10 CSR 40-8.060 - State Employees Financial Interest

PURPOSE: This rule sets forth procedures for determining financial interests of state employees in coal mining, pursuant to sections 444.810 and 444.865.8, RSMo.

(1) To insure compliance with section 444.865.8, RSMo, the commission shall-

(A) Provide advice, assistance and guidance to all state employees required to file statements pursuant to section (4) of this rule;

(B) Promptly review the statement of employment and financial interest and supplements, if any, filed by each employee, to determine if the employee has correctly identified those listed employment and financial interests which constitute a direct or indirect financial interest in an underground or surface coal mining operation;

(C) Resolve prohibited financial interest situations by initiating remedial action or by reporting the violations to the director of the office who is responsible for initiating action to impose the penalties of the Act;

(D) Certify on each statement that review has been made, that prohibited financial interests, if any, have been resolved and that no other prohibited interests have been identified from the statement;

(E) Submit to the director of the office those statistics and information as s/he may request to enable preparation of the required annual report to congress;

(F) Submit to the director of the office the initial listing and the subsequent annual listings of positions as required by section (4) of this rule;

(G) Furnish a blank statement forty-five (45) days in advance of the filing date established by subsection (6)(A) to each state employee required to file a statement; and

(H) Inform annually each state employee required to file a statement with the commission of the name, address and telephone number of the person whom they may contact for advice and counseling.

(2) Commission employees performing any duties or functions under the law shall-

(A) Have no direct or indirect financial interest in coal mining operations;

(B) File a fully completed statement of employment and financial interest or upon entrance to duty and annually after that on the specified filing date; and

(C) Comply with directives issued by persons responsible for approving each statement and comply with directives issued by those persons responsible for ordering remedial action.

(3) Definitions.

(A) Coal mining operation means the business of developing, producing, preparing or loading bituminous coal, subbituminous coal, anthracite or lignite or of reclaiming the areas upon which those activities occur.

(B) Employee means-

1. Any person employed by the commission who performs any function or duty under the law; and

2. Advisory board members and consultants who perform any function or duty under the law, if they perform decision-making functions for the commission under the law or regulations.

(C) Performing any function or duty under this law means those decisions or actions, which if performed or not performed by an employee affect the programs under the law.

(D) Direct financial interest means ownership or part ownership by an employee of lands, stocks, bonds, debentures, warrants, partnership shares or other holdings and also means any other arrangement where the employee may benefit from his/her holding in or salary from coal mining operations. Direct financial interests include employment, pensions, creditor, property and other financial relationships.

(E) Indirect financial interest means the same financial relationships as for direct ownership, but where the employee reaps the benefits of these interests, including interest held by his/her spouse, minor child and other relatives, including in-laws residing in the employee's home. The employee will not be deemed to have an indirect financial interest if there is no relationship between the employee's functions or duties and the coal mining operation in which the spouse, minor children or other resident relatives hold a financial interest.

(F) Prohibited financial interest means any direct or indirect financial interest in any coal mining operation.

(4) Penalties.

(A) Criminal penalties are imposed by section 444.865, RSMo which prohibits each employee of the commission who performs any function or duty under the law from having a direct or indirect financial interest in any underground or surface coal mining operation and whoever knowingly violates the provisions of section 444.865.8, RSMo, upon conviction, shall be punished by a fine of not more than two thousand five hundred dollars ($2500) or by imprisonment of not more than one (1) year or by both.

(B) Regulatory Penalties. The provisions in section 444.865.8, RSMo make compliance with the financial interest requirements a condition of employment for employees of the commission who perform any functions or duties under the law. Accordingly, an employee who fails to file the required statement will be considered in violation of the intended employment provisions of section 444.865.8,RSMo and will be subject to removal from his/her position RSMo and will be subject to removal from his/her position..

(5) Where To File. The commission members shall file their statements with the director of the office. All employees shall file their statements with the commission.

(6) What To Report.

(A) Each employee shall report all information required on the statement of employment and financial interests of the employee, his/her spouse, minor children or other relatives who are full-time residents of the employee's home. The report shall be on a form which will be provided. The statement consists of the following three (3) major parts:

1. A listing of all financial interests, including employment, security, real property, creditor and other financial interests held during the course of the preceding year;

2. A certification that none of the listed financial interest represents a direct or indirect financial interest in an underground or surface coal mining operation except as specifically identified and described by the employee as part of the certificate; and

3. A certification by the reviewer that the form was reviewed, that prohibited interests have been resolved and that no other prohibited interests have been identified from the statement.

(B) Listing of All Financial Interests. The statement will set forth the following information regarding any financial interest:

1. Employment. Any continuing financial interests in business entities and nonprofit organizations through a pension or retirement plan, shared income, salary or other income arrangement as a result of prior or current employment. The employee, his/her spouse or other resident relative is not required to report a retirement plan from which s/he will receive a guaranteed income. A guaranteed income is one which is unlikely to be changed as a result of actions taken by the commission;

2. Securities. Any financial interests in business entities and nonprofit organizations through ownership of stock, stock options, bonds, securities or other arrangements including trusts. An employee is not required to report holdings in widely diversified mutual funds, investment clubs or regulated investment companies not specializing in underground and surface coal mining operations;

3. Real property ownership, lease, royalty or other interests or rights in lands or minerals. Employees are not required to report lands developed and occupied for a personal residence; and

4. Creditors. Debts owed to business entities and nonprofit organizations. Employees are not required to report debts owed to financial institutions (banks, savings and loan associations, credit unions and the like) which are chartered to provide commercial or personal credit. Also excluded are charge accounts and similar short-term debts for current and ordinary household and living expenses.

(C) Employee Certification and, if Applicable, a Listing of Exceptions.

1. The statement will provide for a signed certification by the employee that to the best of his/her knowledge-

A. None of the listed financial interests represents an interest in an underground or surface coal mining operation except as specifically identified and described as exceptions by the employee as part of the certificate; and

B. The information shown on the statement is true, correct and complete.

2. An employee is expected to-

A. Have complete knowledge of his/her personal involvement in business enterprises such as a sole proprietorship and partnership, his/her outside employment and the outside employment of the spouse and other covered relatives; and

B. Be aware of the information contained in the annual financial statement or other corporate or business reports routinely circulated to investors or routinely made available to the public.

3. The exceptions shown in the employee certification of the form must provide enough information to determine the existence of a direct or indirect financial interest. Accordingly, the exceptions should-

A. List the financial interests;

B. Show the number of shares, estimated value or annual income of the financial interests; and

C. Include any other information which the employee believes should be considered in determining whether or not the interest represents a prohibited interest.

4. Employees are cautioned to give serious consideration to their direct and indirect financial interest before signing the statement of certification.

(7) Gifts and Gratuities.

(A) Except as provided in subsection (11)(B) of this rule, employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or any other thing of monetary value from a coal company which-

1. Conducts or is seeking to conduct operations or activities that are regulated by the commission; or

2. Has interest that may be substantially affected by the performance or nonperfor-mance of the employee's official duty.

(B) The prohibitions in subsection (11)(A) of this rule do not apply in the context of obvious family or personal relationships, such as those between the parents, children or spouse of the employee and the employee, when the circumstances make it clear that it is those relationships rather that the business of the persons concerned which are the motivating factors. An employee may accept-

1. Food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon, dinner or other meeting where an employee may properly be in attendance; and

2. Unsolicited advertising or promotional material, such as pens, pencils, note pads, calendars and other items of nominal value.

(8) Resolving Prohibited Interests.

(A) Actions of the Commission.

1. Remedial action to effect resolution. If an employee has a prohibited financial interest, the commission will promptly advise the employee that remedial action which will resolve the prohibited interest is required within ninety (90) days.

2. Remedial action may include:

A. Reassignment of the employee to a position which performs no function or duty under the law;

B. Divestiture of the prohibited financial interest; or

C. Other appropriate action which either eliminates the prohibited interest or eliminates the situation which creates the conflict.

3. Reports of noncompliance. If ninety (90) days after an employee is notified to take remedial action that employee is not in compliance that fact will be reported to the commission.

4. An employee who disagrees with the remedial action may request in writing for a preremedial action conciliatory conference within thirty (30) days of the order of remedial action. Upon this request, the commission will meet with the employee within sixty (60) days before taking final action.

(B) Members of the commission shall excuse themselves from proceedings which may affect their direct or indirect financial interests.

(9) Who Shall File.

(A) Any employee who performs any function or duty under the law is required to file a statement of employment and financial interests. An employee who is no longer employed at the time a filing is due is not required to file a statement.

(B) The commission, annually by July 1, will prepare a list of those positions within the commission that do not involve performance of any functions or duties under the law and will send the list with written justifications to the director of the office by September 30 of each year.

(10) When to File.

(A) Employees performing functions or duties under the law shall file-

1. Within one hundred twenty (120) days (June 10, 1980) of the effective date of these regulations (February 11, 1980); and

2. Annually after that within the month of February.

(B) New employees hired, appointed or transferred to perform functions or duties under the law will be required to file at the time of entrance to duty.

(C) New employees are not required to file an annual statement on the subsequent annual filing date if this date occurs within two (2) months after their initial statement was filed.

Notes

10 CSR 40-8.060

AUTHORITY: section 444.530, RSMo 1994.* Original rule filed Oct. 12, 1979, effective 2/11/1980. Amended: Filed Aug. 13, 1982, effective 11/11/1982. Amended: Filed May 2, 1989, effective 8/1/1989.

*Original authority 1971, amended 1983, 1990, 1993.