Gift Made with Intent to Influence

(a) Persons subject to section. — The provisions of this section apply to all public officials and public employees, whether full or part-time and whether compensated or not, in state, county, municipal governments and their respective boards, agencies, departments, and commissions and in any other regional or local governmental agency, including county school boards.

. . . .

(c) Gifts. —

  1. A public official or public employee may not solicit any gift unless the solicitation is for a charitable purpose with no resulting direct pecuniary benefit conferred upon the official or employee or his or her immediate family: Provided, That no public official or public employee may solicit for a charitable purpose any gift from any person who is also an official or employee of the state and whose position is subordinate to the soliciting official or employee: Provided, however, That nothing herein shall prohibit a candidate for public office from soliciting a lawful political contribution. No official or employee may knowingly accept any gift, directly or indirectly, from a lobbyist or from any person whom the official or employee knows or has reason to know:
    1. (A) Is doing or seeking to do business of any kind with his or her agency;
    2. (B) Is engaged in activities which are regulated or controlled by his or her agency; or
    3. (C) Has financial interests which may be substantially and materially affected, in a manner distinguishable from the public generally, by the performance or nonperformance of his or her official duties.
  2. Notwithstanding the provisions of subdivision (1) of this subsection, a person who is a public official or public employee may accept a gift described in this subdivision, and there shall be a presumption that the receipt of such gift does not impair the impartiality and independent judgment of the person. This presumption may be rebutted only by direct objective evidence that the gift did impair the impartiality and independent judgment of the person or that the person knew or had reason to know that the gift was offered with the intent to impair his or her impartiality and independent judgment. The provisions of subdivision (1) of this subsection do not apply to:
    1. (A) Meals and beverages;
    2. (B) Ceremonial gifts or awards which have insignificant monetary value;
    3. (C) Unsolicited gifts of nominal value or trivial items of informational value;
    4. (D) Reasonable expenses for food, travel, and lodging of the official or employee for a meeting at which the official or employee participates in a panel or has a speaking engagement;
    5. (E) Gifts of tickets or free admission extended to a public official or public employee to attend charitable, cultural, or political events, if the purpose of such gift or admission is a courtesy or ceremony customarily extended to the office;
    6. (F) Gifts that are purely private and personal in nature; or
    7. (G) Gifts from relatives by blood or marriage, or a member of the same household.
  3. The commission shall, through legislative rule promulgated pursuant to chapter 29A of this code, establish guidelines for the acceptance of a reasonable honorarium by public officials and elected officials. The rule promulgated shall be consistent with this section. Any elected public official may accept an honorarium only when:
    1. (A) That official is a part-time elected public official;
    2. (B) The fee is not related to the official’s public position or duties;
    3. (C) The fee is for services provided by the public official that are related to the public official’s regular, nonpublic trade, profession, occupation, hobby, or avocation; and
    4. (D) The honorarium is not provided in exchange for any promise or action on the part of the public official.
  4. Nothing in this section shall be construed so as to prohibit the giving of a lawful political contribution as defined by law.
  5. The Governor or his designee may, in the name of the State of West Virginia, accept and receive gifts from any public or private source. Any gift so obtained shall become the property of the state and shall, within 30 days of the receipt thereof, be registered with the commission and the Division of Culture and History.
  6. Upon prior approval of the Joint Committee on Government and Finance, any member of the Legislature may solicit donations for a regional or national legislative organization conference or other legislative organization function to be held in the state for the purpose of deferring costs to the state for hosting of the conference or function. Legislative organizations are bipartisan regional or national organizations in which the Joint Committee on Government and Finance authorizes payment of dues or other membership fees for the Legislature’s participation and which assist this and other State Legislatures and their staff through any of the following:
    1. (A) Advancing the effectiveness, independence, and integrity of Legislatures in the states of the United States;
    2. (B) Fostering interstate cooperation and facilitating information exchange among State Legislatures;
    3. (C) Representing the states and their Legislatures in the American federal system of government;
    4. (D) Improving the operations and management of State Legislatures and the effectiveness of legislators and legislative staff, and to encourage the practice of high standards of conduct by legislators and legislative staff;
    5. (E) Promoting cooperation between State Legislatures in the United States and Legislatures in other countries.

The solicitations may only be made in writing. The legislative organization may act as fiscal agent for the conference and receive all donations. In the alternative, a bona fide banking institution may act as the fiscal agent. The official letterhead of the Legislature may not be used by the legislative member in conjunction with the fund raising or solicitation effort. The legislative organization for which solicitations are being made shall file with the Joint Committee on Government and Finance and with the Secretary of State for publication in the State Register as provided in §29A-2-1 et seq. of this code, copies of letters, brochures, and other solicitation documents, along with a complete list of the names and last known addresses of all donors and the amount of donations received. Any solicitation by a legislative member shall contain the following disclaimer:

“This solicitation is endorsed by [name of member]. This endorsement does not imply support of the soliciting organization, nor of the sponsors who may respond to the solicitation. A copy of all solicitations are on file with the West Virginia Legislature’s Joint Committee on Government and Finance, and with the Secretary of State and are available for public review.”

(7) Upon written notice to the commission, any member of the board of Public Works may solicit donations for a regional or national organization conference or other function related to the office of the member to be held in the state for the purpose of deferring costs to the state for hosting of the conference or function. The solicitations may only be made in writing. The organization may act as fiscal agent for the conference and receive all donations. In the alternative, a bona fide banking institution may act as the fiscal agent. The official letterhead of the office of the Board of Public Works member may not be used in conjunction with the fund raising or solicitation effort. The organization for which solicitations are being made shall file with the Joint Committee on Government and Finance, with the Secretary of State for publication in the State Register as provided in §29A-2-1 et seq. of this code and with the commission, copies of letters, brochures, and other solicitation documents, along with a complete list of the names and last known addresses of all donors and the amount of donations received. Any solicitation by a member of the board of Public Works shall contain the following disclaimer: “This solicitation is endorsed by (name of member of Board of Public Works.) This endorsement does not imply support of the soliciting organization, nor of the sponsors who may respond to the solicitation. Copies of all solicitations are on file with the West Virginia Legislature’s Joint Committee on Government and Finance, with the West Virginia Secretary of State and with the West Virginia Ethics Commission and are available for public review.” Any moneys in excess of those donations needed for the conference or function shall be deposited in the Capitol Dome and Capitol Improvement Fund established in §5A-4-2 et seq. of this code.

W. Va. Code § 6B-2-5(a), (c).

Extra Compensation for Official Duties

(h)(6) A full-time public official or full-time public employee may not receive private compensation for providing information or services that he or she is required to provide in carrying out his or her public job responsibilities.

W. Va. Code § 6B-2-5(h)(6).

Gift Regardless of Giver Status

No current state statute or regulation falls under the category of “Gift Regardless of Giver’s Status.”

Gift from Lobbyist or Regulated Entity

§ 6B-2-5. Ethical Standards for Elected and Appointed Officials and Public Employees

(c) Gifts –

. . .

No official or employee may knowingly accept any gift, directly or indirectly, from a lobbyist or from any person whom the official or employee knows or has reason to know:

  1. (A) Is doing or seeking to do business of any kind with his or her agency;
  2. (B) Is engaged in activities which are regulated or controlled by his or her agency; or
  3. (C) Has financial interests which may be substantially and materially affected, in a manner distinguishable from the public generally, by the performance or nonperformance of his or her official duties.

(2) Notwithstanding the provisions of subdivision (1) of this subsection, a person who is a public official or public employee may accept a gift described in this subdivision, and there shall be a presumption that the receipt of such gift does not impair the impartiality and independent judgment of the person. This presumption may be rebutted only by direct objective evidence that the gift did impair the impartiality and independent judgment of the person or that the person knew or had reason to know that the gift was offered with the intent to impair his or her impartiality and independent judgment. The provisions of subdivision (1) of this subsection do not apply to:

  1. (A) Meals and beverages;
  2. (B) Ceremonial gifts or awards which have insignificant monetary value;
  3. (C) Unsolicited gifts of nominal value or trivial items of informational value;
  4. (D) Reasonable expenses for food, travel, and lodging of the official or employee for a meeting at which the official or employee participates in a panel or has a speaking engagement;
  5. (E) Gifts of tickets or free admission extended to a public official or public employee to attend charitable, cultural, or political events, if the purpose of such gift or admission is a courtesy or ceremony customarily extended to the office;
  6. (F) Gifts that are purely private and personal in nature; or
  7. (G) Gifts from relatives by blood or marriage, or a member of the same household.

W. Va. Code § 6B-2-5(c)(1), (2).

§ 61-5A-6. Gifts or Gratuities to Public Servants Prohibited; Exceptions

(a) It shall be unlawful:

  1. For any public servant in any department, agency, division, board, bureau or commission of government exercising regulatory functions, or conducting inspections or investigations, or carrying on civil or criminal litigation on behalf of the government, or having custody of prisoners, to solicit, accept or agree to accept, directly or indirectly, any gift or gratuity from a person known by such public servant to be subject to such regulation, inspection, investigation or custody, or against whom such litigation is known by such public servant to be pending or contemplated; or
  2. For any public servant (except an officer or employee of the department of finance and administration who shall be subject to the prohibitions contained in section thirty-five [§ 5A-3-35], article three, chapter five-a of this code) having any official action to perform in connection with bids, contracts, purchases, claims or other pecuniary transactions of the government to solicit, accept or agree to accept, directly or indirectly, any gift or gratuity from any person known by such public servant to be interested in any such bid, contract, purchase, claim or transaction; or
  3. For any public servant having administrative or judicial authority and for any public servant employed by or in an agency or court or other body having such authority, or participating in the enforcement of its decisions, to solicit, accept or agree to accept, directly or indirectly, any gift or gratuity from a person known by such public servant to be interested in any matter before such public servant or an agency, court or body with which he is associated; or
  4. For any public servant in the legislative branch of government to solicit, accept or agree to accept, directly or indirectly, any gift or gratuity from any person known by such public servant to be interested in a bill, transaction or proceeding before the legislature or either house thereof or any agency or committee thereof; or
  5. For any person to offer, give, or agree to give any gift or gratuity prohibited by the provisions of subdivisions (1), (2), (3) or (4) of this subsection (a).

(b) The prohibitions contained in subsection (a) of this section shall not apply to (1) gifts or gratuities conferred on account of kinship or other personal, professional or business relationship independent of the official status of the recipient; or (2) trivial gifts or gratuities involving no substantial risk of affecting official impartiality; or (3) social, professional or business entertainment involving no substantial risk of affecting official impartiality. The prohibitions contained in subdivisions (1), (2), (3) and (4) of subsection (a) of this section shall not apply to campaign contributions made for use in meeting campaign expenses by any public servant by or for whom a certificate of candidacy has been filed for election to the same or another public office for which such campaign is to be conducted, if such campaign contributions are made after the filing of such certificate of candidacy, if no part of such campaign contributions inures to the private financial gain of any public servant, and, when the provisions of article eight [§§ 3-8-1 et seq.], chapter three of this code are applicable to the public office being sought, if such campaign contributions are within the limits specified in said article eight, are reported as campaign contributions pursuant to the provisions of said article eight, and are not otherwise prohibited by said chapter three [§§ 3-1-1 et seq.]. The prohibitions contained in subdivision (5) of subsection (a) of this section shall not apply to campaign contributions made for use in meeting campaign expenses by any public servant by or for whom a certificate of candidacy has been filed for election to the same or another public office for which such campaign is to be conducted, if such campaign contributions are made after the filing of such certificate of candidacy, if the person offering, giving or agreeing to give such campaign contributions does not intend that any part of such campaign contributions inure to the private financial gain of any public servant, and, when the provisions of article eight, chapter three of this code are applicable to the public office being sought, if such campaign contributions are within the limits specified in said article eight, are not otherwise prohibited by said chapter three and if the person offering, giving or agreeing to give such campaign contributions does not intend that such contributions not be reported as campaign contributions pursuant to said article eight.

W. Va. Code § 61-5A-6.

Definitions and Exceptions

Please see above sections for statute specific definitions and exceptions.

Notes/Resources

Resource(s)

West Virginia Ethics Commission Guideline – Gift Guideline

Learn more about state gift laws