August 23, 2014
By Ron Gregory
CHARLESTON - Recent allegations concerning ethical violations by politicians have raised questions concerning the entire process in West Virginia.
Mingo Democrat House of Delegates member Justin Marcum has been particularly outspoken in his criticism of the current process. Marcum, also an Assistant Mingo Prosecutor, has leveled accusations against Republican activist Rob Cornelius. The GOP supporter announced recently that he had filed a complaint with the state Ethics Commission against Marcum.
Basically, Cornelius and others have alleged that Democrat legislators have used their “franking” privileges to send political mailings to voters. Those incumbents argue, however, that any mailings are “informational” pieces addressed to “constituents.”
Marcum appeared particularly bothered by allegations from Cornelius that the delegate used historic Democrat voter lists in issuing his mail. Actually, state legislators do not have “franking” privileges as normally defined. In Congress, for example, members can mail letters without charge to constituents through the U.S. Postal Service and that is known as “franking.” Legislators actually send their pieces through the mail but the state pays for the postage under a line item called “constituent services.”
Marcum said, in a telephone interview Friday, that filings such as those by Cornelius “are particular troublesome because I make my living as a lawyer. To be constantly bombarded with allegations that I am crooked and a liar has to stop. Rob has been doing this for years and I finally said, ‘enough is enough.’ He’s trying to interfere with my livelihood now.”
Marcum has also been particularly vocal in insisting that he does not believe Cornelius has actually filed an ethics complaint since he (Marcum) has not been notified of such by the Ethics Commission.
But Acting Ethics Director Rebecca Steptoe said that is not necessarily reliable. Although Steptoe cannot discuss any individual case, she responded to a reporter’s questions about a “hypothetical” situation. Steptoe referred to the State Ethics Act and to the Ethic Commission’s Website to verify her interpretation of the law.
In any scenario where a verified ethics complaint is filed, Steptoe said the person accused is not provided immediate information. She did say that any ethics complaint had to be “verified” with a signature signed before a notary public.
The Website says only the Ethics Commission has the authority to investigate and resolve alleged violations of the act. “The commission must accept all sworn complaints it receives,” the Website says. The Commission can also initiate complaints “when it receives credible evidence of a material violation.”
Steptoe confirmed that the Commission “only investigates complaints which, according to the Commission’s Probable Cause Review Board, allege a material violation of the act.” There is a two-year statute of limitation on alleged ethics violations.
In practical terms, Steptoe said, the Probable Cause Review Board “acts as a grand jury, determining if there is enough evidence for the Commission to proceed. If the Board agrees there is sufficient evidence to move forward, a Notice of Investigation is issued to the party against whom the complaint has been filed.
Apparently, then, someone like Marcum would only be formally notified that a complaint had been filed if the Review Board found probable cause to continue. Steptoe confirmed, in the hypothetical case, that someone might be accused, the allegation determined not substantiated by the Review Board, and never be notified of the complaint.
Marcum added, “I have sat back and taken the arrows from Republican operatives like Cornelius long enough. There are plenty of other Democrats who are tired of this, too.”
Erroneous press reports last week said Marcum had already filed a lawsuit against Cornelius in “Kanawha County court.” Marcum confirmed information obtained from the office of Kanawha Circuit Clerk Cathy Gatson late Friday that no suit has been filed. Marcum said, while he has “every intention of filing that suit” it has not yet been presented to the court.
Marcum concluded, “Rob has been focusing on frivolous, warrantless ethics complaints against
Democrats, primarily because the Republicans want to use the November election to regain a majority of the House.”
Sometimes, Steptoe said, those accused of violating the act will agree to enter into a Respondent Conciliation Agreement whereby certain stipulations are agreed to as a solution for alleged violations.
Those found guilty of a “material violation of the act” can be publicly reprimanded and fined up to $5,000 for each violation. In certain circumstances, the Commission can order that a person be removed from public office or that his or her employment be terminated.