The West Virginia Ethics Commission voted to change the rules about nepotism in the hiring process for government jobs with the goal of tightening up the existing law.
It will be up to the West Virginia Legislature whether the commission’s recommendation becomes law during the 2022 session.
The committee adopted the rule during a teleconference meeting Thursday morning.
Commissioners reviewed the legislative rules regarding nepotism per a state law that has sunset provisions for existing rules, meaning the rules have to be reviewed and reapproved every five years. The Legislature last considered the nepotism law in 2017.
The existing rule provides that any public official or employee involved in making decisions that affect the employment of a relative or someone they live with should remove themselves from the decision-making process “to the extent possible,” Theresa Kirk, general counsel to the commission, said during the meeting.
Legislative attorneys who worked with the commission to review the rule determined that “to the extent possible” could be considered an “unascertainable standard,” Kirk said.
“A possible counterargument is that it’s a commonsense application,” Kirk said. “Nevertheless, to make the rule as sound as possible ... we’re taking out the standard that cannot be decisively resolved.”
The commission adopted a motion that removes the phrase “to the extent possible” from the rule and adds a phrase “unless required by law.”
With the new phrasing, the rule would clarify that a public official or employee involved in making decisions that affect the employment of a relative or someone they live with would have to remove themselves from the decision-making process unless the law requires them, in their public capacity, to make the decision.
If state law prohibits a public official or employee from delegating employment decisions to someone else, then they have to make the decision, Kirk said.
For example, public officials who are part of a board that makes employment decisions would still be required to remove themselves from the decision-making process regarding relatives and people they live with, since other board members, acting as third parties, have legal authority to make those employment decisions.
The Legislature would have to approve the rule for it to take effect.
In other business, the committee approved a recommendation that allows a county employee to run for a city council in the county in which the employee lives, as long as the employee doesn’t perform any campaign duties during office hours and, if elected, doesn’t conduct city business during office hours.
The commission also determined that a potential candidate for city council could serve on that council if she is elected, even though her son is interested in applying for a municipal judge position in the same city.
The commission approved a recommendation that determined the woman and her son could serve as a city council member and municipal judge, saying no state law prohibits the situation as long as the mother, if elected, doesn’t participate in decisions regarding her son individually or lobby on his behalf, John Roush, ethics commission general counsel said.
She would be permitted to participate in decisions affecting him as a member of a class, meaning there would be five or more people affected by the council’s decision, Roush said.
The board also determined that a state commission responsible for constructing a memorial on state Capitol grounds may contract with a person who serves part-time on another state board that provides administrative support to the state commission.
Because the person who was awarded one of the contracts, which were for services to educate the public about the memorial, is a part-time member of their commission and not involved in the process of crafting or awarding the contracts, there was no violation of state law in hiring them, Kirk said.