An Administrator’s Guide to Ethics and Due Process

1. An Administrator’s Guide to Ethics and Due Process West Virginia Association of School Administrators Bridgeport, West Virginia January 25, 2019

2. The Education Law Group at Bowles Rice

3. Ethics and Due Process – Today’s Agenda • Understanding the Ethics Act and the Pecuniary Interest Statute • Understanding due process when disciplining a student • Understanding due process when disciplining an employee

4. A Word About This Presentation • We speak in general terms today. The specific facts of each situation can make a difference in the legal principles that apply • This presentation must not be treated as legal advice about any specific situation • Due to the rapidly changing nature of the law, information in this presentation may become outdated • When in doubt, don’t act or rely upon the information contained in this presentation without seeking legal advice

5. What couch? AN ETHICS REVIEW

6. You Be the Justice Judge • Who thinks it is ethical for you to be on a committee to make recommendations on the hiring of your niece? • Who thinks it is ethical for you to be on a committee to make recommendations on the hiring of your grandmother? • Does it matter where they live?

7. Nepotism • 3.3. "Relative" means spouse, mother, father, sister, brother, son, daughter, grandmother, grandfather, grandchild, mother-in-law, father-in-law, sister-in-law, brother-in-law, son-in-law or daughter-in-law. • 3.4. A public official or employee may not influence or attempt to influence the employment or working conditions of his or her relative or a person with whom he or she resides.

8. Nepotism • 3.5.a. To the extent possible, a public official or public employee may not participate in decisions affecting the employment and working conditions of his or her relative or a person with whom he or she resides. If he or she is one of several people with the authority to make these decisions, others with authority shall make the decisions.

9. You Be the Justice Judge • Can you ethically suggest a form of punishment for the misconduct of a relative employed by your Board? • Can you ethically supervise your niece?

10. Nepotism • 3.5.b. A public official or public employee may not directly supervise a relative or a person with whom he or she resides. This prohibition includes reviewing, auditing or evaluating work or taking part in discussions or making recommendations concerning employment, assignments, compensation, bonuses, benefits, discipline or related matters. This prohibition does not extend to matters affecting a class of five or more similarly situated employees.

11. You Be the Justice Judge • Can you ethically imply that your secretary’s job includes picking up and delivering your dry cleaning to your home on her way home, since it’s on her way anyway, and you’ve been friends for years? • A surplus couch?

12. Use of Subordinate for Private Gain • 4.1. After work hours - Public officials and public employees may not use subordinate employees for their private gain or that of another person as an implied or express condition to their continued employment. An example of prohibited conduct would be a public official requiring a subordinate employee to perform personal errands for the official in order to maintain his or her public employment.

13. You Be the Justice Judge • Can you ethically have the accountant balance your personal business books, since he is light on work and needs the practice?

14. Use of Subordinate for Private Gain • 4.2. During work hours - Public officials and public employees may not use subordinate employees during work hours to perform private work or provide personal services for their benefit or that of another person. An example of prohibited conduct would be a public employee supervisor requiring state employees to repair a garage or pave a driveway for the supervisor during work hours. This subsection does not apply to de minimus work or services.

15. Government Property • How would you define “Government Property”? • Give examples…

16. De minimus • What is “de minimus”? • How would you apply that to Government Property use?

17. You Be the Justice Judge • Can you ethically take home the stapler for your son to use to complete his school project? • Can you ethically take a surplus desk home to create a home office for work exclusively on school board business?

18. Use of Government Property • 5.1. Removal - Public officials and public employees may not remove government property from the workplace for their private benefit or that of another person. • 5.2. Improper Use - Public officials and public employees may not use government property for personal projects or activities that result in private gain. • 5.3. This section does not apply to the de minimis use of government property.

19. You Be the Justice Judge • Can you ethically accept a free vacation from a vendor before recommending that vendor for a contract with the Board? • Can you ethically accept a free vacation from a vendor after recommending that vendor for a contract with the Board? • Can you ethically accept an honoraria?

21. Kickbacks • It is unlawful for a public official or public employee to accept money or a thing of value from any person for providing business or other benefits to that person through the public official's or public employee's governmental agency or as a result of his or her influence and control.

22. Bribes • It is unlawful for a public official or employee to receive money or a thing of value from any person for the purpose of influencing or persuading the official to perform his duties in a manner to benefit the person.

23. You Be the Justice Judge • Can you ethically, while on duty for the Board, also perform work for a private entity as a telephone help desk worker? • Does it matter if it is only 1 call a day? • What if you retire, can you go to work for a former vendor?

24. Private Work During Public Hours • Full-time appointed public officials and part-time and full-time public employees may not receive private compensation for performing private work during public work hours. This section does not apply to de minimis private work.

25. Retired Employees • No present or former public official or employee may knowingly and improperly disclose any confidential information acquired by him or her in the course of his or her official duties nor use such information to further his or her personal interests or the interests of another person.

26. You Be the Justice Judge • Can the middle school purchase food for Math Field Day from a McDonalds owned by a board member? • What if the Principal makes the purchase? • What if the restaurant donates a percentage of its profits from the purchase back to the middle school?

27. Pecuniary Interest Meets the Ethics Act • Strictly prohibited!! No matter how you slice it, if public funds are being used in a way that inure to the benefit of a public employee or public official, it is a violation of the Pecuniary Interest Act. • In addition, it creates a conflict on interest under the Ethics Act, which prohibits using a public office for private gain.

28. Pecuniary Interest Meets the Ethics Act • Penalties Under the Pecuniary Interest Act: • Misdemeanor • Removal from office • Revocation of licensure • Applies even if you do not have the pecuniary interest, but participate in the deliberations where a pecuniary interest would result

29. Other Rules TO KEEP IN MIND

30. Other Limitations • 10. The Ethics Act sets a minimum standard of conduct. When the Legislature or a public agency impose stricter standards, then public officials and public employees must comply with the stricter standards. • See State Code and State and County Policies • Eg W. Va. Code 18A-2-1(a)(2) and WVBE Policy 5000

31. W. Va. Code 18A-2-1(a)(2) • (2) The principal may not recommend for employment an individual who is related to him or her as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother or half sister;

32. WVBE Policy 5000 • Superintendent assigns a designee for the principal • Designee is from central office, not the school

33. WHY DO WE CARE VIOLATIONS OF THE ETHICS ACT

34. Violation of Ethics Act The Ethics Commission can impose one or more of these sanctions on violators of the Ethics Act: • public reprimand; cease and desist orders; orders of restitution for money, things of value, or services taken or received in violation of the Ethics Act; • fines not to exceed $5,000 per violation; and reimbursement to the commission for the actual costs of investigating and prosecuting a violation.

35. Violation of Ethics Act • In addition, the Ethics Commission may recommend to the appropriate governmental body that an offender be removed from office. • The Commission can also file suit in circuit court for the enforcement of sanctions. • See West Virginia Code § 6B-2-4(s)(1).

36. Vendors, SOLICITATIONS, AND OTHER THINGS THAT GO BUMP IN THE NIGHT

37. Dealing with Vendors: AO 2007-02 • “The basic concept of the Ethics Act is that public servants may not use their public positions for their own private gain or the private gain of others. The Act’s Legislative findings explain that the Act is intended to prevent public servants from using their public positions ‘…. to benefit narrow economic … interests at the expense of the public at large…”

38. Dealing with Vendors: AO 2007-02 • Prohibits public officials from endorsing products, unless there is an overriding public benefit as approved by the Ethics Commission • Economic Development • Letters of support of goods or services provide an indirect pecuniary benefit to the vendor and lend the prestige of the office to advance a vendor’s private interest

39. Vendor Gifts: AO 2006-07 • “Ordinarily, public servants are prohibited from accepting gifts from vendors who do business, or seek to do business, with their agency.” • Random drawing of door prize is no exception.

40. Recognition Events: AO 2010-05 • Expenditure of public funds for events to recognize employees limited to $25 per employee, per fiscal year. • May be allocated between one or more events or activities to recognize employees and promote employee morale. • Pooling funds for year, $100 limit for single employee • BUT MUST FOLLOW LOCAL POLICY IF MORE STRINGENT

41. Soliciting Charitable Contributions • 158-7-6: - Public officials, public employees and agencies who regulate individuals or businesses may not orally solicit donations from: 1. Persons under the regulatory control of the agency. 2. A vendor which has a contract with the agency, is bidding on a contract or is in the process of soliciting business from the agency. - A written solicitation to the public or business community at large, even if the targeted group may encompass regulated persons or vendors, is permissible; Provided, That the written solicitation may not be directed solely to persons under the regulatory authority of, or vendors, of the public official, employee or agency.

42. Soliciting Charitable Contributions • Fund-raising activities based on an exchange of value are not gift solicitations and are permissible. • Cannot solicit donation or gift, even for charitable purposes, from a subordinate employee.

43. Endorsing Goods and Services • W. Va. Code 6B-2-5(b)(1) states: • A public official or public employee may not knowingly and intentionally use his or her office or the prestige of his or her office for his or her own private gain or that of another person. Incidental use of equipment or resources available to a public official or public employee by virtue of his or her position for personal or business purposes resulting in de minimis private gain does not constitute use of public office for private gain under this subsection. The performance of usual and customary duties associated with the office or position or the advancement of public policy goals or constituent services, without compensation, does not constitute the use of prestige of office for private gain.

44. Endorsing Goods and Services • Public officials and public employees may use bonus points acquired through participation in frequent traveler programs while traveling on official government business: Provided, That the official’s or employee’s participation in such program, or acquisition of such points, does not result in additional costs to the government.

45. WHAT OTHER GOOD QUESTIONS DO YOU HAVE?

46. Employee Due Process W. Va. Code 18A-2-8

47. Disciplinary Due Process, in General • Investigation • Employee’s opportunity to reply • Written notice of the proposed discipline • Opportunity for a Board hearing • Board action • Notice of the Board’s action • Right of appeal to Grievance Board & courts

48. Right to an Informal Hearing • Even though 18A-2-8 doesn’t say so, an employee is entitled to advance written notice of the charges, and to a “pre-termination hearing” before the Board acts upon the Superintendent’s recommendation • W. Va. Supreme Court Decision – Board of Education of the County of Mercer v. Wirt

49. Special Rule: Discipline for Unsatisfactory Performance • Only as the result of an employee performance evaluation under 18A-2-12 • Teachers: Policy 5310 • Service employees: County policy

50. Due Process: Suspension • An investigation is made into the alleged misconduct • The investigation results are reported to the Superintendent • The Superintendent holds an informal conference to confront the employee with the allegations and to allow the employee to respond