A.O. 99-32 Executive Director of State Agency/Solicitation of Financial Support for State Celebration

An agency of State government has been established to initiate year 2000 activities, events and gatherings which enhance the State's image and business prospects. The agency will help finance a variety of activities including those associated with existing fairs, festivals, and community-based celebrations. The Executive Director asks if he may solicit financial support for the agency's work.

The Ethics Act prohibits public servants from soliciting gifts, unless the gifts are for a charitable purpose. Activities which benefit the poor or disadvantaged are clearly charitable and the Commission has found in some instances that activities which further education or public welfare are charitable as well.

In this instance the activities proposed are intended to benefit the public generally and cannot be said to be aimed at the poor or disadvantaged. The activities are clearly of a promotional nature intended, as the Executive Director explains, to showcase - nationally and internationally - what the people and communities of West Virginia have to offer.

While promotional activities of this type may be a legitimate and valuable governmental function, the Commission finds that they do not constitute a "charitable purpose" and it would be a violation of the Ethics Act for the Executive Director to solicit contributions or other financial sponsorship for them.

A.O. 99-37 State Health Care Agency / Solicitation of Gifts

The Agency administers a federally funded program which provides health care services to the children of financially disadvantaged families. Because this program is clearly a "charitable purpose," agency personnel may solicit financial support for it.

Some of the support will be in the form of products to be distributed in promotional packages to the families of eligible children. The Commission found that the distribution of name brand products would not suggest endorsement of the products and that solicitations conducted and acknowledgments made in a fair and even handed manner would not be a violation of the Ethics Act's prohibition against the use of office for private gain.

A.O. 99-31 County Board of Health / Member's Candidacy for Administrator's Job

The Board of Health must hire an administrator for the local Health Department. The Board advertised the position in newspapers and a member of the Board applied. The Board Chairman asks whether the Board may hire the member for the position, if she is the most qualified applicant.

The Commission followed an earlier ruling that Board members may be considered for employment by their own Board, if (a) the Board provides an adequate and meaningful public notice to all possible applicants; (b) the Board member is removed from the decision making process and independent, impartial decision-makers are substituted; and (c) the Board member possesses the necessary qualifications.

In addition the Commission ruled that the provisions of WV Code 61-10-15, which applies only to county personnel, require the Board member to resign from the Board, before the Board makes its hiring decision. Although the Ethics Act would permit the Board member to remain on the Board during its selection process, the more demanding provisions of WV Code 61-10-15 would not. The Board cannot hire an individual who is still a Board member at the time of its vote without violating that statute.

A.O. 99-28 Regional Service Area Director / Travel to Vendor Seminar

The Director of a RESA was invited by a computer software vendor to attend, at its expense, a conference held in California. The conference would run from noon on Thursday to noon on Saturday and would take four, perhaps five, days depending on travel arrangements. The Director expects to learn about the company's products, including the theoretical concepts upon which they are based, and to attend programs on other significant educational topics.

The Ethics Act prohibits public servants from accepting gifts from vendors, unless the gift fits into one of several enumerated exemptions, such as gifts of nominal value. This invitation is clearly of more than nominal value and it does not fit into any of the Act's other enumerated exemptions.

However, the Act's prohibition against accepting gifts applies to individual public servants and not to public agencies. An agency may accept a gift from an interested person - even though it is of more than nominal value. Travel which results in more benefit to the agency than the public servant will be considered "official" travel and will be treated as a gift to the agency. The incidental personal benefit to the individual traveler is not objectionable, and it is legitimized by the overriding public benefit to the agency.

In Advisory Opinion 92-35 the Ethics Commission ruled that travel which resulted in a significant increase in the traveler's job related skill or knowledge could be considered "official" travel and established five factors to be considered in determining whether travel would be considered "official." [ The five factors are set out in full on the insert. ]

The first of the five factors requires that the trip be necessary to fulfill an existing agency need. "The skill, knowledge or information to be gained from the trip should meet a clear immediate need of the agency. The information should be of immediate value to current or planned activities of the agency rather than theoretically valuable to activities that are neither current nor planned for the foreseeable future."

The Commission noted that travel to maintain or enhance general professional competence may be a legitimate expenditure of an agency's own funds, but it does not satisfy the more demanding standards established for accepting a gift from a vendor. To be acceptable, the travel must respond to an immediate agency need.

Prior to the offer, the RESA had no plans to seek out and evaluate available software programs. It appeared that the RESA would not accept the invitation, if it had to pay to attend, and there was no suggestion that the RESA is willing to pay to have the Director make similar fact-finding visits to other software vendors.

The Commission ruled that it would be a violation for the Director to accept the vendor's offer, since the trip was not necessary to fulfill an existing agency need and lacked overriding public benefit.

Guidelines for Travel Paid for by Interested Parties

1. The trip must be necessary to fulfill an existing agency need.

The first consideration must be whether the trip will significantly enhance the traveler's occupational skill or knowledge or provide important information needed by the agency to meet its official mandate. Public employees and officials who have been offered trips should consult with their supervisor or agency head for guidance in making this judgment.

If the trip was conceived and scheduled by the agency prior to and independent of the offer of payment from a third party, then it is likely that the trip is necessary to the agency's official activities.

The skill, knowledge or information to be gained from the trip should meet a clear immediate need of the agency. The information should be of immediate value to current or planned activities of the agency rather than theoretically valuable to activities that are neither current nor planned for the foreseeable future.

2. The trip must be appropriate for the proposed traveler.

A trip is appropriate for the traveler who needs and will use the information or job skill enhancement or who is the agency employee most suitable to acquire and transfer the information or skill to other appropriate agency personnel.

3. The site of the proposed trip must be appropriate.

Central to this inquiry is a consideration of whether the trip is a reasonable means of meeting the agency's needs. For example, it would not be reasonable for the agency to send its personnel to an out of state resort to obtain information that is readily available locally. Similarly, it would not be reasonable to permit an interested person to provide agency personnel such a trip.

4. The trip must offer a reasonable return on the time spent.

The trip should represent a reasonable investment of the traveler's time when weighed against the information acquired or the degree of improvement in job skills. A five-day trip comprised of two travel days and three days of light class work would not be a reasonable way to acquire information or skills which could be adequately presented in a one day seminar.

This consideration also applies to part-time officials and employees who might travel outside official work hours. If they accept inappropriate free trips offered because of their public positions they may violate the Ethics Act's prohibition against using the prestige of office for private gain.

5. The benefit to the agency must be significantly greater than the incidental benefit to the traveler.

If the incidental personal benefit to the traveler outweighs the benefit to the agency, then the trip is in reality a gift to the traveler and not the agency. In such a case the trip should not be accepted because it is a gift to the individual of more than nominal value.

WV Ethics Commission

1207 Quarrier St. Charleston WV 25301

(304) 558-0664
WV toll free: 1-866-558-0664 Fax (304) 558-2169

A.O. 99-23 Legislator/Employment as County Board of Education Administrator

The Requester is a legislator who accepted a job as an administrator with the county board of education by which he had previously been employed as a teacher. Working to secure local, state and federal grants for the county school system was one of the principal responsibilities of his new position.

Because serving the public school needs of his district is part of a legislator's normal constituent services, the Ethics Commission expressed concern about the Requester being paid by the county to secure state grants and the county board revised the job description to exclude work on grants from the State.

The Commission also considered the Requester's responsibility, as administrator, in regard to federal grant money. The Commission said that if his legislative position gave him the power to influence the State's distribution of federal grant money, it would be a violation for him to accept a job which paid him to facilitate acquisition of those funds. The two positions would create an inescapable conflict. However, the Commission found that members of the legislature play no role in the State's distribution of federal education grants.

The Commission approved the Requester's acceptance of the administrative position subject to an admonition that it would be a violation for him to use the influence of his legislative position in an attempt to secure federal grant funds for the county, as it is a part of his private job description.

A.O. 99-30 County Commissioner / Serving on State Board

A recent appointee to a State Board which conducts hearings and renders decisions in individual cases, also serves as an elected County Commissioner. The enabling legislation requires that board members devote their full time and attention to their board duties. The position of County Commissioner is a part time, salaried office.

No provision of the Ethics Act prohibits public servants from holding a part-time elected position. The County Commissioner's service on the State Board is not a violation of the Ethics Act.

A.O. 99-29 County School Board Member / Doing Business with Training Center

The Board Member and her spouse own a general contracting company which would like to bid on a construction project proposed by a Training Center for disabled adults. She asks if it would be a violation of the Ethics Act or WV Code 61-10-15 if they were to do so.

Both the Ethics Act and WV Code 61-10-15 prohibit public servants from having a personal financial interest in public contracts over which their public positions give them control. The language used by the Ethic Act prohibits private interests in public contracts which the public servant can award or control. WV Code 61-10-15 prohibits interests in contracts over which the public servant has voice, influence or control.

The Center's bylaws provide that three of its ten board members are the Superintendents of the three county school systems, including the Requester's county, served by the Center. Two of the Center's employees, an instructor and its Director, are considered employees of the Requester's School Board, although subject to the direction of the Center's own board.

Although the Requester's School Board does not control the award of the Center's construction contracts and its financial contributions to the Center are relatively insignificant, one of the Center's board members, the Superintendent, answers to the School Board and has an ongoing working relationship with the Requester. In addition, the Center's Director is also a School Board employee potentially subject to termination by the School Board, even though supervised by the Center's board.

The Commission ruled that the Requester, as a member of the School Board, has a sufficient amount of influence over the contracts of the Training Center that it would be a violation of WV Code 61-10-15 for the construction company she and her spouse own to contract with the Training Center.

A.O. 99-34 County Commissioner/Employment by Local Community Services Organization

The County Commissioner has been offered a job with a county Community Services Organization, a nonprofit corporation serving the elderly and funded by State and federal grants. The Commissioner wants to accept the position and continue to serve on the County Commission. The County Commission provides annual financial support of approximately $15,000 to the Organization by paying its utilities bills.

Both the Ethics Act and WV Code 61-10-15, which applies only to county personnel, prohibit public servants from having a personal financial interest in a public contract, purchase or sale over which their public position gives them control. Because they control county contracts, purchases and sales, County Commissioners may not be a party to or have a direct or indirect financial interest in them. It would, for example, be a violation for a business owned by a County Commissioner to sell supplies or services to county agencies.

However, the Ethics Commission ruled that a County Commission's financial support of a nonprofit organization dedicated to activities advancing general public welfare is not the type of transaction governed by WV Code 61-10-15 or the Ethics Act's prohibition against private interests in public contracts. It would not be a violation for the Commissioner to accept the job and continue to serve on the County Commission.

The Ethics Commission did note that the Commissioner's interest as an employee of the Community Service Organization would require him to be recused from deliberation or vote as County Commissioner on matters affecting the Commission's budgetary allocation to that Organization.

A.O. 99-35 County Development Authority / Eligibility of Borrower to Serve on Board

The Development Authority used the proceeds of a federal grant to make a loan to a local business owned by a member of the Authority's Board. That member, who resigned from the Board before the loan was made, was required to personally guarantee the loan. The former Board member now seeks to be reinstated to the Board.

WV Code 61-10-15 prohibits certain county personnel, including the members of a county Development Authority, from having a personal financial interest, directly or indirectly, in a pubic contract, purchase, or sale, over which their public position gives them control. Although the loan has already been made, the former member and his company continue to have a financial interest in the loan and a contractual obligation to the Authority.

Should the company default on the loan, the Authority's Board would have to take action. The ongoing nature of the relationship renders the former member ineligible for reappointment. It would be a violation of WV Code 61-10-15 for the Authority's Board to reinstate the former member as long as the loan is outstanding.

A.O. 99-36 County Ambulance Authority / Eligibility of E-squad Member to Serve on Board

The Authority's emergency work is carried out by volunteer members of emergency squads associated with the Authority. The Authority asks if it would be a violation of WV Code 61-10-15 for squad members to serve on its Board, since most are paid $25 by the Authority for each emergency run they make and the Authority contributes 10 cents, fo each hour they work, to a fund used to purchase uniforms for squad members.

The Commission ruled that it would not be a violation for a squad member to serve on the Authority's Board, so long as he or she did not receive any payment or other financial benefit from emergency squad work, and that a squad member's interest in the benefits from the uniform fund are de minimis and would not constitute a violation.

 
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