County Boards

January 24, 2011 - Volume 31 Issue 4

Jan. 24-28, 2011 Session Bills Reviewed

By Howard M. O’Cull, Ed.D.,

West Virginia School Board Association Executive Director

Listed below are West Virginia Senate and House of Delegates bills introduced Jan. 24-28, 2011, during the second full week of the First Regular Session of the 80th West Virginia Legislature.

Today is the day 20 of the session, meaning Legislative Rule-Making Review bills are due.

February 21 is the last day to introduce bills in the Senate and the House. (There are certain exceptions, including supplemental appropriations bills for example.)

Bills reviewed are listed topically, beginning with public education bills. A series of education-related bills follow. Lastly, some measures are cited briefly. Senate bills are listed first.

Note: In some cases, much of the verbiage of a proposed statute is included, especially in terms of newly-proposed legislation.

A total 74 bills are reviewed.

NOTE: Measures relating to Tax Increment financing will be reviewed in the Feb. 4, 2011, issue of The Legislature.

For a copy of any bill, please contact WVSBA: 304.346.0571. You also may contact me at hocull@wvsba.org

Bills are posted on the West Virginia Legislature’s Web site: http://www.legis.state.wv.us

Editor’s Note: Listing is not exhaustive.

 

County Boards

House Bill 2806. According to the Bill Note, the purpose of this legislation is to “allow for improvements to the current (state) Ethics (Commission) framework.”

Accordingly, the bill would make a series of definitional changes in the existing ethics laws, one of which would define “elected official” as "…any person holding an office in a governmental entity which is filled by the vote of the appropriate electorate. It shall also include any person appointed to fill a vacancy in such offices.”

In its definitional section, the bill would define:

  1. “Immediate family” as an elected official’s “children, the spouses of his or her children, his or her brothers and their spouses, his or her sisters and their spouses, his or her parents, his or her spouse, the parents of his or her spouse, and any dependent grandchild or grandchildren.”
  2. “Participate” to mean “(an elected official taking) part in or (having or sharing) responsibility for action of a governmental entity or a proceeding, personally, as a public official or employee of the governmental entity, through approval, disapproval, decision, recommendation, the rendering of advice, investigation, or the failure to act or perform a duty.”
  3. "Public employee" as  “any one, whether compensated or not, who is a full-time or part-time employee of any state, county or municipal governmental body or any political subdivision thereof, including county school boards, engaged in the performance of a governmental function including an administrative officer or official of a governmental entity who is not filling an elective office, persons appointed by any elected official when acting in an official capacity, and the appointment is to a post or position wherein the appointee is to serve the governmental entity or an agency thereof, either as a member of an agency, or as an employee thereof…”
  4. “Substantial economic interest" as an “economic interest which is of greater benefit to the public official or employee or other person than to a general class or group of persons,”  except:
    1. “The interest that the public official or employee has in his or her position, office, rank, salary, per diem, or other matter arising solely from his or her public employment or office;
    2. The interest that an elected official who is elected to a house, body, or authority has in a position or office of such house, body, or authority which is required to be filled by a member of such house, body, or authority by law, legislative rule, or charter;
    3. The interest that a person has as a member of the general public.”
  5.  "Transaction involving the governmental entity" as any “proceeding, application, submission, request for a ruling or other determination, contract, claim, case, or other such particular matter which the public official or employee or former public official or employee of the governmental entity in question knows or should know:
    1. Is, or will be, the subject of action by the governmental entity;
    2. is one to which the governmental entity is or will be a party;
    3. Is one in which the governmental entity has a direct interest. A transaction involving the agency of a governmental entity shall have the same meaning with respect to the agency.”

New Section of Code

The measure would add an extensive new section to Ethics Commission statutes - proposed §6B-2-5c relates to “Payment from nonpublic sources.”
According to these proposed statutory provisions:

Prior contracts or subcontracts

  1.  “No public servant shall receive anything of economic value for any service, the subject matter of which:
    1. Is devoted substantially to the responsibilities, programs, or operations of the agency of the public servant and in which the public servant has participated; or
    2. Draws substantially upon official data or ideas which have not become part of the body of public information.
      25 percent interest
  2. “ No public servant and no legal entity in which the public servant exercises control or owns an interest in excess of (25) percent, shall receive any thing of economic value for or in consideration of services rendered, or to be rendered, to or for any person during his public service unless such services are:
    1. Bona fide and actually performed by the public servant or by the entity;
    2. Not within the course of his or her official duties;
    3. Not prohibited by applicable laws or regulations governing nonpublic employment for such public servant; and
    4. Neither performed for nor compensated by any person from whom such public servant would be prohibited by any article or section of this code from receiving a gift.
  3. "An elected official shall not be prohibited for a period of not more than (90) days following the first day of his or her initial term of office from receiving compensation from a person from whom he would be prohibited by this code from receiving a gift for the completion while in office of any contract or subcontract which was entered into prior to his or her initial election to office, provided that such contract or subcontract is written and includes established terms for compensation and completion and that such contract or subcontract shall not be renewed after his initial election.
    “ Within (30) days of taking office, the elected official shall file a written notice of such contract or subcontract with his or her governmental entity and the Ethics Commission, setting forth the nature of the contract or subcontract, the established completion date, and the established compensation therefore.

‘Nothing of economic value’

“No public servant shall receive, directly or indirectly, anything of economic value during the term of his or her public service in consideration of personal services to be rendered to or for any person subsequent to the term of such public service; however, a public servant may enter into a contract for prospective employment during the term of his or her public service unless otherwise prohibited by this Code.”

The bill states the following about “payments for rendering assistance to certain persons:

  1. No public servant, and no legal entity of which such public servant is an officer, director, trustee, partner, or employee, or in which such public servant has a substantial economic interest, shall receive or agree to receive anything of economic value for assisting a person in a transaction, or in an appearance in connection with a transaction, with the agency of such public servant;
  2. No elected official of a governmental entity shall receive or agree to receive anything of economic value for assisting a person in a transaction or in an appearance in connection with a transaction with the governmental entity or its officials or agencies, unless he files a sworn written statement with the board prior to or within 10 days after initial assistance is rendered; "transaction" shall not include a ministerial transaction. (Ministerial transaction [would mean] a transaction that involves routine, administrative communications intended to obtain service, information, or assistance from a public employee whose duties are established in plain and unmistakable terms by law, rule, or regulation);
  3. The contents of the sworn written statement required by this (proposed section of Code would) be prescribed by the Ethics Commission, and such statement shall be a public record;
  4. The Ethics Commission shall review all sworn statements filed in accordance with this subsection. If the Ethics Commission determines that any such sworn statement is deficient or may suggest a possible violation, it shall, within (10) days of the receipt of such statement, notify the elected official filing the statement of its findings.
  5. “Such notification shall be deemed confidential and privileged and shall be made public only in connection with a public hearing by the Ethics Commission for an alleged violation where such would be relevant to the alleged violation for which the elected official is being investigated.”

Subterfuge

Moreover, the measure would add a new section of Code, stating:

“No public official or employee or other person shall transfer anything of economic value or any asset, interest, or liability to any person or governmental entity for the purpose of circumventing any provision of this chapter, unless such transfer is irrevocable.

“A transfer shall not be irrevocable if there exists any contract, letter, counter letter, trust, note, or any other legally enforceable agreement or authority which if exercised or enforced would require or authorize any asset, interest, or liability transferred by the public official or employee or other person to revert back to such public official or employee or other person.”

Finally, the bill states, “The terms of a confidentiality agreement entered into between parties shall not be a transfer prohibited by this (proposed statute), provided that the confidentiality agreement is not entered into for purposes of circumventing the (proposed law.)
“The sale of property subject to owner financing shall not be a transfer prohibited by this (proposed statutory section); and,
“A recorded bond for deed contract shall not be a transfer prohibited by this (proposed statute).”  

There are five House sponsors, including lead sponsor Del. Tim Armstead, R-Kanawha. Introduced Jan. 24. Referred to House Judiciary.

Reference: http://www.legis.state.wv.us/Bill_Status/bills_text.cfm?billdoc=hb2806 intr.htm&yr=2011&sesstype=RS&i=2806

Related measure

House Bill 2821 is a related measure.

It has several proposed provisions relating to financial disclosure under terms of the state’s existing Ethics Act Codes.

These are among its proposed provisions:

  1. There are enhanced reportage sections relating to public officials’ spouses and spouses’ business interests, including a requirement that the public official would have to provide the name and address of each business in which the person filing the statement “and that person's spouse (Editor’s emphasis) has or had in the last year an interest of at least $10,000 at fair market value or at least five percent ownership interest, if that interest is valued at more than $10,000.” 
  2. For the purposes of the proposed statute, “business interests (would) include, but (would not be) limited to, an interest in:
    • Nonpublicly owned businesses;
    • Publicly or privately traded stocks, bonds or securities, including those held in self-administered retirement accounts; and
    • Commercial real estate.”
  3. “Business interests (would) not include specific holdings in mutual funds or retirement accounts if neither the person filing the statement nor an immediate family member of the person are able to control the assets held in the mutual fund or retirement account.”

There are other proposed provisions or proposed statutory amendments.

There are 10 House sponsors, including lead sponsor Del. Tim Miley, D-Harrison. Introduced Jan. 24. Referred to House Judiciary.

Reference: http://www.legis.state.wv.us/Bill_Status/bills_text.cfm?billdoc=hb2821 intr.htm&yr=2011&sesstype=RS&i=2821

Note: Similar proposals have been introduced or considered in a previous legislative session or sessions.

 

House Bill 2914. Similar to House Bill 2491, which is reviewed in the Jan. 17, 2011, issue of The Legislature, this bill would authorize counties, county boards and municipalities to receive funds from levies to support public libraries.

The bill would establish the amounts to be collected for the different classes of property.

The  measure would permit libraries to seek funding from municipal and county authorities.

Lastly, there is a proposed section relating to legislative intent.

There are three House sponsors, including lead sponsor Del. Ron Fragale, D-Harrison. Introduced Jan. 28. Referred to House Political Subdivisions, then House Finance. Fiscal Note.

Reference: http://www.legis.state.wv.us/Bill_Status/bills_text.cfm?billdoc=hb2914 intr.htm&yr=2011&sesstype=RS&i=2914

Note: Similar proposals have been introduced or considered in a previous legislative session or sessions.