THEIR VIEW: Exemptions are necessary for government workers moving to private sector
By BRADLEY A. CROUSER As a new term of office has begun for various elected officials, you may have noticed that some government administrators, lawyers, accountants and others are seeking to return to companies and firms, and are requesting “exemptions” to do so from the West Virginia Ethics Commission. For as long as there have been government and private sector jobs there have been employees who have moved back and forth between the two. This “revolving door,” as it is often called, provided advantages to both sectors: people with know-how, experience and contacts were valuable recruits. But in the late 20th Century, reformers began to view this long-time practice somewhat differently. They contended that private business was benefiting too much from the tradition and that there was a risk of special favoritism as a result of the arrangement. Local governments, the states and the federal government all began implementing administrative rules and statutes which significantly limited the “revolving door.” West Virginia did not ban the “revolving door” when it passed the West Virginia Governmental Ethics Act in 1989. It did establish some parameters, however. In West Virginia Code §6b-2-5(h), full-time public officials and employees are prohibited from seeking employment from any potential employer who had a matter on which he or she took, or where a subordinate is known to have taken, regulatory action within the preceding 12 months; has a matter before the agency on which he or she is working where a subordinate is known by him or her to be working; or is a vendor to the agency where the official serves or a public employee is employed and the official or public employee, or a subordinate of the official or public employee, exercises authority or control over a public contract with such a vendor. The statute does allow such employees to ask for an exemption from the Ethics Commission to seek such employment in the private sector, however. Each request for an exemption is decided on a case-by-case basis but is normally approved by the full Ethics Commission. That employee, upon leaving the government agency for the private sector, is restricted for one year, after the termination of his or her public service or public employment with a government entity, from appearing in a represented capacity before that government entity in which he or she had served. Again, there are some rare exemptions: The government agency may consent to such representation. Further, legislators and legislative staff are exempt. Former government employees are also prohibited from knowingly and improperly disclosing any confidential information acquired by him or her in the course of his former official duties, nor may he or she use such information to further his or her personal interests or the interests of another person. West Virginia Codes §6b-2-b(e, f and g). The courts have upheld these statutory provisions. For example, in State Ex Rel. Jefferson County Board of Zoning Appeals v. Wilkes, 221 W.Va. 432, 655 S.E. 2d 178, 2007 W.Va., the Supreme Court of West Virginia held that an attorney who had formerly worked as an assistant prosecuting attorney, and who had worked on a case involving the conditional use permit on behalf of a Board of Zoning Appeals, could not work on that case for the applicant after accepting a job with a law firm representing the applicant. Obviously, it is unlikely that the statute ended all favoritism and conflicts of interests which result from the “revolving door” between private sector and government employment. Perhaps most importantly, it did call attention to the necessity of avoiding such conflicts of interest, or appearance of conflicts. And if there are violations, provisions are available under the statute for formal complaints to be made to the West Virginia Ethics Commission. The Commission carefully reviews and rules upon such complaints in a timely manner. Crouser is an attorney in the Charleston office of Jackson Kelly.