The Watergate prosecutor Archibald Cox, at a public hearing in the West Virginia House of Delegates last year, said:

One of today's most urgent problems of public policy [is] the restoration of public confidence in government-confidence which depends upon the assurance that elected and appointed officials do in fact treat their offices as a public trust.

Governor Gaston Caperton, in his 1989 Inaugural Address, made the same point:

West Virginians are an honest and straightforward people and they deserve the same from their public officials. We need to be able to trust each other, and that trust can only be achieved from a firm commitment toward ethical standards in government.

Of course, there are those cynics who say that ethics and morality cannot be legislated, that people will find a way to get around any law especially where matters of self-interest are concerned. Morality, they believe, is a personal, individual commitment.

There is some truth in this, but it ignores the special dimension of life. Morality is an individual matter, but people are influenced by public expectations of them, and when it is behavior in the public sphere that is in question this influence can be very strong.

One way to attempt to reverse the apparent trend toward public immorality is for a society to re-establish its moral standards through the enactment of a code of governmental ethics in its civil law. Moses did this for the people of Israel-, the framers of our Constitution did this with respect to protection of the integrity of the individual in our society when they added the Bill of Rights to the Constitution; and Congress set higher standards for governmental ethicswhen it passed the first federal governmental ethics act in 1978. Of course, the passage of an ethics bill does not automatically create public confidence. As it takes time for standards to degenerate, so it takes time to rebuild them.

As of the early 1970s few states had comprehensive ethics laws. The shock of the Watergate scandal led to a public outcry for assurance of governmental integrity at all levels and for effective legislation. The federal act, which is not as strong as many state laws, was passed in 1978. Now more than fortystates have substantive ethics legislation including financial disclosure requirements, although the strength of these laws varies widely. In 1989, West Virginia became the 36th state to pass an ethics law. In the development of ethics legislation over the past twenty years, the states, rather than the federal government, have taken the lead. Thus, West Virginia hasjoined a continuing trend: Nevada established an ethics board in 1985; Oklahoma and Georgia enacted legislation in 1986; New York in 1987; and bills are still under consideration in New Hampshire, Arkansas and Minnesota. Chicago and New York City have also established ethics commissions.

History of the Act

In West Virginia, as in other states, direct bribery and extortion have been illegal foryears. ButWestVirginia had no comprehensive ethics act covering private contracts between public officials and governmental entities, the use of public office for personal gain and a host of lesser but important offenses, and no required financial disclosure on the part of elected and appointed officials. The resultwasthat unless an offense against the public trust was severe enough and obvious enough and unless a county prosecutor could be persuaded to pursue the case, little was done to curb abuses. Such conflict of interest provisions as existed in state statutes were not comprehensive. The act establishing the Department of Energy in 1984, for example, prohibited Department officials from having private contracts with the Department, but the prohibition did not apply to the Energy Commissioner. As a result, the Commissioner was legally permitted to award strip mine reclamation contracts to a company in which he had substantial financial interestsuntil federal administrators prohibited the practice.

until federal administrators prohibited the practice.

As is so often the case, recent instances in WestVirginia of what people perceived as abuses of public office strengthened the demand for a public code. The use of public employees for personal services outraged many citizens; the use of public facilities and vehicles for private purposes and the self-dealing of public contracts were widely denounced. The double-dipping of officials who are reimbursed by the state for meals and lodging when the bills were actually paid by the lobbyists brought discredit on the officials and lobbyists alike.

The West Virginia Governmental Ethics Act of 1989 was first introduced at the instigation of Common Cause/West Virginia, the state program of the national citizens lobbying organization, in 1986 by Delegate Robert "Chuck" Chambers, then Chairman of the Judiciary Committee of the House of Delegates. I n 1987, Chambers, who had been elected Speaker of the House, appointed a Special Select Committee on Governmental Ethics which re-drafted the bill. It was passed out of committee and sent to the House Judiciary committee where it died late in the session. A Senate Judiciary subcommittee had considered and passed a similar bill.

The 1988 State Legislature saw the final drafting and passage of a comprehensive ethics bill by the House of Delegates. It was revised and redrafted by a special subcommittee of the House Judiciary Committee. Under the leadership of Chairman John Hatcher, the House Judiciary Committee withstood efforts to weaken the bill and passed it on to the House where it was approved on a voice vote without apparent dissent.

In the Senate, Senator Lloyd Jackson's sub-committee worked extensive changes in the bill and passed it on to the Judiciary Committee where it passed with three or four weeks remaining in the session. The bill was then blocked in the Senate Finance Committee until literally the eleventh hour of the session when it was passed out to the Senate. A brief filibusterand afew killer amendments effectively kept it from passage despite support of a great majority of the Senators. There were, however, major differences between the House and Senate versions of the bill which would have been very difficult to negotiate during the last minutes of the session. Had the bill passed in the last minutes of the 1988 session, it would probably have been in such poorshape asto discredit an ethics commission and undermine its effectiveness.

Governor Caperton's dramatic announcement in his I naugural Address that he was calling a special session of the Legislature to consider governmental ethics along with his tax and government reorganization proposals all but assured passage of the Act. The fact that Judiciary Committees in both houses of the legislature had no business other than the ethics bill and the spirit of cooperation between the Legislature and the Governor provided an ideal setting for passage of the Act in contrast to the skirmish of the regular session a year before, The product is what Stephen W. Stover, former Chairman of the Council on Governmental Ethics Laws, has called "one of the ten best state ethics laws in the nation."

Generally, ethics lawscontain three basicelements: financial disclosure, substantive prohibitions and the establishmentof an ethics commission. West Virginia's lawcontainsa fourth section on the regulation of lobbying activities, which in other states is usually covered in separate legislation.

Financial Disclosure

According to the Council on Governmental Ethics Laws Blue Book 1988-89, just over 30 states have some form of financial disclosure required of state elective officials, candidates, legislators and department officers. This count conceals some rather ineffective disclosure requirements, however. It includes West Virginia, for example, as a state requiring disclosure although the required report, until the new Act was passed, was simply a statement of any business that an individual has with the state not a statement of the sources of income. At the county and municipal level, only about twenty states require disclosure of public officials.

The new West Virginia Act calls for annual disclosure forms to be filed by state and county officials, including school board members and school superintendents. Municipalities may elect by ordinance to be covered by the disclosure requirements. Disclosure is required of all members of state boards, commissions and agencies appointed bythe Governorand of higher level officials of theexecutive branch down to the assistant commissioner, director or department head level, Public officials may not take the oath of office, hold office or receive compensation unless they have filed disclosure statements as required. Candidates for public office must also file or their names cannot appear on the ballot. The statements are to be filed with the State Ethics Commission which, in the case of municipal and legislative candidates, must forward copies to municipal and county clerks.

In addition to the name and address of the person filing a disclosure statement, the statement must contain the name and address of each employer of the person; the identification, bycategory, of everysourceof income over $5,000 or 20 percent of the person's gross income; any contracts with governmental entities; the names of persons to whom the individual filing owes $25,000 or more, excluding debts to family members, mortgage and automobile loans and business loans; the names of all persons, excluding family members, business loans and savings deposits, who owe $25 , 000 or more to the person filing; and any gifts having a value of over $500 from anyone having an interest in governmental activity. The Act contains exemptions for blind trusts similar to those in federal disclosure statutes.

While most states require the sources of income to be disclosed, over 23 require the total value of financial interests, actual amounts or categories of amounts to be listed. The West Virginia Act limits disclosure to the sources of income on the theory that it is the source and not the amount of the income that creates a possible conflict of interest. The West Virginia statute goes further than those of many states, however, by requiring disclosure of the sources of income by categories such as utilities, banking, mining, health care, professional associations, etc., so that the public will be apprised of the nature of a public official's connections even if the activity of an individual's firm is not apparent from its corporate name.

The disclosure requirements of the West Virginia Act are weaker than those of many states, however, in a number of ways. First, the legislature limited the disclosure by category to sources of income over $5,000 or 20 percent of the individual's income-a very high threshold as compared with other states. Secondly, the requirement for disclosure of the sources of income of members of public officials'immediate families, as is required in 23 states, was dropped from the final version of the bill. And finally, the disclosure of one's real estate holdings beyond immediate residential property, which was included in the Governor's proposed bill and is now required in 33 states, was also dropped, It might be noted that the bill passed by the House of Delegates and the Senate committees in 1988 was stronger in each of these respects.

Again, in an address delivered at the signing of the Act, Ste~han W. Stover, former Chairman of the Council on Governmental Ethics Laws, attempted to reassure people who were concerned that the financial disclosure requirements would deter people from public service especially in voluntary positions. "The myth in the mid-1970s," Stover said,

that ethics laws and financial disclosure would discourage good people from entering public service has been completely debunked. There is absolutely no empirical data to indicate that this is the case, particularly in the area of financial disclosure.

Prohibited Activities

The purpose of a governmental ethics law is to prohibit activities that involve conflicts of interest. The public welfare is in danger when the private interests of a public official or employee conflict with his or her public duty. The West Virginia Governmental Ethics Act was passed at a time when the public was especially conscious not only of violations of traditional ethical standards on the state and local level, but of widespread breaches of the public trust on the national level. Former Presidential advisor Michael Deaver had recently been convicted of influence peddling, The Washington Post had published a list of 110 Reagan Administration officials who had "come under investigation or been accused of improper conduct, resigned under fire, been dismissed, or whose nominations were withdrawn or rejected." Before taking office, President-elect George Bush issued specific orders barring the appointment of individuals with conflict of interest to federal positions and upon taking office he immediately appointed a task force on governmental ethics.

Prohibitions of some activities involving conflicts of interest existed in many parts of the West Virginia Code. Until now, however, there has been no comprehensive coverage. For example, Chapter 61, Article 10, Section 15, of the West Virginia Code prohibits county and school district officials from having any interest in public contracts, but the prohibition does not apply to state officials oremployees. Legislation establishing the Ambulance Authority (WV Code 7-15-15), the Export Development Authority (513-3-10), the Economic Development Authority (31-15-25), the Energy Loan Fund (31-18A-8), the Hospital Finance Authority (16-29A-23), the Reclamation Review Board (22A-18-22), and a host of other agencies contain conflict of interest provisions specific to their activity. Such provisions prohibit some, but not all, of the conflicts prohibited by the new Act. The 1989 Act closes gaps in the code by applying general prohibitions to all public officials and employees; it provides a uniform code for all; it consolidates conflict of interest provisions in one place in the code to provide a clearer guidance (without, however, repealing the existing provisions noted above); and it provides enforcement by an independent ethics commission.

The specific prohibitions included in the Act are:

1. The intentional use of public office or the prestige of a public office for private gain or for the benefit of another person.

There was a particular concern among some interest groups that this prohibition coverthe use of a public office to obtain personal services from staff members or the use of state vehicles as well as direct financial gain. The term 11 private gain" was used as a broad designation to cover any type of action that would be of personal benefit.

The legislature was also concerned about the possibility that a state agency or perhaps an institution of higher education might employ a person who is well known and earns certain income from his or her prestige apart from the public office he or she holds. An example might be a well known author, actor or sports figure. To make an allowance for such people the law directs the state ethics commission to grant exemptions, on a case by case basis, if the individual's employment contract with the governmental body specifically permits the activity in question. Depending upon the commission's interpretation, a sports figure would perhaps be permitted to endorse a particular brand of sports equipment, but the Attorney General or Secretary of State would not be allowed to use the prestige of his or her office to sell used cars. Where a wide variety of instances may fall under the same restriction, interpretation is wisely left to the commission.

2. Solicitation or acceptance of gifts.

Bribery has been illegal in West Virginia since passage of the Bribery and Corrupt Practices in 1970. Problems have arisen because violation of that act required proof that gifts were bestowed with the intent to influence a public official in a particular judgment. The new Act makes this proof unnecessary. Under it, gifts received directly or indirectly from anyone doing business with or regulated by the agency with which the official or employee serves, and gifts from anyone whose financial interests may be affected by the performance or nonperformance of the recipient's duties are prohibited. Proof of intent is no longer required; it is the position and interests of the person who offers a gift that are the determining factors.

Gifts that are considered inconsequential are exempted from the prohibition. Theseare listed as mealsand beverages, ceremonial giftsorawards, reasonable expenses for travel to meetings, gifts of "nominal" value, tickets to "charitable, cultural, or political events," "purely private and personal" gifts, and gifts from relatives and members of the same household. After some discussion in legislative committees, tickets to sports events were not included in the exempt list. Even a listed gift is not exempt, however, if it can be shown that it did impair orthatthe recipient had reason to know that it was offered with the intent to impair his or her judgment. This would appear to leave considerable room for the ethics commission to question any of the exempted gifts that tend to approach a value above the minimal level intended in the exemption. Such questioning could result in agreements between the commission and any public servant or in advisory opinions.

The acceptance of honoraria, by elected public officials is prohibited without exception. The commission is given authority toestablish guidelines for other public officials and public employees through its rule-making powers and to grant other exemptions from the prohibition on gifts. Gifts that the Governor may accept in the name of the state which become state property are also exempted.

3. Interests in public contracts.

An inconsistency in West Virginia law prior to the passage of the Act was that it was unlawful for members of county commissions, school boards, or other boards and for public school teachers and principals and other officia(sto have any financial interest in contracts with the agencies with which they were employed, but similar contractual relationships were not unlawful for state officials or employees. The new Act applies to a similar prohibition to state officials and employees. The Act defines the prohibited financial interest in such a way as to exclude limited shareholdings and permit the state ethics commission to grant exemptions for hardship. State legislators are also exempted from the prohibition and may enter into contracts with governmental agencies. The legislature recognized, as it said in declaring its purpose, that "certain conflicts of interest are inherent in part-time service" and felt that all such possible conflicts could not be eliminated without unduly limiting the activities of legislators.

4. Confidential information.

The Act prohibits the disclosure of confidential information acquired by public officials and employees. While the Act was under consideration a question arose concerning the use of confidential research information at West Virginia University. Neither state law nor University regulations appeared to cover the case adequately. The University has subsequently adopted a new "Policy on Disclosure, Confidentiality, and Conflicts of Interest in West Virginia University Research Projects." The Act covers disclosures of confidential information at least as far as faculty and staff are concerned.

5. Prohibited representation.

Codes of legal ethics have nearly always prohibited lawyers from moving from one side of a case to the other. The knowledge acquired in representing one side is privileged information and should never be "for sale" to an opponent. The Act extends this prohibition to all public officials and, of course, former public officials-, no present or former public official or public employee may representa private interest in any matterin which heorshewas personally involved during his or her public service.

6. Practice before public agencies.

Public officials, who are defined in the Act as individuals having decision-making authority, are prohibited from representing outside interests before the agencies with which they serve. An official of the Health Department's licensing

bureau, for example, would not be permitted to represent a nursing home applying for a license-even if she was only a voluntary member of the nursing home's board. The official's status in the agency would inevitably give the nursing home an improper influence in the licensing process. Whether for personal gain or not, no one can servetwo masters; this isthe essence of a conflict of interest.

7. Revolving door limitations.

The Act prohibits elected and appointed public officials and full time staff attorneys and accountants (again with the exception of members of the legislature and its staff) from representing private clients before the agencies with which they serve while in office and for a period of six months after leaving their positions. The so-called "revolving door" problem of public officials leaving office only to return immediately as lobbyists or representatives of private interests seeking favorsfrom their former subordinates and associates has drawn great public attention on the national level. While not as serious, the potential for abuse exists at the state level as well. Testifying in 1987 before a U.S. Senate Committee, Archibald Cox noted the following problems:

1. The official while still in office but thinking of work as lobbyists, will be tempted to curry favor with prospective employers or clients.

The ex-official will find it all too easy to use inside i . nformation not available to others for the benefit of a

private employer or client.

3. The ex-official will often trade upon habits of deferring to

his advice and wishes engendered during the days when he was senior to, or at least a more influential official than, those with whom he now deals in a different capacity. 4, The ex-official lobbyist comes as a friend, an insider.... A t

a minimum, he gets a little different hearing or preferred access.

The restriction does not apply to appearances before the legislature, county commissions, city or town councils, or county school boards. Members, former members and professional employees of the legislature are, furthermore, exempt. A specific proposal from the State Senate to prohibit former Senators and Delegates from legislative lobbying for a period of one year after leaving office was defeated by a coalition of Delegates in the Conference Committee meeting.

8. Employment with regulated businesses.

The situation where a person who is in the public policymaking position or who exercises public regulatory authority is employed by a business regulated by the public official's agency is a clear conflict of interest and is prohibited under the Act. A coal mine inspector should not be employed parttime by a mine operator or mining association.

The Act oddly permits the state ethics commission to allow an exception to this provision if it would "deprive the person of the ability to earn a livelihood in the state." Since the provision applies only to full-time public officials and employees, however, it is not at all clear how such an individual could be deprived from earning a livelihood, unless this is intended as a comment on current state salaries.

9. Participation in licensing and rate-making proceedings.

No public official or public employee may participate in any license or rate-making proceedings that directly affects any business in which he or she or members of his or her immediate family have an interest. Although it prevents an obvious conflict of interests, this provision is not one which 4 appears in most model legislation either because a general restriction applies to participation in "any matter" in which a public official or public employee has an interest or because individuals who have financial interests in regulated industries are generally prohibited from being involved in ratesetting or licensing procedures altogether. The West Virginia limitation is less restrictive.

State Ethics Commission

One serious shortcoming of the partial and limited ethics laws that have been on the books for years is that they were never enforced effectively. At times county prosecutors have had political interests which have moved them to overlook violations; at othertimes violations have seemed insignificant by comparison with other cases; and in other instances the law has appeared too vague to be easily enforced. Whatever the reason, enforcement of the existing laws was lax.

The establishment of an ethics commission with powers to investigate and to order civil remedies has been found to be an effective means of enforcing ethics laws. Here again the states, rather than the federal government, have taken the lead. The Federal Commission has remained politicized in its make-up and has a history of deadlock and inaction.

The West Virginia Act establishes a twelve member Ethics Commission. This is larger than the ethics commissions in most states, but its size is necessitated by its procedures. These procedures require the Commission to be divided into an investigative panel and a review panel in cases brought before it. By having separate investigative and final review panels of commission members, the Act prevents commission members from being involved in both the determination of probable cause and the final judgment of any case.

The commission members are appointed by the Governor and must be individuals who are not (other than by being commission members) public officials or employees. Some of the members must have served as elected and appointed officers and employees at the state, county and municipal levels, but no more than seven members may be from any one political party and no more than four from any one congressional district. Commission members are appointed for five yearterms of office and receive$100 perdayfordays devoted to commission business.

The commission is empowered to promulgate rules and regulations subject to legislative review, to subpoena witnesses and materials relevant to investigations, and to hire such staff as is necessary.

Any person can file a complaint with the Ethics Commission or the Commission can investigate any matters it considers appropriate on its own initiative. If a complaint contains allegations which may constitute a violation of the Act, an investigatory panel of three Commission members is appointed to determine whether probable cause exists to believe that a violation of the act has occurred. The person who is the subject of a complaint has the opportunity to submit a response and to appear before the investigatory panel.

The meetings of the investigatory panel to determine probable cause are notopen tothe publicand no information concerning the complaint can be disclosed to the public by the Commission or its staff. There was a good deal of discussion in the House Judiciary Committee and in the press concerning the confidentiality of information contained in a complaint filed under the Act. One draft of the bill would have required the complainant and respondent as well as the commission and its staff to refrain from releasing information

concerning the complaint. As passed, however, the Act stipulates only that if the Commission believes that the disclosure of information would interfere with a fair hearing, it can order the person making the complaint and anyone providing information to keep all information confidential.

If the investigatory panel finds that probable cause exists to believe that a violation of the Act has occurred, the parties are notified and a hearing is scheduled before an appointed hearing examiner and before the commission itself. The hearing is to be held within ninety days of the order by the investigatory panel. Atthe hearing, evidence istaken according tothe rulesthatgovern proceedings in courtsin thestate. The hearing examinerthen presents his or her findings to the nine members of the Commission who were not investigators in the case. Final arguments bythe person filing the complaint and the person who is the subject of the complaint may be made before the commission. The Commission may find a person guilty of a violation of the Act and may impose penalties only if six of the nine remaining Commission members vote to do so. If a person is found guilty, the Commission may publicly reprimand the person and order him or her to cease any improper conduct. It may order the restitution of money or anything of value received illegally and may impose a fine of up to $1,000. The Commission may also recommend the termination of employment or removal from office of the person found guilty. At any point in the proceedings if the Commission finds evidence of a criminal violation, it may turn the case over to a county prosecuting attorney for further investigation.

Three other powers and proceduresof the Commission are important to its effective operation. First, to assure that complaintswhich have no substance or merit will not befiled for political or personal purposes, the Commission can find that a complaint was filed in bad faith and can order the person making the complaint to pay compensatory and punitive damages. Secondly, the Commission at any point in its proceedings can enter into an agreement with the person against whom the complaint is made. This permits the Commission to settle any case without the expense and trouble of a hearing, to deal with minor problems without imposing thefull force of finding a person guilty of aviolation of the Act, and to expedite matters in more serious cases if guilt is admitted.

Advisory Opinions

The third, and one of the most important powers of the Commission, is its ability to issue advisory opinions. If any person has a question as to the propriety of any action he or she might take as a public official or public employee, he or she may bring the question before the Commission for an advisory ruling. The ruling, which must be given within 30 days, has the effect of settling aquestion beforeany action is taken so that infringements of the Act can be avoided. If any person then acts on the basis of an advisory opinion, he or she will not be subject to later discipline by the Commission and can use the opinion as a defense against any possible criminal charges. The power of the Commission to issue advisory opinions is essential to the purpose of the law in that it is intended to prevent misconduct rather than simply to punish wrongdoing. As much as anything else this power separates the operation of the Ethics Commission from the normal workings of acourt. Courts very seldom issue rulings in advance of action; they can only guide behavior in retrospect. The advisory opinion procedure makes it clear that the purpose of the Act is to promote ethical behavior, even to the point of answering ethical questions, rather than just to punish those who step overthe line. Advisory opinions are to be published by the Secretary of State so that a body of rulings can be developed to answer further problems.

This preventative procedure has been so successful in other states that the Council on Governmental Ethics Laws now publishes regular reports on advisory opinions from around the country. Thirty-two state ethics commissions or boards are authorized to issue advisory opinions of one sort or another. Many are purely advisory, but 16 commissions can issue opinions that are binding at least upon the commission.

Special Prosecutor

A unique provision of the West Virginia Act as compared with other state ethics laws is its authorization for the Ethics Commission to petition a circuit court for the appointment of a special prosecutor if it finds a pattern of violations and if a county prosecuting attorney appears unable (perhaps because of a conflict of interests) or unwilling (perhaps because of political influences) to take appropriate action. The special prosecutor would have the same authority as a county prosecutor including the power to prosecute anyone indicted by a grand jury.

Penalties

The major sanctions that may be imposed under the Act arethose listed among the powers of the Ethics Commission. The Commission may issue a public reprimand, order a person against whom a complaint is brought to cease and desist anyaction in violation of theAct, requirethe restitution of money or anything received illegally or levy a civil fine of no more than one thousand dollars. In addition, anyone who violates the confidentiality requirements of the Act or the prohibitions on representing private clients before governmental agencies may be found guilty of a misdemeanor by a circuit court and may be fined not more than $1,000 and/or imprisoned for six months or less. Anyone who knowingly files a false financial statement may be found guilty of false swearing and may receive a penalty. Anyone who knowingly refuses to file a financial disclosure statement may be found guilty of a misdemeanor and fined no more than $1,000, The more effective penalty for failing to file a financial disclosure statement, however, is one which does not require any action on the part of the ethics commission. The Act provides that no candidate for office may maintain his or her place on the ballot and that no public official may take office or receive compensation unless he or she has filed a financial disclosure statement.

Lobbying Regulations

Regulation of lobbying activities was not included in any of the ethics bills proposed or passed by any committee or by the House of Delegates prior to the 1989 Special Session. Citizen groups such as Common Cause/West Virginia had long been interested in better regulation or lobbying activities, but had considered the issue a relatively separate matter from governmental ethics and had intended to return to this issue after securing passage of the Act. The recent trial and conviction of former Delegate Robert McCormick for extortion and accepting bribes, however, created in the public mind the impression thatthe Governmental EthicsAct would cover lobbying activities. Public interest groups and the press took advantage of the situation to urge the legislature to include lobbying activities in the bill.

The Act defines lobbying as any communication with a public official orpublic employeeto influencethe passage or defeatof legislation, the adoption of rules, standards, rates or other executive action. A lobbyist is anyone who engages in lobbying activities, except (a) individuals whose lobbying activities are limited to appearing at public sessions and hearings, (b) news reporters and writers, (c) people who lobby without compensation and who make no expenditures for lobbying activities, (d) people who lobby without compensation on behalf of non-profit organizations for no more than 20 days during a regular session of the legislature, (e) public officials and employees of the executive branch of government, (f) members of the legislature, (g) people employed by the legislature, and (h) people giving professional advice on the drafting of legislation.

Registration of Lobbyists

Before engaging in any lobbying activity a lobbyist must register with the State Ethics Commission and must place on file, along with his or her name and address, the following information: the identity and business of his or heremployer, the general subject or subjects of his or her lobbying activity, a written authorization from the lobbyist's employer confirming his or her employment and the subjects of lobbying activity, and a statement as to whether there is any agreement to the effect that the lobbyist's compensation will be dependent upon the success of his or her lobbying activity.

People who lobby the executive branch of government are included under the regulations as well as those who only lobby at the legislature. Individuals who lobby the state legislature are required to file copies of their registration forms with the Clerks of the two houses. A lobbyist must file a separate notice for each employer for whom he or she works. Lobbyists must also file a recent photograph with the Ethics Commission for publication in an annual booklet along with any biographical information he or she wishes to submit.

Lobbying Reports

Reports of lobbying activities must be filed with the Ethics Commission and with the clerks of the respective houses of the legislature annually in January and, for legislative lobbyists, between the 40th and 45th days of any regularsession of the legislature and again after the legislative session.

Lobbyists are required to report the total amount of their expenditures for lobbying and the expenses of their employers on their behalf. The report must show subtotals for meals, travel, living accommodations, contributions, travel and gifts. Lobbyists are not required to report personal living expenses and office expenses. The Act contains separate rules for expenditures made for travel, food, lodging, and entertainment for attendance at conferences or meetings; in general such expenditures have to be reported separately along with the names of the government officers or employees to or for whom they were made.

As to expenditures made to or on behalf of particular government officers or employees, there was considerable debate in the legislature before passage of the Act. The outcome was that such expenditures and the names of the beneficiaries would have to be reported only if the expenditures, during the period covered by the report, were more than $500. Those who objected to such a high threshold pointed out that the intent of even this high limit could be circumvented by any organization simply by hiring more than one lobbyist. It might also be noted that since there are three report periods for legislative lobbyists, a lobbyist could spend up to almost $1,500 on an individual in any given year without reporting it until the end of the year.

Lobbyists are also charged with certain "duties" under the act including the keeping of records on their activities for inspection by the Ethics Commission if requested. Lobbyists are furthermore prohibited from knowingly deceiving government officers and employees, from having legislation introduced so that they will be hired to attempt to defeat it, and from exercising influence on legislators through communications with their employers. The penalties provided under the lobbying section of the Act are similar to those provided in the ethics section.

The lobbying section of the Act, it must be said, is far less clear than the ethics sections. For example, it defines a "lobbyist" as a person who through communication with government officers and employees attempts to influence the passage or defeat of legislation or rules or any executive action. Also, as is common in the law, it defines a "person" as an individual, business, association or corporation. This implies that associations and corporations which employ lobbyists are required to register and file reports as well as their hired lobbyists. The registration and reporting requirements, however, seem to have in mind only individuals as lobbyists, for example, when requiring a photograph to be submitted orexempting personal expenses from the required reporting.

One especially confusing section of the Act, entitled "Grass Roots Lobbying Campaigns," was added by amendment on the floor of the House of Delegates. It identifies as a grass roots campaign any "person" who makes certain expenditures "in presenting a program addressed to the public .. . . . .. designed or calculated primarily to influence legislation." Special reporting requirements are then set up for such campaigns. The purpose of this amendment was to require disclosure of the activities of groups and organizations which would not be required to report as "lobbyists" because they do not communicate directly with government officers and employees. The section would, however, seem to cover any organizations, including professional associations and corporations, that direct any of their lobbying efforts toward the public which are not required to register under the other provisions of the Act. Since the reporting requirements under this section are in some respects more stringent than the regular reporting requirements for lobbyists, the effect of the amendment may be to induce such organizations to register as lobbyists.

No doubt some of the requirements of the lobbying sections of the Act will require adjudication before their meaning becomes clear. With regard to the reporting requirements, the Ethics Commission is authorized to require the reporting of other information relevant to lobbying activities through the use of its legislative rule-making powers. Perhaps some of the difficulties regarding this section of the Act can be cleared up through the legislative rule-making process and through the issuance of advisory opinions.

Until such issues are resolved it is difficult to compare the lobbying sections of the West Virginia Act with the lobbying regulations of the other states. It might be mentioned, however, that of the 38 states that require lobbyists to register, 22 require the employers of lobbyists to register as well. (Two states, Utah and Rhode Island, require the employers to register, but not the individual lobbyists.) In 28 states, of which West Virginia was one until passage of the new Act, lobbying is not defined so as to cover the lobbying of administrative agencies. Fourteen states require lobbyists to report the compensation they receive. Thirty states require the reporting of total lobbying expenditures, although the requirements in some states are so loose that the reporting does not reflect actual amounts spent. Twenty-nine states require the reporting of specific expenditures benefiting public officials or employees, only two of which exclude minimal (below $15 and $25) expenditures.

Conclusion

The enactment of governmental ethics laws often comes on the heals of some public disaster that shocks people and threatens the sense of social stability. It is very interesting that the three bills passed by the 1989 Special Session of the West Virginia Legislature were on the agenda together, responding, as it were, to an economic "disaster." The tax bill asked the people of West Virginia to do more to get the state out of its current financial crisis. The reorganization bill indicated that in return for people doing more for the state, the government was going to use the limited resources it has more efficiently. The ethics bill constituted something of a promise that, as a part of this process of restructuring, government was going to be more trustworthy, that our public officials were going to hold themselves to higher standards of accountability and integrity.