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Lobbying rules may not apply to volunteer Bray Cary either

CHARLESTON, W.Va. — Lobbyists may wish to have full-time access to the governor’s office.

So should a volunteer with full-time access to the governor’s office have to register as a lobbyist?

Bray Cary

The question has come up this week because of the unique status of businessman Bray Cary, who is serving in the Governor’s Office as a citizen volunteer, equipped with reserved parking, a 24-7 access pass and a nondisclosure agreement.

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.

MORE: Ethics Act wouldn’t apply to volunteer Bray Cary

Asked whether someone who falls under that description would need to register as a lobbyist, state Ethics Commission Director Rebecca Stepto said the answer is not clear.

The state Ethics Act defines lobbying as communicating with a government officer or employee to promote, advocate or oppose or otherwise attempt to influence legislation or other kinds of policy action.

But not every person who communicates with the Legislature or executive branch would be considered a lobbyist, which is defined as someone employed by a lobbying firm or who is reimbursed to communicate with state officials to influence them.

“The Ethics Commission has never rendered an Advisory Opinion directly addressing whether a volunteer in the Governor’s administration meets the definition of ‘lobbyist’ for purposes of triggering the lobbyist registration requirements in the Ethics Act,” Stepto stated in response to questions posed by MetroNews.

“You reference corporate board membership in your question. The lobbyist provisions in the Act do not reference corporate board membership.”

Registered lobbyists have certain requirements. For example, their expenses — such as meals or gifts provided to state officials — must be reported.

But if a lobbyist were to take a citizen volunteer in the Governor’s Office out for a nice steak, would that fall through the cracks?

“This Code section does not reference volunteers; however, the Ethics Commission has never rendered an Advisory Opinion on the specific question you pose,” Stepto wrote in response to an email posing that question.

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.

EQT already has several lobbyists at the Capitol. Those who registered on behalf of EQT last year include Randolph Cheetham, Kelley Goes, Paul Hardesty, Gregory Hoyer, Michael Killion, Mark Polen, Danielle Waltz and Chris Weikle.

Lew Brewer

Lew Brewer, Stepto’s predecessor as director of the Ethics Commission, said he also has been pondering issues about the breadth of a voluntary role in recent days.

“It is unique, and I don’t have any definitive answer for you because I just haven’t studied it,” said Brewer, now a lawyer in private practice, while discussing the topic in a telephone interview.

“You read the paper and see that and say ‘That’s interesting. I wonder what the rule is.'”

Brewer said the federal government tends to discourage volunteers in official roles because of concern of liability — after a certain amount of time the volunteer may unexpectedly demand compensation.

Brewer said the state Ethics Act does apply to some who are unpaid, although those are usually people who are appointed to boards.

“So if you are given authority to perform a government role then you may be subject to the Ethics Act even if you are not being compensated,” he said.

One complication about legislation aimed at a gray area like this would be the definitions. What aspect of a volunteer would be defined as being subject to the Ethics Act?

“I just don’t think anybody’s ever asked the commission would any of the rules apply in a position like what you’re describing,” Brewer said.

“Whether there’s anything to be complained about depends on what the person is actually doing. I can see where they have this perception but I don’t know where anyone has described the day to day business the volunteer is engaged in or that any of it would fall within the definition of lobbying.”

Speaking today on MetroNews’ “Talkline,” Justice administration chief of staff Mike Hall, said Cary’s role has focused on communications and messaging.

“It’s been beneficial to me and those on the staff, his contacts and his interest in the growth of the state of West Virginia. But particularly one area of the Governor’s Office operation that the governor felt needed attention was in the communications area,” Hall said.

Hall said the Governor’s Office has been examining the coordination of the various communications operations within a variety of departments. He said Cary’s longtime experience through his West Virginia Media operations has been an asset.

“This is the main thing he’s doing,” Hall said.

Hall indicated the emphasis on communications requires being in meetings about policy.

“He would not be the person that sets any policy in terms of our legislative agenda,” Hall said. “In terms of who makes the final decision as to the policy of this office, that’s the governor himself.”

Hall said there’s been a role for volunteers in the past at the Statehouse.

“First of all the concept of a volunteer working with legislative bodies and processes is not new,” Hall said, citing examples of volunteers working with legislative committees.

Responding to questions that have been raised about Cary’s role, Hall said more has been made of the situation than what it actually merits.

“This is so far from the reality of what’s actually occurring here,” Hall said. “Nobody’s skirting any ethics laws.”

Hall concluded, “He’s been more scrutinized than any human being I’ve seen in the last week or two.”

Tim Miley

House Minority Leader Tim Miley said Cary’s role has been structured in such a way that creates unnecessary confusion.

“I just believe we ought to have very clear rules that apply not just to employees and government officials but also to those who have the financial means and ability to offer their services as a volunteer,” said Miley, D-Harrison, in a telephone interview.

“From a practical standpoint, there is no difference when several people are sitting in a room being exposed and being a part of the same conversations yet some are subject to various ethics and other state rules while others are not. That makes no sense to me and I think makes no sense to the public at large either.”

Miley suggested the easiest resolution would be to make Cary an official employee in the Governor’s Office.

“I think there’s an easy way to resolve this. Make Bray an employee, pay him some de minimis amount and then he’s subject to the ethics laws that apply to everyone else in the Governor’s Office,” Miley said.

“If he wants to donate it back to the state, he can do that. At least there will be some comfort in knowing he’s subject to the same rules everybody else is. Any resistance to making him an employee causes people to wonder what is going on.”

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