Institutional Policy: PE-14
PE 14-1. Authority
WV Code §18B-1-6 and §6B
WV CSR §133-4
PE 14-2. General Provisions
This rule implements guidelines in accordance with the West Virginia Governmental Ethics Act for all employees.
In 1989, the West Virginia Legislature enacted the WV Governmental Ethics Act, set out in Chapter 6B of the WV State Code, declaring unlawful certain activities by public employees. Section 5(b), Article 2, of the Act prohibits a public employee from using his or her office or the prestige of that office, for private gain. Section 5(c), Article 2 prohibits solicitation of gifts that may confer pecuniary benefits upon the employee. Section 5(d), Article 2, prohibits an interest in the profits or benefits of a public contract which an employee has direct authority to enter into or over which he or she may have control.
The original version of the Ethics Act subjected all public employees, including higher education employees, to fines, sanction, and criminal prosecution for violation of the Ethics Act unless they obtained prior approval for the proposed activity from the West Virginia Ethics Commission. Many of the teaching, research, consulting and publication activities of higher education faculty and staff necessarily result in known and appropriate private benefits or gain which are customary and normal in higher education, but which were identified as potential violations of these provisions of the Ethics Act after its enactment.
In 1990, the Ethics Act was amended at Section 5(n), Article 2, to allow higher education employees who derive private benefits from teaching, research, consulting, or publication activities the option of seeking exemption from the above prohibitions from their employing institution instead of the Ethics Commission.
Therefore, this rule is adopted to set forth an expeditious procedure for granting such approval of exemptions at the institutional level to faculty and staff members who seek to be relieved of certain statutorily imposed prohibitions of the WV Governmental Ethics Act.
Nothing in this rule shall be interpreted as restricting or prohibiting the otherwise lawful institutional or outside activities of faculty or staff consistent with their institutional duties and responsibilities or employment contracts, or as requiring the prior approval of such activities by the institution. Nor shall this rule be interpreted as restricting academic freedom, as defined by this Board in Series 9, or the constitutional rights of employees to free speech and association. However, this rule shall not be interpreted to require or grant institutional approval or sanction of faculty or staff activities that violate or conflict with their institutional duties or responsibilities, employment contract, federal or state law, the rules of this Board, or the ethical standards imposed by the WV Governmental Ethics Act.
PE 14-3. Approval Authority
Institutional approval of any activity pursuant to this rule shall be deemed to be a part of the employee's employment contract with the Board.
Approval for any activity under this rule may only be given by the president or the president's designee. Such delegation of authority by the president shall be in accordance with the needs of the institution but in no case shall such delegation be at an authority level lower than a departmental chair, director or other similar department supervisor.
Approval for any activity may be granted on a case-by-case basis or, when such activities are common within the School, a department or other category or grouping of employees, to all of an institution's employees or any sub-grouping thereof.
Any institutional approval granted pursuant to this rule may be revoked upon reasonable notice to the employee(s).
Disclosures required by this rule are personal in nature and shall be kept confidential, as permitted by law.
PE 14-4. Solicitations
Unless otherwise restricted by one's supervisor, employees shall be permitted to solicit gifts which directly benefit the Governing Board or WVSOM. Solicitations on behalf of a particular department, on behalf of the WVSOM Foundation, or on behalf of an affiliated corporation or center shall, for the purposes of this rule, be deemed to be a solicitation on behalf of or for the benefit of the employing institution.
4.1 Permissible Solicitations
Permissible solicitations shall include, but not be limited to, the following, even though the soliciting employee may work in a position which will be directly or indirectly supported thereby:
Grants from governmental agencies, foundations, corporations, or individuals to an institution to support teaching, research, publication or service activities of the institution;
Contracts with governmental agencies, foundations, corporations, or individuals to an institution to support teaching, research, publication or service activities of the institution;
Donations from foundations, corporations, or individuals to an institution to support teaching, research, publication, or service activities of the institution.
4.2 Donations for Support
Support for teaching, research, publication, and service activities shall include but not be limited to such normal and regular institutional needs as support for salaries; scholarships; capital improvements or repairs; and classroom, laboratory, athletic, medical, scientific and other similar equipment supplies.
4.3 Solicitation in Accord with this Policy Not Inappropriate
No solicitation or other activity permitted by this rule shall be deemed to be the in-appropriate use of an employee's public office (position) or the prestige of that office for one's own private gain or that of another person.
PE 14-5. Exemptions
5.1 Use of Personal Prestige
When an employee in an institution governed by the WVSOM Board of Governors uses his or her knowledge and personal prestige for private gain without the use of the employee's public office, or the prestige of the employee's public office, then there is no requirement to obtain an exemption under this ethics rule.
5.2 Prestige of Public Office
WV Code §6B-2-5(n) gives institutions of public higher education limited authority to grant exemptions to their employees from the prohibitions in the State Ethics Act relating to the use of public office or the prestige of public office for private gain when the employee is using his or her field of expertise as an author, speaker, consultant or through other approved activities such as service as a board member for outside agencies or businesses. Therefore, when an employee in an institution governed by the WVSOM Board of Governors seeks to use his or her public office or the prestige of his or her public office for the employee's private gain or for the private gain of another person, the employee may seek from the appropriate institutional authority an exemption (as limited by the Ethics Act) from the prohibition against the use of public office or the prestige of public office for private gain.
The president, upon petition therefore, may grant the employee an exemption to permit the employee to use the employee's public office, or the prestige of the employee's public office, to derive private benefit from the employee's field of expertise as an author, speaker, consultant, or through other approved activities such as service on the board of an outside agency or business.
In granting permission for an employee to engage in such outside activities which may be directly or indirectly associated with the employee's position with the institution, consideration should be given to the following:
Whether the employee brings to his/her position his/her own unique personal prestige which is based upon his/her own intelligence, education, experience, skills and abilities, or other personal gifts or traits;
Whether such activity is customary and usual within the field;
Whether the institution derives any benefit through prestige or otherwise from the activity;
Whether the institution expects or anticipates that the employee will gain financially from the activities which are not a part of the employee's required employment activities;
Whether the employee's activity will increase his/her personal or professional development or will lend service or benefit to the nation, state or community;
Whether the outside activity will create an overriding conflict with the employee's responsibility to the institution or will interfere with the satisfactory performance of the employee's institutional duties.
5.3 Disclosure of Position, Title, and History
The disclosure by an employee of an employee's position, title, and work history within WVSOM or other organization under the WVSOM Board of Governors in the promotion of an employee's private activities shall be exempt from the prohibition against the use of prestige of public office for a private gain. However, in these cases, the employee has the responsibility to make clear the fact that he or she is not representing the institution but is speaking as a private citizen.
5.4 Employee Not Deemed an Agent
An employee who obtains an exemption from the Ethics Act prohibitions under the procedure authorized in this rule shall not be deemed an agent of the School when the employee is acting outside the scope of his or her public employment for his or her private benefit.
5.5 Contractual Provisions Not Waived
No exemption granted under this ethics rule shall be deemed to constitute a waiver by the institution of any lawful contractual provision in the employment contract of a full or part-time employee of the WVSOM Board of Governors.
PE 14-6. Disclosure of Interest Required
Each employee shall be required to disclose any interest the employee or any member of the employee's immediate family may have in the profits or benefits of a contract which the employee may have direct authority to enter into or over which the employee may have control unless such interest is limited within the meaning of WV Code §6B-2-5(d)(2).
The president may review any interest an employee or any member of the employee's family may have and determine what, if any, restrictions or limitation should be placed on the employee's activities.
6.3 Without limitation, the following represent examples of interests in public contracts which may be permitted:
The employee is the author and copyright owner of a leading textbook in the employee's teaching field and may wish to require the use of the textbook by his/her students;
The employee is the inventor and patent owner of a scientific tool necessary for research in the employee's field;
The employee is an expert in the region in a particular field and such consulting expertise is being sought by the School or another governmental agency and the providing of such consulting services is not a part of the employee's duties to the School.
PE 14-7. Activity Permitted by Law or Commission
7.1 Activity Permitted by Ethics Act
Unless otherwise prohibited by the WVSOM Board of Governors, no activity permitted under the West Virginia Ethics Act shall be deemed to be a violation of this rule.
7.2 Activity Permitted by Ethics Commission
Unless otherwise prohibited or restricted by the WVSOM Board of Governors, no activity approved, permitted or exempted by the West Virginia Ethics Commission shall be deemed to be a violation of this rule.
PE 14-8. Approval of President’s Activities Under This Rule
The Chair of the WVSOM Board of Governors shall have the authority to review and grant approval of the president’s activities which may involve a conflict of interest pursuant to this rule.
PE 14-9. Other Policies
This policy describes how exemption may be obtained by WVSOM employees for solicitation, approval of activity or use of prestige of public office. Specific activities having to do with conflict of interest may be governed by more specific provisions of other policies, which will take precedence, such as the WVSOM Policy on Conflict of Interest in Research.