|
Making
and Resolving Ethics Complaints |
Ethics
Commission
210 Brooks Street, Suite 300,
Charleston WV 25301
(304) 558-0664 Toll free: 1-866-558-0664
fax (304) 558-2169
Office hours: 8:30 a.m. - 5:00 p.m.
email: ethics@wv.gov
Anyone may file a complaint with the Ethics Commission, if he or
she has information that a public servant has violated the Ethics
Act. No particular form or format is required, but a complaint
must be in writing and must be verified by oath or affirmation.
The Commission also has authority to initiate complaints if it
receives credible information which, if true, would merit an
inquiry into whether a violation of the Ethics Act had occurred.
It is not enough to complain that a public servant has acted
improperly. A complaint must also state facts showing that the
misconduct violated one of the Act's specific rules or that it was
motivated by private financial gain for the public servant, or the
private financial gain of another person.
There is a two year statute of limitations. All complaints
must be filed within two years of the violation or the
Commission has no jurisdiction and may not act. A complaint is
filed only when the Commission receives it.
Filing by facsimile or electronic mail is not permitted.
The Ethics Act establishes
a code of conduct for public servants at W.Va. Code § 6B-2-5. The
Code includes several specific rules, e.g., a prohibition against
private financial interests in public contracts and a general
prohibition against the use of their public positions for their
own private financial gain or that of another. It is not enough to
complain that a public servant is guilty of misconduct, it must
also appear that the misconduct violated one of these rules.
Misconduct resulting from
negligence, incompetence, ignorance, insensitivity or personal
animosity does not constitute a violation of the Ethics Act,
unless it violates one of the rules contained in W.Va. Code §
6B-2-5. Even criminal misconduct is not an Ethics Act
violation, unless it constitutes a violation of one of those rules
Once the Commission
receives a verified complaint, it is referred to the 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 Board must determine whether there is probable cause
to believe that a material violation of the Ethics Act has
occurred.
The Board, assisted by staff
members and an investigator, will conduct an investigation. Its
proceedings are confidential. The Commission will provide a copy of the complaint
to the respondent who may make a personal
appearance before the Board, or may simply make a written response to
the complaint.
The
Commission’s investigations are conducted as discreetly as
possible. The necessity of interviewing witnesses and obtaining
records may, however, alert some members of the public to the
existence of an investigation.
To protect against
public disclosure of unwarranted or frivolous complaints, the Act
requires that, to the extent possible, all information relating to
a filed complaint be kept confidential until the Review Board has
finished its investigation and found probable cause.
The
Commission is not even permitted to acknowledge the existence of a
complaint until the Review Board has found probable cause,
although it may, at the written direction of the person complained
against, release information relating to an investigation.
If, following its investigation,
the Board finds probable cause, the Commission's staff prepares a
Statement of Charges against the person accused. This is much like
the indictment returned by a grand jury in a criminal case.
The members of the Ethics Commission constitute a hearing board to
adjudicate the complaint. Their decision is based on evidence taken at
a public hearing prosecuted by the Commission's attorney before a
hearing examiner. It is not necessary for the complainant to
appear at the hearing unless it is requested that he or she
appears as a witness. A respondent need not be represented by
counsel at the hearing.
If seven of the twelve commissioners find beyond a reasonable
doubt that the accused 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 violation.
The
Commission may also recommend to the appropriate governmental
authority that the person be discharged or removed from office.
....................
In
addition to these sanctions, 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 uncover evidence of
a criminal violation of any nature, the Commission may defer a
complaint it files and refer it to a county prosecuting attorney.
..............
The Act authorizes the Commission to enter into Conciliation
Agreements with persons who are subjects of investigations.
Such an agreement allows a person to resolve a Complaint by
administrative settlement agreement. The inconvenience, expense
and attendant notoriety of a public hearing is avoided.
Conciliation agreements may be entered into at any stage of an
investigation or proceeding. The cooperation of the respondent and
the savings of time and expense are matters
the Commission considers in establishing the penalties to be imposed.
Although public hearings may be avoided by the Agreement, the
Agreement itself must be made public.
If the Commission finds by clear and convincing evidence that a
person filed a complaint or provided information which resulted in
an investigation knowing that material information provided was not
true, or if a complaint was made or information provided in reckless
disregard for the truth or falsity, then the Commission shall order
the person to reimburse the accused for his or her reasonable costs
incurred, including the accused’s attorney fees. The Commission
may also order the complainant or informant to reimburse the
Commission for its actual costs of investigation and may further
decline to process any more complaints filed by that person.
(revised 3/2009)
Click
here for the Verification Form in Adobe pdf format
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