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Ethics Act wouldn’t apply to volunteer Bray Cary, official says

CHARLESTON, W.Va. — The executive director of the West Virginia Ethics Commission says businessman Bray Cary, a volunteer in the Justice administration, would not be subject to the Ethics Act.

Cary, best known for his former role as an executive with West Virginia Media, has been serving as a citizen volunteer with the administration of Gov. Jim Justice. He has 24-7 access to the Capitol and signed a non-disclosure form.

Observers have said Cary has been participating in meetings dealing with policy.

Separately, Cary serves on the board of directors for EQT Corporation, which has significant oil and gas operations in West Virginia. Cary has bought several rounds of shares of EQT stock over the past few months. The largest was a purchase in June of 22,627 shares valued at $1,209,186.

EQT’s corporate governance policy says it is the duty of the board of directors to serve as a fiduciary of the company.

Asked by MetroNews if, as a volunteer, Cary would be subject to the same Ethics Act requirements as employees, Stepto said he would not.

She pointed to a portion of the Ethics Act defining who is covered:

“The provisions of this section apply to all elected and appointed public officials and public employees, whether full or part time, in state, county, municipal governments and their respective boards, agencies, departments and commissions and in any other regional or local governmental agency, including county school boards.”

Stepto concluded, “Based upon this language and the definitions of the terms “public employee” and public official” in the Act, it is the opinion of Ethics Commission staff that he is not subject to the Ethics Act.”

Stepto said she could not confirm or deny whether Cary had earlier sought an opinion on the matter. She said he had not filed a financial disclosure form, as would be required of others serving in official administration roles.

Asked if there are previous ethics opinions that might provide parallels, Stepto offered a 1996 ethics opinion that addresses whether a private engineering firm doing business with the government would be subject to the Ethics Act.

The opinion concluded that the firm was not subject to the Ethics Act but might still have a conflict of interest as it bid on a state contract to train and certify drillers while also drilling wells itself.

The Justice administration has taken some steps to determine how to deal with Cary’s unique status.

Bray Cary

Cary signed a confidentiality agreement for the Justice administration in late November, a document that was obtained and published by the Charleston Gazette-Mail.

Such a non-disclosure agreement is not routine for members of the administration, general counsel Brian Abraham said Monday afternoon in response to questions about Cary’s status.

“I have not provided a NDA to anyone else. Generally, all employees of the Governor understand the policy,” Abraham stated.

Abraham agreed that Cary would not be required to file a financial disclosure form.

“As a non-employee or appointed official he is not required to file a FDS,” Abraham stated. “I do understand a letter is being sent to Ethics to confirm they do not review non-applicable submissions.”

EQT has been heavily involved with Marcellus Shale production in West Virginia. The company would be affected by state policy issues having to do with landowner and mineral owner rights, such as co-tenancy and joint development.

Representatives of groups speaking on behalf of mineral rights owners and property owners said on Monday that Cary’s situation with the governor’s office gives the appearance of an uneven playing field.

Cary has not yet responded to an interview request left on his cell phone. Chief of Staff Mike Hall and Communications Director Butch Antolini have not yet responded to questions and have not yet accepted invitations to discuss the matter on MetroNews’ “Talkline.”

Kent Carper

Kanawha County Commissioner Kent Carper, a longtime political observer, discussed the issue on 580 Live on Tuesday morning.

Carper, a Democrat who frequently appeared on Cary’s “Decision Makers,” said he isn’t bothered by Cary’s status.

“He’s on the EQT board, and it’s a Fortune 500 company. What’s so bad about that? Carper said. “Now is it OK to bring it up? Is it OK for additional transparency? Yeah, sure.

“Frankly, I support the governor on this one. He’s the governor. He gets to pick who he wants.”

Tim Miley

There are still many questions unaddressed by Cary’s role, said House Minority Leader Tim Miley, D-Harrison, who spoke Monday on MetroNews’ “Talkline.”

“I strongly believe as a public official — which the governor clearly is and now Bray Cary has made himself a public official of sorts — the primary thing you must do is to do what you can to instill public confidence in the citizens you represent. And I think this is just going in the opposite direction.”

Miley said the public perception of a conflict is hard to avoid in this case.

“Let’s talk about whose water will he be carrying as a public citizen volunteer,” Miley said. “In other words, EQT would certainly object if they thought he wasn’t going to be pursuing their interests. So as a shareholder you might want him there. But I don’t think it’s a board member for a corporation to be a public employee as well, working inside the governor’s office.”

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