NEW CUMBERLAND - If Pat Jones is elected mayor of New Cumberland on Tuesday, he'll have one challenge to face right out of the starting gate - whether he can stay employed as the city's full-time water operator.
Jones, 59, said he intends to stay on as water operator if he is elected mayor, but he may have to get permission from the West Virginia Ethics Commission to do so.
In a series of legal opinions, the commission, which enforces the West Virginia Governmental Ethics Act, has consistently ruled that the mayor of a town cannot also be employed by the municipality - unless the city obtains a hardship waiver known as a contract exemption, said commission Executive Director C. Joan Parker.
The Ethics Act prohibits, among other things, conflicts of interest and the use of public office for private gain. It also prohibits elected officials from having an interest in a public contract over which they exercise control.
"It's come up in lots of towns, especially small towns, over the years," Parker said. "The philosophy behind those rulings is that, by municipal code, the mayor is the CEO of the municipality, and, so, how do you get to be your own boss?"
In order to obtain a contract exemption, the city must prove that disallowing the exemption would result in "excessive cost, undue hardship or other substantial interference" in the operation of city government, Parker said.
"I would encourage (Jones) to seek an advisory opinion," Parker said.
Jones, who, in addition to serving as water operator, is also a 1st Ward councilman, said he addressed the ethical questions previously when he ran for mayor four years ago.
"As a member of council, I've been advised by the Ethics Commission about what I can and cannot do. I've recused myself from a lot of stuff. I don't want to get myself in a (difficult) position," Jones said.
Jones said he believes he can ethically continue as water operator and serve as mayor.
"I can't get directly involved with the water department and its decisions. That will be for the water board to take care of," he said.
A city employee for more than 20 years, Jones is paid by the Water-Sewerage Board, a self-supporting body - separate from New Cumberland City Council - that oversees the operation of the city's drinking water and sewer systems. The board is made up of three city council members and three city residents, according to the city's codified ordinances. Mayor Richard Blackwell is an ex officio member.
Blackwell, who is running for re-election after two years in office, said he doesn't think Jones can be a full-time water operator and mayor.
"How will he have time to be mayor?" Blackwell said. "There is more to the mayor's office than a title. There are many functions, meetings, conferences and seminars that should be attended."
Jones disagrees. "I truly believe I can (be mayor) because you're dealing with a small community. I can devote as much time to that as anyone else has," he said.
The city charter, which sets the mayor's salary at $200 a month, describes the mayor as "chief executive officer" of the town. New Cumberland has a mayor-council form of government in which city council has legislative authority and the mayor has administrative authority.
According to the city charter, first adopted in 1891, the mayor "shall take care that the orders, by-laws, ordinances and resolutions of the Council thereof are faithfully executed."
In the case of city personnel, Blackwell said council is responsible for hiring, while the mayor has authority to fire and supervise employees. As such, Blackwell described himself as Jones' immediate supervisor.
Jones acknowledges that if New Cumberland had a strong mayor form of government, he could not be both mayor and water operator. But New Cumberland does not have such.
"Council hires; council fires," he said.
The Ethics Commission has issued numerous opinions on the question of whether a mayor can also be an employee of a city. In two out of five cases similar to New Cumberland's, the commission denied the contract exemption requested by the municipality. In three of those cases, the exemption was allowed under certain conditions.
Those cases are as follows:
Beech Bottom, W.Va. - Mayor George Lewis asked permission to receive compensation as a water board member, a water board employee and a laborer. Exemption denied.
Mabscott, W.Va. - Council asked permission to continue employing the mayor as police chief, assistant fire chief and head of the street department. Exemption denied.
Rhodell, W.Va. - Town asked permission to continue employing the mayor as the water operator. Exemption granted because of the hardship of hiring another qualified water operator.
Handley, W.Va. - Council asked permission to continue employing the mayor as police chief. Exemption granted (and extended twice) with certain conditions.
Junior, W.Va. - Town asked permission to pay its mayor as a temporary employee in emergency situations. Exemption granted with certain conditions.
The commission ruled in 2006 that, in the case of strong mayor cities, the mayor cannot also be employed by the city because "an inescapable conflict exists."
In the case of Beech Bottom, a mayor-council municipality like New Cumberland, the commission said, "The spirit and intent of the prohibition against use of office for private gain would be violated if an elected mayor is employed by his or her governing body on a permanent basis when the mayor has the power to hire, fire and supervise employees."
The commission opined that because, in a mayor-council form of government, the mayor and council share administrative duties, the mayor is in a position similar to that of a mayor in a strong mayor form of government.
Although she could not speak specifically to Jones' situation, Parker said, "I would hope that he would exercise caution."
Jones faces Blackwell and Linda McNeil, president of the Hancock County Historical Museum Commission, in a three-way race for mayor in Tuesday's city election. Voting hours are 6:30 a.m. to 7:30 p.m. at the New Cumberland Volunteer Fire Department building.
(Huba can be contacted at firstname.lastname@example.org)