By Ron Gregory
CHARLESTON – An ethics complaint has been filed against Mingo County Democrat Delegate Justin Marcum on the heels of an Ethics Commission advisory opinion, issued Thursday, that both Republicans and Democrats were hailing as victories for their dispute about legislative mailing privileges.
Marcum, a Wiliamson attorney, is also an assistant Mingo County prosecutor. The complaint, notarized Friday, was filed by Republican activist Rob Cornelius.
Advisory Opinion 2014-20 limited incumbent legislators’ ability to attempt to influence voters immediately before an election. However, the Ethics Commission determined that it could not make its decision retroactive, thus clearing Lincoln County Delegate Jeff Eldridge’s February mailing to constituents.
Republicans claim Democrats, especially in the southern coalfields, followed up on a suggestion by House Speaker Tim Miley. In a caucus, several House of Delegates members said Miley urged coalfield Democrats to use their “free mailing privileges” to combat criticism from pro-life forces. Democrats in the coalfields were being hammered for not supporting a proposal that would have discharged the “protect the unborn child” bill from committee.
Democrat operatives, as well as Eldridge himself, have said the mailings were “only designed to update the voters on the issues in the legislature.” Eldridge pointed out that there was nothing in his mailing “that asked people to vote for Jeff Eldridge. I felt it was educational and informative; I didn’t consider it a campaign piece.”
In their Thursday ruling, the Ethics Commission determined that mailings that can be construed as political are not permissible. They also set a 60-day period before any election as a standard for informing voters. Noted in the decision is a provision in federal law that prohibits Congressional representatives from bulk mailing their constituents along strict party lines or by historic voter lists.
The Ethics Commission also made it clear that they are not comfortable with any such mailings but said the law does not provide them with power to completely stop the practice. Since the opinion says state law requires ethical actions “at a minimum” by elected officials, the opinion urges the legislature to consider adopting tougher standards for their membership. At present, the Ethics Commission staff told them there are no internal rules regarding mailing.
While many refer to the legislative mailings as using the “franking” privilege, that is not technically the case. Congress does, in fact, have a right to mail constituents at no charge thanks to the Postal Service. But legislative mailings, such as those by Marcum and Eldridge, must be processed by legislative staff, then mailed at a bulk permit rate. Funds to pay the postage come from a line item called “constituent services.”
The opinion cites West Virginia Code section 6B-2-5(b) as the basis for the decision. That section generally refers to using public office for private gain. The opinion concludes that using the legislative mailing privileges is a “usual and customary” method used by legislators to communicate with constituents.
Cornelius later filed a complaint against Democrat Delegate Tiffany Lawrence of Jefferson County for a mailing she did and then released details of his complaint against Marcum. Cornelius said other complaints are planned against Democrat legislators next week.
In the complaint against Marcum, Cornelius claims the delegate sent 7,346 mailings to homes on Feb. 15, three months before his contested primary election. Cornelius calls the mailings “self-promotional letters.”
Marcum and other Democrats have insisted the mailings were simply “legislative updates” to keep constituents informed of developments at the legislature.
Cornelius goes on to maintain that Marcum’s letters were prepared and mailed at taxpayer expense and sent to a “targeted” group of historic Democrat voters in his district. The House Clerk, Greg Gray, told a reporter several weeks ago that the cost of the mailings was approximately $2,700.
The Republican claims Marcum’s actions are “a clear violation of the Ethics Act and its prohibition on the use of taxpayer money for personal gain.”
Cornelius based his filing against Marcum on information he received from a Freedom of Information Act request to Gray in April. Other legislators whose mailing information was requested are Democrats Rick Moye, David Walker, Dale Stephens, Mike Moneypenny and Jim Morgan.
While the Ethics Commission itself cannot provide information regarding a formal filing, Cornelius gave reporters the notarized copies of his complaints.