Grounds for a Complaint
The Ethics Commission addresses only violations of the Ethics Act by public employees and public officials. It is not enough to complain that a public employee or public official has acted improperly. A Complaint must state facts showing that the official or employee violated one of the Act's specific rules or that his/her action was motivated by his/her private financial gain or financial gain for another person.
Complaints which allege trivial or inconsequential violations or which were filed outside of the statute of limitations are dismissed. The statute of limitations for alleged violations is five years.
The Ethics Act establishes a “code of conduct” for public servants at W. Va. Code § 6B-2-5 and
at W. Va. Code § 6B-2B-1. The Act includes several specific rules, including prohibitions against a public official using his position for the personal gain of himself or another person, prohibitions against private financial interests in public contracts, and prohibitions against a public official using his name or likeness on certain items which have been paid for with public funds.
Negligence, incompetence, ignorance, insensitivity or personal animosity do not constitute violations of the Ethics Act unless these actions violate one of the rules set forth in W. Va. Code § 6B-2-5 or § 6B -2B-1. Even criminal misconduct is not an Ethics Act violation unless it constitutes a violation of one of those rules.
After a Verified Complaint is filed with the Ethics Commission, it is referred to the Commission’s Probable Cause Review Board. This Board consists of three members who have been appointed by the Governor with the advice and consent of the Senate.
The Review Board initially determines whether the allegations in the Complaint, if taken as true as they are required to be at that stage of the proceedings, state a “material” violation of the Ethics Act. (A material violation is one which is not trivial or inconsequential.) If the Review Board finds that a Complaint would state a material violation of the Act, it issues a Notice of Investigation and begins a confidential investigation of the allegations in the Complaint.
In addition, persons against whom Complaints have been filed (referred to as “Respondents”) may file a written response to a Complaint or may make a 30-minute oral response to the Review Board.
When the investigation has been concluded, the Review Board determines whether there is “probable cause” to believe that a violation of the Ethics Act has occurred. If it finds that probable cause exists, it issues a “Probable Cause Order” and directs the staff to prepare a Statement of Charges and Notice of Hearing. This document is made public and placed on the Ethics Commission’s website.
If the Review Board finds that there is not probable cause to believe that a violation of the Ethics Act has occurred, the Complaint is dismissed.
The Ethics Commissioners, members of the Review Board and Ethics Commission staff members are not permitted to acknowledge the existence of a Complaint until (and unless) the Review Board has issued the “Probable Cause Order.” However, if the person against whom the Complaint is filed agrees in writing to the release of any information regarding an investigation, the Commission may release that information.
An independent hearing examiner presides at public hearings regarding ethics Complaints. The person against whom the Statement of Charges and Notice of Hearing is filed does not need to be represented by an attorney at the hearing. A staff attorney for the Ethics Commission prosecutes Complaints.
Once the record from the hearing is considered by the Ethics Commission, if a majority of the Commissioners finds that the Respondent has committed a material violation of the Ethics Act, the Commission has authority to impose one or more of the following sanctions:
1. Public reprimand;
2. Cease and desist order;
3. Order of restitution;
4. Fines not to exceed $ 5,000 per violation, and/or
5. Reimbursement to the Commission for the actual costs of investigating and prosecuting a
The Commission may also recommend to the appropriate governmental authority that the person be discharged or removed from office.
For Complaints filed before June 10, 2016, the Commission must make its finding of whether the Respondent has committed a material violation of the Act under the “beyond a reasonable doubt” standard of proof. For Complaints filed on or after June 10, 2016, the standard of proof is “by clear and convincing evidence.”
In addition to the sanctions described above, a violation of some of the provisions of the Ethics Act constitutes a misdemeanor criminal violation with penalties of up to one year in jail. The Commission has no criminal jurisdiction, but if its proceedings reveal evidence of a criminal violation of any nature, the Commission may refer the matter to a county prosecuting attorney.
The Act authorizes the Commission to enter into Conciliation Agreements with persons who are subjects of investigations at any stage of an investigation or proceeding. Although public hearings may be avoided by the Agreement, the Agreement itself must be made public.
Bad Faith Complaint
If the Ethics Commission finds by clear and convincing evidence that a person filed a Complaint or provided information which resulted in an investigation despite knowing that the information provided was not true, or if a Complaint was made or information provided in reckless disregard for the truth or falsity of the statements, then the Commission shall order the person to reimburse the Respondent for his/her reasonable costs incurred, including reasonable attorney fees. The Commission may also order the complainant or informant to reimburse the Commission for its actual costs of investigation and may decline to process any more Complaints filed by that person.