellow County Commissioners, or Members or staff of the Building Commission, on matters relating to the property.
No prohibited financial interest where neither Commissioner nor his immediate family members have ownership interest in property County Commission seeks to purchase from real estate business with which he is associated.
No prohibited financial interest where Commissioner is not: a director or officer; the listing agent for the property; or, entitled to receive any commission from the sale of the property. County Commissioner associated with real estate business selling property to County meets statutory exemption so long as he recuses himself. (See Voting)
County Commissioner associated with real estate business selling property to County must recuse himself from all matters related thereto.
2012-05 Public Employee //This Opinion was over ruled by 2013-47//
Although public employee has personal financial interest in employer, interest does not create prohibition against employer contracting with agency on which employee serves as public official.
Employment by public agency constitutes personal financial interest which prohibits employee who serves as public official from voting on matters that affect public employer.
Matters affecting the BOE uniquely affect public official’s employer, not a class of five or more similarly situated County BOEs.
2012-07 Mayor
•may not use public resources for the benefit of his private business;
•may not use subordinate staff to perform work associated with his private business while the subordinates are on the government time clock;
•may not solicit private business from subordinates;
•may not distribute promotional materials concerning his private business from his office and/or in City/Town Hall;
•may not have an interest in a public contract, with certain exceptions;
•must recuse himself when a current customer appears before Council; and
•must recuse himself from: drafting bid specifications or requests for proposals;
•recommending selection of the vendor; and/or
•approving the method or manner of payment to the vendor; and
when serving as municipal judge, must:
•if customer within past six months appears, disclose the fact thereof and recuse himself if either party requests; and recuse himself from cases involving customers within the past six months.
2012-13 Member of a County Board of Education (BOE)
May contract with a public university to supervise university students during their placement in public schools in the county where he serves so long as he does not use any public resources, including BOE staff, to perform his private contractual duties.
Agreement between public university and BOE not a public contract.
2012-17 Presiding Officer of a house of West Virginia Legislature
• May not be retained to provide legal services to an Association which is actively engaged in lobbying Legislature on behalf of its members who are public employees.
• Proposed employment contract presents an inescapable conflict, given the unique position held and power wielded by the presiding officer.
• Access to confidential information may have chilling effect on other legislators, if proposed employment contract permitted.
• Public may perceive that Association has hired him because of his unique ability to influence legislation.
Other Associations that do not employee a high ranking member of the Legislature may believe that they are at a disadvantage in the legislative process.
• Opinion limited to Presiding Officers of houses of West Virginia Legislature.
2012-19 Member of the Legislature
• May be retained to provide consulting services to Public University during and after his term of office.
Conflict of interest cured by his removal from potentially overlapping committees.
• Must consult with Presiding Officer of his house and abide by appropriate legislative voting rule.
• May not use influence of legislative position to attempt to affect the actions of University personnel to enhance his contractual benefits; introduce, sponsor or advocate legislation to benefit the University in any way; influence either the State’s distribution of federal grant money or State funds to the University for any purpose, not just those related to his consulting contract; or influence the appropriation of public funds to benefit the University in any way.
2012-21 Local Health Department
Any person or public entity subject to the Ethics Act may seek advisory opinion about their own prospective conduct.
Public servant members of non-profit entity that oversees and distributes federal grants to their employers must recuse themselves from considering, evaluating, discussing, ranking, and/or overseeing funding decisions, including the funding matrix.
Possibly permissible for non-profit organization to handle funding allocation matters if:
• the non-profit entity and its board are truly independent of the State of West Virginia and the local health departments;
• as a matter of law, the state agency has clear legal authority to give this funding authority to the non-profit entity generally;
• the state agency has legal authority to delegate a portion of its executive powers to a non-profit organization; and
• the relevant federal grant guidelines expressly permit this delegation of authority to the non-profit entity.
2012-24 Mayor
• May reside with father who is employed by City.
• May not exercise supervisory control over his father/city employee.
• May not conduct his father’s evaluations, set his schedule, authorize overtime, or approve father’s direct supervisor’s recommendations which directly affect the terms and conditions of his father’s employment.
• Must recuse himself from personnel matters which uniquely affect his father as opposed to matters affecting his father as a class of five or more similarly situated employees.
• May participate in collective bargaining agreement negotiations with union of City employees of which father is a member.
• Must recuse himself from the negotiation of any provision in collective bargaining agreement which uniquely affects his father, but may vote on the collective bargaining agreement in its entirety.
2012-37 Mayor
$100/year compensation for serving on City Council de minimis
Appointment to position on Council not a public contract
May vote for candidate to fill vacancy on Council who is a customer of her husband
2012-39 County Commissioner
May vote and participate in matters relating to Prosecuting Attorney's office even though he owns a business with County Prosecuting Attorney. Lacks prohibited financial interest in the operation of the Prosecutor's Office since Prosecutor's salary set by statute.
2012-41 County Board of Health
Licensed septic tank cleaner may serve on County Board of Health. Application to County Board of Health for tri-annual license does not constitute appearing before agency on which he serves for purposes of contesting issuance of license or permit.
2012-42 Conservation District
• May award $500 scholarship per calendar year to District supervisor’s child so long as District supervisor recuses him/herself from all participation in selection of scholarship participants, leaves the room during discussion and decision-making period, and fully discloses his or her interests.
• District supervisor may not informally “lobby” or otherwise attempt to influence voting members of, or other decision-makers in, the government agency to select his/her child.
2012-44 State Agency
• May appropriate a de minimis amount of State resources ($1,500) to a related Association to provide matching funds to allow the Association to secure a grant.
• Executive Director of State Agency who serves on the Association’s Board at Agency’s request may be involved in advising Agency regarding distribution of money to Association because serving on Association’s Board is part of Director’s public job duties and Association’s mission is to assist other non-profit entities, not the Director’s public employer
• Chairperson of State Agency who serves on Association’s Board by virtue of his/her private employment with a large non-profit should recuse himself from voting on contributing money to Association.
2012-46 City Council Member
• May serve on City Council although Council Member’s law firm contracts with City.
• Does not have prohibited financial interest in contract between law firm since Council Member is employee of law firm, not owner or director.
• May not: (1) receive any commissions or remuneration as a result of contract between law firm and City; (2) work behind the scenes to steer business to law firm; or, (3) participate in deliberation or vote on matters relating to contract with his firm, e.g. approving invoices.
• Must excuse himself from participating in discussion and decision-making process by leaving room when item is being discussed or decided; fully disclosing his interests; and recusing himself from voting on the issue. Meeting minutes must reflect basis for recusal and that Council Member left room during all discussion and vote on item under consideration.
2012-48 State Licensing Board
• May not hire candidate for executive director when candidate rents from Board Member who is also subject to the Board’s regulation.
• Although candidate received property exemption to lease from Board Member, its terms require him and his subordinates to be removed from all matters affecting Board Member.
• Impossible for candidate to comply with requirements of property exemption due to Board’s small staff, administrative structure, and business relationship between candidate and Board Member
2012-47 County Commission
• May appoint a County Commissioner to serve as a voting member of a County Ambulance Authority, a subunit of county government.
• Should consult with its attorney on whether other laws permit proposed self-appointment, especially when enabling legislation does not specifically authorize self-appointments and position is compensated.
• County Commissioner does not have prohibited financial interest and may vote on matters affecting the County Ambulance Authority which come before County Commission.
2012-53 County Board of Education
• Members do not have financial interest requiring recusal when:
• Three or more Members from same county attended same training,
• Superintendent (or designee) has reviewed and approved reimbursement of group travel expenses, and
• Meeting agenda specifically discloses that travel expense forms for the Members are being approved.
• When one or two Members attend training, recusal is required when Board considers their travel expense reimbursement requests.
• For recusal to be proper, official shall disclose her/his conflict of interest and leave room during discussion, deliberation and vote thereon. Meeting minutes shall reflect official’s recusal.
• Ethics Commission declined to establish bright line rule.
2013-01 Mayor
• City may employ mayor’s daughter, subject to limitations.
• Governing body must advertise all positions in which member of body knows in advance that family member is interested therein.
• Affected member must recuse him/herself from all decisions regarding candidates, including: deciding whether position needs to be filled; writing job description or establishing job requirements; reviewing applications or resumes; interviewing applicants; ranking applicants; and participating in decision-making process.
• If relative is hired, affected member must be completely recused from all personnel matters related to that relative, including without limitation: salary, raises, promotion, discipline, termination or lay-offs, unless that relative is member of class of five or more.
• For recusal to be proper, official shall disclose her/his conflict of interest and leave room during discussion, deliberation and vote thereon. Meeting minutes shall reflect official’s recusal.
• May not:
• informally attempt to influence official action on behalf of relative;
• “lobby” fellow members of governing body to take favorable action on relative’s behalf; or
• attempt to influence relative’s supervisor to take favorable action.
• May not supervise any relative or relative’s supervisor.
2013-03 Solid Waste Authority
• Member/banker who has been directly involved in approving loans for Board Member/waste hauler within past 12 months must recuse himself from matters affecting Member/waste hauler, unless he is affected as member of class of five or more.
• If Member/banker is only a bank board member who has not been directly involved with loans to Member/waste hauler, then recusal is not required.
2013-11 State Legislator
• State Legislator may not sponsor legislation relating to issue upon which he advised a client of his private law practice prior to his election to Legislature when bill uniquely affects his client, rather than class of five or more.
• Presiding Officer determines whether to excuse Legislator from voting.
2013-18 County Commissioner
A County Commissioner may vote on the finances of his/her county board, including insurance contracts.
The County Commissioner has no financial interest in the insurance firm seeking the board’s patronage, but is merely a customer of the insurance firm under consideration.
2013-19 City Council Member
• A town council member may not (prospectively) rent a building owned by the town.
• The prior lease was proper, as the town council member was not a member at the time of original lease.
• Regarding town’s property offered for rent, the town council must use due diligence, must advertise publicly, offer fair opportunity to compete, and use recent property comparables. After this process, the town may seek a contract exemption. However, the affected town council member may not participate in the decision regarding seeking a contract exemption, but rather must recuse himself/herself.
2013-24 Regional Solid Waste Authority
• A Regional Solid Waste Authority may continue to contract with an insurance agency while the Authority’s Chairperson is Vice President and a principal thereof.
• Part time appointed public officials are exempt from the prohibition against having an interest in the profits or benefits of a public contract over which they have authority or control, provided that the official in his/her public position, is excluded from matters related to the contract.
2013-25 Board Member of Conservation District
• A Conservation District may not reimburse landowner expenses where the provider is a member of the Conservation District Board unless the Conservation District seeks and obtains a contract exemption from the Ethics Commission.
• A Conflict of interest exists where the elected Board Member of Conservation District Board, votes to approve landowners’ applications to participate in the program and receive reimbursement for lime/fertilizer, and the board member effectively provides these products and services.
• The conflict of interest may not be cured by Board Member’s recusal from voting. Further, the Board Member may not contract with another vendor to provide the services, thereby circumventing the Ethics Act.
• A Conservation District Board member’s failure to respond to an Ethics Commission’s request for additional information, and failure to timely file a Financial Disclosure Statement may constitute intentional avoidance of disclosure, constituting knowing failure, a misdemeanor under WV code §6B-2-10(c).
2013-30 State Agency Commissioner
• The Ethics Act prohibits the Commissioner of a State Agency that promotes and regulates live dog and horse racing throughout the state from retaining a 20% ownership interest in a horse that will compete in WV. (This commissioner would be subject to regulations which he/she is charged with enforcing, creating a conflict of interest.)
• WV Code § 6B-2-5(k) states there can be no participation in rate making or licensing where the ownership interest is greater than 10%.
WV Code § 6B-2-5(j) prohibits public servants from voting on matters in which they have a financial interest; therefore the State Agency Commissioner is prohibited from voting on matters related to horse racing.
• The Commissioner of this State Agency is privy to confidential information, and must avoid the appearance of impropriety, or unfair advantage over other horse owners.
2013-32 Town Council Member
A town council member may vote on matters related to the local branch of a nonprofit organization even though his/her father will be its Vice Chairperson. (The town council member’s father is not an employee of the nonprofit organization.)
Nonprofit does not fall under the definition of “business” under the Ethics Act.
2013-35 Housing Authority Inspector/Mayor
• A Housing Authority may continue to employ a part time inspector who was recently elected Mayor of a nearby town, with limitations.
• The Mayor must recuse himself/herself from any matters regarding his Housing Authority employer.
• If the Mayor also serves as Municipal Judge, additional care must be taken when citizens under his/her authority as housing inspector appear in municipal court. He/she must disclose the conflict, and if requested by either party, must recuse himself/herself. The Mayor will also be prohibited from presiding as municipal judge when he/she performed a housing inspection for a party within the last six months.
2013-47 Town Council Members, County Employees
•Town Council members who are currently employed, or whose spouses are currently employed by the County Board of Education may vote on issues concerning property deeded to the Board of Education.
•W.Va. Code §6B-1-3(b) defines business as “any entity through which business for profit is conducted”. This definition does not include a governing body.
•W.Va. Code § 6B-2-5(d) states that no elected or appointed public official or public employee or member of his/her immediate family or business with which he/she is associated may be a party to or have an interest in the profits or benefits of a contract which the official or employee may have direct authority to enter into or over which he/she may have control.
•W.Va. Code § 6B-2-5(j)(1)(A) states that public officials may not vote on a matter in which they or an immediate family member or a business with which they or an immediate family member is associated have a financial interest.
•The Ethics Commission overrules AO 2012-05, and finds that the Ethics Act does not prohibit a public official from voting on a matter with which his/her public employer has a financial interest. Further, retired employees have no financial interest. Here, a council member who is currently employed by the County Board of Education as a teacher is subject to W.Va. Code§ 61-1-15, but has no voice or control over the contract under these facts.
2013-53 County Board of Education
• A county Board of Education member may vote on changing the Board of Education’s financial institution to a local bank in which he/she is a shareholder. He/she holds less than 1% stock so that neither the Ethics Act or W.Va. Code § 61-10-15 prohibit the Board of Education from contracting with the bank in which the board member owns stock. Some limitations apply.
• The board member is prohibited from steering business to this bank, may not use undue influence, and still must recuse himself/herself on votes regarding the bank.
• It is generally impermissible for a county official to have a pecuniary interest in a contract over which he/she has control. (W.Va. Code § 61-10-15(a))
There is a specific exception for interest in banks in W.Va. Code § 61-10-15(f), though, as long as the person recuses himself/herself from the “deliberations or ultimate determination” of the depository of funds.
2013-58 County Commission/Regional Drug Court Team
• A Regional Drug Court Team and its Advisory Board may contract with a County Commissioner to provide dental services to a drug court participant, with limitations.
• The contract for dental work must be let out via a sealed bid process, dental work must not be funded by or comingled with funds from the county commission, and the affected county commissioner must recuse himself/herself from any Drug Court requests for funding directed to the County Commission.
• This dental work was to be paid for from individual donations and grants, and voluntary allocation of County Commission funds did not constitute direct authority or control.
2014-05 County Board of Education
• May purchase a scoreboard from an athletic booster organization, a private, non-profit charitable organization, despite having a member who is common to both the governing body and the private organization.
• Common member to each organization is not compensated by the athletics boosters organization, has no financial relationship with the boosters organization, and is not a party to the boosters organization loan for the scoreboard.
• Common member is not required to recuse him/herself on any matters related to any contract or transaction between the governing body and the boosters. Non- profit organizations are not encompassed in the Ethics Act definition of a “business” in W.Va. Code § 6b-1-3(b).
• Neither W.Va. Code § 61-10-15 nor 6B-2-5(d)(1) prohibits the contract, as the common member does not have a personal interest in the contract, and the non-profit’s financial interest cannot be imputed to the common member by virtue of his position on the non- profit board, without evidence that he/she receives financial benefit in the transaction.
2014-10 Members of City Council
• May vote, despite being potentially affected by ward boundary adjustment.
• No distinction is made between members of city council who plan to run for reelection versus those who do not. Each is voting on an issue which will impact the status of future city councils, not the current city council of which they are a part. Neither current city council member has a direct interest, financial or otherwise, in the terms of future elected officials for purposes of the Ethics Act.
2014-14 City Council Member/Municipal Employee
• May vote on general issues affecting municipal employees such as better working conditions, including raises, so long as there are more than five municipal employees, as well as issues affecting the overall municipal budget. He may further vote on issues directly affecting other departments which do not employ him.
• May not vote to advocate on behalf of municipal employees in his own department or deliberate on matters specific to that department unless there are five or more employees in that department.
• He must further recuse himself completely from any matters which affect him uniquely.
2014-23 Board of Education
Board of Education (BOE) employees and retirees and their spouses may serve as county commissioners and may vote on funding requests made by the BOE.
2014-24 County Economic Development Authority
Executive director of county economic development authority (EDA) may be employed by the EDA and serve as a member of the board of the county public service district.
2014-25 County Economic Development Authority
Board member of county economic development authority (EDA) may serve as a common board member to both the EDA and public service district (PSD), and the Requester may vote on any matters between the EDA and the PSD.
2016-01 City
Requires no approval from the Ethics Commission in the absence of the City Engineer participating in the types of decisions contemplated by 7 CSR 1-12.4(g).
2016-03 Municipal Board Member
May vote on whether to grant a variance to a real estate developer who may receive a letter of support or favorable public comment from a non-profit organization on whose board he also serves.
2016-04 City
A city may continue to employ its mayor as city administrator. The city may not show favoritism or give special treatment in making employment or personnel decisions affecting the mayor in his capacity as city administrator. The mayor must recuse himself from the vote and deliberation on personnel matters which directly affect him.
The Ethics Commission overrules AO 2006-05 and AO 2012-04, in part.
2016-13 City Council Member
A City Council member who is also a member of a neighborhood association and in a class of five or more similarly situated homeowners may vote on whether the city approves the development of a hilltop.
2017-12 A County Commissioner
Neither the Ethics Act nor W.Va. Code § 61-10-15 prohibits an employee or board member of a county parks board from being employed by a Convention and Visitor’s Bureau (“CVB”) or serving on a CVB board even if the parks board provides some in-kind support to the CVB. A parks board member who is also employed by the CVB may not vote on the appropriations of money or the awarding of a contract to the CVB.
2017-14 County Commissioner
May vote on county contract with a contractor who is also a customer of the Commissioner’s construction supply business when the contractor does not use the Commissioner’s supplies on county projects because he lacks a prohibited financial interest in these county contracts.
2017-17 A County Planning Commission Member
County planning commission members may not attend public hearings before the planning commission on which they serve on projects with which they are associated. They may, however, pursuant to a specific exception in the Ethics Act and related Code provision, communicate with planning commission staff outside of meetings and public hearings regarding the projects.
2017-19 County Planning Commission
Planning Commission members whose businesses use signs are not required to recuse themselves from matters related to the sign ordinance because they fall within a class of five or more similarly situated businesses that would not be uniquely affected by changes to the sign
2017-22 A State Agency
A part-time A part-time appointed state board member whose spouse has a finder’s fee agreement with property owners applying for inclusion in the board’s conservation easement program may serve on the board or one of its subcommittees, but must recuse himself from all board and subcommittee matters involving conservation easement applications.
For recusal to be proper, he must disclose the nature of his spouse’s financial interest in the contract and comply with the other recusal requirements in W. Va. Code § 6B-2-5(j) and related Legislative Rule governing interests in public contracts, W. Va. Code R. § 158-8-5 (2009).
Advisory Opinion 2017-22 overrules, in part, Advisory Opinions 2009-08 and 2011-18
2018-09 A City
A city council member does not have a prohibited interest in a city’s proposed public contract to purchase property adjacent to the member’s residence and 28 other residences because the benefit to the member is not selective, differential or in disproportion to the benefit provided to the other 28 owners. The member may deliberate and vote on the purchase as a member of a class because he is similarly situated to the other 28 owners.
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61-10-15 COUNTY OFFICERS (CRIMINAL PROVISION) back to top
2005-03 County Board of Education Member
Board Member may serve as volunteer coach for $1 annually
2005-13 County Prosecuting Attorney
Part-time Prosecuting Attorney may not be employed to perform additional legal work for county under grant administered by County Commission
2005-18 County Board of Education Member
May fill competitive position as part-time assistant athletic coach if he declines compensation other than $1 annually
2006-12 County Board of Education Member
May be employed to conduct educational testing by contractor working for federal Department of Education where no county funds involved
2006-15 County Solid Waste Authority
Where Board Member has exclusive tariff from PSC to haul waste in county, Board may contract with Member to haul waste it collects
2006-16 County Board of Education
May not contract with Superintendent’s spouse to provide specialized training to teachers
2007-03 County Assessor
Marriage to employee who works in Assessor’s Office will result in prohibited interest in spouse’s employment contract
2007-08 Public School Teacher
May enter into vending services contract with school system by which he is employed
2008-10 County Commissioner
Contract between Commissioner's business and County Airport Authority which was approved prior to Commissioner's election may remain in effect
Commissioner may not serve on Airport authority
Commissioner may not vote on appointments to Airport authority
Commissioner must follow limitations on voting in regard to Airport Authority matters
2009-01 County Commissioner/Spouse
Spouse may not be employed by County Hospital..appointment power of county commissioner constitutes voice, influence, or control over county hospital (overruled by statute)
Ethics Commission lacks authority to grant exemption to employ spouse except for positions expressly included in § 61-10-15.
2009-05 Prosecuting Attorney
May not contract with local extension service agency because he exercises voice, influence or control over extension agency contracts.
2009-11 Board of Education / Assistant Principal
• Assistant Principal is subject to the prohibitions in § 61-10-15.
• Assistant Principal has voice, influence, or control over subject Board of Education contract affecting his school by virtue of his responsibility to oversee all school activities at his school.
• Board of Education may not contract with Assistant Principal's private business to provide after-school driver's education program to County students.
2010-03 County Board of Education Candidate
Spouse of county BOE member may be employed as Chief mechanic, a service position that meets exception in § 61-10-15.
May not use position to obtain, increase or promote the interests of spouse as a BOE employee.
2010-04 County Board of Education Member
•Board may contract with a private non-profit when one of the Board of Education members sits on the Board of the non-profit so long as the common Board member does not vote on any matters relating to the non-profit and recuses himself from the decision-making process and vote. (This portion overruled by AO 2011-12; common Board member is no longer required to recuse himself, and may vote.)
• May not use position to obtain, increase or promote the interests of spouse as a BOE employee.
2010-06 Public Library
•Ethics Act's prohibition against interest in public contract does not apply to part-time appointed official.
Board member whose law firm represents library may serve on the board, but must recuse himself from all matters related to the law firm's contract.
• Board member of Public Library created by Special Act of the Legislature and joint venture of county and city entities not subject to § 61-10-15.
2010-10 Board of Directors of a County Authority
Ethics Act does not prohibit part time appointed officials from bidding at auction on items sold by Board on which they serve, so long as they recuse themselves from all related matters; but § 61-10-15 prohibits part time appointed officials from bidding at auction on items sold by Board on which they serve.
2010-13 County Board of Education Member
• Spouse of County BOE member may be employed as auditor in Central Office, a service position that meets exception in § 61-10-15
• May not use position to obtain, increase or promote the interests of spouse as a BOE employee
• May not vote on matters specific to his wife including raise, renewal of employment contract, or discipline
• May vote on overall budget, but must recuse himself if line item affects wife or all four auditors if BOE specifically addresses any such line item
2010-14 County Board of Education Member
• County BOE may not contract with Member’s fast food restaurant to provide food for special events
• County schools and/or school sports teams may not contract with County BOE Member’s fast food restaurant to provide food for school sports teams using school funds
• County BOE Member’s fast food restaurant may not sponsor fundraisers on behalf of school teams
• County BOE Member’s fast food restaurant may, under certain conditions, sponsor fundraisers on behalf of booster organizations
•County BOE Member’s fast food restaurant may, under certain conditions, sell food to credit union even though BOE provides office space to credit union
2010-15 County Board of Education Member
- County BOE Member may not be paid to officiate as a sports official in his own county
-County BOE Member may volunteer as a referee and receive $1 to obtain insurance coverage
2010-16 County Board of Education Member
•County BOE Member may contract with State Department of Education for online teaching even though some teachers from her county may participate.
• Subject contract with State, not County BOE, and thus Member lacks control over contract
County BOE Member lacks control over County BOE’s reimbursement of county teachers’ expenses incurred in taking Member’s online course
2010-20 Conservation Districts
•May not spend public funds (in excess of $1,000) to construct project on an Elected Board Member’s property, absent a contract exemption.
• Public contract provision in Ethics Act contains no exception for part-time elected officials.
• Not subject to the prohibitions of West Virginia Code § 61-10-15.
2010-21 - County Board of Education
• Ethics Act does not prohibit contract with a private club in which an Elected Board Member and Treasurer own less than five percent of the outstanding shares of stock.
• May not contract with a private club in which an Elected Board Member, Treasurer and spouse of the Superintendent own stock, absent a contract exemption, due to the prohibitions of West Virginia Code § 61-10-15.
• May not contract with a business with which public officials or their spouses serve as a director, pursuant to the Ethics Act.
2010-24 Board of Education
• May purchase property owned, in part, by a Sheriff’s Chief Tax Deputy.
• Chief Tax Deputy does not exercise control over BOE contracts.
• Chief Tax Deputy not subject to § 61-10-15 since position is neither statutorily created nor does she take an oath of office.
• May not purchase property owned, in part, by a part-time Assistant Prosecutor, absent contract exemption due to the prohibitions of West Virginia Code § 61-10-15.
• Assistant Prosecutor exercises control over BOE contracts by providing legal representation.Assistant prosecutor meets the “part-time appointed public official” exception to the Ethics Act’s public contract limitation.
• Assistant Prosecutor is a public official for purposes of § 61-10-15 since position is statutorily created and he takes an oath of office.
•Assistant Prosecutor exercises voice, influence, or control over BOE contracts.
2011-01 County Council Member
•County Council Member’s business may appraise estates so long she recuses herself from any matters coming before the County Council involving the probate of any estate her business has appraised.County Council Member’s business may not appraise any estates over which the Sheriff has been appointed by the County Council as the administrator. County Council Member’s business should be removed from the Fiduciary Supervisor’s list of available appraisers.
•County Council Member may not appear, as a representative or witness, before the Council, either about the appraised value, or the amount of her compensation.
•County Council Member may not accept protected persons from the Sheriff for placement in her nursing home, absent a contract exemption for the Sheriff.
2011-02 County Council Member
County Council Member’s business may contract with a multi-county Conservation District under the following circumstances:
(1) the contract is let via a sealed bid process;
(2) the project is not funded by County money;
(3) the project is not the subject of an agreement between the District and the County including any agreement for flood control as authorized by W.Va. Code § 19-21A-13 ; and
(4) the affected Member recuses himself from the District’s appropriation request or any request for funding.
Opinion does not authorize the employment of County Commissioners or County Council Members, their spouses or dependents, by Conservation Districts in the County where they serve
2011-03 County Hospital
County Hospital, whose members are appointed by the County Commission, may modify an existing contract with a city-owned hospital that employs a County Commissioner.
....The County Commission does not have direct authority or control over the contract; neither the County Commission nor the County Hospital appoints the members of the city-owned hospital’s board of trustees or appropriate money to the city-owned hospital.
....The County Commissioner may not use his position to influence the award of the contract.
....If a matter relating to the subject contract comes before the County Commission, the County Commissioner/city-owned hospital employee should recuse himself from voting.
2011-10 County Board of Education (BOE)
• Spouse of county BOE Superintendent may not be employed as Director of Student Services, a prohibited administrative position under W. Va. Code § 61-10-15.
• Spouse of county BOE Superintendent may be employed as School Psychologist, a position that meets the exception in W. Va. Code § 61-10-15.
• Spouse of county BOE Superintendent may be continue to be physically located in the central office without violating W. Va. Code § 61-10-15. The nature of the work performed, not location, is outcome determinative.
• Superintendent may not use position to obtain, increase or promote the interests of spouse as a BOE employee.
2011-20 An Elected County Commissioner
•May purchase tax liens at a Sheriff's sale or through the State Auditor's Office, or both, when County Commission had no direct involvement in the assessment of the property.
•May not purchase a tax lien on property for which the owner requested adjustment of assessed value or other relief from County Commission sitting as the board of equalization and review.
2012-02 County Commissioner
• Ethics Act does not prohibit County from purchasing property from real estate business with which a County Commissioner is associated, with limitations: Commissioner may not use his position to influence purchase of the property; specifically, he may not communicate with fellow County Commissioners, or Members or staff of the Building Commission, on matters relating to the property.
• No prohibited financial interest where neither Commissioner nor his immediate family members have ownership interest in property County Commission seeks to purchase from real estate business with which he is associated.
• No prohibited financial interest where Commissioner is not: a director or officer; the listing agent for the property; or, entitled to receive any commission from the sale of the property.
• County Commissioner associated with real estate business selling property to County meets statutory exemption so long as he recuses himself. (See Voting)
• County Commissioner associated with real estate business selling property to County must recuse himself from all matters related thereto.
2012-03 County Agency
• Ethics Act does not prohibit County Agency from employing Supervisor’s son, even though they live in the same house, so long as the Supervisor is completely removed from the hiring process.
• Ethics Act does not prohibit County Agency from employing Supervisor’s son even though they live in the same house.
Supervisor employed by County Agency is not a county officer and therefore is not subject to provisions of W. Va. Code § 61-10-15.
• General rule: Public servant should not supervise a relative.
• Supervisor employed by County Agency may supervise son on emergency calls and while in the field.
2012-11 County Commissioner
Ethics Act permits living with county employee so long as nepotism rules followed.
W. Va. Code § 61-10-15 prohibits living with county employee even if nepotism rules followed and/or even if employee transferred to another county office.
2012-12 Local Board of Health
• Board of Health’s part-time appointed Health Officer may accept patient referrals from the Health Department so long as s/he does not make, participate in making, or in any way attempt to use his or her office or employment to influence a government decision affecting his or her financial or limited financial interest.
• Full-time health officer may not contract with own Board of Health unless Board seeks and receives advice or a contract exemption from Ethics Commission.
• Local Board of Health formed by a county and a municipality not subject to strict provisions of § 61-10-15.
County Boards of Health are subject to strict provisions of § 61-10-15; their health officers (part time and full-time) may not contract with own Board of Health unless Board seeks and receives advice or a contract exemption from Ethics Commission.
2012-13 Member of a County Board of Education (BOE)
• May contract with a public university to supervise university students during their placement in public schools in the county where he serves so long as he does not use any public resources, including BOE staff, to perform his private contractual duties.
• Agreement between public university and BOE not a public contract.
2012-16 County Commission
Prohibited from purchasing private property from appointed member of County Building Commission.
Purchase of property from appointed member creates impermissible conflict and a prohibited interest in a public contract.
May seek Contract Exemption if it believes the property is only viable option.
2012-26 Candidate for County Commission
• Spouse may not remain employed with County Clerk’s office or by any other county office or agency if Candidate becomes county commissioner.
• Spousal exemption created by § 61-10-15 (l):
• does not extend to persons elected to office whose spouses are already employed by County government or County school system
• only extends to certain spouses who were employed by county prior to their marriage to a county official.
2012-28 Candidate for Prosecuting Attorney
If Requester is elected Prosecuting Attorney, spouse may not continue her employment with the Prosecuting Attorney’s office.
Requester’s spouse may be employed by another county office or agency so long as she is chosen for such a position based on her experience and qualifications, not based on favoritism to the Requester.
2012-32 State Legislator and County BOE Bus Operator
• May contract with Regional Educational Service Agency (RESA) provided he: does not use his public position to obtain unfair advantage in securing contract; does not use his public position to gain unfair advantage for the RESA by which he is employed; and does not get paid during Legislative • Session if he does not perform his contractual duties.
• May contract with RESA as Bus Operator exercises no control over contract.
• Must perform RESA duties on his own time; not during BOE work hours.
• May be required to file verified time records with Ethics Commission if RESA duties performed during regularly scheduled BOE work hours.
2012-41 County Board of Health
Licensed septic tank cleaner may serve on County Board of Health. Application to County Board of Health for tri-annual license does not constitute appearing before agency on which he serves for purposes of contesting issuance of license or permit.
2012-42 Conservation Disrict
• May award $500 scholarship per calendar year to District supervisor’s child so long as District supervisor recuses him/herself from all participation in selection of scholarship participants, leaves the room during discussion and decision-making period, and fully discloses his or her interests.
• District supervisor may not informally “lobby” or otherwise attempt to influence voting members of, or other decision-makers in, the government agency to select his/her child.
2012-45 County Attorney
• Has direct authority or control over County’s public contracts contemplated by W. Va. Code § 6B-2-5(d).
• Has “voice” and “influence” over all County contracts for purposes of W. Va. Code § 61-10-15.
• Position not “county office”, so not subject to W. Va. Code § 61-10-15.
• May not receive additional pay for serving as project coordinator for County Building Commission, absent a contract exemption.
2013-08 County Prosecutor
• Ethics Act does not prohibit spouse’s employment as school nurse in same county.
• County Prosecutor has voice, influence, and control over Board of Education contracts.
• Spouse of a County Prosecutor may work as school nurse in same county since position is considered a teacher for purposes of § 61-10-15.
2013-13 County Commissioner
Unless it obtains a contract exemption, County Commission prohibited from leasing its marina to business partner of a County Commissioner, even when such marina is unrelated to the partnership.
2013-15 County Law Enforcement Officer
• Unless it obtains a contract exemption, a County Commission may not pay the Chief Deputy any additional compensation for performing duties of 911 Director given the overlap between law enforcement duties and responsibilities of 911 Director. This would constitute impermissible compensation for performance of customary duties in violation of §6B-2-5(b).
• §61-10-15 also prohibits the Chief Deputy from accepting additional compensation as 911 Director, because a law enforcement deputy sheriff or chief enforcement deputy, is a public official with voice, influence, or control over the new 911 Director contract.
2013-17 Executive Director of Multi-County Regional Governmental Agency
The Executive director of a multi-county Regional Government Agency may redeem reward points and give subordinate employees the benefit thereof, so long as the expenditure on any one employee does not exceed $100 and the total amount for the fiscal year does not exceed the sum of $25 per employee. (If reward points are redeemed to recognize employees, then no public funds may be expended for such recognition during the same year.)
2014-23 Board of Education
Board of Education (BOE) employees and retirees and their spouses may serve as county commissioners and may vote on funding requests made by the BOE.
2014-24 County Economic Development Authority
Executive director of county economic development authority (EDA) may be employed by the EDA and serve as a member of the board of the county public service district.
2014-25 County Economic Development Authority
Board member of county economic development authority (EDA) may serve as a common board member to both the EDA and public service district (PSD), and the Requester may vote on any matters between the EDA and the PSD.
2015-15 Board of Education
W. Va. Code § 61-10-15 prohibits a County Board of Education from employing the Superintendent’s spouse as a literacy coach.
2015-16 County Building Commission Member
A County Building Commission member may purchase and develop property owned and managed by a County Urban Renewal Authority without violating W. Va. Code §§ 6B-2-5(d)(1), 6B-2-5(b) or 61-10-15.
2016-08 County Commission
W. Va. Code § 61-10-15 prohibits a county commission from leasing office space in a county building to an appointed assistant prosecuting attorney.
2016-12 County Prosecutor
A County Prosecutor does not have a prohibited financial or pecuniary interest in his mother-in-law’s building’s sales agreement; therefore, the purchase of the building by the County Commission is permissible under W.Va. Code § 6B-2-5(d) and W.Va. Code § 61-10-15.
2016-18 Prosecutor-elect
The Prosecutor-elect, upon becoming Prosecutor, may not consider hiring the outgoing former Prosecutor to serve as a special prosecutor in a position funded by a grant the former Prosecutor assisted the county and a local nonprofit organization in obtaining.
2017-02 County Commissioner
• W.Va. Code §61-10-15 prohibits Commissioner’s company from submitting bids to provide contractors with materials for a Parks and Recreation Commission project.
• Commissioner has an indirect pecuniary interest in contract when his/her financial interest is directly tied to whether customers of his/her company are able to secure the contract.
•
W .Va. Code § 61-10-15 also prohibits the company from directly contracting to provide materials to the county public service district.
2017-04 A Candidate for County Commission
W.Va. Code § 61-10-15 prohibits a candidate for county commission, if elected, from continuing to be employed by a public library to which the county commission provides funding. The commission’s appropriation to the library constitutes approximately 7 percent of the library’s budget which, for purposes of § 61-10-15, constitutes the exercise of voice, influence and control over the library’s contracts.
2017-10 A County Commissioner's Company
A County Commissioner’s company may sell construction materials and supplies to county contractors to use on non-county projects.
2017-11 A County Commissioner
A County Commissioner may not knowingly sell his products to contractors or subcontractors to use for county projects. The Requester’s staff is not required to ask all customers what the final disposition of the materials purchased will be but, instead, the Requester must take reasonable precautions to ensure that his products are not sold to county contractors or subcontractors to use for county construction projects.
2017-12 A County Commissioner
Neither the Ethics Act nor W.Va. Code § 61-10-15 prohibits an employee or board member of a county parks board from being employed by a Convention and Visitor’s Bureau (“CVB”) or serving on a CVB board even if the parks board provides some in-kind support to the CVB. A parks board member who is also employed by the CVB may not vote on the appropriations of money or the awarding of a contract to the CVB.
May vote on county contract with a contractor who is also a customer of the Commissioner’s construction supply business when the contractor does not use the Commissioner’s supplies on county projects because he lacks a prohibited financial interest in these county contracts.
2017-15 Board of Education Member
W. Va. Code § 61-10-15 prohibits a board of education from contracting with a business that leases commercial property from a company owned by a board of education member’s spouse.
2018-05 Potential Board of Education Member
A BOE member would not have sufficient voice, influence, or control over her employment contract with WVU Extension Service to prohibit serving as a Board of Education member, if elected, given the BOE’s limited appropriations to WVU Extension Services and the Requester’s lack of power to make appointments to her local extension service committee.
2018-10 Board of Education Member
A BOE member may continue to be employed by a staffing agency to perform work for a textbook company in other counties when that company markets textbooks and educational materials to the BOE member’s Board of Education. The BOE member meets the exemption provided to public officials who are employees of a vendor or supplier under W. Va. Code § 61-10-15(e).
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